Wheaton College Norton, Massachusetts
Wheaton College
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Sexual Misconduct Policy

The Wheaton College Sexual and Gender-based Misconduct Policy is undergoing a revision at this time. For a pdf of the current policy, please click on the following link: Wheaton College Sexual and Gender-based 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 and Gender-Based Misconduct Policy has been developed to reaffirm these values, to address safety, and to provide recourse for individuals whose rights have been violated. Sexual and gender-based misconduct will not be tolerated in the Wheaton community. Sex discrimination is prohibited under Title IX, the Violence Against Women Act, and the Campus SaVE Act 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. The College prohibits sexual misconduct in all its forms and seeks to foster a safe, harassment-free, and respectful campus environment.

  1. The College’s efforts to achieve Point 1 encompasses a range of actions, from disciplinary proceedings, to training, to interim measures, all of which the College does in accord with its obligation under Title IX, VAWA, the Clery Act, and other relevant statutes.
  2.  The College will achieve these efforts through the processes set forth below.

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 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. The Sexual and Gender-based Misconduct Policy covers all Wheaton College programs and activities, and the college will take steps to address all Title IX complaints regardless of where the conduct occurred, to determine whether the conduct occurred in the context of its education program or had continuing effects on campus or in an off-campus program or activity.

Sexual and Gender-based Misconduct: Relevant Definitions

Effective consent

Wheaton College defines sexual and gender-based 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 encompasses:

  • 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.
  • Each party must fully understand what his or her partner consents to and does not consent to in regard to physical and 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

Sexual and gender-based 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 that may include the following: expulsion, suspension, probation, reprimand, warning, restitution, education/counseling, no-contact order, restriction from extracurricular programs or activities, loss of leadership opportunity or positions in activities, housing restriction/relocation, and/or restriction from College employment, among others.

Non-Consensual 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 individual or any other bodily contact in a sexual manner.  It also includes ejaculating semen onto another individual without effective consent.  Any disrobing of another individual, or exposing oneself to another individual 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.  It is also a violation of this Policy if one person induces incapacitation through the provision of alcohol or drugs to another individual, with or without that individual’s knowledge, for the purpose of causing impairment or intoxication or taking advantage of that individual’s impairment or intoxication, and regardless of whether sexual interactions occur.

Sexual Harassment

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; Such conduct is sufficiently severe, pervasive, and objectively offensive as to have the effect of creating an intimidating, hostile or offensive educational environment or interferes with the College’s educational mission. Examples of behavior that might be considered sexual harassment include, but are not limited to:

  • Unwanted sexual innuendo, propositions, sexual attention or suggestive comments and gestures; inappropriate humor about sex or gender-specific traits; sexual slurs or derogatory language directed at another person’s sexuality, gender, gender identity, sexual orientation or gender expression; insults and threats based on sex, gender, gender identity, sexual orientation or gender expression; and other oral, written or electronic communications of a sexual nature that an individual communicates is unwanted and unwelcome.
  • Written graffiti or the display or distribution of sexually explicit drawings, pictures, or written materials; sexually charged name-calling; or the circulation, display, or creation of e-mails, text messages, or web sites of a sexual nature.
  • Display or circulation of written materials or pictures degrading to an individual or gender group where such display is not directly related to academic freedom, or an educational/pedagogical, artistic, or work purpose.
  • Unwelcome physical contact or suggestive body language, such as touching, patting, pinching, hugging, kissing, or brushing against an individual’s body.
  • Physical coercion or pressure of an individual to engage in sexual activity or punishment for a refusal to respond or comply with sexual advances.
  • Use of a position of power or authority to:  (1) threaten or punish, either directly or by implication, for refusing to tolerate sexual harassment, for refusing to submit to sexual activity, or for reporting sexual harassment; or (2) promise rewards in return for sexual favors.
  • Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping.
Sexual Exploitation

Sexual exploitation occurs when an individual 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:

  • Media-Based Misconduct includes but is not limited to photographing or taping someone (via audio, video or otherwise) involved in sexual activity, or in a state of undress, without his or her knowledge or consent.  Even if a person consented to sexual activity, photographing or taping someone without his or her knowledge and agreement goes beyond the boundaries of that consent.  Dissemination of photographs or video/audio of someone involved in sexual activity, or in a state of undress, without his or her knowledge or consent constitutes a separate and additional act of sexual misconduct.
  • Voyeurism is a form of sexual exploitation in which one individual engages in secretive observation of another 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 individual.
Stalking

