Article 129-B Policies
1. Section 6441 Definition of Affirmative Consent Policy. The College hereby adopts the following definition of affirmative consent: Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
Furthermore, the College adopts the following principles for its community:
- Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
- Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
- Consent may be initially given but withdrawn at any time.
- Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
- Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
- When consent is withdrawn or can no longer be given, sexual activity must stop.
2. Section 6442 Alcohol and/or Drug Use Amnesty Policy. The health and safety of every student at the College is of utmost importance. The College recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence, including but not limited to domestic violence, dating violence, stalking, or sexual assault occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. The College strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to institution officials. A bystander acting in good faith or a reporting individual acting in good faith that discloses any incident of domestic violence, dating violence, stalking, or sexual assault to the College’s officials or law enforcement will not be subject to a College code of conduct action for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the domestic violence, dating violence, stalking, or sexual assault.
3. Section 6443 Students’ Bill of Rights Policy. The College is committed to providing options, support, and assistance to victims/survivors of sexual assault, domestic violence, dating violence, and/or stalking to ensure that they can continue to participate in College and campus programs, activities, and employment. All victims/survivors of these crimes and violations, regardless of race, color, national origin, religion, creed, age, disability, sex, gender identity or expression, sexual orientation, familial status, pregnancy, predisposing genetic characteristics, military status, domestic violence victim status, or criminal conviction, have the following rights, regardless of whether the crime or violation occurs on campus, off campus, or while studying abroad.
All students have the right to:
- Make a report to Security, local law enforcement, and/or state police;
- Have disclosures of domestic violence, dating violence, stalking, and sexual assault treated seriously;
- Make a decision about whether or not to disclose a crime or violation and participate in the conduct process and/or criminal justice process free from pressure by the College;
- Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard;
- Be treated with dignity and to receive from the College courteous, fair, and respectful health care and counseling services, where available;
- Be free from any suggestion that the reporting individual is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid such crimes or violations;
- Describe the incident to as few College representatives as practicable and not be required to unnecessarily repeat a description of the incident;
- Be protected from retaliation by the College, any student, the accused, and/or the respondent, and/or their friends, family, and acquaintances within the jurisdiction of the College;
- Access to at least one level of appeal of a determination;
- Be accompanied by an advisor of choice who may assist and advise a reporting individual, accused, or respondent throughout the judicial or conduct process including during all meetings and hearings related to such process; and
Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or conduct process of the College
4. Section 6444 Sexual Violence Response Policy. In accordance with the Students’ Bill of Rights, reporting individuals shall have the right to pursue more than one of the options below at the same time, or to choose not to participate in any of the options below:
- Notify Security, local law enforcement, and/or state police;
- Have emergency access to an appropriate official who shall be available upon the first instance of disclosure by a reporting individual to provide information regarding options to proceed. Such official shall also explain whether he or she is authorized to offer the reporting individual confidentiality or privacy, and shall inform the reporting individual of other reporting options;
- Disclose confidentially the incident to College representatives, who may offer confidentiality pursuant to applicable laws and can assist in obtaining services for reporting individuals;
- File a report of sexual assault, domestic violence, dating violence, and/or stalking and the right to consult an appropriate College representative for information and assistance. Reports shall be investigated in accordance with College policy and a reporting individual’s identity shall remain private at all times if said reporting individual wishes to maintain privacy; and
- Withdraw a complaint or involvement from the College process at any time.
- At the first instance of disclosure by a reporting individual to an College representative, the following information shall be presented to the reporting individual: You have the right to make a report to Security, local law enforcement, and/or state police or choose not to report; to report the incident to your College; to be protected by the College from retaliation for reporting an incident; and to receive assistance and resources from your College.
4-2. Resources. To obtain effective intervention services, reporting individuals shall have information about resources, including intervention, mental health counseling, and medical services, which shall include information on whether such resources are available at no cost or for a fee. The College shall also provide information on sexually transmitted infections, sexual assault forensic examinations, and resources available through the New York state office of victim services, established pursuant to Section 622 of the Executive Law.
4-3. Protection and Accommodations.
- When the accused is a student, to have the College issue a “No Contact Order,” meaning if the accused and a protected person observe each other in a public place, it is the responsibility of the accused to leave the area immediately and without directly contacting the protected person. Both the accused/respondent and reporting individual may request a prompt review of the need for and terms of a No Contact Order, including requests to modify the terms of or discontinue the order. Parties may submit evidence in support of their request.
