Code of Virginia

Code of Virginia
Title 23.1. Institutions of Higher Education; Other Educational and Cultural Institutions
11/20/2019

Article 2. Campus Safety; General Provisions.

§ 23.1-803. First warning notification and emergency broadcast system required.

A. The governing board of each public institution of higher education shall establish a comprehensive, prompt, and reliable first warning notification and emergency broadcast system for their students, faculty, and staff, both on and off campus. Such system shall be activated in the case of an emergency and may rely on website announcements; email notices; phone, cellular phone, and text messages; alert lines; public address systems; and other means of communication.

B. Each public institution of higher education shall designate individuals authorized to activate the first warning notification and emergency broadcast system and provide such individuals with appropriate training for its use.

2008, cc. 413, 450, § 23-9.2:11; 2016, c. 588.

§ 23.1-804. Institutional crisis and emergency management plan.

A. The governing board of each public institution of higher education shall develop, adopt, and keep current a written crisis and emergency management plan. The plan shall (i) require the Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund to be contacted immediately to deploy assistance in the event of an emergency as defined in the emergency response plan when there are victims as defined in § 19.2-11.01 and (ii) include current contact information for both agencies. The Department of Criminal Justice Services and the Virginia Criminal Injuries Compensation Fund shall be the lead coordinating agencies for those individuals determined to be victims.

B. Every four years, each public institution of higher education shall conduct a comprehensive review and revision of its crisis and emergency management plan to ensure that the plan remains current, and the revised plan shall be adopted formally by the governing board. Such review shall also be certified in writing to the Department of Emergency Management. The institution shall coordinate with the local emergency management organization, as defined in § 44-146.16, to ensure integration into the local emergency operations plan.

C. The chief executive officer of each public institution of higher education shall annually (i) review the institution's crisis and emergency management plan; (ii) certify in writing to the Department of Emergency Management that he has reviewed the plan; and (iii) make recommendations to the institution for appropriate changes to the plan.

D. Each public institution of higher education shall annually conduct a test or exercise in accordance with the protocols established by the institution's crisis and emergency management plan and certify in writing to the Department of Emergency Management that such a test or exercise was conducted. The activation of its crisis and emergency management plan and completion of an after-action report by a public institution of higher education in response to an actual event or incident satisfies the requirement to conduct such a test or exercise.

2008, cc. 450, 526, § 23-9.2:9; 2009, cc. 222, 269; 2010, cc. 104, 478; 2012, cc. 18, 112, 418; 2016, c. 588; 2018, cc. 201, 714.

§ 23.1-805. Violence prevention committee; threat assessment team.

A. Each public institution of higher education shall establish policies and procedures for the prevention of violence on campus, including assessment of and intervention with individuals whose behavior poses a threat to the safety of the campus community.

B. The governing board of each public institution of higher education shall determine a violence prevention committee structure on campus composed of individuals charged with education on and prevention of violence on campus. Each violence prevention committee shall include representatives from student affairs, law enforcement, human resources, counseling services, residence life, and other constituencies as needed and shall consult with legal counsel as needed. Each violence prevention committee shall develop a clear statement of mission, membership, and leadership. Such statement shall be published and made available to the campus community.

C. Each violence prevention committee shall (i) provide guidance to students, faculty, and staff regarding recognition of threatening or aberrant behavior that may represent a physical threat to the community; (ii) identify members of the campus community to whom threatening behavior should be reported; (iii) establish policies and procedures that outline circumstances under which all faculty and staff are required to report behavior that may represent a physical threat to the community, provided that such report is consistent with state and federal law; and (iv) establish policies and procedures for (a) the assessment of individuals whose behavior may present a threat, (b) appropriate means of intervention with such individuals, and (c) sufficient means of action, including interim suspension, referrals to community services boards or health care providers for evaluation or treatment, medical separation to resolve potential physical threats, and notification of family members or guardians, or both, unless such notification would prove harmful to the individual in question, consistent with state and federal law.

D. The governing board of each public institution of higher education shall establish a threat assessment team that includes members from law enforcement, mental health professionals, representatives of student affairs and human resources, and, if available, college or university counsel. Each threat assessment team shall implement the assessment, intervention, and action policies set forth by the violence prevention committee pursuant to subsection C.

E. Each threat assessment team shall establish relationships or utilize existing relationships with mental health agencies and local and state law-enforcement agencies to expedite assessment of and intervention with individuals whose behavior may present a threat to safety. Upon a preliminary determination that an individual poses a threat of violence to self or others or exhibits significantly disruptive behavior or a need for assistance, the threat assessment team may obtain criminal history record information as provided in §§ 19.2-389 and 19.2-389.1 and health records as provided in § 32.1-127.1:03.

