How To Address Sexual Misconduct on Campus

How To Address Sexual Misconduct on Campus

11.16.2022

By Julie M. Mohl and Pamela D. Bass

Picture it: A stranger jumps out from behind a bush, attacks a woman walking alone on campus and rapes her at knife-point in the dark of night. That is what most people envision when they hear the term “rape.” However, the majority of rapes and sexual assaults are committed by acquaintances or former intimate partners of the victim.^[1] There are important considerations in the investigation of both types of attacks. This article focuses on the latter and the different avenues available to victims of sexual assault on college campuses in New York.

Addressing Sexual Assault – A Brief Recent History

In 2014, then-Senator Claire McCaskill (D-MO) published a report of sexual assaults on United States college campuses, revealing that insufficient protocols and procedures were in place to adequately address and deter such behavior.^[2] In January that same year, President Barack Obama established the White House Task Force To Protect Students from Sexual Assault.^[3]

The task force, in its first report, explained that many cases of sexual assault were not referred to local law enforcement as, for many survivors, “the criminal process simply does not provide the services and assistance they need to get on with their lives or to get their educations back on track.”^[4] In addition, the task force recognized that a criminal investigation did not “relieve a school of its independent obligation to conduct its own investigation – nor may a school wait for a criminal case to conclude” prior to proceeding with is investigation.^[5]

Pursuant to Title IX of the Educational Amendments of 1972, 20 U.S.C Section 681 et seq., “schools that receive federal financial assistance” must “take necessary steps to prevent sexual assault on their campuses, and to respond promptly and effectively when an assault is reported.”^[6] The United States Department of Education, Office for Civil Rights, is responsible for the enforcement of Title IX.^[7] The White House task force recommended increasing communication between institutions of higher education and law enforcement to best address and support the victims of sexual assault.^[8] In addition, it emphasized information sharing, transparency and clarification of the roles of government agencies in the enforcement of Title IX.^[9] Furthermore, it aimed to increase the Office for Civil Rights’ enforcement of Title IX by clarifying the obligations of educational institutions.^[10]

With this backdrop, in 2015 New York State added a new article, Education Law 129-B (the “Enough Is Enough Law”), to address sexual assault on campus.^[11] The aim was to have a universal definition of consent and to require training for both students and employees of institutions of higher education. In addition, the Enough Is Enough Law (EIE) aimed to establish a database for annual reporting of aggregate information regarding sexual assaults by each institution.^[12]

In 2020, there were 229 colleges and universities in the State of New York obligated under EIE to report data.^[13] There were 2,480 incidents reported with 1,201 occurring on campus, 945 occurring off-campus and 334 occurring in an unknown location.^[14] Of the 2,480 incidents 339 (or 14%) had law enforcement involvement.^[15] In 2019, there were 4,031 incidents and 750 (or 19%) had law enforcement involvement.^[16] In 2018, there were 3,869 incidents and 732 (or 19%) had law enforcement involvement.^[17]

Avenues To Address Sexual Violence on Campus

 The 2020 Title IX Regulations    

On Aug. 14, 2020, the Department of Education, after undergoing administrative law formal rulemaking, put into effect new regulations for Title IX sexual harassment.^[18] Three requirements of the regulations may significantly affect whether a student or employee who has been an alleged victim of sexual harassment as defined by Title IX may decide to file a formal Title IX complaint.

Definition of Sexual Harassment and the Filing of a Formal Complaint

The regulations define sexual harassment to occur in one of three ways: quid pro quo, hostile environment and crimes of sexual violence.[19] The crimes of sexual violence include: sexual assault as defined in 20 U.S.C. Section 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. Section 12291(a)(10), “domestic violence” as defined in 34 U.S.C. Section 12291(a)(8) and “stalking” as defined in 34 U.S.C. Section 12291 (a)(31).

In addition, the regulations no longer require the institution to file a formal Title IX complaint. The educational institution, upon actual knowledge of a potential claim, must act promptly and without deliberate indifference.[20]

Right to an Advisor

The regulations provide that either party may have the advisor of their choice – who may be, but is not required to be, an attorney – present at all phases of the grievance procedure.^[21] The advisor may inspect and review all evidence obtained as part of the investigation.^[22]

Cross-Examination

Probably the greatest role of the advisor is to perform cross-examination of witnesses and the other party to the grievance. Pursuant to the regulations, “[a]t the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. . . . ”^[23] Following a federal district court ruling in July 2021 to vacate the regulatory requirement of 34 C.F.R. Section 106.45(b)(6)(i) prohibiting reliance on statements not subject to cross-examination, the Office for Civil Rights has ceased enforcement of the specific regulatory requirement.^[24]

In the cross-examination, only relevant questions may be asked.^[25] Thus, the decision-maker, who may be a trained individual or panel of individuals, needs to make decisions regarding relevance in real time. This may be a challenge for trained administrators, professionals, contracted attorneys or hearing officers.