Stalking involves an intentional course of repeated conduct or behavior over a period of time, directed at a specific person, which causes the person to feel alarm, annoyance, emotional distress and/or fear.  Stalking may take many forms, including persistent calling, texting or posting on a social networking site as well as physical stalking.  Stalking may constitute a violation of the Sexual and Gender-Based Misconduct Policy when the content of the messages or the nature of the physical stalking is gender-based or of a sexual nature. Stalking may involve individuals who are known to one another or have an intimate or sexual relationship, or may involve individuals not known to one another.

Relationship Violence (including dating violence, domestic violence and intimate partner violence)

Relationship violence includes any act of violence or threatened act of violence against a person who is, or has been involved in, a sexual or dating relationship with that person.  It may involve one act or an ongoing pattern of behavior. Relationship violence can encompass a broad range of behavior including, but not limited to, threats, assault, property damage, violence or threat of violence to one’s self, one’s sexual or romantic partner or to the family members or friends of the sexual or romantic partner.  Relationship violence affects individuals of all genders, gender identities, gender expressions and sexual orientation and can occur across racial, cultural and socio-economic identities.

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 under this policy, 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. Retaliation includes, but is not limited to, acts or words that constitute intimidation, threats, or coercion intended to pressure any individual to participate, not participate, or provide false or misleading information during any proceeding under this policy.  Retaliation may constitute a violation of this policy even when the underlying report made did not result in a finding of responsibility.

Conduct Process for Addressing Sexual & Gender-based Misconduct

Introduction

All members of the Wheaton community are encouraged to report all incidents of sexual misconduct. Except for persons with Statutory Privilege (licensed psychologists, social workers, clergy and designated medical personnel) who are acting within that privileged role, and individuals the college may explicitly designate as confidential resource persons, all college employees are designated as responsible reporters and must disclose to those designated to receive incidents of sexual and gender-based misconduct that come to their attention.  Responsible employees initially may maintain a reporting individual’s privacy by filing anonymous reports of the alleged incident, but they may not guarantee confidentiality. The college will respond promptly to all such reports in an equitable and effective manner. Set forth below is the process for addressing alleged conduct that is covered by this policy.  In addition, depending upon the facts and circumstances known to it, the college, in its discretion and judgment, may determine that the allegations of conduct covered by this policy will be addressed outside of the procedures described in this policy, and as determined through the Office of the Dean of Students and in consultation with the Title IX Coordinator. Not all instances of alleged misconduct may be deemed to be equally serious offenses; consequently, the college will impose differing sanctions, ranging from admonition or written 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. This process describes how the College will investigate a report that a student has engaged in conduct that could constitute sexual misconduct, as defined in the Wheaton College Sexual Misconduct Policy, and determine what, if any, safety measures and/or disciplinary sanctions are appropriate.

Title IX Coordination

The Title IX Coordinator is charged with administering the College’s program to comply with Title IX.  This includes leading the College’s efforts to respond to reports of conduct that could trigger the Sexual Misconduct Policy.  The Title IX Coordinator is also available to meet with any individual to provide information about the implementation of the Sexual Misconduct Policy (including the availability of interim measures, the investigation, and the resolution/sanction process), as well as discussing other resources within the College community and beyond.  The Title IX Team, including the Title IX Coordinator, Deputy Title IX Coordinators, and/or other qualified members of the College community, will assist, as necessary, with these efforts. In addition to the Title IX Coordinator and Deputy Title IX Coordinators, there are also other resources within the College community that can be called upon regarding behavior that could be subject to the Sexual Misconduct Policy.  Many of these resources are “responsible employees” and these individuals may be obligated to disclose any information that is shared with them that may implicate the Sexual Misconduct Policy.  There are also some resources that are designated as “confidential resources” because of their specific role on campus. This includes staff at the Counseling Center as well as staff of New Hope Inc., which is contracted to provide confidential support to the Wheaton College community.  So long as these individuals are working within their protected role, they may keep information that is shared with them confidential.  Confidential resources are instructed to inform individuals of their right to file a Title IX complaint with the College and may assist in that process, but they are not obligated to report identifying information about behavior that may implicate the Sexual Misconduct Policy without the consent of the individual who supplied the information in question.[1] The Sexual and Gender-based Misconduct Policy - Resource Chart is designed to assist members of the College community in understanding the different reporting obligations held by different community members.   Any questions as to the reporting status of an individual should be directed to the Title IX Coordinator. [1]   Confidential resources will generally not share identifiable information without the reporting individual’s permission, unless:

