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Potsdam Prepared: Fall 2021 Updates

Definitions

Accused is a person accused of a violation.  They can also be referred to as the Respondent.

Actual Knowledge means notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has the authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school. 

Advisor is any individual who provides the victim/survivor/complainant or the accused/respondent with support, guidance, and/or advice.  Both parties are permitted one advisor of their choosing to accompany them and assist  them throughout the investigation and conduct process.  An advisor may be a friend, parent, faculty, mentor, attorney, or any person they wish.  The advisor will not be permitted to speak for them in the process or to have any role in the process other than to advise and assist them.  The advisor can only speak to their advisee, and the College can only speak to the victim/survivor/complainant/accused/respondent during the process.

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.  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  Consent may be initially given but withdrawn at any time.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.

Alcohol and/or Drug Use Amnesty Policy is used for sexual and interpersonal violence cases.  It states that the health and safety of every student at the State University of New York and its State-operated and community colleges is of utmost importance.  SUNY Potsdam 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 incident(s) due to fear of potential consequences for their own conduct.  SUNY Potsdam strongly encourages students to report incidents of sexual and/or interpersonal violence to campus officials.  A bystander acting in good faith or a reporting individual acting in good faith that discloses any incident(s) of sexual and/or interpersonal to campus officials or law enforcement will not be subject to SUNY Potsdam’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 incident(s).

Annual Security & Fire Safety Report requires colleges that participate in federal financial aid programs to report annual statistics on crime, including sexual assault and rape, on or near the campus, and to develop and disseminate prevention policies.  Please see Clery Act for more detail.

Article 129-A of the New York State Education Law requires all New York State public colleges to maintain policies related to specific provisions of this Article.  General provisions include the Campus Safety Committee, sexual assault, sexual harassment, dating violence, domestic violence, and stalking prevention information; campus crime reporting and statistics; investigation of violent felony offenses; bias-related crime prevention information; prohibition of marketing of credit cards; and notification of fire safety standards and measures in all college-owned or college-operated housing.

Article 129-B of the New York State Education Law requires all colleges in New York State to adopt a set of comprehensive procedures and guidelines to address sexual violence, including a uniform definition of affirmative consent, a statewide amnesty policy, and expanded access to law enforcement.  This is also referred to as the Enough is Enough law.

Bystander is a person who observes a crime, impending crime, conflict, potentially-violent or violent behavior, or conduct that is in violation of rules or policies of an institution. 

Bystander Intervention is when a bystander’s safe and positive actions to prevent harm or intervene when there is a risk posed to another person.  Bystander intervention includes recognizing situations of potential harm, identifying safe and effective intervention options, and taking action to intervene.

Clery Act is the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, which is a federal statute that requires colleges that participate in federal financial aid programs to keep and disclose statistics about crime on or near their campuses.  Compliance is monitored by the U.S. Department of Education.

Code of Conduct, “Community Rights & Responsibilities” is the written policies adopted by SUNY Potsdam governing student behavior, rights, and responsibilities while such student is matriculated at the College. 

College means State University of New York at Potsdam (SUNY Potsdam), Potsdam, New York, and collectively, those persons responsible for its control and operation.

Complainant is an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

Confidentiality may be offered by an individual who is not required by law to report known incidents of sexual assault or other crimes to institution officials, in a manner consistent with Federal and State law.  Licensed mental health counselors and medical providers are examples of college employees who may offer confidentiality.

Dating Violence is any act of violence, including physical, sexual, psychological, and verbal violence, committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the victim’s statement and with consideration of the type and length of the relationship and the frequency of the interaction between the persons involved in the relationship.

Domestic Violence is any violent crime committed by a current or former spouse or intimate partner of the victim, a person sharing a child with the victim, or a person cohabitating with the victim as a spouse/intimate partner.

Formal Complaint is a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed. 

Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity.  Incapacitation includes impairment due to drugs or alcohol (whether such is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent.

Outcome means any initial, interim, and final decision by any College official or entity authorized to resolve disciplinary matters within the College.  Students who are found responsible may face suspension or expulsion, and their transcript may be noted.  Employees who are found responsible may face termination.  Students that are placed on probation or suspension may be sanctioned to intervention services, restrictions from accessing college or community buildings, and educational programs.  This may also be referred to as result.

Postsecondary Institution is a school that falls into one of four categories: (1) an institution of graduate higher education as defined in § 106.2(l); (2) an institution of undergraduate higher education as defined in § 106.2(m); (3) an institution of professional education as defined in § 106.2(n); and (4), or an institution of vocational education as defined in § 106.2(o). 

Preponderance of the Evidence is the standard of proof in sexual and interpersonal violence cases, which asks whether it is “more likely than not” that the violence occurred.  If the evidence presented meets this standard, then the accused/respondent should be found responsible.

Privacy may be offered by an individual when such individual is unable to offer confidentiality under the law but shall still not disclose information learned from a victim/survivor/reporting individual/bystander to a crime or incident more than necessary to comply with this and other applicable laws, including informing appropriate college officials. 

Reporting Individual shall encompass the terms victim, survivor, and complainant used by the College to reference an individual who brings forth a report of violation.

Respondent is an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. 

Responsible Employee is an employee with the authority to redress sexual and interpersonal violence; who has been given the duty of reporting incidents of sexual violence, or any other misconduct to the Title IX Coordinator or other appropriate college designee; or whom a student could reasonably believe has this authority or duty.  If a responsible employee is aware of an incident, then the College is considered on notice of that incident.

