SCOPE OF THE POLICY
This policy applies to reports that an employee of D’Youville or an undergraduate or graduate student (“Impacted Party”) is alleged to have been subjected to sexual misconduct by another employee of D’Youville, 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, and any other areas owned or leased by D’Youville; or
- Off campus, if:
- In connection with an Institution or Institution-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 Institution 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.
Administration, Faculty, Staff, and Students.
DEFINITION OF SEXUAL MISCONDUCT
Sexual misconduct encompasses a range of behavior used to obtain sexual gratification against another’s will or at the expense of another or that otherwise targets an individual because of their sex. Sexual Misconduct includes sexual harassment, sexual assault, and any conduct of a sexual nature that is without consent or has the effect of threatening or intimidating the person against whom such conduct is directed. State and federal laws and regulations vary on defining acts which constitute unlawful sexual misconduct. However, this policy prohibits conduct in addition to that which may be deemed unlawful under state or federal law.
REPORTING SEXUAL MISCONDUCT
The Institution 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 the Title IX Coordinator in writing via their Institution email or by mail, verbally in person or over the phone, or digitally through the official Institution reporting system, Maxient, located on the main Institution website and within SharePoint under HELP!
Any member of the D’Youville community who believes that they have 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 below, students should assume that any other Institution office, official or employee (including Resident Advisors) 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 Institution employees are required by law to do so.
The following Institution 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 Institution and department chairs, (iii) athletic department staff and team coaches, (iv) all Institution housing staff, (v) the president and their council, (vi) all administrators and support staff.
If an Impacted Party discloses an incident to a Institution employee who is responsible for responding to or reporting sexual misconduct 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 Institution obligation to provide a safe, non-discriminatory environment for all members of our community.
In general, the Institution will seek consent from the Impacted Party prior to investigating, and the Impacted Party may decline to consent to an investigation. That decision will be honored unless failure to act does not adequately mitigate the risk of harm to the impacted party or other members of the Institution community. Honoring the request may limit the Institution’s ability to meaningfully investigate and pursue conduct action against a Respondent. If the Institution determines that an investigation is required, the impacted party will be notified and receive immediate action as necessary for protection and assistance.
The Institution will determine whether to proceed with an investigation based on a review of the following factors:
- 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 Institution 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.
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.
The Institution will assist an Impacted Party with academic, housing, transportation, employment, and other reasonable and available accommodations regardless of reporting choices. The Institution also may take proactive steps, such as training or awareness efforts, to combat sexual violence in a general way that does not identify the Impacted Party or the disclosed situation.
Reports to Police/Criminal Investigation
In addition to seeking remedy through the Institution, 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 Institution when a crime has occurred in their jurisdiction, so the Institution will not have notice of an incident unless a report is also made. A criminal investigation is separate from a Institution process and will not be coordinated through the Institution.
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 or designee. Should the Institution become aware of retaliation of any sort, immediate responsive action will be taken up to and including suspension, expulsion, or termination from Institution employment.
Obligation to Report Crime and Disciplinary Statistics
A federal law called the Clery Act requires the Institution 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 Institution 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 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 Institution to issue a “timely warning” when it receives a report of certain crimes that pose a serious or continuing threat to the D’Youville community.
Additionally, as a matter of policy, the Institution 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 Institution’s and universities to share information with a student’s parents under certain circumstances, including 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 Institution 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 Institution is of utmost importance. The 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, or sexual assault) occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. The Institution strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to Institution 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 Institution’s officials or law enforcement will not be subject to disciplinary action by the Institution 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.
CONFIDENTIALITY & CONFIDENTIAL RESOURCES
The Institution 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 ability to respond to the alleged sexual misconduct may be limited but that, where feasible, the Institution 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 Institution’s decision to share information with others is subject to the balancing test described below. In summary, although the Institution’s goal is to limit the number of individuals who may learn about an allegation of sexual misconduct or an investigation, the Institution cannot guarantee confidentiality in all matters.
