Add Art 129-B SS6439 - 6449, Ed L; amd R3016, CPLR; add S232, Exec L
Relates to the implementation by colleges and universities of sexual assault, dating violence, domestic violence and stalking prevention and response policies and procedures; relates to privacy of name in certain legal challenges to college/university disciplinary findings; appropriates money therefor.
STATE OF NEW YORK
________________________________________________________________________
5965
2015-2016 Regular Sessions
IN SENATE
June 14, 2015
___________
Introduced by Sen. LAVALLE -- (at request of the Governor) -- read twice
and ordered printed, and when printed to be committed to the Committee
on Rules
AN ACT to amend the education law, in relation to the implementation by
colleges and universities of sexual assault, dating violence, domestic
violence and stalking prevention and response policies and procedures;
and to amend the civil practice law and rules, in relation to privacy
of name in certain legal challenges to college/university disciplinary
findings; and making appropriations therefor
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The education law is amended by adding a new article 129-B
2 to read as follows:
3 ARTICLE 129-B
4 IMPLEMENTATION BY COLLEGES AND UNIVERSITIES OF SEXUAL ASSAULT,
5 DATING VIOLENCE, DOMESTIC VIOLENCE AND STALKING PREVENTION AND
6 RESPONSE POLICIES AND PROCEDURES
7 Section 6439. Definitions.
8 6440. General provisions.
9 6441. Affirmative consent to sexual activity.
10 6442. Policy for alcohol and/or drug use amnesty.
11 6443. Students' bill of rights.
12 6444. Response to reports.
13 6445. Campus climate assessments.
14 6446. Options for confidential disclosure.
15 6447. Student onboarding and ongoing education.
16 6448. Privacy in legal challenges.
17 6449. Reporting aggregate data to the department.
18 § 6439. Definitions. As used in this article, the following terms have
19 the following meanings:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12034-02-5
S. 5965 2
1 1. "Institution" shall mean any college or university chartered by the
2 regents or incorporated by special act of the legislature that maintains
3 a campus in New York.
4 2. "Title IX Coordinator" shall mean the Title IX Coordinator and/or
5 his or her designee or designees.
6 3. "Bystander" shall mean a person who observes a crime, impending
7 crime, conflict, potentially violent or violent behavior, or conduct
8 that is in violation of rules or policies of an institution.
9 4. "Code of conduct" shall mean the written policies adopted by an
10 institution governing student behavior, rights, and responsibilities
11 while such student is matriculated in the institution.
12 5. "Confidentiality" may be offered by an individual who is not
13 required by law to report known incidents of sexual assault or other
14 crimes to institution officials, in a manner consistent with state and
15 federal law, including but not limited to 20 U.S.C. 1092(f) and 20
16 U.S.C. 1681(a). Licensed mental health counselors, medical providers and
17 pastoral counselors are examples of institution employees who may offer
18 confidentiality.
19 6. "Privacy" may be offered by an individual when such individual is
20 unable to offer confidentiality under the law but shall still not
21 disclose information learned from a reporting individual or bystander to
22 a crime or incident more than necessary to comply with this and other
23 applicable laws, including informing appropriate institution officials.
24 Institutions may substitute another relevant term having the same mean-
25 ing, as appropriate to the policies of the institution.
26 7. "Accused" shall mean a person accused of a violation who has not
27 yet entered an institution's judicial or conduct process.
28 8. "Respondent" shall mean a person accused of a violation who has
29 entered an institution's judicial or conduct process.
30 9. "Reporting individual" shall encompass the terms victim, survivor,
31 complainant, claimant, witness with victim status, and any other term
32 used by an institution to reference an individual who brings forth a
33 report of a violation.
34 10. "Sexual activity" shall have the same meaning as "sexual act" and
35 "sexual contact" as provided in 18 U.S.C. 2246(2) and 18 U.S.C. 2246(3).
36 11. "Domestic violence", "dating violence", "stalking" and "sexual
37 assault" shall be defined by each institution in its code of conduct in
38 a manner consistent with applicable federal definitions.
39 § 6440. General provisions. 1. Every institution shall:
40 a. adopt written rules implementing this article by amending its code
41 of conduct or other comparable policies;
42 b. annually file with the department on or before the first day of
43 July, beginning in two thousand sixteen, a certificate of compliance
44 with the provisions of this article; and
45 c. file a copy of all written rules and policies adopted as required
46 in this article with the department on or before the first day of July,
47 two thousand sixteen, and once every ten years thereafter, except that
48 the second filing shall coincide with the required filing under article
49 one hundred twenty-nine-A of this chapter, and continue on the same
50 cycle thereafter.
51 2. All institutional services and protections afforded to reporting
52 individuals under this article shall be available to all students and
53 applicable to conduct that has a reasonable connection to that institu-
54 tion. When such conduct involves students or employees from two or more
55 institutions, such institutions may work collaboratively to address the
56 conduct provided that such collaboration complies with the Family Educa-
S. 5965 3
1 tional Rights and Privacy Act codified at 20 U.S.C. 1232g; 34 C.F.R.
