D'Youville College prohibits its employees (faculty, administrative, support staff and maintenance), and undergraduate and graduate students from engaging in any form of sex discrimination, which includes sexual harassment and sexual assault/violence. This policy provides information regarding the college's prevention and education efforts related to sexual harassment and sexual assault/violence (collectively referred to in this policy as "sexual misconduct"). Should the college become aware of sexual misconduct impacting its employees, undergraduate students or graduate students, the college is committed to promptly and effectively address the situation.
In furtherance of that commitment, this policy explains how the college will proceed once it is made aware of possible sexual misconduct in keeping with our institutional values and to meet our legal obligations under Title IX, the Clery Act, the Violence Against Women Reauthorization Act of 2013, and other applicable law. In all instances in which sexual misconduct is found to have occurred, the college will take appropriate steps to end such conduct, prevent its recurrence and redress its effects.
This policy applies to reports that an employee of D'Youville College or an undergraduate or graduate student ("Impacted Party") is alleged to have been subjected to sexual misconduct by another employee of D'Youville College, a third party (such as a contracted service provider or vendor), or an undergraduate or graduate student ("Respondent") whenever the alleged sexual misconduct occurs:
- On campus, which includes the Main Campus, Dobson field, Main Street Chiropractic Clinic, and any other areas owned or leased by D'Youville College; or
- Off campus, if:
- In connection with a college or college-recognized program or activity; or
- In a manner that may pose an obvious and serious threat of harm to, or that may have the effect of creating a hostile educational or work environment for, any member(s) of the college community.
This policy applies regardless of the sexual orientation or gender identity of the Impacted Party or Respondent.
This policy and process adheres to the aforementioned laws and must be followed if either the impacted party and/or the respondent is a student.
If neither party is a student, other policies may apply and an alternate process under that policy may be followed.
The college strongly encourages the prompt reporting of sexual misconduct. The report may be made by:
- A person covered by this policy who believes they experienced sexual misconduct; or
- A person who has information that sexual misconduct may have been committed by a person covered by this policy.
Reports should be made to either of the two Title IX Coordinators.
To report alleged sexual misconduct by undergraduate or graduate students, contact:
Deborah Owens, Title IX Coordinator
To report alleged sexual misconduct by faculty, administrative staff, academic staff
or third parties, contact:
Linda Moretti, Title IX Coordinator
Any member of the D'Youville College community who believes he or she has been subjected to sexual misconduct is encouraged to report it and may request that an investigation be conducted. Unless an office has been designated as a confidential resource (as described in Section IV(B) below), students should assume that any other college office, official or employee (including Resident Assistants) to which a report is made will share that report with the Title IX Coordinator for review and handling in accordance with this policy. In fact, certain college employees are required by law to do so.
The following college employees with knowledge of unreported sexual misconduct (or what could potentially be deemed sexual misconduct) are considered "responsible employees" who are required to report such alleged sexual misconduct to the Title IX Coordinator: (i) faculty advisors which includes academic advisors and those that advise clubs and organizations, (ii) deans of the college and department chairs, (iii) athletic department staff and team coaches, (iv) the residence life director and staff, (v) the president and President's Council, (vi) all administrators and support staff.
Upon receiving a report of alleged sexual misconduct, the Title IX Coordinator will provide the Impacted Party with information regarding the importance of preserving evidence and, where applicable, the importance of obtaining a sexual assault forensic examination as soon as possible.
Reports to Police/Criminal Investigation. In addition to seeking redress through the college, the Impacted Party is also encouraged to report criminal concerns to the local law enforcement for the jurisdiction where the incident took place. Local law enforcement agencies do not necessarily notify the college when a crime has occurred in their jurisdiction, so the college will not have notice of an incident unless a report is also made to the college. A criminal investigation is separate from a college process and will not be coordinated through the college.
Retaliation Prohibited. Retaliation in connection with any reports of possible sexual misconduct, whether against those who submit a report or otherwise participate in the investigative or disciplinary process (e.g. as a witness) is prohibited. Any retaliatory conduct should be immediately reported to the Title IX Coordinator. Should the college become aware of retaliation of any sort, immediate responsive action will be taken up to and including discharge or expulsion.
