HB5452 103RD GENERAL ASSEMBLY

LRB103 37795 RJT 67924 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB5452

Introduced 2/9/2024, by Rep. Mary Beth Canty

SYNOPSIS AS INTRODUCED:

110 ILCS 155/10
110 ILCS 155/15
110 ILCS 155/20
110 ILCS 155/25
110 ILCS 155/30
735 ILCS 110/5
735 ILCS 110/10
735 ILCS 110/15

Amends the Preventing Sexual Violence in Higher Education Act. Provides that all higher education institutions shall include in the comprehensive policy concerning sexual violence, domestic violence, dating violence, and stalking, information about how the higher education institution protects individuals who report from retaliation. Provides that the higher education institutions procedure for responding to a report shall also include protecting the survivor from retaliation, including a policy and process for early dismissal of any retaliatory claim by a respondent against a survivor, including, but not limited to, claims of defamation, harassment, bullying, and any other violation of policy claims where the actions alleged by the respondent are related to the survivor's report. Makes related changes in provisions concerning student notification of rights and options, confidential advisors, complaint resolution procedures, and campus training. Amends the Citizen Participation Act. Provides that a court shall not permit any person to pursue a defamation action to silence or retaliate against, a person reporting gender-based violence, including cases where the alleged perpetrator is publicly named. Provides that the exception to motions under this Act are when the acts are not genuinely aimed at procuring favorable government action, result, or outcome or when the plaintiff presents clear and convincing evidence that the reporting of gender-based violence constituted speaking with actual malice. Makes related changes.

A BILL FOR

AN ACT concerning gender violence.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Preventing Sexual Violence in Higher Education Act is amended by changing Sections 10, 15, 20, 25, and 30 as follows:

(110 ILCS 155/10)

Sec. 10. Comprehensive policy. On or before August 1, 2016, all higher education institutions shall adopt a comprehensive policy concerning sexual violence, domestic violence, dating violence, and stalking consistent with governing federal and State law. The higher education institution's comprehensive policy shall include, at a minimum, all of the following components:

(1) A definition of consent that, at a minimum, recognizes that (i) consent is a freely given agreement to sexual activity, (ii) a person's lack of verbal or physical resistance or submission resulting from the use or threat of force does not constitute consent, (iii) a person's manner of dress does not constitute consent, (iv) a person's consent to past sexual activity does not constitute consent to future sexual activity, (v) a person's consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another, (vi) a person can withdraw consent at any time, and (vii) a person cannot consent to sexual activity if that person is unable to understand the nature of the activity or give knowing consent due to circumstances, including without limitation the following:

(A) the person is incapacitated due to the use or influence of alcohol or drugs;

(B) the person is asleep or unconscious;

(C) the person is under age; or

(D) the person is incapacitated due to a mental disability.

Nothing in this Section prevents a higher education institution from defining consent in a more demanding manner.

(2) Procedures that students of the higher education institution may follow if they choose to report an alleged violation of the comprehensive policy, regardless of where the incident of sexual violence, domestic violence, dating violence, or stalking occurred, including all of the following:

(A) Name and contact information for the Title IX coordinator, campus law enforcement or security, local law enforcement, and the community-based sexual assault crisis center.

(B) The name, title, and contact information for confidential advisors and other confidential resources and a description of what confidential reporting means.

(C) Information regarding the various individuals, departments, or organizations to whom a student may report a violation of the comprehensive policy, specifying for each individual and entity (i) the extent of the individual's or entity's reporting obligation, (ii) the extent of the individual's or entity's ability to protect the student's privacy, and (iii) the extent of the individual's or entity's ability to have confidential communications with the student.

(D) An option for students to electronically report.

(E) An option for students to anonymously report.

(F) An option for students to confidentially report.

(G) An option for reports by third parties and bystanders.

(H) Information about how the higher education institution protects individuals who report from retaliation.

