Wheaton College Norton, Massachusetts
Wheaton College
Policies

Academics

Sexual Misconduct Policy

Introduction

The Wheaton College Honor Code pledge states:

As members of the Wheaton community, we commit ourselves to act honestly, responsibly, and above all, with honor and integrity in all areas of campus life... and to behave in a manner that demonstrates concern for the personal dignity, rights and freedoms of all members of the community.

The College Sexual Misconduct Policy has been developed to reaffirm these values, to ensure students’ safety and to provide recourse for individuals whose rights have been violated. Sexual misconduct will not be tolerated in the Wheaton community. Sex discrimination is prohibited under Title IX and will not be tolerated by the college in any form. Prohibited sex discrimination includes sexual harassment and sexual misconduct. These actions violate the college’s Notice of Non-Discrimination and Statement on Sexual Harassment, which can be found on the Wheaton College web site at http://wheatoncollege.edu/hr/files/2011/06/handbook2010-web.pdf. When an individual is found to have violated this policy, serious sanctions will be imposed. This policy has dual purposes. It serves as a measure for the college to determine, after the fact, if behaviors violate community values. It also should serve as a guide to the expectations the Wheaton community has, preventatively, for sexual communication, sexual responsibility and sexual respect.

Overview of Sexual Misconduct

Wheaton College defines sexual misconduct as any sexual contact or activity that occurs without the effective consent of any individual involved. We have provided some examples of what may or may not constitute effective consent. Please note that these examples are not an exhaustive listing.

Effective consent

Effective consent is the basis of this policy because effective consent maintains the value that all persons have the right to feel respected, acknowledged, and safe during sexual interactions.

  • Effective consent is informed, freely and actively given.
  • Consent can be communicated verbally or by action(s). In whatever way consent is communicated, it must be mutually understandable.
  • The initiator must fully understand what his or her partner consents to and does not consent to in regard to sexual interactions.
  • Consent at one time does not imply consent at any other time.
  • Silence alone (absent a non-verbal action clearly demonstrating consent) is considered ineffective consent.
  • Effective consent can never be given by minors (under the age of 16 in Massachusetts), mentally disabled individuals, or incapacitated persons. A person may be incapacitated as a result of alcohol or other drug use.
  • Effective consent cannot result from force, or threat of force, coercion, fraud, intimidation, or incapacitation.
  • Physical force includes but is not limited to: hitting, kicking and restraining.
  • Intimidation is generally understood to mean forcing someone into some action or deterring a person from some action by inducing fear.
  • Coercion is generally understood to mean the use of express or implied threats of violence or reprisal or other intimidating behavior that puts a person in immediate fear of the consequences in order to compel that person to act against his or her will.
  • Threatening someone, whether by words, gestures, or non-verbal actions, to obtain consent for a sexual act is a violation of this policy.

Prohibited conduct

Introduction

Sexual misconduct is a broad term encompassing any sexual behavior that is committed without effective consent. Sexual misconduct may vary in its severity and consists of a range of behaviors. The following descriptions represent examples of sexual behaviors that violate Wheaton’s Honor Code and Community Standards. These examples are not meant to be an exhaustive listing. These types of behaviors are serious violations and represent a threat to the safety of the Wheaton community. Students found responsible for these types of violations will face disciplinary sanctions, up to and including expulsion from the college.

Sexual Penetration

Any sexual penetration (anal, oral or vaginal), however slight, with any object or sexual intercourse, without effective consent. Sexual intercourse includes vaginal or anal penetration by a penis, object, tongue or finger and oral copulation by mouth to genital contact or genital to mouth contact.

Non-Consensual Sexual Touching, Disrobing and/or Exposure

Any intentional sexual touching, however slight, with any object without effective consent. Sexual touching includes any bodily contact with the breasts, groin, genitals, mouth or other body orifice of another or any other bodily contact in a sexual manner. It also includes ejaculating semen onto another individual without effective consent. Any disrobing of another or exposure to another by another without effective consent.

Sexual Misconduct by Incapacity

An incapacitated person is incapable of giving effective consent. Therefore, it is a violation of this policy if the initiator has sexual interactions with someone the initiator knows, or reasonably should know, to be incapacitated by alcohol, drugs, sleep, or other type of incapacitating condition.

