Prohibited Conduct and Definitions Under Cornell's Title IX Policy

Under Cornell University's Title IX Policy, Policy 6.4, entitled “Prohibited Bias, Discrimination, Harassment, and Sexual and Related Misconduct,” the definitions of prohibited student conduct are laid out and specified in the policy, as well as on Cornell University's informational website, along with the procedures for complaints against students and faculty. Whether you are a target of a Title IX complaint or you are a victim seeking protection, reviewing the language contained in Policy 6.4 as well as consulting with a student disciplinary hearing and Title IX lawyer is critical.

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Keep in mind that a violation of any of the below conduct, whether it constitutes Domestic Violence, Sexual Assault, Retaliation, Sexual and Gender-Based Harassment or a combination of these and other conduct, the potential for suspensions and expulsion is real if an allegation and hearing is not properly handled from the onset of the Title IX investigation.

Cornell Policy 6.4: Procedures, Prohibited Conduct and Definitions

In addition to specifying the various Title IX procedures and prohibited conduct, Cornell University's Policy 6.4 helpfully provides definitions for the various categories of prohibited behavior at the University. Some of these terms used in Cornell's policy, which are crucial to pursuing protective measures and assessing claims made against you, are as follows.

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According to Cornell University's policy, a person aids prohibited conduct when, simply put, he or she has the state of mind or intent to promote or facilitate some conduct that is prohibited by the policy, and he or she actually helps another person engage in that prohibited conduct. Much like most criminal offenses, this requires a mental state, or mens rea, as well as an actual action, or actus reus.

Much like the structure of the New York Penal Law, Cornell's Policy 6.4 contemplates an attempt, or uncompleted commission of some prohibited conduct. Attempting to commit prohibited conduct includes situations in which a person intends to engage in prohibited conduct, and that person does something, takes some action, that leads toward the completion of the prohibited conduct without actually completing the offense. This might include an offensive or otherwise prohibited message through social media or text which is sent, but for whatever reason never actually received by the intended recipient.

Dating Violence is also broadly defined by Cornell's Policy. Generally speaking, the Policy describes and defines dating violence as any intentional act or the threat to engage in some act of violence against another person where the person committing the act or threatening the act has been in a romantic or intimate relationship with the other person. This seems simple enough, but the policy goes on to include behavior that is aimed at establishing power and control over the other person by instilling a fear of violence in that other person or another person. The University’s policy in this regard explicitly includes harassment, property damage, intimidation, violence, and the threat of violence to the target or another person. In this context, the Policy also includes reference to ongoing patterns of behavior. Cornell, under Policy 6.4, states that it abides by the Violence Against Women Act (VAWA) and the Clery Act in that it will evaluate any alleged intimate relationship based upon the victim's statements, and it will take into consideration the length of any claimed relationship, the nature of the relationship, and the frequency of interactions and involvement between the parties.

Cornell's Title IX Policy also references “Domestic Violence” separate and apart from “Dating Violence. In sum, the Policy defines Domestic Violence as acts or threatened acts of violence against a person which are engaged in or committed by a current or former spouse, a current or former intimate relation, a person who shares a child with the other individual, or a person who is otherwise protected under the various family or domestic laws of the State. Like Dating Violence, the Policy encompasses behavior that is directed at establishing “power and control” over the other party by instilling a fear of violence in the other person or a third person, and includes harassment, property damage, and intimidation. As with Dating Violence, the Policy explicitly includes ongoing courses of conduct as well as discrete acts of violence.

Retaliation is an important concept included in most, if not all, Title IX policies, including Cornell's Policy 6.4. Retaliation generally is any adverse or harmful action taken against another person because that other person made an honest, good faith report regarding some form of prohibited conduct, or because that other person participated in an investigation or official proceeding with respect to such conduct. Retaliation can take many forms, including intimidation, threats, coercion, or actions aimed at harming a person's employment, livelihood. It is important to note that just because a complaint under this Policy may ultimately not be substantiated or supported, that does not excuse any form of retaliation. However, if the complaint or involvement in an investigation was not done in good faith, meaning that it was knowingly false, that may have a significant impact on the validity of an allegation of retaliation. It is also important to note that retaliation can be committed by anyone, not just the person being accused. This does not mean that an accused person, or anyone else, cannot engage in good faith actions in response to a complaint, such as engaging an attorney, investigating the allegations, and so on.

