To the extent that this Policy overlaps with Gerstner Sloan Kettering Graduate School’s Non- Discrimination, Anti-Harassment, and Anti-Retaliation Policies, this Policy will control in cases involving sexual misconduct, including but not limited to sex discrimination (to the extent described below), sexual harassment, and/or sexual violence, sexual assault, domestic violence, dating violence, and stalking against a student.
1. Policy Statement
The Policy for the Prevention of and Response to Sexual Misconduct (“Policy”) is for the benefit of students at the Louis V. Gerstner, Jr. Graduate School of Biomedical Sciences (“GSK” or “the School”), Memorial Sloan Kettering Cancer Center (“MSK”). GSK is committed to maintaining an educational environment for students that is free from sexual misconduct. GSK does not discriminate on the basis of sex, gender, parental, family or marital status in its education programs and activities, and it is required by Title IX of the U.S. Education Amendments of 1972 not to discriminate in such a manner.
GSK strongly encourages every member of our community who is a victim of, or has knowledge of sexual misconduct, including but not limited to sex discrimination, sexual harassment, and/or sexual violence, sexual assault, domestic violence, dating violence, and/or stalking, against a student to report that conduct as set forth below. GSK is committed to responding to such reports promptly, with sensitivity for all concerned, and with a fair and equitable process.
2. Controlling Law
A. Title IX. GSK complies with Title IX of the Educational Amendments of 1972 (“Title IX”), which is a federal law that prohibits any person in the United States from being discriminated against on the basis of sex in seeking access to any educational program or activity receiving federal financial assistance. The U.S. Department of Education, which enforces Title IX, has determined that Title IX’s prohibition on sex discrimination includes various forms of sexual harassment and sexual violence that may interfere with a student’s ability to equally access education programs or activities.
B. Article 129-B. Article 129-B of the New York Education Law (“Article 129-B) is a state law that also provides protections for students who are the victims of sexual misconduct, including the right to report the incident to GSK or law enforcement, to be protected by GSK from retaliation for reporting an incident, and to receive assistance and resources from GSK.
3. Individuals and Conduct Covered
This Policy covers any occurrence of sexual misconduct, including but not limited to sex discrimination, sexual harassment, and/or sexual violence, sexual assault, domestic violence, dating violence, and stalking, regardless of whether the accused is a student, employee or third party, or whether the prohibited conduct occurred on or off campus.
GSK will address reported sexual misconduct against a student whether the report is made by the alleged victim or a reporting individual. GSK will also ensure that a student who is the victim of sexual misconduct is afforded the protections outlined in the Students’ Bill of Rights, which appears at the end of this Policy, including the right to make a report to local law enforcement and to be protected from retaliation.
“Affirmative Consent” is 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 the 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, gender, sexual orientation, gender identity, or gender expression. The following principles are provided as guidance for the GSK community regarding the concept of Affirmative Consent:
a) Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
b) Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
c) Consent may be initially given but withdrawn at any time.
d) Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
e) Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
f) When consent is withdrawn or can no longer be given, sexual activity must stop.
“Complainant” is any individual who has reported being or is alleged to be the victim of conduct that could constitute sexual misconduct. A complainant may also be referred to as a Reporting Individual.
“Dating Violence” is violence committed by a person who is or has been 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 the threat of such abuse. The existence of such a relationship shall be determined based on the complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
“Domestic Violence” is also considered relationship violence and includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under New York domestic or family violence laws or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of New York.
A “Hostile Environment” is created when prohibited conduct is sufficiently severe or pervasive as to limit or deny a student’s ability to participate in or benefit from GSK’s educational programs or activities.
“Respondent” is an individual who has been reported to be the perpetrator of conduct that could constitute sexual misconduct under this Policy.
“Sex Discrimination” is inequitable treatment of an individual on the basis of the individual’s actual or perceived gender or sex.
“Sexual Assault” is any type of sexual contact or behavior that occurs without the explicit consent of the recipient, including instances where the victim is incapable of giving consent. Examples of such contact or behavior include rape, fondling, incest, and statutory rape.
