Bates College Sexual Misconduct Policy

For a PDF of the Sexual Misconduct Policies and Procedures 2013-2014

I.  Introduction

a.  Overview and purpose

Sexual Misconduct, as defined by this Policy and Procedures for Cases of Student Sexual Misconduct (this “Policy”), comprises a broad range of behavior that will not be tolerated in the Bates College community. Sexual Misconduct violates Federal and state civil rights laws and may also be subject to criminal prosecution in addition to action taken by the College. The College is committed to fostering a community that promotes prompt reporting of Sexual Misconduct and timely and fair adjudication of Sexual Misconduct cases. Creating a safe and respectful environment is the responsibility of all members of the College community.

As a recipient of Federal funds, the college is required to comply with Title IX of the Higher Education Amendments of 1972, 20 U.S.C § 1681 et. seq. (“Title IX”) and the Maine Human Rights Act, 5 M.R.S.A. §4601 et seq. (“MHRA”), which prohibit discrimination on the basis of sex in education programs or activities. Sexual misconduct is a form of sex discrimination prohibited by Title IX and the MHRA. The college is committed to providing programs, activities and an educational environment free from all forms of discrimination including discrimination based on sex.

b. Definitions

For definitions and examples of all forms of sexual misconduct, click here.

Clery Act” means the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C § 1092(f).

Code of Conduct” means the Bates College Code of Student Conduct and Disciplinary Processes.

College” means Bates College.

Dean” means the Dean of Students and his or her designee.

Dean’s Office” means the Office of the Dean of Students, located on the first floor of Lane Hall, room 102

FERPA” means the Family Educational Rights and Privacy Act, 20 U.S.C § 1232g; 34 C.F.R. Part 99.

Student Conduct Committee” means the standing group of students and faculty appointed to serve on the Student Conduct Committee to hear violations of the Code of Student Conduct.

Title IX Officer” means the individual designated as responsible for ensuring Title IX compliance at the college.

II. Jurisdiction; Time Limitations; Retaliation; Criminal Process

a.   Jurisdiction

Personal Jurisdiction
Any person may file a complaint of Sexual Misconduct against a “College student” under this Policy. For the purposes of determining personal jurisdiction, a “College student” means someone who has matriculated and has not formally severed recognized student status with the College. A student retains this status throughout his or her career at the College, including academic terms, scheduled vacations, summer months and periods of leave or off-campus study. Even if there is no Personal Jurisdiction over a person accused of Sexual Misconduct, the College is nevertheless committed to supporting members of our community using all available resources and maintaining an environment free from discrimination.

Geographic Jurisdiction
This Policy applies to any allegation of Sexual Misconduct against a College student, regardless of where the alleged Sexual Misconduct occurred. Although there is no geographic limitation to invoking this Policy, Sexual Misconduct that is alleged to have occurred at a significant distance from the College may be more difficult to investigate. Complaints brought by those who are not members of the College community will be handled according to all procedures in this Policy and the College will use all appropriate and available resources to support the complainant.

b.   Time Limitations for Complaints and Availability of Procedures

So long as there is a personal jurisdiction over the accused student pursuant to Section II.a.i. above, there is no time limit to invoking this Policy in cases of alleged Sexual Misconduct. Nevertheless, students are encouraged to report alleged Sexual Conduct immediately in order to maximize the College’s ability to respond promptly and effectively.
Where the accused student is a degree candidate, it is the responsibility of the complainant to consult with the Dean’s Office concerning the accused student’s intended date of graduation and to file a complaint in a timely manner in cases where personal jurisdiction over the accused student would otherwise be lost pursuant to Section II.a.i. above. In no circumstances will the College allow an impending graduation to compromise its adjudicative process. The conferral of a degree may therefore be held by the President or designee if necessary, until proper resolution of any Sexual Misconduct charges, provided that a hearing will be scheduled for the earliest practicable date that can accommodate the parties and their witnesses. A conferral of a degree is deemed to have occurred only after a student has successfully completed all course work and other graduation requirements and been issued a signed diploma on or following Commencement Day.

c.    Retaliation

It is a violation of College policy to retaliate against any person who in good faith makes a complaint of Sexual Misconduct or cooperates in the investigation of (including testifying or as a witness to) any allegation of Sexual Misconduct. For these purposes, “retaliation” includes Intimidation, Threats or harassment against any such complainant or third party. Retaliation should be reported to the Dean’s Office and may result in the initiation of disciplinary proceedings against the accused and/or a third party independent of the sanction or protective measures imposed in response to the underlying allegations of Sexual Misconduct. “Good faith” means the sincere belief in the truth of the allegations made and/or the testimony given, even if the allegations/testimony are ultimately found to be unsubstantiated or otherwise lack merit.

