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S05965 Summary:

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S05965 Text:

 
                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.