(3) The higher education institution's procedure for responding to a report of an alleged incident of sexual violence, domestic violence, dating violence, or stalking, including without limitation (i) assisting and interviewing the survivor, (ii) identifying and locating witnesses, (iii) contacting and interviewing the respondent, (iv) contacting and cooperating with law enforcement, when applicable, and (v) providing information regarding the importance of preserving physical evidence of the sexual violence and the availability of a medical forensic examination at no charge to the survivor, and (vi) protecting the survivor from retaliation, including a policy and process for early dismissal of any retaliatory claim by a respondent against a survivor, including, but not limited to, claims of defamation, harassment, bullying, and any other claimed violation of the policy where the actions alleged by the respondent are related to the survivor's report.

(4) A statement of the higher education institution's obligation to provide survivors with concise information, written in plain language, concerning the survivor's rights and options, upon receiving a report of an alleged violation of the comprehensive policy, as described in Section 15 of this Act.

(5) The name, address, and telephone number of the medical facility nearest to each campus of the higher education institution where a survivor may have a medical forensic examination completed at no cost to the survivor, pursuant to the Sexual Assault Survivors Emergency Treatment Act.

(6) The name, telephone number, address, and website URL, if available, of community-based, State, and national sexual assault crisis centers.

(7) A statement notifying survivors of the interim protective measures and accommodations reasonably available from the higher education institution that a survivor may request in response to an alleged violation of the comprehensive policy, including without limitation changes to academic, living, dining, transportation, and working situations, obtaining and enforcing campus no contact orders, and honoring an order of protection or no contact order entered by a State civil or criminal court.

(8) The higher education institution's complaint resolution procedures if a student alleges violation of the comprehensive violence policy, including, at a minimum, the guidelines set forth in Section 25 of this Act.

(9) A statement of the range of sanctions the higher education institution may impose following the implementation of its complaint resolution procedures in response to an alleged violation of the comprehensive policy. Sanctions may include, but are not limited to, suspension, expulsion, or removal of the student found, after complaint resolution procedures, to be in violation of the comprehensive policy of the higher education institution.

(10) A statement of the higher education institution's obligation to include an amnesty provision that provides immunity to any student who reports, in good faith, an alleged violation of the higher education institution's comprehensive policy to a responsible employee, as defined by federal law, so that the reporting student will not receive a disciplinary sanction by the institution for a student conduct violation, such as underage drinking or possession or use of a controlled substance, that is revealed in the course of such a report, unless the institution determines that the violation was egregious, including without limitation an action that places the health or safety of any other person at risk.

(11) A statement of the higher education institution's prohibition on retaliation against those who, in good faith, report or disclose an alleged violation of the comprehensive policy, file a complaint, or otherwise participate in the complaint resolution procedure and available sanctions for individuals who engage in retaliatory conduct.

(Source: P.A. 99-426, eff. 8-21-15; 99-741, eff. 8-5-16; 100-1087, eff. 1-1-19.)

(110 ILCS 155/15)

Sec. 15. Student notification of rights and options.

(a) On or before August 1, 2016, upon being notified of an alleged violation of the comprehensive policy by or on behalf of a student, each higher education institution shall, at a minimum, provide the survivor, when identified, with a concise notification, written in plain language, of the survivor's rights and options, including without limitation:

(1) the survivor's right to report or not report the alleged incident to the higher education institution, law enforcement, or both, including information about the survivor's right to privacy and which reporting methods are confidential;

(2) the contact information for the higher education institution's Title IX coordinator or coordinators, confidential advisors, a community-based sexual assault crisis center, campus law enforcement, and local law enforcement;

(3) the survivor's right to request and receive assistance from campus authorities in notifying law enforcement;

(4) the survivor's ability to request interim protective measures and accommodations for survivors, including without limitation changes to academic, living, dining, working, and transportation situations, obtaining and enforcing a campus-issued order of protection or no contact order, if such protective measures and accommodations are reasonably available, and an order of protection or no contact order in State court;

(5) the higher education institution's ability to provide assistance, upon the survivor's request, in accessing and navigating campus and local health and mental health services, counseling, and advocacy services; and

(6) a summary of the higher education institution's complaint resolution procedures, under Section 25 of this Act, if the survivor reports a violation of the comprehensive policy.

(7) a summary of the higher education institution's process for protecting survivors from retaliation, including the policy and process under Section 25 of this Act for early dismissal of retaliatory claims by the respondent against the survivor.

