Policy for the Prevention of and Response to Sexual Misconduct

Policy for the Prevention of and Response to Sexual Misconduct

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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.

Policy Statement

This Policy is for the benefit of students at the Louis V. Gerstner, Jr. Graduate School of Biomedical Sciences (GSK), 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.

Controlling Law

Title IX of the U.S. Education Amendments of 1972, 20 U.S.C. §1681 et seq., provides:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The federal government has determined that sex discrimination, sexual harassment, and sexual violence may create a “hostile environment,” thereby denying a victim of such conduct the benefits of an education program or activity.

Article 129-B of the New York Education Law 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.

Definitions

Sexual Misconduct includes but is not limited to the following terms as defined below: sex discrimination, sexual harassment, sexual violence, sexual assault, domestic violence, dating violence, and stalking.

Sex Discrimination is inequitable treatment of an individual on the basis of the individual’s actual or perceived gender or sex.

Sexual Harassment is unwelcome conduct of a sexual nature. It may include, but is not limited to: unwelcome sexual advances or requests for sexual favors; sexual jokes or innuendoes; verbal abuse of a sexual nature; commentary about an individual’s body, sexual prowess, or sexual deficiencies; leering or catcalls; inappropriate touching; insulting or obscene comments or gestures; display or circulation in the workplace (including through email) of sexually suggestive objects or pictures; or other physical, verbal, or visual conduct of a sexual nature that has the effect of creating a hostile environment.

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.

Sexual Assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Examples of such contact or behavior include forced sexual intercourse, forcible sodomy, incest, fondling, and attempted rape.

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.

Consent may be given initially but withdrawn at any time, and consent to one sexual act does not necessarily constitute consent to any other sexual act. 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, and consent cannot be given when it is

the result of any coercion. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. When consent is withdrawn or can no longer be given, sexual activity must stop.

Domestic Violence is a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. The behavior can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person.

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.

Stalking is a course of conduct directed at a specific person that involves repeated (two or more occasions) visual or physical proximity, nonconsensual communication, or verbal, written, or implied threats, or a combination thereof, that would cause a reasonable person fear. Stalking behaviors may also include persistent patterns of leaving or sending the  victim unwanted items or presents that may range from seemingly romantic to bizarre, following or lying in wait for the victim, damaging or threatening to damage the victim’s property, defaming the victim’s character, or harassing the victim via the Internet by posting personal information or spreading rumors about the victim.

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.

The Alleged Victim as used in this policy refers to a student who is a victim of alleged sex discrimination, sexual harassment, and/or sexual violence by an Accused.  A Complainant is an alleged victim who reports such conduct to the Title IX Coordinator or other responsible employees.  A Reporting Individual is a third party who observed, or has knowledge of, and reports prohibited conduct.

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.

The Title IX Coordinators

The Gerstner Sloan Kettering Graduate School has designated as its Title IX Coordinator: Leslie Ballantyne, Esq., MSK HR Legal & Regulatory Affairs (tel: 646-227-2742; ballantl@mskcc.org). 

The Title IX Coordinator 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.

The Title IX Coordinator is 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.

Confidentiality

Confidentiality and  privacy  will be maintained throughout the investigation of a complaint or report of sexual misconduct pursuant to federal or state law and GSK and/or MSK policy.

“Confidentiality” may be offered by an individual who is not required by law to report known incidents or sexual assault or other crimes to institution officials. “Privacy” may be offered by an individual when such individual is unable to offer confidentiality under the law but shall still not disclose information learned from a reporting individual or complainant more than necessary to comply with applicable laws.

GSK may share a complaint or report only as needed with those MSK and GSK personnel who have responsibility for the safety of the GSK and MSK community and, if required, with law enforcement. Counselors and advocates who may be recommended to the complainant by GSK or MSK will be advised of their requirement to maintain confidentiality and/or privacy. GSK and MSK officers and employees who cannot guarantee full confidentiality will maintain a complainant’s privacy to the greatest extent possible. The information a complainant provides to a non-confidential resource will be relayed only as necessary for the Title IX Coordinators to investigate and/or seek a resolution. Complainants can utilize MSK’s confidential and anonymous Compliance hotline to report incidents of sexual misconduct. The Title IX Coordinators can further provide students with information on other privileged and confidential resources.

