A Plain Language Explanation of Distinctions Between the New York State Penal Law and the College Disciplinary Processes
New York State Education Law Article 129-B requires that college or other officials explain differences between college processes and the criminal justice process in addressing sexual and interpersonal violence.
There are significant differences between the two systems because they have different, important goals. In the criminal justice system, prosecutors pursue cases when they believe there is sufficient evidence to prove, beyond a reasonable doubt, that an individual has committed a criminal act. A person who is convicted of a crime will face criminal penalties, such as incarceration, probation, or the imposition of a fine. The college disciplinary process seeks to determine whether an individual has violated college policy. In this process, a preponderance of the evidence standard of proof is used to determine responsibility. A person who is found to have violated college policy may be suspended, expelled or otherwise restricted from full participation in the college community. This document is intended to help explain the differences between the criminal justice system and college disciplinary processes.Download as a Word Document
 This document was jointly developed by Chantelle Cleary, Title IX Coordinator, University at Albany; Lori Fox, General Counsel, Teachers College; Rachel J. Nash, Associate General Counsel, City University of New York; Andrea Stagg, Deputy General Counsel, Barnard College; and Joseph Storch, Associate Counsel, State University of New York. The document may be publically shared and used for non-commercial educational purposes.
 "Every institution shall ensure that reporting individuals are advised of their right to:
Have emergency access to a Title IX Coordinator or other appropriate official trained in interviewing victims of sexual assault who shall be available upon the first instance of disclosure by a reporting individual to provide information regarding options to proceed, and, where applicable, the importance of preserving evidence and obtaining a sexual assault forensic examination as soon as possible, and detailing that the criminal justice process utilizes different standards of proof and evidence and that any questions about whether a specific incident violated the penal law should be addressed to law enforcement or to the district attorney. Such official shall also explain whether he or she is authorized to offer the reporting individual confidentiality or privacy, and shall inform the reporting individual of other reporting options..." New York State Education Law §6444 (1)(b) (emphasis added).
Criminal Justice System
College/University Disciplinary System
Public safety, deterrence, and punishment.
Education; safety; safe and supportive campus environment.
New York State Penal Code; New York State Rules of Criminal Procedure (or another state's rules if the crime took place there), Federal Criminal Law, and Rules of Evidence.
Title IX; The Clery Act as amended by the Violence Against Women Act; NYS Education Law sections 129-A and 129-B. More specific rules govern particular colleges and universities.
How to report and whether there must be action once a report is made.
Crimes involving sexual violence may be reported to campus police (if the campus has police officers), the local police agency, or to the New York State Police. Certain crimes may also be reported to federal law enforcement agents. Once a report is made, the decision whether to investigate is made by the police/law enforcement agency, often in consultation with a District Attorney or other prosecuting agency. An investigation may be conducted without the consent or participation of a reporting individual. The ultimate decision of whether to initiate a criminal prosecution is initially made by a prosecutor. In cases involving felony charges, the final charging decision is made by a Grand Jury.
Victims may disclose sexual violence to various college employees who are designated confidential resources or to others who will try to ensure privacy to the extent consistent with the institution's obligation to provide a safe educational environment. Disclosures made to a confidential resource will not trigger an investigation. When a report is made to the Title IX Coordinator (TIXC) or another Non-Confidential resource, the TIXC will determine whether an investigation is necessary by weighing a request for confidentiality by the reporting individual against the continuing safety of that person and the safety and best interests of the campus community.
Police or other law enforcement officials.
Investigators employed or retained by the college or university; these individuals may work for different departments within the institution, including, but not limited to, the police/public safety department, student affairs and academic affairs.
See Governing Law. Procedures established by police departments, prosecutors' offices, etc.
College/University policies and Bylaws, which generally incorporate requirements of Governing Law. Collective bargaining agreements may impact some procedures.
Standard of Evidence.
Crimes must be proven "Beyond a Reasonable Doubt"
A violation of disciplinary rules must be found by a "Preponderance of the Evidence" (more likely than not)
Law enforcement agencies offer some confidential assistance, but a criminal charge and trial must be public.
Colleges and universities offer confidential resources, but a disciplinary proceeding requires that relevant information be shared with those involved.
Criminal trials must be public.
Disciplinary proceedings are kept as private as possible, but information must be shared with certain individuals within the college, the parties, and pursuant to law.
Who are the parties?
The prosecution and defendant. The victim/survivor is not a party, but often the critical witness for the prosecution.
Varies by school—some consider the institution and the respondent to be parties, and confer on the reporting individual certain rights to participate, as the law provides. Otherwise, reporting individual and accused/respondent.
Participation in the process.
In limited circumstances, a criminal prosecution can proceed without the participation or cooperation of the reporting individual, but without a reporting individual's participation, it is generally more difficult to prove a crime beyond a reasonable doubt.
Reporting students cannot be required to participate in the college process. However, a college will be limited in its ability to respond if a reporting individual does not participate.
Who initiates the proceedings?
A prosecutor, acting on behalf of the state (or the United States in federal cases).
The college or university initiates proceedings. While rules vary from school to school, they most provide an active role for the reporting individual.
In a court, testimony is generally public. Other parties are, through counsel, entitled to cross-examine witnesses.
The rules are established by individual colleges and universities, but some institutions provide for alternative approaches that permit students to testify without having other parties in the room and/or to ask cross-examination questions only through the disciplinary panel, investigator, or representative of the reporting individual and/or respondent.
Role of attorneys.
Both the state and the defendant are represented by counsel; counsel may question witnesses.
Varies by school. Many permit the parties to be advised by attorneys but some limit the attorney's' roles to quietly speaking with their clients or passing notes.
Mental Health and Sexual History.
In New York, a reporting individual's prior sexual and mental health history is generally, but not always, inadmissible in a criminal case. There are limited circumstances under which directly relevant evidence of that kind may be admitted.
Generally not admissible, but subject to quite limited exceptions. Education Law 129-b permits parties to exclude information about their prior sexual history with persons other than the other party and also to exclude evidence of their own mental health history in the fact finding phase of the disciplinary process.
If a prosecution takes place, the defendant may
In cases that do not involve sexual assault, some schools permit mediation or similar procedures if parties agree.
If there is a formal proceeding, the respondent may be found "responsible" or "not responsible" for violations of the institution's rules. Respondents may also accept responsibility before a finding by an adjudicator.
An individual found guilty may be fined, imprisoned, or both. In some courts, alternative sanctions are sometimes used.
An individual found responsible for violating college policy may be given a range of sanctions (depending on the severity of the conduct and other factors, such as prior judicial history), ranging from a warning to suspension or expulsion from the institution.