Even Institution 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. Discussing allegations of sexual misconduct with a Confidential Resource will not result in a report to the Title IX Coordinator. Confidential Resources include:
- The Student Counseling Center
- Student Health Services
INTERIM ACCOMMODATION AND SAFETY MEASURES
When the Institution has notice of an allegation of sexual misconduct, a qualified Institution staff member (such as the Vice Presidents of the Institution or Title IX Coordinator) 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 Institution 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 Institution 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 a party to ensure he/she can move safely on campus and/or between Institution programs and activities;
- Limitation on extracurricular or athletic activities;
- Emergency removal or administrative leave from Institution community;
- Temporary suspension or revision of Institution policies or practices;
- Training; and/or
- Other appropriate actions as necessary to stop the sexual misconduct, prevent its recurrence, remedy its impact or improve Institution policies or practices.
Any time that the Institution 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 Institution may establish an appropriate schedule for each party to access Institution buildings and property at times when such buildings and property are not being accessed by the other party.
In some cases, the Institution may undertake an emergency removal of a student Respondent in order to protect the safety of Institution community, which may include contacting local law enforcement to address imminent safety concerns.
Emergency removal is not a substitute for reaching a determination as to a Respondent’s responsibility for the sexual misconduct allegations; rather, emergency removal is for the purpose of addressing imminent threats posed to any person’s physical health or safety, which may arise out of the sexual misconduct allegations.
Prior to removing a student Respondent through the emergency removal process, the Institution will undertake an individualized safety and risk analysis. If the individualized safety and risk analysis determines that an immediate threat to the physical health or safety of any student, including the student Respondent, or other individual justifies removal, then a student Respondent will be removed. This is the case regardless of the severity of the allegations and regardless of whether a formal complaint was filed.
After determining a student Respondent is an immediate threat to the physical health or safety of an individual, the Title IX Coordinator will provide written notice of the emergency removal to both the Impacted Party and Respondent. This notice will contain: (1) the date the removal is set to begin, (2) the reason for the emergency removal, (3) the consequences of non-compliance, and (4) how to appeal the decision.
If a student Respondent disagrees with the decision to be removed from campus, the Respondent may appeal the decision. The Respondent must provide written notice of the intent to appeal, which shall include the substance of the appeal, to Salvatore D’Amato, Assistant Dean of Assessment, within 10 days of receiving the notice of removal. The burden of proof is on the student Respondent to show that the removal decision was incorrect.
This section applies only to student Respondents. Employee Respondents are not subject to this section and may be placed on administrative leave pursuant to the Institution’s policies and/or collective bargaining agreement during the pendency of a Title IX grievance process.
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 their request.
Potential Accommodations in the Event of No Investigation
Even if the Institution decides not to confront the Respondent because of the Impacted Party’s request for confidentiality, the Institution 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 Institution but, instead, only discloses such allegation to a Confidential Resource, such Confidential Resource may request that interim accommodations or safety measures be imposed without disclosing any details to the Institution that the Impacted Party wishes to keep confidential. The extent to which the Institution 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 Institution.
Assistance in Obtaining an Order of Protection
All individuals have the right to seek an Order of Protection from local law enforcement. Upon request, D’Youville Campus Safety will aid in obtaining an Order of Protection from local law enforcement. If the Institution 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 Safety who can explain the order and answer questions about it, including information from the order about a party’s responsibility to stay away from the other 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 protected individual may seek the assistance of Campus Safety in effecting an arrest when there is a violation of an Order of Protection through local police agencies.
Members of the D’Youville community have an option to resolve concerns of sexual misconduct informally, without a live hearing or formal investigation, with the assistance of a trained facilitator. The Title IX Coordinator will offer the informal resolution process to the parties only after a formal complaint is filed by a complainant.
The primary objective of informal resolution 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 informal resolution. At any stage during or upon the conclusion of the informal resolution process, either party may decide to proceed by formal process.
A written notice will be given to both parties before entering an informal resolution process, and both parties must consent to the process in writing. No party should feel intimidated, coerced or threatened to participate in an Informal Resolution Process, or to withdraw from an Informal Resolution Process.