College's Obligation to Report Crime and Disciplinary Statistics. A federal law called the Clery Act requires the college to record and report certain information about campus safety, including the number of incidents of certain crimes on or near campus, some of which constitute sexual misconduct under this Policy. As described above, many college employees who receive reports of sexual misconduct are required to make a report to the Title IX Coordinator. In many cases, a notification must then be made to the Vice President for Student Affairs about such incidents for statistical reporting purposes. These notifications may include the classification and location of the reported crime but do not identify the students involved. The Clery Act also requires the college to issue a "timely warning" when it receives a report of certain crimes that pose a serious or continuing threat to the D'Youville College community. Additionally, as a matter of policy, the college will annually release aggregate information concerning reported incidents of sexual misconduct and any resulting sanctions. Such reports do not contain information identifying individual students.
Further, the Family Educational Rights and Privacy Act (FERPA) allows colleges and universities to share information with a student's parents when (a) there is a health or safety emergency, or (b) when the student is a dependent on either parent's prior year federal income tax return. However, in general, the college will not share information about a report of domestic violence, dating violence, stalking, or sexual assault with parents without the permission of the Impacted Party.
Amnesty for Alcohol and/or Drug Use Violations. The health and safety of every student at the college is of utmost importance. The college 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 incidents due to fear of potential consequences for their own conduct. The college strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to college officials. A student who is 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 the college's officials or law enforcement will not be subject to disciplinary action by the college 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.
The college will make reasonable and appropriate efforts to preserve an Impacted Party's and Respondent's privacy and to protect the confidentiality of information. Should an Impacted Party request confidentiality, the Title IX Coordinator will inform the Impacted Party that the college's ability to respond to the alleged sexual misconduct may be limited but that, where feasible, the college will take reasonable steps to prevent sexual misconduct and limit its effects.
The Title IX Coordinator will further inform the Impacted Party that it is not possible to provide confidentiality in all cases and that the college's decision to share information with others is subject to the balancing test described below in Section VII(A). In summary, although the college's goal is to limit the number of individuals who may learn about an allegation of sexual misconduct or an investigation, the college cannot guarantee confidentiality in all matters.
Even college offices and employees who cannot guarantee confidentiality will maintain the Impacted Party's and Respondent's privacy to the greatest extent possible. The information provided to a non-confidential resource will be relayed only as necessary for the Title IX Coordinator to investigate and/or seek a resolution.
There are Confidential Resources at D'Youville College. Discussing allegations of sexual misconduct with a Confidential Resource will not result in a report to the Title IX Coordinator.
Confidential Resources include:
- Personal Counseling Center
Campus location: Marguerite Hall, 1st Floor
- Health Center
Campus Location: Marguerite Hall, 1st Floor
- Campus Ministry
Campus Location: Koessler Administration Building, Room 121
Confidential Resource (off campus):
- Crisis Services
When the college has notice of an allegation of sexual misconduct, a qualified college staff member (such as the Vice Presidents of the college or Title IX Coordinators) may impose interim accommodations or safety measures, which will generally remain in effect throughout the duration of the investigation, any appeal process and beyond should it be deemed necessary.
When a qualified college staff member imposes interim measures, a report of the actions taken should be made to the Title IX Coordinator as soon as possible. Any accommodations or safety measures provided to the Impacted Party will be kept confidential to the extent possible. Interim Measures may include:
- Housing reassignments;
- Course reassignments;
- Alterations to college employment arrangements and/or changing work schedules;
- Alterations of course schedules, assignments or tests;
- No contact directives (such a directive serves as a notice to both parties that they must not have verbal, electronic, written, or third party communication with one another);
- Providing an escort for the Impacted Party to ensure he/she can move safely on campus and/or between college programs and activities;
- Limitation on extracurricular or athletic activities;
- Removal from college community;
- Temporary suspension or revision of college policies or practices;
- Training; and/or
- Other appropriate actions as necessary to stop the sexual misconduct, prevent its recurrence, remedy its effect on the Impacted Party or improve college policies or practices.
Any time that the college has notice of an allegation of sexual misconduct and the Impacted Party or Respondent is a student, a no contact directive will be issued. As part of the no contact directive, the college may establish an appropriate schedule for the Respondent to access college buildings and property at times when such buildings and property are not being accessed by the Impacted Party. Further, under the no contact directive, if the Impacted Party and Respondent observe each other in a public place, it shall be the responsibility of the Respondent to leave the area immediately and without directly contacting the Impacted Party.