d.   Effect of Criminal Proceedings

Because Sexual Misconduct may constitute both a violation of College policy and criminal activity, the College encourages students to report alleged Sexual Misconduct promptly to local law enforcement agencies. Criminal investigations may be useful in the gathering of relevant evidence, particularly forensic evidence. Because the standards for finding a violation of criminal law are different from the standards for finding a violation of this Policy, criminal investigations or reports are not determinative of whether Sexual Misconduct, for the purposes of this Policy, has occurred. In other words, conduct may constitute Sexual Misconduct under this Policy even if law enforcement agencies lack sufficient evidence of a crime and decline to prosecute. The filing of a complaint of Sexual Misconduct under this Policy is independent of any criminal investigation or proceeding and (except that the College’s investigation may be delayed temporarily while the criminal investigators are gathering evidence) the College will not wait for the conclusion of any criminal investigation or proceedings to commence its own investigation and take protective measures to protect the complainant and the College community, if necessary, as described in Section III.d. below.

e.   Standard of Proof

As per Title IX guidelines, the standard of proof required in all stages of the investigation and adjudication process in this Policy is a preponderance of the evidence. A preponderance of the evidence means that in order for protective measures or other sanctions to be imposed, it must be more likely than not that the Sexual Misconduct occurred.

f.   Time Frames for Procedures

The College will endeavor to conduct an investigation of a complaint in as timely a fashion as possible. Both parties will be given periodic status updates throughout the process as appropriate. The time frame for completing a Formal Adjudication in accordance with Part II of the Code of Conduct will ordinarily take no more than 60 calendar days following receipt of the complaint. However, this time frame will vary based upon the complexity of the investigation, the severity and extent of the alleged Sexual Misconduct, delays caused by a criminal investigation by law enforcement, and the availability of witnesses, particularly where the time frame overlaps with a school vacation or the end of an academic term. Ordinarily, both parties will be notified, in writing, about the outcome of the complaint within 48 hours of the conclusion of the Student Conduct Committee’s decision. Appeals must be made within the time frames provided in Part II D of the Code of Conduct and Part VII of this Policy. The process for extending deadlines is described in Part II E of the Code of Conduct.

III. The Process: Initial Steps

a.  Intake Meeting with Complainant

Upon receipt of any allegation of Sexual Misconduct, the Dean will first schedule an intake meeting with the complainant in order to provide the complainant with a general understanding of this Policy, to identify forms of support available and to detail immediate interventions and options available.

b.  Complainant Wishes to Pursue Formal or Informal Adjudication

At the initial intake meeting with the complainant, the Dean will seek to determine how the complainant wishes to proceed, i.e., whether the complainant wishes to pursue Formal Adjudication, Informal Adjudication or does not wish to pursue adjudication of any kind. If the complainant wishes to proceed with either Formal or Informal Adjudication, the Dean will determine the name of the accused student(s), the date, location and nature of the alleged Sexual Misconduct, and will schedule an intake meeting with the accused student in order to provide him or her with a general understanding of this Policy and to identify forms of support or immediate interventions or options available to him or her.

If the complainant wishes to proceed with Formal Adjudication, the Dean will initiate an investigation according to the procedures outlined in Part II of the Code of Conduct.

c)  Complainant Does Not Wish to Pursue Adjudication or Requests Confidentiality

If the complainant does not wish to pursue Formal or Informal Adjudication and/or requests that his or her complaint remain confidential, Title IX/MHRA nevertheless requires the College to investigate and take reasonable action in response to the complainant’s request.

The Dean will inform the complainant, however, that the College’s ability to respond may be limited. In such cases, Title IX/MHRA requires the College to evaluate the complainant’s request(s) that the complaint not be adjudicated or remain confidential in the context of the College’s commitment to provide a reasonably safe and non-discriminatory environment for all students. In order to make such an evaluation, the Dean may conduct a preliminary investigation into the alleged Sexual Misconduct and may weigh the complainant’s request(s) against the following factors: the seriousness of the alleged Sexual Misconduct; whether there have been other complaints of Sexual Misconduct against the same accused student; and the accused student’s right to receive information about the allegations if the information is maintained by the College as an “education record” under FERPA. The Dean will inform the complainant if the College cannot ensure confidentiality. Even if the College cannot take disciplinary action against the accused student because the complainant insists on confidentiality or that the complaint not be adjudicated, Title IX nonetheless requires the College to take prompt and effective action to limit the effects of the alleged Sexual Misconduct and to prevent its recurrence. The Dean reserves the authority to issue a “no-contact” order and the other protective measures described in Section III.d. below. Complainants should be aware that the Clery Act requires that the College disclose information on certain crimes on campus and in the surrounding community. This means that all sexual assaults and rapes the College is made aware of must be listed in our annual crime statistics. These statistics contain no dates, specific locations or other personally identifiable information.