If both parties consent to participate in the Informal Resolution process, the Institution will assign a facilitator who will act in an independent, impartial manner to facilitate a resolution between the parties. The facilitator will be trained on how to perform the role. The facilitator will also be screened to ensure that such person is free from conflicts of interest and bias.
Please note that, in cases involving allegations of Sexual Violence, informal resolution is not appropriate, even on a voluntary basis, and will not be used to resolve complaints. Further, informal resolution is not available if the Respondent in a sexual misconduct complaint is a faculty or staff member of the Institution and the complainant is a student.
TIMEFRAME OF INVESTIGATION, HEARING AND SANCTIONS
An investigation conducted pursuant to this policy, the investigator’s preparation of their initial report, presentation to the Title IX Coordinator, completion of a Live Hearing, and the imposition of sanctions should normally be completed within 60 calendar days after the Institution has notice of an allegation of sexual misconduct. The Title IX Coordinator may extend this time frame for good cause, including Institution 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 Institution will not wait for the conclusion of a criminal investigation or criminal proceeding to begin its own investigation.
While the Institution may need to delay temporarily the fact-finding portion of its investigation under this policy while law enforcement is gathering evidence, the Institution will still take any necessary interim accommodation and safety measures, as described above. The Institution 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. During any delay in the Institution’s investigation process caused by a criminal investigation, the Institution will update the parties on the status of its investigation and inform the parties when the Institution resumes its investigation pursuant to this policy.
DETAILS OF THE TITLE IX PROCESS FROM REPORT THROUGH INVESTIGATION, HEARING, AND APPEAL
When the Institution receives notice of a sexual misconduct incident, the Title IX Coordinator ensures that the Impacted Party is given a resource guide outlining the Title IX Process and offers assistance in notifying local law enforcement and the local hospital. The Title IX Coordinator holds an initial meeting with the Impacted Party and gathers all known details and other information regarding the incident.
Based on the initial report and meeting with the Impacted Party, the Title IX Coordinator will decide on any applicable interim measures, as described above. After discussion with, and input from the Impact Party, these measures will be put into place by the Title IX Coordinator.
A formal complaint is filed by either the Impacted Party or the Title IX Coordinator, which begins the Title IX process and transitions the Impacted Party to a Complainant. In order to qualify as a formal complaint, the document must contain the Complainant’s physical or electronic signature, or otherwise indicate that the Complainant is the person filing the formal complaint. The formal complaint may be submitted to the Title IX Coordinator in person, by mail, or by e-mail.
The Title IX Coordinator will review the formal complaint filed by a Complainant to determine whether the alleged conduct:
- would not constitute sexual harassment as defined in Section 106.30 of the U.S. Department of Education’s Title IX regulations, even if proved,
- did not occur in the Institution’s education program or activity (as defined in federal regulations), or
- did not occur against a person in the United States.
In order to comply with Title IX regulations, the Title IX Coordinator must dismiss and discontinue the processing of any allegations that meet the above criteria for purposes of Title IX and related federal regulations. However, even if certain allegations are subject to dismissal for purposes of Title IX, the Institution may continue to process the allegations as potential violations of this policy, assuming that the allegations, if true, would constitute prohibited sexual misconduct.
Notice of any dismissal under this section will be in writing and issued to both the Complainant and Respondent, with information concerning the parties’ rights to appeal.