In addition, if a party does not have an advisor present at the hearing, the recipient (i.e., educational institution) must provide, without a fee or charge to that party, an advisor of the recipient’s choice, who may, but is not required to, be an attorney.^[26] Accordingly, the complainant may not have the economic resources for an attorney, whereas the respondent (alleged perpetrator) may be represented by an attorney who will perform cross-examination of the alleged victim.

Lastly, if an alleged victim under Title IX chooses not to file a formal complaint, the institution of higher education may pursue the alleged sexual misconduct under the student code of conduct, including the institution’s obligations under New York State’s EIE.

The Enough Is Enough Law (New York Education Law Article 129-B)

New York State Education Law Article 129-B establishes a universal definition of affirmative consent for all institutions of higher education in the state. Pursuant to Section 6441, affirmative consent is defined as:

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 created 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.[27]

The EIE law also relies on each institution to establish and utilize a set of procedures to adjudicate maters of sexual violence.^[28] The EIE states:

Nothing in this article shall be construed to limit in any way the provisions of the penal law that apply to the criminal action analogous to the student conduct code violations referenced herein. Action pursued through the criminal justice process shall be governed by the penal law and the criminal procedure law.^[29]

 Criminal Law

The filing of criminal charges is a third way to proceed after a sexual assault. This usually entails the victim reporting the incident to the local police department. The victim would give a statement containing the allegations, and the assigned police officer, with the assistance of the district attorney’s office, would draft and file formal charges. Aside from the procedural differences, this avenue differs from Title IX and EIE proceedings in other important ways. Therefore, understanding the distinctions between this avenue and the others is beneficial prior to initiating a criminal proceeding.

The New York State Penal Law defines criminal offenses, as well as their elements, in very specific ways. These definitions are distinct and differ from those contained within Title IX and the EIE laws. First and foremost, “lack of consent” is defined under Penal Law Section 130.05. Although the definition is more expansive for purposes of this article, what is important to convey is that “lack of consent” requires that “the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all of the circumstances.”^[30] Thus, in a criminal matter, it is not enough that a victim did not say “yes” to engage in the act. In fact, the criminal law requires the opposite; a victim must clearly express, through words or actions, he or she does not want to participate in the act. Evidence that a victim said “no” and that he or she engaged in some physical conduct that a reasonable person would understand as indicative of an unwillingness to participate in the act is crucial to a prosecution in criminal proceedings. Unfortunately, an absence of any words or actions is detrimental; a victim feeling uncomfortable or, in his or her own mind, not wanting to go through with the act, without clearly expressing those thoughts to the other party, is not sufficient.

In addition to the definition of consent under the Penal Law, criminal proceedings also differ from Title IX and EIE laws in that there are several designations provided for within the law depending on the specific act committed. Unlike Title IX and EIE, which provide general definitions for “sexual offenses,” the penal law breaks down not only the type of offense, but also the level of the crime associated with it. The three major distinctions are: rape, criminal sexual act and sexual abuse. Rape requires proof of “sexual intercourse,” which has its ordinary meaning and occurs upon any penetration, however slight.^[31] Criminal sexual act requires either oral or anal sexual conduct, as outlined in New York State Penal Law under Section 130.00(2). Lastly, sexual abuse requires “sexual contact.” This is defined under Penal Law Section 130.00(3) as any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. This includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed. Once the allegations are explored and a specific crime or crimes are identified, the level of the offense is determined. The most common sexual offenses, and those referred to herein, range from class B felonies to class B misdemeanors. The sentencing parameters associated with these crimes vary depending on the level of the offense.

Once charges are filed, the case will be assigned a prosecutor who will handle the case. It is important to understand the prosecutor does not represent the victim; the prosecutor cannot and will not be involved in either Title IX or EIE proceedings. In a criminal matter, the prosecutor represents the State of New York and the victim is a witness in the case, just as is a police officer or some other individual who is involved in the case. The prosecutor will meet with and discuss the facts and circumstances of the case with the victim as many times as necessary throughout the pendency of the criminal case.

