S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9693
 
                           I N  A S S E M B L Y
 
                             February 4, 2020
                                ___________
 
 Introduced  by M. of A. FRONTUS -- read once and referred to the Commit-
   tee on Higher Education
 
 AN ACT to amend the education law,  in  relation  to  implementation  of
   sexual  harassment  prevention and response policies and procedures by
   colleges and universities
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1. The article heading of article 129-B of the education law,
 as added by chapter 76 of the laws  of  2015,  is  amended  to  read  as
 follows:
   IMPLEMENTATION  BY COLLEGES AND UNIVERSITIES OF SEXUAL ASSAULT, DATING
 VIOLENCE, DOMESTIC VIOLENCE, SEXUAL HARASSMENT AND  STALKING  PREVENTION
 AND RESPONSE POLICIES AND PROCEDURES
   §  2. Subdivision 11 of section 6439 of the education law, as added by
 chapter 76 of the laws of 2015, is amended to read as follows:
   11.  "Domestic  violence",  "dating  violence",  "stalking",   "SEXUAL
 HARASSMENT" and "sexual assault" shall be defined by each institution in
 its code of conduct in a manner consistent with applicable federal defi-
 nitions.
   §  3.  Subdivision 1 of section 6442 of the education law, as added by
 chapter 76 of the laws of 2015, is amended to read as follows:
   1. Every institution shall adopt and implement the following policy as
 part of its code of conduct: "The health and safety of every student  at
 the {Institution} is of utmost importance. {Institution} 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, SEXUAL HARASS-
 MENT or sexual assault occurs may be hesitant to report  such  incidents
 due   to   fear   of  potential  consequences  for  their  own  conduct.
 {Institution} strongly encourages students to report domestic  violence,
 dating violence, stalking, SEXUAL HARASSMENT or sexual assault to insti-
 tution  officials. A bystander acting in good faith or a reporting indi-
 vidual acting in good faith that  discloses  any  incident  of  domestic
 violence, dating violence, stalking, SEXUAL HARASSMENT or sexual assault
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD14181-01-9

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 to  {Institution's}  officials or law enforcement will not be subject to
 {Institution's} code of conduct action for violations of alcohol  and/or
 drug use policies occurring at or near the time of the commission of the
 domestic violence, dating violence, stalking, SEXUAL HARASSMENT or sexu-
 al assault."
   §  4.  Subdivision 2 of section 6443 of the education law, as added by
 chapter 76 of the laws of 2015, is amended to read as follows:
   2. Have disclosures of domestic violence, dating  violence,  stalking,
 SEXUAL HARASSMENT and sexual assault treated seriously;
   §  5.  Paragraph f of subdivision 1 and paragraphs b and c of subdivi-
 sion 5 of section 6444 of the educational law, as added by chapter 76 of
 the laws of 2015, are amended to read as follows:
   f.  File  a  report  of  sexual  assault,  domestic  violence,  dating
 violence, SEXUAL HARASSMENT and/or stalking and the right to consult the
 Title  IX  Coordinator and other appropriate institution representatives
 for information and assistance. Reports shall be investigated in accord-
 ance with institution policy and a reporting individual's identity shall
 remain private at all times if said reporting individual wishes to main-
 tain privacy;
   b. The right to a process in all student judicial  or  conduct  cases,
 where  a student is accused of sexual assault, domestic violence, dating
 violence, stalking, SEXUAL HARASSMENT or sexual activity that may other-
 wise violate the institution's code of  conduct,  that  includes,  at  a
 minimum:  (i) notice to a respondent describing the date, time, location
 and factual allegations concerning the violation,  a  reference  to  the
 specific  code  of conduct provisions alleged to have been violated, and
 possible sanctions; (ii) an opportunity  to  offer  evidence  during  an
 investigation, and to present evidence and testimony at a hearing, where
 appropriate, and have access to a full and fair record of any such hear-
 ing,  which  shall  be  preserved and maintained for at least five years
 from such a hearing and may include a  transcript,  recording  or  other
 appropriate  record; and (iii) access to at least one level of appeal of
 a determination before a panel, which may include one or more  students,
 that  is  fair  and  impartial  and  does not include individuals with a
 conflict of interest. In order to effectuate an appeal, a respondent and
 reporting individual in such cases shall receive written notice  of  the
 findings  of fact, the decision and the sanction, if any, as well as the
 rationale for the decision and  sanction.  In  such  cases,  any  rights
 provided  to  a  reporting  individual  must  be similarly provided to a
 respondent and any rights provided to a  respondent  must  be  similarly
 provided to a reporting individual.
   c.  Throughout  proceedings  involving  such  an  accusation of sexual
 assault, domestic violence, dating violence, stalking, SEXUAL HARASSMENT
 or sexual activity that may otherwise violate the institution's code  of
 conduct, the right:
   i.  For the respondent, accused, and reporting individual to be accom-
 panied by an advisor of choice who may assist  and  advise  a  reporting
 individual,  accused,  or  respondent throughout the judicial or conduct
 process including during all meetings and hearings related to such proc-
 ess. Rules for participation of such advisor shall be established in the
 code of conduct.
   ii. To a prompt response to any complaint and to  have  the  complaint
 investigated  and  adjudicated  in  an  impartial,  timely, and thorough
 manner by individuals who receive annual training in conducting investi-
 gations of sexual violence, the effects  of  trauma,  impartiality,  the
 rights  of the respondent, including the right to a presumption that the