“Sexual Harassment as defined by Title IX” conduct that includes one or more of the following: (1) an employee of the School conditioning the provision of an aid, benefit, or service of the School on an individual’s participation in unwelcome sexual conduct (i.e., quid pro quo); (2) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the School’s education program or activity; or (3) sexual assault, domestic violence, dating violence and stalking. (Sexual harassment is defined more broadly under other laws and under other School policies, including the MSK Policy Against Harassment and Discrimination).
“Sexual Misconduct” includes sexual discrimination, sexual harassment, sexual violence, sexual assault, domestic violence, dating violence and stalking. For sexual misconduct to fall under Title IX, it must: (1) meet the definition of sexual harassment as defined by Title IX; (2) occur in GSK’s education program or activity; and (3) within the United States. Incidents of sexual violence, sexual assault, domestic violence, dating violence and stalking that occur off campus or outside of the United States, in which a student is a complainant or respondent, violate New York State law, and will follow the procedures set forth below, except there is no live hearing process for such claims – the investigator’s Investigative Report will be reviewed by the Designated Arbiter, who will determine whether there has been a violation of this Policy. Sexual harassment that occurs outside of the School’s education program or activities, or incidents that do not meet the definition of sexual harassment in this Policy, may fall under other GSK and MSK policies and will be addressed consistent with those policies.
“Sexual Violence” is an actual or attempted physical sexual act performed against a person’s will or without a person’s affirmative consent, including where the person is incapable of giving consent due to a disability or the use of drugs and/or alcohol.
“Stalking” is a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others or suffer substantial emotional distress.
5. Reporting a Violation of this Policy
A. Title IX Coordinators. GSK has designated and authorized the following individuals as Title IX Coordinators to address concerns or inquiries regarding discrimination on the basis of sex, including sexual harassment, sexual assault, dating violence, domestic violence, stalking, and gender-based harassment:
Leslie Ballantyne, Esq.
Vice-President, HR Legal & Regulatory Affairs
633 Third Avenue
Telephone: (646) 227-2742
Email: [email protected]
Lindsay Cornacchia, Esq.
Associate Director of Compliance & Assistant General Counsel
1275 York Avenue
Telephone: (212) 639-2496
Email: [email protected]
The Title IX Coordinators oversee implementation of GSK’s Policies and must be informed of all reports and complaints of sexual misconduct, including but not limited to sex discrimination, sexual harassment, and/or sexual violence, sexual assault, domestic violence, dating violence, and stalking against a student, even if the report or complaint was initially made to another individual or if the investigation will be conducted by another individual or office.Any individual may report a violation of this Policy (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex misconduct) to the Title IX Coordinators at any time, including during non-business hours, by mail, phone, or email.
The Title IX Coordinators are responsible for:
- Activating GSK’s Title IX grievance fact-finding, hearing, and determination procedures;
- Evaluating confidentiality requests;
- Determining the resources required to conduct an investigation, if warranted;
- Conducting and/or managing a grievance investigation and appeal, including designating other GSK employees or third parties to assist, as needed and working with law enforcement when necessary;
- Determining appropriate interim measures for a complainant, including providing support and counseling resources, and taking steps to protect public safety during the course of an investigation;
- Determining appropriate sanctions against an offender and remedies for the complainant;
- Enforcing sanctions with the assistance of GSK and MSK’s administrative leadership; and
- Recommending necessary changes to GSK’s policies or procedures, as needed.
B. Other Options for Reporting. In addition to the Title IX Coordinators, reports can also be made to:
- Reporting to Law Enforcement: Members of the GSK community have the option of reporting sexual misconduct to law enforcement. Formal complaints of sexual misconduct can be made to local law enforcement authorities by contacting the NYPD (by calling 911 or reporting the crime to a local police precinct), the District Attorney of New York Sex Crimes Unit at (212) 335-9373, or the New York State Police Sexual Assault Victims Unit.
- Reporting to the MSK Compliance Hotline by calling 1-866-568-5421 or by going to mskcc.alertline.com/gcs/welcome. The MSK Compliance Hotline is available 24 hours a day, every day of the year, and is managed by an outside company. Reports can be made anonymously.
- Reporting to the School Security Department or Vice-President of Security: The School Security Department can be reached by dialing (212) 639- 7866. Mark Moodie, the Vice-President of Security, can be reached at (212) 639-7863 or [email protected].
