Title IX Sexual and Gender-based Misconduct Policy for Staff

I. INTRODUCTION

The Wheaton College Sexual and Gender-Based Misconduct Policy for Staff (the “Policy”) has been developed in compliance with Title IX to provide a prompt and equitable investigation and adjudication process in cases that implicate the Policy, and to provide recourse for individuals whose rights have been violated regardless of that person’s sex, sexual orientation, gender identity or gender expression.

It is a priority of the College that all persons have equitable access to reporting, resources and all aspects of the grievance process. The College acknowledges that historically excluded identities often experience increased barriers to reporting. In this regard, the College has a number of support offices available to staff, including the Office of Human Resources and the Office of the Title IX Coordinator. Confidential Resources including the Employee Assistant Program and the College’s confidential resource provider, Melanite Gonzalez (508-286-3905), are also available to provide confidential and support. Additionally, any staff seeking accommodations in the response to a report of Sexual and Gender-Based Misconduct, including the formal grievance process, may contact the Office of Human Resources.

For more information about the Policy or to report Prohibited Conduct, please contact Caraline Somerville, Title IX Coordinator at 508-286-3261 or [email protected] or visit https://portal.wheatonma.edu/documents/10354/466178/Wheaton_EAP_AOHedit.pdf/1d7469d3-ef4d-45d7-b53e-37a355e99f83. This page includes information about counseling, health, safety, and other support services available to employees.[1]

II. SCOPE

The Policy outlines how the College will respond when the Title IX Coordinator receives notice of alleged Prohibited Conduct by a staff member of the College occurring in an education program or activity of the College against a person in the United States. For purposes of the Policy and as prescribed by Title IX, “education program or activity” includes locations, events, or circumstances, over which the College exercised substantial control over both the Respondent and the context in which the Prohibited Conduct occurs.

Reports regarding Other Prohibited Forms of Sex Discrimination, as defined below, and/or that do not occur within the jurisdictional limits as defined in the Policy and by Title IX, may generally be addressed under the College’s Unlawful Discrimination and Harassment Policy in the Staff Handbook, a copy of which can be accessed here: https://wheatoncollege.edu/about-wheaton-college/offices-services/human-resources/employee-benefits-and-policies/. For more information or to report such discrimination, please contact Omaira Roy, Deputy Title IX Coordinator for Staff, at 508-286-8206, [email protected], or in person at her office, Hebe 105.

III. DEFINITIONS

For purposes of the Policy, the following terms have the meanings indicated in this section.

Advisor. An individual who is selected by a party or assigned to a party by the College (who may be, but is not required to be, an attorney) to provide information and procedural advice regarding the Policy and the College’s grievance process, who may inspect and review evidence, and who can conduct cross-examination on behalf of the party during the hearing.

Appellate Officer. A trained and qualified individual other than the Title IX Coordinator, the investigator(s), or the decision-makers(s) who is an employee of the College or engaged by the College to review and determine appeals under the Policy.

Complainant. A person who is alleged to have experienced Prohibited Conduct, and who, at the time they file a Formal Complaint, is currently participating in, or attempting to participate in, the College’s education programs or activities.[2]

Confidential Resource. Staff, faculty, or third-party partners with a statutory privilege (licensed psychologists, mental health counselors, social workers, clergy and designated medical personnel), who are acting within that privileged role, and individuals the College explicitly designates as confidential resource providers available to employees for the purpose of providing information, support and resources regarding the Policy.

Consent. Consent which is informed, freely and actively given through clear words or actions, and creates mutually understandable permission regarding the conditions of sexual activity. Consent is achieved only where each party mutually understands what behavior the party’s partner consents to and what behavior the party’s partner does not consent to with regard to physical and sexual interactions. Consent at one time does not imply Consent at any other time. Consent cannot be obtained: (1) through silence alone (absent a non-verbal action clearly demonstrating consent); (2) from minors (under the age of 16 in Massachusetts), individuals with certain mental disabilities, or incapacitated persons; or (3) through physical force, threat of physical force (by words, gestures, or non-verbal actions), coercion, fraud, intimidation, or Incapacitation.

Dating Violence. Violence committed by a person: (1) who is or has been in a social relationship of a romantic or intimate nature with the Complainant; and (2) where the existence of such a relationship will be determined based on a consideration of the following factors (i) the length of the relationship; (ii) the type of relationship; and (iii) the frequency of interaction between the persons involved in the relationship. Dating Violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating Violence does not include acts covered under the definition of Domestic Violence.

