Title IX

All forms of sexual harassment, including all forms of sexual harassment, sexual assault, and other sexual violence by employees, students, or third parties against employees, students, or third parties. Students, employees, and third parties are prohibited from harassing others, whether or not the harassment occurs on the SUNY campus or whether it occurs during work hours. Sex discrimination can be carried out by other students, college employees, or third parties. All acts of sex discrimination, including sexual harassment and sexual violence, are prohibited by Title IX.

Unwelcome, gender-based verbal, nonverbal, or physical conduct that is sexual in nature and sufficiently severe, persistent, or pervasive that it unreasonably interferes with, denies, or limits someone’s ability to participate in or benefit from the University’s educational program and/or activities, and is based on power differentials, the creation of a hostile environment, or retaliation.

Physical sexual acts perpetrated against a person’s will or perpetrated where 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.

A physical sexual act or acts committed against another person without consent. Sexual assault is an extreme form of sexual harassment. Sexual assault includes what is commonly known as “rape” (including what is commonly called “date rape” and “acquaintance rape”), fondling, statutory rape and incest. For statutory rape, the age of consent in New York State is 17 years old.

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 refer to New York State 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 New York State 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.

An act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted murder, criminal obstruction or breaching or blood circulation, or strangulation; and such acts have created a substantial risk of physical or emotional harm to a person or a person’s child. Such acts are alleged to have been committed by a family member. The victim can be anyone over the age of 16, any married person or any parent accompanied by his or her minor child or children in situations in which such person or such person’s child is a victim of the act.

Dating 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, but it can also include threats, enforced social isolation and/or humiliation, intimidation, harassment, emotional mistreatment, financial control, forced sex, or making threats with regard to family, friends, and/or children. (4) Some of the common terms used to describe dating violence are courtship violence, battering, intimate partner violence, and date rape. 

Stalking is defined as nonconsensual communication with, and/or harassment of another person. (12) 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. (13) Stalking includes a direct or implied threat, and victims often report fear for their safety. (14) Stalking is about power and control. Stalkers control the time, type, amount, and place of contact.(15) 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. (16)

The Violence Against Women Act and its proposed regulations require the inclusion of certain New York State definitions in a campus’s Annual Security Report and also require that those definitions be provided in campaigns, orientations, programs, and trainings for employees and students. Definitions required include consent, dating violence, domestic violence, sexual assault, and stalking.

CONSENT: Lack of consent results from: forcible compulsion; or incapacity to consent; or where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor’s conduct. Where the offense charged is rape in the third degree, a criminal sexual act in the third degree, or forcible compulsion in circumstances under which, at the time of the act of intercourse, oral sexual conduct, or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances. A person is incapable of consent when he or she is: less than 17 years old; or mentally disabled; or mentally incapacitated; or physically helpless; or committed to the care and custody of the state department of correctional services, a hospital,

the office of children and family services and is in residential care, or the other person is a resident or inpatient of a residential facility operated by the office of mental health, the office for people with development disabilities, or the office of alcoholism and substance abuse services, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such department or hospital.

CONSENT, ABBREVIATED: Clear, unambiguous, and voluntary agreement between the participating to engage in specific sexual activity.

DATING VIOLENCE: New York State does not specifically define dating violence. However, dating violence would include the crimes listed elsewhere in this document when committed by a person in a social relationship of a romantic or intimate nature with the victim. Dating violence includes, but is not limited to, sexual or physical abuse or threat of abuse. It does not include acts covered under the definition of domestic violence.

DOMESTIC VIOLENCE: An act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted murder, criminal obstruction or breaching or blood circulation, or strangulation; and such acts have created a substantial risk of physical or emotional harm to a person or a person’s child. Such acts are alleged to have been committed by a family member. The victim can be anyone over the age of 16, any married person, or any parent accompanied by his or her minor child or children in situations in which such person or such person’s child is a victim of the act.

FAMILY OR HOUSEHOLD MEMBER: Persons related by consanguinity or affinity; persons legally married to one another; person formerly married to one another regardless of whether they still reside in the same household; persons who have a child in common, regardless of whether such persons are married or have lived together at any time; unrelated persons who are continually or at regular intervals living in the same household or who have in the past continually or at regular intervals lived in the same household; persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors that may be considered in determining whether a relationship is an “intimate relationship” include, but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an intimate relationship; any other category of individuals deemed to be a victim of domestic violence as defined by the office of children and family services in regulation.

