Dean of Students Office

Campus Policy with regard to Sexual Assault

Buffalo State will not tolerate sexual offense(s) in the workplace or academic setting. Offenders will be subject to appropriate campus adjudication processes, disciplinary action, and/or criminal proceedings. Buffalo State policy on sexual assault is designed to specifically address "the public well-being" of Buffalo State students, faculty and staff. To meet this dimension of Buffalo State’s mission statement and as an ongoing goal, we must strive to create a campus community that is intolerant of sexual harassment and all forms of abuse, including sexual assault. In sexual assault instances, Buffalo State is committed to the following threefold process: (1) To provide crisis intervention measures and a campus judicial response for the accuser and the accused; (2) To refer students to criminal authorities; and (3) To educate and promote discussion on interpersonal abuse and violence issues. 

Definition:

Under New York State law, a sexual offense occurs when certain sexual acts are perpetrated against a victim without his or her consent. The law defines both (1) the behavior and the physical nature (body parts, etc.) of a sex offense and (2) the lack of consent involved. "Lack of consent" is defined in New York State's Penal Law as occurring in the following circumstances: Forcible Compulsion:

• Actual physical force.

• The threat of physical force, expressed or implied, that puts the victim in fear of being physically harmed or of another person being physically harmed (e.g. one’s child).

• The threat to kidnap the victim or a third person.

OR Physically helpless: Physically unable to indicate a lack of consent (e.g. because victim is unconscious or because of a physical disability that makes one unable to physically or verbally communicate lack of consent).

OR Under 17 years of age: New York law states that a person less than 17 years of age is legally incapable of consenting to sexual intercourse or other sexual contact. These laws are typically known as statutory rape laws.

• If the victim is under 13, and the defendant is at least 18, this constitutes a 1st degree sexual offense. 1st degree crimes are considered the most serious ones and carry the longest penalties.

• If the victim is under 15 and the perpetrator is at least 18, this constitutes a 2nd degree sexual offense. However, if the defendant is less than 4 years older than the victim, this may constitute an affirmative defense. Affirmative defenses are those in which the defendant introduces evidence that negates criminal liability.

OR Mentally incapacitated: When the victim is made temporarily incapable of understanding or controlling his or her conduct because a drug or other intoxicating substance (e.g. alcohol) was given to them without their consent. OR Mentally disabled: When a person suffers from a mental illness or a condition that renders them incapable of understanding the nature of their conduct. OR Inmate: When a person is literally or physically under the control of others. Some examples are:  

• The victim is an inmate in either a state or city correctional facility (i.e. jail or prison).

• The victim is committed to a psychiatric institution.

• The victim is a juvenile held in any facility, if the perpetrator is anyone employed at that facility.

•  The perpetrator is a health care or mental health provider and the victim is his/her client, unless the doctor makes clear that the sex act is not part of the treatment. This is a Class E Felony. If the medical provider can prove that s/he informed the client that intercourse was not part of the treatment, and the client consented, then a crime has not occurred.

•  Penal Code 130 also prohibits workers in Office of Children and Family Services facilities from having sexual contact with patients of those facilities.

OR Some Factor Other than Incapacity to Consent: Rape 3 and Criminal Sexual Act 3 have recently been modified with a "no means no" clause. In cases of intercourse only, if the victim expressed that he or she did not consent to the sex act in such a way that a reasonable person would have understood those words or acts as expressing lack of consent, this would be prosecutable as Rape in the third degree or Criminal Sexual Act in the third degree. This makes a case easier for the District Attorney to prosecute because it is based on a reasonable person standard, and not on the specific interpretation of a defendant. 

What constitutes a sexual offense?

If any of the following acts are perpetrated against a victim "without his or her consent," as defined above, it is a crime under New York State Law: Sexual Intercourse: the penetration of the penis into the vagina, however slight-- in other words, if the penis goes into the vagina just a little, not in its entirety, that is considered completed "sexual intercourse". (There is no requirement of physical injury and usually there is no requirement that ejaculation or orgasm have occurred.)

AND/OR Criminal Sexual Act (Oral or Anal Sexual Conduct): does not require any penetration and occurs upon contact between penis and mouth, penis and anus (rectum), mouth and anus, or mouth and vaginal area.

AND/OR Sexual Contact: Any touching of the sexual or intimate parts of the body whether over or under clothing:

•  Done for the purpose of gratifying the sexual desire of either party.