Deputy Title IX Coordinator for Staff. The College’s Deputy Title IX Coordinator for Staff is Omaira Roy, Associate Vice President for Human Resources: 508-286-3544, [email protected].

Designated Official. A College official with authority to institute corrective measures on behalf of the College. Designated Officials include staff in the Office of the Dean of Students, the Office of the Provost, and Human Resources.

Domestic Violence. Actions of violence committed by a current or former spouse or intimate partner of the Complainant, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, or by a person similarly situated to a spouse of the victim under the domestic or family violence laws of Massachusetts. In interpreting the term “violence” in this definition, the College will consider, but is not limited to, the types of actions that constitute felonies or misdemeanors under Massachusetts state law.

Formal Complaint. A document filed by a Complainant alleging Prohibited Conduct against a Respondent and requesting that the College investigate the allegation of Prohibited Conduct. As used in this paragraph, the phrase “document filed by a Complainant” means a document or electronic submission that contains the Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the person filing the Formal Complaint. As outlined below, in certain limited situations, the Title IX Coordinator, in their sole discretion, can also sign a Formal Complaint.

Incapacitation. The inability, temporarily or permanently, to give consent, because: (1) an individual is mentally and/or physically helpless or unaware of where they are, how they got there, or why or how they became engaged in sexual activity due to drug or alcohol consumption, either voluntarily or involuntarily; or (2) an individual is unconscious, asleep or otherwise unaware that the sexual activity is occurring. Where alcohol is involved, Incapacitation is a state beyond drunkenness or intoxication. Some indicators of Incapacitation may include, but are not limited to, lack of control over physical movements, lack of awareness of circumstances or surroundings, or the inability to communicate for any reason.[3]

Order of No Contact. A written order issued by the Title IX Coordinator prohibiting contact between two or more parties and, when applicable, ordering restriction from one or more locations on campus.

Other Prohibited Forms of Sex Discrimination. Forms of adverse treatment on the basis of sex (including on the basis of sexual orientation, gender identity, and/or gender expression) that are not otherwise set forth as Prohibited Conduct, in Section IV of the Policy.[4]

Procedural Coordinator. The Deputy Title IX Coordinator for Staff.

Reasonable Person. A reasonable person under similar circumstances and with similar identities to the Complainant.

Respondent. An individual who has been reported to be the perpetrator of conduct that could constitute Prohibited Conduct.

Retaliation. Any acts or words that intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under the Policy.

Sexual Assault. Sexual Assault includes: (1) the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the Complainant; (2) the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the Complainant, including instances where the Complainant is incapable of giving Consent because of their age or because of their temporary or permanent mental incapacity; (3) sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; and (4) sexual intercourse with a person who is under the statutory age of consent.

Sexual Harassment. Conduct on the basis of sex that includes:

an employee of the College conditioning the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct; or
unwelcome conduct determined by a Reasonable Person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education program or activity.

Stalking. Engaging in a course of conduct directed at a specific person that would cause a Reasonable Person to: (1) fear for the person’s safety or the safety of others; or (2) suffer substantial emotional distress. For the purpose of this definition, course of conduct means two or more acts, including, but not limited to acts in which the stalker directly, indirectly, or through third parties, by any action, method, devise, or means, follows, monitors, observes, surveils, threatens, or communicated to or about a person, or interferes with a person’s property. Substantial emotional distress means significant mental suffering or anguish that may, but does not require medical or other professional treatment or counseling.

Supportive Measures. Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to the College’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the College’s educational environment, or deter Prohibited Conduct. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.

Timely Warning. A warning issued by the Director of Campus Safety to the campus community to notify the community of a serious crime that constitutes an ongoing or continuing threat.

Title IX. Title IX of the Education Amendments of 1972 (20 U.S.C.A. § 1681) and its implementing regulations (34 C.F.R. Part 106).

Title IX Coordinator. The College’s Title IX Coordinator or a designee.

IV. PROHIBITED CONDUCT

The following conduct, as defined above, is prohibited:

(1) Dating Violence;

(2) Domestic Violence;

(3) Sexual Assault;

(4) Sexual Harassment;

(5) Stalking; and

(6) Retaliation.[5]

V. PROCESS FOR RESPONDING TO REPORTS

This section outlines how the College will respond to a report of conduct that could constitute Prohibited Conduct and determine what, if any, Supportive Measures and additional action is appropriate. The College retains the discretion to designate another appropriate College employee to satisfy the various roles set forth below and as appropriate to the role and situation at hand.