- Reporting to the MSK Human Resources Department: Melissa Maxwell-Avila, MSK Human Resources Business Partner, can be reached at (646)227-3888 or [email protected].
6. Confidentiality & Privacy
GSK values the privacy of its community members, and individuals should be able to seek the assistance they need without fear that the information they provide will be shared more broadly.
A. Confidentiality. Some resources on campus are confidential and will not share any identifying information with others, except as required by law in emergency circumstances. If an individual complainant wishes to keep their identity anonymous, they can use a confidential resource. Confidential resources can and will maintain the confidentiality of information provided to them by a complainant, accused, or reporting individual. A list of available confidential resources can be found on the GSK website.
B. Privacy. Other resources are not confidential but will protect students’ privacy to the greatest extent possible and share information with others only on a need-to-know basis to comply with the School’s obligations under the law and School policies. This includes the Title IX Coordinators, as well as certain GSK and MSK personnel (including officials with authority) who have a duty to report conduct prohibited under this Policy to the Title IX Coordinator or take action to redress such conduct. These personnel will share a complaint or report only as necessary for the Title IX Coordinators to investigate and/or seek a resolution and, if required, with law enforcement.
C. Requests for Confidentiality. Where a victim of sexual misconduct wishes to maintain confidentiality, GSK must weigh the request(s) against its obligation to provide a safe, non-discriminatory environment for all members of the community, including the victim, and its legal obligations. The Title IX Coordinators will evaluate requests for confidentiality once the Title IX Coordinators are on notice of alleged sexual misconduct.
7. Complainant’s Rights
A. A complainant has the right to make a complaint, withdraw a complaint at any time, or not report a complaint. A complainant also has the right to file a criminal complaint or to pursue his or her rights under Title VII of the Civil Rights of 1964, before, during, or after (i) reporting a Title IX complaint, or (ii) activating GSK’s internal Title IX investigation or appeal process.
B. Individuals that choose to make a complaint of sexual misconduct, including but not limited to sex discrimination, sexual harassment, and/or sexual violence, sexual assault, domestic violence, dating violence, and stalking are afforded the right to:
- Notify GSK’s Vice President of Security, local law enforcement, and/or state police;
- Have emergency access to the Title IX Coordinators who will provide information regarding options to proceed, the importance of preserving evidence, and detailing the criminal justice process and the standards of proof that apply;
- Disclose confidentially the incident to institution representatives who may assist in obtaining services;
- Disclose confidentially the incident and obtain services from the state or local government;
- Disclose the incident to GSK or MSK representatives who can offer privacy or confidentiality, as appropriate;
- File a report of sexual assault, domestic violence, dating violence, and/or stalking and the right to consult the Title IX Coordinators and other appropriate GSK or MSK representatives;
- Disclose the incident to MSK’s Human Resources division or the right to request that a confidential or private employee assist in reporting to the appropriate human resources representative; and
- Withdraw a complaint or involvement from the GSK or MSK process at any time.
C. Supportive Measures
Complainants who report allegations that fall under this Policy, have the right to receive supportive measures from GSK regardless of whether they desire to file a complaint. Supportive measures are non-disciplinary and non-punitive. They may be made available free of charge and kept confidential except as necessary to facilitate the supportive measure. Supportive measures may include, but are not limited to, the following:
- Extensions of deadlines or other course/resource-related adjustments
- Modifications of work or class schedules
- Campus security escort services
- Restrictions on contact between the parties (no contact orders)
- Changes in work or housing locations
- Leaves of absence
- Increased security and monitoring of certain areas of the campus
8. Grievance Process for Addressing Complaints of Sex Discrimination
Any complaint of sex discrimination alleged by a student – i.e., alleged unfavorable treatment of a student on the basis of the student’s gender – shall be subject to the complaint procedures set forth in GSK’s Non-Discrimination, Anti-Harassment, and Anti-Retaliation Policy, including prompt investigation and responsive action, if appropriate.
