Policies

POLICY:
 
SCOPE:
  REASON FOR POLICY:
 
ROLES AND RESPONSIBILITIES:
 

• Certain officers of the University (Provost and Senior Vice President for Academic Affairs, and Senior Vice President for Student Life and Enrollment Management)
• Title IX Coordinator
• Deputy Title IX Coordinators
• Dean of Students
• Area Coordinators and Directors in the Office of Student Living and Campus Engagement
• Campus Safety personnel

RESOURCES:
 
DEFINITIONS OF SPECIFIC VIOLATIONS:
    RELATED DEFINITIONS

1. Affirmative Consent - In order for individuals to engage in sexual activity of any type with each other, there must be clear affirmative consent. Whenever the term consent is used in this policy, it should be understood to mean affirmative consent as defined here. 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 sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of affirmative consent does not vary based on a participant’s sex, sexual orientation, gender identity, or gender expression. Under this policy, “No” always means “No.” At the same time, silence, or the absence of an explicit “no”, cannot be assumed to indicate consent.
   1. Consent to some form of sexual activity between or with any party cannot be automatically taken as consent to any other sexual activity.
       
   2. Past consent to sexual activity cannot be presumed to be consent to engage in the same sexual activity in the future.
       
   3. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
       
   4. Consent can be withdrawn at any time by expressing in words or actions that the individual no longer wants the sexual activity to continue and, if that happens, the other person must stop immediately.
       
   5. Affirmative consent cannot be obtained by use of force, compelling threats, intimidating behavior, or coercion. Consent cannot be given when a person is incapacitated, as defined below. 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.
       
2. Incapacitation - This occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness, mental disability, being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. In order to give affirmative consent, one must be of legal age, which is 17 in the state of New York. Use of alcohol or other drugs does not, in and of itself, negate a person’s ability to give affirmative consent. However, depending on the degree of intoxication, someone who is under the influence of alcohol or drugs or other intoxicants may be incapacitated and therefore unable to consent. A person who has been drinking or using drugs is still responsible for ensuring that the other person provides affirmative consent to engage in sexual activity. An individual’s incapacity may also be caused by consuming “date rape” drugs. Possession, use, and/or distribution of any of these substances (including Rohypnol, Ketomine, GHB, Burundanga, and others) is prohibited, and administering any of these drugs to another person for the purpose of inducing one to consent to sexual activity is a violation of this policy.
    
3. Coercion - Coercion is a threat, undue pressure, or intimidation to engage in sexual activity. Coercion is more than an effort to persuade, seduce, entice, or attract another person to engage in sexual activity. A person’s words or conduct are sufficient to constitute coercion if they deprive another individual of the ability to freely choose whether or not to engage in sexual activity.
    
4. Force - Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that overcome resistance or produce consent.
    
5. Reporting Party or Complainant - The reporting party or complainant is the person who is alleged to be the victim of conduct that could constitute sexual harassment or sexual misconduct. A person who files a report on behalf of another person is referred to more specifically as a third-party reporter. The person who is directly affected by the reported behavior, whether reported by them or a third party, will be referred to as the reporting party or complainant.
    
6. Responding Party - The responding party is the person who is alleged to have engaged in behavior that violates this policy and, if a process is commenced, is responding to the allegations. The responding party may also be referred to as the respondent.
    
7. Supportive Measures - Non-disciplinary, non-punitive individualized services offered, as appropriate and as available, and without fee or charge to the reporting party or responding party, before or after the filing of a formal complaint or where no formal complaint has been filed. These measures are designed to restore or preserve equal access and ensure the safety of all involved parties. Examples of supportive measures include, but are not limited to:
    
   • counseling services;
   • extensions of deadlines or other course-related adjustments;
   • modification of work or class schedules;
   • safety escorts;
   • mutual no-contact restrictions and, in certain cases, one-way no contact orders,
   • changes in work or housing locations;
   • leaves of absence;
   • increased security and monitoring of certain areas of the campus;
      
   and other similar measures.
    
8. Preponderance of Evidence Standard - This is the standard of evidence that is used to determine whether or not a violation of this Utica University policy has occurred. This standard states that based on the collected evidence, it is “more likely than not” that a violation occurred. The burden of proof lies with the institution, and it applies to students, faculty and staff.
    
9. Inculpatory Evidence - This is evidence that tends to reflect a responding party’s responsibility for an alleged violation.
    
10. Exculpatory Evidence - This is evidence that tends to reflect that a responding party is not responsible for an alleged violation.

INFORMAL RESOLUTION

Informal resolutions may occur in the place of a formal grievance process only with voluntary, informed and written consent by both parties. Examples of informal resolution include mediation or restorative justice.

In cases where a formal complaint has been filed, but where the Title IX Coordinator determine that informal resolution may be appropriate, the Title IX Coordinator will first consult with the reporting party/complainant about the option to pursue informal resolution. If the reporting party/complainant is agreeable, then the Title IX Coordinator will consult with the responding party to discuss the process. If both parties are agreeable, the informal resolution process will be coordinated by the Title IX Coordinator. Informal resolutions should only be handled by an individual who is trained in facilitation. Either party who enters into an informal resolution process may decide to withdraw from the process prior to agreeing to a resolution. Informal resolution cannot be used in cases where a student alleges sexual harassment by an employee of Utica University. There may be instances when, for the safety of others who may be affected by the alleged action, an investigation will still be conducted despite the willingness of the parties to engage in an informal resolution process.. Should this type of situation arise, the investigators will communicate the need to investigate to the reporting party and responding party.

