Tuesday, January 5, 2010

Please comment: CUNY-wide Sexual Assault Policy draft for all 480,000 students

Jerin Alam, co-chair of the NOW - NYS YFTF, and former president of Hunter Women’s Rights Coalition, was one of two students to ask CUNY central to create an university-wide Sexual Assault policy a year ago. She is currently on the taskforce of 12 trying to create this policy.

Please find below the current draft, prepared by Kristen Bowes, Associate General Counsel of The City University of New York (CUNY).  Please post any comments/suggestions on this draft, or email us at youngfeminists@gmail.com

The City University of New York

Policies and Procedures Concerning Sexual Assault, Stalking
And Dating And Domestic Violence Against Students

I.            Policy Statement

The City University of New York seeks to create and maintain a safe environment in which all members of the University community—students, faculty and staff—can learn and work free from the fear of sexual assault and other forms of violence.  The University’s policies on Workplace Violence, and Domestic Violence and the Workplace apply to all acts of violence that occur in the workplace or that may spill over into the workplace.  The University’s Sexual Harassment Policy prohibits many forms of unwelcome conduct, including but not limited to, physical conduct of a sexual nature. This policy is specifically directed towards sexual assault, dating/domestic violence and stalking committed against students on and off-campus. 

Rape is the most common violent crime on American college campuses today.  According to a national survey conducted by the U.S. Department of Justice in 2000, approximately one out of every four college women is raped during her college years.  Ten percent of those rape victims on campuses are believed to be men, according to survey data.  For a number of reasons, however, a large majority of sexual assaults against both sexes on college campuses go unreported.  Victims often feel ashamed or embarrassed or do not view their assault as a sex offense, perhaps because the assault was perpetrated by someone she/he knew, or because alcohol or drug use was involved. Often victims choose not to report the attack for fear of retribution by their perpetrator, or that she/he will be punished or treated as a social outcast by the community.  Male victims of sexual assault often underreport because they face societal prejudices and stereotypes about masculinity and male sexual behavior.

The 2000 Department of Justice survey also found that 13% of college women had been stalked in the school year and that the highest rate of intimate partner violence is among women ages 18 to 24.  Yet these crimes are often underreported as well.  In stalking cases, victims frequently are unaware or unsure of whether they are being stalked.  In dating and domestic violence cases, victims often have difficulty recognizing that the abusive behavior is not normal or healthy. 

CUNY wants all victims of sexual assault, stalking and dating and domestic violence to know that the University has professionals and law enforcement officers who are trained in the field to assist student victims in obtaining help, including immediate medical care, counseling and other essential services.  If the perpetrator is also a member of the CUNY community, the college will take prompt action to investigate, and, where appropriate, to discipline and sanction the perpetrator.  CUNY urges all victims to seek immediate help in accordance with the guidelines set forth in this policy with the assurance that all information received from a complaint will be handled as confidentially as possible.

In order to eliminate sexual assaults and other forms of violence, and to create a safe college community, it is critical to provide an appropriate prevention education program and have trained professionals to provide vital supportive services. 

Accordingly, CUNY is committed to the following goals:

• Providing clear and concise guidelines for students to follow in the event that they or someone      they know has been the victim of a sexual assault, dating/domestic violence, or stalking.

• Assisting the victim of sexual assault or abuse in obtaining necessary medical care and     counseling, whether it be on or off-campus.

• Providing the most informed and up-to-date education and information to its students about  how to identify situations that involve sexual assault, dating and domestic violence, and    stalking, and ways to prevent these forms of violence.

• Educating and training all staff members, including public safety, student affairs personnel and counselors, to assist victims of sexual assault, dating or domestic violence, and stalking.

• Ensuring that disciplinary procedures are followed in the event that the perpetrator is a CUNY student or employee.

