For Student Sexual Assault/Sexual Misconduct Complaints
PURPOSE AND OVERVIEW
Members of our Community have the right to be free from sexual violence in all forms. In addition, all members of the campus community are expected to conduct themselves in a manner that does not infringe on the rights of others. This “Policy for Sexual Misconduct and the Conduct Process” is meant to provide an overview of how complaints may be resolved within the university. The university’s policy on sexual assault/sexual misconduct may found be at www.plymouth.edu/titleIX-sexual-assault/. In addition, all elements of the conduct process can be found in the Student Code of Conduct at www.plymouth.edu/office/dean-of-students/. Victim’s protections under Title IX, which defines Sexual Assault as a form of sex discrimination, can be found at www.plymouth.edu/titleIX-sexual-assault/.
DEFINING SEXUAL ASSAULT/ SEXUAL MISCONDUCT
(Criminal violations of sexual assault are prohibited by Plymouth State University Policy. The term “sexual misconduct” covers these criminal violations as well as other violations of University Policy)
For individuals to engage in sexual activity of any type with each other there must be clear, knowing, and voluntary consent prior to and during sexual activity. Consent for one form of sexual activity cannot be assumed to be consent for another form of sexual activity. Silence does not mean consent. Coercing someone into sexual activity also violates this policy in the same way as physically forcing someone to have a sexual encounter. Coercion happens when someone is pressured for sex. Alcohol and/or other drug use can place the ability to consent in question. Consent cannot be given if an individual cannot fully understand the details of a sexual encounter because they lack the capacity due to alcohol or other drugs.
- For purposes of clarity and readability: A student who believes they have been the victim of sexual assault/sexual misconduct will be referred to in this policy as “the student bringing the complaint”, or the “complainant”. The student being accused of a violation of the university’s code of conduct will be referred to as the “accused student”.
SEXUAL ASSAULT and SEXUAL MISCONDUCT OFFENSES INCLUDE,
Non-Consensual Sexual Penetration:
- Any sexual penetration (anal, oral, or vaginal),
- however slight,
- with any object or body part,
- by a person upon a person,
- without consent.
Non-Consensual Sexual Contact:
- Any intentional sexual touching,
- however slight,
- with any object or body part,
- by a person on a person,
- without consent.
Penetration: Includes vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object, tongue, or finger, or oral copulation (mouth to genital contact or genital to mouth contact).
Sexual Touching: Any contact with the breasts, buttock, groin, or genitals or touching of another with any of these body parts, or making another touch you or themselves with or on any of these body parts.
Consent: Is informed, freely and actively given, mutually understandable words or actions which indicate a willingness to participate in mutually agreed upon sexual activity. Consent is not granted if it results from the use of physical force, threats, intimidation, or coercion. A lack of response does not constitute consent. Previous relationships or prior consent cannot imply consent to future sexual acts.
Incapacitated Sexual Contact: To have sex with someone who you know to be, or should know to be incapable of making a rational, reasonable decision about a sexual situation. An incapacitated person cannot give consent. This includes someone who is incapacitated as a result of alcohol or other drugs.
Harassment (including Sexual Harassment): Students and other members of the University community have the right to surroundings free of conduct that unreasonably interferes, hinders, or otherwise denies another person a suitable educational or workplace environment. Therefore, students and other members of the University community may not engage in conduct that constitutes harassment, including sexual harassment, as described below.
Harassment in the Educational Environment
In the educational environment, for conduct to constitute harassment under this policy, it must include more than the mere expression of views, words, symbols, or thoughts that another person finds offensive. The conduct must be: (1) unwelcome; (2) discriminatory on the basis of race, color, religion, sex, national origin, sexual orientation, age, disability, genetic information, veteran’s status, or other protected class under federal or state law; (3) directed at an individual; and (4) so severe, pervasive, and objectively offensive (i.e., it would be offensive to a reasonable person in the victim’s position, considering all of the circumstances), and so undermine and detract from the victim’s educational experience, that the victim is effectively denied equal access to the University’s resources and opportunities. This type of harassment is traditionally referred to as “hostile environment” harassment.
Unwelcome conduct of a sexual nature (i.e., sexual advances, requests for sexual favors, or other verbal, non-verbal, or physical conduct of a sexual nature) that is so severe, pervasive, and objectively offensive as to violate this policy (as described above) constitutes sexual harassment. Sexual harassment in this context is a form of hostile environment harassment. When a faculty or staff member, however, conditions an educational decision or benefit on a student’s submission to unwelcome conduct of a sexual nature, the sexual harassment is traditionally referred to as “quid pro quo” harassment. Students are not generally given responsibility over other students and, thus, generally cannot engage in quid pro quo harassment.