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 respondent is "not responsible" until a  finding  of  responsibility  is
 made  pursuant  to  the provisions of this article and the institution's
 policies and procedures, and other issues including, but not limited  to
 domestic violence, dating violence, stalking, SEXUAL HARASSMENT or sexu-
 al assault.
   iii.  To  an  investigation  and  process  that is fair, impartial and
 provides a meaningful opportunity to be heard, and that is not conducted
 by individuals with a conflict of interest.
   iv. To have the institution's judicial or conduct process run  concur-
 rently  with a criminal justice investigation and proceeding, except for
 temporary delays as requested by external municipal entities  while  law
 enforcement gathers evidence. Temporary delays should not last more than
 ten days except when law enforcement specifically requests and justifies
 a longer delay.
   v.  To  review  and  present  available  evidence in the case file, or
 otherwise in the possession or control of the institution, and  relevant
 to  the  conduct  case,  consistent with institution policies and proce-
 dures.
   vi. To exclude their own prior sexual history with persons other  than
 the  other  party in the judicial or conduct process or their own mental
 health diagnosis and/or treatment from  admittance  in  the  institution
 disciplinary  stage  that  determines  responsibility.  Past findings of
 domestic violence, dating violence, stalking, SEXUAL HARASSMENT or sexu-
 al assault may be admissible in the disciplinary stage  that  determines
 sanction.
   vii.  To  receive  written  or  electronic notice, provided in advance
 pursuant to the college or university policy and  reasonable  under  the
 circumstances,  of  any  meeting they are required to or are eligible to
 attend, of the specific  rule,  rules  or  laws  alleged  to  have  been
 violated  and  in what manner, and the sanction or sanctions that may be
 imposed on the respondent based upon the  outcome  of  the  judicial  or
 conduct  process,  at which time the designated hearing or investigatory
 officer or panel shall provide a written statement detailing the factual
 findings supporting the determination and the rationale for the sanction
 imposed.
   viii. To make an impact statement during the point of  the  proceeding
 where the decision maker is deliberating on appropriate sanctions.
   ix.  To simultaneous (among the parties) written or electronic notifi-
 cation of the outcome of a judicial or conduct  process,  including  the
 sanction or sanctions.
   x.  To be informed of the sanction or sanctions that may be imposed on
 the respondent based upon the outcome of the judicial or conduct process
 and the rationale for the actual sanction imposed.
   xi. To choose whether to disclose or discuss the outcome of a  conduct
 or judicial process.
   xii. To have all information obtained during the course of the conduct
 or  judicial  process be protected from public release until the appeals
 panel makes a final determination unless otherwise required by law.
   § 6. Paragraphs c and e of subdivision 2 of section 6445 of the educa-
 tion law, as added by chapter 76 of the laws of  2015,  are  amended  to
 read as follows:
   c.  how and where to report domestic violence, dating violence, stalk-
 ing, SEXUAL HARASSMENT or  sexual  assault  as  a  victim,  survivor  or
 witness;