Sexual Harassment (Student to Student)

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct or communication of a sexual nature when:

  • Submission to or rejection of such conduct or communication is a term or condition of education benefits, academic evaluations or programs and opportunities offered by the college.
  • Submission to such conduct or communication has the effect of substantially interfering with a student’s education
  • Such conduct is sufficiently severe, pervasive, and objectively offensive as to have the effect of creating an intimidating, hostile or offensive educational environment or negatively affects a student’s educational opportunities
Sexual Exploitation

Sexual exploitation occurs when a student takes non-consensual, unfair, or abusive advantage of another for his/her own advantage or benefit, even though that behavior does not constitute one of the other sexual misconduct offenses. Examples include, but are not limited to:

  • Non-consensual video or audio taping of sexual activity.
  • Stalking with a sexual component. Stalking may take many forms, including persistent calling, texting, or posting on a social networking site as well as physical stalking. When the content of the messages or the nature of the physical stalking is of a sexual nature, sexual misconduct has occurred.
  • Voyeurism is a form of sexual exploitation in which one individual engages in secretive observation of another for personal sexual pleasure or engages in non-consensual video or audio taping of sexual acts. Although the source for the secretive viewing or taping may be unaware of the observation, this behavior is a form of sexual misconduct and violates the integrity of the unaware student.
Attempted Acts

Attempts to commit sexual misconduct are also prohibited under this policy.

Aiding Others

Aiding the commission of sexual misconduct as an accomplice is also prohibited under this policy.

Retaliation
Retaliation against an individual who initiates a sexual misconduct complaint, participates in an investigation, or pursues legal action in regard to conduct subject to this policy, is prohibited. Independent action and disciplinary sanctions may be taken against anyone engaging in retaliation.

Student conduct process for addressing sexual misconduct by a student

Introduction

The college will address allegations of sexual misconduct in a prompt, equitable and effective manner. Set forth below is the process for addressing alleged sexual misconduct by a student. In addition, depending upon the facts and circumstances known to it, the college, in its discretion and judgment, may determine that the allegations of sexual misconduct will be addressed outside of the procedures described in this policy, and as determined through the Office of the Dean of Students.

Definitions of Participants

Complainant: The student making an allegation of a violation of the Sexual Misconduct Policy by another student.

Respondent: The student accused of violating the Sexual Misconduct Policy.

In addition to the Complainant and Respondent, the college supports and permits the involvement of the following faculty or staff members in an allegation of sexual misconduct, with specific responsibilities as indicated below:

  • Case Investigators
  • Procedural Advisors
  • Sexual Misconduct Procedural Coordinator
  • Sexual Misconduct Hearing Board Members

Case Investigators: The Case Investigators are the faculty members or administrators designated to investigate an allegation of sexual misconduct.

Procedural Advisors: Procedural Advisors are trained administrators appointed by the Office of the Dean of Students to provide information and procedural advice regarding the college’s Sexual Misconduct Policy and the conduct process for either the Complainant or Respondent in conduct cases involving alleged violation of the Sexual Misconduct Policy. A student is not required to use a Procedural Advisor.

Sexual Misconduct Procedural Coordinator: The Senior Associate Dean of Students, who serves as the College Conduct Officer, will serve as sexual misconduct Procedural Coordinator for those individuals who have been selected to investigate an allegation of sexual misconduct, and to those who will hear a case of sexual misconduct throughout the sexual misconduct investigatory and hearing process.

Sexual Misconduct Hearing Board Members: Sexual Misconduct Hearing Board Members are the faculty members and administrators assigned to hear a conduct case of alleged sexual misconduct.

Filing of a Complaint

An enrolled student who has experienced an incident of sexual misconduct may file a complaint with the Office of the Dean of Students, which can be reached at 508-286- 8218, or at deanofstudents@wheatoncollege.edu. The student is asked to provide a concise statement of the alleged violations of the Sexual Misconduct Policy and a detailed statement of the facts supporting the alleged violations. Although there is no specified time limit on the filing of a complaint with the college, the college strongly encourages a prompt filing so that a more satisfactory and complete investigation can be conducted. Complaints may also be filed with the college’s Title IX Coordinator:

Darlene Boroviak, Professor of Political Science, Title IX Coordinator
boroviak_darlene@wheatoncollege.edu
(508) 286-3680

Individuals who are the victim of sexual misconduct have the right to file a criminal complaint with the Norton Police Department (or other police authorities). Police and emergency authorities can be reached by dialing “911.” In addition, the Norton Police Department is located at 82 East Main St., Norton, MA 02766, and can be reached at 508-285-3300. The college’s Public Safety Department can also assist individuals in contacting the Norton Police. The Wheaton Public Safety Department can be reached at 508-286-3333 for emergencies, and 508-286-8213 for other business.