Harassment in the Workplace Environment
The legal standards for harassment, including sexual harassment, in the workplace environment are different than in the educational environment. This is because students and faculty in the educational environment have robust speech rights, including the right to freely examine, exchange, and debate diverse ideas, both inside and outside of the classroom. The same is not necessarily the case in the workplace environment, where employees are subject to their employers’ reasonable restrictions.
The University’s policies regarding harassment, including sexual harassment, in the workplace environment are available in the Online Policy Manual (OLPM) at PSU.V.B.4. These policies apply not only to faculty and staff, but also to students employed by the University. Student employees may not engage in conduct that constitutes workplace harassment, including sexual harassment.
Please note that faculty and staff, as part of their job requirements, are responsible for preventing, reporting, and eliminating discrimination and harassment in their respective departments and work areas, and must act upon any information received that relates to potential discrimination or harassment. See OLPM PSU.V.B.4.6.
See, generally, Davis v. Monroe County Board of Education, 526 U.S. 629 (1998); US Department of Justice, Office of Civil Rights, “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties,” January 2001; and US Department of Justice, Office of Civil Rights, “Dear Colleague” Letter, July 28, 2003.
Domestic Violence: Behaviors used by one person in a relationship to control the other. Partners may be dating, living together, married or separated. Domestic violence is possible in any relationship regardless of gender, sexual orientation, socioeconomic standing, ethnicity, religion or culture. Examples of abuse include, but are not limited to:
- Keeping a partner from contacting their friends or family
- Actual or threatened physical harm
- Sexual assault
Violence can be criminal and includes physical assault (hitting, pushing, shoving, etc.), sexual abuse (unwanted or forced sexual activity), and stalking. Although emotional and psychological abuse may not be considered criminal behaviors, they are forms of abuse and can lead to criminal violence.
Relationship/Dating Violence: A pattern of abusive behaviors used to exert power and control over a dating partner. Every relationship is different, but the things that unhealthy and abusive relationships have in common are issues of power and control. Violent words and actions are tools an abusive partner uses to gain and maintain power and control over their partner. Any person can experience relationship/dating violence, regardless of gender, sexual orientation, socioeconomic standing, ethnicity, religion or culture. It does not discriminate and can happen to anyone in any relationship, whether it’s one that is casual and short-term or serious and monogamous.
Sexual Exploitation: Occurs when a student takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses. Examples of sexual exploitation include, but are not limited to:
- Invasion of sexual privacy;
- Prostituting another student;
- Non-consensual video or audio-taping of sexual activity;
- Going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you have consensual sex);
- Engaging in voyeurism;
- Knowingly transmitting an STI or HIV to another student;
- Exposing one’s genitals in non-consensual circumstances; inducing another person to expose their genitals;
- Sexually-based stalking
Stalking: A course of conduct directed as a specific person that is unwelcome and would cause a reasonable person to feel fear. Course of conduct is defined as “a pattern of actions composed of more than one act over a period of time, however short, evidencing a continuity of conduct.”
Retaliation: Intentional action taken by an accused individual or allied third party, absent legitimate non-discriminatory purposes, that harms an individual as reprisal for filing or participating in a civil rights grievance proceeding (including all forms of student conduct hearing process, filing of police report/charges).
Intimidation: Implied threats or acts that cause unreasonable fear of harm in another.
*Use of alcohol or other drugs is never a defense for sexual assault/misconduct.
New Hampshire State Law (RSA 632), pertaining to Sexual Assault
Confidential Support and Services
Different people on campus have different reporting responsibilities, different abilities to resolve sexual assault complaints, and different abilities to maintain your confidentiality. If you want the details of the incident to be kept fully confidential, you should initially speak with one of the following:
- An advocate from Voices against Violence (VAV – Hotline (877) 221-6176 ) Advocates are available 24 hours a day through the hotline number listed above and can support and guide victims with and through all their needs.
- A counselor from our Counseling and Human Relations Center – 603-535-2461
- A health service provider at our Health Services or any medical facility – 603-535-2350
- Campus Ministry http://www.plymouth.edu/office/campus-ministry/
Seeking Support and Advice
The university S.A.G.E. (Sexuality, Anti-Violence, Gender, and Equality) Center staff works to promote a supportive, equitable, and safe environment for victims of sexual assault. The center is located on the 2nd floor of the Hogan House, at the intersection of Merrill and Langdon. Contact them at 603-535-2387. You can seek support and advice from additional campus members who can help connect you with services and support. These resources include faculty members, advisers to student organizations, many service administrators on campus, student activities personnel, etc. If you are unsure of someone’s duties and their ability to maintain your privacy, simply ask them before you speak to them about your incident. They will be able to tell you their responsibilities and to help you make decisions about who can best assist you. Again you do not need to share any details.