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   e.  the  prevalence  of  victimization  and  perpetration  of domestic
 violence, dating violence, stalking, SEXUAL HARASSMENT or sexual assault
 on and off campus during a set time period;
   §  7.  Paragraphs  a, b, d and g of subdivision 1 and subdivision 2 of
 section 6446 of the education law, as added by chapter 76 of the laws of
 2015, are amended to read as follows:
   a. Information regarding privileged and  confidential  resources  they
 may  contact  regarding  domestic  violence,  dating violence, stalking,
 SEXUAL HARASSMENT or sexual assault;
   b. Information about counselors and advocates they may contact regard-
 ing domestic violence, dating violence, stalking, SEXUAL  HARASSMENT  or
 sexual assault;
   d.  Information  about  how  the institution shall weigh a request for
 confidentiality and respond to such a request. Such  information  shall,
 at  a minimum, include that if a reporting individual discloses an inci-
 dent to an institution employee who is responsible for responding to  or
 reporting  domestic  violence, dating violence, stalking, SEXUAL HARASS-
 MENT or sexual assault but wishes to maintain  confidentiality  or  does
 not  consent  to the institution's request to initiate an investigation,
 the Title IX Coordinator must  weigh  the  request  against  the  insti-
 tution's  obligation  to  provide a safe, non-discriminatory environment
 for all members of its community.  The  institution  shall  assist  with
 academic,  housing, transportation, employment, and other reasonable and
 available accommodations regardless of reporting choices;
   g. Information regarding institutional crime reporting including,  but
 not  limited  to:  reports  of  certain  crimes  occurring  in  specific
 geographic locations that shall be included in the institution's  annual
 security  report  pursuant  to  the  Clery Act, 20 U.S.C. 1092(f), in an
 anonymized manner that identifies neither the specifics of the crime nor
 the identity of the reporting individual; that the institution is  obli-
 gated  to  issue  timely  warnings of crimes enumerated in the Clery Act
 occurring within relevant geography that represent a serious or continu-
 ing threat to students and  employees,  except  in  those  circumstances
 where  issuing  such  a  warning  may compromise current law enforcement
 efforts or when  the  warning  itself  could  potentially  identify  the
 reporting  individual;  that a reporting individual shall not be identi-
 fied in a timely warning; that the Family Educational Rights and Privacy
 Act, 20 U.S.C. 1232g, allows  institutions  to  share  information  with
 parents  when  i. there is a health or safety emergency, or ii. when the
 student is a dependent on either parent's prior year federal income  tax
 return;  and that generally, the institution shall not share information
 about a report of domestic violence, dating violence,  stalking,  SEXUAL
 HARASSMENT  or sexual assault with parents without the permission of the
 reporting individual.
   2. The institution may take  proactive  steps,  such  as  training  or
 awareness  efforts, to combat domestic violence, dating violence, stalk-
 ing, SEXUAL HARASSMENT or sexual assault in a general way that does  not
 identify those who disclose or the information disclosed.
   §  8.  Subdivision 1, paragraphs b and d of subdivision 2 and subdivi-
 sions 4, 5 and 6 of section 6447 of the education law, as added by chap-
 ter 76 of the laws of 2015, are amended to read as follows:
   1. Every institution shall adopt a  comprehensive  student  onboarding
 and  ongoing  education campaign to educate members of the institution's
 community about domestic violence,  dating  violence,  stalking,  SEXUAL
 HARASSMENT  and  sexual  assault,  in compliance with applicable federal

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 laws, including the Clery Act as amended by the Violence  Against  Women
 Act reauthorization of 2013, 20 U.S.C. 1092(f).
   b. Relevant definitions including, but not limited to, the definitions
 of  sexual assault, domestic violence, dating violence, stalking, SEXUAL
 HARASSMENT, confidentiality, privacy, and consent;
   d. The role of the Title IX Coordinator, university police  or  campus
 security,  and  other  relevant  offices that address domestic violence,
 dating  violence,  stalking,  SEXUAL  HARASSMENT  and   sexual   assault
 prevention and response;
   4.  Every  institution  shall use multiple methods to educate students
 about violence  prevention  and  shall  share  information  on  domestic
 violence,  dating  violence,  stalking,  SEXUAL  HARASSMENT  and  sexual
 assault prevention with parents of enrolling students.
   5. Every institution shall offer to all students general and  specific
 training in domestic violence, dating violence, stalking, SEXUAL HARASS-
 MENT  and  sexual  assault  prevention and shall conduct a campaign that
 complies with the Violence Against Women  Act,  20  U.S.C.  1092(f),  to
 educate  the  student population. They shall, as appropriate, provide or
 expand  specific  training  to  include  groups  such  as  international
 students,  students  that  are  also  employees, leaders and officers of
 registered or recognized student organizations, and online and  distance
 education students. They shall also provide specific training to members
 of groups that the institution identifies as high-risk populations.
   6.  Every institution shall require that each student leader and offi-
 cer of student organizations recognized by or registered with the insti-
 tution, as  well  as  those  seeking  recognition  by  the  institution,
 complete training on domestic violence, dating violence, stalking, SEXU-
 AL  HARASSMENT  or sexual assault prevention prior to receiving recogni-
 tion or registration, and  each  institution  shall  require  that  each
 student-athlete complete training on domestic violence, dating violence,
 stalking,  SEXUAL  HARASSMENT  or  sexual  assault  prevention  prior to
 participating in intercollegiate athletic competition.
   § 9. The opening paragraph of subdivision 1 of section   6449  of  the
 education law, as added by chapter 76 of the laws of 2015, is amended to
 read as follows:
   Institutions  shall  annually  report  to the department the following
 information about reports of domestic violence, dating violence,  stalk-
 ing, SEXUAL HARASSMENT and sexual assault:
   § 10. This act shall take effect immediately.