Sexual Misconduct Policy

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Definition and Statement of Policy

I. Preamble

Sexual misconduct (defined below) is a violation of University policy and, depending upon the specific conduct involved, may violate state law. Such conduct is subject to the University Community Standards process and possibly criminal prosecution. The University will not tolerate any form of sexual misconduct, and will treat violations of University policy very seriously. As described in Section II below, DePauw defines sexual misconduct to include a broad spectrum of behaviors including: relationship violence; stalking; voyeurism; sexual battery; rape; sexual harassment or any other nonconsensual sexually-related conduct. The following guidelines outline University policy and procedure for resolving charges of sexual misconduct. Anyone with knowledge about such an incident is expected to promptly report the situation to the Office of Student Life or the DePauw Public Safety Office.

The purposes of this Policy are: 1) To provide a fair, educationally valid process to address alleged sexual misconduct, resulting in prompt decisions that hold students accountable for their actions; 2) To establish and protect the rights of members of the DePauw community; 3) To promote the development of individual and group integrity; and 4) To enforce the non-academic rules and regulations of the University.

To pursue criminal charges, students must proceed via the criminal justice system. The DePauw Public Safety Office will assist with criminal prosecution and involvement of local police if the student chooses such options. Students interested in filing criminal charges may also seek assistance directly from other law enforcement agencies. The filing of criminal charges does not preclude pursuing Community Standards charges.

Programming is offered throughout the school year to promote awareness of sexual misconduct issues. Please contact the Office of Student Life to learn more about awareness and prevention programs.

In response to requests from students and faculty to address sexual misconduct issues in a more confidential manner, the University has established the Sexual Misconduct Hearing Board (the “Board”) to resolve allegations of sexual misconduct and to impose sanctions where appropriate. While the parties involved will have certain procedural rights, the procedure described is not intended to constitute or approximate a legal proceeding. Participants in the process are always entitled to consult with an attorney, but are not entitled to have an attorney present during any phase of the procedure described. Participants are entitled to have an advisor present as provided in Section VIII.B.4.

II. Statement on Reporting, Confidentiality and Resources for Victims

A report of sexual misconduct involving a current DePauw student can be made to the Office of Student Life or the Public Safety Office at any time by any person (student or non-student), regardless of how long it has been since the incident occurred. Students making a report (whether the victim or a witness) will not be charged under the University's Community Standards process for a violation of the University's alcohol or drug policy, so this need not be a barrier to reporting. Reports may be made confidentially, and University officials will make every effort to maintain the confidentiality of the information received. Retaliation or intimidation against anyone involved in the reporting process or anyone who pursues criminal action is a violation of the Student Code of Conduct and will be treated as such. If it is determined that there is a sufficient risk to public or individual safety, the University may act without permission from a victim, but in all other cases, decisions and progress through the process will be at the request of the victim. The Sexual Assault Survivors’ Advocate, counselors from the Wellness Center and other Student Life staff members are available to explain the reporting process and help access appropriate resources. DePauw Public Safety Officers and the Sexual Assault Survivors’ Advocate are available to discuss safety plans and security issues with students. There are staff members in the Wellness Center who have been trained as Sexual Assault Nurse Examiners and are available to conduct evidence collection exams at any time; students may access this resource by contacting the DePauw switchboard 24/7. Students may also receive a sexual assault examination at the Putnam County Hospital.

III. Statement on the Rights of Victims

In accordance with the 1992 Campus Sexual Assault Victim’s Bill of Rights, and in the interest of providing the best possible services and support for students, DePauw will make every effort to ensure that all victims are afforded the following rights:

To be treated respectfully by University staff and officials
To have a support person of one’s own choosing present during any hearing (such person must be a DePauw University faculty member, staff member or student)
To not be discouraged from reporting by University staff or officials
To be notified of the outcome of any hearing or charges, regardless of whether or not one participates in the hearing process
To report to campus, local or state police, and to be supported by University officials in so doing
To be referred to campus and local mental health and counseling services
To receive assistance from University officials and staff with any necessary adjustments to living and/or academic situations if such changes are reasonable
To have irrelevant prior sexual history be made inadmissible at any University hearing
To not have reports of rape mediated by University officials
To make a victim impact statement during the course of the hearing, and to have the Board consider that statement when determining any sanction
To obtain a no-contact order against another student, and to have assistance in obtaining a restraining order from the State if so desired
To have complaints responded to promptly and sensitively, investigated appropriately and addressed competently
To be free from any form of retaliation