Official Reporting Options
Plymouth State University’s official reporting options include the Title IX Coordinator in the Office of the Dean of Students, University Police and Human Resources. An official report can also be submitted to the Plymouth Police Department. Note that the university treats all such reports very seriously. You also can report anonymously through the “Silent Witness Program” offered by the University Police department.
To Learn More About Your Options
You can schedule a meeting with the Dean of Students (or their designee) to review all the options available to a student who reports they have been the victim of sexual misconduct and to discuss available support and confidential resources. NO DETAILS OF THE INCIDENT NEED BE PROVIDED AT THIS MEETING. Students are welcome to bring an advocate or advisor with them. The meeting may also involve a discussion of any accommodations that might be appropriate concerning academic, university housing, and/or university employment arrangements if not already accomplished. Again, no details about the incident need be provided in this initial meeting and advocates/advisors are welcome and encouraged to attend. This meeting does not constitute filing a complaint.
TIMING, RETALIATION AND RELATED MISCONDUCT
Timing of Complaints and Available Processes
- There is no time limit to invoking any of these processesin responding to complaints of sexual assault/ misconduct so long as the accused is still an enrolled student. Even if the accused is no longer enrolled, protective measures are available. If a student would like to file a conduct complaint they are encouraged to report sexual assault/misconduct as soon as possible in order to maximize the University’s ability to obtain evidence, and conduct a thorough, impartial and reliable investigation.
- If a student would like to access an advocate who provides 24/7 confidential support services they are encouraged to contact Voices Against Violence at 603-536-1659 to discuss their options.
- It is a violation of university policy to retaliate against any person making a complaint of sexual assault/misconduct or against any person cooperating in the investigation of (including testifying as a witness to) any allegation of sexual assault/misconduct. For these purposes, “retaliation” includes intimidation, threats, harassment, and other adverse action threatened or taken. Retaliation should be reported promptly to the Dean of Students and may result in disciplinary action independent of the sanction or interim measures imposed in response to reports of sexual misconduct.
Other Related Misconduct
- In accordance with policy, student conduct hearings may be convened for sexual misconduct and any violations of the University’s Standards of Conduct directly related to the sexual misconduct. Such related misconduct may include, violations of the rules of privacy as articulated herein, violations of administrator directive(s) and/or violations of other standards of conduct that occurred in the course of the sexual misconduct. Evidence of a complainant or witness’ use of alcohol or drugs (e.g., underage drinking) will not result in conduct charges as covered in the university Amnesty Policy for alcohol/drug use.
STEPS FOR FILING A STUDENT CONDUCT COMPLAINT
Student Wishes to File a Complaint
- At a first meeting with the Assistant Dean of Students (referred to as the ADOS hereafter), the ADOS will seek to determine how the student complainant wishes to proceed, i.e., whether to pursue panel conduct hearing, a hearing before an individual conduct officer, or does not wish to pursue resolution of any kind at this time. If the student complainant wishes to proceed with either hearing process, the ADOS will ask for the name of the accused student, and the date, location, nature of the sexual misconduct (if there are any previously completed reports they can be provided to the ADOS to avoid repeating of details), and the ADOS will schedule an individual initial meeting with the accused student. (If the full identity of the accused student is not known, efforts will be made to make that identification). The accused student will be provided a general understanding of the conduct due process and any interim measures that are being applied administratively.
Student Files a Complaint but Does Not Wish to Pursue Resolution and Requests Confidentiality
- If the complainant does not wish to pursue a hearing and/or requests that his or her complaint remain confidential, the ADOS will review again all the various support options available and clarify how the student might move forward in the future if they choose to. In complaints of sexual assault/misconduct the university will consult with the victim to put in place prompt and effective action as is reasonably practicable under the circumstances to support and protect the complainant and the community. Efforts will be made to honor any confidentiality request made by a student within the constraints of Title IX requirements and resolution. No action will be taken without the knowledge of the complainant. (See Title IX).
Hearing Before an Individual Conduct Officer
A student who wishes to file a conduct complaint with the Office of the Dean of Students but who does not wish to pursue a hearing panel resolution may request a hearing before an Individual Conduct Officer, hereafter referred to as an ICO. (Usually the Associate Dean of Students or an appropriate trained conduct officer) as described in this section.
The ICO process is a student conduct hearing; it is not mediation. The accused student is expected to attend the proceedings which may move forward in their absence and a decision will be rendered based on the information provided.
- A hearing before an ICO provides an opportunity for the complainant to confront the accused student, in the presence of, and facilitated by, a professional hearing officer, and to communicate their feelings and perception regarding the incident, the impact of the incident, and their wishes and expectations regarding outcomes and protection in the future. The accused student will have an opportunity to fully respond.