In implementing an informal resolution process the University will:

• Provide to the parties a written notice disclosing: the allegations, the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the formal resolution process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared; and
   
• Obtain the parties’ voluntary, written consent to the informal resolution process.

FORMAL GRIEVANCE PROCESS:

Any Utica University community member who has been the victim of sexual harassment or sexual misconduct has the right to make a report to the University, local law enforcement, and/or the state police, or choose not to report. If reported to the University under this policy, a reporting individual will be protected from retaliation and will receive appropriate assistance and resources from Utica University. Please see the Students’ Bill of Rights (https://www.utica.edu/hr/titleiv/Student_Bill_Of_Rights-2016_R2%20(1).pdf) for cases involving sexual assault, domestic violence, dating violence, or stalking.

The grievance process treats all reporting parties and responding parties equitably and is designed to preserve or restore equal access to all of the University's programs and activities (including the workplace/work environment).

Making a report: Those who wish to file a report of sexual harassment or sexual misconduct may do so by submitting a written, signed complaint to the Title IX Coordinator by using the contact information provided in this policy. The person making the report, or the reporting party, may also make a report verbally to the Title IX Coordinator. A reporting party may also make a report to a person identified as a “responsible administrator” (see definitions), who will then direct the reporting party to the Title IX Coordinator.

Reporting Party Request for Confidentiality: Reporting parties may make a request that the University maintain the report as confidential. This type of request may be made if reporting parties do not want their identity known to the responding party and witnesses, or wish that the University not conduct an investigation or that action not be taken against an alleged perpetrator.

In situations where a reporting party makes such a request, the University’s ability to investigate and respond to the allegations may be limited. If at any point the reporting party requests confidentiality, the University will make all reasonable attempts to comply with this request, but it is not required to honor these requests. The University may, in appropriate circumstances, decide it must move forward with an investigation and/or disciplinary process.

The University is required by Title IX to weigh the reporting party’s request for confidentiality with the University’s commitment to provide a reasonably safe and non-discriminatory environment. In evaluating a request for confidentiality, the Title IX Coordinator will consider a range of factors, including, but not limited to:

• Whether the reporting party wants to participate in a formal investigation process;
• The severity and impact of the alleged sexual harassment or sexual misconduct;
• The respective ages of the parties;
• Whether the reporting party is a minor under the age of 18;
• Whether the responding party has admitted to the sexual harassment or sexual misconduct;
• Whether there have been other sexual harassment or sexual misconduct complaints about the responding party;
• Whether the reported incident represents escalation in unlawful conduct on behalf of the responding party from previously noted behavior;
• Whether the responding party has a history of arrests or records from a prior school indicating a history of violence;
• Whether the responding party threatened further sexual violence against the victim or others;
• Whether the sexual harassment or sexual misconduct was committed by multiple responding parties;
• Whether the sexual harassment or sexual misconduct was perpetrated with a weapon or force;
• Whether the sexual harassment or sexual misconduct was committed by multiple perpetrators;
• Whether the information provided suggests that the act is part of a larger pattern at a specific location or by a particular group; and/or
• Whether information can be obtained by means other than from the impacted individual (e.g., by personnel or security cameras, witnesses, or through physical evidence); and
• The overall safety of the campus community (including the reporting party).

The Title IX Coordinator will notify the reporting party if the University cannot honor the reporting party’s request for confidentiality. However, even when confidentiality is not available, Utica University officials acting under this policy will maintain privacy to the greatest extent possible. Information reported to a nonconfidential resource will be relayed only as necessary for the Title IX Coordinator, and those acting under this policy, to carry out the purposes of this policy. The reporting party’s identity will only be revealed to those individuals who need to know the name of the reporting party in order for an investigation to occur. In fact, the University will make all reasonable efforts to maintain the privacy of all parties involved in investigations under this policy and to restrict information to those with a legitimate need to know. Individuals participating in an investigation, proceeding, or hearing will be encouraged to maintain the privacy of the process in order to assist the University in conducting a thorough, fair, and accurate investigation.

Notifications to Reporting Party; Formal Complaint Process: Once a report is received, the Title IX Coordinator will promptly contact the reporting party confidentially to discuss any available supportive measures. If a formal complaint has not yet been received, the Title IX Coordinator will contact the potential reporting party, inform them of the process for filing a formal complaint, and engage in a discussion about supportive measures (with or without a formal complaint). The reporting party will be informed that although emergency removal may be an option (only if a threat of immediate safety is present), no disciplinary sanctions against the responding party will occur until the grievance process is completed and a determination is reached. The reporting party will also be informed that while the University will make every effort to honor their wishes with regard to whether or not an investigation takes place, if the Title IX Coordinator decides to sign the complaint because of known circumstances, an investigation may still occur.

