Definition and Statement of Policy

I. Preamble

Sexual misconduct (as 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 judicial process and possibly criminal prosecution. The University will not tolerate any form of sexual misconduct, and will treat violations of the law and University policy very seriously. As described in Section II. below, DePauw defines sexual misconduct to include a broad spectrum of behaviors such as: rape; relationship violence; stalking; voyeurism; sexual battery, or any other nonconsensual sexually-related conduct. For more information regarding sexual harassment please refer to the Harassment Policy. The following guidelines outline University policy and procedure for resolving charges of sexual misconduct. Anyone with knowledge about such an incident should 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 college community; 3) To promote the development of individual and group integrity; and 4) To uphold the non-academic rules and regulations of the University.

To pursue criminal charges, one must proceed via the criminal justice system. Staff members in the DePauw Public Safety Office will assist with pursuit of prosecution and involvement of local police authorities if the student chooses such options. If they prefer, those interested in filing criminal charges may also seek assistance from the Greencastle Police or Putnam County Sheriff, with or without the assistance of DePauw Public Safety staff. The filing of criminal (or civil) charges does not preclude pursuing University judicial charges.

Educational programs are 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 complainant and the respondent will have certain procedural rights, the procedure described is not intended to constitute or approximate a legal proceeding. Participants in the process are not entitled to have an attorney present during any phase of the procedure described, but they 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 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 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. In rare cases when it is determined that there is a significant risk to public or personal safety, university officials may act without permission from a victim, but in all other cases, decisions and progress through the reporting/judicial processes will be at the request of the victim. Initial reports may be made through the Office of Public Safety or the Office of Student Life. The Sexual Assault Survivors’ Advocate, counselors from Counseling Services 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 who are victims of sexual misconduct. Trained Sexual Assault Nurse Examiners are available to conduct sexual assault evidence collection exams; students may access this resource by contacting the DePauw switchboard.

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 the hearing (such person may serve in a support or advisory role, and must be a member of the DePauw community)
• To not be discouraged from reporting by University staff or officials
• To be notified of the outcome of any hearing or charges
• 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 a 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

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 the hearing (such person may serve in a support or advisory role, and must be a member of the DePauw community)
• To invoke the 5th amendment and refuse to answer some or all questions
• To be promptly notified of the outcome and sanction of 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 the following conduct:

1. Non-Consensual Sexual Contact: Physical contact of a sexual nature by one person against the will of or without the consent of another.
2. 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.
3. Sexual Battery: Intentional touching of 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.
4. 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.
5. 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.
6. 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.
7. Stalking: Any behaviors or activities occurring on more than one occasion that collectively instill fear in the victim, and/or threaten his or her safety, mental health, or physical health. Such behaviors and activities may include, but are not limited to: non-consensual communication; threatening or obscene gestures or verbal abuse; pursuing, following, surveillance or other types of observation.

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 Policy on Harassment for more information.

VI. Statement on Consent

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 can not 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 can not 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 can not 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 Vice President for Student Life

The Vice President for Student Life or the Vice President’s designee shall determine whether a charge of sexual misconduct will be forwarded to the Board for a hearing. The Vice President 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 Vice President will issue a charge in writing to the respondent.

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 respondent 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

1. The Board shall consist of seven administrative staff members appointed by the Vice President for Student Life 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. Each of the administrative staff members shall be appointed by the Vice President for Student Life from a list of nominations submitted by the Associate Dean of Students. No member of the Board may consider a case in which the member would have a conflict of interest.
2. The chair of the Board for each hearing 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. Three members of the Board, including at least one male and at least one female, will be appointed by the Associate Dean of Students to a panel to hear a charge.
3. During the first year of his/her term on the Board, each member shall participate in formal training.