Finally, the burden of proof in a criminal case is beyond a reasonable doubt. Beyond a reasonable doubt has an expansive definition and is an extremely high burden. This burden is much higher than those burdens defined under Title IX and Enough Is Enough (described below). Essentially, it is not enough to prove that a defendant is “probably guilty.” Beyond a reasonable doubt requires that there be no honest, actual doubt of the defendant’s guilt. One must be firmly convinced by the evidence presented that each element of an offense has been proven. Additionally, if there’s a jury trial, it must be a unanimous verdict of either 12 or six jurors, depending on the level of the offenses charged.

Comparison of the Three Avenues To Address Sexual Misconduct on Campus

The chart below compares the primary differences between the three avenues to address sexual misconduct on campus.

Are the Three Avenues Mutually Exclusive?

The three avenues are not mutually exclusive, and therefore multiple actions could be evolving and/or proceeding at the same time, making it essential for all parties to fully understand each of the three available options.

Each college/university is required to have a sexual misconduct policy. Some institutions may combine Title IX and EIE into one sexual misconduct procedure, whereas others may have a Title IX policy and other procedures for sexual misconduct outside of Title IX. Accordingly, multiple actions/proceedings will most likely be EIE and criminal law or Title IX and criminal law. Title IX requires a grievance procedure with a reasonably prompt time frame for completion. However, it does permit temporary delay of the procedure or limited extension of time frames for good cause, as long as written notification is provided to the complainant and respondent of the delay or extension and the reasons for such action. Good cause may include concurrent law enforcement activity.^[32]

In addition to time, three other aspects of the Title IX process may interfere with the efforts of law enforcement. First, the sharing of the complete investigation record may be problematic as law enforcement establishes its case. Second, the opportunity for live cross-examination by an attorney may cause a victim or witness to be inappropriately locked into a version of the incident that differs from how the district attorney may approach the matter in court. Third, a quasi-judicial decision-maker or panel would hold a hearing without the same rules of evidence as would a court of law. These factors may dissuade a victim of sexual misconduct from filing a formal Title IX complaint.

Conclusion

The Biden administration has indicated that it will be engaging in formal rulemaking to modify and amend the 2020 regulations.^[33] With institutions of higher education in New York juggling Title IX and the EIE law, it will be important to continue to educate and train students and employees on both, as well as on the New York Penal Code.

With the distinct differences between the three avenues, we recommend that all stakeholders review and understand the differences between the legal options and review the college’s/university’s code of conduct to assist themselves and others in making better educated decisions if they unfortunately find themselves in a circumstance covered by Title IX, EIE or the penal code.

Julie M. Mohl has been a prosecutor for over 19 years and is currently a senior assistant district attorney with the Orange County District Attorney’s Office, where she focuses on the prosecution of sexual assaults. She is a graduate of Emory University School of Law.

Pamela D. Bass is an attorney at Thomas, Drohan, Waxman, Petigrow and Mayle. Her practice is primarily focused on providing counsel to public school districts, institutions of higher education, and municipalities in the Hudson Valley area. She serves clients on all aspects of education law, Title IX, labor and employment and sports law as it relates to educational institutions. She earned an M.Ed from the University of Texas and her J.D. from the University of Connecticut School of Law. She serves on the Women in Law Section’s Executive Committee.

This article first appeared in WILS Connect, the publication of the Women in Law Section. For more information, please visit NYSBA.ORG/WILS.

	Title IX	Enough Is Enough Law	Criminal Law
Governing Law	Title IX Regulations 34 CFR 106, et seq. Campus policy and procedures based on minimum regulations in 34 CFR 106, et seq.	Education Law 129B   Campus policy and Procedures	Penal Code
Attorney, Lawyer, Advisor	Advisor of choice, who may be an attorney. If a complainant or respondent does not have one, then the educational institution will provide an advisor (who does not have to be an attorney). (Would not be the district attorney if there is a criminal case.)	Advisor permitted and role may be limited by campus policy.	District attorney
Definition of Consent	Not required under Title IX	Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.	Active no
Activity Covered	Sexual assault, domestic violence, dating violence, and stalking as defined by the Clery Act	Sexual assault, domestic violence, dating violence, and stalking as defined by the Clery Act	N.Y. Penal Code definitions
Jurisdiction	Must occur: 1. in the United States 2. when trying to take advantage of the education program and activity of the institution, including locations, events, or circumstances over which the educational institution exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the institution.	Applies when violation occurs on campus, off campus, or while studying abroad.	Where N.Y. Penal Code applies
Burden of Proof	Preponderance of the evidence; or clear and convincing evidence.[34]	Student Code of Conduct, usually preponderance of the evidence.	Beyond a reasonable doubt
Cross-Examination	Yes, by advisor of choice who may be an attorney.	Cross examination is not required. Method and format determined in institution’s sexual misconduct policy and procedures.	Yes
Copy of investigation report	Preliminary and final report provided to both complainant and respondent.	Limited for allegations – may review (may not receive under individual policies).	Police investigation and discovery

 

[1] Perpetrators of Sexual Violence: Statistics, RAINN, https://www.rainn.org/statistics/perpetrators-sexual-violence.