PARENT: means natural or adoptive parent or any individual lawfully charged with a minor child’s care or custody.

SEXUAL ASSAULT: New York State does not specifically define sexual assault. However, according to the federal regulations, sexual assault includes offenses that meet the definitions of rape, fondling, incest, or statutory rape as used in the FBI’s UCR program.

SEX OFFENSES; LACK OF CONSENT: Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.

SEXUAL MISCONDUCT: When a person (1) engages in sexual intercourse with another person without such person’s consent; or (2) engages in oral sexual conduct or anal sexual conduct without such person’s consent; or (3) engages in sexual conduct with an animal or a dead human body.

RAPE IN THE THIRD DEGREE: When a person (1) engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than 17 years old; (2) being 21 years old or more, engages in sexual intercourse with another person less than 17 years old; or (3) engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.

RAPE IN THE SECOND DEGREE: When a person (1) being 18 years old or more, engages in sexual intercourse with another person less than 15 years old; or (2) engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It is an affirmative defense to the crime of rape in the second degree the defendant was less than four years older than the victim at the time of the act.

RAPE IN THE FIRST DEGREE: When a person engages in sexual intercourse with another person (1) by forcible compulsion; or (2) who is incapable of consent by reason of being physically helpless; or (3) who is less than 11 years old; or (4) who is less than 13 years old and the actor is 18 years old or more.

CRIMINAL SEXUAL ACT IN THE THIRD DEGREE: When a person engages in oral or anal sexual conduct (1) with a person who is incapable of consent by reason of some factor other than being less than 17 years old; (2) being 21 years old or more, with a person less than 17 years old; (3) with another person without such persons consent where such lack of consent is by reason of some factor other than incapacity to consent.

CRIMINAL SEXUAL ACT IN THE SECOND DEGREE: When a person engages in oral or anal sexual conduct with another person (1) and is 18 years or more and the other person is less than 15 years old; or (2) who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It is an affirmative defense that the defendant was less than four years older than the victim at the time of the act.

CRIMINAL SEXUAL ACT IN THE FIRST DEGREE: When a person engages in oral or anal sexual conduct with another person (1) by forcible compulsion; (2) who is incapable of

consent by reason of being physically helpless; (3) who is less than 11 years old; or (4) who is less than 13 years old and the actor is 18 years old or more.

FORCIBLE TOUCHING: When a person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire. It includes squeezing, grabbing, or pinching.

PERSISTENT SEXUAL ABUSE: When a person commits a crime of forcible touching, or second or third degree sexual abuse within the previous 10-year period, has been convicted two or more times, in separate criminal transactions for which a sentence was imposed on separate occasions of one of one of the above-mentioned crimes or any offense defined in this article, of which the commission or attempted commissions thereof is a felony.

SEXUAL ABUSE IN THE THIRD DEGREE: When a person subjects another person to sexual contact without the latter’s consent. For any prosecution under this section, it is an affirmative defense that (1) such other person’s lack of consent was due solely to incapacity to consent by reason of being less than 17 years old; and (2) such other person was more than 14 years old and (3) the defendant was less than 5 years older than such other person.

SEXUAL ABUSE IN THE SECOND DEGREE: When a person subjects another person to sexual contact and when such other person is (1) incapable of consent by reason of some factor other than being less than 17 years old; or (2) less than 14 years old.

SEXUAL ABUSE IN THE FIRST DEGREE: When a person subjects another person to sexual contact (1) by forcible compulsion; (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than 11 years old; or (4) when the other person is less than 13 years old.

AGGRAVATED SEXUAL ABUSE: For the purposes of this section, conduct performed for a valid medical purpose does not violate the provisions of this section.

AGGRAVATED SEXUAL ABUSE IN THE FOURTH DEGREE: When a person inserts a (1) foreign object in the vagina, urethra, penis, or rectum of another person and the other person is incapable of consent by reason of some factor other than being less than 17 years old; or (2) finger in the vagina, urethra, penis, rectum, or anus of another person, causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than 17 years old.

AGGRAVATED SEXUAL ABUSE IN THE THIRD DEGREE: When a person inserts a foreign object in the vagina, urethra, penis, rectum, or anus of another person (1)(a) by forcible compulsion; (b) when the other person is incapable of consent by reason of being physically helpless; or (c) when the other person is less than 11 years old; or (2) causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated.

