NYS Education Law Article 129-B, Definitions

NYS Education Law Article 129-B, Definitions

Five Towns College adopts and publishes for its constituents, the following additions as required under NYS Education Law Article 129-B, as part of its Code of Conduct, and as part of its policies and procedures, generally, and incorporates by reference relevant sections and definitions that fall under the Annual Campus Safety Report, including the Clery Act provisions of the Higher Education Act, as amended by the Violence Against Women Act, and which apply if potential conduct is deemed to fall under its provisions and occurred either on campus, off campus, or while studying abroad.

Recognizing that parts of state and federal law may vary but to be comprehensive, Five Towns College reiterates the definitions and other provisions of NYS Education Law Article 129-B below which may apply in certain instances.

Definitions (Section 6439):

Accused– shall mean a person accused of a violation who has not yet entered an institution’s judicial or conduct process.

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.

Bystander– shall mean a person who observes a crime, impending crime, conflict, potentially violent or violent behavior, or conduct that is in violation of rules or policies of an institution.

Code of Conduct– shall mean the written policies adopted by an institution governing student behavior, rights, and responsibilities while such student is matriculated in the institution.

Confidentiality– may be offered by an individual who is not required by law to report known incidents of sexual assault or other crimes to institution officials, in a manner consistent with state and federal law, including but not limited to 20 U.S.C. 1092 (f) and 20 U.S.C. 1681 (a). Licensed mental health counselors, medical providers and pastoral counselors are examples of institution employees who may offer confidentiality.
Domestic Violence, Dating Violence, Stalking and Sexual Assault– shall be defined as those terms are referred to in the Clery Act provisions of the Higher Education Act, as amended by the Violence Against Women Act found at
http://www.gpo.gov/fdsys/pkg/FR-2014-10-20/pdf/2014-24284.pdf and as adopted by Five Towns College and incorporated by reference at www.ftc.edu/publicsafety.

Dating Violence– is defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the student. The existence of such a relationship shall be determined based on a consideration of the following factors:

  1. the length of the relationship;
  2. the type of relationship; and
  3. the frequency of interaction between the persons involved in the relationship.

Domestic Violence– is defined as violence committed by a current or former spouse of the student, by someone who is or has cohabitated with the student as a spouse, by someone with whom the student has a child, by others to whom the student is related by consanguinity (blood) or affinity (marriage), or by unrelated persons who are (or have been in the past) continually living in the same household.
Examples of domestic and dating violence include:

  1. Slapping, kicking, pinching, biting, pulling hair or punching a girlfriend
  2. Threatening to hit, harm, or use a weapon on a boyfriend or a boyfriend’s family
  3. Pushing, grabbing or choking an intimate partner
  4. Physically restraining a spouse
  5. Burning an intimate partner
  6. Hurting or threatening to hurt the pet of a boyfriend

 

Stalking– is defined as engaging in a course of conduct directed at a specific person that would cause a reasonable person to (1) fear for his or her safety or the safety of others; or (2) suffer substantial emotional distress. Stalking also includes the concept of cyber-stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used.

Examples of stalking include:

  1. Constantly following a student
  2. Repeatedly appearing at the student’s home, place of business, vehicle or classroom for no legitimate purpose
  3. Leaving unwanted messages, objects, or gifts at the student’s home, place of business, vehicle, or classroom

Privacy– may be offered by an individual when such individual is unable to offer confidentiality under the law but shall still not disclose information learned from a reporting individual or bystander to a crime or incident more than necessary to comply with this and other applicable laws, including informing appropriate institution officials.

Respondent– shall mean a person accused of a violation who has entered an institution’s judicial or conduct process.
Reporting individual- shall encompass the terms victim, survivor, complainant, claimant, witness with victim status, and any other term used by an institution to reference an individual who brings forth a report of a violation.
Sexual activity- shall have the same meaning as “sexual act” and “sexual contact” as provided in 18 U.S.C. 2246(2) and 18 U.S.C.2246 (3). To determine when affirmative consent is required prior to sexual activity, the definition of sexual activity refers to 18 U.S.C. 2246(2)-(3), it states:

(2) The term “sexual act” means –

  1. contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
  2. contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
  3. the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
  4. the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;

(3) the term “sexual contact” means-

the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

Individuals must obtain affirmative consent prior to engaging in any of the activity referenced above.

Sexual Assault- consists of any of the following:

  1. Non-Consensual Sexual Contact,
    which is defined as any intentional sexual touching or fondling either directly or through the clothing, of a person’s genitalia, anus, groin, breast, inner thigh or buttocks without Affirmative Consent. Non-Consensual Sexual Contact also includes an individual making a person touch him or her with, or on, any of these body parts.
  2. Non-Consensual Sexual Intercourse,
    which is defined as any sexual penetration (anal, oral, or vaginal), however slight, with any object or body part, without Affirmative Consent.

Title IX Coordinator– the Title IX Coordinator and/or his or her designee or designees.

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