(b) Within 12 hours after receiving an electronic report, the higher education institution shall respond to the electronic reporter and, at a minimum, provide the information described in subdivisions (1) through (6) of subsection (a) of this Section and a list of available resources. The higher education institution may choose the manner in which it responds including, but not limited to, through verbal or electronic communication. Nothing in this subsection (b) limits a higher education institution's obligations under subsection (a) of this Section.

(Source: P.A. 99-426, eff. 8-21-15.)

(110 ILCS 155/20)

Sec. 20. Confidential advisor.

(a) Each higher education institution shall provide students with access to confidential advisors to provide emergency and ongoing support to survivors of sexual violence.

(b) The confidential advisors may not be individuals on campus who are designated as responsible employees under Title IX of the federal Education Amendments of 1972. Nothing in this Section precludes a higher education institution from partnering with a community-based sexual assault crisis center to provide confidential advisors.

(c) All confidential advisors shall receive 40 hours of training on sexual violence, if they have not already completed this 40-hour training, before being designated a confidential advisor and shall attend a minimum of 6 hours of ongoing education training annually on issues related to sexual violence to remain a confidential advisor. Confidential advisors shall also receive periodic training on the campus administrative processes, interim protective measures and accommodations, and complaint resolution procedures.

(d) In the course of working with a survivor, each confidential advisor shall, at a minimum, do all of the following:

(1) Inform the survivor of the survivor's choice of possible next steps regarding the survivor's reporting options and possible outcomes, including without limitation reporting pursuant to the higher education institution's comprehensive policy and notifying local law enforcement.

(2) Notify the survivor of resources and services for survivors of sexual violence, including, but not limited to, student services available on campus and through community-based resources, including without limitation sexual assault crisis centers, medical treatment facilities, counseling services, legal resources, medical forensic services, and mental health services.

(3) Inform the survivor of the survivor's rights and the higher education institution's responsibilities regarding orders of protection, no contact orders, or similar lawful orders issued by the higher education institution or a criminal or civil court.

(4) Provide confidential services to and have privileged, confidential communications with survivors of sexual violence in accordance with Section 8-804 of the Code of Civil Procedure.

(5) Upon the survivor's request and as appropriate, liaise with campus officials, community-based sexual assault crisis centers, or local law enforcement and, if requested, assist the survivor with contacting and reporting to campus officials, campus law enforcement, or local law enforcement.

(6) Upon the survivor's request, liaise with the necessary campus authorities to secure interim protective measures and accommodations for the survivor.

(7) Upon the survivor's request, liaise with the necessary campus authorities to assist the survivor in responding to and advocating against any retaliation by the respondent or an agent of the higher education institution, including assistance with the policy and process for early dismissal of retaliatory claims by the respondent against the survivor.

(Source: P.A. 99-426, eff. 8-21-15.)

(110 ILCS 155/25)

Sec. 25. Complaint resolution procedures.

(a) On or before August 1, 2016, each campus of a higher education institution shall adopt one procedure to resolve complaints of alleged student violations of the comprehensive policy.

(b) For each campus, a higher education institution's complaint resolution procedures for allegations of student violation of the comprehensive policy shall provide, at a minimum, all of the following:

(1) Complainants alleging student violation of the comprehensive policy shall have the opportunity to request that the complaint resolution procedure begin promptly and proceed in a timely manner.

(2) The higher education institution shall determine the individuals who will resolve complaints of alleged student violations of the comprehensive policy.

(3) All individuals whose duties include resolution of complaints of student violations of the comprehensive policy shall receive a minimum of 8 to 10 hours of annual training on issues related to sexual violence, domestic violence, dating violence, and stalking and how to conduct the higher education institution's complaint resolution procedures, in addition to the annual training required for employees as provided in subsection (c) of Section 30 of this Act.

(4) The higher education institution shall have a sufficient number of individuals trained to resolve complaints so that (i) a substitution can occur in the case of a conflict of interest or recusal and (ii) an individual or individuals with no prior involvement in the initial determination or finding hear any appeal brought by a party.

