By: Watson S.B. No. 970               A BILL TO BE ENTITLED   AN ACT   relating to a sexual assault policy at public and private   institutions of higher education.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 51.9363, Education Code, is amended to   read as follows:          Sec. 51.9363.  [CAMPUS] SEXUAL ASSAULT POLICY.  (a)  In this   section, "postsecondary educational institution" means an    ["]institution of higher education or a private or independent   institution of higher education, as those terms are defined ["   has   the meaning assigned] by Section 61.003.          (b)  Each postsecondary educational institution [of higher   education] shall adopt a policy on [campus] sexual assault   applicable to any person employed by the institution and to each   student enrolled in the institution.  The policy must:                (1)  incorporate an affirmative consent standard for   determining consent to engage in sexual activity, including by   reflecting the affirmative consent principles described by   Subsection (b-1);                (2)  include:                      (A)  definitions of prohibited behavior;                      (B)  sanctions for violations; and                      (C)  the protocol for reporting and responding to   reports of [campus] sexual assault; and                (3) [(2)]  be approved by the institution's governing   board before final adoption by the institution.          (b-1)  Each postsecondary educational institution shall   ensure the institution's sexual assault policy reflects the   following principles regarding affirmative consent to engage in   sexual activity:                (1)  affirmative consent requires words or actions that   clearly demonstrate a knowing and voluntary agreement to engage in   sexual activity;                (2)  a person's silence or the absence of the words "no"    or "stop" is not sufficient to establish affirmative consent to   engage in sexual activity;                (3)  the requirement to obtain affirmative consent to   engage in sexual activity applies to each student enrolled at the   institution regardless of whether the sexual activity occurs on or   off campus;                (4)  each participant is responsible for obtaining   affirmative consent and ensuring that the affirmative consent   continues throughout the duration of the sexual activity;                (5)  affirmative consent to engage in a sexual act or   prior consensual sexual activity with any person does not   constitute affirmative consent to engage in any other sexual act;                (6)  affirmative consent may be withdrawn at any time;                (7)  a person cannot affirmatively consent to engage in   sexual activity if it is the result of any coercion, intimidation,   force or threat of harm;                (8)  a person cannot affirmatively consent to engage in   sexual activity when the person is incapacitated or otherwise lacks   the ability to knowingly choose to engage in the activity,   regardless of whether the person is incapacitated due to any   physical or mental condition, lack of consciousness, being asleep,   being involuntarily restrained, being under the influence of drugs   or alcohol to the level of incapacitation, or for any other reason;   and                (9)  an accused person will not be excused for   believing the complainant affirmatively consented to engage in   sexual activity if:                      (A)  the accused person knew or reasonably should   have known that the complainant was incapacitated as described by   Subdivision (7); or                      (B)  the accused believed that the complainant   affirmatively consented to engage in the sexual activity and the   belief is based upon:                            (i)  the accused's intoxication; or                            (ii)  the accused failing to take reasonable   steps to ascertain whether the complainant affirmatively consented   to engage in the sexual activity.          (c)  Each postsecondary educational institution [of higher   education] shall make the institution's [campus] sexual assault   policy available to students, faculty, and staff members by:                (1)  including the policy in the institution's student   handbook and personnel handbook; [and]                (2)  creating and maintaining a web page on the   institution's Internet website dedicated solely to the policy[.];    and                (3)  develop and implement a public awareness campaign   informing students, staff, and faculty of the affirmative consent   standard implemented by the institution, including that the   affirmative consent standard shall be applied in alleged violations   of the sexual assault policy of the institution.          (d)  Each postsecondary educational institution [of higher   education] shall require each entering freshman or undergraduate   transfer student to attend an orientation on the institution's   [campus] sexual assault policy before or during the first semester   or term in which the student is enrolled at the institution.  The   institution shall establish the format and content of the   orientation.          (e)  Each biennium, each postsecondary educational    institution [of higher education] shall review the institution's   [campus] sexual assault policy and, with approval of the   institution's governing board, revise the policy as necessary.          SECTION 2.  Section 51.9363, Education Code, as amended by   this Act, applies beginning with the 2017 fall semester.          SECTION 3.  This Act takes effect immediately if it receives   a vote of two-thirds of all the members elected to each house, as   provided by Section 39, Article III, Texas Constitution.  If this   Act does not receive the vote necessary for immediate effect, this   Act takes effect September 1, 2017.