(1) Reporting Prohibited Conduct. Any individual seeking to report allegations of Prohibited Conduct by a staff member of the College occurring in an education program or activity of the College may do so by reporting via the Sexual and Gender-Based Misconduct Reporting Form,[6] or by contacting the Title IX Coordinator via mail, email ([email protected]), phone (508-286-3261), or in person at the Title IX Office. Reports may also be made directly to the Deputy Title IX Coordinator, as defined above and including contact information above. Individuals Individuals may submit the Sexual and Gender-Based Misconduct Form anonymously.[7]

(2) Reporting Obligations. Employee obligations to report to the Title IX Coordinator/Deputy Title IX Coordinator allegations of Prohibited Conduct vary based on the role of the employee. The following outlines employee reporting obligations.

a. Confidential Resources are not required to report allegations of Prohibited Conduct that come to their attention, except in limited circumstances where a reporting obligation exists under the law. When acting in their Confidential Resource role, Confidential Resources will inform individuals of those limited circumstances.

b. Designated Officials, as defined above, as well as the College President, the Vice President for Finance and Administration, the Associate Vice President of Legal Affairs, the Director of Counseling and Health Services,[8] Campus Safety staff, SAIL and Residential Life staff, including area coordinators and residential advisors, Athletics Department staff, and Academic Advising staff, including peer advisors [9] must, within forty-eight (48) hours, report to the Title IX Coordinator/Deputy Title IX Coordinator allegations of Prohibited Conduct that come to their attention.

c. All other staff and faculty (not listed in paragraph (a) and (b) above) may report to the Title IX Coordinator/Deputy Title IX Coordinator allegations of Prohibited Conduct that come to their attention. However, where an individual alleges that a faculty member, staff member, vendor, or volunteer has engaged in Prohibited Conduct, all staff (other than Confidential Resources) must, within forty-eight (48) hours, report the allegations to the Title IX Coordinator/Deputy Title IX Coordinator.[10]

(3) Response to reports of Prohibited Conduct. The College will respond to all reports of Prohibited Conduct in a prompt, equitable, and effective manner. After receiving notice of conduct that could constitute Prohibited Conduct, the Title IX Coordinator/Deputy Title IX Coordinator will take a number of initial steps. These initial steps are not an investigation. Rather, these initial steps will enable the College to assess the need to take any immediate action to address the safety and health needs of the parties and the College community and to determine the next steps for investigating the reported conduct and the need for any Supportive Measures. These initial steps include, but are not limited to, the following:

Supportive Measures. The Title IX Coordinator/Deputy Title IX Coordinator will promptly contact the Complainant to discuss the availability of Supportive Measures, consider the Complainant’s wishes with respect to Supportive Measures, and inform the Complainant of the availability of Supportive Measures with or without the filing of a Formal Complaint. As defined in Section III above, the College will provide Supportive Measures but will remain cognizant of the burden a specific Supportive Measure may have on the other party. Factors to be considered in determining reasonable supportive measure may include: the specific need expressed by the party; the severity and/or pervasiveness of the allegations; any continuing effects on the party; whether the parties share the same job location; and whether other judicial measures have been taken to protect a party or the parties. Parties may at any time request that the Title IX Coordinator/Deputy Title IX Coordinator review Supportive Measures.
Disclosures Regarding Law Enforcement. The Title IX Coordinator/Deputy Title IX Coordinator will notify the Complainant, in appropriate circumstances, about the right to report (or decline to report) the matter to Campus Safety and/or to law enforcement, to receive assistance from campus authorities in contacting law enforcement, and to request a court-issued protective order.[11] A report to law enforcement will not change the College’s duty to respond to the matter but it may briefly delay the timing of any investigation if a law enforcement agency requests that the College delay its process for a reasonable amount of time to allow it to gather evidence of criminal conduct. If the College learns that a form of sexual misconduct occurred with regard to an individual under the age of eighteen (18), the College may be required to report the information to the Massachusetts Department of Children and Families, as well as law enforcement.
Policy on Retaliation. The Title IX Coordinator/Deputy Title IX Coordinator will inform the Complainant about the Policy’s prohibition of Retaliation and that the College will respond to any reports of retaliation promptly.
Threat Assessment. The Title IX Coordinator, in consultation with other College administrators, will assess the reported conduct to determine whether the circumstances pose a threat to the health or safety of the College community and warrant the issuance of a Timely Warning, an Order of No Contact for any persons, or any other interim protections including the facilitation of an emergency removal or administrative leave in accordance with Section VII(6) of the Policy.