IV. Statement on the Rights of Accused Students

In the interest of providing the best possible services and support for students, and protecting the rights of all DePauw students, DePauw will make every effort to ensure that all students who are accused of sexual misconduct are afforded the following rights:

To be treated respectfully by University staff and officials
To be promptly notified of the nature and extent of any charges
To have a hearing of such charges before the Sexual Misconduct Hearing Board
To have adequate notice of and time to prepare for said hearing
To have a support person of one’s own choosing present during any hearing (such person must be a DePauw University faculty member, staff member or student)
To invoke the right to refuse to answer some or all questions
To be promptly notified of the outcome and any sanction resulting from the hearing
To be referred to campus and local mental health and counseling services
To receive assistance from University officials and staff with any necessary adjustments to living and/or academic situations if such changes are reasonable
To have irrelevant prior sexual history be made inadmissible at any University hearing
To not have reports of rape mediated by University officials
To obtain a no-contact order against another student, and to have assistance in obtaining a restraining order from the State if so desired
To have complaints responded to promptly and sensitively, investigated appropriately and addressed competently

V. Sexual Misconduct Defined

The University defines sexual misconduct broadly, to include any form of the following conduct:

Non-Consensual Sexual Contact:Physical contact of a sexual nature by one person against the will of or without the consent of another.
Relationship Violence:One or more than one of the following behaviors directed at a current or former partner: (1) physical behaviors such as slapping, pulling hair, punching; (2) threats of physical abuse and other types of verbal abuse; and (3) emotional abuse.
Sexual Battery:Intentional touching another person for the purpose of arousing or satisfying one’s own sexual desires or the sexual desires of another person without the consent of or against the will of the person being touched.
Rape:Knowing or intentional sexual intercourse with another person against the will of or without the consent of that person. Rape may be perpetrated by someone unknown to the victim, or by someone the victim knows. Acquaintance rape, commonly referred to as “date rape,” may occur in the context of a single date, a hook-up, an on-going relationship, or any other interaction between two people when one person forces another to have sex, or takes advantage of him/her while she/he is incapacitated.
Deviate Sexual Conduct:Without effective consent or against someone’s will, knowingly or intentionally causing another person to perform an act involving: (a) a sex organ of one person and the mouth or anus of another person; or (b) the penetration of the sex organ or anus of a person by an object.
Sexual Exploitation:Nonconsensual use of sexual contact by one person with another for his/her own advantage or benefit, or to benefit or advantage anyone other than the person being exploited, and the behavior does not otherwise constitute rape, battery or deviate sexual conduct, or other policy violations. Examples of sexual exploitation include prostituting another student, nonconsensual video or audio taping of sexual activity (such as one person allowing others to secretly watch consensual sex), engaging in voyeurism and knowingly transmitting an STD or HIV.
Stalking:A pattern of repeated and unwanted attention, harassment, contact or any other course of conduct directed at a specific person that would cause a reasonable person to feel fear. Stalking can include:
1. Repeated, unwanted, intrusive and frightening communications from the perpetrator by phone, mail and/or email.
2. Repeatedly leaving or sending the victim unwanted items, presents or flowers.
3. Following or laying in wait for the victim at places such as home, school, work or recreation place.
4. Making direct or indirect threats to harm the victim, the victim's family, friends or pets.
5. Damaging or threatening to damage the victim's property.
6. Harassing victim through the internet.
7. Posting information or spreading rumors about the victim on the internet, in a public place or by word of mouth.
8. Obtaining personal information about the victim by accessing public records, using internet search services, hiring private investigators, going through the victim's garbage, following the victim, contacting victim's friends, family work or neighbors, etc.
Sexual harassment: Unsolicited and unwelcome comments or conduct of a sexual nature or that are demeaning to an individual woman or man or women or men as a group. (Sexual harassment is more completely defined under the Harassment Policy).

Sexual misconduct does not include verbal harassment not involving or connected with physical touching except when such harassment occurs in the context of an on-going relationship and is determined to be abusive, or when such harassment reaches the level of stalking. Cases of alleged verbal harassment not involving or connected with physical touching, and not related to relationship violence or stalking, may also be offenses against University policy, but such cases are addressed separately through the University’s Community Standards Program. Please see the Harassment Policy) for more information.

VI. Statement on Consent

The majority of the sexual misconduct complaints received by the University involve the issue of whether the complainant consented to the conduct at issue. In an effort to provide guidance on this issue, the following guidelines have been established.

Consent is voluntary agreement by a competent person to engage in sexual activity, and is communicated through mutually understandable words or actions that indicate desire to participate in the activity at the same time and in the same manner.