Responding to a Complaint

The college will investigate and attempt to resolve a report of sexual misconduct. The college recognizes that a Complainant may desire confidentiality and may request that the college not investigate or pursue resolution of a report. In such cases the Complainant is asked to put the request in writing and the college will maintain confidentiality to the extent permitted by law and other safety considerations. However, the college may determine that it must investigate and pursue resolution of a report, and take whatever measures it deems necessary in response to a charge of sexual misconduct in order to protect the rights, interests and personal safety of the Wheaton community. Such measures may include, but are not limited to, modification of living arrangements, interim removal from campus pending a hearing or other administrative process, restricting/prohibiting contact with person(s) on campus, reporting to the local police, and pursuing a conduct hearing without the participation of the Complainant. Not all instances of sexual misconduct will be deemed to be equally serious offenses, and the college reserves the right to impose differing sanctions, ranging from verbal warning to expulsion, depending on the severity of the offense. The college may consider the safety and concerns of the Complainant, the Respondent and the Wheaton community in determining how it will proceed in addressing allegations of sexual misconduct and imposing sanctions.

Notification to the Respondent of the Complaint and Initial Informational Meetings with Complainant and Respondent

The Respondent shall receive written notification of the filing of a complaint. The Sexual Misconduct Procedural Coordinator will meet separately with the Complainant and the Respondent. The Complainant’s and the Respondent’s Procedural Advisors are also allowed to attend these informational meetings. The purpose of these meetings is to provide both parties with a general understanding of the college’s procedures and to identify support or immediate interventions (e.g., referrals to police, hospital, Health Services and Counseling, SMART, New Hope, etc.). The Office of the Dean of Students also may take any further protective action as it deems appropriate concerning the interaction of the parties, the investigation and the student conduct process.

Sexual Misconduct Case Investigators and Hearing Board Commission

Members of the Sexual Misconduct Case Investigators and Hearing Board Commission investigate and hear complaints of sexual misconduct in which the alleged violator is a student. (If the alleged violator is a non-student, the complaint will be addressed through other applicable college procedures. See Statement on Sexual Harassment.) A student may contact the Office of the Dean of Students, the Title IX Coordinator, or the SMART Coordinator if he or she has questions where a complaint against non-students should be directed.All cases referred to the Sexual Misconduct process will be handled as soon as is reasonably practical. Typically, after a complaint is filed with the Office of the Dean of Students, cases will be heard within a four week period (business days), recognizing that the period of time may be longer than four weeks depending on the circumstances.

Investigators and Hearing Board Membership

Sexual Misconduct Case Investigators and Sexual Misconduct Hearing Board members are drawn from a Commission of 10 -15 faculty and administrators trained in the investigation and hearing of sexual misconduct complaints.

When a complaint of sexual misconduct is filed with the Office of the Dean of Students:

  • two persons drawn from the Commission (referred to as Case Investigators) will be assigned by the Office of the Dean of Students to investigate the alleged violation and may be assisted by a member of the Public Safety staff.
  • three persons drawn from the Commission (referred to as Hearing Board Members) will be assigned by the Office of the Dean of Students to hear the case as the Sexual Misconduct Hearing Board, with one individual appointed to serve as Chair with principal responsibility for the hearing process.
Investigation

With assistance from the Procedural Coordinator, the Case Investigators will:

  • Meet separately with the Complainant, Respondent, and witnesses
  • Collect any written statements that may be provided by the Complainant, Respondent, and/or witnesses
  • Coordinate the collection of relevant information
  • Submit a written report to the Office of the Dean of Students typically within ten business days of receiving the case referral
  • Present the report to the Sexual Misconduct Hearing Board

The Case Investigators may require the cooperation of any member(s) of the Wheaton College community in providing information, with the exception of those healthcare providers and clergy engaged in a protected, confidential relationship with the Respondent or Complainant. The report is the property of Wheaton College.

Procedural Options

Upon the submission of the investigatory report to the Office of the Dean of Students, the Sexual Misconduct Hearing Board Chair assigned to the case shall consult with the Case Investigators and the Procedural Coordinator and determine whether the case or particular charges comprising a case should be brought before the Sexual Misconduct Hearing Board, or be addressed through a process other than a Formal Conduct Hearing.

Granting/Denying a Formal Conduct Hearing

After the investigation of a complaint, if it has been determined that the case will be brought before the Sexual Misconduct Hearing Board, notice of that determination will be delivered to the Complainant, the Respondent and the Dean of Students. The Sexual Misconduct Hearing Board Chair, in consultation with the Case Investigators and the Procedural Coordinator, may specify which charges, if any, will go forward for a Formal Conduct Hearing or may determine that a Sexual Misconduct case will be addressed through a process other than a Formal Conduct Hearing.