(4) Filing a Formal Complaint. The Title IX Coordinator/Deputy Title IX Coordinator will explain to the Complainant the process for filing a Formal Complaint. If, at this time, the Complainant chooses not to file a Formal Complaint, the Title IX Coordinator, in accordance with Section VII(5) of the Policy, will weigh that request and the reasons for it against the College’s obligation to address any risk of harm to the Complainant or other individuals in the community and the nature of the incident or conduct at issue. In certain circumstances, the Title IX Coordinator may determine that it would be unreasonable in light of the known circumstances not to investigate the allegations of Prohibited Conduct. In those circumstances, the Title IX Coordinator will file a Formal Complaint. Where the Title IX Coordinator signs a Formal Complaint, the Title IX Coordinator is not a Complainant or otherwise a party to the matter.

(5) Dismissal and Consolidation of Formal Complaints. As outlined below, the College may be required or permitted to dismiss Formal Complaints upon their filing or during the course of the grievance process. Additionally, the College maintains discretion to consolidate Formal Complaints.

If the conduct alleged in a Formal Complaint: would not constitute Prohibited Conduct, even if proved; did not occur in the College’s education program or activity; or did not occur against a person in the United States, then the College, in accordance with Title IX, must dismiss the Formal Complaint with regard to that conduct under the Policy. The Title IX Coordinator will, if appropriate, refer the reported conduct to the appropriate administrator for handling consistent with any other pertinent College policy. If new information is subsequently provided, the decision whether or not to proceed under the Policy will be reevaluated.
The College may dismiss a Formal Complaint or any allegations therein, if at any time during the investigation or hearing: a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein; the Respondent is no longer employed by the College; or specific circumstances prevent the College from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.
Upon a dismissal required or permitted pursuant this section, the College will promptly send written notice of the dismissal and reason(s) therefore simultaneously to the parties.
Consolidation of Formal Complaints. The College may consolidate Formal Complaints as to allegations of Prohibited Conduct against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the allegations of Prohibited Conduct arise out of the same facts or circumstances.

VI. GRIEVANCE PROCESS

This section outlines the College’s grievance process for investigating and adjudicating a Formal Complaint.

(1) Investigation. If a Formal Complaint is filed, the formal investigation phase will commence and include the steps outlined below.

Notice of Investigation. The Title IX Coordinator, in consultation with the Deputy Title IX Coordinator for Staff, will provide the parties with a copy of the Formal Complaint, the Policy, and written notice of the investigation which will include:

1. notice of the allegations potentially constituting Prohibited Conduct and sufficient details known at the time, including: (1) the identities of the parties involved in the incident, if known; (2) the conduct allegedly constituting Prohibited Conduct as defined in the Policy; and (3) the date and location of the alleged incident, if known;
2. a statement that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
3. a statement informing the parties that they may have an Advisor;
4. notice of Section VII(2) of the Policy which prohibits knowingly making false statements or knowingly submitting false information during the grievance process;
5. the availability of Supportive Measures; and
6. a reminder of the Policy’s prohibition of Retaliation.

Designation of Investigator(s). When appointing the investigator(s), the College will designate at least one internal and/or external investigator to conduct a prompt, fair, equitable and impartial investigation of the reported conduct and prepare an investigative report.[12] At the College’s discretion, more than one investigator may be assigned. The Title IX Coordinator will provide the parties with the name of the investigator(s). As soon as possible, but no later than three (3) days after receiving notice of the identity of the investigator(s), the parties can inform the Title IX Coordinator (in writing) of any conflicts or potential conflicts of interest with regard to the selected investigator(s). The Title IX Coordinator will consider the nature of the conflict and determine if a different individual should be assigned as investigator(s). The Title IX Coordinator’s decision regarding any conflicts is final.

Nature of the Investigation. Investigative meetings may be conducted in person or virtually, as required by federal mandate. The following are the roles and processes to be followed during the investigation.