• Includes the touching of the victim’s sexual or intimate parts by the perpetrator AND the touching of the perpetrator’s sexual or intimate parts by the victim.

AND/OR Forcible Touching: The intentional and forcible touching of another:

•  Done for the purpose of degrading or abusing another person or done for the purpose of gratifying the defendant’s sexual desire.

• Includes squeezing, grabbing, or pinching.

AND/OR Aggravated Sexual Contact: Insertion of a foreign object (e.g. coke bottle, broom handle, etc.) into the vagina, urethra, penis or rectum.

• Insertion of a finger into vagina, urethra, penis or rectum causing injury, constitutes 2nd degree sexual offense.

• If the insertion of the object causes physical injury, this constitutes a 1st degree sexual offense.

• If no injury occurs, this constitutes a 3rd degree sexual offense.

New Provisions Brought About by the NYS Sexual Assault Reform Act (SARA):

Below you will find an up-to-date explanation of the changes to the Penal Code that is most important for victims.

Crime Victims Board Reimbursement:

In New York State, the Crime Victims Board provides compensation to innocent victims of crime. The CVB also provides funding to agencies serving crime victims and advocates for crime victims’ rights and benefits. You can read more about CVB on their website: Crime Victims Board

• The Crime Victim Board will provide direct reimbursement for sexual assault forensic exams performed by a hospital, sexual assault examiners program, or licensed health care provider.

•  Requires examiners and facilities to accept the state’s determined reimbursement fee from Crime Victims Board as payment in full.

• Allows a victim to assign benefits to his/her private insurance, in which case the Crime Victims Board would not be billed.

• Allows a victim to choose not to inform the medical provider of his/her private insurance is she/he believes that providing that information would interfere with her/his personal privacy or safety.

Drug-Facilitated Rape:

GHB is sometimes known as the "date rape drug". Committing a sex crime by using GHB is a D level felony and is determined by the following:

• An individual knowingly and unlawfully possesses a controlled substance.

• He or she administers that substance without such person’s consent.

• The drug is administered with the intent to commit felonious sexual assault.

• He or she commits or attempts to commit such a felony.

Emergency Contraception:

A new provision in 2003 requires hospitals that treat rape victims to provide information on emergency contraception. The Department of Health was given the responsibility to develop and produce informational materials on emergency contraception to be used by all hospitals in New York State. If requested by the victim, the hospital must provide emergency contraception to him or her.

Prevention:

Buffalo State attempts to foster a safe learning and living environment on campus for all members of the campus community. To accomplish this, Buffalo State considers the physical surroundings, educational programming that addresses all aspects of sexual assault (safety precautions and prevention, crisis management, reporting, medical and counseling services, availability of legal services, the college discipline system, academic schedules, living arrangement, etc.), and the campus response to sexual assault.

The college continually reviews and modifies its physical surroundings to enhance security and safety, such as campus lighting, locking procedures, blue light phones, escort vans, signage, etc. For further safety information, contact the University Police Department at 878-6333. Buffalo State develops curricular and co-curricular educational programs concerning sexual assault. Involved students, faculty, staff, and community members provide information and promote discussion on interpersonal abuse concerns. For further information about campus educational programs concerning sexual assault, contact the Counseling Center, Residence Life or the University Police Department.

Response:

Buffalo State’s response to sexual assault may involve a number of individuals and agencies, i.e., University Police, campus crisis intervention team, medical and counseling services personnel, and Crisis Services. In addition, for on-campus cases, there is a timely campus-based investigation that is confidential and thorough and protects individual rights and due process. The accuser is presented with options about how s/he wants to pursue the complaint.

Reporting:

The guiding principle in the report of a sexual assault is to avoid possible re-victimizing the accuser by forcing the individual into any plan of action. A student who has been sexually assaulted has several options. The available options are:

Student Options:

• Discussing assault with friend, counselor, etc.

• Pursuing medical treatment

• Pursuing counseling services with appropriate agencies

• Initiating a campus judicial and/or criminal complaint.

• Deciding on the use of her/his name to agencies when filing a complaint

Students can be assured that, when they share assault information with medical, police, and/or college officials, confidentiality will exist within the framework of each agency's governing body (i.e. state law, licensing, FERPA, etc.) and follow a "need-to-know concept".