9. Grievance Process for Addressing Complaints of Sexual Misconduct1
A. Initial Assessment
1. Following receipt of a report of sexual misconduct, the Title IX Coordinator will conduct an initial assessment. As part of the initial assessment, the Title IX Coordinator will take the following steps:
a) Assess the nature and circumstances of the complaint/report.
b) Address the immediate needs and concerns of the complainant, including physical safety and emotional well-being needs.
c) Provide copies of or direct the complainant to GSK’s Policy and accompanying procedures.
d) Provide the complainant with information about resources, including information about intervention, mental health counseling and medical services, sexually transmitted infections, and sexual assault forensic examinations.
e) Provide information regarding options to proceed, the importance of preserving evidence, and detailing the criminal justice process and the standards of proof that apply.
f) Direct the complainant to information regarding on-campus and off-campus resources and the range of appropriate and available supportive and protective measures.
g) Explain GSK’s policy prohibiting retaliation.
2. If the Title IX Coordinator determines that the circumstances warrant proceeding to an investigation, the School will ask for consent from the complainant before commencing an investigation, and whether the complainant wants to file a formal complaint. A formal complaint is a document filed by the complainant (in person, by mail, or by electronic mail) with the Title IX Coordinator alleging sexual misconduct against a respondent. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the School.
3. A complainant may decline to file a formal complaint and request that GSK not investigate or take action. GSK will honor the complainant’s request unless the School, through the Title IX Coordinator, determines in good faith that it is necessary to proceed in order to limit the risk of harm to the complainant or other members of the School Community, in which case the Title IX Coordinator may sign the formal complaint. The School will inform the complainant of this decision in writing, and the complainant need not participate in the process further but will receive all notices issued under this Policy and Process. Nothing in this Policy prevents a complainant from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.
4. The following factors will be used when determining whether to honor a request to not investigate or take action:
a) Whether the accused has a history of violent behavior or is a repeat offender;
b) Whether the incident represents escalation in unlawful conduct on behalf of the accused from previously noted behavior;
c) The increased risk the accused will commit additional acts of violence;
d) Whether the accused used a weapon or force;
e) Whether the complainant is a minor; and
f) Whether the institution possesses other means to obtain evidence such as security footage, and whether available information reveals a pattern of perpetration at a given location or by a particular group.
B. Determining Jurisdiction under Title IX or other GSK Policies
1. In the first instance, the Title IX Coordinator or designee shall determine whether the alleged conduct falls under the definition of sexual misconduct under Title IX – including the requirement that the conduct occur in the School’s educational program or activities and within the United States.
2. If the Title IX Coordinator determines that a complaint does not fall under the definition of sexual misconduct under Title IX – for example, if the alleged incident did not occur in the School’s education program or activity – the School will promptly send a Notice of Dismissal of the action under Title IX to both parties. Dismissal at this stage may be reviewed on appeal.
3. Where the complainant or respondent is a student, the Title IX Coordinator or designee will then assess whether the complaint alleges sexual misconduct under this Policy, outside of the Title IX definition, including sexual assault, stalking, domestic violence and/or dating violence that occurred off campus. Conduct in this category will be investigated and assessed pursuant to the procedures set forth below, except that there will not be hearings in such matters – rather, the Investigative Report will be reviewed by the Designated Arbiter, and the Designated Arbiter will make a determination as to whether a violation of this Policy occurred.
4. If the conduct alleged does not constitute sexual misconduct as defined by this policy, it may still violate other School policies, and it may be investigated consistent with applicable School policies and procedures. If the actions alleged in a complaint do not fall under this policy, but they may fall under another policy, the Title IX Coordinator will inform the appropriate individual(s) of the matter for further investigation and consideration.
C. Notice of Allegations
1. The Title IX Coordinator will draft and provide the Notice of Allegations to any party (complainants and respondents) to the allegations of sexual misconduct. Notice will go out to the parties promptly after complainant files a formal complaint or the School decides to proceed with a formal complaint.
2. Parties will be provided sufficient time to review the Notice of Allegations and prepare a response before any initial interview. The Title IX Coordinator may determine that the formal complaint must be dismissed under Title IX on the mandatory grounds identified above and will issue a Notice of Dismissal. If such a determination is made, any party to the allegations of sexual misconduct identified in the formal complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations.