d.  Protective Measures

In all cases of alleged Sexual Misconduct, regardless of whether the complainant wishes to pursue Formal Adjudication, Informal Adjudication or no adjudication of any kind, the College will undertake an appropriate inquiry and take prompt and effective action to support and protect the complainant, including taking appropriate protective steps. Accordingly, at or after the intake meeting, the Dean may impose a “no-contact” order, which typically will include a directive that the parties refrain from having contact with one another, directly or by proxy, whether in person or via electronic means. The Dean also may take any further protective action that he or she deems appropriate concerning the interaction of the parties including, without limitation, directing appropriate College officials to alter the students’ academic, College housing, and or College employment arrangements. Title IX requires that, when taking such steps to separate the complainant and the accused student, a school must minimize the burden on the complainant and thus should not, as a matter of course, remove the complainant from his or her classes or housing while allowing the accused student to remain. Violations of the Dean’s directives and/or protective actions will constitute related violations that may lead to additional disciplinary action. Protective measures imposed may be temporary pending the results of an investigation and hearing or may be permanent. The Dean will determine the nature of the protective measures that are required in order to support and protect the complainant.

IV.  Formal Adjudication

Formal Adjudication is adjudicated through the process outlined in Part II: Disciplinary Process of the Code of Conduct.

V.  Informal Adjudication

A complainant who wishes to file a formal complaint with the Dean’s Office but who does not wish to pursue Formal Adjudication may request a less formal proceeding known as “Informal Adjudication” as described in this Section. Although less formal than Formal Adjudication, Informal Adjudication is an adjudicative process; it is not mediation.

a. Purpose of Informal Adjudication

Informal Adjudication provides an opportunity for the complainant to confront the accused student, in the presence of, and facilitated by, a presiding officer, as described in Section V.b. below, and communicate his or her feelings and perceptions regarding the incident, the impact of the incident and his or her wishes and expectations regarding protection in the future. The accused student will have an opportunity to respond.

b. Advisors & Support Persons; Presiding Officer

The complainant and the accused student each may bring an advisor to the Informal Adjudication. Advisors and support persons are subject to the same conditions as described in Part III: Resources, Rights, and Responsibilities of the Code of Conduct. The Dean or designee with an additional member of the Dean of Students staff will preside over the Informal Adjudication.

c. Outcome of Informal Adjudication

Informal Adjudication cannot result in a sanction involving probation, suspension or expulsion of the accused student. Informal Adjudication may, however, result in the imposition by the presiding officers of protective actions and/or other disciplinary actions including censure and/or required action (as described in Part II.C. of the Code of Conduct) agreed upon by the parties or (with or without such agreement) based on information derived from the proceedings, taken together with any other relevant information known to the College at the time of the Informal Adjudication. Letters of outcome will be generated within two class days of the conclusion of Informal Adjudication and will include a summary of the findings and any actions taken by the presiding officers.

d. Election of Formal Adjudication

The College or the complainant may, at any time prior to the conclusion of the Informal Adjudication, elect to end such proceedings and initiate Formal Adjudication instead. In such cases, statements or disclosures made by the parties in the course of the Informal Adjudication may not be used as evidence in the Formal Adjudication (although nothing herein precludes any such statements or information disclosed in the Informal Adjudication from being considered by the Dean in the imposition of protective actions).

e. Privacy of Informal Adjudication

In order to promote honest, direct communication, information disclosed during Informal Adjudication must remain private, except where disclosure may be required by law or authorized in connection with duties on behalf of the College.

VI. Appeal of Outcome

If either the accused student or the complainant is not satisfied with the outcome of Formal or Informal Adjudication or with any permanent protective measures ordered by the Dean, each has a right to appeal the outcome. In cases where Formal Adjudication has been utilized, the appeal process is detailed in Part II.D. Appeals of the Code of Conduct. In cases where Informal Adjudication has been utilized or where protective measures have been ordered by the Dean, appeals are heard by the Sexual Misconduct Appeals Board (“Appeals Board”). The Appeals Board is comprised of the Director of the Office of Equity and Diversity Resources or designee, the Director of Human Resources or designee, and the Dean of the Faculty or designee. Appeals must be submitted in writing to the Dean within two class days of notification of the original decision. Letters of appeal should state the reason the appellant disagrees with the outcome and should cite any supporting evidence. The Appeals Board will review the letter of appeal and will review any materials gathered by the Dean. The Appeals Board may request to speak with the complainant, the accused student, witnesses or the Dean as needed. Decisions of the Appeals Board shall be issued in writing to the student and sent through the Dean. Decisions of the Appeals Board are final.