  • Sharing is required to address an imminent risk of harm to the safety of the community at large, the individual sharing the information, or another member of the community; or
  • The individual alleged to have been harmed is a minor (under 18), in which case the Massachusetts Department of Children and Families must be notified.
Investigation and Adjudication Introduction

If, during the Initial Assessment, it is determined that the reported conduct is potentially a violation of the Sexual and Gender-based Misconduct Policy and an investigation is required, the formal Investigation and Adjudication process will commence. Below are definitions of roles within the Investigation and Adjudication process.

Participants in the Conduct Process

Complainant: The individual who experienced conduct that may have violated the Sexual and Gender-based Misconduct Policy. Respondent: The individual who is alleged to have violated the Sexual and Gender-based Misconduct Policy. When the Complainant and the Respondent are discussed collectively, they will be referred to as “the Parties” and may be referred to as a “Party.” There may be instances where another person, who has not experienced but is aware of the occurrence of prohibited conduct, may bring a complaint under the Sexual Misconduct Policy, and that person is referred to as the “Reporting Party.”  In those limited circumstances, the College will determine which of the protections provided to the Complainant under the Sexual and Gender-based Misconduct Policy are also applicable to the Reporting Party. 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: Procedural Coordinator: The Associate Dean of Students or Designee, who serves as the College Conduct Officer, will serve as Sexual and Gender-based Misconduct Procedural Coordinator for those individuals who have been selected and assigned to investigate and adjudicate a case of sexual misconduct throughout the investigatory and hearing process.  The Procedural Coordinator will inform all involved parties at regular intervals of the status of the complaint as the conduct process moves forward. College-Assigned Procedural Advisors and Advisors of Choice: Each Party, including any Reporting Party, may have a single advisor – either a Procedural Advisor or an advisor-of-choice – present during any College disciplinary proceeding, including any related meeting, interview, or hearing, held pursuant to the Sexual Misconduct Policy. Procedural Advisors are trained faculty members, staff and administrators assigned by the Office of the Dean of Students to provide information and procedural advice regarding the college’s Sexual and Gender-Based Misconduct Policy and the college conduct process for conduct cases involving alleged violation(s) of the Sexual and Gender-Based Misconduct Policy. An individual can elect not to utilize a college-assigned Procedural Advisor, and may select another person to serve as his/her advisor-of-choice, or to participate in the conduct process without utilizing an assigned Procedural Advisor or an advisor-of-choice. Individuals participating in the conduct process as an assigned Procedural Advisor or as an advisor-of-choice will be expected to comply with the Sexual and Gender-Based Misconduct Policy and Procedures in performing their respective roles.  Procedural Advisors and advisors-of-choice may not participate actively while present at any disciplinary proceeding and may not speak on the part of the individual he or she is advising, although they may ask to suspend any meetings, interviews, or hearings briefly and in a reasonable and non-disruptive manner to provide private consultation related to the disciplinary proceeding in progress.   Procedural Advisors or advisors-of-choice are subject to the same confidentiality expectations applicable to others in attendance. Accommodations, including scheduling of interviews or hearings, will not be made for any advisers if they unduly or unnecessarily delay the process. Support Services and Resources: The Parties should review the College’s available support services and resources, which can be found at http://wheatoncollege.edu/policies/files/2015/08/Sexual-and-Gender-based-Misconduct-Policy-Resource-Chart.pdf. At the request of either Party, the Title IX Coordinator and/or Procedural Coordinator can discuss further the support services and resources available. Case Investigators: The Procedural Coordinator/Designee will designate at least one internal investigator to conduct a prompt, fair, and impartial investigation of the reported conduct and prepare a report of investigative findings (the “Investigative Report”). At the College’s discretion, more than one investigator may be assigned. The College may also exercise discretion in assigning an external investigator to conduct the investigation with the College’s internal investigator. (In addition, the College may assign an external investigator, without assigning an internal investigator.) All investigators – internal or external – will be selected from a group of qualified and trained individuals employed by the College or engaged by the College for the purpose of conducting investigations under the Sexual and Gender-based Misconduct Policy. The Procedural Coordinator/Designee will provide the Parties with the name of the person(s) assigned to investigate the reported conduct (the “Investigator(s)”). As soon as possible, but no later than three (3) calendar days after receiving notice of the identity of the Investigator(s), the Parties should inform the Procedural Coordinator/Designee (in writing) of any conflicts or potential conflicts of interest with regard to the selected Investigator(s). The Procedural Coordinator/Designee will consider the nature of the conflict and determine if different individuals should be assigned as Investigator(s). The Procedural Coordinator/Designee’s decision regarding any conflicts is final. Sexual Misconduct Hearing Board Members: The Procedural Coordinator/Designee will select a three member Hearing Board from a previously established pool of College community members trained to decide sexual misconduct cases. This pool shall not include students. The Procedural Coordinator/Designee will provide the Parties with the name of the persons assigned as the Hearing Board member for their case. As soon as possible, but no later than three (3) calendar days after receiving notice of the identity of the assigned Hearing Board members, the Parties should inform the Procedural Coordinator/Designee (in writing) of any conflicts or potential conflicts of interest in regard to the selected members assigned to the Hearing Board. The Procedural Coordinator/Designee will consider the nature of the conflict and determine if different individuals should be assigned as members to the Hearing Board. The Procedural Coordinator/Designee decision regarding any conflicts is final.