- To be assisted by the College’s police or security forces, if applicable, or other officials in obtaining an order of protection or, if outside of New York state, an equivalent protective or restraining order;
- To receive a copy of the order of protection or equivalent when received by an College and have an opportunity to meet or speak with an College representative, or other appropriate individual, who can explain the order and answer questions about it, including information from the order about the accused’s responsibility to stay away from the protected person or persons;
- To an explanation of the consequences for violating these orders, including but not limited to arrest, additional conduct charges, and interim suspension;
- To receive assistance from Security in effecting an arrest when an individual violates an order of protection or, if Security does not possess arresting powers, then to call on and assist local law enforcement in effecting an arrest for violating such an order, provided that nothing in this article shall limit current law enforcement jurisdiction and procedures;
- When the accused is a student and presents a continuing threat to the health and safety of the community, to have the accused subject to interim suspension pending the outcome of a conduct process. Parties may request a prompt review of the need for and terms of an interim suspension;
- When the accused is not a student but is a member of the College’s community and presents a continuing threat to the health and safety of the community, to subject the accused to interim measures in accordance with applicable employee handbook and rules and policies of the College;
- To obtain reasonable and available interim measures and accommodations that effect a change in academic, housing, employment, transportation, or other applicable arrangements in order to help ensure safety, prevent retaliation and avoid an ongoing hostile environment, consistent with the College’s policies. Both the accused or respondent and the reporting individual shall, upon request and consistent with the College’s policies, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of any such interim measure and accommodation that directly affects him or her, and shall be allowed to submit evidence in support of his or her request.
4-4. Student Conduct Process. Every student is afforded the following rights:
- The right to request that student conduct charges be initiated against the accused in a disciplinary process governed by this article and College and campus policies.
- Throughout the disciplinary process, the respondent and reporting individual will have:
- The same opportunity to be accompanied by an advisor of choice who may assist and advise a reporting individual, accused, or respondent.
- The right to a prompt response to any violation report and to have any report of sexual misconduct investigated.
- The right to an investigation and process that is fair, impartial and provides a meaningful opportunity to be heard, and that is not conducted by individuals with a conflict of interest.
- The right to have the College’s conduct process run concurrently with a criminal justice investigation and proceeding, except for temporary delays as requested by external municipal entities while law enforcement gathers evidence.
- The right to review and present available evidence in the case file, or otherwise in the possession or control of the College, and relevant to the conduct case, consistent with College policies.
- The right to exclude their own prior sexual history with persons other than the other party in the conduct process or their own mental health diagnosis and/or treatment from admittance in the College disciplinary stage that determines responsibility. Past findings of domestic violence, dating violence, stalking, or sexual assault may be admissible in the disciplinary stage that determines sanction.
- The right to receive written or electronic notice, provided in advance pursuant to College policy and reasonable under the circumstances, of any meeting they are required to or are eligible to attend, of the specific rule, rules or laws alleged to have been violated and in what manner, and the sanction or sanctions that may be imposed on the respondent based upon the outcome of the conduct process, at which time the designated hearing or investigatory officer or panel shall provide a written statement detailing the factual findings supporting the determination and the rationale for the sanction imposed.
- The right to make an impact statement during the point of the proceeding where the decision maker is deliberating on appropriate sanctions.
- The right to simultaneous (among the parties) written or electronic notification of the outcome of a conduct process, including the sanction.
- The right to be informed of the sanction or sanctions that may be imposed on the respondent based upon the outcome of the conduct process and the rationale for the actual sanction imposed.
- The right to choose whether to disclose or discuss the outcome of a conduct process.
- The right to have all information obtained during the conduct process be protected from public release until the appeals panel makes a final determination unless otherwise required by law.
5. Section 6445 Campus Climate Assessment Policy. The College administers a climate survey and assessment to be conducted every other year that ascertains general awareness and knowledge of reporting and College conduct processes for sexual harassment, sexual violence, and other related offenses. The survey addresses, at a minimum, student and employee knowledge about: College and campus policies addressing sexual misconduct; how and where to report offenses; and the availability of student services such as counseling.
The College shall take steps to ensure that answers to such assessments remain anonymous and that no individual is identified, including when it publishes the survey results.
6. Section 6446 Options for Confidential Disclosure Policy. Individuals may wish to consult with College staff about something they observed or experienced, even if they are not sure that the behavior constitutes sexual violence. Confidentiality varies, and this document is aimed at helping students understand how confidentiality applies to different resources that may be available to them.
- Individuals who are confidential resources will not report crimes to law enforcement or College officials without your permission, except as required by law.
- College staff who cannot guarantee confidentiality will maintain your privacy to the greatest extent. The information you provide to a non-confidential resource will be relayed only as necessary to investigate the matter.
- If you disclose an incident to College staff who is responsible for responding to or reporting sexual violence or sexual harassment, but wish to maintain confidentiality or do not consent to the College’s request to initiate an investigation, the staff shall weigh your request against the risk of harm to you or other members of the College community. Factors to determine whether to proceed shall include: whether the accused has a history of violent behavior or is a repeat offender; whether the incident represents escalation; the increased risk that the accused will commit additional acts of violence; and whether there are other means to obtain evidence. If the College determines that it must move forward with an investigation, the reporting individual or victim/survivor will be notified and the College will take immediate action as necessary to protect and assist them.
- If an individual reports a situation through a public event, the College is not obligated to begin an investigation.