Title IX Procedural Requirements

A complaint of sexual misconduct by or on behalf of a student should be reported to the Title IX Coordinator.  Complaints may also be reported to GSK’s Director of Security, MSK’s Human Resources Department, and/or the MSK Compliance hotline, all of whom will provide the report to the Title IX Coordinator.  Complainants also have the right to notify local law enforcement and/or state police.

The Title IX Coordinator receives annual training in interviewing victims of sexual assault and will provide information and assist in initiating appropriate internal conduct proceedings and external legal proceedings.  Title IX Coordinator will provide information about intervention, mental health counseling and medical services, sexually transmitted infections, and sexual assault forensic examinations.  They will also direct the complainant to resources available through the New York State Office of Victim Services and the New York-Presbyterian/Weill Cornell Medical Center Victim Intervention Program, both of which have agreements with GSK and include access to evaluation, care, the collection of forensic evidence, and follow-up services.

Complainants’ Rights

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.

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 Director of Security, local law enforcement, and/or state police;
  • Have emergency access to 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 Coordinator and other appropriate GSK or MSK representatives;
  • Disclose the incident to MSK’s human resources authority or the right to request that a confidential or private employee assist in reporting to the appropriate human resources authority;
  • Withdraw a complaint or involvement from the GSK or MSK process at any time.

GSK will seek verbal consent from a complainant prior to conducting an investigation.  A complainant may request that GSK not investigate or take action.  GSK will honor the complainant’s request unless the Title IX Coordinators determine in good faith that the failure to investigate or take action might put the complainant or others at risk of harm and/or prevent GSK from providing a safe, non-discriminatory environment for all members of its community.

The following factors will be used when determining whether an investigation is required and whether to honor a request to not investigate:

  • Whether the accused has a history of violent behavior or is a repeat offender;
  • Whether the incident represents escalation in unlawful conduct on behalf of the accused from previously noted behavior;
  • The increased risk that the accused will commit additional acts of violence;
  • Whether the accused used a weapon or force;
  • Whether the reporting individual is a minor; and
  • 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.
Grievance Procedures for Responding to 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.

Grievance Procedures for Responding to Complaints of Sexual Misconduct, including Sexual Harassment and/or Sexual Violence

A fair, impartial, timely, and thorough investigation will be undertaken, taking into consideration consent and any request by the complainant or reporting individual for confidentiality and/or privacy, in accordance with the following procedures:

  • GSK officials will initiate proceedings by determining whether an investigation is required. Officials will independently meet with the complainant, the accused, witnesses, and other applicable individuals and review available evidence to make a determination. GSK will also take into consideration factors outlined above, in determining whether an investigation is required. Once a determination is made, GSK officials will provide verbal and/or written notification of the need for an investigation and next steps, if applicable.
  • The investigation may include fact-finding, a hearing, if appropriate, and any other decision-making processes useful in determining whether the sexual harassment and/or sexual violence occurred and created a hostile environment.
  • The investigation process will include, at a minimum, i) notice to the respondent describing the date, time, location, and factual allegations concerning the violation; ii) an opportunity to offer evidence during the investigation and hearing, where appropriate, and have access to a record of any hearing; and iii) access to at least one level of appeal.
  • Students, whether the alleged victim or the accused, may exclude their own prior sexual history with persons other than the other party in the judicial or conduct process, or their own mental health diagnosis and/or treatment from admittance in the grievance stage that determines responsibility. Past findings of  domestic violence, dating violence, stalking, or sexual assault may be admissible in the grievance stage that determines sanction.
  • During the course of the investigation, the complainant and the accused must be afforded the same opportunities to present witnesses and evidence, to be accompanied by counsel and/or a designated advisor, and to attend any hearings, although the complainant and the accused will not be required to be in the same room at the same time. If the accused is a student, the complainant can request that GSK issue a no-contact order, which may be appealed by the accused. The complainant also can obtain an order of protection with the help of MSK security and receive assistance from MSK security and local law enforcement in effecting an arrest if the accused violates the order.
  • The applicable legal standard used in resolving the complaint is a “preponderance of the evidence,” which means that the finder(s) of fact conclude(s) that it is more likely than not that sexual harassment and/or sexual violence occurred (or did not occur).
  • Prior to and during an investigation, GSK will promptly take interim steps to ensure equal access to its education programs and activities and protect the complainant, as necessary, from the alleged conduct.
  • GSK will use good faith, best practices, including the factors used when determining whether to honor a request to not investigate, as outlined above under Section A (Complainants’ Rights)  in Title IX Procedural Requirements, to determine whether an accused or respondent presents a continuing threat to the health and safety of the GSK and/or MSK community. If a continued threat is present, GSK will subject the accused or respondent to interim suspension or similar measure, pending the outcome of the investigation.
  • When the accused or respondent is a GSK student, the complainant may request a “no contact order” consistent with GSK and MSK’s policies and procedures.
  • GSK and/or MSK officials can assist the complainant in obtaining an order of protection and have officials explain the order of protection and answer questions about it, including the accused’s responsibility to stay away from the protected person or persons.
  • GSK and/or MSK will obtain reasonable and available interim measures and accommodations that effect a change in academic, housing, employment, and other applicable arrangements to ensure safety, prevent retaliation, and avoid an ongoing hostile environment.