II.             Sexual Assault And Other Crimes Of Violence:
                  Definitions and Background Information

Sexual assault is a crime.  Under Article 130 of the New York State Penal Law, it is a sex offense to engage in sexual contact or to engage in sexual intercourse, sodomy or sexual abuse by contact without the consent of the victim or where the victim is incapable of giving consent.  Criminal sex offenses are classified in degree according to the seriousness of sexual activity, the degree of force used, the age of the victim and the physical and mental capacity of the offender and victim.  

Stalking is also a crime.  Under Article 120 of the New York State Penal Law, a person is guilty of stalking when he/she intentionally, and for no legitimate purpose, engages in  a  course  of conduct  directed  at  a specific person, and knows or should know that such conduct is likely to cause fear of material harm to the health, safety or property of the victim. Examples of such conduct are following, telephoning or initiating communication or contact (i.e. via email) with the victim.  Dating and domestic violence is controlling, abusive, and aggressive behavior in a romantic relationship, and often involves illegal conduct on the part of the aggressor, including sex offenses, stalking and/or harassment. 

See Attachment A for a list of some of the relevant sex and stalking offenses and their maximum penalties under New York State Law.

A.  Sexual Assault

Sexual assault is a crime of power, aggression and violence.  Terms such as “date rape” and “acquaintance rape” tend to minimize the fact that the act of rape, or any sexual assault, is a serious crime.  There is never an excuse or a reason for a person to rape, assault or even touch another person’s private parts without consent.  The impact on survivors of such an attack can cause severe and lasting physical, mental and emotional damage.  

Who is a perpetrator?

Many people think that sexual assaults are only perpetrated by vicious strangers on dark, deserted streets.  In fact, studies indicate that between 80 and 90 percent of all people who have been raped know their perpetrator(s).  This is called “date rape” or “acquaintance rape.”  “Date rape” is not a legally distinct or lesser category of rape.  It refers to a relationship and situational context in which rape occurs on a date.  Rape or any sexual offense, whether on a date or not, is the same criminal offense involving the same elements of force, exploited helplessness or underage participation. With sexual assaults where the victim knows the perpetrator, alcohol use is often involved on the part of either the victim or the perpetrator.  However, a sexual assault is still a crime regardless of the intoxication of the perpetrator or the victim.

Who is a victim?

Anyone can be a victim, regardless of gender, age, race, sexual orientation, religion, ethnicity, class or national origin.  Though women and girls are primary targets of these crimes, men and boys are sexually victimized too, and have been found to suffer the same aftermath as women.  Regardless of whether the victim was abusing alcohol and/or underage, she or he is still the victim of the sex offense.

When is there lack of consent?

Under New York law, lack of consent to a sexual contact may be demonstrated in the following ways: (1) forcible compulsion including the use of physical force or threat (express or implied) which places the person in fear of physical injury to self or another; (2) incapacity to consent on the part of the victim; (3) circumstances in which the victim does not expressly or impliedly acquiesce in the actor’s conduct; or (4) circumstances in which the victim clearly expressed by words or actions that he or she did not consent to engage in such sexual act and a reasonable person would have understood such person’s words or actions as an expression of lack of consent to such conduct. 

A person is deemed incapable of giving consent if she/he is (a) under the age of 17, (b) mentally incapacitated (which may include incapacity due to the victim’s ingestion of alcohol or drugs), (c) physically disabled or (d) physically helpless (asleep, unconscious or for any other reason physically unable to communicate unwillingness to act, which may also include incapacity due to the victim’s ingestion of alcohol or drugs). 

 Who is responsible for a sexual attack?

In the absence of consent, the attacker is always responsible for having committed the sexual assault regardless of the victim’s appearance, behavior, or conduct on previous occasions.  An attacker cannot assume that the way a person dresses or acts is an invitation for sexual advances.  A person may welcome some forms of sexual contact and be opposed to others. The more impaired a person is from alcohol or drugs, the less likely she/he can give consent; having sex with someone who is “passed out” or sleeping is rape.  And regardless of previous sexual activity, if someone refuses sexual contact, the failure to respect that limit constitutes non-consensual sex.