Retaliation is an adverse action against another person for reporting a violation or for participating in any way in the investigation or conduct process.  Retaliation includes harassment and intimidation, including but not limited to violence, threats of violence, property destruction, adverse educational or employment consequences, and bullying.  Any individual who participates in any of the sexual harassment or sexual violence reporting procedures has the right to do so without fear of or actual retaliation.  Retaliatory behavior by someone, or anyone acting on their behalf, against anyone whom they may believe have cooperated in the investigation and/or conduct process is strictly prohibited and may result in disciplinary action.

SaVE Act is an acronym for the Campus Sexual Violence Act provision of the 2013 reauthorized Violence Against Women Act (VAWA).  The SaVE Act provision, Section 304, requires colleges to report domestic violence, dating violence, and stalking beyond the crime categories the Clery Act already mandates; adopt certain student conduct procedures, such as for notifying victims/survivors of their rights; and adopt training protocols and policies to address and prevent campus sexual violence.

Sexual Activity has the same meaning as “sexual act” and “sexual contact” (A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

Sexual Assault I is sexual intercourse or any sexual penetration, however slight, of another person’s oral, anal, or genital opening with any object (an object includes but is not limited to parts of a person’s body) without the active consent of the victim.
  
Sexual Assault II is touching a person’s intimate parts (defined as genitalia, groin, breast, or buttocks), whether directly or through clothing, without the active consent of the victim. It also includes forcing an unwilling person to touch another’s intimate parts.

Sexual Contact means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse/gratify the sexual desire of any person.

Sexual Discrimination is any behaviors and actions that deny or limit a person’s ability to benefit from, and/or fully participate in the educational programs or activities or employment opportunities because of a person’s sex.  This includes, but is not limited to, sexual harassment, sexual assault, domestic violence, dating violence, and/or stalking by employees, students, or third parties.

Sexual Exploitation is nonconsensual, abusive sexual behavior that does not otherwise constitute Sexual Assault I, Sexual Assault II or Sexual Harassment. Examples include, but are not limited to, intentional, nonconsensual tampering with or removal of condoms or other methods of birth control and Sexually Transmitted Infection (“STI”) prevention prior to or during sexual contact in a manner that significantly increases the likelihood of STI contraction and/or pregnancy by the non-consenting party; nonconsensual video or audio taping of sexual activity; allowing others to watch consensual or nonconsensual sexual activity without the consent of a sexual partner; observing others engaged in dressing/undressing or in sexual acts without their knowledge or consent; trafficking people to be sold for sex; and inducing incapacitation with the intent to sexually assault another person.

Sexual Harassment is conduct on the basis of sex that satisfies one or more of the following:

  1. An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);
  2. Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational institution’s education program or activity; or
  3. Sexual assault (as defined in the Clery Act), or dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).

Sexual Harassment in the Educational Setting is any unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment of a student denies or limits, on the basis of sex, the student’s ability to participate in or to receive benefits, services, or opportunities in the educational institution’s program. 

Sexual Harassment in the Employment Setting is any unwelcome sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature when any of the following occurs: (1) submission to such conduct is made a term or condition of an individual’s continued employment, promotion, or other condition of employment; (2) submission to or rejection of such conduct is used as a basis for employment decisions affecting an employee or job applicant; or (3) such conduct is intended to interfere, or results in interference, with an employee’s work performance or creates an intimidating, hostile, or offensive work environment.

Sexual Violence is physical sexual act perpetrated against a person’s will or where a person is incapable of giving consent.  Such acts include, but are not limited to sexual assault, rape, sexual battery, and sexual coercion.

Stalking is intentionally engaging in a course of conduct, directed at a specific person, which is likely to cause a reasonable person to fear for his or her safety or the safety of others or cause that person to suffer substantial emotional damage. Examples include, but are not limited to, repeatedly following such person(s), repeatedly committing acts that alarm, cause fear, or seriously annoy such other person(s) and that serve no legitimate purpose, and repeatedly communicating by any means, including electronic means, with such person(s) in a manner likely to intimidate, annoy, or alarm him or her.  All acts of sexual discrimination are prohibited by Title IX.

Supportive Measures are non-disciplinary, non-punitive individual services offered to the complainant or respondent.

Title IX of the Education Amendments of 1972 is a comprehensive federal law that protects people from discrimination based on sex in education programs or activities which receive Federal financial assistance.  The law prohibits discrimination on the basis of sex in any federally-funded education program or activity.  Colleges must promptly respond to complaints of sexual harassment and sexual violence in a way that limits its effects and prevents its recurrence.

Title IX Coordinator ensures the campus community is aware of legal rights under Title IX; ensures campus community complies with Title IX policies, procedures, and regulations; provides education, training, and programming to campus community; takes immediate action to all reports of sexual discrimination, sexual harassment, sexual assault, dating violence, domestic violence, and stalking that are reported to non-confidential resources; ensures that both the victim/survivor and accused know their options and get help, resources, and services they need; conducts fair, equitable, and unbiased investigations while serving as a neutral fact finder for both parties, and is responsible under the law for tracking patterns and spotting systemic issues.

Victim/Survivor is a person who suffers personal, physical, or psychological injury.  These policies encompass the terms victim, survivor, complainant, and reporting individual to reference an individual who brings forward a report of a violation.

Violence Against Women Act (VAWA) requires colleges to report dating violence, domestic violence, sexual assault, and stalking, beyond crime categories the Clery Act already mandates; adopt certain student discipline procedures, such as for notifying purported victims of their rights; and adopt certain institutional policies to address and prevent campus sexual violence.