3. Contents of Notice. The Notice of Allegations will include the following:
a) Notice of GSK’s Grievance Process and a hyperlink to a copy of the process.
b) Description of the date, time, location and factual allegations concerning the violation – including who was involved.
c) A reference to the specific rules and/or code of conduct/policy provisions alleged to have been violated.
d) A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
e) A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney.
f) A statement that the parties can request to inspect and review evidence, and the parties will be provided an opportunity to do so.
g) A statement that information protected by legal privilege – e.g., attorney-client privilege or doctor-patient privilege – cannot be used during the investigation unless the person holding that privilege waives it.
h) A statement that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.
4. Updated Notice. An updated notice will be provided if GSK decides to investigate allegations about the respondent or complainant that are not included in the initial notice.
5. Interim Measures. Prior to and during an investigation, interim measures may be issued based on a party’s request or at GSK’s own initiative. Potential interim measures include but are not limited to:
a) Following an individualized safety and risk analysis, GSK may seek to remove a respondent from campus on an emergency basis if GSK determines that there is an immediate threat to the health or safety of any student or other individual arising from the allegations. The respondent will be afforded the opportunity to challenge the decision immediately following the removal.
b) GSK may impose reasonable accommodations that effect a change in academic class, work schedules, housing arrangements, employment, transportation, and other applicable arrangements in order to help ensure safety, prevent retaliation, and avoid an ongoing hostile environment.
c) When the respondent is a GSK student, the complainant may request a “no contact order” consistent with GSK and MSK policies and procedures.
d) Both parties may (i) request any of the above protections or accommodations, (ii) request to be afforded a reasonably prompt review by the Title IX Coordinator or designee of the need for and terms of any of the above protections or accommodations (even if the victim does not file or continue to pursue a complaint), including potential modification, and (iii) will be allowed to submit evidence in support or defense of the request. The Title IX Coordinator will be responsible for coordinating with appropriate offices on campus to implement appropriate measures.
D. Investigation Process
1. The Title IX Coordinator and/or an investigator designated by the Title IX Coordinator (“Title IX investigator”) will perform an investigation of the conduct alleged to constitute sexual misconduct after issuing the Notice of Allegations.
2. The sexual misconduct investigation may involve, but is not limited to: (1) conducting interviews of the complainant, the respondent, and any witnesses or other third-parties who may have information or evidence regarding the allegations; (2) reviewing documents and records, including law enforcement investigation documents, student and personnel files, and written statements regarding the allegations; and (3) gathering and examining other relevant documents and evidence, including video, audio, photographs, e-mails, text-messages or social media posts that may be relevant to the allegations.
3. The following principles will guide all investigations of alleged sexual misconduct:
a) The investigation will be fair, impartial, timely, and thorough, taking into consideration any request by the complainant or reporting individual for confidentiality and/or privacy.
b) GSK, and not the parties, has the burden of proof and the burden of gathering evidence, i.e., the responsibility of showing a violation of this Policy has occurred.
c) GSK cannot access, consider, or disclose medical records without a waiver from the party (or parent, if applicable) to whom the records belong or of whom the records include information.
d) Equal opportunity will be provided for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence, (i.e., evidence that tends to prove and disprove the allegations) as described below. All parties must submit any evidence they would like included in the investigation prior to beginning of the inspection and review period.
4. Timeframe. To the extent possible and consistent with a full and fair process, the School will seek to resolve complaints within approximately 100 calendar days of an initial report, not including the time for any appeal. The School will seek to resolve appeals within 50 calendar days. Time frames will vary depending on the complexity of the investigation and the severity and extent of the alleged misconduct. The School will give the parties periodic status updates.
5. Advisor of Choice. Parties will be allowed equal access to advisors and support persons; any restrictions on advisor participation will be applied equally. Students participating as complainant or respondent in this process may be accompanied by an Advisor of Choice to any meeting or hearing to which they are required or are eligible to attend.
