Title IX Footnotes
1 - An example of consent that would not be knowing is if student 1 is dating student A, a twin. Twin student B comes in her residence hall room at night and, thinking it was student A, she has what would seem to be active consensual sex with student B. When the lights come up, she realizes it is student B. Student 1 did not give knowing consent.
2 - There is no requirement that there be “verbal” consent or a specific statement of yes. To require such a verbal statement would be to exclude hearing and speaking impaired students from consenting to sexual activity. Consent can be given through words or actions.
3 - As in the footnote above, this is not to say that silence is the opposite of verbalization. The legislation matches the SUNY policies, but to clarify adds the phrase “in and of itself” to make clear that it is not a defense to a charge of sexual activity without consent that the other person was silent and didn’t say no, and so therefore they must have consented. Silence, in and of itself, is not proof of consent (a departure from New York State Penal Law).
4 - The sentences that were excluded in the bill but original to the SUNY policies may be useful in training for students, because they are descriptive.
5 - The main change here is including the other VAWA crimes.
6 - Legislators were clear in negotiations that they did not want to limit amnesty to sexual and interpersonal violence. This is consistent with the Good Samaritan 911 Law of 2011. There was general agreement that amnesty for drug and alcohol use violations was a wise policy anytime that we seek to have a student report that they were the victim of or witness to violence.
7 - This amnesty specifically covers judicial or conduct actions of a disciplinary nature. It does not limit a college from seeking help for a student who is struggling with drug or alcohol addiction or is otherwise in danger. Further, for those in a clinical or similar setting wherein external laws, policies, or accreditation requirements require removal or restrictions for those using drugs or alcohol, this policy does not specifically limit those actions. Colleges should take care that, while individuals may be restricted from these clinical and similar experiences, they must not be disciplined beyond what those neutral restrictions require.
8 - Note that the legislation and the policies cover personal drug use whether intentional or accidental. There is not amnesty for drug sale, distribution, or for drugging another individual.
9 - At or near the time is not defined, and should be implemented reasonably and in good faith by institutions.
10 - It should be noted that the statutory requirement would become effective one year after enactment of the law.
11 - Section 6445 (4) of the legislation states that “[i]nformation discovered or produced as a result of complying with this section shall not be subject to discovery or admitted into evidence in any federal or state court proceeding or considered for other purposes in any action for damages brought by a private party against an Institution, unless, in the discretion of the court, any such information is deemed to be material to the underlying claim or defense.”
12 - Section 6444 (2).
13 - Appeal must be considered by a panel—not one person. The panel may include one or more students.
14 - Campuses still can limit the participation of the advisor, and should describe those parameters in policy.
15 - This means that we will not schedule meetings or hearings on days of religious observance (for instance, holding a hearing on a Friday night when the reporting individual or respondent is a religious Jewish person), require a student to undergo medical procedures that they say are forbidden by their religion, or otherwise require a reporting individual to have to choose between their religion or belief system and reporting to the institution.
16 - The purpose of this policy is to provide clear information to students. Colleges should fill in the brackets with one or more relevant links. If a college does not have a certain resource (such as a counseling center), compliance does not require a wasted sentence saying “Counseling Center: No Counseling Center available.” That line should be skipped when providing resource information.
17 - It is advisable to also place this information on the college or university’s reporting web site.
18 - Colleges may, but are not required to, establish a schedule for each individuals’ use of certain facilities. Section 6444 (4) (a).
19 - Each college should post information about personnel, likely in University Police, Campus Security, or Student Affairs, who can assist a student in understanding an Order of Protection, and a clear method for contacting that office. To comply with the VAWA requirement of even-handedness, such explanations should be available both to students who are protected by Orders of Protection and to those who are subject to Orders of Protection.
20 - Campuses must have a procedure by which the accused/respondent or victim/survivor can request a review of the terms of an interim suspension. The review must be prompt, although reasonable under the circumstances. The requests may be for potential modification of the suspension, and the party or parties can submit evidence in support of the request. To be consistent with Title IX and the need for equal opportunity, notify the other party the way you would when one party appeals after a hearing.
21 - Sexual assault is defined to be a Code of Conduct violation consistent with the Federal definition of rape adopted by the Department of Education in Final Regulations (http://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf, page 62789), from the Uniform Crime Reporting system of the Federal Bureau of Investigations. “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Consent for these purposes is the consent definition in these policies and the legislation.
22 - This is a significant change for many SUNY colleges. The legislation requires that at least one level of appeal be before a panel. Colleges are given wide discretion to determine whether there is one or more levels of appeal, who sits on such a panel, how many constitute a panel, whether there is a single panel for all cases or a group of individuals from whom a panel is chosen for each case, whether the panel includes students, whether the panel vote must be unanimous or majority, and all other decisions in this area.
23 - The legislation does not specify the type of record or manner of access. It can be a recording, notes, a transcript or any other reasonable type of record. Further, the legislation is careful to say “access.” This means that colleges are required to continue their practice of giving participants reasonable access during business hours and are specifically not required to provide participants with copies of the record.
24 - This means that students may not be required to sign a non-disclosure agreement or other document forbidding them from discussing their case. This applies to respondents and reporting individuals. Participants are not themselves barred by FERPA from sharing this information. Note, however, that this does not allow students to unreasonably share private information in a manner intended to harm or embarrass another individual, or in a manner that would recklessly do so regardless of intention. Such sharing may be retaliation which can result in separate charges under the Code of Conduct.
25 - Practically, the experienced reader will note that this sentence is precisely the same as the current Federal requirements where the Clery Act/VAWA meets FERPA.
26 - The legislation makes only tiny ministerial changes to the confidentiality policy.
27 - The legislation makes only tiny ministerial changes to education and onboarding requirements.
28 - Sexual assault, domestic violence, dating violence, and stalking.
29 - May include information about alcohol and drugs. Section 6447 (2) (g) requires that colleges include information about “[r]isk assessment and reduction including, but not limited to, steps that potential victims, perpetrators, and bystanders can take to lower the incidence of violations, which may contain information about the dangers of drug and alcohol use, including underage drinking and binge drinking, involuntary consumption of incapacitating drugs and the danger of mislabeled drugs and alcohol, the importance of communication with trusted friends and family whether on campus or off campus, and the availability of institution officials who can answer general or specific questions about risk reduction.”
30 - Colleges have significant flexibility in how to offer this training. It may be a single training or series of trainings for all athletes or student leaders or it may allow such students to attend one of many trainings offered by the college over the course of the semester. Colleges should endeavor to accomplish this in good faith. The training requirement is not measured by the organization or team being trained once, but by each officer, leader, or athlete completing the training her or himself.
31 - Per 18 U.S.C. 2246 (2) and (3), “The term “sexual act” means:
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;
(3) the term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”