Review of Interim Accommodations and Safety Measures. Both the Respondent and the Impacted Party may request prompt review, reasonable under the circumstances, of the need for and terms of any interim accommodation or safety measure, including potential modification, and shall be allowed to submit evidence in support of his or her request.
Even if the college decides not to confront the Respondent because of the Impacted Party's request for confidentiality, the college may pursue other reasonable steps to limit the effects of the alleged sexual misconduct and prevent its recurrence as reasonable in light of the Impacted Party's request for confidentiality.
Further, if an Impacted Party decides not to report an allegation of sexual misconduct to the college but, instead, only discloses such allegation to a Confidential Resource (listed above), such Confidential Resource may request that interim accommodations or safety measures be imposed without disclosing any details to the college that the Impacted Party wishes to keep confidential. The extent to which the college is able to impose interim accommodations or safety measures may be limited by the amount and content of the information disclosed by the Confidential Resource to the college.
Assistance in Obtaining Order of Protection. The Impacted Party has the right to seek an Order of Protection from the local law enforcement agency. Upon request, D'Youville Campus Security will provide assistance in obtaining an Order of Protection from local law enforcement. If the college receives an Order of Protection or its equivalent that concerns the Impacted Party and/or Respondent, then a copy will be provided to the Impacted Party and/or Respondent. The Impacted Party and/or Respondent may then meet or speak with the Director of Campus Security who can explain the order and answer questions about it, including information from the order about the Respondent's responsibility to stay away from the Impacted Party (or other protected person), and explain the consequences for violating the order, including but not limited to arrest, additional conduct charges, and interim suspension. The Impacted Party (or other protected individual) may seek the assistance of Campus Security in effecting an arrest when the Respondent violates an Order of Protection through local police agencies.
Members of the D'Youville College community have an option to resolve concerns of sexual misconduct informally, without an investigation, with the assistance of the Title IX Coordinator.
One informal resolution method is mediation. The primary objective of mediation is to permit the parties to resolve the dispute on their own, quickly and confidentially. Both the Impacted Party and the Respondent must agree to mediation. At any stage during or upon the conclusion of the mediation process, either party may decide to proceed by formal investigation. The Title IX Coordinator will oversee the mediation process.
Please note that, in cases involving allegations of Sexual Violence, as defined in the Section XI, "Definitions" below, mediation is not appropriate, even on a voluntary basis, and will not be used to resolve sexual violence complaints.
- Decision to Proceed with Investigation.
Before beginning an investigation, the Title IX Coordinator will request consent from the Impacted Party to disclose his/her identity and proceed with an investigation. The Impacted Party may withdraw a complaint or cease involvement in the investigation process at any time.
If the Impacted Party is willing to participate in the investigation process, the college will proceed in accordance with the "Investigation Process" described below.
An investigation may still go forward even if the Impacted Party requests confidentiality and/or requests that the college not proceed with an investigation, if appropriate, subject to the balancing test provided by the Department of Education, Office for Civil Rights' April 4, 2011 Dear Colleague Letter and an analysis of the factors set forth in the New York State Education Law. According to those sources, the factors to be analyzed and balanced include:
- The seriousness of the alleged sexual misconduct;
- Whether the alleged sexual misconduct represents escalation in unlawful conduct on behalf of the Respondent from previously noted behavior
- The increased risk that the Respondent will commit additional acts of violence;
- Whether the Respondent is alleged to have used a weapon or force;
- The Impacted Party's age (and whether the Impacted Party is a minor);
- Whether the Respondent has a history of violent behavior or is a repeat offender;
- Whether there have been other sexual misconduct complaints about the same individual;
- Whether the college possesses other means to obtain evidence such as security footage, and whether available information reveals a pattern of perpetration at a given location or by a particular group; and
- The Respondent's rights to receive information about the allegations if the information is maintained by the school as an "education record" under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 C.F.R. Part 99.
- Time Frame of Investigation and Sanctions.
An investigation conducted pursuant to this policy, the investigator's preparation of his/her initial report and recommendation, the Review Committee's written determination, and the imposition of sanctions should normally be completed within 60 calendar days after the college has notice of an allegation of sexual misconduct. The Title IX Coordinator, his/her designee, or the Review Committee may extend this time frame for good cause, including college breaks. If the time frame is extended, notice of the extension and the reasons for such extension will be provided to the Impacted Party and Respondent.