Buffalo State Administrative Referrals:

The accuser who chooses to contact a Buffalo State representative (or a Buffalo State representative who may have been notified by other means) has the following referral options:

• Medical facility.

• University Police (investigate criminal complaint).*

• Crisis Intervention Team.

Dean of Students Office for investigation of complaint and possible administrative and judicial action.

Follow-up counseling to: Counseling Center, or non-campus counseling agencies such as Crisis Services.

* Off-campus cases are handled by the Buffalo Police Department and the University Police will assist them in the investigation. A positive and collaborative working relationship exists among state, local, and federal law enforcement agencies and the University Police at Buffalo State.

Process:

1. In the event of a sexual assault, medical and/or police emergency, University Police should be contacted by calling 878-6333. The accuser is encouraged to seek medical attention. A medical exam will treat physical problems and may address other medical issues.

2. The accuser is encouraged not to destroy evidence by bathing, douching, changing clothes or cleaning up in any way. The accuser is encouraged to preserve evidence in a paper bag should a report be filed. A report to the University Police can empower the accuser by exercising her/his legal rights and can aid in the protection of others.

3. If the accuser wants to report the assault to the University Police, a crisis services volunteer may be notified for immediate emergency assistance. Additionally, an on-campus advocate from Counseling Center is also available during daytime/weekday hours. A crisis team member from either crisis services or the Buffalo State counseling center is on staff to offer support to the accuser who may be experiencing possible conflicting feelings and thoughts, and will aid the accuser in identifying options for future actions.. Once those actions have been determined, the accuser is entitled to timely responses from the representatives of those agencies chosen.

4. The accuser and the accused may seek assistance at any time from the Counseling Center at no charge. Referrals may be made upon request for relatives, partners and friends of either the accuser or the accused to various support agencies.

5. If the accuser has decided not to report the assault at this time, other alternatives may include:

• Making a blind or confidential report to the police (A report that notifies the police that a sexual assault has occurred, but gives no names or identification).

• Making the decision to report at a later date. However, early reports may improve the preparation of a viable prosecution. Filing a police report immediately following the incident does not force the accuser to file charges and prosecute the accused; however, it does aid in the preservation of valuable evidence if the accuser decides to prosecute at a later date.

• At any time, the accuser may contact any of the referral agencies previously mentioned for help.

6. The accuser may choose to contact the Dean of Students Office. Initially the student making an accusation can expect the following from the Dean of Students Office (Note: The accuser's options may include, but are not limited to, on-campus judicial proceedings, civil suits and criminal prosecutions. The accuser will be referred to other agencies if appropriate.):

• The accuser will be encouraged to file a police report. The police will then advise the accuser of the legal process. The accuser may also be encouraged to seek assistance at the Counseling Center and/or the Weigel Health Center. If the accuser does not choose to file a police report, the accuser may still file an administrative (judicial) complaint through the Dean of Students Office, for an on-campus assault as well as seeking support from Weigel Health Center or the Counseling Center.

Possible sanctions from an on campus student judicial hearing in which the perpetrator has been found guilty could result in suspension and expulsion from campus.

Statement of Victims’ Rights:

1. Victims have the right to choose counseling and medical treatment, and to prosecute and report their case through the college judicial system and/or the off-campus court system.  They also have the right to refuse all these options without reproach from any college personnel.

2. Victims have the right to be treated with dignity and seriousness by campus personnel. 

3. Victims of crimes against an individual have the right to be reasonably free from intimidation and harm.

4. College personnel are encouraged to inform all victims that: victims are not responsible for crimes committed against them;

victims should always report their crime, despite the possibility of adverse publicity.

5. Victims will be made aware of appropriate student services, including counseling. 

6. Victims are entitled to the same support opportunities available to the accused in a campus disciplinary proceeding.

7. If the accused is prohibited from contacting the victim or entering the victim’s residence the victim will be notified that the ban is in effect. 

8. The victim has the right to information regarding the status of his/her case.

9. The institution will advise the victim as to available options, if reasonably available, to change his or her academic and residence situations.   