Following the filing of a formal complaint, written notice will be provided to all known parties of the allegations in the complaint and directing them to the official sexual misconduct policy. The notice will also contain:
- the identities of the involved parties;
- the date, time, location and factual allegations concerning the alleged violation;
- the right to an advisor of their choice, who may be, but is not required to be, an attorney;
- their right to inspect and review evidence in accordance with this policy;
- notice that knowingly making false statements or knowingly submitting false information is prohibited under Institution policy; and
- that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the process
The Title IX Coordinator will assign a Deputy Coordinator and a trained investigator to the complaint. This assignment will be determined by the case type and/or the schedule rotation of investigators. Once assigned, the Deputy Coordinator will schedule an initial meeting with the Complainant and the Respondent. In scheduling these meetings, the Deputy Coordinator will provide each party with written notice of the date, time, location, participants, and purpose of the meeting, with sufficient time for the party to prepare and participate. In these separate meetings, the Deputy Coordinator and investigator will:
- Meet with the Complainant to confirm their receipt of the resource guide and direct them to the official misconduct policy;
- Meet with the Respondent to offer the resource guide and direct them to the official misconduct policy;
- Assign/remind all parties of any interim measures (i.e.: no contact order, altering housing/academics/campus work, counseling, etc.);
- Provide advance notice for all upcoming meetings with the parties; and
- Inform all parties that investigators will follow-up soon.
Upon completion of the initial meetings, the assigned investigators will review notes and all collected information with the Title IX Coordinator and recommend either an informal or formal Resolution to the complaint. The Title IX Coordinator will either approve or amend the recommendation based on the review and will notify the parties of the recommendation.
If informal resolution is recommended, the Complainant and Respondent will both receive written notice and must provide written consent for the informal resolution. Should consent be given by all parties, the informal resolution process will proceed as described above. At any stage during or upon the conclusion of the informal resolution process, either party may decide to proceed by formal process.
If formal resolution is recommended, further investigation will begin which may include meeting with witnesses and gathering other evidence. The Complainant and the Respondent will be given an equal opportunity to present information. This includes the opportunity to present fact or expert witnesses and other evidence that the party believes tends to prove or disprove the allegations. However, at all times, the burden of gathering evidence remains with the Institution. The investigators may decline to interview any witness or to gather information the investigator finds to be not relevant or otherwise excludable (e.g., sexual history of the complainant with a person other than the respondent, materials subject to a recognized privilege, medical records in the absence of a release by the subject of the records, etc.). The investigators will determine the order and method of investigation. Advance notice will be given for all investigatory meetings, and such notice will include the date, time, location, participants, and purpose of the meeting.
No unauthorized audio or video recording of any kind is permitted during investigation meetings or interviews. If the investigator elects to audio and/or video record interviews, all involved parties involved in the meeting or interview will be made aware that audio and/or video recording is occurring.
The Complainant and Respondent have a right to be accompanied by an Advisor of their choice during the investigation, who may be an attorney. The Institution does not appoint an Advisor for a party during the investigation phase of the process.
Both the Complainant and the Respondent will receive an equal opportunity to inspect and review all evidence gathered during the investigation directly related to the allegations gathered in the formal complaint and regardless of whether the information will be relied on in reaching a determination. The Complainant and Respondent, and each party’s Advisor, if any, will be provided a copy (which may be sent in hard copy or electronic format or made available through an electronic file sharing platform) of the evidence, subject to redaction permitted and/or required by law. The parties will be given at least 10 days to submit a written response, which will be reviewed and considered by the investigators prior to completion of their investigative report.
The assigned investigators will use the investigation, and the evidence and information they gather, to prepare a full written investigative report. The report will fairly summarize the relevant evidence. The investigator need not include information in the investigative report that the investigator determines not relevant or otherwise excludable. The investigator will submit the investigative report to the Title IX Coordinator.
The investigative report will then be provided to both the Complainant and Respondent, and each party’s Advisor, if any, at least 10 days prior to the hearing held to determine whether there is responsibility for the allegations in the complaint. The report may be sent in hard copy or electronic format or made available through an electronic file sharing platform, and it is subject to redaction permitted and/or required by law.
Following completion of the investigation and investigative report, the Title IX Coordinator will schedule a live hearing. The Title IX Coordinator will issue both the Complainant and Respondent three forms before the hearing:
- Notice of Hearing, which will include the date, time, and location of the hearing, the names of the Hearing Panel members, and how to challenge participation by any Hearing Panel member for bias or conflict of interest. Bias or conflict of interest will be judged by an objective standard (whether a reasonable person would conclude the decision maker is biased).
- Title IX Hearing Format Request.
- Notice of Student / Employee, Trustee, and Third Party Rights before a Title IX Hearing Panel.