2 Part 99.
3 3. If an institution fails to file a certificate of compliance on or
4 before September first beginning in two thousand sixteen, such institu-
5 tion shall be ineligible to receive state aid or assistance until it
6 files such a certificate. The department shall conduct audits of insti-
7 tutions by random selection, at any time after September first, two
8 thousand sixteen, to ensure compliance with the provisions of this arti-
9 cle, and shall post information and statistics regarding compliance with
10 this article on the department's website.
11 4. A copy of such rules and policies shall be provided by each insti-
12 tution to all students enrolled in said institution using a method and
13 manner appropriate to its institutional culture. Each institution shall
14 also post such rules and policies on its website in an easily accessible
15 manner to the public.
16 5. The protections in this article apply regardless of race, color,
17 national origin, religion, creed, age, disability, sex, gender identity
18 or expression, sexual orientation, familial status, pregnancy, predis-
19 posing genetic characteristics, military status, domestic violence
20 victim status, or criminal conviction.
21 6. The provisions of this article shall apply regardless of whether
22 the violation occurs on campus, off campus, or while studying abroad.
23 7. Institutions shall, where appropriate, utilize applicable state and
24 federal law, regulations, and guidance in writing the policies required
25 pursuant to this article.
26 8. Nothing in this article shall be construed to limit in any way the
27 provisions of the penal law that apply to the criminal action analogous
28 to the student conduct code violations referenced herein. Action pursued
29 through the criminal justice process shall be governed by the penal law
30 and the criminal procedure law.
31 9. Nothing in this article shall be construed to create a new private
32 right of action for any person.
33 10. Nothing in this article shall be construed to prevent an institu-
34 tion from continuing an investigation when required by law to continue
35 such investigation.
36 § 6441. Affirmative consent to sexual activity. 1. Every institution
37 shall adopt the following definition of affirmative consent as part of
38 its code of conduct: "Affirmative consent is a knowing, voluntary, and
39 mutual decision among all participants to engage in sexual activity.
40 Consent can be given by words or actions, as long as those words or
41 actions create clear permission regarding willingness to engage in the
42 sexual activity. Silence or lack of resistance, in and of itself, does
43 not demonstrate consent. The definition of consent does not vary based
44 upon a participant's sex, sexual orientation, gender identity, or gender
45 expression."
46 2. Each institution's code of conduct shall reflect the following
47 principles as guidance for the institution's community:
48 a. Consent to any sexual act or prior consensual sexual activity
49 between or with any party does not necessarily constitute consent to any
50 other sexual act.
51 b. Consent is required regardless of whether the person initiating the
52 act is under the influence of drugs and/or alcohol.
53 c. Consent may be initially given but withdrawn at any time.
54 d. Consent cannot be given when a person is incapacitated, which
55 occurs when an individual lacks the ability to knowingly choose to
56 participate in sexual activity. Incapacitation may be caused by the lack
S. 5965 4
1 of consciousness or being asleep, being involuntarily restrained, or if
2 an individual otherwise cannot consent. Depending on the degree of
3 intoxication, someone who is under the influence of alcohol, drugs, or
4 other intoxicants may be incapacitated and therefore unable to consent.
5 e. Consent cannot be given when it is the result of any coercion,
6 intimidation, force, or threat of harm.
7 f. When consent is withdrawn or can no longer be given, sexual activ-
8 ity must stop.
9 § 6442. Policy for alcohol and/or drug use amnesty. 1. Every institu-
10 tion shall adopt and implement the following policy as part of its code
11 of conduct: "The health and safety of every student at the {Institution}
12 is of utmost importance. {Institution} recognizes that students who have
13 been drinking and/or using drugs (whether such use is voluntary or
14 involuntary) at the time that violence, including but not limited to
15 domestic violence, dating violence, stalking, or sexual assault occurs
16 may be hesitant to report such incidents due to fear of potential conse-
17 quences for their own conduct. {Institution} strongly encourages
18 students to report domestic violence, dating violence, stalking, or
19 sexual assault to institution officials. A bystander acting in good
20 faith or a reporting individual acting in good faith that discloses any
21 incident of domestic violence, dating violence, stalking, or sexual
22 assault to {Institution's} officials or law enforcement will not be
23 subject to {Institution's} code of conduct action for violations of
24 alcohol and/or drug use policies occurring at or near the time of the
25 commission of the domestic violence, dating violence, stalking, or sexu-
26 al assault."
27 2. Nothing in this section shall be construed to limit an insti-
28 tution's ability to provide amnesty in additional circumstances.