Formal Conduct Hearing

If it is determined that the case is to be brought before the Sexual Misconduct Hearing Board, the Hearing Board Chair, with assistance from the Procedural Coordinator, shall:

  • Convene the Hearing Board
  • Gather and disseminate information pertinent to the hearing
  • Be responsible for all communication with the Hearing Board, the Case Investigators, the Complainant, and the Respondent, and the Procedural Advisors and witnesses
  • Facilitate the hearing

The Chair may participate fully in the Hearing Board’s deliberation.

Members of the Sexual Misconduct Case Investigators and Hearing Board Commission who may be involved in the allegations of the complaint or who otherwise have a conflict of interest are to recuse themselves from the investigation/hearing process. When members are recused or otherwise unavailable to participate in the investigation and/or hearing process, the Board Chair will designate appropriate substitutes to serve for the duration of the pending case.

All members of the Board, the Case Investigators, Complainant, Respondent, witnesses, and all other investigators are bound by confidentiality; they may not disclose any aspect of the investigatory or hearing process, or any documents or information related to it, unless to the Procedural Coordinator or the Dean of Students, or as required by law.

Prehearing Process

The college reserves the right to extend any time periods identified in this section (or elsewhere in this policy).

All relevant reports, witness statements, the Complainant’s statements, the Respondent’s statements, and other relevant written materials generally will be available for review by the Respondent and the Complainant at least 3 business days prior to the hearing.

The Respondent and Complainant will be informed in writing of the date and time of the hearing.

The Respondent and Complainant shall have the opportunity to make a request to the Office of the Dean of Students for witnesses to testify on their behalf. The Hearing Board Chair, in consultation with the Procedural Coordinator, shall determine which witnesses shall testify based on the relevance of their testimony.

The Respondent and Complainant must notify the Procedural Coordinator of any witnesses attending the hearing two (2) business days prior to the hearing. The Respondent and the Complainant will be notified of each other’s witnesses no later than 24 hours prior to the hearing.

If the Complainant, the Respondent, or law enforcement agencies request that the college conduct proceeding be delayed because the conduct that is subject to the sexual misconduct case is also being heard by a civil or criminal court, the college will review the request, but it retains the right to hear the case before, after, or during the same time as the civil or criminal case, and to implement appropriate action (such as No Contact Orders, removal from campus, residence facilities, and/or classes, interim removals, or suspensions) to maintain the safety of the campus.

The campus conduct process shall be confidential to the extent possible and as allowed by law and considerations of safety.

Special Procedures
False Reports

The college will not tolerate intentional false reporting of incidents. It is a violation of the Honor Code and Community Standards to make an intentionally false report of any policy violation.

Response to Other Potential Violations

The college subscribes to a policy known as “Safety Always Matters Most (SAMM)”. The purpose of SAMM is to encourage students to seek assistance for those in trouble, including themselves, without concern for possible sanctions. According to SAMM, “students are expected to seek appropriate medical aid when they believe that assistance for an intoxicated student is needed. Students that seek such aid, either on their own behalf, or on behalf of other students, will not be subject to disciplinary action with respect to the college’s alcohol policy.” In keeping with the philosophy of SAMM, and to encourage the reporting of incidents of sexual misconduct, students who seek assistance for themselves or others who have been the victim of sexual misconduct will not be subject to disciplinary action for violations of the college’s alcohol policy. For further information, please review the college’s full alcohol policy on the Wheaton College web site.

Alternative Testimony Options

Alternative testimony options that do not compromise the integrity of the hearing process may be requested by either the Complainant or the Respondent. Options may include, placing a privacy screen in the hearing room, or allowing the Complainant and the Respondent to testify from another room via video, or other options that provide a safe space for participation while not depriving the parties of their rights in the process. The Procedural Coordinator, in consultation with the Hearing Board Chair, determines the appropriateness of these requests and assumes responsibility for these arrangements.

Past Sexual History/Character

The past sexual history or sexual character of a student will not be admissible in a Sexual Misconduct hearing.

If, in the past, a Respondent was found to have violated the Sexual Misconduct Policy, the information related to the past violation may be considered by the Hearing Board if:

  • The previous violation was substantially similar to the present complaint; and/or
  • The previous violation indicates a pattern of behavior and substantial conformity with that pattern by the Respondent.
Procedures of the Hearing Board

Upon the determination that a complaint of sexual misconduct has been referred to a Formal Conduct Hearing, the appointed Chair of the Sexual Misconduct Hearing Board will notify all involved persons and members of the Board of the scheduled hearing. The Complainant and the Respondent will be provided with a written statement of the complaint and a summary of the Case Investigators’ report (when applicable). The Complainant and Respondent will be granted access to copies of relevant materials, as assembled by the Sexual Misconduct Hearing Board Chair and the Procedural Coordinator. Once a student is notified of an alleged policy violation, it is the student’s responsibility to check his/her email for follow-up information.