When it is unclear whether someone consents to activity, it is the responsibility of the person who initiates the activity to ensure that his/her partner clearly communicates effective consent. To continue to engage in sexual activity without effective consent from his/her partner is a violation of this policy.

Effective consent must be mutually understandable. That is, a reasonable person would have to consider the words or actions of the parties to indicate that there was an agreement to engage in the given activity with each other at the same time.

Consent cannot be obtained through force, fraud, threats, intimidation or coercion. Such consent is not effective, and to engage in sexual activity with someone when consent was gained through these means is a violation of this policy.

Consent cannot be given by minors to adults, by mentally disabled persons, or by otherwise physically or mentally incapacitated persons. People who are unconscious, asleep, incapacitated as a result of alcohol or drugs (whether consumed voluntarily or involuntarily) or are otherwise physically or mentally helpless cannot give effective consent.

Incapacitation is an important and specific concept. A person who is incapacitated is incapable of recognizing what is going on around him/her. An incapacitated person is not able to recognize the sexual nature or extent of the situation she/he is in. To engage in sexual activity with a person one knows or should know is incapacitated is a violation of this policy.

VII. Powers of the Associate Dean of Students

The Associate Dean of Students or the Associate Dean’s designee shall determine whether a charge of sexual misconduct will be forwarded to the Board for a hearing. The Associate Dean of Students may take any action necessary to serve the public safety interest of the University community or to further the prompt resolution of any charges of sexual misconduct. If the determination is made to forward a charge to the Board for a hearing, the Associate Dean will issue a charge in writing to the accused student.

VIII. Sexual Misconduct Hearing Board

The Board shall hold hearings as described below to determine facts (responsible or not responsible) and to impose sanctions if the accused student is found responsible. The Board acts only upon presentation of a written charge of sexual misconduct as described in Section VIII.B below.

A. Composition of the Board

The Board shall consist of seven administrative staff members appointed by the Associate Dean of Students to terms of at least two (2) years. The seven-member makeup of the board shall include at least two women and two men at all times. No member of the Board may consider a case in which the member would have a conflict of interest.
The chair of the Board shall be appointed by the Associate Dean of Students and shall be a person who has served on the Board for at least one year. In addition to the chair, who will participate in all hearings of the Board unless circumstances prohibit such participation, two members of the Board will be appointed by the Associate Dean of Students to a panel to hear a charge. At least one male and one female should serve on the panel.
During the first year of his/her term on the Board, each member shall participate in formal training.