Who can prevent a sexual attack from occurring? 

Every member of the CUNY community, by recognizing situations where sexual violence occurs, by acknowledging that anyone can be a victim of sexual assault, and by becoming active, positive and responsible community members who look out for other members of the CUNY community.

B.  Stalking

Stalking generally refers to harassing or threatening behavior that an individual engages in repeatedly, such as following a person, appearing at a person’s home or place of business, making harassing calls, or leaving written messages or objects.  Unlike other crimes, which normally consist of a single illegal act, stalking is a series of actions that, when taken individually, may be perfectly legal.  For instance, sending a birthday card or flowers or standing across the street from someone’s house is not a crime. When these actions are part of a course of conduct that is intended to instill fear in a victim, however, they may be considered illegal behavior. 

Who is a stalker?

Nearly 90% of stalkers are male, and most stalkers know their victims (60% are current or former intimate partners.)  Most stalkers are in their late teens to middle-aged, and stalkers may come from every socio-economic background.  Stalkers are motivated by obsession and a desire for control, which stem from either a real or imagined relationship with the victim.   

Who is a victim of stalking?   

In stalking cases, more than half of the victims are between 18 and 29 years old and 75% of victims are female.  Male victims are stalked by male and female offenders at the same rate, and tend to be stalked by strangers and acquaintances rather than intimates.  According to a 2000 study, more than 13% of college women indicated that they have been stalked in one college year. 

What are the consequences of stalking?

Stalking often causes pervasive, intense fear and can be extremely disruptive for the victim.  In addition to presenting a continual threat of physical and/or sexual violence, the stalker can erode the victim’s sense of safety and personal control.  Stalking causes victims to miss work and school.  And stalking in dating and domestic violence cases is often related to more severe violence. 

Is stalking a common occurrence on college campuses?

Research shows that stalking has become a common occurrence on today’s college campuses.  Some of the very aspects that make campus life appealing aid the potential stalker. The campus is a closed environment where it is easy to determine a student’s schedule; it is a highly social atmosphere where stalking behavior may be confused with positive, romantic attention at first; student movement through the campus is predictable, and access to academic buildings may be quite easy.  One can easily find information about a selected student through the campus directory, including the student’s address, telephone number and email address.  As a result of obtaining students’ email addresses, cyber-stalking has become common, which can lead to other forms of stalking and is equally as frightening for victims.         
C.  Dating and Domestic Violence
Dating and Domestic violence is a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.  Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, or injure someone.
Intimate partner includes persons legally married to one another; persons formerly married to one another; persons who have a child in common, regardless of whether such persons are married or have lived together any time; couples who live together or have lived together; or persons who are dating or who have dated in the past, including same sex couples.
Some of the forms of domestic and dating abuse include:
Physical Abuse: Hitting, slapping, shoving, grabbing, pinching, hair-pulling, biting, etc.        Physical abuse also includes denying a partner medical care or forcing alcohol and/or drug use.
Sexual Abuse: Coercing or attempting to coerce any sexual contact or behavior without consent. Sexual abuse includes, but is certainly not limited to marital rape, attacks on sexual parts of the body, forcing sex after physical violence has occurred, or treating one in a sexually demeaning manner.
Emotional Abuse: Undermining an individual's sense of self-worth and/or self-esteem. This may include, but is not limited to, constant criticism, diminishing one's abilities, name-calling, or damaging one's relationship with his or her children.
Economic Abuse: Making or attempting to make an individual financially dependent by maintaining total control over financial resources, withholding one's access to money, or forbidding one's attendance at school or employment.
Psychological Abuse: Causing fear by intimidation; threatening physical harm to self, partner, children, or partner's family or friends; destruction of pets and property; or forcing isolation from family, friends, or school and/or work.
Dating and Domestic violence can happen to anyone regardless of race, age, religion, or gender, and affects people of all socioeconomic backgrounds and education levels. Domestic violence occurs in both opposite-sex and same-sex relationships and can happen to intimate partners who are married, living together, or dating.  Dating and domestic violence can be difficult to identify because violence can occur in cycles that alternate with the perpetrator’s expressed devotion and love for the partner. This is all part of the cycle of manipulation and control. 
III.  Procedures For Reporting Incidents Of Sexual Assault And Other Forms of Violence
Obtaining assistance after a student is sexual assaulted, stalked or is in an abusive relationship is extremely important and can involve different points of on-campus contact for students, faculty and staff, including Public Safety, Women’s/Men’s Centers and Counseling Departments, and/or the Dean of Student Development/Student Affairs. Each provides different forms of advocacy which together address many of the needs of survivors.

