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Sexual Misconduct Policy for Westminster College

 

 1. Introduction


The College prohibits the exclusion of any person, on the basis of sex, from participation in, to be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by the College.1 If not addressed by the College, sexual harassment and other forms of sexual misconduct as defined below constitute a form of discrimination on the basis of sex.2 The purpose of this policy is to set forth the prompt and effective steps which the College will take to end sexual misconduct, prevent its recurrence, and, as appropriate, remedy its effects.3 This policy applies to sexual misconduct involving the College’s students, faculty, staff, and visitors and which occur against a person in the United States.4 Any provision of any College policy or handbook which deals with sexual discrimination in any fashion is hereby superseded as of the Effective Date by this Sexual Misconduct Policy so that all forms of sexual misconduct involving the education programs of the College will be subjected to the remedial steps set forth in this policy.

Appendix “A” contains a list of names, physical addresses, email addresses, telephone numbers, and certain other information which may change from time to time. Appendix “A” may be updated from time to time by the Title IX Coordinators without College approval so as to maintain current information for use by the campus community.

Nothing contained in this Sexual Misconduct Policy shall be deemed to have created a contract between the College and any student, faculty member, or staff member. The College reserves the right to unilaterally change any provision of this policy without the consent of any other party.

1 34 CFR §106.31.
2 2001 Guidance, p. 2.
3 2001 Guidance, p. iii.
4 34 CFR §106.8(c).and (d); 34 CFR §106.31(b); 2001 Guidance, p. 13.
5 34 CFR §106.8(a)

 2. Notification Requirements


The College hereby notifies applicants for admission and employment, students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the College that the names of the employees designated as the Title IX Coordinators are set forth in Appendix “A.”5

The College hereby notifies such persons that (a) the College does not discriminate on the basis of sex in the education programs or activities that the College operates, (b) the College is required by Title IX not to discriminate in such a manner, and (c) the requirement of the College not to discriminate in the education programs or activities extends to employment and admission.6

Inquiries about the application of Title IX to the College may be referred to the employee(s) designated by the College as its Title IX Coordinator(s) or to the Assistant Secretary of the Office of Civil Rights at the United States Department of Education, or both.7

A notice of the College’s policy of nondiscrimination shall be widely disseminated on the College’s campus, and the College will prominently display a statement of this policy on its website and in each handbook or catalog that it makes available to applicants for admission and employment, students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the College.8 The notice of nondiscrimination shall also state the contact information for the Title IX Coordinator(s).9 The College shall use or distribute a publication stating that the College does not treat applicants, students, or employees differently on the basis of sex.10

The College has adopted and published grievance procedures that provide for the prompt and equitable resolution of student and employee complaints alleging any action that is prohibited by Title IX. Additionally, the College’s grievance process complies with Title IX §106.45 for formal complaints.11 The College hereby provides notice of the College's grievance procedures and processes to applicants for admission and employment, students and employees, and all unions of professional organizations holding collective bargaining or professional agreements, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the College will respond in such cases, all of which is set forth in Sections 5 through 9 below .12

6 34 CFR §106.8(b)(1)
7 34 CFR §106.8(b)(1)
8 34 CFR §106.8(b)(2)(i)
9 34 CFR §106.8(b)(2)(i)
10 34 CFR §106.8(b)(2)(ii)
11 34 CFR §106.8(c)
12 34 CFR §106.8(c)

 3. Definitions


As used in this policy, the phrases and words listed shall have the meanings set forth below:

Actual knowledge - Notice of sexual harassment or allegations of sexual harassment to the College’s Title IX Coordinator(s) or any official of the College who has authority to institute corrective measures on behalf of the College. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the College with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the College. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator(s) as described in the Notification section of this policy.13

Campus - Any building or property owned or controlled by the College within the same reasonably contiguous geographic area and used by the College in direct support of, or in a manner related to, the College's educational purposes, including residence halls. Any building or property that is within or reasonably contiguous to any building or property owned or controlled by the College within the same reasonably contiguous geographic area and used by the College in direct support of, or in a manner related to, College's educational purposes, that is owned by the College but controlled by another person, is frequently used by students, and supports College purposes such as a food or other retail vendor.14

Campus security authority - A campus police department or a campus security department of the College. Any individual or individuals who have responsibility for campus security but who do not constitute a campus police department or a campus security department, such as an individual who is responsible for monitoring entrance into College property. Any individual or organization specified in the College's statement of campus security policy as an individual or organization to which students and employees should report criminal offenses. An official of the College who has significant responsibility for student and campus activities, including, but not limited to, student housing, student discipline, and campus judicial proceedings.15

Complainant - An individual who is alleged to be the victim of conduct that could constitute sexual harassment.16

Consent - Verbal statements or non-verbal actions which a reasonable person would understand to mean a voluntary agreement to engage in sexual activity. Someone who is incapacitated cannot consent. Past consent does not imply future consent. Silence or an absence of resistance does not imply consent. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another. Consent can be withdrawn at any time. Coercion, force, or threat of either invalidates consent.17