(5) The individual or individuals resolving a complaint shall use a preponderance of the evidence standard to determine whether the alleged violation of the comprehensive policy occurred.

(6) The complainant and respondent shall (i) receive notice of the individual or individuals with authority to make a finding or impose a sanction in their proceeding before the individual or individuals initiate contact with either party and (ii) have the opportunity to request a substitution if the participation of an individual with authority to make a finding or impose a sanction poses a conflict of interest.

(7) The higher education institution shall have a procedure to determine interim protective measures and accommodations available pending the resolution of the complaint.

(8) Any proceeding, meeting, or hearing held to resolve complaints of alleged student violations of the comprehensive policy shall protect the privacy of the participating parties and witnesses.

(9) The complainant, regardless of this person's level of involvement in the complaint resolution procedure, and the respondent shall have the opportunity to provide or present evidence and witnesses on their behalf during the complaint resolution procedure.

(10) The complainant and the respondent may not directly cross examine one another, but may, at the discretion and direction of the individual or individuals resolving the complaint, suggest questions to be posed by the individual or individuals resolving the complaint and respond to the other party.

(11) Both parties may request and must be allowed to have an advisor of their choice accompany them to any meeting or proceeding related to an alleged violation of the comprehensive policy, provided that the involvement of the advisor does not result in undue delay of the meeting or proceeding. The advisor must comply with any rules in the higher education institution's complaint resolution procedure regarding the advisor's role. If the advisor violates the rules or engages in behavior or advocacy that harasses, abuses, or intimidates either party, a witness, or an individual resolving the complaint, that advisor may be prohibited from further participation.

(12) The complainant and the respondent may not be compelled to testify, if the complaint resolution procedure involves a hearing, in the presence of the other party. If a party invokes this right, the higher education institution shall provide a procedure by which each party can, at a minimum, hear the other party's testimony.

(13) The complainant and the respondent are entitled to simultaneous, written notification of the results of the complaint resolution procedure, including information regarding appeal rights, within 7 days of a decision or sooner if required by State or federal law.

(14) The complainant and the respondent shall, at a minimum, have the right to timely appeal the complaint resolution procedure's findings or imposed sanctions if the party alleges (i) a procedural error occurred, (ii) new information exists that would substantially change the outcome of the finding, or (iii) the sanction is disproportionate with the violation. The individual or individuals reviewing the findings or imposed sanctions shall not have participated previously in the complaint resolution procedure and shall not have a conflict of interest with either party. The complainant and the respondent shall receive the appeal decision in writing within 7 days after the conclusion of the review of findings or sanctions or sooner if required by federal or State law.

(15) The higher education institution shall not disclose the identity of the survivor or the respondent, except as necessary to resolve the complaint or to implement interim protective measures and accommodations or when provided by State or federal law.

(16) The higher education institution shall enact and implement a policy and process for early dismissal of any retaliatory claim by a respondent against a survivor, including, but not limited to, claims of defamation, harassment, bullying, and any other policy violation where the actions alleged are related to the survivor's report of sexual violence, domestic violence, dating violence, or stalking. Any report, claim, counter-claim, or complaint by the respondent that the survivor has violated the higher education institution's policies shall be reviewed by an agent of the institution with decision-making authority to determine if it is retaliatory. If the agent determines by a preponderance of the evidence that such claim is (i) retaliatory, (ii) based on the survivor's report, (iii) related to the survivor speaking, writing, or sharing information about the respondent's actions that led to the report, or (iv) based on the survivor naming the respondent as the person who caused them harm, then the report, claim, counter-claim, or complaint against the survivor shall be dismissed. The review must be completed within 45 days of the report, claim, counter-claim, or complaint being submitted to the institution, and written notice of the determination must be provided to the survivor and the respondent no later than 10 days after completion of the review.

(Source: P.A. 99-426, eff. 8-21-15.)

(110 ILCS 155/30)

Sec. 30. Campus training, education, and awareness.

(a) On or before August 1, 2016, a higher education institution shall prominently publish, timely update, and have easily available on its Internet website all of the following information:

(1) The higher education institution's comprehensive policy, as well as options and resources available to survivors.