F. No member of a threat assessment team shall redisclose any criminal history record information or health information obtained pursuant to this section or otherwise use any record of an individual beyond the purpose for which such disclosure was made to the threat assessment team.

2008, cc. 450, 533, § 23-9.2:10; 2010, cc. 456, 524; 2013, c. 710; 2014, cc. 793, 799; 2016, c. 588.

§ 23.1-806. Reporting of acts of sexual violence.

A. For purposes of this section:

"Campus" means (i) any building or property owned or controlled by an institution of higher education within the same reasonably contiguous geographic area of the institution and used by the institution in direct support of, or in a manner relating to, the institution's educational purposes, including residence halls, and (ii) any building or property that is within or reasonably contiguous to the area described in clause (i) that is owned by the institution but controlled by another person, is frequently used by students, and supports institutional purposes, such as a food or other retail vendor.

"Noncampus building or property" means (i) any building or property owned or controlled by a student organization officially recognized by an institution of higher education or (ii) any building or property owned or controlled by an institution of higher education that is used in direct support of, or in relation to, the institution's educational purposes, is frequently used by students, and is not within the same reasonably contiguous geographic area of the institution.

"Public property" means all public property, including thoroughfares, streets, sidewalks, and parking facilities, that is within the campus, or immediately adjacent to and accessible from the campus.

"Responsible employee" means a person employed by a public institution of higher education or nonprofit private institution of higher education who has the authority to take action to redress sexual violence, who has been given the duty of reporting acts of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate institution designee, or whom a student could reasonably believe has this authority or duty.

"Sexual violence" means physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent.

"Title IX coordinator" means an employee designated by a public institution of higher education or nonprofit private institution of higher education to coordinate the institution's efforts to comply with and carry out the institution's responsibilities under Title IX (20 U.S.C. § 1681 et seq.). If no such employee has been designated by the institution, the institution shall designate an employee who will be responsible for receiving information of alleged acts of sexual violence from responsible employees in accordance with subsection B.

B. Any responsible employee who in the course of his employment obtains information that an act of sexual violence may have been committed against a student attending the institution or may have occurred on campus, in or on a noncampus building or property, or on public property shall report such information to the Title IX coordinator as soon as practicable after addressing the immediate needs of the victim.

C. Upon receipt of information pursuant to subsection B, the Title IX coordinator or his designee shall promptly report the information, including any personally identifiable information, to a review committee established pursuant to subsection D. Nothing in this section shall prevent the Title IX coordinator or any other responsible employee from providing any information to law enforcement with the consent of the victim.

D. Each public institution of higher education and nonprofit private institution of higher education shall establish a review committee for the purposes of reviewing information relating to acts of sexual violence, including information reported pursuant to subsection C. Such review committee shall consist of three or more persons and shall include the Title IX coordinator or his designee, a representative of law enforcement, and a student affairs representative. If the institution has established a campus police department pursuant to Article 3 (§ 23.1-809 et seq.), the representative of law enforcement shall be a member of such department; otherwise, the representative of law enforcement shall be a representative of campus security. The review committee may be the threat assessment team established under § 23.1-805 or a separate body. The review committee may obtain law-enforcement records, criminal history record information as provided in §§ 19.2-389 and 19.2-389.1, health records as provided in § 32.1-127.1:03, available institutional conduct or personnel records, and known facts and circumstances of the information reported pursuant to subsection C or information or evidence known to the institution or to law enforcement. The review committee shall be considered to be a threat assessment team established pursuant to § 23.1-805 for purposes of (i) obtaining criminal history record information and health records and (ii) the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). The review committee shall conduct its review in compliance with federal privacy law.

E. Upon receipt of information of an alleged act of sexual violence reported pursuant to subsection C, the review committee shall meet within 72 hours to review the information and shall meet again as necessary as new information becomes available.

F. If, based on consideration of all factors, the review committee, or if the committee cannot reach a consensus, the representative of law enforcement on the review committee, determines that the disclosure of the information, including personally identifiable information, is necessary to protect the health or safety of the student or other individuals as set forth in 34 C.F.R. § 99.36, the representative of law enforcement on the review committee shall immediately disclose such information to the law-enforcement agency that would be responsible for investigating the alleged act of sexual violence. Such disclosure shall be for the purposes of investigation and other actions by law enforcement. Upon such disclosure, the Title IX coordinator or his designee shall notify the victim that such disclosure is being made. The provisions of this subsection shall not apply if the law-enforcement agency responsible for investigating the alleged act of sexual violence is located outside the United States.

