Criminal vs. College processes
A Plain Language Explanation of Distinctions Between the New York State Penal Law and the Hamilton College Sexual Misconduct Disciplinary Process
The contents of this page have been adapted with permission from the State University of New York (SUNY).
There are significant differences between the criminal and college 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 table is intended to help explain the differences between the criminal justice system and college disciplinary processes.
|Criminal Justice System||College Disciplinary Process|
|Goals.||Public safety, deterrence, and punishment.||Education; safety; safe and supportive campus environment.|
|Governing Law.||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; Hamilton College Sexual Misconduct Policy.|
How to report and whether there must be action once a report is made.
|Crimes involving sexual violence may be reported to 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, such as counselors, chaplains and health center staff, 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 and/or formal complaint 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. If a complainant wishes to file a formal complaint, they may do so by contacting the TIXC.|
|Who investigates?||Police or other law enforcement officials.||Members of the Harassment and Sexual Misconduct Board (HSMB) whose membership is normally limited to members of the faculty who have attained the rank of associate or full professor, and full-time staff members. For some complaints an external investigator (generally an attorney) may also be used.|
|Procedures.||See Governing Law. Procedures established by police departments, prosecutors’ offices, etc.||Hamilton College Sexual Misconduct Policy.|
|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).|
|Confidentiality.||Law enforcement agencies offer some confidential assistance, but a criminal charge and trial must be public.||Hamilton College offers confidential resources, but a disciplinary proceeding requires that relevant information be shared with those involved.|
|Privacy.||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.||Generally the parties are the complainant (an individual who has allegedly been subjected to sexual misconduct in violation of the College’s policy) and respondent (an individual whose conduct is alleged to have violated the College’s policy), regardless of whether a formal complaint has been filed or not.|
|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.||
Complainants cannot be required to participate in the College process. However, Hamilton College will be limited in its ability to respond if a reporting individual does not participate. If the continuing safety of the campus is at risk, the College may move forward with a formal complaint with or without the participation of the complainant.
|Who initiates the proceedings?||A prosecutor, acting on behalf of the state (or the United States in federal cases).||Generally, a complainant will initiate the proceedings for a formal complaint, although sometimes the College may serve as the complainant.|
|Testimony.||In a court, testimony is generally public. Other parties are, through counsel, entitled to cross-examine witnesses.||The Harassment and Sexual Misconduct Board will identify an Investigation Team. The Complainant and Respondent will be invited to offer and/or identify all information they would like the Investigation Team to review, and both may recommend witnesses and submit information for consideration. Decisions about interviews and collection and evaluation of relevant information, physical or electronic documents, and other tangible items, however, are ultimately at the sole discretion of the Investigation Team in the context of impartial treatment of both parties. At the conclusion of the investigation, the Complainant and Respondent will have the opportunity to review the other party’s statement, relevant witness statements and other relevant materials gathered during the course of the investigation. Each party will be invited to access the information separately in a private setting, and will have the opportunity to respond in writing.|
|Role of attorneys.||Both the state and the defendant are represented by counsel; counsel may question witnesses.||Both parties may have an advisor of choice (which may be an attorney) present at any meeting related to the investigation and resolution process. Advisors can only advise the Complainant or Respondent privately and cannot act as speaking advocates.|
|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 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, Hamilton will permit mediation if parties agree.If there is a formal proceeding, the respondent may be found “responsible” or “not responsible” for violating Hamilton College’s Sexual Misconduct Policy. In some cases a determination of responsibility may not be reached. Respondents may also accept responsibility before a finding by the Harassment and Sexual Misconduct Board.
|Sanctions.||An individual found guilty may be fined, imprisoned, or both. In some courts, alternative sanctions are sometimes used.||An individual found responsible for violating the Hamilton College Sexual Misconduct Policy may be given a range of sanctions (depending on the severity of the conduct and precedent), ranging from a warning to suspension or expulsion from Hamilton College. (Students found responsible for “Non-Consensual Sexual Act(s)” should expect to be separated from the College.) Students who are suspended or expelled will also receive a notation on their transcript.|