Relevant Definitions

These definitions are intended to clarify and provide guidance for individuals going through the conduct process.

Institutions may use different words to describe the various roles in the campus conduct or complaint process. These definitions are included to ensure an understanding of the stated rights for the parties that are provided within the legislation. The legislation does not require that each college use this nomenclature, it merely states that, whatever the institution calls the people who meet these definitions, these are the rights and responsibilities that apply to those individuals. The term “reporting individual” is limited in the statute to those directly impacted by the violation as victims. A bystander to a violation, or a third party who reports information about a violation that they have learned from a victim, is not themselves a reporting individual.

Sexual Violence Prevention and Response Policy (129-B) Terms

• 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. Click here for further information.
• Article 129-A (New York State Education Law) requires all New York State public colleges to maintain policies related to specific provisions of this Article. General provisions include the advisory committee on campus security, sexual assault, domestic violence and stalking prevention information, campus crime reporting and statistics, investigation of violent felony offenses, bias related crime prevention information, prohibition on the marketing of credit cards, and notification of fire safety standards and measures in all college-owned or college-operated housing.
• Article 129-B (Enough is Enough) requires all colleges in New York State to adopt a set of comprehensive procedures and guidelines to address sexual violence, including a uniform definition of affirmative consent, a statewide amnesty policy, and expanded access to law enforcement.
• 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. Under the definitions in the statute, a bystander is an individual who witnesses or learns of violence or impending violence, but is not directly impacted as a victim or survivor of this violence. They do not have equivalent rights under federal or state law as a “reporting individual” (victim) who is directly impacted by the violence. A bystander does not become a “reporting individual” when they bring forth a report. They remain a bystander.
• Clery Act: The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act or Clery Act is a federal statute (20 U.S.C. §1092(f)) that requires colleges and universities that participate in federal financial aid programs to keep and disclose statistics about crime on or near their campuses. Compliance is monitored by the U.S. Department of Education.
• 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. Code of Conduct is intended to reference the document or documents that an institution uses to govern student behavior. This does not require that each institution use the name “Code of Conduct.” Some institutions refer to this as an “Honor Code” or “Judicial Code” or a number of other names. Whatever name is used by the institution, where the legislation uses Code of Conduct, it is referencing that document.
• 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.
• 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. Institutions may substitute another relevant term having the same meaning, as appropriate to the policies of the institution.
• Domestic Violence, Dating Violence, Stalking and Sexual Assault shall be defined by each institution in its Code of Conduct in a manner consistent with applicable federal definitions:
• Sexual assault as defined in 20 U.S.C. 1092(f)(6)(A)(v), means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.
• Dating Violence as defined in 34 U.S.C. 12291(a)(10), means violence committed by a person— (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship. (ii) The type of relationship. (iii) The frequency of interaction between the persons involved in the relationship.
• Domestic Violence as defined in 34 U.S.C. 12291(a)(8), includes felony or misdemeanor crimes committed by a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction receiving grant funding and, in the case of victim services, includes the use or attempted use of physical abuse or sexual abuse, or a pattern of any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may or may not constitute criminal behavior, by a person who— (A) is a current or former spouse or intimate partner of the victim, or person similarly situated to a spouse of the victim; (B) is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner; (C) shares a child in common with the victim; or (D) commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction.
• Stalking as defined in 34 U.S.C. 12291(a)(30), means engaging in a course of conduct directed at a specific person that would cause a reasonable person to— (A) fear for his or her safety or the safety of others; or (B) suffer substantial emotional distress.
• Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity. Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent.