Conflict of Interest

As soon as possible, but no later than three (3) calendar days after receiving notice of the identity of the Investigator(s), Hearing Board Members, Others, the Parties should inform the Procedural Coordinator/Designee (in writing) of any conflicts or potential conflicts of interest with regard to the selected individual(s). The Procedural Coordinator/Designee, in consultation with the Title IX Coordinator, will consider the nature of the conflict and determine if different individuals should be assigned as Investigator(s), Hearing Board Members, Others.  The Title IX Coordinator’s decision regarding any conflicts is final. Investigation and Adjudication Process

Notice of an Investigation

The Procedural Coordinator, after consultation with the Title IX Coordinator, will request a written statement from the reporting party (hereafter referred to as the Complainant). Based on this statement, the Procedural Coordinator will prepare a written notice to the Complainant and Respondent that will include a brief description of the allegations, the portions of the Sexual and Gender-based Misconduct Policy that are alleged to have been violated, and any interim measures in place about which either Party must be made aware. This written notice does not constitute a finding or a determination of responsibility.

Formal Notification to the 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 assigned Procedural Advisor or advisor-of-choice is 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 available academic and support services.

Interim Measures

The college may take interim measures it deems necessary in response to a complaint of sexual misconduct in order to protect the rights, interests and personal safety of the Complainant, the Respondent and/or the Wheaton community. Interim measures are defined as measures enacted during the course of the filing of a complaint and the student conduct process for addressing sexual misconduct by a student. These measures may include, but are not limited to, modification of living arrangements, interim removal from campus (or restriction from specific areas of 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. Interim measures often necessitate identifying people involved by name and notifying the Respondent, therefore any interim measures will not be enacted without the consent of the Complainant nor before a complaint is filed formally with the college

Timeframe

The College cannot promise the definitive timeframe of this process, but ordinarily will complete its investigation and disciplinary process, if any, within sixty (60) days of the delivery of the written notice of the investigation to the Parties.  This time period does not include the time for any appeal.  The U.S. Department of Education has made clear that the length of investigations may vary with the complexity and unique factors in each case.  Examples of such factors include, without limitation, circumstances in which critical witnesses are unavailable or if law enforcement requests the College temporarily halt its investigation for a brief period of time.  Accordingly, all timeframes set forth in this Policy may be altered by the Procedural Coordinator and/or Title IX Coordinator for good reason.  The College’s overarching goal is that all sexual misconduct complaints be investigated in a prompt, fair, and impartial manner.