Sexual Assault includes many different kinds of conduct under the Policy, which are nevertheless closely related. Sexual Assault includes conduct such as sexual intercourse or sexual “contact” without affirmative consent. The Policy goes much further to lay out, in detail, further definitions within this category of offense, which is important given the breadth of language used in this area. “Sexual Intercourse,” for example, includes any penetration, however slight, not only with an intimate organ but with any body part or object. This explicitly includes, among other things, a person's mouth, finger or object. This is differentiated from “sexual contact,” which, under the Policy, includes any form of sexual touching with any body part or object, and can be direct or over clothing. This includes specific body parts such as lips, as well as any part of the body if the intent includes sexual arousal or degradation. A very important term used in the Policy is “affirmative consent.” This is an issue that often arises in many contexts and can have varied definitions whether it is in the Penal Law or a Title IX Policy. Under Policy 6.4 at Cornell, this term is defined as a knowing, voluntary and mutual decision to engage in the particular sexual activity. It is important to note that the policy explicitly allows for consent to be given by words or actions, as long as those words or actions are clear. Silence alone, without more, is not sufficient to establish affirmative consent, but conversely there is no requirement that a person explicitly verbalize consent under the Policy.

Sexual Exploitation is also defined under the policy and includes a broad range of conduct not covered under the definitions of Sexual Assault and the like. It includes observing another person when that other person is unclothed or engaging in some intimate activity when that other person is unaware and has not consented to being observed. It also includes making or distributing photos, video or audio of another person when that person is naked or engaged in intimate acts without that other person's knowledge and consent. The definition also includes exposing another person to a sexually transmitted disease, or STD, without their knowledge and consent, or incapacitating another person with the intent of making them vulnerable to non-consensual sexual assault or exploitation, even if the accused person did not commit any such acts themselves or know with specificity who might commit such acts.

One of the most prevalent areas of Title IX complaints under such polices is sexual or gender-based harassment and discrimination. Cornell's Policy encompasses unwelcome sexual advances, requests for sexual “favors,” or essentially any other unwanted conduct of a sexual nature. The policy allows for such prohibited conduct to be explicit and verbal, or non-verbal by means of images, depictions or gestures. Such conduct, to be covered by this section of the Policy, must be based on gender, sex, sexual orientation, gender identity or gender expression. Such conduct can include aggressive acts, forms of intimidation. It's important to realize that the acts themselves need not be sexual in nature to be prohibited under this Policy. However, in order to be covered, the person accused must have explicitly or implicit pressured the person to submit themselves to the conduct by making it a condition of their employment, academic standing or participation in some program at Cornell or activity, or the conduct must create a “hostile environment.” In order to be considered a hostile environment, the conduct must be severe or pervasive such that it meaningfully prevents or interferes with a person's participation or benefit in or from the University’s various programs. The University uses both an objective and subjective standard when evaluation whether conduct has created a hostile environment.

Stalking is defined in a significantly different way than elsewhere, such as the New York Penal Law. Cornell's Policy and definitions focus on the effects and impact of the conduct, rather than the nature of the conduct itself. Under the Policy, Stalking includes essentially any conduct that would cause a reasonable person, i.e. an objective standard, to fear for their safety or the safety of others, or to feel substantial emotional distress. The course of conduct, and prohibited acts, can include direct acts or acts by third parties, by any method or device, in which the person or a third party follows, monitors, observes or communicates with the other person, or even interfering with that other person's property. Importantly, to establish emotional distress, the person need not have actually sought out or engaged any kind of psychiatric or medical treatment or therapy.

During the course of an investigation following a complaint under Cornell's Title IX Policy, the University will often put certain orders, requirements or interim measures in place as a kind of preventative measure to ensure that whatever prohibited conduct may have been engaged in ceases, and to assist in preventing any form of retaliation. Where an interim measure has been put in place by a University official, it is prohibited conduct in and of itself to intentionally violate the terms and conditions of that order, such as contacting the person who has made the complaint or attending the same event as that person if such conduct was explicitly prohibited by the interim order.

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No matter the allegation, if you are a victim of on campus Domestic Violence, Sexual or Gender-Based Harassment, Sexual Exploitation, Stalking, or any violation of Title IX, there are remedies to pursue and numerous courses of action both inside the Cornell University system and in both the Family and Criminal Courts. Similarly, your exposure as an accused violator of a Title IX policy can leave you vulnerable to prosecution by the Thompkins County District Attorney or within the jurisdiction of the Family Court as a respondent in an action for an Order of Protection. Irrespective of what side of the law you are advocating from, know that with the right legal counsel you can emerge victorious.

Protect yourself and your rights by seeking the expulsion of your abuser or challenging the allegations that will lead to your suspension from Cornell University. Keep your academic integrity intact. Let Saland Law’s Title IX attorneys, former Manhattan Assistant District Attorneys, and criminal lawyers experience utilize their experience and knowledge to serve you and keep your future intact.

Call our New York criminal defense attorneys, Title IX and Student Misconduct lawyers at (212) 312-7129 or contact us online today.