The complainant and the accused will be notified in writing of the outcome of the investigation simultaneously as follows:

  • The complainant must be informed of whether the investigation resulted in a finding that the alleged conduct occurred and, if so, any remedies offered to the complainant, sanctions imposed on the offender as a consequence of the findings and rationale for such, and efforts by GSK/MSK to eliminate any hostile environment and prevent its recurrence.
  •  The accused should be notified of the same information as the complainant, but not information regarding any remedies offered to the complainant.
  • The complainant has the right to choose whether to disclose or discuss the outcome.
  • The activities described in Sections 1 and 3 above, should be completed, if practicable, within sixty (60) days of a complaint being received by the Title IX Coordinator.
  • The complainant or the accused may appeal the outcome of an investigation on the basis of alleged procedural error, previously unavailable relevant evidence that could significantly affect the outcome of a case, or sanction(s) being substantially disproportionate to the findings. There are no prescribed requirements regarding the appeal process other than that the same process should be followed whether the complainant or the accused seeks to appeal, and both parties should be notified about the outcome of the appeal.  Any appeal should, however, be initiated promptly, and in any event within thirty (30) days of notice of the outcome of an investigation, and must be requested in writing to the Title IX Coordinators. All information obtained through the investigation must be protected from public release until the appeals officer, designated by the GSK Dean in consultation with the Title IX Coordinator, makes a final determination, unless otherwise required by law.
  • A separate process may be undertaken to identify actions necessary to address concerns about a hostile environment and to prevent the recurrence of sexual harassment and/or sexual violence. If GSK lacks the necessary resources or services, it should enter into agreements and partnerships with community- based organizations and refer students to those organizations.
  • GSK will make a notation on the transcript of any students found responsible for sexual harassment and/or sexual violence if they were suspended, expelled, or if they decided to withdraw from school during the grievance process. Students who receive a notation for suspension or withdrawal may appeal to seek removal of the notation.

Retaliation Is Prohibited

The Louis V. Gerstner, Jr. Graduate School of Biomedical Sciences, Memorial Sloan Kettering Cancer Center 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. Retaliation against an individual for reporting sexual misconduct, including but not limited to sex discrimination, sexual harassment, and/or sexual violence, sexual assault, domestic violence, dating violence, and stalking, or for participating in an investigation of such a report will be subject to disciplinary action, up to and including dismissal from GSK.

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 Coordinators, 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.

Students’ Bill of Rights Concerning Response To Sexual Misconduct

All students have the right to:

  • Make a report to local law enforcement and/or state police;
  • Have disclosures of sexual violence, including domestic violence, dating violence, stalking, and sexual assault treated seriously;
  • 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;
  • Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard;
  • Be treated with dignity and receive from GSK/MSK information concerning access to courteous, fair and respectful health care and counseling services;
  • 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;
  • Describe the incident to as few GSK representatives as practicable and not be required to unnecessarily repeat a description of the incident;
  • 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;
  • Access at least one level of appeal of a determination;
  • 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
  • Exercise civil rights and practice of religion without interference by the grievance investigation, hearing, and decision-making process of GSK/MSK.