A formal complaint is necessary to initiate a disciplinary resolution or informal resolution under this policy. A formal complaint must be in written form and must be signed by the reporting party/complainant or (as provided in this policy) the Title IX Coordinator. A third party or anyone other than the victim of the misconduct may report an incident as described above, but may not file a formal complaint. However, a formal complaint may be filed by a parent or guardian on behalf of a minor person.

A formal complaint is a document filed by a reporting party/complainant or signed by the Title IX Coordinator alleging one or more violations committed by a responding party and requesting that the University investigate the allegation. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail to:

Ann Ciancia
Title IX Coordinator
1600 Burrstone Rd.
DePerno Hall 204
Utica, NY 13502
(315) 223-2341
accianci@utica.edu

In order to qualify as a formal complaint, the document must contain the reporting party/complainant’s physical or electronic signature, or otherwise indicate that the reporting party/complainant is the person filing the formal complaint.

If a reporting party/complainant declines to sign a formal complaint or does not wish to participate in the complaint and adjudication process, or the reporting party/complainant’s identity is unknown, and the Title IX Coordinator determines there is sufficient cause to file a formal complaint, the Title IX Coordinator may file a formal complaint. In such cases, the Title IX Coordinator is not considered to be a reporting party/complainant or other party under this policy.

In order to comply with Title IX regulations, the Title IX Coordinator must “dismiss” allegations of Title IX Violation(s) alleged in a complaint if, at any time following receipt of the complaint, it is apparent that the allegations are not within the scope of Title IX, including that the conduct alleged (1) would not constitute sexual harassment, sexual assault, dating violence, domestic violence or stalking as defined as Title IX Violations, even if proved, (2) did not occur in the University’s education program or activity, or (3) did not occur against a person in the United States. Even if allegations of Title IX Violations are subject to dismissal, the University may continue to process the allegations as Community Standards Violations if the allegations, if true, would constitute Community Standards Violations.

In addition, the Title IX Coordinator may dismiss a complaint if the reporting party/complainant informs the Title IX Coordinator in writing that they would like to withdraw the report, if the responding party is no longer enrolled or employed by the University, or if specific circumstances prevent the University from gathering sufficient evidence to reach a determination.

Any decision to dismiss a complaint or allegation pursuant to this section is immediately appealable pursuant to the appeal procedures set forth in this policy.

Supportive Measures: Once a report is made under this policy, the reporting party will be contacted by the Title IX Coordinator and offered supportive measures, as defined above. A report that triggers supportive measures need not be a formal complaint, and it may be made by a third party (i.e., someone other than the person allegedly subjected to misconduct). Once the responding party is informed of a report or a formal complaint, the responding party will be contacted by the Title IX Coordinator and offered supportive measures. Supportive measures are intended to restore or preserve, to the extent practicable, equal access to the University’s educational programs and activities and protect the safety of all parties without unreasonably burdening any other party or parties. As required by federal regulation, these supportive measures must be non-disciplinary and non-punitive to the parties. The Title IX Coordinator is responsible for coordinating the implementation of supportive measures, including coordinating with the various University departments and offices that may be involved. Supportive measures will be offered free of charge.

If a party’s request for a supportive measure is denied, the party will be afforded an opportunity to have the denial promptly reviewed to assess whether the supportive measure is reasonable under the circumstances. In addition, each party will, upon request, be afforded the opportunity for a prompt review of the need for supportive measures, including the potential modification of these measures, to the extent that the party is affected by the measure(s) being reviewed. The request for review of the denial of, or the need for or details of, supportive measures should be made to the Title IX Coordinator and may be made at any time. Each party will be allowed to submit evidence in support of, or in opposition to, the request to the extent the supportive measures under review affect that party. The Title IX Coordinator will advise the parties of the result of the review. This determination is not subject to further review absent changed circumstances.

Emergency Removal

The University may need to undertake emergency removal of a student in order to protect the safety of its community, which may include contacting local law enforcement to address imminent safety concerns. Emergency removal is not a substitute for reaching a determination as to a student responding party’s responsibility for misconduct allegations; rather, emergency removal is for the purpose of addressing imminent threats posed to any person’s physical health or safety, which may arise out of alleged misconduct or the allegations of misconduct. Emergency removal may be total (i.e., the student is suspended from the University) or partial (e.g., the student is suspended from being present on campus) at the discretion of the University based on the circumstances.

Prior to removing a student responding party through the emergency removal process, the University will undertake an individualized safety and risk analysis. If the individualized safety and risk analysis determines that an immediate threat to the physical health or safety of any student or other individual arising from the alleged misconduct or the allegations of misconduct justifies removal, then a student responding party will be removed. This is the case regardless of the severity of the allegations and regardless of whether a formal complaint was filed.

In the event a determination is made that a student responding party is an immediate threat to the physical health or safety of an individual, the Title IX Coordinator will provide written notice of the emergency removal to both the reporting party/complainant (if any) and responding party. This notice will contain: (1) the date the removal is set to begin, (2) the reason for the emergency removal, (3) the consequences of non-compliance, and (4) how to appeal the decision. If a student responding party disagrees with the decision to be removed from campus, they may appeal the decision in writing to the Director of Campus Safety within ten (10) days of receiving the notice of removal. The burden of proof is on the student responding party to show that the removal decision was incorrect. The emergency removal will remain in effect while the appeal is considered.