Deliberately indifferent - A response to sexual harassment or other sexual misconduct that is clearly unreasonable in light of the known circumstances.18

Dating violence - Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the reporting party's statement and with consideration of the length of the relationship, the type of relationship, and 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. Any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.19

Domestic violence - A felony or misdemeanor crime of violence committed by: (a) a current or former spouse or intimate partner of the victim20, (b) a person with whom the victim shares a child in common, (c) a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner, (d) a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred, or (e) any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.21

Education program or activity of a college – Locations, events, or circumstances over which the College exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.22

Formal complaint - A document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the College investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the College with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator in Appendix “A”, and by any additional method designated by the College. As used in this paragraph, the phrase “document filed by a complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the College) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party under 34 CFR 106 or under 34 CFR 106.45, and must comply with the requirements of 34 CFR 106, including 34 CFR 106.45(b)(1)(iii).23

Hostile environment – An environment where the conduct of one or more individuals is sufficiently serious that it denies or limits a student’s, faculty member’s, or staff member’s ability to participate in or benefit from the College’s program based on sex. In determining whether a hostile environment exists, the College shall consider all relevant circumstances, including the following factors: (a) the degree to which the conduct affected the College’s educational programs, (b) the type, frequency and duration of the conduct, (c) the age and sex of the alleged harasser and the subject or subjects of the harassment, (d) the location of the incidents and the context in which they occurred, (e) other incidents at the College, and (f) incidents of gender-based, but nonsexual harassment.

Incapacitation – Any situation in which a person is incapable of giving consent due to the student’s age, state of consciousness, use of drugs or alcohol, or an intellectual or other disability.

Intimidation – The intentional act of coercing or frightening someone to engage or not engage in conduct of a sexual nature against the person’s will.

Non-consensual sexual contact - Any physical touching of a sexual nature which is not preceded by consent or which continues after a previous consent is withdrawn.

Non-consensual sexual intercourse - Any sexual intercourse which is not preceded by consent or which continues after previous consent is withdrawn.

Respondent - Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.24

Retaliation- The act of seeking revenge upon another person.25

Sexual assault26 - An offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s UCR program.27

Sexual harassment- Conduct on the basis of sex that satisfies one or more of the following:

  1. 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;
  2. 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; or
  3. “Sexual assault”, “dating violence”, “domestic violence”, or “stalking” as defined herein.28
  4. Sexual intercourse - Vaginal or anal penetration by a penis, object, tongue or finger and oral copulation.

Sexual intercourse - Vaginal or anal penetration by a penis, object, tongue or finger and oral copulation.

Sexual misconduct – Any act of sexual harassment, sexual violence, non-consensual sexual contact, non-consensual sexual intercourse, sexual exploitation, quid pro quo, intimidation, or any act that creates a hostile environment or any act of retaliation against a complainant or anyone involved in a grievance procedure under this policy.

Sexual violence - Physical sexual acts perpetrated against a person's will or with a person who suffers from incapacitation. It also means same-sex conduct that violates the College's prohibition on sexual violence.

Stalking29 - Engaging in a course of conduct directed at a specific person that would cause a reasonable person to (a) fear for the person's safety or the safety of others or (b) suffer substantial emotional distress.30 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, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person's property.31

Standard of evidence – The standard of evidence that shall be used is the preponderance of the evidence standard where the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.

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 sexual harassment. 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. The College must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the College to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.32

Title IX Coordinator – The person designated as such by the College’s President or the person temporarily designated by the Title IX Coordinator to serve in that capacity during the Title IX Coordinator’s incapacity or absence from the College’s campus.

Unwelcome conduct - Conduct is unwelcome if an individual did not request or invite it and regarded the conduct as undesirable or offensive. Acquiescence in the conduct or the failure to complain does not always mean that the conduct was welcome.33

13 34 CFR §106.30(a)
14 34 CFR § 668.46(a).
15 34 CFR § 668.46(a).
16 34 CFR §106.30(a)
17 34 CFR §106.30(a) The Assistant Secretary will not require Colleges to adopt a particular definition of consent with respect to sexual assault, as referenced in this section.
18 34 CFR §106.44(a).
19 34 CFR §668.46.
20 The use of the word “victim” in this policy stems from the use of that word in 34 CFR §668.46 and is not intended to infer the guilt or innocence of any party with respect to any crime or any violation of this policy.
21 34 CFR §668.46.
22 34 CFR §106.44(a)
23 34 CFR §106.30(a)
2434 CFR §106.30(a)
25 https://definitions.uslegal.com/r/retaliation/ (July 19, 2019).
26 34 CFR § 668.46(a).
27 34 CFR § 668.46(a).
28 34 CFR § 106.30(a)
29 34 CFR § 668.46(a).
30 34 CFR § 668.46(a).
31 34 CFR § 668.46(a).
3234 CFR §106.30(a)
33 2001 Revised Sexual Harassment Guidance, pp. 7-8.