When the Hearing Format Request and the Notice of Rights forms are signed and returned, both the Complainant and Respondent will receive copies of the signed forms with a list of witnesses and advisors who will participate in the hearing.
The Title IX Coordinator will form a Hearing Panel comprised of three members who are drawn from a pool of trained hearing officers. The assigned Chair of the Hearing Panel will be a Deputy Title IX Coordinator and will administer all outreach for the Hearing and will oversee the process during the Hearing.
Hearings are private. Observers or additional support personnel, other than the parties’ advisors, are not allowed unless deemed necessary by the Title IX Coordinator for purposes such as accommodation of a disability. Cell phones and recording devices may not be used by the parties or their Advisors in the hearing room(s).
Hearings may be conducted with all parties physically present in the same location or, at the Title IX Coordinator’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling the Hearing Panel and the parties to simultaneously see and hear any party or witness providing information or answering questions. If either party so requests, the hearing will be conducted with the parties located in separate rooms using technology as described in the preceding sentence.
The Complainant and the Respondent may each have present with them during the hearing an Advisor of their choice (at the party’s expense, if the Advisor is a paid Advisor). If a party does not have an Advisor present at the hearing, the Institution will provide an Advisor of its choice for the limited purpose of conducting questioning on behalf of that party as provided below.
Except with respect to questioning as described below, the Advisor’s role during the hearing is limited to consulting with their advisee, and the Advisor may not present evidence, address the Hearing Panel during the hearing, object to any aspect of the proceeding, or disrupt the hearing in any way, and any consultation with the advisee while the hearing is in progress must be done in a quiet non-disruptive manner or in writing. The Advisor may consult with the advisee verbally outside the hearing during breaks, when such breaks are granted by the Chair of the Hearing Panel. An Advisor’s questioning of the other party and any witnesses must be conducted in a respectful, non-intimidating and non-abusive manner.
During the hearing, the Hearing Panel members will ask questions or the witnesses, and each party’s Advisor will be permitted to ask questions during cross-examination of the other party and any witnesses. However, only relevant questions may be asked of a party or witness. Before a party or witness answers a question during cross examination or otherwise, the Chair of the Hearing Panel must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, other than questions and evidence about the Complainant’s prior sexual behavior that (a) are offered to prove that someone other than the Respondent committed the alleged misconduct, or (b) concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
Upon completion of the Hearing, the Hearing Panel will deliberate and reach a determination as to whether the Respondent is responsible or not responsible for the alleged violation(s). The Hearing Panel will use “preponderance of the evidence” as the standard of proof to determine whether each alleged violation of the Policy occurred. “Preponderance of the evidence” means that the Hearing Panel must determine whether, based on the evidence presented, it is more likely than not that the Respondent engaged in the conduct charged.
Each party may submit a written personal impact statement to the Title IX Coordinator for consideration by the Hearing Panel in determining an appropriate sanction if there is a finding of responsibility on one or more of the charges. The parties must submit their statements to the Title IX Coordinator prior to the hearing. The Title IX Coordinator will provide each of the parties an opportunity to review any statement submitted by the other party.
In determining the appropriate sanctions, the Hearing Panel consult with appropriate Institution officials and consider factors that may include:
- the nature and severity of, and circumstances surrounding, the violation(s);
- the Respondent’s state of mind at the time of the violation(s) (intentional, knowing, bias-motivated, reckless, negligent, etc.);
- the Respondent’s previous disciplinary history;
- the need for sanctions to bring an end to the conduct; and/or to prevent the future recurrence of similar conduct;
- the need to remedy the effects of the conduct on the Complainant and/or the community;
- the impact of potential sanctions on the Respondent;
- sanctions imposed by the Institution in other matters involving comparable conduct; and
- any other lawful factors deemed relevant by the Hearing Panel.
Further, at this stage of the proceedings, the Hearing Panel may consider past findings of domestic violence, dating violence, stalking or sexual assault concerning the Respondent.