B. Procedure

Any student enrolled at DePauw may file a report of sexual misconduct against another DePauw student with the Office of Student Life or the Public Safety Office. Other community members, guests and visitors may also file reports about current students. The Associate Dean shall conduct a preliminary review of all information gathered or reported. The results of the preliminary review shall be used by the Associate Dean to determine whether the report warrants the University charging the accused student with a violation of the sexual misconduct policy. If the Associate Dean determines that the report warrants a charge and a hearing by the Board, he/she will explain the hearing procedure to the complainant and the complainant will then decide whether to participate in a hearing. The decision by the Associate Dean as to whether the report should be processed as a charge is final and is not subject to further review.
If the complainant elects to participate in the hearing, the charge shall be heard by the panel selected by the Associate Dean of Students. If the complainant elects not to participate, the Associate Dean will revisit the decision to bring a charge and decide whether the University should proceed without the complainant's participation. Upon receipt of the charge, the chair of the Board shall notify the accused student in writing of the filing of the charge and of the hearing date. The hearing date shall be set not more than 14 days from the date of the notice to the accused student. The Board prescribes the procedures to be followed at the hearing. Such procedures will be made available to the complainant and accused student prior to the hearing.
A hearing shall be conducted by the panel selected at the time and place indicated in the notice. The Associate Dean of Students or his/her designee will attend the hearings. The hearing shall be audio recorded and the recording shall be maintained by the Office of Student Life. The recording will be maintained for a period of three (3) years following the conclusion of any hearing.
The complainant and the accused shall be entitled to select one member of the DePauw University faculty, staff or student body to act as an advisor during the processing of any charge. The advisor may not address the panel, but may consult with the respondent or accused prior to, during and after all hearings. The advisor may not be a witness or have a substantial interest in the case or in any related case.
Any report of alleged sexual misconduct shall be reported in accordance with the Student Right-to-Know and Campus Security Act of 1990. At the complainant’s request, these reports will be made without disclosing the names of either the complainant or the accused student. If the Associate Dean determines that matters of public safety are involved, the Associate Dean may disclose such information as is necessary to address that issue.
The complainant and the accused student shall have the opportunity to attend the hearing and to hear and respond to evidence. In the event the complainant or the accused student is unable or unwilling to attend, the panel may proceed with the hearing if it determines that proceeding with the hearing is in the best interest of the University community; provided, however, any determination of facts (responsible or not responsible) shall be based upon evidence presented at the hearing through testimony, written statements or summaries of interviews.
Hearings shall not be publicized or open to the public. Panel members and all others present during the hearing (respective advisors, complainant, accused student, witnesses) shall hold matters relating to the hearing in strict confidence. Witnesses are not permitted to attend hearings other than to testify.
Witnesses shall be limited to members of the DePauw faculty, staff or student body, unless the chair of the panel rules that others may appear. The complainant and the accused student shall submit the names of witnesses to the chair of the panel in writing at least 48 hours prior to the hearing. The complainant and the accused student shall have access to the names of all witnesses. The panel may call additional witnesses or seek further evidence.
One of the following events can delay the start of a hearing:
1. Either party petitions the chair of the panel in writing for a continuance of the hearing not less than 48 hours prior to the scheduled hearing, and the chair of the panel determines that such petition makes a strong showing of substantial need of such a continuance in order to maintain the fairness and integrity of the process; or
2. The chair of the panel determines that a situation exists that requires a continuance of the scheduled hearing date in order to preserve the integrity and basic fairness of the process. In the event a continuance is granted by the chair of the panel, every effort will be made to hear the matter as expeditiously as possible.
Prior to the Board’s deliberation at the conclusion of the hearing, the complainant is allowed to give an impact statement indicating his or her desired outcome. The Board will take the statement into consideration in its deliberations.
A majority of the panel selected to hear a charge shall determine the facts (responsible or not responsible). The threshold for determining responsibility is a preponderance of evidence (more likely than not that the events described in the charge happened). Having found the facts, the panel shall at the same time also impose the appropriate sanction, if any. The decision of the panel shall be in writing, and the complainant and the accused student shall be notified of the decision by the chair of the panel. The findings and any sanction shall be made a part of the accused student's permanent file.

IX. Sanctions

If the panel finds the accused student to be responsible for the charged sexual misconduct, it shall impose sanctions, which may include expulsion. Sanctions of suspension or expulsion carry with them a forfeiture of tuition, fees and residence hall room and board.

X. Appeals

A. Procedure

An appeal of a determination of any fact or sanction imposed by the panel may be filed with the Associate Dean of Students in writing by the complainant or the accused student within three (3) days of the date of the letter of notification from the chair of the panel, unless that time is extended in writing by the Associate Dean of Students. Appeals may be based only on the following reasons:

New evidence not reasonably available at the time of the original hearing, the absence of which is likely to have affected the outcome
Procedural error likely to have affected the outcome
Errors in the interpretation of University policy so substantial as to deny either party a fair hearing, or
Appropriateness of sanction

All materials supporting any appeal must be submitted at the time the appeal is filed. The Associate Dean will advise the non-appealing party in writing of any change in the original finding or sanction or of a new hearing. The non-appealing party will have five (5) days from the date of his/her first notification to respond in writing to the appeal. Decisions by the Associate Dean are final subject only to the review provisions set forth in Section XI below.

B. Disposition of appeals by the Associate Dean of Students

The Associate Dean of Students may:

Affirm the action taken by the panel.
Reverse the panel’s determination of facts and refer the case back to the Board for another hearing.
Reverse the panel's determination of facts and vacate any sanction.
Impose different sanctions.

XI. Review by the Vice President

Review by the Vice President for Student Life of the decision of the Associate Dean may be requested by complainant, the accused student or the University. Review by the Vice President is generally limited to those situations involving suspension, expulsion or presenting unusual circumstances. Requests for review by the Vice President must be made within three (3) days of receipt of the written notification of the decision on appeal from the Associate Dean of Students. The decision of the Vice President for Student Life to grant or deny review shall be final and, if granted, his/her decision on review shall be final, except in the case of expulsion. The Vice President, in his/her sole discretion, may affirm or reverse any decision made prior to his/her review in order to provide consistency to the process and serve the best interests of the community.

XII. Review by the President

After review by the Vice President, all sanctions of expulsion (permanent separation) from the University are automatically reviewed by the President of the University. A student facing expulsion may submit, within three (3) days of receipt of notice by the Vice President, any information they wish the President to consider in his/her review. Only information unavailable at the time of the Vice President's review will be considered during the President's review.

Updated August 18, 2011