- Impact of Criminal Investigation.
Where the Impacted Party has also reported the sexual misconduct to local law enforcement, resulting in the commencement of a criminal investigation, the college will not wait for the conclusion of a criminal investigation or criminal proceeding to begin its own investigation. While the college may need to delay temporarily the fact-finding portion of its investigation under this policy while law enforcement is gathering evidence, the college will still take any necessary interim accommodation and safety measures, as described above. The college will promptly resume and complete its investigation once it learns that the local law enforcement has completed its evidence gathering stage of the criminal investigation. Typically, delays will not last more than 10 days. During any delay in the college's investigation process caused by a criminal investigation, the college will update the parties on the status of its investigation and inform the parties when the college resumes its investigation pursuant to this policy.
- Investigation Process.
- Assigning an Investigator
When a determination is made to proceed with an investigation pursuant to this policy, the Title IX Coordinator will investigate or will assign an investigator or investigators. The Title IX Coordinator can delegate all or part of his or her responsibilities under this policy. At any point during this process, the investigator may, in his/her discretion, be accompanied by a qualified individual to assist in the documentation of the investigation.
- Standard of Review
This investigation procedure will determine findings of fact using the "preponderance of the evidence" standard (i.e., it is more likely than not that sexual misconduct occurred). The criminal justice process utilizes different standards of proof and evidence than this investigation procedure. Any questions about whether a specific incident violated the penal law should be addressed to law enforcement or the district attorney.
All D'Youville College faculty, staff, students, community members, and third parties (including contracted service providers and vendors) are expected to cooperate in the investigation process. As early as possible in this investigation process, the investigator will direct the Impacted Party, Respondent, witnesses, and other involved individuals to preserve any relevant evidence.
- Notice of Investigation
At the outset of the investigation, the investigator will advise the Respondent in writing of the factual allegations against him or her ("Notice of Investigation"). A copy of this Notice of Investigation will also be provided to the Impacted Party. Both the Respondent and the Impacted party will have an opportunity to respond to the Notice of Investigation in writing at any time during the investigation as set forth Section VII(D)(6), below.
- Method of Notification
Notification and/or delivery to the Impacted Party or Respondent, whether during this Investigation Process or at any other stage of a case being handled pursuant to this Policy, shall be by personal delivery or registered mail or, if agreed upon by all parties, by electronic mail or facsimile.
- Fact Finding
In most cases, the investigation will involve conducting a thorough fact-finding investigation, which includes meeting separately with the Impacted Party (if participating), Respondent, individual who reported the sexual misconduct (if different than the Impacted Party) and pertinent witnesses, and reviewing other relevant information. Occasionally, a different or less formal response to the report may be warranted (see, for example, Section VI regarding Informal Resolution). At any time during the course of an investigation, the Impacted Party, Respondent, or any witnesses may provide a written statement, other supporting materials, or identify other potential witnesses or relevant documentary evidence, regarding the matter under review. All proceedings will be documented and filed in the Office of the Vice President of Student Affairs or Human Resources Office for a minimum of six years.
- Evidentiary Determinations
The investigator has broad discretion in determining whether an offered witness or documentary evidence would be relevant or helpful to a determination. For example, some reasons an investigator might decline to speak to an offered witness include: there is not a sufficient basis to believe the person could have information relevant to the factual determination; the information to be solicited would be repetitive; and confidentiality concerns outweigh the importance of the information. Similarly, some reasons that an investigator might decline to seek or review documentary evidence include: the college does not have the expertise to consider scientific evidence; the information is repetitive; and confidentiality concerns outweigh the importance of the information.
- Right to Exclude Certain Evidence.
The Impacted Party has the right to exclude his/her own prior sexual history with persons other than the Respondent from consideration by the investigator. The Respondent likewise has the right to exclude his/her own prior sexual history with persons other than the Impacted Party from consideration by the investigator. The parties also have the right to exclude their own mental health diagnosis or treatment from consideration by the investigator.
- Support Persons
The Impacted Party and Respondent may have a support person accompany him or her through the process. A support person may not speak for the Impacted Party or Respondent, present evidence or question witnesses. The Impacted Party and Respondent are responsible for presenting evidence on their own behalf. Support persons may speak privately to their advisee during the investigation process. Either party may request a recess from an investigatory meeting to consult with their support person which will be granted at the discretion of the Title IX Coordinator or his/her designee.