AGGRAVATED SEXUAL ABUSE IN THE SECOND DEGREE: When a person inserts a finger in the vagina, urethra, penis, rectum, or anus of another person causing physical injury to such person by (1) forcible compulsion; or (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than 11 years old.

AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE: When a person subjects another person to sexual contact: (1) By forcible compulsion; or (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than 11 years old; or (4) when the other person is less than 13 years old and the actor is 21 years old or older.

COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE SECOND DEGREE: When over a period of time, not less than three months, a person: (1) engages in two or more acts of sexual conduct with a child less than 11 years old; or (2) being 18 years old or more, engages in two or more acts of sexual conduct with a child less than 13 years old. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charges offense occurred outside of the time period charged under this section.

COURSE OF SEXUAL CONDUCT AGAINST A CHILD IN THE FIRST DEGREE: When a person, over a period of time not less than three months in duration: (1) engages in two or more acts of sexual conduct, or aggravated sexual contact with a child less than 11 years old; or (2) being 18 years old or more, engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact with a child less than 13 years old.

FACILITATING A SEX OFFENSE WITH A CONTROLLED SUBSTANCE: A person is guilty of facilitating a sex offense with a controlled substance when he or she: (1) knowingly and unlawfully possesses a controlled substance or any preparation, compound, mixture, or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture, or substance that requires a prescription to obtain to another person without such person’s consent and with intent to commit against such person conduct constituting a felony defined in this article; and (2) commits or attempts to commit such conduct constituting a felony defined in this article.

INCEST IN THE THIRD DEGREE: A person is guilty of incest in the third degree when he or she marries or engages in sexual intercourse, oral sexual conduct, or anal sexual conduct with a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother, or sister of either the whole or the half blood, uncle, aunt, nephew, or niece.

INCEST IN THE SECOND DEGREE: A person is guilty of incest in the second degree when he or she commits the crime of rape in the second degree, or criminal sexual act in the second degree, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece.

INCEST IN THE FIRST DEGREE: A person is guilty of incest in the first degree when he or she commits the crime of rape in the first degree, or criminal sexual act in the first degree, against a person whom he or she knows to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or half blood, uncle, aunt, nephew or niece.

STALKING IN THE FOURTH DEGREE: When a person intentionally, and for not legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct (1) is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted; or (2) causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person’s immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or (3) is likely to cause such person to reasonably fear that his or her employment, business, or career is threatened, where such conduct consists of appearing, telephoning, or initiating communication or contact at such person’s place of employment or business, and the actor was previously clearly informed to cease that conduct.

STALKING IN THE THIRD DEGREE: When a person (1) commits the crime of stalking in the fourth degree against any person in three or more separate transactions, for which the actor has not been previously convicted; or (2) commits the crime of stalking in the fourth degree against any person, and has previously been convicted, within the preceding 10 years of a specified predicate crime and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense; or (3) with an intent to harass, annoy, or alarm a specific person, intentionally engages in a course of conduct directed at such person which is likely to cause such person to reasonably fear physical injury or serious physical injury, the commission of a sex offense against, or the kidnapping, unlawful imprisonment, or death of such person or a member of such person’s immediate family; or (4) commits the crime or stalking in the fourth degree and has previously been convicted within the preceding 10 years of stalking in the fourth degree.

STALKING IN THE SECOND DEGREE: When a person: (1) commits the crime of stalking in the third degree and in the course of and furtherance of the commission of such offense: (a) displays, or possesses and threatens the use of, a firearm, pistol, revolver, rifle, sword, billy club, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, slingshot, slungshot, shirken, “Kung Fu Star,” dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, dangerous instrument, deadly instrument, or deadly weapons; or (b) displays what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm; or (2) commits the crime of stalking in the third against any person, and has previously been convicted, within the preceding five years, of a specified predicate crime, and the victim of such specified predicate crime is the victim, or an immediate family member of the victim, of the present offense; or (3) commits the crime of stalking in the fourth degree and has previously been convicted of stalking in the third degree; or (4) being 21 years of age or older, repeatedly follows a person under the age of 14 or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place such person who is under the age of fourteen in reasonable fear of

physical injury, serious physical injury, or death; or (5) commits the crime of stalking in the third degree, against 10 or more persons, in 10 or more separate transactions, for which the actor has not been previously convicted.

STALKING IN THE FIRST DEGREE: When a person commits the crime of stalking in the third degree or stalking in the second degree and, in the course and furtherance thereof, he or she intentionally or recklessly causes physical injury to the victim of such crime.