29 § 6443. Students' bill of rights. Every institution shall adopt and
30 implement the following "Students' Bill of Rights" as part of its code
31 of conduct which shall be distributed annually to students, made avail-
32 able on each institution's website, posted in campus residence halls and
33 campus centers, and shall include links or information to file a report
34 and seek a response, pursuant to section sixty-four hundred forty-four
35 of this article, and the options for confidential disclosure pursuant to
36 section sixty-four hundred forty-six of this article: "All students have
37 the right to: 1. Make a report to local law enforcement and/or state
38 police; 2. Have disclosures of domestic violence, dating violence,
39 stalking, and sexual assault treated seriously; 3. Make a decision about
40 whether or not to disclose a crime or violation and participate in the
41 judicial or conduct process and/or criminal justice process free from
42 pressure by the institution; 4. Participate in a process that is fair,
43 impartial, and provides adequate notice and a meaningful opportunity to
44 be heard; 5. Be treated with dignity and to receive from the institution
45 courteous, fair, and respectful health care and counseling services,
46 where available; 6. Be free from any suggestion that the reporting indi-
47 vidual is at fault when these crimes and violations are committed, or
48 should have acted in a different manner to avoid such crimes or
49 violations; 7. Describe the incident to as few institution represen-
50 tatives as practicable and not be required to unnecessarily repeat a
51 description of the incident; 8. Be protected from retaliation by the
52 institution, any student, the accused and/or the respondent, and/or
53 their friends, family and acquaintances within the jurisdiction of the
54 institution; 9. Access to at least one level of appeal of a determi-
55 nation; 10. Be accompanied by an advisor of choice who may assist and
56 advise a reporting individual, accused, or respondent throughout the
S. 5965 5
1 judicial or conduct process including during all meetings and hearings
2 related to such process; and 11. Exercise civil rights and practice of
3 religion without interference by the investigative, criminal justice, or
4 judicial or conduct process of the institution."
5 § 6444. Response to reports. 1. Every institution shall ensure that
6 reporting individuals are advised of their right to:
7 a. Notify university police or campus security, local law enforcement,
8 and/or state police;
9 b. Have emergency access to a Title IX Coordinator or other appropri-
10 ate official trained in interviewing victims of sexual assault who shall
11 be available upon the first instance of disclosure by a reporting indi-
12 vidual to provide information regarding options to proceed, and, where
13 applicable, the importance of preserving evidence and obtaining a sexual
14 assault forensic examination as soon as possible, and detailing that the
15 criminal justice process utilizes different standards of proof and
16 evidence and that any questions about whether a specific incident
17 violated the penal law should be addressed to law enforcement or to the
18 district attorney. Such official shall also explain whether he or she is
19 authorized to offer the reporting individual confidentiality or privacy,
20 and shall inform the reporting individual of other reporting options;
21 c. Disclose confidentially the incident to institution represen-
22 tatives, who may offer confidentiality pursuant to applicable laws and
23 can assist in obtaining services for reporting individuals;
24 d. Disclose confidentially the incident and obtain services from the
25 state or local government;
26 e. Disclose the incident to institution representatives who can offer
27 privacy or confidentiality, as appropriate, and can assist in obtaining
28 resources for reporting individuals;
29 f. File a report of sexual assault, domestic violence, dating
30 violence, and/or stalking and the right to consult the Title IX Coordi-
31 nator and other appropriate institution representatives for information
32 and assistance. Reports shall be investigated in accordance with insti-
33 tution policy and a reporting individual's identity shall remain private
34 at all times if said reporting individual wishes to maintain privacy;
35 g. Disclose, if the accused is an employee of the institution, the
36 incident to the institution's human resources authority or the right to
37 request that a confidential or private employee assist in reporting to
38 the appropriate human resources authority;
39 h. Receive assistance from appropriate institution representatives in
40 initiating legal proceedings in family court or civil court; and
41 i. Withdraw a complaint or involvement from the institution process at
42 any time.
43 2. Every institution shall ensure that, at a minimum, at the first
44 instance of disclosure by a reporting individual to an institution
45 representative, the following information shall be presented to the
46 reporting individual: "You have the right to make a report to university
47 police or campus security, local law enforcement, and/or state police or
48 choose not to report; to report the incident to your institution; to be
49 protected by the institution from retaliation for reporting an incident;
50 and to receive assistance and resources from your institution."
51 3. Every institution shall ensure that reporting individuals have
52 information about resources, including intervention, mental health coun-
53 seling, and medical services, which shall include information on whether
54 such resources are available at no cost or for a fee. Every institution
55 shall also provide information on sexually transmitted infections, sexu-
56 al assault forensic examinations, and resources available through the
S. 5965 6
1 New York state office of victim services, established pursuant to
2 section six hundred twenty-two of the executive law.