 4. Title IX Coordinator


The College’s current lead Title IX Coordinator and any deputy Title IX Coordinator(s) are the individuals specified in Appendix “A”.34 The names and current contact information for these individuals, including the office address, electronic mail address, and telephone number can be found in Appendix “A”, and on the College’s website at: www.westminster.edu/campus/services/title-ix/index.cfm. 35 All of the College’s Title IX Coordinators shall work together to ensure consistent enforcement of its policies and Title IX.36 The lead and deputy Title IX Coordinator(s) shall coordinate the College’s efforts to comply with its responsibilities under this policy, guidance from the United States Department of Education, and federal statutes and regulations governing sexual misconduct.37 Further, when designating a Title IX coordinator, the College will make efforts to designate a coordinator whose other job responsibilities will not create a conflict of interest.38

The Title IX Coordinator will assist the College in complying with Title IX and promoting gender equity in education.39

The College will ensure that the Title IX Coordinator(s) are/is appropriately trained and possess comprehensive knowledge in all areas over which the Title IX Coordinator(s) has/have responsibility in order to effectively carry out those responsibilities, including College policies and procedures on sex discrimination and all complaints raising Title IX issues throughout the College.40

34 34 CFR §106.8(a)
35 34 CFR §106.8(a)
36 OCR Guidance on Title IX Coordinators (April 24, 2015), pp. 2-3
37 34 CFR §106.8(a)
38 OCR Guidance on Title IX Coordinators (April 24, 2015), p. 3
39 OCR Guidance on Title IX Coordinators (April 24, 2015), p. 4
40 OCR Guidance on Title IX Coordinators (April 24, 2015), p. 6

 5. College’s Response to Sexual Harassment


Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator(s), or by any other means that results in the Title IX Coordinator(s) receiving the person’s verbal or written report.41 In addition, reports may be submitted anonymously via the College’s website.42 Such report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator(s).43

  1. Response to Sexual Harassment in General

  2. When the College has actual knowledge of sexual harassment occurring in any of the College’s education programs or activities against a person in the United States, the College shall respond promptly in a manner that is not deliberately indifferent.44 The College shall treat complainants and respondents equitably by offering supportive measures to a complainant, and by following the College’s grievance policy before the imposition of any disciplinary sanctions or other actions that are not supportive measures against a respondent.45 Additionally, the 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, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint.46 The College will provide written notification of complainant’s47 options for, and available assistance in, changing academic, living, transportation, and working situations, if so requested by the complainant and if such accommodations are reasonably available, regardless of whether the complainant chooses to report the crime to campus police or local law enforcement.48 The College will respond in the manner described in this section with or without a formal complaint.49

  3. College’s Response to a Formal Complaint

  4. When a formal complaint has been filed, the College shall follow all procedures consistent with Title IX and the College’s grievance policy.50

    The College may remove a respondent from the College’s education program or activity on an emergency basis, after the College undertakes an individualized safety and risk analysis, determines that the respondent poses an immediate threat to the physical health or safety of any student or individual arising from the allegations of sexual harassment and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.51 The College may also place a non-student employee respondent on administrative leave during the pendency of a grievance process.52

  5. Confidentiality and Privilege

  6. The College will provide information, in writing, about how the College will protect the confidentiality of complainants53, including how publicly-available recordkeeping will be accomplished without the inclusion of identifying information about the complainant54, to the extent permissible by law.55 The College shall keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.56 The College shall maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the College to provide the supportive measures.57 The College is required to provide information to the College’s insurance providers for coverage purposes.

    The College does not require, allow, rely upon, or otherwise use questions or evidence that constitute or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.58

41 34 CFR §106.8(a)
42 SCHOOLS AND SCHOOL DISTRICTS, 2019 Pa. Legis. Serv. Act 2019-16 (H.B. 1615), Section 2003-J Online Report System (b).
43 34 CFR §106.8(a)
44 34 CFR §106.44(a)
45 34 CFR §106.44(a)
46 34 CFR §106.44(a)
47 Although 34 CFR §668.46 and 20 U.S.C. §1092 refer to “victim”, this policy utilizes the word “complainant” because “complainant” means an individual who is alleged to be the victim of conduct that could constitute sexual harassment under 34 CFR§106.30(a). See Section III for the definition of “complainant.”
48 34 CFR §668.46(b)(11)(v)
49 34 CFR §106.44(b)(1)
50 34 CFR §106.44(b)(1)
51 34 CFR § 106.44(c)
52 34 CFR §106.44(d)
53 See Note 46 above.
54 See Note 46 above.
55 34 CFR §668.46(b)(11)(A)
56 34 CFR §106.71(a)
57 34 CFR §106.30(a)
58 34 CFR 106.45(b)(1)(x)