Possible sanctions include:
- Termination from Institution employment
- In the event the Respondent is a tenured faculty member, and the Hearing Panel determines that termination from employment is the appropriate sanction, a recommendation shall be made to D’Youville administration who may, in turn, commence dismissal proceedings in accordance with the applicable collective bargaining agreement.
- Ban from Institution premises and/or events
- Mandatory leave of absence
- Community service
- Housing reassignment
- Removal from student housing or otherwise restricting access to Institution facilities or activities
- Transcript notation
The Hearing Panel will issue a written determination including the following information:
- A description of the complaint allegations that were adjudicated;
- A description of the procedural steps taken from the submission of the formal complaint through the determination, including notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
- Findings of fact supporting the determination;
- Conclusions regarding the application of the policy to the facts;
- A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions to be imposed on the Respondent, and whether remedies designed to restore or preserve equal access to the Institution’s educational programs or activities will be provided to the Complainant; and
- The procedures and permissible bases for the Complainant and Respondent to appeal.
The Chair of the Hearing Panel will share the written determination with the Title IX Coordinator who will transmit, by Institution email, the decision to both the Complainant and the Respondent simultaneously. This decision letter will outline the full appeal process.
Both the Complainant and the Respondent have the right to appeal a Hearing Panel decision. Should an appeal be filed, notice of this appeal will be shared with the non-appealing party by the Title IX Coordinator. Both parties will be given an opportunity to submit a written statement in support of, or challenging, the outcome of the hearing.
An appeal may be made only on justifiable grounds including:
- A procedural error or omission occurred that significantly impacted the outcome of the Hearing or the sanction imposed;
- New evidence, unknown or not reasonably available during the investigation or Hearing, that could substantially impact the original finding;
- Review of whether bias or a conflict of interest was involved in the investigation and/or hearing such that it affected the outcome of the case and resulting sanctions.
The following outlines the appeal process for cases involving a Student-Respondent:
- Appeal Due:
In writing, within 5 business days of the delivery of the written findings of the Title IX Hearing Panel. The appeal must be submitted to the Title IX Coordinator or designee.
- Appeal Process:
- The Title IX Appeal Panel will review the appeal and determine if one of the three ground(s) for appeal have been met.
- The Title IX Appeal Panel will review the appeal and any response received from the non-appealing party based only upon the grounds identified and, if sufficient grounds for appeal exist, appropriate remedial action will be taken.
- If no ground for appeal exists, the appeal will be denied. The decision of the Title IX Appeal Panel shall be final and not appealable.
- Principles governing appeals:
- Appeals are confined to a review of the written record on appeal, limited to evidence presented at the Hearing, and documentation pertinent to the grounds for appeal. The Title IX Appeal Panel shall not consider matters outside of the Hearing record in making a determination of an appeal.
- Appeals granted based on new evidence will be remanded to the original Hearing Panel, who will then review the factual findings to determine if the new information changes the factual finding. If the Hearing Panel determines that the factual finding has changed, the new factual finding and sanctions will be returned to the Title IX Coordinator for delivery.
- Sanctions imposed as a result of the Hearing are normally implemented immediately and remain in place throughout the appeal process.
All parties will be informed, at the same time, of the final decision of the Title IX Appeal Panel, and rationale for the result, via email and by letter within five business days of receipt of the appeal from the Title IX Coordinator. The decision of the Title IX Appeal Panel is final and may not be appealed.
In cases where the Respondent is a Institution employee or third party, if the Impacted Party is dissatisfied with final determinations made under this policy, whether it is the results of the hearing or the sanction determination, then the Impacted Party may file an appeal with the President of the Institution within 5 business days of the delivery of the written decision regarding responsibility and/or sanctions. The appeal must be in writing and submitted through official Institution email. The grounds, appeal process, and general principles described above will be followed with respect to appeals to the President. The President’s written decision regarding an appeal by the Impacted Party or non-union Employee-Respondent will be provided to the parties within 20 calendar days following the submission of the written appeal statement. The President’s decision is final.