3 4. Every institution shall ensure that individuals are provided the
4 following protections and accommodations:
5 a. When the accused or respondent is a student, to have the institu-
6 tion issue a "no contact order" consistent with institution policies and
7 procedures, whereby continued intentional contact with the reporting
8 individual would be a violation of institution policy subject to addi-
9 tional conduct charges; if the accused or respondent and a reporting
10 individual observe each other in a public place, it shall be the respon-
11 sibility of the accused or respondent to leave the area immediately and
12 without directly contacting the reporting individual. Both the accused
13 or respondent and the reporting individual shall, upon request and
14 consistent with institution policies and procedures, be afforded a
15 prompt review, reasonable under the circumstances, of the need for and
16 terms of a no contact order, including potential modification, and shall
17 be allowed to submit evidence in support of his or her request. Insti-
18 tutions may establish an appropriate schedule for the accused and
19 respondents to access applicable institution buildings and property at a
20 time when such buildings and property are not being accessed by the
21 reporting individual;
22 b. To be assisted by the institution's police or security forces, if
23 applicable, or other officials in obtaining an order of protection or,
24 if outside of New York state, an equivalent protective or restraining
25 order;
26 c. To receive a copy of the order of protection or equivalent when
27 received by an institution and have an opportunity to meet or speak with
28 an institution representative, or other appropriate individual, who can
29 explain the order and answer questions about it, including information
30 from the order about the accused's responsibility to stay away from the
31 protected person or persons;
32 d. To an explanation of the consequences for violating these orders,
33 including but not limited to arrest, additional conduct charges, and
34 interim suspension;
35 e. To receive assistance from university police or campus security in
36 effecting an arrest when an individual violates an order of protection
37 or, if university police or campus security does not possess arresting
38 powers, then to call on and assist local law enforcement in effecting an
39 arrest for violating such an order, provided that nothing in this arti-
40 cle shall limit current law enforcement jurisdiction and procedures;
41 f. When the accused or respondent is a student determined to present a
42 continuing threat to the health and safety of the community, to subject
43 the accused or respondent to interim suspension pending the outcome of a
44 judicial or conduct process consistent with this article and the insti-
45 tution's policies and procedures. Both the accused or respondent and the
46 reporting individual shall, upon request and consistent with the insti-
47 tution's policies and procedures, be afforded a prompt review, reason-
48 able under the circumstances, of the need for and terms of an interim
49 suspension, including potential modification, and shall be allowed to
50 submit evidence in support of his or her request;
51 g. When the accused is not a student but is a member of the insti-
52 tution's community and presents a continuing threat to the health and
53 safety of the community, to subject the accused to interim measures in
54 accordance with applicable collective bargaining agreements, employee
55 handbooks, and rules and policies of the institution;
S. 5965 7
1 h. To obtain reasonable and available interim measures and accommo-
2 dations that effect a change in academic, housing, employment, transpor-
3 tation or other applicable arrangements in order to help ensure safety,
4 prevent retaliation and avoid an ongoing hostile environment, consistent
5 with the institution's policies and procedures. Both the accused or
6 respondent and the reporting individual shall, upon request and consist-
7 ent with the institution's policies and procedures, be afforded a prompt
8 review, reasonable under the circumstances, of the need for and terms of
9 any such interim measure and accommodation that directly affects him or
10 her, and shall be allowed to submit evidence in support of his or her
11 request.
12 5. Every institution shall ensure that every student be afforded the
13 following rights:
14 a. The right to request that student conduct charges be filed against
15 the accused in proceedings governed by this article and the procedures
16 established by the institution's rules.
17 b. The right to a process in all student judicial or conduct cases,
18 where a student is accused of sexual assault, domestic violence, dating
19 violence, stalking, or sexual activity that may otherwise violate the
20 institution's code of conduct, that includes, at a minimum: (i) notice
21 to a respondent describing the date, time, location and factual allega-
22 tions concerning the violation, a reference to the specific code of
23 conduct provisions alleged to have been violated, and possible sanc-
24 tions; (ii) an opportunity to offer evidence during an investigation,
25 and to present evidence and testimony at a hearing, where appropriate,
26 and have access to a full and fair record of any such hearing, which
27 shall be preserved and maintained for at least five years from such a
28 hearing and may include a transcript, recording or other appropriate
29 record; and (iii) access to at least one level of appeal of a determi-
30 nation before a panel, which may include one or more students, that is
31 fair and impartial and does not include individuals with a conflict of
32 interest. In order to effectuate an appeal, a respondent and reporting
33 individual in such cases shall receive written notice of the findings of
34 fact, the decision and the sanction, if any, as well as the rationale
35 for the decision and sanction. In such cases, any rights provided to a
36 reporting individual must be similarly provided to a respondent and any
37 rights provided to a respondent must be similarly provided to a report-
38 ing individual.
39 c. Throughout proceedings involving such an accusation of sexual
40 assault, domestic violence, dating violence, stalking, or sexual activ-
41 ity that may otherwise violate the institution's code of conduct, the
42 right:
43 i. For the respondent, accused, and reporting individual to be accom-
44 panied by an advisor of choice who may assist and advise a reporting
45 individual, accused, or respondent throughout the judicial or conduct
46 process including during all meetings and hearings related to such proc-
47 ess. Rules for participation of such advisor shall be established in the
48 code of conduct.
49 ii. To a prompt response to any complaint and to have the complaint
50 investigated and adjudicated in an impartial, timely, and thorough
51 manner by individuals who receive annual training in conducting investi-
52 gations of sexual violence, the effects of trauma, impartiality, the
53 rights of the respondent, including the right to a presumption that the
54 respondent is "not responsible" until a finding of responsibility is
55 made pursuant to the provisions of this article and the institution's
S. 5965 8
1 policies and procedures, and other issues including, but not limited to
2 domestic violence, dating violence, stalking or sexual assault.
3 iii. To an investigation and process that is fair, impartial and
4 provides a meaningful opportunity to be heard, and that is not conducted
5 by individuals with a conflict of interest.