Contact Law Enforcement Personnel Immediately

CUNY urges any student who has been the victim of a sexual assault or other act of violence, or any student or employee who has witnessed a sexual assault or other act of violence against a student, to immediately report the incident to the college Public Safety Department if the attack occurred on-campus, or to call 911 or go to the local NYPD precinct if the incident took place off-campus. See Attachment B for a list of Emergency Contact Numbers (on and off-campus). 

Seek Immediate Medical Attention

It is critical that victims of a physical assault receive comprehensive medical attention as soon as possible.  For a sexual assault in particular, immediate treatment and the preservation of evidence of the attack (i.e. do not shower and retain the clothing worn during the attack) is crucial to a criminal investigation.  If a student believes that she/he may be the victim of date rape by being drugged, she/he should go directly to a hospital to receive a toxicology examination since such drugs only remain in a person’s system for a short period of time.  In all other circumstances, public safety and police personnel can assist the victim in obtaining medical care.  Attachment B provides a list of local hospitals, some of which are designated as SAFE (Sexual Assault Forensic Examiner) hospitals that are specially equipped to handle sexual assaults and are trained to gather minute evidence from such assaults.  Rape crisis advocates at ER’s are also trained to handle domestic violence.  EMS will ensure that the victim is brought to a SAFE hospital at the victim’s request.  Medical attention is critical not only to treat internal and external injuries and to combat the possibilities of sexually transmitted infections and/or pregnancy, but also to collect evidence that can be used against the perpetrator.  It is also vital to the victim’s recovery that she/he receive emotional support and professional counseling as soon as possible after the attack.  In cases of domestic/dating violence, this counseling is crucial to the victim’s on-going safety.

Seek On-Campus Assistance

CUNY encourages the victim to contact the Dean of Student Affairs/Student Development to obtain assistance in accessing medical and counseling services, or to make any necessary changes to the student’s academic program or residential housing situation.  Public Safety can assist the victim getting to and from campus safely, filing a police report and obtaining an order of protection against the perpetrator.  The victim can also file a complaint with the College against a perpetrator who is a student or employee of the University with the Dean of Student Affairs/Student Development and the Public Safety Office.    

  Obtaining An On-Campus Advocate

The victim of a sexual assault, stalking or dating/domestic violence will be provided with on-campus support in the form of an advocate from the Women’s/Men’s Center or an appropriately trained counselor to assist the victim in handling the various aspects of his/her ordeal and to provide crisis intervention and/or ongoing counseling services, or a referral to obtain the necessary services if such services are not available on campus.  The campus advocate can also assist the student throughout the College’s complaint process as well.