The emergency removal process applies only to student responding parties. Employee responding parties are not subject to this process and may be placed on administrative leave pursuant to the University’s applicable policies and/or collective bargaining agreements during any process under this policy.

Investigations: If an investigation is to be conducted pursuant to this policy, the Title IX Coordinator will send a written notice of complaint to both the reporting party and the responding party that will include, to the extent known, (1) the identities of the involved parties; (2) the date, time, location and factual allegations concerning the alleged violation(s); (3) the policy provisions allegedly violated; (4) a description of the investigation and adjudication process; (5) potential sanctions; (6) the right to an advisor of choice (as defined above); (7) the right to inspect and review evidence in accordance with this policy; (8) notice that knowingly making false statements or knowingly submitting false information is prohibited under University policies; (9) notice that the responding party is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the process; and (10) a statement about the University’s policy on retaliation. If, in the course of the investigation, the University decides to investigate allegations that are not included in the notice initially provided to the parties, the Title IX Coordinator will provide notice of the additional allegations to the parties.

Involved parties will be urged to retain any evidence that is relevant to the investigatory process. Any other meetings or interviews will also be preceded by a written notice to all involved parties.

The assigned investigators will conduct their investigation of reports/complaints under this policy expeditiously. To the extent possible, the investigation will begin promptly upon receipt of the complaint. The University endeavors to complete the investigatory phase within 60 days, but this timeframe may be extended if necessary depending upon the circumstances.

The Title IX Coordinator will assign investigators (usually no more than two) to interview involved parties for the purposes of gathering facts and evidence. An investigator assigned to the investigation will provide written notice of investigation to any individual who is asked to participate in an investigatory interview, including the reporting party and the responding party. The investigator will communicate the date, time and location of the interview in the notice. The investigator will also let the reporting party and responding party know that they may bring an advisor of choice (who may or may not be an attorney) to the investigatory interview, but only for supportive purposes. The advisor in this part of the process (the investigation) will not be allowed to interject without permission from both the investigator and the interviewee.

If either party chooses not to participate in the investigation interview in person and instead wishes to submit written material and evidence (in lieu of an interview), that party will not be allowed to submit additional evidence once the hearing begins.  A party who chooses not to participate in the investigation interview will still have a right to review evidence (see below) as outlined in this policy. 

Evidence Review:  Both the reporting party and responding party have the right to present fact, expert witnesses, and other inculpatory and exculpatory evidence (see definitions).  Each party also has the right to discuss allegations and gather evidence; however, at all times, the burden of gathering evidence remains with the University.  The investigator(s) may decline to interview any witness or to gather information the investigators find to be not relevant or otherwise excludable (e.g., sexual history of the reporting party with a person other than the responding party, materials subject to a recognized privilege, medical records in the absence of a release by the subject of the records, etc.). The investigators will determine the order and method of investigation.  

No unauthorized audio or video recording of any kind is permitted during investigation meetings or interviews. If the investigators elect to audio and/or video record interviews, all parties involved in the meeting or interview will be made aware that audio and/or video recording is occurring.

Investigators will provide the reporting party, responding party, and their advisors evidence an equal opportunity to inspect and review any evidence directly related to the allegations that is gathered in the investigation, regardless of whether the information will be relied on in reaching a determination. The evidence will be sent in electronic format or hard copy, or made available through an electronic file sharing platform, subject to redaction permitted and/or required by law. The parties will be provided with at least 10 calendar days to inspect, review, and respond to the evidence and submit a written response, which the investigators will consider prior to completion of the investigative report. Based on the parties’ written responses the investigators will determine if additional investigation is necessary (and, if so, will complete any additional investigative steps), and will incorporate relevant elements of the responses and any additional relevant evidence into the report. If no new evidence is presented within 10 calendar days, the investigators will begin preparing the investigatory report.

Investigatory Reports: Once the evidence is gathered and made available for review as described above, the investigators will prepare an investigative report that fairly summarizes relevant evidence. The report will be provided to the reporting party, the responding party, their respective advisors in electronic format or hard copy, or made available through an electronic file sharing platform, and to the Title IX Coordinator. The reporting party and responding party (and their advisors) will have 10 days to review and, if desired, to respond to the report. After 10 days have passed, or after having heard from both parties, whichever comes first, the Title IX Coordinator will provide the report to the decision-maker (see definitions) to begin the hearing process.

In any case where a student is a reporting party or responding party, both the reporting party and responding party will be permitted to submit a written impact statement to the Title IX Coordinator for consideration after a finding of responsibility for violation of this policy and prior to the determination of an appropriate sanction(s). The Title IX Coordinator will provide copies of any such written impact statements to the official responsible for making a determination regarding appropriate sanctions.

Hearings: Once the decision-maker(s) receives the investigatory report, a live hearing will be scheduled not less than ten days after the parties have been provided access to the report, for the purpose of determining whether the responding party is responsible or not responsible for the charge(s).