6 iv. To have the institution's judicial or conduct process run concur-
7 rently with a criminal justice investigation and proceeding, except for
8 temporary delays as requested by external municipal entities while law
9 enforcement gathers evidence. Temporary delays should not last more than
10 ten days except when law enforcement specifically requests and justifies
11 a longer delay.
12 v. To review and present available evidence in the case file, or
13 otherwise in the possession or control of the institution, and relevant
14 to the conduct case, consistent with institution policies and proce-
15 dures.
16 vi. To exclude their own prior sexual history with persons other than
17 the other party in the judicial or conduct process or their own mental
18 health diagnosis and/or treatment from admittance in the institution
19 disciplinary stage that determines responsibility. Past findings of
20 domestic violence, dating violence, stalking, or sexual assault may be
21 admissible in the disciplinary stage that determines sanction.
22 vii. To receive written or electronic notice, provided in advance
23 pursuant to the college or university policy and reasonable under the
24 circumstances, of any meeting they are required to or are eligible to
25 attend, of the specific rule, rules or laws alleged to have been
26 violated and in what manner, and the sanction or sanctions that may be
27 imposed on the respondent based upon the outcome of the judicial or
28 conduct process, at which time the designated hearing or investigatory
29 officer or panel shall provide a written statement detailing the factual
30 findings supporting the determination and the rationale for the sanction
31 imposed.
32 viii. To make an impact statement during the point of the proceeding
33 where the decision maker is deliberating on appropriate sanctions.
34 ix. To simultaneous (among the parties) written or electronic notifi-
35 cation of the outcome of a judicial or conduct process, including the
36 sanction or sanctions.
37 x. To be informed of the sanction or sanctions that may be imposed on
38 the respondent based upon the outcome of the judicial or conduct process
39 and the rationale for the actual sanction imposed.
40 xi. To choose whether to disclose or discuss the outcome of a conduct
41 or judicial process.
42 xii. To have all information obtained during the course of the conduct
43 or judicial process be protected from public release until the appeals
44 panel makes a final determination unless otherwise required by law.
45 6. For crimes of violence, including, but not limited to sexual
46 violence, defined as crimes that meet the reporting requirements pursu-
47 ant to the federal Clery Act established in 20 U.S.C.
48 1092(f)(1)(F)(i)(I)-(VIII), institutions shall make a notation on the
49 transcript of students found responsible after a conduct process that
50 they were "suspended after a finding of responsibility for a code of
51 conduct violation" or "expelled after a finding of responsibility for a
52 code of conduct violation." For the respondent who withdraws from the
53 institution while such conduct charges are pending, and declines to
54 complete the disciplinary process, institutions shall make a notation on
55 the transcript of such students that they "withdrew with conduct charges
56 pending." Each institution shall publish a policy on transcript
S. 5965 9
1 notations and appeals seeking removal of a transcript notation for a
2 suspension, provided that such notation shall not be removed prior to
3 one year after conclusion of the suspension, while notations for expul-
4 sion shall not be removed. If a finding of responsibility is vacated
5 for any reason, any such transcript notation shall be removed.
6 7. Institutions that lack appropriate on-campus resources or services
7 shall, to the extent practicable, enter into memoranda of understanding,
8 agreements or collaborative partnerships with existing community-based
9 organizations, including rape-crisis centers and domestic violence shel-
10 ters and assistance organizations, to refer students for assistance or
11 make services available to students, including counseling, health,
12 mental health, victim advocacy, and legal assistance, which may also
13 include resources and services for the respondent.
14 8. Institutions shall, to the extent practicable, ensure that students
15 have access to a sexual assault forensic examination by employing the
16 use of a sexual assault nurse examiner in their campus health center or
17 entering into memoranda of understanding or agreements with at least one
18 local health care facility to provide such a service.
19 9. Nothing in this article shall be deemed to diminish the rights of
20 any member of the institution's community under any applicable collec-
21 tive bargaining agreement.
22 § 6445. Campus climate assessments. 1. Every institution shall
23 conduct, no less than every other year, a campus climate assessment to
24 ascertain general awareness and knowledge of the provisions of this
25 article, including student experience with and knowledge of reporting
26 and college adjudicatory processes, which shall be developed using stan-
27 dard and commonly recognized research methods.
28 2. The assessment shall include questions covering, but not be limited
29 to, the following:
30 a. the Title IX Coordinator's role;
31 b. campus policies and procedures addressing sexual assault;
32 c. how and where to report domestic violence, dating violence, stalk-
33 ing or sexual assault as a victim, survivor or witness;
34 d. the availability of resources on and off campus, such as coun-
35 seling, health and academic assistance;
36 e. the prevalence of victimization and perpetration of domestic
37 violence, dating violence, stalking, or sexual assault on and off campus
38 during a set time period;
39 f. bystander attitudes and behavior;
40 g. whether reporting individuals disclosed to the institution and/or
41 law enforcement, experiences with reporting and institution processes,
42 and reasons why they did or did not report;
43 h. the general awareness of the difference, if any, between the insti-
44 tution's policies and the penal law; and
45 i. general awareness of the definition of affirmative consent.