- Investigation Outcome.
In most cases, within 45 calendar days after the college has notice of an allegation of sexual misconduct, the Title IX Coordinator or his/her designee will prepare a written report and recommendation at the conclusion of an investigation. The Investigator's written report and recommendation will generally contain, at a minimum:
- a summary of the investigation;
- the Investigator's findings, including a recommendation concerning whether the Respondent should be found responsible for the alleged sexual misconduct;
- a summary of the Investigator's rationale in support of the findings; and
- if applicable, a recommendation regarding any actions the college will take to provide accommodations to the Impacted Party or safety measure(s) for the college community, which include those measures listed in the "Interim Measures" Section above.
- Assigning an Investigator
- Review Committee.
- Review of Investigator's Report and Recommendation
At the conclusion of the investigation process described in Section VII, the investigator's written report and recommendation will be provided and presented to a Review Committee. A list of potential Review Committee members will be provided to the parties by the investigator. The impacted party and the respondent shall each have the right to disqualify one member without cause. The parties must notify the Title IX Coordinator in writing within 3 calendar days of their decision to disqualify a member. The Review Committee will consist of a chair and three members. The Assistant Vice President for Student Affairs shall be the chair of the Committee. From a designated and appropriately-trained group of full-time members of college administration, faculty, and/or staff who were not disqualified by a party, the Assistant Vice President for Student Affairs shall select three individuals to serve on the Review Committee for a particular matter. Any individual selected to serve on the Review Committee shall disqualify himself/herself in the event of personal bias.
The Review Committee shall review the investigator's report and recommendation to determine if the investigation was sufficiently thorough, fair, and devoid of procedural irregularities. During this review period the Committee may ask questions of the Title IX Coordinator for clarification and factual understanding of the report and recommendation. If a majority of the Review Committee members (not including the chair) determines that there are additional matters that should be investigated or that significant procedural irregularities occurred, the Review Committee shall remand the case to the investigator with instructions for further investigation, consistent with the above investigation process. Following any such further investigation, the investigator shall prepare an amended written report and recommendation for the Review Committee's consideration.
Once a majority of the Review Committee members is satisfied with the investigation, the Review Committee shall deliberate in private and shall issue a written determination setting forth the decision reached by a majority of its members (not including the chair) with respect to (a) whether the Respondent is responsible for the alleged sexual misconduct and (b) if applicable, any actions the college will take to provide accommodations to the Impacted Party or safety measure(s) for the college community, which include those measures listed in the "Interim Measures" Section above. Any accommodations or safety measures provided to the Impacted Party will be kept confidential to the extent possible. The Review Committee has full discretion to adopt, modify or reject the investigator's recommendation except for the interim accommodations and safety measures that were imposed by the investigator. The interim accommodations and safety measures imposed by the investigator will remain in place throughout the duration of the process, any appeal process and beyond should it be deemed necessary.
- Notice of Determination.
The Review Committee's written determination following investigation (including its findings of fact) will be provided simultaneously to the Impacted Party and the Respondent. Information regarding any individualized accommodations or safety measures offered or provided to the Impacted Party will not be included in the copy of the Review Committee's written determination that is provided to the Respondent. The college neither encourages nor discourages the subsequent disclosure or sharing of the Review Committee's determinations by either the Impacted Party or the Respondent.
If an Impacted Party has chosen not to participate in the college's review of the sexual misconduct report but desires to be notified of the outcome, the college will notify the Impacted Party. If an Impacted Party has expressed a desire, in writing, not to be notified of the outcome, the college will honor that decision. In such cases, the college will not send the notification itself to the Impacted Party, but may proceed with any necessary accommodations and/or safety measures and may need to provide notification of those accommodations and/or safety measures, if appropriate.
If, after investigation, the Review Committee finds the Respondent responsible for sexual misconduct, then the Review Committee will reconvene on a later date to determine the appropriate sanctions to be imposed by the college. Advance written notice will be provided to the Impacted Party and the Respondent setting forth the date on which the Review Committee will meet to determine appropriate sanctions. This notice will also advise the Impacted Party and Respondent of their right to submit a written impact statement for the Review Committee to consider when determining the appropriate sanctions.