Nature of the Investigation

The investigation will include separate interviews with the Complainant, the Respondent, and any witnesses whom the Investigator(s) believe will provide necessary and relevant information. The investigation may include the review of documentation or other items relevant to the reported conduct. The Investigator(s) will provide the Parties with written notice of meetings at which their presence is required.

The Parties' Identification of Potential Witnesses and Documentation

The Parties have the opportunity (and are expected) to provide the Investigator(s) with the identification of potential witnesses who have specific information about the reported conduct and with whom they would like the Investigator(s) to speak. The Parties also have the opportunity (and are expected) to provide the Investigator(s) any documentation or other items they would like to be considered. All information described in this section must be presented to the Investigator(s) in writing and include a brief description as to how the persons, documents, and/or items are relevant to the reported conduct. This information must be provided to the Investigator(s) during the Investigation Phase and without delay upon becoming aware of it. The Investigator(s) will exercise discretion in their determination of what information to consider and which potential witnesses identified by the Parties can provide relevant information to the investigation.

Investigative Prohibitions

Neither Party will be permitted to question or cross-examine the other Party during the investigation or disciplinary proceedings. Moreover, the Investigator(s) generally will not consider information related to either Party’s sexual history outside of the conduct in question.

Content of the Investigative Report

At the conclusion of the Investigation Phase, the Investigator(s) will prepare an Investigative Report, which should include a summary of the factual information presented during the Investigation Phase, a separate section where the Investigator(s) point out relevant consistencies or inconsistencies (if any) between different sources of information, and a separate section describing the Investigator(s)’ perception of the demeanor of the individuals interviewed. The Investigative Report will not include a determination by the Investigator(s) as to whether a Party has violated the Sexual Misconduct Policy, or what sanctions may be appropriate.

Granting/Denying a Formal Conduct Hearing

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, the Procedural Coordinator/Designee and the Title IX 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 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.  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. All members of the Board, the Case Investigators, Complainant, Respondent, assigned Procedural Advisors or advisors-of-choice, witnesses, and all other participants in the conduct process are bound by confidentiality.

Prehearing Process

The college reserves the right to extend any time periods identified in this section (or elsewhere in this policy). The Respondent and Complainant will be informed in writing of the date and time of the hearing.

Review of the Case File

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.

Recording the Content

The Parties are not permitted to make video, audio, or other electronic, photographic, or digital recordings of any meetings, parts of the case file, or proceedings held under the Sexual and Gender-based Misconduct Policy.  The Procedural Coordinator/Designee may make exceptions to this prohibition in limited circumstances if he or she concludes, in his or her sole discretion, that a recording is warranted, and upon written request of the Party seeking the recording that explains the need for the recording.

Request of Participation of Witnesses

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.

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. The College encourages reporting under the Sexual Misconduct 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 Sexual Misconduct Policy accountable for disciplinary violations of the College’s alcohol or drug prohibitions.  Under limited circumstances, however, a person who reports conduct under the Sexual Misconduct 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, if the behavior separately violated the Sexual Misconduct Policy, or if the behavior created a danger to the College community.  The College retains the right to require students to attend counseling or drug/alcohol related courses even in circumstances in which disciplinary conduct will not be pursued under this part.

Procedures of the Hearing Board

Upon the determination that a complaint of sexual misconduct has been referred to a Conduct Hearing, the appointed Procedural Coordinator or designee 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 will be provided access to the case file, as assembled by the Sexual Misconduct Hearing Board Chair and the Procedural Coordinator. Once an individual is notified of an alleged policy violation, it is the individual’s responsibility to check his/her email regularly for follow-up communications. The Complainant’s and the Respondent’s assigned Procedural Advisor, or advisor-of-choice may attend their respective meetings and interviews as well as the hearing. Neither the Complainant nor the Respondent may have any other advisor other than the assigned Procedural Advisor or their advisor-of-choice present during the hearing.  Assigned Procedural Advisors and advisors-of-choice may not speak during the course of the hearing and will be bound by the rules of confidentiality governing the hearing. The parties are expected to participate in the proceeding in a civil and respectful manner.  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.  At the request of a hearing participant, the Chair will take appropriate action to maintain a safe environment for all participants in the hearing, including providing for the presence of a Public Safety Officer at the site of the hearing. During the hearing, normally only the Case Investigators, the Complainant, the Respondent, Board members, witnesses, assigned Procedural Advisors/advisors-of-choice 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 and Respondent will not appear at the same time during the course of the hearing, and they may not directly question each other or witnesses. Both parties will be provided an opportunity to request that additional questions be directed by the Chair to other individuals appearing at the hearing. 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 participate in 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 may be audio recorded for use by the Board only.  The Board’s deliberations will not be 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 Request for Review 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.