If the Respondent is a non-union Institution employee and is dissatisfied with final determinations made under this policy, whether it is the results of the hearing or the sanction determination, then the Respondent may file an appeal with the President of the Institution within 5 business days of the delivery of the written findings of the Title IX Hearing Panel. The appeal must be in writing and submitted through official Institution email. The grounds, appeal process, and general principles described above will be followed with respect to appeals to the President. The President’s written decision regarding an appeal by the Impacted Party or non-union Employee-Respondent will be provided to the parties within 20 calendar days following the submission of the written appeal statement. The President’s decision is final.
If the Respondent is a Institution employee represented by a union and is dissatisfied with a determination made under this policy, then the Respondent may challenge such determination pursuant to the procedures set forth in the applicable collective bargaining agreement, subject to any and all terms, conditions, limitations, and restrictions provided in, and applicable to, those procedures.
In cases where the Respondent is a Institution employee who holds a position at the level of Vice President or higher, then the appropriate process for appeals will be determined by the President and/or the Chair of the Board of Trustees.
A third party-Respondent has no right to appeal under this policy.
Whether or not an Impacted Party chooses to make an official report of Prohibited Conduct, they are 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.
- D’Youville Campus Safety 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
- Buffalo Police Sex Offense Squad: (716) 851-4494
- D’Youville Campus Safety: (716) 829-7551
- Erie County Sheriff/Department of Family Offenses: (716) 858-6102
- Erie County District Attorney/CARR Unit: (716) 858-2525
- Medical Treatment
- 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
- Buffalo General Hospital: (716) 859-5600
- Crisis Services: (716) 834-3131
- On-Campus Resources
- Danielle Nesselbush, Title IX Coordinator: (716) 829-8337
- D’Youville Student Affairs: (716) 829-7812
- D'Youville Athletics: (716) 829-8304
- D'Youville Campus Safety: (716) 829-7550
- D'Youville Human Resources: (716) 829-8222
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
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 for anyone in the D’Youville 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).
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 Institution 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.
An Impacted Party who files a formal complaint of Sexual Misconduct or has an official complaint filed on their behalf.
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 undergraduate or graduate student or an employee who has reportedly been subjected to sexual misconduct by a D’Youville Institution undergraduate or graduate student or an employee of D’Youville Institution 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 undergraduate or graduate student or an employee of D’Youville 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 sexual misconduct, 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 sexual misconduct, discriminatory or sexually 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:
Violence committed by a person: (1) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (2) 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.
Dating violence 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.
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 institution is located; 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.
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.
Any sexual act directed against another person, forcibly and/or against that person's will; or not forcibly or against the person's will where the victim is incapable of giving affirmative consent. Sexual assault consists of the following specific acts:
- The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
- The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person's will; or, not forcibly or against the person's will where the victim is incapable of giving consent because of his/her/their youth or because of his/her/their temporary or permanent mental or physical incapacity.
- Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
- Statutory Rape. Non-forcible sexual intercourse with a person who is under the statutory age of consent. The statutory age of consent in New York is 17.
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.
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.
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.
The Complainant and the Respondent may each have present with them during the hearing an Advisor of their choice (at the party’s expense, if the Advisor is a paid Advisor). The Advisor may be, but is not required to be, an attorney. If a party does not have an Advisor present at the hearing, the Institution will provide an Advisor of its choice for the limited purpose of conducting questioning on behalf of that party during cross examination.
The Advisor may confer only with the party they are advising and is permitted to ask questions during cross examination of the other party and any Hearing witnesses. The Advisor is not otherwise permitted to speak to the Hearing Panel members or to any other Hearing participant before, during, or after the Hearing.
The Complainant and the Respondent also have the right to be accompanied by an Advisor of their choice during the investigation, who may be, but is not required to be, an attorney. The Institution does not appoint an Advisor for a party during the investigation phase of the process.
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 Institution official charged with ensuring the Institution’s overall compliance with Title IX and related policy.
The Hearing Panel is composed of a Deputy Title IX Coordinator and two additional members selected from a pool of trained investigators.
Updated: May 22, 2023