• Incident shall mean an incident of domestic violence, dating violence, stalking or sexual assault, where the reporting individual and/or the accused were subject to the Code of Conduct at the time of the incident.
• Institution shall mean any college or university chartered by the Board of Regents or incorporated by special act of the Legislature and that maintains a campus in New York.
• 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.
• Respondent shall mean a person accused of a violation who has entered an institution’s judicial or conduct process.
• On Campus shall be defined as any buildings or properties owned or controlled by the University, reasonably contiguous to one another, and directly support or relate to the University's educational purpose.
• Off Campus shall be defined as any location not included in the definition of on campus.
• Retaliation is adverse action against another person for reporting a violation or for participating in any way in the investigation or conduct process. Retaliation includes harassment and intimidation, including but not limited to violence, threats of violence, property destruction, adverse educational or employment consequences, and bullying.
• SaVE Act: The SaVE Act is an acronym for the Campus Sexual Violence Act provision of the 2013 reauthorized Violence Against Women Reauthorization Act (VAWA). The SaVE Act provision, Section 304, requires colleges and universities to report domestic violence, dating violence, and stalking beyond the crime categories the Clery Act already mandates; adopt certain student conduct procedures, such as for notifying victims of their rights; and adopt training protocols and policies to address and prevent campus sexual violence.
• 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).
  • In order to determine when affirmative consent is required prior to sexual activity, this legislation first defines “sexual activity.” Rather than developing a new definition, the legislation refers to a current definition used by the federal government. 18 U.S.C. 2246(2)-(3) states that:
    • “(2) the term “sexual act” means —
      • 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;
      • contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
      • 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
      • 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 Harassment is unwelcome, gender-based verbal, non-verbal, or physical conduct that is sexual in nature and sufficiently severe, persistent, or pervasive that it unreasonably interferes with, denies, or limits someone’s ability to participate in or benefit from the University’s educational program and/or activities, and is based on power differentials, the creation of a hostile environment, or retaliation. Sexual harassment in the educational setting is a form of discrimination on the basis of sex, which includes unwelcome sexual advances, requests for sexual favors, or verbal, non-verbal, or physical conduct of a sexual nature which denies or limits a student's ability to participate in or to receive benefits, services, and opportunities in the University's programs. Conduct of a sexual nature (verbal, non-verbal, or physical), which creates an intimidating, hostile, or offensive environment is prohibited.
• Sexual Violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (as defined by the SUNY affirmative consent policy). A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual violence can be carried out by other students, University employees, or third parties. All such acts of sexual violence are forms of sex discrimination prohibited by Title IX and University policy. (U.S. Office for Civil Rights guidance)
• Title IX Coordinator shall mean the Title IX Coordinator and/or his or her designee or designees.
• Title IX: Title IX of the Education Amendments of 1972 is a federal law that prohibits sex discrimination in education. It states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” (Title IX of the Education Amendments of 1972, and its implementing regulation at 34 C.F.R., Part 106) Sex discrimination includes sexual harassment, sexual assault, and sexual violence.
• VAWA: The Violence Against Women Act (VAWA) is a federal law initially passed in 1994 and reauthorized three times, most recently in 2013 (Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, H.R. 3355). VAWA's initial focus has expanded from domestic violence and sexual assault to also include dating violence and stalking. The Act provides funding for investigation and prosecution of violent crimes against women, imposes mandatory restitution by those convicted, and allows civil remedy in certain cases. The Act created the Office on Violence Against Women within the U.S. Department of Justice. While the title of the law refers to women victims of violence, the actual text is gender-neutral, providing coverage for male victims of domestic violence as well.
• Witness is someone who has information about an alleged incident or situation that is being investigated. This information can be either direct knowledge, secondary knowledge, or serving as an expert witness. Either party (the Complainant and/or the Respondent), the Investigator, and/or the Administrative Hearing Board can request individuals to serve as witnesses.