- The complainant and the accused student each may bring an advisor to the ICO Hearing. Advisors are subject to the same restrictions set forth for advisors in all student conduct policies. (See Advisor. Voices Against Violence advocates may serve in this capacity)
- Hearings are conducted in private and, when requested in advance, accommodations can be made to allow the complainant and the accused student to not have to face each other during the hearing (such as using Skype, having visual partitions, or using a speaker phone from a different location).
ICO Hearing Where Accused Student Acknowledges Responsibility
- If, during the course of the hearing, the accused student elects to acknowledge his or her actions and take responsibility for the Sexual Misconduct, the hearing may be concluded and sanctions imposed. If both the complainant and the accused student agree to such proposed sanctions, the complaint will be resolved with full due process being met. If either the complainant or the accused student objects to such proposed sanction, a decision will be rendered subject to appeal by either party.
HEARING PANEL RESOLUTION
A complainant may request a panel conduct hearing.
- Using input from the complainant and the accused, details of the case, and member availability, the ADOS will bring together a panel of 3 people to include one designee who will serve as chair (may be the ADOS), and 2 trained administrators, faculty or staff. The ADOS is responsible for constituting, training, advising, and assigning cases to members of the panel. All decisions of responsibility are based on preponderance of the evidence (defined as “more likely that not”) and a minimum of a 2-1 panel vote. Hearings are conducted in private, and accommodations, upon the complainant’s request, can be made to ensure the complainant does not have to face the alleged perpetrator during the hearing (such as using Skype, having visual partitions, or using a speaker phone from a different location). A request can be made for a hearing before a trained individual hearing officer instead of a panel (See above section entitled “Hearing before an Individual Hearing Officer”). The final decision for the hearing type rests with the ADOS or the Dean of Students.
- The complainant and the accused student have the ability to appeal the decided hearing type to a different senior administrator.
- Panel’s Counsel. The ADOS/Panel may seek advice from the University’s Office of the General Counsel throughout the hearing process on questions of law and procedure; however, factual determinations are the domain of the ADOS/Panels.
- Testimony by Closed-Circuit Technology. With 2 business days of prior notice, request by a party or witness, the university may be able to provide for testimony by closed-circuit technology in appropriate circumstances, including where parties or witnesses are otherwise unable to participate in the hearing.
- Recording. The ADOS (or appropriate hearing officer) will arrange for the hearing to be recorded. The recorded record is maintained through any appeal process and is then eliminated. In the event of an appeal by either party, the recording avoids a repeating of stories/testimonies/detail to an appeal officer or panel.
- Sanction. The ADOS/Panel is required to consider suspending or expelling any student found responsible for sexual assault/ misconduct; however, the ADOS/Panel may impose any sanction that they find to be fair and proportionate to the violation. In determining an appropriate sanction, the ADOS/Panel may consider any record of past violations of the Standards of Conduct, as well as the nature and severity of such past violation(s). The ADOS/Panel will consider, as part of its deliberations, whether the sanctioning will (a) bring an end to the violation, (b) mitigate the effects of the violations on the complainant and the university community, and (c) provide an appropriate educational learning outcome for the student found responsible. The sanction decision will be made by the ADOS/Panel. Any sanction imposed will be explained or supported in the written decision of the ADOS/Panel.
- The decision of the ADOS/Panel, including the sanction, if applicable, will be announced to both parties by the ADOS/Panel at the conclusion of the hearing. In addition, the ADOS/Panel will provide a copy of a final outcome letter described in Section 17, below, to both parties and to the Dean of Students and the Vice President for Enrollment Management and Student Affairs, within ten (10) calendar days following the conclusion of the hearing (or such longer time as the ADOS/Panel may for good cause determine).
- A student found responsible of violating the university sexual misconduct policy could be criminally prosecuted in the state courts and may be suspended or expelled from the university for the first offense.
- Either party may appeal the ADOS/Panel’s decision to the Dean of Students in writing within two (2) working days of the date of the ADOS/Panel’s decision. All appeals will be governed by the university’s appeal process.
- Privacy of the Hearing Process: final outcome letter. In order to comply with FERPA and Title IX and to provide an orderly process for the presentation and consideration of relevant information without undue intimidation or pressure, the hearing process is not open to the general public. Accordingly, documents prepared in anticipation of the hearing (including the Investigative Report, the Notice of Hearing, and the pre-hearing submissions), other documents, testimony, or other information introduced at the hearing, and any transcript of the hearing itself, may not be disclosed outside of the hearing proceedings, except as may be required or authorized by law/policy.
In addition to complying with Title IX and FERPA, the university is required to comply with the federal Clery Act. Under the Clery Act, both the complainant and the accused student must be informed of the hearing outcome. The final outcome letter will set forth, as required by the Clery Act, the name of the accused student; the violation(s) of this policy for which the accused student was found responsible, if any; any essential findings supporting the ADOS/Panel’s decision on the issue of responsibility; and the sanction imposed, if any.