On June 28, 2019, Governor Wolf signed into law Act 16 of 2019, which requires institutions of higher education in Pennsylvania to meet two new categories of requirements related to sexual misconduct in their programs and activities. The first requires each institution to create an online reporting system; the second relates to the contents of each institution’s written policies and procedures.  The new law also tasked the Pennsylvania Department of Education (“PDE”) with designing a model policy.  PDE just released its Model Policy, providing institutions with a guide to responding to reports of sexual misconduct.

Creation and Implementation of Written Policy and Online Reporting System

Act 16 requires Pennsylvania colleges and universities to adopt a “clear, understandable written policy on sexual harassment and sexual violence that informs victims of their rights under Federal and State law, including the crime victims bill of rights.”  The statute does not define or otherwise clarify what constitutes a “clear, understandable written policy.”  Act 16 also requires that institutions’ written policies include an amnesty provision “that a witness or victim of an incident of sexual harassment or sexual violence who reports the incident in good faith will not be sanctioned by the institution for admitting in the report to a violation of the institution’s student conduct policy on the personal use of drugs or alcohol.”

As part of Act 16’s reporting requirements, colleges and universities must “establish and maintain an online reporting system to receive complaints of sexual harassment and sexual violence from students and employees.”  The online system must provide “students and employees making reports” with information about who will receive and have access to the report; how the information from the report will be used; and “[c]ontact information for on-campus and off-campus organizations serving victims of sexual harassment and sexual violence.”  Act 16 also requires colleges and universities to “prominently post” their “policy regarding reports and investigations of sexual harassment and sexual violence” and to “encourage individuals to review the policy for more information about procedures and resources.”

That reporting system must include the ability to submit a report anonymously.  Further, a college or university “may not fail or refuse to investigate an anonymous report because it is anonymous.”  The statute provides no further context as to what an investigation of an anonymous report of sexual violence or sexual harassment must entail given the potentially limiting factor of the anonymity of the reporter.

Model Policy

Act 16 required PDE to “develop a model policy and make the model policy available to postsecondary institutions.”  PDE did so, and the Model Policy is available here.

While the entire Model Policy is worth reviewing and considering, some of the Model Policy’s notable provisions include the following:

• Definition of consent. The Model Policy defines “consent” in an affirmative way (which is also required by California and New York law).  Consent must be a “knowing, voluntary, active, present, and ongoing” agreement to engage in a particular sexual activity.  Relatedly, concerning the idea of incapacitation, the Model Policy states that the college or university would consider whether a reasonable person, who was sober, should have known that the other party was incapacitated.
• Scope of responsible employees. The Model Policy includes within the scope of responsible employees all a college or university’s employees and volunteers.  While many colleges and universities already designate “all employees” as responsible employees, some colleges and universities do not. (Note that Act 16 itself does not mandate that all employees be deemed as responsible employees.)
• Distinguishing reports and complaints. The Model Policy encourages individuals and third-parties to report sexual misconduct as soon as possible to allow the college or university to respond promptly and effectively.  In a response to the frequent confusion that arises on campuses regarding “reports” and “complaints,” the Model Policy is careful to draw a distinction between the two. It clarifies that a “report” is defined as a notification of an incident of sexual misconduct to the Title IX Coordinator (or their designee) and each report may be accompanied by a request for (1) supportive or interim measures; (2) no further action; (3) a request to initiate an informal resolution process; or (4) the initiation of the formal complaint process.  If a report is accompanied by a request to initiate the formal complaint process, the report is then deemed to be a “complaint” that must be fully investigated.  Alternatively, Title IX Coordinators may heighten the report into a complaint if they determine that the reported conduct creates a “serious or immediate threat to the campus community.”
• Rights afforded to the parties.  At the outset, the respondent must be notified of the alleged misconduct and given an opportunity to  respond prior to any initial interview.  The Model Policy also provides that both parties may have an advisor of choice.  However, the advisor may not unduly delay the process, nor may the advisor “speak, write, or otherwise communicate with investigators, conduct administrators, hearing panel members, or appeal reviewers on behalf of the party being advised.”
• Standard of proof. Under the Model Policy, the proposed standard of proof is a preponderance of the evidence, i.e. whether it is more likely than not that the alleged misconduct occurred.

Concluding Thoughts

Taking effect on June 27, 2020, Act 16 creates a few new wrinkles in the landscape of policies and procedures related to sexual misconduct on collegiate campuses.  Most notably, Act 16 provides some heightened requirements on what must be in a college or university’s written policies and procedures.  And while many campuses already have online reporting systems, Act 16 mandates such systems.  In doing so, the statute requires colleges and universities to allow reports to be made anonymously and to refrain from dismissing those reports simply because of their anonymity.

PDE’s Model Policy, while not binding, provides some helpful language. However, especially with the potential for updated Title IX regulations being promulgated by the U.S. Department of Education in the coming weeks, colleges and universities should not assume that the Model Policy, in its current form, is (or will remain) Title IX compliant.

While the effective date of Act 16 is not until late June 2020, in light of the impending Title IX final regulations and the law, which may in many instances require some thought to reconcile, we recommend that colleges and universities start examining whether policy revisions are needed on their own campuses as soon as possible. Colleges and universities should in particular take all necessary measures to ensure that they have an online reporting system operational as of June 28 and to ensure that system allows for the submission of anonymous reports.