- Reports of any crimes shall be included in the College’s security report in an anonymized manner that neither identifies the specifics of the crime or the identity of the reporting individual or victim/survivor.
7. Section 6447 Student Onboarding and Ongoing Education Policy. The College shall educate all new and current students using a variety of best practices aimed at educating the entire college community in a way that decreases violence and maintaining a culture where sexual assault and acts of violence are not tolerated.
New students will receive information on the following topics:
- Code of Student Conduct and types of prohibited conduct subject to disciplinary action, such as: sexual harassment, sexual violence, domestic violence, dating violence, stalking, and other violence or threats of violence;
- Resources available to any victims/survivors of such violence, including services provided at Student Affairs;
- Article 129-B policies and important terms; and
- Potential sanctions to individuals for committing such offenses.
Methods of training and educating students may include but are not limited to: website disclosures; online trainings; assemblies; and print materials.
8. Section 6448 Privacy in Legal Challenges Policy. Pursuant to subdivision (i) of rule three thousand sixteen of the civil practice law and rules, in any proceeding brought against the College which seeks to vacate or modify a finding that a student was responsible for violating the College’s rules regarding a violation covered by this article, the name and identifying biographical information of any student shall be presumptively confidential and shall not be included in the pleadings and other papers from such proceeding absent a waiver or cause shown as determined by the court. Such witnesses shall be identified only as numbered witnesses. If such a name or identifying biographical information appears in a pleading or paper filed in such a proceeding, the court, absent such a waiver or cause shown, shall direct the clerk of the court to redact such name and identifying biographical information and so advise the parties.
The campus must make a notation on the transcripts of students found responsible for crimes of violence. The notations are for suspension, expulsion, or withdrawal with charges pending.
9. Additional Article 129-B Policies.
9-1. Policy for review of no contact order. Both the accused or respondent and the reporting individual shall, upon request and consistent with College policies, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of a no contact order, including potential modification, and shall be allowed to submit evidence in support of the request.
9-2. Policy for review of an interim suspension. Both the accused or respondent and the reporting individual shall, upon request and consistent with College policies, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of an interim suspension, including potential modification, and shall be allowed to submit evidence in support of the request.
9-3. Policy for review of interim measures/accommodations. Both the accused or respondent and the reporting individual shall, upon request and consistent with College policies, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of any such interim measure and accommodation that directly affects the accused or respondent, and shall be allowed to submit evidence in support of the request.
9-4. Policy for transcript notations and appeals. For crimes of violence, defined as crimes that meet the reporting requirements pursuant to the federal Clery Act established in 20 U.S.C. 1092(f)(1)(F)(i)(I)-(VIII), the College shall make the following type of notation on the academic transcript of any student found responsible through the internal conduct process: “suspended after a finding of responsibility for a code of conduct violation” or “expelled after a finding of responsibility for a code of conduct violation.”
For a respondent who withdraws from the College while such conduct charges are pending, and declines to complete the conduct process, the College shall make the following type of notation on the transcript of any such student: “withdrew with conduct charges pending.”
The respondent may appeal removal of such transcript notation. However, such notation shall not be removed prior to one year after conclusion of the suspension, while notations for expulsion shall not be removed. If a finding of responsibility is vacated for any reason, any such transcript notation shall be removed.
9-5. Policy on how parties can review the case file/evidence. Every student shall be afforded the right, throughout internal conduct proceedings involving an accusation of sexual misconduct, to review and present evidence that is relevant to the case, consistent with College policies.
Reason for This Policy. Article 129-B of the NYS Education Law requires all colleges and universities to implement policies regarding sexual assault, dating violence, domestic violence, and stalking prevention and response.
“Accused” shall mean a person accused of a violation who has not yet entered the College’s conduct process.
“Bystander” shall mean a person who observes a crime, impending crime, conflict, potentially violent or violent behavior, or conduct that is in violation of College or campus policies.
“Confidentiality” may be offered by an individual who is not required by law to report known incidents of sexual assault or other crimes to institution officials, in a manner consistent with state and federal law, including but not limited to 20 U.S.C. 1092(f) and 20 U.S.C. 1681(a).
“Sexual misconduct,” for purposes of this policy and the College Code of Student Conduct shall include all forms of sexual and related misconduct, including dating violence, sexual assault, domestic violence, and stalking.
“Privacy” may be offered by an individual when such individual is unable to offer confidentiality under the law but shall still not disclose information learned from a reporting individual or bystander to a crime or incident more than necessary to comply with this and other applicable laws, including informing appropriate College officials.
“Reporting individual” shall encompass the terms victim, survivor, complainant, claimant, witness with victim status, and any other term used by the College to reference an individual who brings forth a report of a violation.
“Respondent” shall mean a person accused of a violation who has entered the College’s conduct process.
“Sexual activity” shall have the same meaning as “sexual act” and “sexual contact” as provided in 18 U.S.C. 2246(2) and 18 U.S.C. 2246(3).
- NYS Education Law §§ 6439 – 6449 (Article 129-B)