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).

Sanctions

Students found responsible of violation(s) of the Sexual and Gender-based Misconduct Policy will face disciplinary sanctions that may include the following: expulsion, suspension, probation, reprimand, warning, restitution, education/counseling, no-contact order, restriction from extracurricular programs or activities, loss of leadership opportunity or positions in activities, housing restriction/relocation, and/or restriction from College employment, among others.

Special Considerations
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 that provide a safe space for participation while not depriving the parties of their rights in the process may be requested and will be considered. The Procedural Coordinator, in consultation with the Hearing Board Chair, determines the appropriateness of these requests and assumes responsibility for these arrangements.

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 that is subject to the sexual misconduct case is also being addressed in 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 Orders of No Contact, 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.

Duty of Honesty

All Parties and witnesses are obligated to be completely honest during the course of the entire process set forth in the Sexual Misconduct Policy.  Any person who knowingly makes a false statement – either explicitly or by omission – in connection with any part of the process may be subject to separate College disciplinary action.

Duty of Cooperation

All Parties and witnesses are obligated to cooperate with the Title IX Coordinator and any persons charged with implementing the Sexual Misconduct Policy.  Any person who knowingly interferes with the actions taken to implement the reporting, investigation, or resolution of matters under the Sexual Misconduct Policy may be subject to separate College disciplinary action.

Prohibition of Retaliation

The College will not tolerate retaliation in any form against any persons for their participation or involvement in the reporting, investigation, and/or resolution of matters subject to the Sexual Misconduct Policy.  The College will take appropriate steps to prevent and/or address retaliatory conduct immediately.  The College includes retaliation in its definition of prohibited conduct under this Policy, as well as the College’s general prohibition on retaliation, which can be found at http://wheatoncollege.edu/hr/files/2011/06/handbook2010-web.pdf.

Special Situations

The College retains the right to determine, in its sole discretion, if it will address a report of conduct that falls under the Sexual Misconduct Policy administratively and outside of the process described herein 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 Coordinator, in consultation with appropriate administrators, determines it is in the best interest of the College and/or the community to do so.

Request of Review of the Decision

Both the Complainant and the Respondent may file a written request for review of the decision of the Sexual Misconduct Hearing Board in compliance with the procedure for request for review.   If either the Complainant or the Respondent files a request for review, the other party will be notified of the request. The request for review 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 request for review is not to rehear the case; rather, it is to determine if there is sufficient information presented to allow a reconsideration of the Sexual Misconduct Hearing Board’s decision. Requests for review must be made, in writing, to the Office of the Dean of Students within five (5) business days of the delivery of the written notification of the decision of the Sexual Misconduct Hearing Board. Any action assessed or recommended by the Sexual Misconduct Hearing Board may be enforced, in whole or in part, pending the outcome of the request for review at the sole discretion of the Associate Dean of Students and Director of Student Conduct, including an interim removal or suspension. The Vice President for Student Affairs or designee (the “Review Administrator”) will review the request for review and decision of the Sexual Misconduct Hearing Board and render a decision on the request for review, usually within ten (10) business days. The Review Administrator may affirm all or part of the decision (which includes the sanction, as well as the determination of responsibility), may refer the matter to the Investigator(s) or Board for further consideration.  If the matter is referred back to the Investigator(s) or Board, the Review Administrator will provide specific instructions with the referral.  In the event of a referral, the Review Administrator may mandate such further proceedings as they deem appropriate under the circumstances, consistent with this Policy. The Procedural Coordinator/Designee will inform the Parties simultaneously and in writing of the outcome of the appeal. The decision of the Review Administrator will be provided in writing and is final.

Revised August 2015

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