United States: New York State Enacts Campus Sexual Assault Law

On October 5, 2015, New York State's new campus sexual assault law, known as "Enough is Enough," went into effect. This law, signed by Governor Cuomo on July 7, 2015, governs how colleges and universities in New York State handle sexual assault, dating violence and stalking.

Many of the provisions in the new law parallel those in the Campus Sexual Violence Elimination (SaVE) Act and Title IX with some imposing greater requirements. For example, the new law covers more institutions since it applies to "any college or university that is chartered by the regents or incorporated by an act of the state legislature that maintains a campus in New York."

This law significantly expands the obligations of colleges and universities in dealing with sexual assault, both on and off campus, as follows:

Rights of reporting individuals. Institutions must ensure that "reporting individuals are advised of their right[s]" as enumerated under the law. For example, students must have emergency access upon the first instance of disclosure to the Title IX Coordinator or another appropriate official trained in interviewing victims of sexual assault and able to provide information regarding options to proceed, the importance of preserving evidence, and confidentiality and privacy.

  • Protections and accommodations for reporting individuals. Institutions must ensure that reporting individuals are protected from reprisal after making a disclosure of an incident of sexual violence. The law requires that institutions adopt policies and procedures to insulate the reporting individual from the accused by way of a "no contact order."
  • Review rights. Both the complainant and the accused must have the right to request and review any modification of any interim measure or accommodation that affects him or her, including a no contact order.
  • Procedural rights. Institutions must adopt policies and procedures that protect all students' rights in proceedings involving accusations of sexual violence. Institutions must have a procedure for alleged violations by a student that includes: (i) detailed notice to the accused describing the date, time, location and factual allegations concerning the violation, (ii) an opportunity to offer evidence and examine the record, (iii) a right to one level of appeal, and (iv) an opportunity for the complainant to submit an impact statement at the point in the proceeding where the appropriate sanction is being deliberated.
  • Standardized policy for alcohol and drug amnesty. Institutions must adopt the statutes' policy language, ensuring that individuals who report incidents of dating violence, stalking or sexual assault will not be subject to code of conduct action for violations of drug or alcohol policies.
  • Withdrawal rights. Complainants must have the right to withdraw a complaint or involvement in the institution's process at any time.
  • Transcript Documentation. For crimes of violence, including but not limited to sexual violence, institutions are required to make a notation on the transcript of a student found responsible for such conduct that they were suspended or expelled "after a finding of responsibility for a code of conduct violation."
  • Appeals. Institutions are required to have a process for appeals seeking removal of a transcript notation. Under the law, notations of expulsion cannot be removed, and suspension notations cannot be removed for one (1) year after the completion of the suspension. In the event a finding of responsibility is vacated, for any reason, the notation must be removed.
  • Certificate of Compliance. Institutions must file a certificate with the state affirming their compliance with the law no later than July 1, 2016. Failure to do so will result in the school's losing all state "aid or assistance."
  • Campus Survey. At least every other year, institutions must conduct a survey of the student body which assesses, among other things, students' knowledge of school policy and student views on the prevalence of sexual violence on and off campus. (This provision does not go into effect until one year from enactment of the law.)
  • Onboarding and ongoing education. Institutions are required to provide training to first-year and transfer students on topics including sexual and interpersonal violence, the school's policies and procedures, bystander intervention, and risk assessment and reduction.

Annual reporting requirement. Annually, institutions must report aggregate data to the New York State Department of Education regarding complaints, code of conduct proceedings, determinations and sanctions.

The law also requires that institutions revise their policies so as to include specific language, including a definition that sets forth the statute that defines affirmative consent and a standardized student bill of rights. The law also mandates the Department of Education to promulgate regulations.

What This Means to Private Colleges and Universities

Covered institutions must file a certificate of compliance affirming that they have satisfied their obligations under the law by July 1, 2016. Noncompliance by a school will result in their losing state financial aid or assistance. Given the time frame, institutions should take the following proactive steps to ensure compliance with the new requirements:

Begin reviewing their existing policies and procedures and revise such policies to include the requisite language set forth in the statute and satisfy the other requirements under the law.

Train Title IX Coordinators or appropriate personnel to ensure that they handle reports of sexual violence appropriately and in compliance with the law.

Review existing policies and procedures for handling reports of alleged violations to ensure that these policies protect all students' rights in proceedings involving accusations of sexual violence and otherwise satisfy the requirements under the law.

Special thanks to Daniella M. Muller, an associate in the Sexual Assault Investigation and Consulting Group, for her assistance preparing this alert.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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