(2) The higher education institution's student notification of rights and options described in Section 15 of this Act.

(3) The name and contact information for all of the higher education institution's Title IX coordinators.

(4) An explanation of the role of (i) Title IX coordinators, including deputy or assistant Title IX coordinators, under Title IX of the federal Education Amendments of 1972, (ii) responsible employees under Title IX of the federal Education Amendments of 1972, (iii) campus security authorities under the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, and (iv) mandated reporters under the Abused and Neglected Child Reporting Act and the reporting obligations of each, as well as the level of confidentiality each is allowed to provide to reporting students under relevant federal and State law.

(5) The name, title, and contact information for all confidential advisors, counseling services, and confidential resources that can provide a confidential response to a report and a description of what confidential reporting means.

(6) The telephone number and website URL for community-based, State, and national hotlines providing information to sexual violence survivors.

(b) Beginning with the 2016-2017 academic year, each higher education institution shall provide sexual violence primary prevention and awareness programming for all students who attend one or more classes on campus, which shall include, at a minimum, annual training as described in this subsection (b). Nothing in this Section shall be construed to limit the higher education institution's ability to conduct additional ongoing sexual violence primary prevention and awareness programming.

Each higher education institution's annual training shall, at a minimum, provide each student who attends one or more classes on campus information regarding the higher education institution's comprehensive policy, including without limitation the following:

(1) the institution's definitions of consent, inability to consent, and retaliation as they relate to sexual violence;

(2) reporting to the higher education institution, campus law enforcement, and local law enforcement;

(3) reporting to the confidential advisor or other confidential resources;

(4) available survivor services; and

(5) strategies for bystander intervention and risk reduction.

At the beginning of each academic year, each higher education institution shall provide each student of the higher education institution with an electronic copy or hard copy of its comprehensive policy, procedures, and related protocols.

(c) Beginning in the 2016-2017 academic year, a higher education institution shall provide annual survivor-centered and trauma-informed response training to any employee of the higher education institution who is involved in (i) the receipt of a student report of an alleged incident of sexual violence, domestic violence, dating violence, or stalking, (ii) the referral or provision of services to a survivor, or (iii) any campus complaint resolution procedure that results from an alleged incident of sexual violence, domestic violence, dating violence, or stalking. Employees falling under this description include without limitation the Title IX coordinator, members of the higher education institution's campus law enforcement, and campus security. An enrolled student at or a contracted service provider of the higher education institution with the employee responsibilities outlined in clauses (i) through (iii) of this paragraph shall also receive annual survivor-centered and trauma-informed response training.

The higher education institution shall design the training to improve the trainee's ability to understand (i) the higher education institution's comprehensive policy, including the anti-retaliation policy and procedure provisions; (ii) the relevant federal and State law concerning survivors of sexual violence, domestic violence, dating violence, and stalking at higher education institutions; (iii) the roles of the higher education institution, medical providers, law enforcement, and community agencies in ensuring a coordinated response to a reported incident of sexual violence; (iv) the effects of trauma on a survivor; (v) the types of conduct that constitute sexual violence, domestic violence, dating violence, and stalking, including same-sex violence; and (vi) consent and the role drugs and alcohol use can have on the ability to consent. The training shall also seek to improve the trainee's ability to respond with cultural sensitivity; provide services to or assist in locating services for a survivor, as appropriate; and communicate sensitively and compassionately with a survivor of sexual violence, domestic violence, dating violence, or stalking.

(Source: P.A. 99-426, eff. 8-21-15.)

Section 10. The Citizen Participation Act is amended by changing Sections 5, 10, and 15 as follows:

(735 ILCS 110/5)

Sec. 5. Public policy. Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that the constitutional rights of citizens and organizations to be involved and participate freely in the process of government must be encouraged and safeguarded with great diligence. The information, reports, opinions, claims, arguments, and other expressions provided by citizens are vital to effective law enforcement, the operation of government, the making of public policy and decisions, and the continuation of representative democracy. The laws, courts, and other agencies of this State must provide the utmost protection for the free exercise of these rights of petition, speech, association, and government participation.