The decision-maker will send notice of the hearing to the reporting party/complainant and responding party, and their advisors, with the date, time and location of the hearing, and how to challenge participation by any decision-maker for bias or conflict of interest. Bias or conflict of interest will be judged by an objective standard (whether a reasonable person would conclude the decision maker is biased).

Participants in the hearing will include the decision-maker, the reporting party/complainant and the responding party, their respective advisors, the investigator(s) who conducted the investigation, and witnesses (solely during their own testimony). Hearings are private. Observers or additional support personnel, other than the parties’ advisors, are not allowed unless deemed necessary by the Title IX Coordinator for purposes such as accommodation of a disability. Cell phones and recording devices may not be used by the parties or their advisors in the hearing room(s).

Hearings may be conducted with all parties physically present in the same location or, at the Title IX Coordinator’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling the decision-maker and the parties to simultaneously see and hear any party or witness providing information or answering questions. If either party so requests, the hearing will be conducted with the parties located in separate rooms using technology as described in the preceding sentence.

The Title IX Coordinator may postpone the hearing for good cause as determined by the Title IX Coordinator. Good cause may include, without limitation, unavailability of one or more participants due to unanticipated events or circumstances, the timing of academic breaks or holidays, or other extenuating circumstances.

Procedural Matters

The decision-maker is in charge of organizing the presentation of information to be considered at the hearing. Generally, the hearing will proceed in the following order:

1. Opportunity for opening statement by the reporting party/complainant
    
2. Opportunity for opening statement by the responding party
    
3. If requested by the decision-maker, a summary of the results of the investigation by the investigators
    
4. Questions for the investigator(s) by the decision-maker and, if desired, on behalf of the reporting party/complainant and the responding party (as described below)
    
5. Questions for the reporting party/complainant by the decision-maker and, if desired, on behalf of the responding party (as described below)
    
6. Questions for the responding party by the decision-maker and, if desired, on behalf of the reporting party/complainant (as described below)
    
7. Questions for each witness by the decision-maker and, if desired, on behalf of the reporting party/complainant and the responding party (as described below)
    
8. Opportunity for closing statement by the reporting party/complainant
    
9. Opportunity for closing statement by the responding party

Formal rules of evidence will not apply. Except as otherwise expressly prohibited by this policy, any information that the decision-maker determines is relevant may be considered, including hearsay, history and information indicating a pattern of behavior, and character evidence. All evidence previously made available to the parties for inspection and review prior to completion of the investigative report as described above will be made available at the hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of questioning. Absent extraordinary circumstances as determined by the decision-maker, no party may seek to introduce at the hearing any evidence not previously made available in accordance with the preceding sentence, other than the investigative report itself and any responses to the investigative report submitted by the parties.

The decision-maker will address any concerns regarding the consideration of information prior to and/or during the hearing and may exclude irrelevant information. Subject to the terms of this policy, the decision-maker will have discretionary authority to determine all questions of procedure, to determine whether particular questions, evidence or information will be accepted or considered, to call breaks or temporary adjournments of the hearing, to alter the order of the proceedings from that described above, and/or to recall parties or witnesses for additional questions as the decision-maker deems necessary or appropriate. The decision-maker may impose additional ground rules as decision-maker may deem necessary or appropriate for the orderly and efficient conduct of the hearing, which will apply equally to both parties.

Advisors

The reporting party/complainant and the responding party may each have present with them during the hearing an advisor of their choice (at the party’s expense, if the advisor is a paid advisor). If a party does not have an advisor present at the hearing, the University will provide, without fee or charge to that party, an advisor of the University’s choice.

Except with respect to questioning as described below, the advisor’s role is limited to consulting with their advisee, and the advisor may not present evidence, address the decision-maker during the hearing, object to any aspect of the proceeding, or disrupt the hearing in any way, and any consultation with the advisee while the hearing is in progress must be done in a quiet non-disruptive manner or in writing. The advisor may consult with the advisee verbally outside the hearing during breaks, when such breaks are granted by the decision-maker. An advisor’s questioning of the other party and any witnesses must be conducted in a respectful, non-intimidating and non-abusive manner. If the decision-maker determines that an advisor is not adhering to these or other ground rules, the advisor may be required to leave the hearing, and the hearing will proceed without an opportunity for the party to obtain a replacement advisor; provided, however, that the University will assign an advisor of the University’s choosing, without charge, for the limited purpose of conducting questioning on behalf of the party as provided below.

Witnesses are not permitted to bring an advisor or other person to the hearing, absent an approved disability accommodation. The decision-maker may be advised by and/or consult with the University’s legal counsel as the decision-maker deems necessary or appropriate.

Questioning Procedures

The decision-maker will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility; provided that questions that seek disclosure of information protected under a legally recognized privilege will not be permitted unless the person or entity holding the privilege has waived the privilege in writing. Questioning must be conducted by the party’s advisor in a respectful, non-intimidating and non-abusive manner, and never by a party personally. If a party does not have an advisor present at the hearing, the Title IX Coordinator will arrange for the University to provide without fee or charge to that party, an advisor of the University’s choice to conduct questioning on behalf of that party.