1. 1. The investigation provides an opportunity for fact-finding and will include separate interviews with the Complainant, Respondent, and any relevant witnesses.[13]
  2. The investigator(s) will provide the parties with advance notice of meetings at which their presence is required. Parties will be afforded an equal opportunity to present witnesses and other inculpatory and exculpatory evidence.
  3. Each party may have a single Advisor present during any meeting, interview, or hearing, held pursuant to the Policy. Except to the extent expressly permitted in the hearing phase outlined below, the Advisor may advise their respective party privately, but cannot act as a speaking advocate at a meeting. College staff and internal or external investigators may delay or terminate meetings, remove or dismiss Advisors, and/or proceed with the investigation if an Advisor is disruptive or otherwise refuses to comply with the requirements of this policy. An Advisor is subject to the same privacy expectations applicable to others in attendance and must also abide by any applicable state and federal laws. Accommodations, including scheduling of interviews or reviews, generally will not be made for any advisors if they unduly delay the process. The Advisor is not permitted to attend a meeting or proceeding without the party they are advising being present without the prior approval of the Title IX Coordinator, at their discretion. The College reserves the right to take appropriate action regarding any Advisor who disrupts the process, or who does not abide by the restrictions on their participation.
  4. At no point will the investigation require both parties to be in the same room. At no point will either party be permitted to question or cross-examine the other party or any witness directly during the investigation, determination, or appeal process. (The parties may ask questions of the other party and/or witnesses at the hearing, described in Section VI(2)(c)(iii) below, but all such questions must be asked through the party’s Advisor.)

Content of Investigative Report. The investigator(s) will create an investigative report that fairly summarizes relevant evidence, a separate section where the investigator(s) point out relevant consistencies or inconsistencies (if any) between all sources of information, and a separate section describing the investigator(s)’ assessment of the credibility of parties and witnesses, and attach any relevant evidence gathered, whether inculpatory (i.e., proving the responsibility of a party) or exculpatory (i.e., proving that a party did not commit the conduct alleged) (The investigative report will not include a determination as to whether a party has violated the Policy or what sanctions may be appropriate. These determinations will be made as described in Section VI(2)(d) below).
Review of the Investigative Report by the Parties. Both parties will be informed of their opportunity to review the entire investigative report and that they may submit written comments and/or questions about the content of the investigative report to the investigator(s) within ten (10) calendar days of the date they are notified that the investigative report is available for review. The time to submit written comments can be extended for a brief period if the Title IX Coordinator concludes, in their sole discretion, that the additional time is warranted. In circumstances where an extension is provided to one party, it will be provided to the other party, as well.

1. The comments submitted by the parties may not exceed ten (10) double spaced pages unless a higher page limit is otherwise determined to be necessary and appropriate in the sole discretion of the Title IX Coordinator. After reviewing the submissions, if any, from the parties, the investigator(s) may determine that either additional investigation is required or no further investigation is needed. The investigator has the sole discretion to determine if any information or questions submitted are irrelevant and therefore not to be considered and will be redacted. If further investigation is conducted, the investigator(s) will include any additional relevant information in the investigative report.
2. If, at any point in this review process or the prior investigation, it becomes apparent that a witness will not take part and subject themselves to examination in the hearing described in Section VI(2)(c)(iii) below, the investigator may revise the investigative report to remove information provided by the witness so as not to impact the hearing. If this decision is made prior to the Parties’ review, it will be noted in a cover memo to the investigative report. If the decision is made following the Parties’ review, it will be communicated to the Parties and they will be informed in writing of any information that will be removed prior to the hearing
3. The investigative report will then be finalized. Any submissions made by either party pursuant to this section, as well as any other documentation deemed relevant by the investigator(s), will be attached to the investigative report.

(2) Live Hearing. At the conclusion of the investigation phase, the hearing process will commence and include the steps outlined below.

Notice of Hearing. The Procedural Coordinator will notify the Complainant and the Respondent in writing of the time and date of the hearing at least ten (10) business days prior to the hearing date.
Designation of a Decision-maker(s). The College will designate at least one internal and/or external decision-maker to conduct a prompt, fair, equitable and impartial hearing.[14] The Procedural Coordinator will provide the parties with the name of the decision-maker(s). As soon as possible, but no later than three (3) days after receiving notice of the identity of the decision-maker(s), the parties can inform the Procedural Coordinator (in writing) of any conflicts or potential conflicts of interest with regard to the selected decision-maker(s). The Procedural Coordinator will consider the nature of the conflict and determine if a different individual should be assigned as decision-maker(s). The Procedural Coordinator’s decision regarding any conflicts is final.
Nature of the Hearing. Hearings may be conducted in person or virtually, as required by federal mandate. The following are the roles and processes to be followed during the hearing.