6. Notice of Meetings and Interviews. The School will provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate.
7. Investigative Report.
a) The Title IX Coordinator or Title IX investigator will create an Investigative Report (“Report”) that fairly summarizes relevant evidence discovered during the course of the investigation, and the investigator’s findings.
b) The parties will receive a draft of the full Report and any evidence directly related to the complaint. The parties will have ten (10) calendar days to respond to the Report and the evidence in writing. Witnesses will also be given a copy of a summary of their witness interview in the draft Report and be given least ten (10) calendar days to confirm its accuracy or make any necessary corrections.
c) The Title IX Coordinator or Title IX investigator will consider any written response to the Report or evidence by the parties before finalizing the Report. The respondent and complainant will receive a final copy of the Report at least ten (10) calendar days before the hearing or review before a Designated Arbiter.
d) The final Report will be submitted to the appropriate Designated Arbiter. The appropriate Designated Arbiter will be determined on a case-by-case basis and will be appointed by the Dean of GSK or designee.
E. Hearing Procedures for Allegations of Sexual Misconduct under Title IX
1. General Hearing Rules. For allegations of sexual misconduct under Title IX, upon receipt and consideration of the Investigative Report, the Designated Arbiter will hold a live hearing. The live hearing may be conducted with all parties physically present in the same geographic location, or—at GSK’s discretion—any or all parties, witnesses, and other participants may appear at the live hearing virtually through secure remote video conferencing as prescribed by GSK. All reasonable measures will be taken to ensure that proceedings are conducted in a manner that does not inflict additional trauma on the complainant. A recording or transcript will be made of the hearing and will be made available for the parties to review.
2. Participants in Hearing. Live hearings are not public, and the only individuals permitted to participate in the hearing are as follows:
a) Complainant and Respondent (The Parties). The parties cannot waive the right to a live hearing. If a party does not appear at the hearing or is not subject to questioning/cross-examination, the Designated Arbiter will exclude and not rely on that party’s statements in reaching a determination regarding responsibility. The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination or other questions.
b) Designated Arbiter. A hearing body will consist of a single Designated Arbiter. No member of the hearing body will also have served as the Title IX Coordinator, Title IX investigator, or advisor to any party in the case, nor may any member of the hearing body serve on the appeals body in the case. No member of the hearing body will have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case. During the hearing, the Designated Arbiter will determine the order of witnesses and has the discretion to ask the witnesses questions.
c) Advisor of choice. The parties have the right to select an advisor of their choice, who may be, but does not have to be, an attorney. The advisor of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination. The parties are not permitted to conduct cross-examination; it must be conducted by the advisor. As a result, if a party does not select an advisor, GSK will select an advisor to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party. If a party does not attend the live hearing, the party’s advisor may appear and conduct cross-examination on their behalf. If neither a party nor their advisor appear at the hearing, GSK will provide an advisor to appear on behalf of the non-appearing party.
d) Witnesses. Witnesses cannot be compelled to participate in the live hearing and have the right not to participate in the hearing free from retaliation. If a witness does not appear at the hearing or is not subject to questioning/cross-examination, the Designated Arbiter will exclude and not rely on that witness’ statements in reaching a determination regarding responsibility.
3. Cross-Examination Procedure. Each party’s advisor will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination the advisor will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility. Questions must be relevant and must not pertain to complainant’s past sexual behavior or sexual predisposition – with two exceptions – where evidence of prior sexual behavior is offered to prove someone other than the respondent committed the alleged offense, or where prior sexual behavior evidence is specifically about the complainant and the respondent and is offered to prove consent. Before any cross-examination question is answered, the Designated Arbiter will determine if the question is relevant. A lawyer from the Office of General Counsel will serve as counsel to the Designated Arbiter and may consult with the Designated Arbiter concerning such determinations.
F. Determination Regarding Responsibility
1. Standard of Proof. The preponderance of the evidence standard will apply for investigations and determinations regarding responsibility of formal complaints covered under this Policy. This means that the investigation and hearing will determine whether it is more likely than not that a violation of this Policy occurred.
2. Written Determination. The Designated Arbiter will issue a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant. Designated Arbiters are empowered to impose what they believe to be the appropriate sanctions and/or remedial actions following a determination that this Policy was violated. Such sanctions and remedies include, but are not limited to:
a) Disciplining the respondent, up to and including expulsion and discharge/termination;
b) Providing counseling for complainants, respondents, and other parties as appropriate;
c) Issuing “No Contact” orders;
d) Providing effective escorts to ensure that the complainant can move safely between classes and activities;
e) Ensuring that the complainant and the respondent do not share classes, workspaces, or extracurricular activities;
f) Moving the complainant (if the complainant requests to be moved) or respondent to a different residence hall or housing assignment; and
g) Placing notations on the respondent’s transcript regarding the subject violations.