Handling Sexual Assault, Stalking and Domestic/Dating Violence Complaints On-Campus
The Colleges shall act promptly in response to information that a student has been sexually assaulted, or has been the victim of dating or domestic violence or stalking by another member of the CUNY community. Upon receipt of a complaint, the College shall undertake an appropriate investigation.  If it appears that there is sufficient evidence to warrant disciplinary charges against a student or staff member, such charges shall be brought pursuant to the appropriate University procedures or collective bargaining agreement.  If the perpetrator is a student and the matter is brought before a hearing, the victim and alleged perpetrator are entitled to the same opportunities to have others present and to be informed of the outcome of the proceedings.  The victim is entitled to a report of the results of the proceeding at her/his request.  If a student is found guilty of committing a sexual assault or other act of violence against another CUNY student or employee after a disciplinary hearing, the penalties may include suspension, expulsion from residence halls, or permanent dismissal from CUNY.

The University recognizes that confidentiality is a right of all victims and can be particularly important to victims of sex crimes, dating/domestic violence and stalking. While complete confidentiality cannot be guaranteed, every effort will be made to maintain confidentiality on a “need to know” basis.   Generally, the wishes of a victim not to report a sexual assault or incident of dating/domestic violence or stalking to the police will prevail, but the College reserves the right to notify the police when it believes that such reporting is necessary for the protection of the College community.  Nevertheless, CUNY encourages victims in all circumstances to seek counseling in order to speak confidentially with a professional about her/his options and to begin the recovery period. 

IV.  Implementation Of  The Policies and Procedures Concerning Sexual Assault And Other Forms Of Violence Against Students

The President and Vice President for Student Affairs/Student Development of each college shall be responsible for implementing this policy in accordance with the most up-to-date information and resources pertaining to sexual assault, stalking and dating/domestic violence education and prevention, and victim assistance. The following steps must be taken to implement this policy: 

1. Publication:  A copy of this policy shall be easily accessible on the CUNY website and on the website administered by each College.  A summary shall also be incorporated into every College student handbook.  In addition, copies of the policy and procedures shall be made available in student centers, residence halls, student affairs/student development offices, health clinics and public safety departments, and shall be distributed to all new students during orientations. 

2.       Prevention/Risk Reduction Education:  Each College shall develop materials and programs to educate its students, faculty and staff on the nature, dynamics, common circumstances and effects of sexual assault, dating/domestic violence and stalking, and the means to reduce their occurrence and prevent them.  The prevention education should seek to provide the most recent and relevant information, such as education pertaining to bystander intervention, the importance of peer networks and the significance of fostering a community of responsibility. 

Prevention education materials and programs shall be incorporated into campus orientation activities for all incoming undergraduate and graduate students (including transfers), and shall be made available to all student activity groups, clubs and athletic teams.  In addition, all residence halls shall have a mandatory orientation on sexual assault, stalking and dating/domestic violence prevention.  Colleges are encouraged to assist in the organization of peer education groups and to provide resources to such groups so that the groups can provide training and outreach to other students throughout the academic year.  Since the abuse of alcohol is frequently involved in occurrences of sexual assault and other forms of violence, it is important that the education program include education about the deleterious effects of alcohol abuse. 

3. Professional Training:  Each College shall provide annual training relating to the prevention and handling of sexual assaults, stalking and domestic/dating violence for all security officers, counselors, student affairs staff and resident assistants by experts trained in the field.  Education and training shall also be made available to any interested faculty and staff member.  Each campus must have at least one qualified staff or faculty member serve as a designated liaison and trainer for additional trainings.      

4. CUNY Sexual Assault Advisory Committee:  The University Vice Chancellor for Student Affairs will establish and coordinate a Sexual Assault, Domestic Violence and Stalking Advisory Committee.  The Committee will be charged with monitoring compliance with this policy at all of the campuses and for reviewing the policies and procedures on an annual basis, and making recommendations in the event that updates to prevention and education information are necessitated. In addition, the Office of the Vice Chancellor for Student Affairs shall provide any resources and educational materials that may be needed to ensure full implementation of this policy on every campus. A liaison will be identified from each campus who will report to or serve on this committee. These liaisons will receive standardized trainings in order to fulfill their responsibilities on their campuses.  The policies, procedures and outreach materials and programs will be subject to a continual process of assessment in order to maintain efficacy.


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