1. Decision-maker(s) will maintain broad authority to determine the process, timing and conduct of the hearing. For example, the decision-maker(s) will determine the order of presentation, timing and overall duration of the hearing, what information and evidence will be heard, what information and questions are relevant to the determination of the matter, and what cross-examination questions will or will not be permitted.
2. Each party may have an Advisor present at the hearing who will be subject to the same expectations and limitations pertaining to the investigation phase as outlined under Section VI(1)(c)(iii), however Advisors may also be present during the hearing for the limited purpose of conducting cross-examination on behalf of the party. If a party does not have an advisor of their choice present at a hearing, the College will provide one, without fee or charge to the party. No later than ten (10) calendar days before the hearing, parties should inform the Title IX Coordinator of the identity of any Advisor who will accompany them to the hearing, so that the College will know whether or not it needs to arrange for the presence of a College-provided Advisor.
3. At a time and manner deemed appropriate by the decision-maker(s), the Advisor for each party will be permitted to ask the other party and any witnesses all relevant cross-examination questions and follow-up questions, including those challenging credibility. Except for that limited role, Advisors may not participate actively in the hearing and may not speak or otherwise communicate on the part of the party that the Advisor is advising. However, the Advisor may consult privately in a non-disruptive manner with their advisee during and/or at a recess in the hearing. Scheduling accommodations generally will not be made for Advisors if they delay the process. The College reserves the right to take appropriate action regarding any Advisor who disrupts the process, or who does not abide by the restrictions on their participation as determined in the sole discretion of the decision-maker(s), which may include exclusion of the Advisor from the hearing and the appointment of an alternate College-provided Advisor.
4. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
5. Information protected under a legally recognized privilege (g., privileged communications between a party and their physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in a treatment capacity, or privileged communications between a party and their attorney), are not permitted unless the person holding the privilege has waived the privilege.
6. If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) will not rely on any statement of that party or witness in reaching a determination regarding responsibility, unless there is a change to current federal guidance and/or federal case law in Massachusetts. The decision-maker(s) will not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
7. At the request of either party, the College will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions.
8. The College will create an audio or audiovisual recording, or transcript, of the hearing and make it available to the parties for inspection and review.

Determination Regarding Responsibility. The decision-maker(s) will issue a written determination regarding responsibility using the preponderance of the evidence standard. The College will provide the written determination simultaneously to the parties not later than seven (7) business days after a determination is made.[15] The written determination will include:

1. identification of the allegations potentially constituting Prohibited Conduct;
2. a description of the procedural steps taken from the College of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
3. findings of fact supporting the determination;
4. conclusions regarding the application of the Policy to the facts;
5. a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the College imposes on the Respondent, and whether remedies designed to restore or preserve equal access to the College’s education program or activity will be provided by the College to the Complainant (disciplinary sanctions and remedies include termination, suspension, probation with or without conditions, reprimand, warning, restitution, education, counseling, Orders of No Contact, restriction from programs or activities, and loss of leadership opportunities or positions in activities); and
6. the College’s procedures and permissible bases for the Complainant and Respondent to appeal.

(3) Appeals. Either party may appeal a determination regarding responsibility or the College’s dismissal of a Formal Complaint or any allegations therein.

Filing an Appeal. Within ten (10) days of receiving written notice of the decision-maker’s determination on responsibility and sanctions (or dismissal of a Formal Complaint or any allegations therein), either the Complainant or the Respondent may appeal the decision by submitting to the Procedural Coordinator a letter stating why the party requesting the appeal believes the determination of responsibility and/or the sanctions were inappropriate.

Bases for Appeals. Appeals must be based on one or more of the following:

1. procedural irregularity that affected the outcome of the matter;
2. new evidence that was not reasonably available at the time the determination regarding responsibility or sanction was made, that could affect the outcome of the matter; and
3. the Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.