The Complainant’s and the Respondent’s Procedural Advisors may attend the hearing. Neither the Complainant nor the Respondent may have an attorney present during the hearing. During the hearing, the Procedural Advisors will not participate in the hearing process and will be bound by the rules of confidentiality governing the hearing.

At the request of a hearing participant, the Chair will take appropriate action to maintain a safe environment for all participants in the hearing. Such action might include offering a physical separation of the parties during the hearing and/or adding the presence of a Public Safety Officer at the hearing. Either the Complainant or the Respondent may request to be separated from the other by a screen during hearing proceedings. Thisrequest must be communicated to the Procedural Coordinator at least 48 hours prior to the hearing.

Names of witnesses being called by either party must be given to the Procedural Coordinator at least two (2) business days in advance of the hearing. These names will be provided to the other party no later than 24 hours before the hearing. Witnesses shall only be allowed to share information that is factual and directly pertinent to the specific incident being reviewed; character references will not be heard.

During the hearing, normally only the Case Investigators, the Complainant, the Respondent, Board members, witnesses, Procedural Advisors and the Procedural Coordinator may be present. A hearing may be conducted in the absence of the Complainant or the Respondent, or witnesses, at the discretion of the Hearing Board Chair and/or the Procedural Coordinator. Witnesses shall be present only when sharing information with the Board, unless noted at the discretion of the Chair. The Complainant, the Respondent and the Case Investigators may not ask repetitive questions of any witness.

During a hearing, the Complainant and Respondent may not question each other directly. Both parties have the opportunity to inform the Chair if they believe additional questions should be raised by the Chair.

The Board may ask questions of the Complainant, the Respondent, the witnesses, and the Case Investigators. The Hearing Board may go into closed session, temporarily excusing all participants, upon the vote of a majority of the members of the Board.

If the Complainant or the Respondent does not attend the hearing or chooses not to speak, the procedures will still be followed and sanctions, if appropriate, will be imposed. The Complainant, the Respondent and the Case Investigators may be given the opportunity to make opening and closing comments.

All information shared at the hearing will be audio taped for the Board’s review. The Board’s deliberations will not be taped or otherwise recorded. The record is the property of Wheaton College. It will ordinarily be preserved until the conclusion of the student conduct hearing process, including the appeal period. Participants are prohibited from making their own recording. Upon written request, a Respondent or Complainant may have limited access to the audio recording in the Office of the Dean of Students to listen to it but they may not copy it, transcribe it, or otherwise create another recording. The Chair will promote a civil and respectful proceeding. The Chair reserves the right to remove any individual who impedes the conduct process. A case may be recessed or continued at the Chair’s discretion.

Findings

The Hearing Board shall use the standard “more likely than not” (also known as the “preponderance of the evidence” standard) when determining whether a violation hasoccurred. Following completion of the hearing, only Hearing Board members are entitled to be present for the deliberation. The Board members shall decide by majority vote whether or not each Respondent is responsible for the violation(s) of the Sexual Misconduct Policy.

If the Board decides the Respondent is responsible for a violation, the Board will determine the sanction to be imposed. Pertinent records of previous disciplinary action may be used in determining an appropriate sanction.

At the conclusion of the hearing and the deliberation of the Sexual Misconduct Hearing Board, the decision of the Board will be presented by the Chair to the Respondent and the Complainant on behalf of the college, and be followed in writing (normally within 5 business days).

Appeal

Both the Complainant and the Respondent may file a written appeal of the Hearing Board’s decision. The appeal must be based on one or more of the following:

  • New information directly related to the case that was unavailable during the investigation period or during the hearing itself;
  • Substantial procedural error that might have affected the decision; or
  • The sanction imposed is disproportionate to the violation.

The purpose of the appeal is not to rehear the case; rather, it is to determine if there is sufficient information presented to allow a reconsideration of the Hearing Board’s decision.

Appeals must be made, in writing, to the President of the college within five (5) business days of the written notification of the decision.

Any action assessed or recommended by the Sexual Misconduct Hearing Board or the Office of the Dean of Students may be enforced pending the outcome of the appeal at the sole discretion of the Dean of Students, including an interim removal or suspension.

The President will review the appeal and render a decision, usually within ten (10) business days after receiving the notice of appeal. The Complainant and the Respondent will receive written notice of the outcome of an appeal.

The decision of the President is final.

Revised October 2011

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