46 3. Every institution shall take steps to ensure that answers to such
47 assessments remain anonymous and that no individual is identified.
48 Institutions shall publish results of the surveys on their website
49 provided that no personally identifiable information or information
50 which can reasonably lead a reader to identify an individual shall be
51 shared.
52 4. Information discovered or produced as a result of complying with
53 this section shall not be subject to discovery or admitted into evidence
54 in any federal or state court proceeding or considered for other
55 purposes in any action for damages brought by a private party against an
S. 5965 10
1 institution, unless, in the discretion of the court, any such informa-
2 tion is deemed to be material to the underlying claim or defense.
3 § 6446. Options for confidential disclosure. 1. In accordance with
4 this article, every institution shall ensure that reporting individuals
5 have the following:
6 a. Information regarding privileged and confidential resources they
7 may contact regarding domestic violence, dating violence, stalking or
8 sexual assault;
9 b. Information about counselors and advocates they may contact regard-
10 ing domestic violence, dating violence, stalking, or sexual assault;
11 c. A plain language explanation of confidentiality which shall, at a
12 minimum, include the following provision: "Even {Institution} offices
13 and employees who cannot guarantee confidentiality will maintain your
14 privacy to the greatest extent possible. The information you provide to
15 a non-confidential resource will be relayed only as necessary for the
16 Title IX Coordinator to investigate and/or seek a resolution.";
17 d. Information about how the institution shall weigh a request for
18 confidentiality and respond to such a request. Such information shall,
19 at a minimum, include that if a reporting individual discloses an inci-
20 dent to an institution employee who is responsible for responding to or
21 reporting domestic violence, dating violence, stalking, or sexual
22 assault but wishes to maintain confidentiality or does not consent to
23 the institution's request to initiate an investigation, the Title IX
24 Coordinator must weigh the request against the institution's obligation
25 to provide a safe, non-discriminatory environment for all members of its
26 community. The institution shall assist with academic, housing, trans-
27 portation, employment, and other reasonable and available accommodations
28 regardless of reporting choices;
29 e. Information about public awareness and advocacy events, including
30 guarantees that if an individual discloses information through a public
31 awareness event such as candlelight vigils, protests, or other public
32 event, the institution is not obligated to begin an investigation based
33 on such information. The institution may use the information provided at
34 such an event to inform its efforts for additional education and
35 prevention efforts;
36 f. Information about existing and available methods to anonymously
37 disclose including, but not limited to information on relevant confiden-
38 tial hotlines provided by New York state agencies and not-for-profit
39 entities;
40 g. Information regarding institutional crime reporting including, but
41 not limited to: reports of certain crimes occurring in specific
42 geographic locations that shall be included in the institution's annual
43 security report pursuant to the Clery Act, 20 U.S.C. 1092(f), in an
44 anonymized manner that identifies neither the specifics of the crime nor
45 the identity of the reporting individual; that the institution is obli-
46 gated to issue timely warnings of crimes enumerated in the Clery Act
47 occurring within relevant geography that represent a serious or continu-
48 ing threat to students and employees, except in those circumstances
49 where issuing such a warning may compromise current law enforcement
50 efforts or when the warning itself could potentially identify the
51 reporting individual; that a reporting individual shall not be identi-
52 fied in a timely warning; that the Family Educational Rights and Privacy
53 Act, 20 U.S.C. 1232g, allows institutions to share information with
54 parents when i. there is a health or safety emergency, or ii. when the
55 student is a dependent on either parent's prior year federal income tax
56 return; and that generally, the institution shall not share information
S. 5965 11
1 about a report of domestic violence, dating violence, stalking, or sexu-
2 al assault with parents without the permission of the reporting individ-
3 ual.
4 2. The institution may take proactive steps, such as training or
5 awareness efforts, to combat domestic violence, dating violence, stalk-
6 ing or sexual assault in a general way that does not identify those who
7 disclose or the information disclosed.
8 3. If the institution determines that an investigation is required, it
9 shall notify the reporting individuals and take immediate action as
10 necessary to protect and assist them.
11 4. The institution should seek consent from reporting individuals
12 prior to conducting an investigation. Declining to consent to an inves-
13 tigation shall be honored unless the institution determines in good
14 faith that failure to investigate does not adequately mitigate a poten-
15 tial risk of harm to the reporting individual or other members of the
16 community. Honoring such a request may limit the institution's ability
17 to meaningfully investigate and pursue conduct action against an accused
18 individual. Factors used to determine whether to honor such a request
19 include, but are not limited to:
20 a. Whether the accused has a history of violent behavior or is a
21 repeat offender;
22 b. Whether the incident represents escalation in unlawful conduct on
23 behalf of the accused from previously noted behavior;
24 c. The increased risk that the accused will commit additional acts of
25 violence;
26 d. Whether the accused used a weapon or force;
27 e. Whether the reporting individual is a minor; and
28 f. Whether the institution possesses other means to obtain evidence
29 such as security footage, and whether available information reveals a
30 pattern of perpetration at a given location or by a particular group.