Only relevant questions may be asked by a party’s advisor to a party or witness. Before the party or witness answers a question posed by an advisor, the decision-maker will first determine whether the question is relevant and explain any decision to exclude a question as not relevant. The advisor posing the question may request that the decision-maker reconsider any decision to exclude a question and the decision-maker, after soliciting the other party’s advisor’s opinion, will render a final determination. Such decisions by the decision-maker are final and not subject to further objection or reconsideration during the hearing.

Questions and evidence about the reporting party/complainant’s sexual predisposition or prior sexual behavior are not relevant, other than questions and evidence about the reporting party/complainant’s prior sexual behavior that (a) are offered to prove that someone other than the responding party committed the alleged misconduct, or (b) concern specific incidents of the reporting party/complainant’s prior sexual behavior with respect to the responding party and are offered to prove consent.

If a party or witness does not submit to cross-examination at the hearing by a party’s advisor as described above, the decision-maker may not rely on any statement of that party or witness, during the hearing or otherwise, in reaching a determination regarding responsibility. The decision-maker will not draw an inference as to responsibility based solely on a party’s or witness’s absence from the hearing or refusal to answer cross-examination questions.

Hearing Determinations

Following conclusion of the hearing, the decision-maker will deliberate and render a determination as to whether the responding party is responsible or not responsible for the alleged violation(s). The decision-maker will use “preponderance of the evidence” as the standard of proof to determine whether each alleged violation of the policy occurred.

If the decision-maker determines that the responding party is responsible for one or more violations, any personal impact statements submitted by the parties will be made available to the decision-maker for purposes of determining sanctions. In addition to the impact statement(s), if any, factors considered when determining sanctions may include:

• the nature and severity of, and circumstances surrounding, the violation(s);
   
• the responding party’s state of mind at the time of the violation(s) (intentional, knowing, bias-motivated, reckless, negligent, etc.);
   
• the responding party’s previous disciplinary history;
   
• the need for sanctions to bring an end to the conduct; and/or to prevent the future recurrence of similar conduct;
   
• the need to remedy the effects of the conduct on the reporting party/complainant and/or the community;
   
• the impact of potential sanctions on the responding party;
   
• sanctions imposed by the University in other matters involving comparable conduct; and
   
• any other lawful factors deemed relevant by the decision-maker.

Students who are found responsible will be issued disciplinary action in accordance with Utica University’s Code of Student Conduct. Faculty and other collective bargaining unit members who are found responsible will be issued disciplinary action in accordance with the current Collective Bargaining Agreement between Utica University and AAUP-UC. Staff who are found responsible will be issued discipline in accordance with the current Utica University Employee Handbook.

Notice of Outcome

The decision-maker will issue a written determination including the following information:

• A description of the charges that were adjudicated;
   
• A description of the procedural steps taken from the submission of the formal complaint through the determination, including notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
   
• Findings of fact supporting the determination;
   
• Conclusions regarding the application of the policy to the facts;
   
• A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions to be imposed on the responding party, and whether remedies designed to restore or preserve equal access to the University’s educational programs or activities will be provided to the reporting party/complainant; and
   
• The procedures and permissible bases for the reporting party/complainant and responding party to appeal.

The decision-maker will provide the written determination to the parties simultaneously.

Appeals

In all cases (except when a vendor, visitor, or other non-community member does not have a right to appeal), either party may appeal (1) the decision-maker’s decision; and/or (2) the University’s dismissal of a complaint or any allegations therein by filing an appeal within three (3) business days of the decision or dismissal. Where the responding party is a student, the appeal will go to an appeals panel comprised of three individuals from the University community who are appointed to serve as an appeals board. Where the responding party is a faculty member, the appeal should be made to the Provost. Where the responding party is a staff member, the appeal should be made to the staff member’s area vice president.

The grounds for appeal are limited to the following:

• A procedural irregularity that affected the determination or dismissal;
   
• Newly discovered evidence that was not reasonably available at the time the determination or dismissal was made that could affect the determination or dismissal; or
   
• The Title IX Coordinator, investigator(s), or decision-maker had a conflict of interest or bias for or against reporting parties/complainants or respondents generally or the individual reporting party/complainant or respondent in the case that affected the determination regarding responsibility or dismissal; or
   
• A sanction is inconsistent with the severity of the violation or otherwise inappropriate.

In the event that an appeal is submitted, both parties will be notified. Sanctions remain in place pending the outcome of the appeal, unless the Director of Student Conduct and Community Standards, or the appropriate decision maker, decides otherwise.

The individual or body considering an appeal may take any of the following actions:

• Deny the appeal;
   
• Approve the appeal;
   
• Approve the appeal in part (which may result in a modification of the findings and/or sanction(s) (if applicable)); or
   
• Remand the case for further investigation or other process, with guidance.

The appeal decision will be provided to both parties in writing, at or about the same time, and will be final, except to the extent that one or more parties seek review of proceedings ordered on remand.

Records Review

The parties, upon submission of a written request to the Title IX Coordinator, may be permitted to review information in the case file, subject to redaction permitted and/or required by law and consistent with University policy and applicable federal and state law, including the Family Educational Rights and Privacy Act.

