Knowing SB212 May Keep You Out of Jail

Updated: Jun 17, 2019


by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry

TO REPORT OR NOT REPORT?

DOING ONE OR THE OTHER MAY KEEP YOU OUT OF JAIL!

The 2019 Session of the Texas Legislature resulted in some surprising new laws. Senate Bill 212 was one of those new laws that will leave a lasting impact on all of Higher Education for some time to come. It was signed into law by the Governor on Friday June 14th, and most sections of this new law {the ones that you will/should be concerned about} will become effective September 1st. Because of SB 212’s overwhelming approval in both houses of the Legislature, it was doubtful to me that the Governor would have had the political will to veto this legislation, even if he had wanted to. Why is this so? Because SB 212 relates to new reporting requirements applicable to all employees, including faculty, of every institution of Higher Education in Texas. And this new law applies to BOTH private and public colleges and universities. So, what must you report? You must report to the Title IX office all incidents of sexual harassment, sexual assault, dating violence and stalking. And who could argue that this requirement shouldn’t be the law? Maybe you - read on.


One of the problems with this new law is about the definition of what constitutes, sexual harassment, sexual assault, dating violence and stalking. It may also be about the law being used potentially as a weapon - against you, or someone you know. It may ultimately be about whether you go to jail for failing to make a report required by this new law. An old saying I have heard may just fit SB 212: ‘Lock the children up, the Legislature is now in Session!’ There is no doubt that SB 212 had a good purpose: protect victims. The problem with this new law is that it seems to go too far. Like killing a fly with a sledge hammer instead of a fly swatter!


Let me explain. First concerning the laws definitions. SB 212 {soon to be the law on 9/1} imports definitions that have been used in other laws to describe the conduct that must be reported. The problem is that we lawyers, and the courts, have literally labored for years over exactly what sexual harassment, sexual assault, dating violence and stalking ACTUALLY mean. Pretty easy to simply require that you report it, but it is quite another thing for you to know when and what to report! This new law expects that you know it when you see it {or even hear about it} and then immediately report it. And guess what - this new law states that you don’t even have to be the one witnessing the harassment, assault, dating violence or stalking. The law says that your reporting requirement is triggered when you receive information that any of this conduct has occurred. None of these new requirements attach to students, only you, the employee of your college or university.


What if you fail to report? The law states that failure to report is a Class B Misdemeanor, but if proven you tried to conceal the information from being reported, the offense will be upgraded to a Class A Misdemeanor, both punishable with jail time and fines - for potentially up to a year in jail. Also, IF with the intent to harm or deceive you knowingly make a false report - you can get the same punishment. But note here that if is found that the report came to the Title IX Coordinator {maybe about you} and it is found the person reporting acted in good faith {which is way easier to do than to prove someone acted knowing to make a false report} then that person, who acted in good faith, gets immunity from civil and criminal liability, AND cannot be the subject of any disciplinary action for making the good faith report. It sounds to me like it may be way easier to report that you have a good faith hunch that harassment, assault, dating violence or stalking has occurred, than being worried over being found to have knowingly intended to harm or deceive by making a false report. Just saying...


Here is the bottom line: You need to know about this new law and its effective date {9/1/19}. The legislation was well intended, but the unintended consequences of the application of the law on your campus, I believe, will be enormous - to the point that every one of you will be affected, and not necessarily in a good way. Before I am accused of encouraging harassment, assaults, dating violence and stalking to continue unabated, let me say in my defense that I would like nothing better than to NOT have to be concerned with these acts ever happening again. But sadly and realistically we know they will. My alarm for you, and for private and public colleges and universities is that the requirements of this law may actually have the unintended result of reducing the reporting it is intending to increase. Potentially far less reporting my occur for fear that terminations will happen based only on guesses or hunches of what might have happened. But the resulting angst that this law will generate is clear: what happens if I do report - but more importantly what happens to me if I don’t report?! I know of one very large public university system that has recently made it mandatory termination if a professor or employee is found responsible for engaging in the kind of conduct proscribed by this new law. And the review of the allegation is mainly administrative only with no meaningful due process protections provided the accused faculty.


So, should you report or not report? Size up your options and ALWAYS act in good faith. Remember it isn’t what you see, it may be you need to report what you have heard happened! Seems a bit crazy that you could go possibly to jail for not reporting what someone else told you maybe happened - but that will soon be the dilemma will face. The Legislature has endorsed protecting victims in a big way and none of us can say that is wrong. I just wish for your sake there had been a little more thought put into how to accomplish this goal. But it is what it is and come September 1, pay special attention to what you see and hear - you may need to report it or risk being fitted for a loose fitting jump suit and getting you a very unflattering mug shot!”


“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”

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