Title IX Terms

Title IX of the Education Amendments of 1972 is a federal law that prohibits sex discrimination in education. It states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” (Title IX of the Education Amendments of 1972, and its implementing regulation at 34 C.F.R., Part 106) Sex discrimination includes sexual harassment, sexual assault, and sexual violence.

• Actual Knowledge means notice of sexual harassment or allegations of sexual harassment to a recipient's Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the recipient with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator as described in § 106.8(a).
• Advisor of Choice: Each party may select whomever they wish to serve as their Title IX Advisor, as long as the Title IX Advisor is eligible and has no institutionally conflicting roles (such as being a Title IX Coordinator, investigator, a decision-maker in the grievance process, or a witness in the process). Parties may be accompanied by an advisor in all meetings and interviews at which the party is entitled to be present. A Title IX Advisor accompanies a party to meetings, advises the party on the process, and conducts cross-examination for the party at the hearing, if one is held.
• Complainant for the purposes of the Title IX Grievance Policy, means an individual who is alleged to be the victim of conduct that could constitute sexual harassment as defined in the policy.
• Consent (or affirmative consent) for the purposes of this Title IX Grievance Policy 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 may be initially given but withdrawn at any time. 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. When consent is withdrawn or can no longer be given, sexual activity must stop. Click here for further information.
• Education Program or activity includes:
  • Any on-campus premises
  • Any off-campus premises that SUNY Fredonia has substantial control over. This includes buildings or property owned or controlled by a recognized student organization. Activity occurring within computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of SUNY Fredonia’s programs and activities over which SUNY Fredonia has substantial control.
• Formal Complaint means a document, including an electronic submission, filed by a complainant with a signature or other indication that the complainant is the person filing the formal complaint, or signed by the Title IX Coordinator, alleging sexual harassment against a respondent about conduct within SUNY Fredonia’s education program or activity and requesting initiation of the procedures consistent with the Title IX Grievance Policy to investigate the allegation of sexual harassment.
• Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity. Incapacitation includes impairment due to drugs or alcohol (whether such use is voluntary or involuntary), the lack of consciousness or being asleep, being involuntarily restrained, if any of the parties are under the age of 17, or if an individual otherwise cannot consent.
• Privacy vs. Confidentiality: Consistent with SUNY Fredonia’s Policy on Sexual Violence Prevention and Response, references made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or college officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean SUNY Fredonia offices and employees who cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. SUNY Fredonia will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.
• Relevant Evidence and Questions refer to any questions and evidence that tends to make an allegation of sexual harassment more or less likely to be true. “Relevant” evidence and questions do not include the following types of evidence and questions, which are deemed “irrelevant” at all stages of the Title IX Grievance Process:
  • Evidence and questions about the complainant’s sexual predisposition or prior sexual behavior unless:
    • They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or ©2022 Office of Policy and Project Management, SUNY Fredonia Title IX Grievance Policy policy.fredonia.edu •
    • They concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 34 C.F.R. § 106.45(6)(i).
    • Evidence and questions that constitute, or seek disclosure of, information protected under a legally recognized privilege (e.g., attorney-client privilege)
    • Any party’s medical, psychological, and similar records unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020)
• Respondent for the purposes of the Title IX Grievance Policy, means any individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment as defined under the policy.
• Retaliation: No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations. No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under the Title IX Grievance Policy.
• Severe, Pervasive, and Objectively Offensive Sexual Harassment: Conduct on the basis of sex that constitutes unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a student or employee equal access to the University’s education program or activity.
• Covered Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following:
  • (1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;
  • (2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity; or
  • (3) Sexual Assault as defined in 20 U.S.C. 1092(f)(6)(A)(v), means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.
  • (4) Dating Violence as defined in 34 U.S.C. 12291(a)(10), means violence committed by a person— (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship. (ii) The type of relationship. (iii) The frequency of interaction between the persons involved in the relationship.
  • (5) Domestic Violence as defined in 34 U.S.C. 12291(a)(8), includes felony or misdemeanor crimes committed by a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction receiving grant funding and, in the case of victim services, includes the use or attempted use of physical abuse or sexual abuse, or a pattern of any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may or may not constitute criminal behavior, by a person who— (A) is a current or former spouse or intimate partner of the victim, or person similarly situated to a spouse of the victim; (B) is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner; (C) shares a child in common with the victim; or (D) commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction.
  • (6) Stalking as defined in 34 U.S.C. 12291(a)(30), means engaging in a course of conduct directed at a specific person that would cause a reasonable person to— (A) fear for his or her safety or the safety of others; or (B) suffer substantial emotional distress.
• Supportive Measures means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient's education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient's educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.
• Witness is someone who has information about an alleged incident or situation that is being investigated. This information can be either direct knowledge, secondary knowledge, or serving as an expert witness. Either party (the Complainant and/or the Respondent), the Investigator, and/or the Administrative Hearing Board can request individuals to serve as witnesses.