31 § 6447. Student onboarding and ongoing education. 1. Every institution
32 shall adopt a comprehensive student onboarding and ongoing education
33 campaign to educate members of the institution's community about domes-
34 tic violence, dating violence, stalking, and sexual assault, in compli-
35 ance with applicable federal laws, including the Clery Act as amended by
36 the Violence Against Women Act reauthorization of 2013, 20 U.S.C.
37 1092(f).
38 2. Included in this campaign shall be a requirement that all new
39 first-year and transfer students shall, during the course of their
40 onboarding to their respective institution, receive training on the
41 following topics, using a method and manner appropriate to the institu-
42 tional culture of each institution:
43 a. The institution prohibits sexual and interpersonal violence and
44 will offer resources to any victims and survivors of such violence while
45 taking administrative and conduct action regarding any accused individ-
46 ual within the jurisdiction of the institution;
47 b. Relevant definitions including, but not limited to, the definitions
48 of sexual assault, domestic violence, dating violence, stalking, confi-
49 dentiality, privacy, and consent;
50 c. Policies apply equally to all students regardless of sexual orien-
51 tation, gender identity, or gender expression;
52 d. The role of the Title IX Coordinator, university police or campus
53 security, and other relevant offices that address domestic violence,
54 dating violence, stalking, and sexual assault prevention and response;
55 e. Awareness of violence, its impact on victims and survivors and
56 their friends and family, and its long-term impact;
S. 5965 12
1 f. Bystander intervention and the importance of taking action to
2 prevent violence when one can safely do so;
3 g. Risk assessment and reduction including, but not limited to, steps
4 that potential victims, perpetrators, and bystanders can take to lower
5 the incidence of violations, which may contain information about the
6 dangers of drug and alcohol use, including underage drinking and binge
7 drinking, involuntary consumption of incapacitating drugs and the danger
8 of mislabeled drugs and alcohol, the importance of communication with
9 trusted friends and family whether on campus or off campus, and the
10 availability of institution officials who can answer general or specific
11 questions about risk reduction; and
12 h. Consequences and sanctions for individuals who commit these crimes
13 and code of conduct violations.
14 3. Every institution shall train all new students, whether first-year
15 or transfer, undergraduate, graduate, or professional.
16 4. Every institution shall use multiple methods to educate students
17 about violence prevention and shall share information on domestic
18 violence, dating violence, stalking and sexual assault prevention with
19 parents of enrolling students.
20 5. Every institution shall offer to all students general and specific
21 training in domestic violence, dating violence, stalking and sexual
22 assault prevention and shall conduct a campaign that complies with the
23 Violence Against Women Act, 20 U.S.C. 1092(f), to educate the student
24 population. They shall, as appropriate, provide or expand specific
25 training to include groups such as international students, students that
26 are also employees, leaders and officers of registered or recognized
27 student organizations, and online and distance education students. They
28 shall also provide specific training to members of groups that the
29 institution identifies as high-risk populations.
30 6. Every institution shall require that each student leader and offi-
31 cer of student organizations recognized by or registered with the insti-
32 tution, as well as those seeking recognition by the institution,
33 complete training on domestic violence, dating violence, stalking, or
34 sexual assault prevention prior to receiving recognition or registra-
35 tion, and each institution shall require that each student-athlete
36 complete training on domestic violence, dating violence, stalking, or
37 sexual assault prevention prior to participating in intercollegiate
38 athletic competition.
39 7. Every institution must regularly assess programs and policies
40 established pursuant to this article to determine effectiveness and
41 relevance for students.
42 § 6448. Privacy in legal challenges. Pursuant to subdivision (i) of
43 rule three thousand sixteen of the civil practice law and rules, in any
44 proceeding brought against an institution which seeks to vacate or modi-
45 fy a finding that a student was responsible for violating an insti-
46 tution's rules regarding a violation covered by this article, the name
47 and identifying biographical information of any student shall be
48 presumptively confidential and shall not be included in the pleadings
49 and other papers from such proceeding absent a waiver or cause shown as
50 determined by the court. Such witnesses shall be identified only as
51 numbered witnesses. If such a name or identifying biographical informa-
52 tion appears in a pleading or paper filed in such a proceeding, the
53 court, absent such a waiver or cause shown, shall direct the clerk of
54 the court to redact such name and identifying biographical information
55 and so advise the parties.
S. 5965 13
1 § 6449. Reporting aggregate data to the department. 1. Institutions
2 shall annually report to the department the following information about
3 reports of domestic violence, dating violence, stalking and sexual
4 assault:
5 a. The number of such incidents that were reported to the Title IX
6 Coordinator.
7 b. Of those incidents in paragraph a of this subdivision, the number
8 of reporting individuals who sought the institution's judicial or
9 conduct process.
10 c. Of those reporting individuals in paragraph b of this subdivision,
11 the number of cases processed through the institution's judicial or
12 conduct process.
13 d. Of those cases in paragraph c of this subdivision, the number of
14 respondents who were found responsible through the institution's judi-
15 cial or conduct process.
16 e. Of those cases in paragraph c of this subdivision, the number of
17 respondents who were found not responsible through the institution's
18 judicial or conduct process.