Sex Offender Registry Information:

When notified by New York State Division of Criminal Justice Services of the presence of a sex offender on campus, the University Police will use the methods currently employed to make "timely warning" of criminal activity to alert the campus community, in general or in a limited manner, as appropriate. This may include web notices, doorway signs, campus media, and email messages. Warnings will indicate that a level 2 or level 3 sex offender is now enrolled or employed at the university and will indicate that further information can be obtained at the DCJS web site (www.criminaljustice.state.ny.us/nsor/)

• Information given out on the web site may include name, address, physical description, crime of conviction, modus operandi, type of victim targeted and special conditions imposed on parole.

Disciplinary Action:

Where there is probable cause to believe the college's regulations prohibiting sexual misconduct have been violated, the college will pursue strong disciplinary action through its own channels.  This discipline includes the possibility of suspension or dismissal from the college.

An individual charged with sexual misconduct will be subject to college disciplinary procedures, whether or not prosecution under New York State Criminal Statutes is pending.

The college will make every effort to be responsive and sensitive to the victims of these serious crimes.  Protection of the victim and prevention of continued trauma is the college's priority. When the victim and the accused live in the same residence hall, an immediate hearing with the College Judicial Officer will be held to determine the need for modifying the living arrangements.

Assistance for any other personal or academic concerns will be reviewed and options provided.

During the disciplinary process, the victim's rights are:

-       To have a person or persons of the victim's choice accompany the victim throughout the disciplinary hearing.

-      To remain present during the entire proceeding.

-      As established in state criminal codes, to be assured that his/her irrelevant past sexual history will not be discussed during the hearing.

-       To make a "victim impact statement" and to suggest an appropriate penalty if the accused is found in violation of the code.

-       To be informed immediately of the outcome of the hearing.

-       During the disciplinary process, the rights of the "accused" are as described under the -Due Process Procedure of the College Judicial System.

Sexual Assault Prevention Programs

Forty “blue light” telephones are strategically placed around campus.  These permit a caller to establish immediate contact with the University Police desk officer.  Some of these phones also serve as “stops” for the department escort vans which traverse the perimeter of the campus every night when class is in session.  These vans are in service Sunday – Thursday, 10:30 p.m. – 7:30 a.m. and Friday – Saturday, 10:30 p.m. – 4:30 a.m. for any student desiring a ride to residence halls and remote areas of the campus.  Additional efforts include use of electronic entrance access cards and television monitors in all campus residence halls; the walking escort service, providing University Police SA’s as escorts to accompany persons walking across campus on request and the assignment of University Police SA’s to buildings requiring an on-going security presence.

If You are Sexually Assaulted:  

1.   Call University Police                  878-6333 (24 hours)

      or, if off campus, call your local police at 911.  (Please note that campus personnel will assist you in notifying these authorities, if requested.)

2.   Call a friend for emotional support.

3.   Do not wash, shower, or douche.

4.   Do not use any medication.

5.   Call for medical/counseling assistance:

       Violence Intervention and Victim Advocacy (VIVA)                  878-6210

       Weigel Health Center                                                            878-6711

       The College Counseling Center                                              878-4436

       Crisis Services                                                                     834-3131 (24 hours)

6.   Bring a clean change of clothes in case you need to go to the hospital.  Go to one of the hospitals in our community with special services for victims of sexual assault:

ECMC

462 Grider Street                              898-3161 ER

Buffalo General

100 High Street                                 859-7100 ER

Millard Fillmore at Gates Circle

3 Gates Circle                                    887-4007 ER

Sisters of Charity

2157 Main Street                               862-1800 ER

Kenmore Mercy

2950 Elmwood Avenue                      447-6121 ER

Remember, assaults – sexual or otherwise – are crimes; they are not the victims’ fault.  Victims have the right to pursue adjudication of crimes that occur on the Buffalo State campus through criminal courts and/or through the University’s internal disciplinary process under the Code of Rights, Freedoms and Responsibilities of Students.  Buffalo State Police are trained to assist with prosecution in both systems.

Information and Support

If you are the victim of sexual assault or sexual misconduct, you are encouraged to obtain support services and medical/counseling assistance from the College’s Weigel Health Center, 878-6711; the College Counseling Center, 878-4436 or from Crisis Services, 834-3131 (nights and weekends).

Educational Programs

Educational programs to promote awareness of rape, acquaintance rape, and sex offenses are presented frequently to the campus community.  These programs are sponsored by the Weigel Health Center, the College Counseling Center and the Offices of Residence Life, Orientation and University Police, among others.  Students are encouraged to attend these educational programs as they are held throughout the year.