Vendor, Visitor, or Other Non-Community Member (Non-Title IX)

In cases involving allegations against a non-community member (e.g., a vendor, visitor, contractor, parent, etc.), the case will be referred to the Vice President for Human Resources and Personnel Development/Title IX Coordinator. The Vice President for Human Resources/Title IX Coordinator will work with the appropriate parties (such as the Director of Campus Safety) and make a final determination regarding remedies, including, if appropriate, the imposition of action such as banning the non-community member from University property or other appropriate responsive measures.

A non-community member may make a report that a University community member has violated this policy. A non-community member’s complaint will be processed in accordance with the applicable disciplinary procedures listed above.

Training Efforts

The Title IX Coordinator, Deputy Title IX Coordinators, Responsible Administrators, investigators, decision makers and persons hearing appeals will receive annual training on relevant topics, including the definitions of sexual harassment, sexual assault, stalking, domestic violence, dating violence, and other forms of sexual misconduct; the scope of the University’s education programs and activities; how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable; how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias; the effects of trauma; the rights of the respondent, including the right to a presumption that the respondent is “not responsible” until a finding of responsibility is made pursuant to this policy; and how to conduct investigations and disciplinary proceedings that protect the safety of all parties and promote accountability to the University community.

The Title IX Coordinator will also arrange annual training sessions for all members of the Utica University community about prevention of sexual harassment and sexual misconduct. The intent of this training is to maintain an academic and work environment free from sexual harassment and sexual misconduct. An environment that is free from sexual harassment and sexual misconduct provides the opportunity for all individuals to reach their potential in the performance of their educational pursuits or assigned position.

Educational efforts are essential to sustain a University environment that is as free as possible of sexual harassment and sexual misconduct; that fosters respect for all individuals; and that observes high standards of conduct in consensual relationships. The primary goals to be achieved through education include:

• Ensuring that individuals are aware of their rights and all of the resources available to them;
• Notifying individuals of prohibited behaviors;
• Informing parties of the proper way to address complaints of violations of this policy;
• Maintaining a community awareness of the problems this policy addresses;
• Making community members aware of ways that bystander intervention can help reporting and prevention;
• Creating awareness of the dynamics of sexual assault, dating violence, domestic violence and stalking so as to better address those behaviors
• Fostering a sense of safety and wellbeing for all members of the Utica University community

Law Enforcement and Criminal Charges

A victim of a crime, including sexual misconduct, is encouraged, but is not required, to report the incident to law enforcement and pursue criminal charges. Members of the University community who want to pursue criminal charges may contact the Student Counseling Center, Office of Student Affairs, the Office of Campus Safety, or the YWCA/local crisis center for assistance in making a report of a crime to law enforcement, or may contact law enforcement authorities directly.

The criminal process and the University’s investigatory/disciplinary processes are not mutually exclusive or dependent on each other, meaning that a person may pursue either a criminal complaint or internal complaint with the University, both, or neither. Any internal University investigation and/or hearing process will be conducted concurrently with any criminal justice investigation and proceeding that may be pending. Temporary delays in the University’s internal processes may be requested by local law enforcement authorities for the purpose of evidence gathering. Any temporary delay shall not last more than ten (10) days, except when local law enforcement authorities specifically request and justify a longer delay. The University will cooperate with any criminal proceedings as required or permitted by law.

In criminal cases, including non-consensual sex offenses, the preservation of evidence is critical and must be done properly and promptly. Local law enforcement agencies can assist in filing a criminal complaint and in securing appropriate examination, including by a sexual assault nurse examiner. The New York State Police Sexual Assault Hotline, which can be reached at 1-844-845-7269, may also be of assistance in reporting an incident to law enforcement. Additionally, orders of protection and other forms of legal protection may be available to individuals who have experienced or are threatened with violence. In appropriate circumstances, an order of protection may be available that restricts the offender’s right to enter University property, and the University will abide by a lawfully issued order of protection. Utica University officials will, upon request, provide reasonable assistance to any member of the University community in obtaining an order of protection or, if outside New York State, an equivalent protective or restraining order.

Upon receipt of an order of protection (or equivalent order) by the University, University officials will also assist by providing all applicable parties with a copy of the order. Those parties will be given an opportunity to meet or speak with a Utica University representative, or other appropriate individual, who can explain the order and answer questions about it, including information from the order about the other person’s responsibility to stay away from the protected person or persons. The University official, or other appropriate individual, will also provide an explanation of the consequences for violating these orders, including but not limited to arrest, additional conduct charges, and emergency removal, and will assist in contacting local law enforcement related to alleged violations of such an order.

Amnesty

The health and safety of every student at Utica University is of utmost importance. Utica University realizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence, including but not limited to domestic violence, dating violence, stalking, or sexual assault, occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. Utica University strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to Utica University officials. A bystander acting in good faith or a reporting individual acting in good faith that discloses any incident of domestic violence, dating violence, stalking, or sexual assault to Utica University officials or law enforcement will not be subject to the University’s Student Code of Conduct action for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the domestic violence, dating violence, stalking, or sexual assault.