19 f. A description of the final sanctions imposed by the institution for
20 each incident for which a respondent was found responsible, as provided
21 in paragraph d of this subdivision, through the institution's judicial
22 or conduct process.
23 g. The number of cases in the institution's judicial or conduct proc-
24 ess that were closed prior to a final determination after the respondent
25 withdrew from the institution and declined to complete the disciplinary
26 process.
27 h. The number of cases in the institution's judicial or conduct proc-
28 ess that were closed because the complaint was withdrawn by the report-
29 ing individual prior to a final determination.
30 2. The department shall create a reporting mechanism for institutions
31 to efficiently and uniformly provide the information outlined in subdi-
32 vision one of this section.
33 3. The department shall not release the information, as provided for
34 in this section, if it would compromise the confidentiality of reporting
35 individuals or any other party in the best judgment of the department.
36 4. Within one year of the effective date of this article, the depart-
37 ment shall issue regulations in consultation with representatives from
38 the state university of New York, city university of New York, and
39 private and independent colleges and universities, and within two years
40 of the effective date of this article the department shall issue a
41 report to the governor, the temporary president of the senate, the
42 speaker of the assembly and the chairs of the higher education commit-
43 tees in each house regarding the data collected pursuant to this
44 section.
45 § 2. Rule 3016 of the civil practice law and rules is amended by
46 adding a new subdivision (i) to read as follows:
47 (i) Privacy of name in certain legal challenges to college/university
48 disciplinary findings. In any proceeding brought against a college or
49 university that is chartered by the regents or incorporated by special
50 act of the legislature, which proceeding seeks to vacate or modify a
51 finding that a student was responsible for a violation of college or
52 university rules regarding a violation covered by article one hundred
53 twenty-nine-B of the education law, the name and identifying biograph-
54 ical information of any student shall be presumptively confidential and
55 shall not be included in the pleadings and other papers from such
56 proceeding absent a waiver or cause shown as determined by the court.
S. 5965 14
1 Such witnesses shall be identified only as numbered witnesses. If such a
2 name or identifying biographical information appears in a pleading or
3 paper filed in such a proceeding, the court, absent such a waiver or
4 cause shown, shall direct the clerk of the court to redact such name and
5 identifying biographical information and so advise the parties.
6 § 3. The executive law is amended by adding a new section 232 to read
7 as follows:
8 § 232. Sexual assault victims unit. There is hereby established within
9 the division of state police the sexual assault victims unit, which
10 shall be a specialized unit having advanced training in responding to
11 sexual assaults, including campus sexual assaults, and related crimes.
12 The sexual assault victims unit shall perform such tasks as determined
13 by the superintendent, which shall include but not be limited to provid-
14 ing assistance, including forensic support services, to campus police or
15 local police or sheriff's departments, and providing training to college
16 campus communities.
17 § 4. The sum of four million five hundred thousand dollars
18 ($4,500,000) is hereby appropriated to the division of state police out
19 of any moneys in the state treasury in the general fund to the credit of
20 the state purposes account, not otherwise appropriated, and made imme-
21 diately available, for the purpose of carrying out the provisions of
22 section 232 of the executive law as added by section three of this act.
23 Such moneys shall be payable on the audit and warrant of the comptroller
24 on vouchers certified or approved by the director of the budget as
25 submitted by the superintendent of state police in the manner prescribed
26 by law.
27 § 5. The sum of four million five hundred thousand dollars
28 ($4,500,000) is hereby appropriated to miscellaneous aid to localities
29 out of any moneys in the state treasury in the general fund to the cred-
30 it of the local assistance account, not otherwise appropriated, and made
31 immediately available, for services and expenses of rape crisis centers,
32 including but not limited to prevention, education and victim services
33 on college campuses in the state. Notwithstanding any law to the contra-
34 ry, the office of victim services and the department of health shall
35 administer the program and allocate funds pursuant to a plan approved by
36 the director of the budget. Such allocation methodology shall be based
37 in part on the following factors: certification status, number of
38 programs, and regional diversity. Funds hereby appropriated may be
39 transferred or suballocated to any state department or agency. Such
40 moneys shall be payable on the audit and warrant of the comptroller on
41 vouchers certified or approved by the director of the budget in the
42 manner prescribed by law.
43 § 6. The sum of one million dollars ($1,000,000) is hereby appropri-
44 ated to miscellaneous aid to localities out of any moneys in the state
45 treasury in the general fund to the credit of the local assistance
46 account, not otherwise appropriated, and made immediately available, for
47 services and expenses of college campuses for training and other
48 expenses related to implementation of article 129-b of the education
49 law, pursuant to a plan administered and approved by the director of the
50 budget. Funds hereby appropriated may be transferred or suballocated to
51 any state department or agency. Such moneys shall be payable on the
52 audit and warrant of the comptroller on vouchers certified or approved
53 by the director of the budget in the manner prescribed by law.
54 § 7. This act shall take effect immediately; provided that sections
55 one, two and three of this act shall take effect on the ninetieth day
56 after it shall have become a law, provided, however, that sections 6445
S. 5965 15
1 and 6449 of article 129-B of the education law, as added by section one
2 of this act, shall take effect one year after it shall have become law.
