N.Y. Education Law § 6444: Response to reports

§ 6444. Response to reports. 1. Every institution shall ensure that

reporting individuals are advised of their right to:

a. Notify university police or campus security, local law enforcement,

and/or state police;

b. 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 he or she is authorized to offer the reporting

individual confidentiality or privacy, and shall inform the reporting

individual of other reporting options;

c. Disclose confidentially the incident to institution

representatives, who may offer confidentiality pursuant to applicable

laws and can assist in obtaining services for reporting individuals;

d. Disclose confidentially the incident and obtain services from the

state or local government;

e. Disclose the incident to institution representatives who can offer

privacy or confidentiality, as appropriate, and can assist in obtaining

resources for reporting individuals;

f. 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;

g. 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;

h. Receive assistance from appropriate institution representatives in

initiating legal proceedings in family court or civil court; and

i. Withdraw a complaint or involvement from the institution process at

any time.

2. Every institution shall 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."

3. Every institution shall 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. Every

institution 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 six hundred twenty-two of the executive

law.

4. Every institution shall ensure that individuals are provided the

following protections and accommodations:

a. When the accused or respondent is a student, 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 his

or her 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;

b. To 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;

c. To 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 the accused's responsibility to stay away from the

protected person or persons;

d. To an explanation of the consequences for violating these orders,

including but not limited to arrest, additional conduct charges, and

interim suspension;

e. To 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 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;

f. When the accused or respondent is a student determined to present a

continuing threat to the health and safety of the community, 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. 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 his or her request;

g. When the accused is not a student but is a member of the

institution'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 collective bargaining agreements, employee

handbooks, and rules and policies of the institution;

h. 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 institution's policies and procedures. 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 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.

5. Every institution shall ensure that every student be afforded the

following rights:

a. The right to request that student conduct charges be filed against

the accused in proceedings governed by this article and the procedures

established by the institution's rules.

b. The right to a process in all student judicial or conduct cases,

where a student is accused of sexual assault, domestic violence, dating

violence, stalking, or sexual activity that may otherwise violate the

institution's code of conduct, that includes, at a minimum: (i) notice

to a respondent describing the date, time, location and factual

allegations concerning the violation, a reference to the specific code

of conduct provisions alleged to have been violated, and possible

sanctions; (ii) an opportunity to offer evidence during an

investigation, and to present evidence and testimony at a hearing, where

appropriate, and have access to a full and fair record of any such

hearing, which shall be preserved and maintained for at least five years

from such a hearing and may include a transcript, recording or other

appropriate record; and (iii) access to at least one level of appeal of

a determination before a panel, which may include one or more students,

that is fair and impartial and does not include individuals with a

conflict of interest. In order to effectuate an appeal, a respondent and

reporting individual in such cases shall receive written notice of the

findings of fact, the decision and the sanction, if any, as well as the

rationale for the decision and sanction. In such cases, any rights

provided to a reporting individual must be similarly provided to a

respondent and any rights provided to a respondent must be similarly

provided to a reporting individual.

c. Throughout proceedings involving such an accusation of sexual

assault, domestic violence, dating violence, stalking, or sexual

activity that may otherwise violate the institution's code of conduct,

the right:

i. For the respondent, accused, and reporting individual to 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. Rules for participation of such advisor shall be

established in the code of conduct.

ii. To a prompt response to any complaint and to have the complaint

investigated and adjudicated in an impartial, timely, and thorough

manner by individuals who receive annual training in conducting

investigations of sexual violence, the effects of trauma, impartiality,

the rights of the respondent, including the right to a presumption that

the respondent is "not responsible" until a finding of responsibility is

made pursuant to the provisions of this article and the institution's

policies and procedures, and other issues including, but not limited to

domestic violence, dating violence, stalking or sexual assault.

iii. 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.

iv. To have the institution's judicial or 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. Temporary delays should not last

more than ten days except when law enforcement specifically requests and

justifies a longer delay.

v. To review and present available evidence in the case file, or

otherwise in the possession or control of the institution, and relevant

to the conduct case, consistent with institution policies and

procedures.

vi. To exclude their own prior sexual history with persons other than

the other party in the judicial or conduct process or their own mental

health diagnosis and/or treatment from admittance in the institution

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.

vii. To receive written or electronic notice, provided in advance

pursuant to the college or university 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 judicial or

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.

viii. To make an impact statement during the point of the proceeding

where the decision maker is deliberating on appropriate sanctions.

ix. To simultaneous (among the parties) written or electronic

notification of the outcome of a judicial or conduct process, including

the sanction or sanctions.

x. To be informed of the sanction or sanctions that may be imposed on

the respondent based upon the outcome of the judicial or conduct process

and the rationale for the actual sanction imposed.

xi. To choose whether to disclose or discuss the outcome of a conduct

or judicial process.

xii. To have all information obtained during the course of the conduct

or judicial process be protected from public release until the appeals

panel makes a final determination unless otherwise required by law.

6. For crimes of violence, including, but not limited to sexual

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), institutions shall make a notation on the

transcript of students found responsible after a conduct process that

they were "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 the respondent who withdraws from the

institution while such conduct charges are pending, and declines to

complete the disciplinary process, institutions shall make a notation on

the transcript of such students that they "withdrew with conduct charges

pending." Each institution shall publish a policy on transcript

notations and appeals seeking removal of a transcript notation for a

suspension, provided that 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.

7. Institutions that lack appropriate on-campus resources or services

shall, to the extent practicable, enter into memoranda of understanding,

agreements or collaborative partnerships with existing community-based

organizations, including rape-crisis centers and domestic violence

shelters and assistance organizations, to refer students for assistance

or make services available to students, including counseling, health,

mental health, victim advocacy, and legal assistance, which may also

include resources and services for the respondent.

8. Institutions shall, to the extent practicable, ensure that students

have access to a sexual assault forensic examination by employing the

use of a sexual assault nurse examiner in their campus health center or

entering into memoranda of understanding or agreements with at least one

local health care facility to provide such a service.

9. Nothing in this article shall be deemed to diminish the rights of

any member of the institution's community under any applicable

collective bargaining agreement.