3. Notification of Outcome. The written determination will be sent simultaneously along with information on how to file an appeal.
4. Record Retention. Records of each formal complaint of alleged sexual misconduct under Title IX, including any actions taken, including supportive measures, in response to a report or formal complaint of sexual misconduct under Title IX, will be maintained for seven years.
1. Each party may appeal the dismissal of a formal complaint or any included allegations and/or a determination regarding responsibility. An appeal may be based on the following grounds:
a) Procedural irregularity that affected the outcome of the matter;
b) New evidence discovered that was not reasonably available at the time the Designated Arbiter made the determination; or
c) Conflict of interest on the part of the Title IX Coordinator, investigator(s) or Designated Arbiter that affected the outcome of the matter.
2. To appeal, a party must submit their written appeal to the Title IX Coordinator within ten (10) calendar days of being notified of the decision, indicating the grounds for the appeal. The submission of appeal stays any sanctions for the pendency of an appeal. Supportive measures and remote learning opportunities remain available during the pendency of the appeal.
3. If a party appeals, the institution will as soon as practicable notify the other party in writing of the appeal.
4. Appeals will be decided by an Appeals Panel who will be free of conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or hearing decisionmaker in the same matter. The outcome of appeal will be provided in writing simultaneously to both parties and include rationale for the decision.
10. Prohibition Against Retaliation
GSK prohibits retaliation against any individual who reports sexual misconduct, including but not limited to sex discrimination, sexual harassment, and/or sexual violence, sexual assault, domestic violence, dating violence, and stalking, or participates in an investigation of such reports.
11. Amnesty Policy for Alcohol And/or Drug Use by Reporting Individuals
The health and safety of every student at GSK is of utmost importance. GSK recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that sexual misconduct, including but not limited to sex discrimination, sexual harassment, and/or sexual violence, sexual assault, domestic violence, dating violence, and stalking occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. GSK strongly encourages students to report sexual misconduct to the Title IX Coordinator, GSK administration, MSK Security and/or any other reporting/compliance channels. A bystander, complainant, or reporting individual who in good faith discloses any incident to MSK officials or law enforcement will not be subject to disciplinary action for violation of GSK’s Substance Abuse Policy occurring at or near the time of the commission of the act.
12. Students’ Bill of Rights Concerning Response to Sexual Misconduct
All students have the right to:
a) Make a report to local law enforcement and/or state police;
b) Have disclosures of sexual violence, including domestic violence, dating violence, stalking, and sexual assault treated seriously;
c) Make a decision about whether or not to disclose a crime and/or violation and to participate in GSK/MSK’s investigation, hearing, and decision-making process and/or criminal justice process free from pressure by GSK/MSK;
d) Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard;
e) Be treated with dignity and receive from GSK/MSK information concerning access to courteous, fair and respectful health care and counseling services;
f) Be free from any suggestion that the complainant is at fault when these crimes and/or violations are committed, or should have acted in a different manner to avoid such crimes and/or violations;
g) Describe the incident to as few GSK representatives as practicable and not be required to unnecessarily repeat a description of the incident;
h) Be protected from retaliation by GSK, any student and/or the accused, and/or their family, friends and acquaintances within the jurisdiction of the institution;
i) Access at least one level of appeal of a determination;
j) Be accompanied by an advisor of choice who may assist and advise a complainant, reporting individual, accused or respondent throughout the investigation process, including during all meetings and hearings related to such process; and
k) Exercise civil rights and practice of religion without interference by the grievance investigation, hearing, and decision-making process of GSK/ MSK.
1. On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX that: (1) defines the meaning of “sexual harassment”; (2) addresses how this institution must respond to reports of misconduct falling within that definition of sexual harassment; and (3) mandates a grievance process that this institution must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment. Under the Final Rule, GSK must narrow both the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX adjudication process. Incidents that fall outside the definition of sexual harassment under Title IX will follow the procedures set forth below, except there is no live hearing process for such claims – the final Investigative Report will be reviewed by the Designated Arbiter, who will determine whether there has been a violation of this Policy.