New Disciplinary Protections for Sexual Assault Reporters

Governor Whitmer recently signed into law Public Act 51 of 2023, which limits school officials’ authority to discipline a student who reports or is reported to have been sexually assaulted. The legislative intent of PA 51 is to increase reporting of sexual assault by limiting consequences to victims for conduct related to the reported sexual assault. For example, if a student reports sexual assault to school administrators and that student was in a prohibited location on campus when the assault occurred, school officials should avoid issuing a lengthy suspension for being in the prohibited location. This law, found at RSC Section 1310e, takes effect September 26, 2023.

New RSC Section 1310e prohibits a school from expelling or suspending a student for more than 10 days for action the student took “immediately preceding, immediately following, or that could be reasonably tied to an incident” in which the student reports being sexually assaulted or in which a school official, staff member, or other individual witnesses and reports a sexual assault on the student or receives and reports credible evidence that the student has been sexually assaulted.” Notably, this prohibition does not apply if:

1. the student is convicted of, pleads guilty to or responsible for, or is adjudicated responsible for aggravated assault, felonious assault, assault with intent to commit murder, assault with intent for great bodily harm, assault with intent to maim, attempted murder, homicide, or manslaughter;
2. the student commits a mandatory permanent expulsion offense;
3. a Title IX investigation establishes by clear and convincing evidence that the student’s reported sexual assault is conclusively false; or
4. the school considered the sexual assault report and the Section 1310d seven factors and determined that discipline over ten school days is justified.

This new law will require school administrators to be cautious when disciplining a student who is the alleged victim of sexual assault. When 1310e takes effect, if a student engages in misconduct and reports being a sexual assault victim, school officials must determine whether the student’s misconduct occurred immediately before, immediately after, or could be reasonably tied to the sexual assault. If so, school officials should be mindful of Section 1310e before disciplining that student.

If a student reports a sexual assault, school administrators should immediately refer the report to the Title IX coordinator so that Title IX grievance procedures can be initiated. Notably, a finding under the Title IX grievance process that the alleged harasser is not responsible for sexual assault does not justify imposing discipline against a complaining student. Rather, school officials may only

impose discipline if the school establishes by clear and convincing evidence that the student’s report of sexual assault was “conclusively false.” The clear and convincing standard is more than a preponderance of the evidence, but less than beyond a reasonable doubt. To meet the clear and convincing standard, the administrator considering discipline should ask: “does the evidence indicate that it is highly probable that the report was false?”

If a student reports sexual assault during the discipline process for other misconduct, contact a Thrun Title IX attorney to avoid legal missteps.