Notice of Appeal and Opportunity to Respond. The College will notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties. The Complainant and Respondent will be provided with a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome

Appellate Officer. The Appellate Officer will decide the merits of any appeal and in so doing, may consult with the Title IX Coordinator, the investigator(s), the decision-maker(s), and any other individual that the Appellate Officer deems appropriate.

Appeal Determinations. 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 decision-maker’s determination. The Appellate Officer may affirm all or part of the decision (which includes the sanction, as well as the determination of responsibility) or may refer the matter to the investigator(s) or decision-maker(s) for further consideration. The Appellate Officer will provide specific instructions with any referral. In the event of a referral, the Appellate Officer may mandate such further proceedings as the Appellate Officer deems appropriate under the circumstances, consistent with the Policy. When reaching an appeal determination, the Appellate Officer will issue a written decision describing the result of the appeal and the rationale for the result and provide the written decision simultaneously to both parties.

(4) Informal Resolution. At any time prior to reaching a determination regarding responsibility, the College may determine appropriate and facilitate an informal resolution process such as mediation, that does not involve a full investigation and adjudication, provided that the College:

1. provides to the parties a written notice disclosing the allegations, the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a Formal Complaint arising from the same allegations, [16] and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;
2. obtains the parties’ voluntary, written consent to the informal resolution process; and
3. does not offer or facilitate an informal resolution process to resolve allegations that an employee engaged in Prohibited Conduct with a student.

VII. ADDITIONAL MATTERS

(1) Request for Delay of Proceedings. If the Complainant, the Respondent, or law enforcement agencies request that the College conduct proceeding be delayed because the conduct in question is also being addressed in a civil or criminal court, the College will review the request, but it retains the right to conduct the processes described in the Policy before, after, or during the same time period as the civil or criminal case, and to implement appropriate action (including but not limited to interim Orders of No Contact, removal from campus, 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.

(2) Duty of Honesty and Cooperation. All parties and witnesses are obligated to be completely honest during the course of the entire process set forth in the Policy. Any person who knowingly makes a false statement or knowingly submits false information – either explicitly or by omission – in connection with any part of the grievance process may be subject to separate College disciplinary action. All parties and witnesses are obligated to cooperate with the Title IX Director and any persons charged with implementing the Policy. Any person who knowingly interferes with the actions taken to implement the reporting, investigation, or resolution of matters under the Policy may be subject to separate College disciplinary action.

(3) Patterns of Conduct. Where there is evidence of pattern of conduct similar in nature by the Respondent, either prior to or subsequent to the conduct in question, regardless of whether there has been a finding of responsibility, this information may be deemed relevant and probative to the investigators’ report and/or the decision-maker’s determination of responsibility or sanction. In those instances, the Title IX Coordinator and the Procedural Coordinator will determine whether the previous incident was substantially similar to the conduct cited in the report and/or indicates a pattern of behavior and substantial conformity with that pattern by the Respondent. The Title IX Coordinator and the Procedural Coordinator may choose to provide this information to the investigator(s), with appropriate notice to the parties.

(4) Amnesty for Students Reporting Misconduct by Staff. The College encourages reporting under the Policy and seeks to remove barriers to reporting. The College generally will not hold a student who reports conduct or is a witness during an investigation under the Policy accountable for disciplinary violations of the College’s Community Standards related to the incident. However, a person who reports conduct under the Policy may be held accountable for his or her own misconduct if, in the College’s discretion, it is determined that the behavior placed the health and safety of any person at risk, or if it created a danger to the College community. The College retains the right to require students to attend counseling or drug/alcohol related courses, as applicable, even in circumstances in which disciplinary conduct will not be pursued under the Policy.

(5) Respect for Privacy. The College values the privacy of individuals involved in the reporting, investigation, and/or resolution of matters subject to the Policy and will not disclose the identity of Complainants and Respondents except as necessary to carry out the grievance process, its obligations under Title IX, and as otherwise permitted under state or federal law. There are situations in which it may be necessary for an institution to override a request for privacy in order to meet its Title IX obligation. In the event circumstances result in the College overriding a request for privacy or confidentiality to meet its Title IX obligation, the College will do so with the utmost sensitivity and respect for the circumstances and the individuals involved.