Civil actions for money damages have been filed against citizens and organizations of this State as a result of their valid exercise of their constitutional rights to petition, speak freely, associate freely, and otherwise participate in and communicate with government. There has been a disturbing increase in lawsuits termed "Strategic Lawsuits Against Public Participation" in government or "SLAPPs" as they are popularly called.

The threat of SLAPPs significantly chills and diminishes citizen participation in government, voluntary public service, and the exercise of these important constitutional rights. This abuse of the judicial process can and has been used as a means of intimidating, harassing, or punishing citizens and organizations for involving themselves in public affairs.

It is in the public interest and it is the purpose of this Act to strike a balance between the rights of persons to file lawsuits for injury and the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government; to protect and encourage public participation in government to the maximum extent permitted by law; to establish an efficient process for identification and adjudication of SLAPPs; and to provide for attorney's fees and costs to prevailing movants.

Free speech at its best identifies wrongs, seeks accountability, and encourages change. Gender-based violence is a pervasive societal problem, and only a small percentage of incidents are reported. Survivors of gender-based violence are often silenced by fear of retaliation, including the threat of SLAPPs. The fear of SLAPPs deters survivors from speaking out and allows a perpetrator to avoid the consequences of the perpetrator's actions. The use of the legal system to silence survivors has negative impacts on the survivors and the public. Survivors of gender-based violence face significant barriers in coming forward and there is a public interest in protecting the right to free speech for survivors. Survivors having the right to speak their truth serves the public good. The General Assembly recognizes that reporting gender-based violence is protected by the First Amendment and the Citizen Participation Act.

(Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/10)

Sec. 10. Definitions. In this Act:

"Government" includes a branch, department, agency, instrumentality, official, employee, agent, or other person acting under color of law of the United States, a state, a subdivision of a state, or another public authority including the electorate.

"Gender-based violence" means one or more acts of violence, aggression, or abuse satisfying the elements of any criminal offense under the laws of this State that are committed, at least in part, on the basis of a person's actual or perceived sex or gender, regardless of whether the acts resulted in criminal charges, prosecution, or conviction, and it includes, but is not limited to, any act of domestic violence, human trafficking, sexual assault, sexual abuse, sexual harassment, or stalking.

"Person" includes any individual, corporation, association, organization, partnership, 2 or more persons having a joint or common interest, or other legal entity.

"Judicial claim" or "claim" include any lawsuit, cause of action, claim, cross-claim, counterclaim, or other judicial pleading or filing alleging injury.

"Motion" includes any motion to dismiss, for summary judgment, or to strike, or any other judicial pleading filed to dispose of a judicial claim.

"Moving party" means any person on whose behalf a motion described in subsection (a) of Section 20 is filed seeking dismissal of a judicial claim.

"Reporting gender-based violence" includes disclosures to authorities, disclosures to employers, disclosures to education institutions, disclosures to public entities or non-profit agencies, speaking to the press or media, speaking at a public forum, publishing in print, electronically, or via social media, or telling another person verbally, in writing, or via electronic means.

"Reporting gender-based violence with actual malice" means reporting with knowledge that the statement was false or with reckless disregard of whether it was false or not.

"Responding party" means any person against whom a motion described in subsection (a) of Section 20 is filed.

(Source: P.A. 95-506, eff. 8-28-07.)

(735 ILCS 110/15)

Sec. 15. Applicability. This Act applies to any motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based on, relates to, or is in response to any act or acts of the moving party in furtherance of the moving party's rights of petition, speech, association, or to otherwise participate in government.

The court shall not permit any person to pursue a defamation action to silence, or retaliate against, a person reporting gender-based violence, including cases where the alleged perpetrator is publicly named.

Acts in furtherance of the constitutional rights to petition, speech, association, and participation in government are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procuring favorable government action, result, or outcome.

The only exceptions to this Section are when the acts are not genuinely aimed at procuring favorable government action, result, or outcome or when the plaintiff presents clear and convincing evidence that the reporting of gender-based violence constituted speaking with actual malice. For the purpose of this Act, reporting gender-based violence is per se genuinely aimed at procuring favorable government action, result, or outcome.

(Source: P.A. 95-506, eff. 8-28-07.)