Non-Retaliation

Retaliation against any person involved in an investigation, proceeding or hearing under this policy, including the reporting party, responding party, witnesses, or University personnel, is strictly prohibited. This includes retaliation from a third party on behalf of the reporting party, responding party, witnesses, or University personnel. The University defines retaliation as any adverse action taken against an individual for making a good faith report under this policy, for testifying, assisting, or participating or refusing to participate in any manner in an investigation, proceeding, or hearing under this policy, or for the purpose of interfering with any right or privilege under this policy. Retaliation includes threatening, intimidating, harassing, coercing or any other conduct that would discourage a reasonable person from engaging in activity protected under this policy. Any retaliation against such individuals is subject to disciplinary or conduct action, including additional interim measures or other sanctions through the appropriate employee or student conduct systems. Reports of retaliation should be directed to the Title IX Coordinator or Deputy Title IX Coordinators, who will then determine the most appropriate course of action.

Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a Title IX grievance process does not constitute retaliation. At the same time, a determination of no findings, alone, is not enough to conclude that any party made a false statement.

Records Retention

Utica University will create and maintain for not less than seven years records documenting all investigations covered under this policy. The records will include all notices, investigatory materials, determinations of responsibility, audio or audiovisual recordings or transcripts of hearings, sanctions imposed on the respondent, remedies provided to the reporting party designed to restore or preserve equal access to the University’s education program or activity, and any informal resolutions or appeals-related materials and documents. Parties may request access to these records pertaining to their own case.

Utica University will also keep for not less than seven years records regarding the response to every report of sexual harassment or sexual misconduct of which it becomes aware, even if no formal complaint was filed, including documentation of any supportive measures offered and implemented. If the University does not provide a party with requested supportive measures, then the University will document the reasons for that decision. In each instance, the University will document the reason for actions taken or not taken, and document that it has taken measures designed to restore or preserve equal access to the University’s education program or activity.

The University will also maintain for not less than seven years records of all materials used to train the Title IX Coordinator, Deputy Title IX Coordinators, investigators, decision makers, and persons responsible for considering appeals. The University will make these training materials publicly available on its website.

Clery Act Compliance and Federal Statistical Reporting Obligations

Certain campus officials have a duty to report incidents of sexual assault, domestic violence, dating violence, and stalking for federal statistical reporting purposes under the Clery Act. All personally identifiable information is kept confidential, but statistical information must be passed along to Director of Student Conduct and Community Standards regarding the type of incident and its general location (on or off-campus, in the surrounding area, but no addresses given) for publication in the University’s Annual Security Report (ASR). This report helps to provide the University community with a clear picture of the extent and nature of campus crime.

In the case of a reported situation reflecting a serious and continuing threat to the University community, the University will issue a timely warning to the University community. In such circumstances, the name of the alleged perpetrator may be disclosed to the community, but the name of the victim/reporting party will not be disclosed.

Transcript Notations

For those crimes of violence that the University is required by federal law to include in its Annual Security Report, the transcripts of students found responsible after a hearing and appeal, if any, shall include the following notation (as applicable):

• Withdrew with conduct charges pending;
• Suspended after a finding of responsibility for a code of conduct violation; or
• Expelled after a finding of responsibility for a code of conduct violation.

A student may request that the University remove a transcript notation for suspension, no earlier than one year after the conclusion of the suspension. The University will review the request and decide, in its sole discretion, whether the notation will be removed. Transcript notations for expulsion shall not be removed.

Delegation of Authority and University Counsel; Use of External Resources

Any University administrator or official responsible for performing a responsibility under this policy may delegate their authority, or the Title IX Coordinator may require reassignment of authority, to any other appropriate University official. Delegation of authority may be necessary to avoid conflicts of interest or where time constraints or other obligations prevent a University official named in this policy from fulfilling the person’s designated role. The University may also utilize appropriately trained external personnel for any role under this policy as it may deem necessary or appropriate. Any University administrator or official functioning under this policy may seek the advice and counsel of the Title IX Coordinator and/or the University’s legal counsel at any time.

Coordination with Other Policies

A particular situation may potentially invoke one or more university policies or processes. The University reserves the right to determine the most applicable policy or process and to utilize that policy or process. Without limiting the foregoing, if determined appropriate by the Title IX Coordinator, the processes described in this policy may be used to respond to, investigate and adjudicate conduct allegedly violating other policies if the alleged conduct is related to or arises out of the same facts, circumstances or incidents as alleged prohibited conduct to be addressed pursuant to this policy.

DISCRETIONARY AUTHORITY; CHANGE IN APPLICABLE LAW

The Title IX Coordinator shall have discretionary authority to construe and interpret this policy, and to determine the meaning of any disputed or uncertain provisions. In the course of any process under this policy, the Title IX Coordinator may make minor modifications to procedures that do not materially jeopardize the fairness owed to any party. The Title IX Coordinator may also vary procedures materially with notice upon determining that changes to law or regulation, or interpretations thereof, require policy or procedural alterations not reflected in this policy. If government laws or regulations change – or court decisions alter – the requirements in a way that impacts this policy, this policy will be construed to comply with the most recent government regulations or holdings.

RESPONSIBILITY:
 
ENFORCEMENT:
 
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