Title IX regulations require all colleges and universities to adopt the same 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.
Additionally, the law requires all institutions to include the following principles in their code of conduct, but not necessarily verbatim:
- 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- Consent may be initially given but withdrawn at any time.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- When consent is withdrawn or can no longer be given, sexual activity must stop.
Title IX regulations require all colleges and universities to adopt the same amnesty policy for students regarding the involvement of drug and/or alcohol use:
The health and safety of every student at the Institution is of utmost importance. The Institution 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 Institution strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to institute 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 Institution’s officials or law enforcement will not be subject to the Institution’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.
In short, colleges and universities are required by Title IX law to prioritize the health and safety of their students by ensuring no penalties are given to students regarding their use of drugs and/or alcohol at the time of the incident. This protection is offered to bystanders as well as the reporting individual, as long as the report of the incident is made. Violent incidents that should be reported under these protections include but are not limited to domestic violence, dating violence, stalking, and sexual assault.
Title IX regulations require all colleges and universities to implement the same Student Bill of Rights:
All students have the right to:
- Make a report to 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 judicial or conduct process and/or criminal justice process free from pressure by the Institution.
- 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 Institution courteous, fair, and respectful healthcare 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 institution representatives as practicable and not be required to unnecessarily repeat a description of the incident.
- 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.
- 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.
- Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or judicial or conduct process of the Institution.
Title IX regulations require all colleges and universities to advise students on their rights regarding making a report:
All reporting individuals have the right to:
- Notify university police or campus security, local law enforcement, and/or state police.
- Have emergency access to a Title IX Coordinator or other appropriate official trained in interviewing victims of sexual assault who shall be available upon the first instance of disclosure by a reporting individual to provide information regarding options to proceed, and, where applicable, the importance of preserving evidence and obtaining a sexual assault forensic examination as soon as possible, and detailing that the criminal justice process utilizes different standards of proof and evidence and that any questions about whether a specific incident violated the penal law should be addressed to law enforcement or to the district attorney. Such official shall also explain whether [they are] authorized to offer the reporting individual confidentiality or privacy, and shall inform the reporting individual of other reporting options.
- Disclose confidentially the incident to Institution representatives, who may offer confidentiality pursuant to applicable laws and can assist in obtaining services for reporting individuals.
- Disclose confidentially the incident and obtain services from the state or local government.
- Disclose the incident to institution representatives who can offer privacy or confidentiality, as appropriate, and can assist in obtaining resources for reporting individuals.
- File a report of sexual assault, domestic violence, dating violence, and/or stalking and the right to consult the Title IX Coordinator and other appropriate institution representatives for information and assistance. Reports shall be investigated in accordance with Institution policy and a reporting individual’s identity shall remain private at all times if said reporting individual wishes to maintain privacy.
- Disclose, if the accused is an employee of the Institution, the incident to the Institution’s human resources authority or the right to request that a confidential or private employee assist in reporting to the appropriate human resources authority.
- Receive assistance from appropriate institution representatives in initiating legal proceedings in family court or civil court.
- Withdraw a complaint or involvement from the Institution process at any time.
Title IX regulations require all colleges and universities to:
- Ensure that, at a minimum, at the first instance of disclosure by a reporting individual to an institution representative, the following information shall be presented to the reporting individual:
“You have the right to make a report to university police or campus security, local law enforcement, and/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.”
- Ensure that reporting individuals 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.
- Provide information on sexually transmitted infections, sexual assault forensic examinations, and resources available through the New York State Office of Victim Services (OVS).
Title IX regulations require all colleges and universities to provide the following protections:
All reporting individuals have the right to:
- Have the Institution issue a “No Contact Order” consistent with Institution policies and procedures, whereby continued intentional contact with the reporting individual would be a violation of Institution policy subject to additional conduct charges.
- If the accused or respondent and a reporting individual observe each other in a public place, it shall be the responsibility of the accused or respondent to leave the area immediately and without directly contacting the reporting individual.
- Both the accused or respondent and the reporting individual shall, upon request and consistent with Institution policies and procedures, 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 [their] request.
- Institutions may establish an appropriate schedule for the accused and respondents to access applicable Institution buildings and property at a time when such buildings and property are not being accessed by the reporting individual.
- Be assisted by the Institution’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.
- Receive a copy of the Order of Protection or equivalent when received by an institution and have an opportunity to meet or speak with an institution representative, or other appropriate individual, who can explain the order and answer questions about it, including information from the order about how the accused’s responsibility to stay away from the protected person or persons.
- Receive an explanation of the consequences for violating these orders, including but not limited to arrest, additional conduct charges, and interim suspension.
- Receive assistance from university police or campus security in effecting an arrest when an individual violates an order of protection or, if university police or campus safety 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.
- To subject the accused or respondent to interim suspension pending the outcome of a judicial or conduct process consistent with this article and the institution’s policies and procedures when the accused or respondent is a student determined to present a continuing threat to the health and safety of the community. Both the accused or respondent and the reporting individual shall, upon request and consistent with the institution’s policies and procedures, 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 [their] request.
- To subject the accused or respondent when they are not a student but are a member of the Institution’s community and presents a continuing threat to the health and safety of the community to interim measures in accordance with applicable collective bargaining agreements, employee handbooks, and rules and policies of the Institution.
- 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 outgoing hostile environment, consistent with the Institution’s policies and procedures. Both the accused or respondent and the reporting individual, upon request and consistent with the Institution’s policies and procedures, 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 [them], and shall be allowed to submit evidence in support of [their] request.
Title IX regulations require all colleges and universities to provide onboarding and ongoing education for all students and campus community members:
- Every Institution shall adopt a comprehensive student onboarding and ongoing education campaign to educate members of the Institute’s community about domestic violence, dating violence, stalking, and sexual assault, in compliance with applicable federal laws.
- In New York, such education now includes annual sexual harassment training for all employees working within the state.
- Included in this campaign shall be a requirement that all new first-year and transfer students shall, during the course of their onboarding to their respective Institution, receive training on the following topics, using a method and manner appropriate to the institutional culture of each Institution:
- The institution prohibits sexual and interpersonal violence and will offer resources to any victims and survivors of such violence while taking administrative and conduct action regarding any accused individual within the jurisdiction of the Institution.
- Relevant definitions including, but not limited to, the definitions of sexual assault, domestic violence, dating violence, stalking, confidentiality, privacy, and consent.
- Policies apply equally to all students regardless of sexual orientation, gender identity, or gender expression.