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Changes to Sexual and Related Misconduct Policy and Procedures

New York Education Law 129-B
Overview: Major Changes in the Law

On July 7, 2015 Governor Cuomo signed into law Article 129-B of the New York State Education Law, commonly known as Enough is Enough. This law affects all colleges and universities state-wide, both public and private, and requires significant changes to institutions' policies and procedures for responding to and resolving reports of sexual assault, domestic violence, dating violence, and stalking. Listed below are some of the major requirements of the new law. The University's updated Title IX Policy and Procedures can be found online.

24/7 Access to Resources and Assistance

Universities must ensure that all reporting individuals (including students, faculty, and staff) have access to sexual assault forensic examinations, medical and psychological health resources and make them aware of the NY State resources available through NY State Office of Victim Services.  Please visit the University's Title IX Website for additional on-campus and off-campus medical and counseling resources and reporting options.  

Affirmative Consent

All colleges and universities in New York State are required to adopt the following definition of affirmative consent:

“Affirmative Consent” is defined as 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.”

The law also provided six “Guiding Principles” that, along with the above definition, will be used to evaluate whether sexual activity was consensual or if it violates the University’s sexual misconduct policy:
  1. 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.
  2. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
  3. Consent may be initially given but withdrawn at any time.
  4. 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.
  5. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent.
    • Depending upon 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.
  6. When consent is withdrawn or can no longer be given, sexual activity must stop.

This and other relevant definitions may be found in Section VI of the University's Sexual Misconduct Policy and Procedures.

Amnesty Policy

All colleges and universities in New York State must adopt the following Student Amnesty Policy for reporting instances of prohibited sexual misconduct:

“The health and safety of every student at Fordham University is of utmost importance. Fordham University 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. Fordham University 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 Fordham officials or law enforcement will not be subject to Fordham University’s 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.”

Please see Section VII of the University's Sexual Misconduct Policy and Procedures for more information about reporting an incident.  

Bill of Rights for Students

All college/university students in New York State are to be afforded the following rights:

  1. Make a report to local law enforcement and/or state police;
  2. Have disclosures of domestic violence, dating violence, stalking, and sexual assault treated seriously;
  3. Make a decision about whether or not to disclose a crime or violation and participate in the judicial or conduct process and/or criminal justice process free from pressure by the institution;
  4. Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard;
  5. Be treated with dignity and to receive from the institution courteous, fair, and respectful health care and counseling services, where available;
  6. 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;
  7. Describe the incident to as few institution representatives as practicable and not be required to unnecessarily repeat a description of the incident;
  8. Be protected from retaliation by the institution, any student, the accused and/or the respondent, and/or their friends, family and acquaintances within the jurisdiction of the institution; 
  9. Access to at least one level of appeal of a determination;
  10. Be accompanied by an adviser of choice who may assist and advise a reporting individual, accused, or respondent throughout the judicial or conduct process including during all meetings and hearing related to such process; and 
  11. Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or conduct process of the institution.
The Student Bill of Rights is also to be posted on the University’s Website and in various locations throughout the University, including residence halls and student centers. 

Notification and Presentation of Rights at the Time of First Disclosure

As soon as a member of the University community makes a report to any institution official (e.g. any faculty or staff member of the University), the official is to present the reporting individual with the following statement: "You have the right to make a report to the Department of Public Safety, local law enforcement, or State Police or choose not to report; to report the incident to your institution; to be protected by the institution from retaliation for reporting an incident; and to receive assistance and resources from your institution." 

This is to say that, as a person reporting an incident of sexual misconduct, you may do so to the University, the police, or both any may withdraw a complaint from either process at any time.  You are not required to speak to either the police or the University and cannot be compelled to do so.  You cannot be retaliated against for filing a report with the University, and if you experience any sort of retaliation the University will take steps to correct it.  The University will also provide you with assistance and resources to support you; these can include medical and counseling resources as well as changes in academic, living, transportation, and working situations, as appropriate and where reasonably available.  

Please see Section VII of the University's Sexual Misconduct Policy and Procedures for more information about reporting an incident.  

Obtaining Orders of Protection

Institutions must assist, upon request, any reporting individual wishing to obtain a criminal court or civil court order of protection (or its equivalent, depending on jurisdiction).  

Please see Section VIII of the University's Sexual Misconduct Policy and Procedures for more information about obtaining orders of protection.  

Review of Interim Measures

After an individual makes a report of sexual misconduct to the University, the University may decide to issue interim measures at the request of the reporting individual and/or when the University deems such measures are appropriate.  Interim measures are temporary measures put in place by the University to ensure safety, prevent retaliation, and avoid an ongoing hostile environment.  Some examples of interim measures can include no contact restrictions, where both the reporting individual and the accused are told to have no further contact with one another, and interim suspensions, where one of the parties, typically the accused, is given limited access to University grounds.  Interim measures imposed on the accused are not determinations of guilt; rather, they are implemented to help ensure any University conduct process is conducted as smoothly, swiftly, and fairly as possible.  

Universities are now required to provide the reporting individual and the accused opportunities for a prompt review of the need for and possible modification of any interim measures affecting them.  For more information regarding interim sanctions, please see Section VIII of the University’s Sexual Misconduct Policy.   

Rights Afforded to Students During the Conduct Process

The new law expands and details certain rights that are to be afforded to any student participating in the institution’s conduct process.  Below is a list of some of the major changes:

  1. Universities must provide notice to the accused describing the date, time, location, factual allegations, and potential sanctions associated with the alleged violation.  
  2. Both the complainant (the person making the complaint) and the respondent (the person being accused) must be provided with reasonable notice of all meetings they can attend and a full and fair record of such hearing. 
  3. Students are allowed to bring one advisor of their choosing to meetings. Please see the University's Sexual Misconduct Policy and Procedures for more information on the participation of these advisors.  
  4. Students can choose to exclude their sexual history (except for actions occurring between the parties) and mental health diagnoses and/or treatment during the conduct process.  However, past findings of sexual misconduct violations can be used during the sanctioning stage.
  5. Students are given the opportunity to review and present relevant evidence and information that will used during the conduct meetings and proceedings, consistent with the institution's policies and procedures. 
  6. Students are provided with one level of appeal before a panel after a determination has been made.   
  7. After a finding of responsibility has been determined, both the complainant and the respondent are allowed to submit an impact statement to the university official determining sanctions.
  8. Once the conduct process has been completed, the University's officer responsible for resolving the process shall provide both the complainant and the respondent with a written statement detailing the factual findings supporting the determination as well as the rationale for any sanctions imposed. 
For more information on the University's conduct process, please see Section VIII of the University's Sexual Misconduct Policy and Procedures

Training Requirements

All universities must supply students with “onboarding and ongoing” education training.  All first-year, transfer, international, on-line, and distance education students must receive this training as well as those student leaders and officers for University recognized clubs.  Those leaders seeking to form a club must be trained as a prerequisite to participation in the new student club.  All student athletes must be trained prior to participation in intercollegiate competition.

Transcript Notation

If a student is ultimately expelled or suspended after completing the University’s conduct process or withdraws from the University with conduct charges pending for violent Clery Act crimes, the University is required to place on that student’s transcript a notation statingexpelled / suspended after a finding of responsibility for a code of conduct violation” or “withdrew with conduct charges pending.”  For more information about transcript notations, please see the end of the Section VIII of the University's Sexual Misconduct Policy and Procedures.