The Review Committee is solely responsible for determining the appropriate sanctions to be imposed by the college to address the misconduct, prevent its recurrence, and remedy its effects, while supporting the college's educational mission and Title IX obligations. Sanctions may also serve to promote safety or deter students or employees from similar future behavior. A majority of Review Committee members (not including the chair) must agree upon the appropriate sanctions.
In determining the appropriate sanctions, the Review Committee will consider the content of the investigation report, any impact statement(s) submitted by the parties, and consult with appropriate college officials. Further, at this stage of the proceedings, the Review Committee may consider past findings of domestic violence, dating violence, stalking or sexual assault concerning the Respondent.
Possible sanctions include:
- Termination from college employment
- Mandatory leave of absence
- Community service
- Housing reassignment
- Removal from student housing or otherwise restricting access to college facilities or activities
- Transcript notification
- Notice of Sanctions.
Notice of the Review Committee's determination regarding sanctions (if applicable) will be provided simultaneously to the Impacted Party and the Respondent. Information regarding any individualized accommodations or safety measures offered or provided to the Impacted Party will not be included in the copy of any notice that is provided to the Respondent. The college neither encourages nor discourages the subsequent disclosure or sharing of the Review Committee's determination regarding sanctions by either the Impacted Party or the Respondent.
If an Impacted Party has chosen not to participate in the college's review of the sexual misconduct report but desires to be notified of the outcome, the college will notify the Impacted Party of the determination regarding sanctions. If an Impacted Party has expressed a desire, in writing, not to be notified of the outcome, the college will honor that decision. In such cases, the college will not send the notification itself to the Impacted Party, but may proceed with any necessary accommodations and/or safety measures and may need to provide notification of those accommodations and/or safety measures, if appropriate.
- Review of Investigator's Report and Recommendation
If the Impacted Party or the Respondent is dissatisfied with final determinations made under this policy, whether it is the results of the investigation, the sanction determination or the interim accommodations and safety measures, then that person may file an appeal with an Appeal Panel. Upon the filing of an appeal, a list of potential Appeal Panel members will be provided to the parties by the Title IX Coordinator. The Impacted Party and the Respondent shall each have the right to disqualify one member without cause. The parties must notify the Title IX Coordinator in writing within 3 calendar days of their decision to disqualify a member. The Appeal Panel will consist of a chair and three members. The Vice President for Student Affairs. shall be the chair of the Panel. From a designated and appropriately-trained group of full-time members of college administration, faculty, and/or staff who were not disqualified by a party, the Vice President for Student Affairs shall select three individuals to serve on the Appeal Panel for a particular matter. Any individual selected to serve on the Appeal Panel shall disqualify himself/herself in the event of personal bias.
Subject to any longer period of time set by applicable law, regulation, or contract (including any Collective Bargaining Agreement), an appeal under this policy must be submitted within 14 calendar days of the appealing party's receipt of the Review Committee's written determination following investigation or notice of the sanction determination, whichever is later. If there are extenuating circumstances which make it unreasonable for the appeal to be hand delivered, the appealing party may email the appeal letter within the timeframe required.
The investigator's report and the investigation files will be made available for review by the Impacted Party and/or the Respondent during the 14-day time period for appeal. If a party wishes to review the investigator's report and/or the investigation files, he/she must contact the Title IX Coordinator to schedule a time and place for him/her to do so.
The appeal must, at a minimum, consist of a written statement describing the grounds for the appeal and the remedy sought. The appealing party may also submit an impact statement to support any appeal concerning sanctions.
The grounds for the appeal will usually be limited to the following:
- There is new and compelling evidence that was not available at the time of the initial investigation that could significantly impact the outcome of the case.
- There were procedural irregularities that substantially affected the outcome of the case to the detriment of the Impacted Party or the Respondent.
- Given the proper facts, criteria and procedures, the decision was not one that a person in the position of the decision-maker might reasonably have made.
- The sanction is substantially disproportionate to the factual findings.
The Appeal Panel's written decision regarding the appeal will be provided to the Impacted Party and Respondent within 20 calendar days following the submission of the written appeal statement. The Appeal Panel's decision is final.
Should this appeal process conflict with any applicable law, regulation, or contract, including any collective bargaining agreement, the provisions of the law, regulation, or contract shall govern.