B. Procedure

1. Any student enrolled at DePauw University may file a report of sexual misconduct against another DePauw student with the Vice President for Student Life. Other community members, guests and visitors may also file reports against current students with the Vice President. The Vice President shall conduct a preliminary review of all information gathered or reported with regard to the alleged misconduct. The results of the preliminary review shall be used by the Vice President to determine whether the report warrants a charge being heard by the Board, and to explain the procedure to the complainant. If the Vice President determines that the report warrants a charge and a hearing by the Board, the complainant will then decide whether to proceed with a hearing. The decision by the Vice President as to whether the report should be processed as a charge is final and is not subject to further review.
2. If the complainant elects to go forward, the charge shall be heard by the panel selected by the Associate Dean of Students. In order to begin the hearing process, the complainant shall be required to file a written charge with the Vice President. The report filed with the Vice President may serve as the charge required to be filed with the Associate Dean of Students. Upon receipt of the charge, the chair of the Board shall notify the respondent 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 respondent. The Board may prescribe the procedures to be followed at the hearing. Such procedures will be made available to the complainant and respondent prior to the hearing.
3. A hearing shall be conducted by the panel selected at the time and place indicated in the notice. The Associate Dean of Students will attend the hearings. The hearing shall be tape-recorded and the tape(s) shall be maintained by the Dean of Student's Office.
4. The complainant and the respondent 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 of sexual misconduct. The advisor may not address the panel, but may consult with the respondent or complainant 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.
5. Any report of alleged sexual misconduct shall be reported by the Vice President to the DePauw Public Safety Office 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 respondent. If the Vice President determines that matters of public safety are involved, the Vice President may disclose such information as is necessary to address that issue.
6. The complainant and the respondent shall have the opportunity to attend the hearing and to hear and respond to evidence. In the event the complainant or the respondent 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 and not upon the allegations in the charge filed by the complainant.
7. Hearings shall not be publicized or open to the public. Panel members and all others present during the hearing (respective advisors, complainant, respondent, witnesses)shall hold matters relating to the hearing in strict confidence. Witnesses are not permitted to attend hearings other than to testify.
8. 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 respondent 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 respondent shall have access to the names of all witnesses. The panel may call additional witnesses or seek further evidence.
9. The panel selected will usually initiate the hearing within 14 days of the date of the notice to the respondent unless one of the following events occurs:
   a. 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
   the chair of the panel determines that an emergency 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.
10. Prior to the Board’s deliberation at the conclusion of the hearing, the complainant is allowed to give impact statements indicating their desired outcome. The Board will take these statements into consideration in its deliberations.
11. A majority of the panel selected to hear a charge shall determine the facts (responsible or not responsible). The threshold for determining responsibility should be a preponderance of evidence. Having found the facts, the panel hearing the case 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 respondent shall be given a copy of the decision by the chair of the panel.

IX. Sanctions

If the panel finds the respondent 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, which will not be refunded or remitted, in whole or in part. All students receiving financial assistance from the federal government will have their aid prorated and refunded to the federal program involved based upon the federal refund policy.

X. Appeals

A. Procedure

An appeal of a determination of any fact or of a sanction imposed by the panel may be filed with the Dean of Campus Life in writing by the complainant or the respondent with 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 Dean of Campus Life. All materials supporting any appeal should be submitted at the time the appeal is filed. New evidence not reasonably available at the time of the hearing may be submitted in support of an appeal to the Dean of Campus Life. The Dean of Campus Life will advise the non-appealing party in writing of the filing of an appeal and will provide access to the materials received in connection with the appeal to the non-appealing party. The non-appealing party will have five (5) days from the date of his/her first review to respond in writing to the appeal. Decisions by the Dean of Campus Life are final subject only to the review provisions set forth in Section XI below.

B. Disposition of appeals by the Dean of Campus Life

The Dean of Campus Life may:

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

XI. Review by the Vice President

Review by the Vice President for Student Life may be requested by complainant, respondent or the University only on the basis of extreme or unusual circumstances pertaining to the case. 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 Dean of Campus Life. 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

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 72 hours of notice of expulsion 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."