Sexual Misconduct Policy and Conduct Process
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 reports may be resolved within the University. The University’s policy on sexual assault/sexual misconduct may be found 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 affirmative, unambiguous, and conscious 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 reporting party”. The student being accused of a violation of the University’s code of conduct will be referred to as the “responding party.”
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.
Affirmative Consent: Is the affirmative, conscious and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that they have affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the parties involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
Incapacitated Sexual Contact: To have sexual contact or intercourse 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 asleep or unconscious, incapacitated due to the influence of alcohol, drugs, or medication, so that the person could not understand the fact, nature, or extent of the sexual activity, or if the person was unable to communicate due to a mental or physical condition.
Further more, use of alcohol or other drugs is never a defense for sexual assault/misconduct.
New Hampshire State Law (RSA 632 A:2), pertaining to Sexual Assault
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 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, short-term, serious, and/or monogamous.
Sexual Exploitation: Occurs when a student takes non-consensual or abusive sexual advantage of another for their own advantage or benefit, or to 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
- 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; and
- Sexually-based stalking.
Stalking: A course of conduct directed at 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.” This includes cyber-stalking.
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.
Confidential Support and Services:
Different people on campus have different reporting responsibilities, different abilities to resolve reports of sexual assault, 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/.
OFFICIAL REPORTING OPTIONS:
The University treats all reports seriously. Official reporting options for action through the University conduct process include the Title IX Coordinator in the Office of the Dean of Students. To file a police report, contact the University Police Department or Plymouth Police Department.
TO LEARN MORE ABOUT OPTIONS:
Students are encouraged to schedule a meeting with the Dean of Students /Title IX Coordinator (or their designee) to review all of the options available to an individual who reports they have been a victim of sexual misconduct and to discuss available support and confidential resources. NO DETAILS OF THE INCIDENT NEED TO BE PROVIDED AT THIS MEETING.
Individuals are welcome to bring an advocate or advisor with them. The meeting may also involve a discussion of any interim remedies that might be appropriate concerning academics, University housing, and/or University employment arrangements if not already accomplished. Again, no details about the incident need to be provided in this initial meeting and advocates/advisors are welcome to attend. This meeting does not constitute filing a report.
TIMING, RETALIATION, AND RELATED MISCONDUCT:
Timing of Reports and Available Processes:
If an individual would like to file a report, they are encouraged to do so as soon as possible in order to maximize the University’s ability to obtain evidence, and conduct a thorough, impartial and reliable investigation. There is no time limit to invoking any of the processes in responding to reports of sexual assault/misconduct. Even if the accused is no longer enrolled or employed, administrative measures (such as criminal trespass orders) are available.
Retaliation: Retaliation is 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 the student conduct hearing process, filing of police report/charges). It is a violation of University policy to retaliate against any person reporting an allegation 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 Title IX Coordinator and may result in disciplinary action independent of the sanction or interim measures imposed in response to reports of sexual misconduct.
Other Related Misconduct:
Evidence of a reporting party’s or witness’s use of alcohol or drugs (e.g., underage drinking) will not result in a student conduct violation, as covered in the University’s Amnesty Policy.
SEXUAL MISCONDUCT REPORTING PROCEDURES:
For the purposes of the conduct process, an individual filing a report is referred to as the reporting party; an individual accused of sexual misconduct is referred to as the responding party.
If an individual wishes to proceed with the conduct process, the Title IX Coordinator will ask for the name of the accused, and the date, location, and nature of the sexual misconduct. If there are any previously completed reports, they can be provided to avoid repeating details. The Title IX Coordinator will schedule an initial meeting with the responding party (if the full identity of this person is not known, efforts will be made to make that identification), during which time the responding party’s due process rights will be reviewed and any interim measures being applied administratively will be explained.
If the reporting party does not wish to proceed with the conduct process, the Title IX Coordinator will again review all available support options and review how the reporting party may move forward with the report in the future.
In reports of sexual misconduct, the University will consult with the reporting party to put in place prompt and effective actions that are reasonably practicable under the circumstances to support and protect the reporting party and the community. Efforts will be made to honor any privacy request made by a reporting party within the constraints of Title IX requirements. No action will be taken without the knowledge of the reporting party.
INVESTIGATION AND RESOLUTION PROCESS:
When a reporting party wishes to proceeded with the conduct process, the Title IX Coordinator, in addition to taking any necessary remedial actions as explained above, will conduct a preliminary investigation to determine if there is reasonable cause to believe specific policies have been violated.
When reasonable cause has been determined, both the reporting party and responding party will receive notification that an investigation has been initiated. The Title IX Coordinator will assign an investigation team, selected from a trained body of Title IX Deputy Coordinators.
Investigators meet with the reporting party, responding party, and witnesses. Upon completion of an investigation, a report including findings and recommendations will be provided to the Title IX Coordinator.
Formal Hearing: The investigation team will present their final report to a three-person panel (selected from a trained body of Title IX Deputy Coordinators). There are two possible outcomes of a formal hearing.
- No violation– the responding party is not responsible for a violation of policy. The reporting party may appeal this finding.
- Violation – the responding party is responsible for a violation of policy/policies. The responding party may appeal this finding.
Informal Resolution: If at any time prior to a formal hearing, a responding party accepts responsibility for the alleged violation(s), it is possible to proceed directly with sanctioning (without a formal hearing). The full range of sanctions, including suspension and expulsion are considered. In order to proceed with an Informal Resolution, both parties must agree. Once a responding party has accepted the Informal Resolution sanction(s) and it has been accepted by the reporting party, it cannot be appealed by either party. The reporting party has the right to proceed with the formal resolution hearing if they do not agree with the recommended Informal Resolution sanction.
Sanctioning: Sanctions are proportionate to the severity of the violation. In sexual misconduct cases where there is non-consensual intercourse or penetration, suspension and/or expulsion are required to be considered. Possible sanctions for violations of sexual misconduct range from disciplinary warning through suspension/expulsion. The reporting party may submit a victim impact statement to be considered at the time of sanctioning.
Appeals: Either party may appeal the outcome of the formal hearing. Appeals must be submitted in writing to the Title IX Coordinator within two (2) working days of the formal hearing outcome. The Title IX Coordinator will serve as the appeal officer.
Outcome: Both the reporting party and the responding party 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 policy for which the accused student was found responsible, if any; any essential findings supporting the decision of responsibility; and the sanction(s) imposed, if any.