Whether or not an Impacted Party chooses to make an official report of Prohibited Conduct, he or she is urged to seek appropriate help. There are numerous resources for those impacted by sexual misconduct. Specific resources, either on or off campus, for safety and law enforcement, medical treatment, legal evidence collection, and obtaining information, support and counseling are listed below. Each resource can assist a person to access the full range of services available. Please note that college confidential resources are noted in parenthetical form following a resource.
- D'Youville Campus Security and Law Enforcement
- For emergency security and police services, call 911 or seek a Red (interior) or Blue (exterior) Emergency Phone on campus.
- Buffalo Police Department, 716-851-4444.
- D'Youville Campus Security, 716-829-7551.
- Medical Treatment — an individual who has been sexually assaulted is urged to seek appropriate medical
evaluation as promptly as possible.
- For life-threatening conditions and other emergency medical services, call 911 or seek a Red (interior) or Blue (exterior) Emergency Phone on campus. Individuals may also go to the nearest hospital emergency department.
- Erie County Medical Center, 716-898-3000.
- D'Youville College Health Center, 716-829-8777 (Confidential Resource) FREE
- Buffalo General Hospital, 716-859-5600 FREE
- Medical-Legal Evidence Collection — — an individual who has been sexually assaulted is encouraged to request collection
of medical-legal evidence. Prompt collection of physical evidence is essential should
a person later decide to pursue criminal prosecution and/or a civil action.
Federal law provides free medical-legal exams to victims of sexual assault. For assistance in seeking such an exam, contact: Crisis Services, 716-834-3131. FREE
- Obtaining Information, Support and Counseling — whether one chooses to make an official report, an individual who has suffered
an act of sexual misconduct or sexual assault is encouraged to obtain information,
support and counseling. Counselors at a variety of agencies, both on and off campus,
can help that person decide what steps to take, such as seeking medical attention,
preserving evidence, obtaining counseling or reporting to authorities.
Information, support and advice are available (see resources below) for anyone in the D'Youville College community who wishes to discuss issues related to sexual misconduct or sexual assault, whether sexual misconduct or sexual assault has actually occurred and whether the person seeking information has been assaulted, has been accused of sexual misconduct or sexual assault, or is a third party.
The degree to which confidentiality can be protected depends upon the professional role of the person being consulted and should be addressed with that person before specific facts are disclosed, if possible (see Section IV, Confidentiality & Confidential Resources).
- Personal Counseling Center, 716-829-7819. (Confidential Resource)
- Campus Ministry, 716-829-7672. (Confidential Resource)
- Deborah Owens, Title IX Coordinator, 716-829-8198.
- Linda Moretti, Title IX Coordinator, 716-829-7811.
- Nicole Conroe, Director, Health Center, 716-829-8777 FREE
- Buffalo Police Sex Offense Squad, 716-851-4494.
- Erie County Sheriff/Department of Family Offenses, 716-858-6102.
- Erie County District Attorney/CARR Unit, 716-858-2525.
- Crisis Services, 716-834-3131 FREE
For purposes of this policy, the following terms have the definitions provided below. Please note that some of these terms may also be used in other contexts, such as in connection with concurrent legal proceedings, and that they may have different meanings in those contexts.
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) is a federal law that requires the University to record and report certain information about campus safety, including the number of incidents of certain crimes on or near campus, some of which constitute sexual misconduct under this Policy.
Consent to sexual activity must be affirmative consent.
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 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.
Consent may be initially given but withdrawn at any time. When consent is withdrawn or can no longer be given, sexual activity must stop.
A D'Youville College undergraduate or graduate student or an employee of D'Youville College who has reportedly been subjected to sexual misconduct by a D'Youville College undergraduate or graduate student or an employee of D'Youville College or a third party (including contracted service providers and vendors).
Lacking the physical and/or mental ability to make informed, rational judgments. This may have a variety of causes, including, but not limited to, being asleep or unconscious, having consumed alcohol or taken drugs, or experiencing blackouts or flashbacks.
A D'Youville College undergraduate or graduate student or an employee of D'Youville College or a third party (including contracted service providers and vendors) who is reported to have engaged in sexual misconduct.
To seek revenge, reprisal, or injury to an individual or group who has exercised the right to file a written complaint or make an oral or written report of prohibited discrimination, and/or protected-status (including sexual) harassment, sexual assault or violence, or has participated in an investigation into allegations of such activity, or has opposed discriminatory or sexual harassing conduct, including sexual violence or assault.
