New York State Definitions Regarding Sexual Misconduct
Affirmative Consent (mandatory)
“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 sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
Bystander
“A person who observes a crime, impending crime, conflict, potentially violent or violent behavior, or conduct that is in violation of rules or policies of an institution.”
Confidentiality
“May be offered by an individual who is not required by law to report known incidents of sexual assault or other crimes to institution officials, in a manner consistent with state and federal law, including but not limited to 20 U.S.C. 1092(f) and 20 U.S.C. 1681(a). Licensed mental health counselors, medical providers and pastoral counselors are examples of institution employees who may offer confidentiality.”
Privacy
“May be offered by an individual when such individual is unable to offer confidentiality under the law but shall still not disclose information learned from a reporting individual or bystander to a crime or incident more than necessary to comply with this and other applicable laws, including informing appropriate institution officials. Institutions may substitute another relevant term having the same meaning, as appropriate to the policies of the institution.”
Accused
“A person accused of a violation who has not yet entered an institution’s judicial or conduct process.”
Respondent
“A person accused of a violation who has entered an institution’s judicial or conduct process.”
Reporting Individual
“Shall encompass the terms victim, survivor, complainant, claimant, witness with victim status, and any other term used by an institution to reference an individual who brings forth a report of a violation.”
Sexual Violence
Sexual violence is a broad term that encompasses sexual assault, ranging from verbal harassment to sexual assault or abuse to rape and sexual homicide. The perpetrator of sexual violence may be a stranger, friend, family member, or intimate partner. It is important to note that 90% of college rape victims know their offenders.
Sexual Assault
Any act of violence, either physical or verbal, in which sex is used as a weapon. At its most basic level, sexual assault refers to any form of nonconsensual sexual activity, which encompasses all unwanted sexual acts from intimidation to touching to penetration. Sexual assault is an act of aggression designed to humiliate, intimidate, control, or instill fear.
Sexual Harassment
Sexual harassment can be verbal/audible (jokes, teasing, nicknames, suggestive remarks, flirting, sexual advances, music with graphic lyrics, etc.), non-verbal (gestures, staring, personal gifts, etc.), visual (graphic pictures, screen savers, email jokes, text messages, cards, etc., physical (touching, hugging, standing very close, etc.) implied or overt sexual threats, quid pro quo (work or education benefits in return for sexual favors either implied or explicit).
Criminal Sexual Assault
Criminal sexual assault is a crime which may include the following conduct:
- Penetration or attempted penetration of the vagina by penis, finger, or object
- Penetration or attempted penetration of the anus by penis, finger, or object
- Penetration or attempted penetration of the mouth by penis, finger, or object
- Non-consensual touching of intimate body parts
- Men and women, irrespective of sexual orientation, may be either perpetrators or victims.
Relationship Violence
Relationship violence is violence that occurs between people who know each other: boyfriends and girlfriends or same sex partners whether or not they live together. The violence may be physical, emotional and/or sexual. It may include threats, enforced social isolation and/or humiliation, intimidation, harassment, emotional mistreatment or abuse, financial control, forced sex or making threats with regard to family, friends, and/or children. Some of the common terms used to describe relationship violence are courtship violence, battering, intimate partner violence, and dating violence or domestic violence.No matter what the motivation for stalking, the unwanted behaviors are the same and may include, but are not limited to: repeated following, repeated telephone calls and hang-ups; letters; unwanted gifts and packages; spreading harmful gossip about victims; breaking-and-entering that can include vandalism, theft, or even simply rearranging objects so that victims know the stalker was there. Stalkers may also enlist their friends or associates to help them stalk or have their associates speak with friends of the victim to obtain information.
Stalking
Stalking is defined as non-consensual communication with, and/or harassment of another person. It is the willful, malicious and repeated harassing or threatening of another person which, as a pattern, tends to escalate in both intensity and frequency over time and can last for many years. Stalking includes a direct or implied threat, and victims often report fear for their safety. Stalking is about power and control. Stalkers control the time, type, amount, and place of contact.
Rape
Rape is a crime which is a form of criminal sexual assault. Every state has its own definitions of rape (please see criminal sexual assault). For a definition of New York State law, please see NYS penal law article 130. In general, rape is actual or attempted penetration accomplished by threats, coercion, or physical force. It includes nonconsensual vaginal, anal, or oral penetration by penis, finger, or any object. In the following circumstances, actual or attempted penetration is rape, because under NYS law, it is impossible for the following to give consent: individuals who are under the influence of alcohol or other controlled substances; who are physically helpless (including sleeping); who are under the age of 17; who are mentally incapacitated; and/or who are mentally disabled. Men and women, irrespective of sexual orientation, may be either perpetrators or victims.