G. In cases in which the alleged act of sexual violence would constitute a felony violation of Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, the representative of law enforcement on the review committee shall inform the other members of the review committee and shall within 24 hours consult with the attorney for the Commonwealth or other prosecutor responsible for prosecuting the alleged act of sexual violence and provide to him the information received by the review committee without disclosing personally identifiable information, unless such information was disclosed pursuant to subsection F. In addition, if such consultation does not occur and any other member of the review committee individually concludes that the alleged act of sexual violence would constitute a felony violation of Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, that member shall within 24 hours consult with the attorney for the Commonwealth or other prosecutor responsible for prosecuting the alleged act of sexual violence and provide to him the information received by the review committee without disclosing personally identifiable information, unless such information was disclosed pursuant to subsection F.

H. At the conclusion of the review, the Title IX coordinator and the law-enforcement representative shall each retain (i) the authority to proceed with any further investigation or adjudication allowed under state or federal law and (ii) independent records of the review team's considerations, which shall be maintained under applicable state and federal law.

I. No responsible employee shall be required to make a report pursuant to subsection B if:

1. The responsible employee obtained the information through any communication considered privileged under state or federal law or the responsible employee obtained the information in the course of providing services as a licensed health care professional, an employee providing administrative support for such health care professionals, a professional counselor, an accredited rape crisis or domestic violence counselor, a campus victim support personnel, a member of clergy, or an attorney; or

2. The responsible employee has actual knowledge that the same matter has already been reported to the Title IX coordinator or to the attorney for the Commonwealth or the law-enforcement agency responsible for investigating the alleged act of sexual violence.

J. Any responsible employee who makes a report required by this section or testifies in a judicial or administrative proceeding as a result of such report is immune from any civil liability alleged to have resulted therefrom unless such person acted in bad faith or with malicious intent.

K. The provisions of this section shall not require a person who is the victim of an alleged act of sexual violence to report such violation.

L. The institution shall ensure that a victim of an alleged act of sexual violence is informed of (i) the available law-enforcement options for investigation and prosecution; (ii) the importance of collection and preservation of evidence; (iii) the available options for a protective order; (iv) the available campus options for investigation and adjudication under the institution's policies; (v) the victim's rights to participate or decline to participate in any investigation to the extent permitted under state or federal law; (vi) the applicable federal or state confidentiality provisions that govern information provided by a victim; (vii) the available on-campus resources and any unaffiliated community resources, including sexual assault crisis centers, domestic violence crisis centers, or other victim support services; and (viii) the importance of seeking appropriate medical attention.

2015, cc. 737, 745, § 23-9.2:15; 2016, c. 588.

§ 23.1-807. Sexual assault; memoranda of understanding; policies.

A. Richard Bland College and each baccalaureate public institution of higher education and nonprofit private institution of higher education shall establish, and the State Board shall adopt a policy requiring each comprehensive community college to establish, a written memorandum of understanding with a sexual assault crisis center or other victim support service in order to provide sexual assault victims with immediate access to a confidential, independent advocate who can provide a trauma-informed response that includes an explanation of options for moving forward.

B. Each public institution of higher education and nonprofit private institution of higher education shall adopt policies to provide to sexual assault victims information on contacting such sexual assault crisis center or other victim support service.

C. Each public institution of higher education or nonprofit private institution of higher education may request the cooperation of the primary law-enforcement agency of the locality in which the institution is located to establish a written memorandum of understanding with such law-enforcement agency to address the prevention of and response to criminal sexual assault as set forth in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2.

2015, cc. 737, 745, § 23-9.2:16; 2016, cc. 481, 588.

§ 23.1-808. Sexual violence policy review.

By October 31 of each year, the System, Richard Bland College, each baccalaureate public institution of higher education, and each nonprofit private institution of higher education shall certify to the Council that it has reviewed its sexual violence policy and updated it as appropriate. The Council and the Department of Criminal Justice Services shall establish criteria for the certification process and may request information relating to the policies for the purposes of sharing best practices and improving campus safety. The Council and the Department of Criminal Justice Services shall report to the Secretary of Education on the certification status of each such institution by November 30 of each year.

2015, cc. 737, 745, § 23-9.2:17; 2016, c. 588.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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