The factors considered in determining whether it can grant a request for privacy include circumstances that suggest there is an increased risk of the alleged perpetrator committing additional acts of sexual violence or other violence (e.g., whether there have been other sexual violence complaints about the same alleged perpetrator, whether the alleged perpetrator has a history of arrests or records from a prior school indicating a history of violence, whether the alleged perpetrator threatened further sexual violence or other violence against the Complainant or others, and whether the sexual violence was committed by multiple perpetrators), circumstances that suggest there is an increased risk of future acts of sexual violence under similar circumstances (e.g., whether the Complainant’s report reveals a pattern of perpetration, whether the sexual violence was perpetrated with a weapon, the age of the Complainant subjected to the sexual violence, and whether the school possesses other means to obtain relevant evidence (e.g., security cameras or personnel, physical evidence).

(6) Emergency Removal and Administrative Leave. The College may remove a Respondent from the College’s education program or activity on an emergency basis, provided that the College undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Prohibited Conduct justifies removal, and provides the Respondent with notice and an opportunity to challenge the decision immediately following the removal. Additionally, the College also maintains discretion to place Respondent on an Administrative Leave during the pendency of the Grievance Process.

(7) Special Situations. In limited circumstances, when the safety of the College community is at risk, if the material facts are undisputed, if there are extenuating circumstances involving either of the parties, or if the Title IX Director, in consultation with appropriate administrators, determines it is in the best interest of the College and/or the community, the College retains the right to determine, in its sole discretion, if it will address a report of conduct that falls under the Policy administratively and outside of the process described in the Policy. Whenever the College determines that it will exercise this provision, its actions will be in accord with Title IX and it will stay true to the processes described in the Policy to the extent possible. The College will also clearly explain to the parties any alternate processes it will take in the given situation.

[1] For more specific information about preserving evidence and contact information for seeking medical assistance please visit the website at Sexaul Assault Emergency Information.

[2] If an individual is not participating in or attempting to participate in the College’s education programs or activities and makes an allegation against a Respondent who is a current employee at the College, the Title IX Coordinator may exercise discretion in signing a Formal Complaint in accordance with Section V(4).

[3] The relevant standard that will be applied is whether the Respondent knew, or a sober reasonable person in the same position should have known, that the other party was incapacitated and therefore could not consent to the sexual activity.

[4] Reports regarding Other Prohibited Forms of Sex Discrimination will generally be addressed under the College’s Unlawful Discrimination and Harassment Policy in the Staff Handbook located here: https://wheatoncollege.edu/about-wheaton-college/offices-services/human-resources/employee-benefits-and-policies/. For more information or to report such discrimination, please contact Omaira Roy, Deputy Title IX Coordinator for Staff, at 508-286-8206, [email protected], or in person at her office, Hebe 105.

[5] Retaliation allegations may be consolidated with other Formal Complaints of Prohibited Conduct if the facts and circumstances significantly overlap. If the facts and circumstances do not significantly overlap, then the College retains discretion to adjudicate the allegation under a different but appropriate policy. For example, if a Respondent retaliates against a Complainant with regard to the filing of a complaint, that behavior could be consolidated with the other Prohibited Conduct alleged, provided appropriate notice is afforded. On the other hand, if the retaliatory conduct is committed by a person other than Respondent who is not otherwise subject to a grievance under the Policy, that behavior could be adjudicated under another conduct policy which prohibits such behavior.

[6] https://portal.wheatonma.edu/web/inside-wheaton/campus-life/community-reporting-options#sexu

[7] It is generally helpful to the College for individuals to include their identity when reporting Sexual and Gender-Based Misconduct.Report a violation of the College’s Sexual and Gender-based Misconduct Policy

[8] The Director of Counseling and Health Services must report allegations of Prohibited Conduct that come to their attention to the extent permitted under any state confidentiality law requirements.

[9] For purposes of this reporting requirement, peer advisors are required to report only disclosures of alleged Prohibited Conduct made to them by their advisees.

[10] Failure to comply with reporting obligations may subject staff to discipline including termination.

[11] Any person seeking to notify the College of a court-issued protective order should contact Campus Safety at 508-286-3333.

[12] All persons designated as investigators will receive no less than one annual training on issues relating to sexual misconduct, investigatory and hearing procedures.

[13] Investigators will ask questions and consider evidence in a manner consistent with Section VI(2)(c)(iv).

[14] All persons designated as decision-makers will receive no less than one annual training on issues relating to sexual misconduct, investigatory and hearing procedures.

[15] The determination regarding responsibility becomes final either on the date that the College provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

[16] Provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the Formal Complaint.

Last Update: August 20, 2022

On this page