Sexual Misconduct Cases Student Conduct Procedure

Introduction  

This section outlines the policy and procedures that will be followed for all cases of sexual misconduct in addition to procedures described in the student conduct procedures.  In addition, there is also a great deal of additional information and resources on the Title IX homepage.

The College’s Sexual Harassment Response & Prevention Policy can be found online.

In the event there is a conflict between any procedures set forth in this section with any procedures described in any other portion of this code, the procedures set forth in this section will control for cases of sexual misconduct.

Compliance with any of the below listed provisions does not constitute a violation of Section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly known as the Family Educational Rights and Privacy Act of 1974 (FERPA).  

The burden of proof in all sexual misconduct cases is a “preponderance of the evidence” - whether it is “more likely than not” that, the sexual misconduct occurred. If the evidence meets this standard, then the accused/respondent MUST be found responsible of a violation of this code.   

Student Conduct Process in Cases Involving Sexual Misconduct  

1. Victims/Survivors/Reporting Individuals have the right to request that student conduct charges be filed against the Accused/Respondent. Conduct proceedings are governed by the procedures set forth in the Community Rights & Responsibilities as well as federal and New York State law, including the due process provisions of the United States and New York State Constitutions.
2. Throughout conduct proceedings, both parties of the complaint will have:  
   1. The same opportunity to be accompanied by an advisor of their choice who may assist and advise the parties throughout the conduct process and any related hearings or meetings. Advisors may not address the Student Conduct Hearing Board during a disciplinary hearing but may speak privately with the advisee during the proceedings.  Participation of the advisor in any proceedings is governed by federal law and the SUNY Potsdam Student Code of Conduct.
   2. The right to a prompt response to any complaint. SUNY Potsdam will conduct timely reviews of all complaints of sexual misconduct. Absent extenuating circumstances, review and resolution is expected to take place within sixty (60) calendar days from receipt of the complaint. All deadlines and time requirements detailed below may be extended for good cause as determined by the Title IX Coordinator or the Chief Student Affairs Officer, or a designee of either of those individuals. Both parties will be notified in writing of the delay, the reason for delay, and provide the date of the new deadline or event. Extensions requested by one party will not be longer than five (5) business/school days.  With respect to timing, parties should take notice of the following:  
      1. The preliminary review of all complaints, including any necessary interviews to be conducted and any necessary interim measures to be put in place, will usually be completed within seven (7) days of receipt of the complaint.
      2. The subsequent, comprehensive review and investigation of the complaint, including interviews with all involved parties and gathering of evidence, will usually be completed within forty (40) days of receipt of the complaint.
      3. Results of the complaint, via either a formal hearing or waiver of hearing will typically be issued within sixty (60) days of receipt of the complaint, or, if longer, within a prompt and timely manner.
      4. Appeals for cases of sexual misconduct will be conducted as per the procedures described in “Appeals of Cases of Sexual Misconduct”.
   3. The right to have their complaint investigated and adjudicated in an impartial and thorough manner by individuals who receive annual training in conducting investigations of sexual violence, the effects of trauma, impartiality, the rights of the Respondent, including the right to a presumption that the Respondent is, “not responsible” until a finding of responsibility is made and other issues related to sexual assault, domestic violence, dating violence, and stalking.
   4. The right to an investigation and process conducted in a manner that recognizes the legal and policy requirements of due process (including fairness, impartiality, and a meaningful opportunity to be heard) and is not conducted by individuals with a conflict of interest.  
   5. The right to receive advance written or electronic notice of the date, time, and location of any meeting or hearing they are required to or are eligible to attend. Accused individuals will also be told the factual allegations concerning the violation, a reference to the specific code of conduct provisions alleged to have been violated, and possible sanctions.
   6. The right to have a conduct process run concurrently with a criminal justice investigation and proceeding, except for temporary delays as requested by external municipal entities while law enforcement gathers evidence. Temporary delays should not last more than ten (10) days except when law enforcement specifically requests and justifies a longer delay.
   7. The right to offer evidence during an investigation and to review available relevant evidence in the case file (or otherwise held by SUNY Potsdam).
   8. The right to present evidence and testimony at a hearing, where appropriate.
   9. The right to a range of options for providing testimony via alternative arrangements, including telephone/videoconferencing or testifying with a room partition.
   10. The right to exclude prior sexual history with persons other than the other party in the conduct process or their own mental health diagnosis or treatment from admittance in college disciplinary stage that determines responsibility. Past findings of domestic violence, dating violence, stalking, or sexual assault may be admissible in the disciplinary stage that determines sanction.
   11. The right to ask questions of the decision maker and via the decision maker indirectly request responses from other parties and any other witnesses present
   12. The right to make an impact statement during the point of the proceeding where the decision maker is deliberating on appropriate sanctions.
   13. The right to simultaneous (among the parties) written or electronic notification of the outcome of a conduct proceeding, including the decision, any sanctions, and the rationale for the decision and any sanctions.
   14. The right to written or electronic notice about the sanction(s) that may be imposed on the Accused/Respondent based upon the outcome of the conduct proceeding. For students found responsible for sexual assault, the available sanctions are suspension with additional requirements and expulsion/dismissal.
   15. Access to at least one level of appeal of a determination before a panel that is fair and impartial and does not include individuals with a conflict of interest.
   16. The right to have access to a full and fair record of a student conduct hearing, which shall be preserved and maintained for at least five (5) years.
   17. The right to choose whether to disclose or discuss the outcome of a conduct hearing.
   18. The right to have all information obtained during the course of the conduct or judicial process be protected from public release until the appeals panel makes a final determination unless otherwise required by law.
   19. Evidence to be presented by either party during any hearing on the charges must be submitted to the Director of Student Conduct and Community Standards at least two (2) business days in advance of the scheduled hearing. This evidence will be shared with the opposing party. The Student Conduct Hearing Board may exclude evidence that has not been shared or adjourn the hearing to afford all parties the opportunity to review evidence to be presented during the hearing. The Director of Student Conduct and Community Standards or the Student Conduct Hearing Board will make the final decision related to the admissibility of all evidence.
3. Temporary and Administrative Directives
   1. When the Accused/Respondent is a student, the College may issue a “No Contact Order” meaning that continuing to contact the protected individual, either directly in person, by telephone, email, text message, or other electronic means of communication, or through a third party (other than an attorney), is a violation of  College policy subject to additional conduct charges; if both parties of the complaint observe each other in a public place, it is the responsibility of the Accused/Respondent to leave the area immediately and without directly contacting the protected person.  Additional information can be found at: https://www.potsdam.edu/about/safety/title-ix/no-contact-orders
   2. When the Accused/Respondent is a student and presents a continuing threat to the health and safety of the community, they may be subject to a temporary suspension pending the outcome of the student conduct process.
   3. Both parties in the complaint shall, upon request, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of any Administrative Directives and/or Temporary Directives. Both parties in the complaint shall be allowed to submit evidence in support of their request.  
      1. The request for review must be submitted in writing to the Director of Student Conduct and Community Standards (by email:    StudentConduct@potsdam.edu or in person to the Student Conduct Office) within two (2) calendar days of the imposition of Temporary and/or Administrative Directives.
      2. The College may establish an appropriate schedule for the Accused/Respondent to access applicable institution buildings and property at a time when such buildings and property are not being accessed by the Victim/Survivor/Reporting Individual.