||Criminal Justice System
||College Disciplinary System
||Public safety, deterrence, and punishment.
||Education; safety; safe and supportive campus environment.
||New York State Penal Code; New York State Rules of Criminal Procedure (or another
state’s rules if the crime took place there), Federal Criminal Law, and Rules of Evidence.
||Title IX; The Clery Act as amended by the Violence Against Women Act; NYS Education
Law sections 129-A and 129-B. More specific rules govern particular colleges and universities.
|How to report and whether there must be action once a report is made
||Crimes involving sexual violence may be reported to campus police (if the campus has
police officers), the local police agency, or to the New York State Police. Certain
crimes may also be reported to federal law enforcement agents. Once a report is made,
the decision whether to investigate is made by the police/law enforcement agency,
often in consultation with a District Attorney or other prosecuting agency. An investigation
may be conducted without the consent or participation of a reporting individual. The
ultimate decision of whether to initiate a criminal prosecution is initially made
by a prosecutor. In cases involving felony charges, the final charging decision is
made by a Grand Jury.
||Victims may disclose sexual violence to various college employees who are designated
confidential resources or to others who will try to ensure privacy to the extent consistent
with the institution’s obligation to provide a safe educational environment. Disclosures
made to a confidential resource will not trigger an investigation. When a report is
made to the Title IX Coordinator (TIXC) or another Non-Confidential resource, the
TIXC will determine whether an investigation is necessary by weighing a request for
confidentiality by the reporting individual against the continuing safety of that
person and the safety and best interests of the campus community.
||Police or other law enforcement officials.
||Investigators employed or retained by the college; these individuals may work for
different departments within the institution, including, but not limited to, the police/public
safety department, student affairs and academic affairs.
||See Governing Law. Procedures established by police departments, prosecutors’ offices,
||College policies and Bylaws, which generally incorporate requirements of Governing
Law. Collective bargaining agreements may impact some procedures.
|Standard of Evidence
||Crimes must be proven “Beyond a Reasonable Doubt”
||A violation of disciplinary rules must be found by a “Preponderance of the Evidence”
(more likely than not)
||Law enforcement agencies offer some confidential assistance, but a criminal charge
and trial must be public.
||Colleges offer confidential resources, but a disciplinary proceeding requires that
relevant information be shared with those involved.
||Criminal trials must be public.
||Disciplinary proceedings are kept as private as possible, but information must be
shared with certain individuals within the college, the parties, and pursuant to law.
|Who are the parties?
||The prosecution and defendant. The victim/survivor is not a party, but often the critical
witness for the prosecution.
||Varies by school—some consider the institution and the respondent to be parties, and
confer on the reporting individual certain rights to participate, as the law provides.
Otherwise, reporting individual and accused/respondent.
|Participation in the process
||In limited circumstances, a criminal prosecution can proceed without the participation
or cooperation of the reporting individual, but without a reporting individual’s participation,
it is generally more difficult to prove a crime beyond a reasonable doubt.
||Reporting students cannot be required to participate in the college process. However,
a college will be limited in its ability to respond if a reporting individual does
|Who initiates the proceedings?
||A prosecutor, acting on behalf of the state (or the United States in federal cases).
||The college initiates proceedings. While rules vary from school to school, they most
provide an active role for the reporting individual.
||In a court, testimony is generally public. Other parties are, through counsel, entitled
to cross-examine witnesses.
||The rules are established by individual colleges and universities, but some institutions
provide for alternative approaches that permit students to testify without having
other parties in the room and/or to ask cross-examination questions only through the
disciplinary panel, investigator, or representative of the reporting individual and/or
|Role of attorneys
||Both the state and the defendant are represented by counsel; counsel may question
||Varies by school. Many permit the parties to be advised by attorneys but some limit
the attorney's’ roles to quietly speaking with their clients or passing notes.
|Mental Health and Sexual History
||In New York, a reporting individual’s prior sexual and mental health history is generally,
but not always, inadmissible in a criminal case. There are limited circumstances under
which directly relevant evidence of that kind may be admitted.
||Generally not admissible, but subject to quite limited exceptions. Education Law 129-b
permits parties to exclude information about their prior sexual history with persons
other than the other party and also to exclude evidence of their own mental health
history in the fact finding phase of the disciplinary process.
If a prosecution takes place, the defendant may
· plead guilty or “no contest”
· have the case dismissed by the judge (on legal grounds)
be found “guilty” or “not guilty” by a judge or jury
In cases that do not involve sexual assault, some schools permit mediation or similar
procedures if parties agree.
If there is a formal proceeding, the respondent may be found “responsible” or “not
responsible” for violations of the institution’s rules. Respondents may also accept
responsibility before a finding by an adjudicator.
||An individual found guilty may be fined, imprisoned, or both. In some courts, alternative
sanctions are sometimes used.
||An individual found responsible for violating college policy may be given a range
of sanctions (depending on the severity of the conduct and other factors, such as
prior judicial history), ranging from a warning to suspension or expulsion from the