Term used to encompass unwanted or unwelcome conduct of a sexual nature that is committed without valid consent, including sexual assault, sexual violence, and sexual harassment. Sexual misconduct may occur between people of the same sex or between people of different sexes. Sexual misconduct can include both intentional conduct and conduct that results in negative effects, even if those negative effects were unintended. Sexual misconduct may include the following:
- Sexual Assault
Actual, attempted or threatened unwanted sexual act, whether by an acquaintance or by a stranger, accomplished (1) against a person's will by means of force (express or implied), violence, duress, menace, fear or fraud, or (2) when a person is incapacitated or unaware of the nature of the act, due to unconsciousness, sleep and/or intoxicating substances.
- Sexual Violence
Physical acts perpetrated without consent or when a person is incapable of giving consent. A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.
- Sexual Harassment
Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal/non-verbal or physical conduct of a sexual nature such as sexual assault or acts of sexual violence. Sexual harassment is also a form of sex discrimination, which is illegal, under the New York State Human Rights Law, as well as under Title VII of the Civil Rights Act of 1964, as it relates to employees and under Title IX of the Education Amendments of 1972, as it relates to students.
Sexual harassment may be described as unwelcome sexual advances, requests for sexual favors, or other physical or expressible behavior of a sexual nature where:
- Submission to such conduct is made explicitly or implicitly a term or condition of an individual's employment or education.
- Submission to or rejection of such conduct by an individual is used as the basis for academic or employment decisions affecting an individual; or
- Such conduct has the purpose or effect of substantially interfering with an individual's academic or professional performance, or creates an intimidating hostile or offensive work or academic environment even if the person engaging in the conduct does not intend to interfere, intimidate or be hostile or offensive.
This includes, but is not limited to, sexual joking or innuendo, the use of sexually-explicit language or the display of sexually-oriented jokes, posters or other material on bulletin boards, in offices, carrels and work areas
Examples of sexual harassment may include, but are not limited to, the following: unwanted sexual statements (including sexual joking or innuendo or sexually-explicit language); the display of sexually-oriented jokes, posters or other material on bulletin boards, in offices, carrels and work areas; unwanted personal attention (including stalking and cyber-stalking); unwanted physical or sexual advances that would constitute sexual assault, as defined in this policy; electronically recording, photographing, or transmitting intimate or sexual utterances, sounds, or images without the knowledge and consent of all parties involved; touching oneself sexually for others to view; and voyeurism (spying on others who are in intimate or sexual situations).
Conduct reported as sexual harassment will be evaluated by considering the totality of the particular circumstances, including the nature, frequency, intensity, location, context, and duration of the questioned behavior. Although repeated incidents generally create a stronger claim of sexual harassment, a serious incident, even if isolated, can be sufficient. For example, a single instance of sexual assault can constitute sexual harassment.
- Gender-Based Harassment
Unwelcome conduct of a nonsexual nature based on a person's actual or perceived sex, including conduct based on gender identity, gender expression, and nonconformity with gender stereotypes.
Unwanted or obsessive attention by an individual or group toward another person. Stalking behaviors may be related to sexual harassment and intimidation and may include following the victim in person or monitoring him or her, including use of social media or other technology.
- Domestic Violence
A felony or misdemeanor crime of violence committed (a) by a current or former spouse or intimate partner of the victim; (b) by a person with whom the victim shares a child in common; (c) by a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner; (d) by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or (e) by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
- Dating Violence
Violence committed by a person who is or had been in a social relationship of a romantic or intimate nature with the victim. (i) The existence of such a relationship shall be determined based on the reporting party's statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
- Includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
- Dating violence does not include acts covered under the definition of domestic violence.
An individual or individuals chosen by an Impacted Party or Respondent to provide support during the investigation of a report of possible sexual misconduct under this policy. The person(s) chosen may not already be directly involved in the investigative process (for example, as an Impacted Party, Respondent, or witness).
Title IX of the Education Amendments of 1972 (Title IX) (20 U.S.C. § 1681 et seq.; 34 C.F.R. Part 106) (as amended) is a federal law that prohibits sex-based discrimination, including sexual harassment and sexual assault, in education programs that receive federal financial assistance.
Title IX Coordinator
The college official charged with ensuring the college's overall compliance with Title IX and related college policy.
Updated: October 23, 2015