[2] McCaskill Report, Sexual Violence on Campus: How Too Many Institutions of Higher Education Are Failing To Protect Students, July 9, 2014.

[3] The White House Task Force, Not Alone: The First Report of the White House Task Force To Protect Students From Sexual Assault, April 2014.

[4] Id. at 15.

[5] Id.

[6] Id. at 16.

[7] See United States Department of Education, Office for Civil Rights, Title IX and Sex Discrimination, Revised August 2021, https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html#:~:text=OCR’s%20Enforcement%20of%20Title%20IX,resolves%20complaints%20alleging%20sex%20discrimination.

[8] The White House Task Force, Not Alone, supra, at 15.

[9] Id. at 17–20. While OCR enforces Title IX, the Department of Education’s Federal Student Aid office is responsible for enforcing the Clery Act. Colleges and universities that participate in federal financial aid programs are required, under the Clery Act, to report annual statistics involving crimes, sexual assault and rape.

[10] Id. at 17.

[11] New York State Education Law Article 129-B.

[12] 8 N.Y.C.R.R. § 48.2. Annual Aggregate Data Reporting by New York State Institutions of Higher Education Related to Reports of Domestic Violence, Dating Violence, Stalking and Sexual Assault, http://www.nysed.gov/information-reporting-services/chapter-76-laws-2015-enough-enough-annual-aggregate-data-report.

[13] Id. (2020 Full Year Report as of February 17, 2022).

[14] Id.

[15] Id.

[16] Id. (2019 Full Year Report as of January 7, 2021).

[17] Id. (2018 Full Year Report as of February 10, 2020).

[18] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020). The regulations begin on page 30, 572.

[19] 34 C.F.R. § 106.30 (a) Definitions. “Sexual harassment means conduct on the basis of sex that satisfies one or more of the following: (1) An employee of the recipient conditioning the provision of an aid, benefit or service of the recipient on an individual’s participation in unwelcome sexual conduct” (commonly referred to as “quid pro quo sexual harassment”); (2) “Unwelcome comment determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity” (commonly referred to as “hostile environment sexual harassment”) and (3) “‘Sexual assault’ as defined in 20 U.S.C. 1092(f)(6)(A)(v), ‘dating violence’ as defined in 34 U.S.C. 12291(a)(10), ‘domestic violence’ as defined in 34 U.S.C. 12291(a)(8) or ‘stalking’ as defined in 34 U.S.C. 12291 (a)(31).”

[20] 34 C.F.R. Part 106.44(a).

[21] 34 C.F.R. Part 106.45 (b)(2)(B) and (b)(5)(iv).

[22] 34 C.F.R. Part 106.45(b)(5)(vi).

[23] 34 C.F.R. Part 106.45(b)(6).

[24] Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021), appeals pending (1st Cir.). See also United States Department of Education, Office for Civil Rights Letter to Students, Educators, and other Stakeholders re Victim Rights Law Center et al. v. Cardona (August 24, 2021), https://www2.ed.gov/about/offices/list/ocr/docs/202108-titleix-VRLC.pdf.

[25] 34 C.F.R. Part 106.45(b)(6).

[26] Id.

[27] New York Education Law Article 129-B, Ch. 76 § 6441.

[28] New York Education Law Article 129-B, Ch. 76 § 6440(4).

[29] New York Education Law Article 129-B § 6440(8).  See also http://system.suny.edu/sexual-violence-prevention-workgroup/College-and-Criminal-Resource (produced in 2015 prior to the 2020 Title IX Regulations).

[30] New York PL § 130.05.

[31] New York PL § 130.00(1).

[32] 34 C.F.R. Part 106.45(b)(1)(v).

[33] Office for Civil Rights Blog (February 18, 2022), https://www2.ed.gov/about/offices/list/ocr/blog/index.html. OCR submitted its initial proposed rules for formal rule making on Feb. 17, 2022.  President Biden is quoted as saying, “all students should be guaranteed an educational environment free from discrimination on the basis of sex, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.”

[34] The burden of proof must be the same for students and employees.