Sexual Misconduct Policy

Central Oregon Community College - Sexual Misconduct Policy

1) INTRODUCTION

COCC believes in a zero tolerance policy for sexual misconduct. Members of the College community, guests and visitors have the right to be free from sexual violence. When an allegation of sexual misconduct is brought to the administration, and a respondent is found to have violated this policy, serious sanctions will be used to ensure that such actions are never repeated. All members of the community are expected to conduct themselves in a manner that does not infringe upon the rights of others.

2) OVERVIEW OF POLICY EXPECTATIONS WITH RESPECT TO PHYSICAL SEXUAL MISCONDUCT

While the policy is detailed and specific, the expectations are summarized in this simple paragraph. In order for individuals to engage in sexual activity of any type with each other, there must be clear consent.

Effective consent is informed, freely and actively given, mutually undersss to participate in mutually agreed upon sexual activity. In the absence of mutually understandable words or actions (a meeting of the minds on what is to be done, where, with whom, s the responsibility of the initiator,or specific sexual activity to make sure that they have consent from their partner(s).

Mutually understandable consent is a subjective standard. Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a mutually understandable agreement between them to do the same thing,in the same way,at the same time, with each other.

2.1 Consent to one form of sexual activity cannot imply consent to other forms of sexual activity;

2.2 Previous relationships or consent cannot imply consent to future sexual acts;

2.3 Consent which is obtained through the use of fraud or force whether that force be physical force, threats, intimidation,or coercion,is ineffect consent.

Consent may never be given by:

2.4 Minors (Statutory Rape) to legal adults;

2.5 Mentally disabled persons;

2.6 Physically incapacitated persons;

One who is physically incapacitated as a result of alcohol or other drug consumption (voluntary and involuntary),or who is unconscious, unaware, or otherwise physically helpless, is incapable of giving consent.

One may not engage in sexual activity with another who one knows or should reasonably have known is physically incapacitated.

Incapacitation means being in a state where a person lacks the capacity to appreciate the fact that the situation is sexual, or cannot appreciate (rationally and reasonably) the nature and/or extent of that situation.

3) TYPES OF SEXUAL MISCONDUCT OFFENSES

Sexual misconduct may include, but are not limited to sexual harassment, non-consensual sexual intercourse (or attempts to commit same), non-consensual sexual contact (or attempts to commit same), and/or sexual exploitation. These example offenses are defined below.

3.1.A The Three Types of Sexual Harassment

3.1.A.1 Hostile Environment - includes any situation in which there is harassing conduct that is sufficiently severe,pervasive/persistent and patently/objectively offensive that it affects one's education or employment,from both a subjective (the alleged victim's) and an objective (reasonable person's) viewpoint. The determination of whether an environment is "hostile" must be based on all of the circumstances. These circumstances could include, but are not limited to:

  • 3.1.A.1.a The frequency of the conduct;
  • 3.1.A.1.b The nature and severity of the conduct;
  • 3.1.A.1.c Whether the conduct was physically threatening;
  • 3.1.A.1.d Whether the conduct was humiliating;
  • 3.1.A.1.e The effect of the conduct on the alleged victim's mental or emotional state;
  • 3.1.A.1.f Whether the conduct was directed at more than one person;
  • 3.1.A.1.g Whether the conduct arose in the context of other discriminatory conduct;
  • 3.1.A.1.h Whether the conduct unreasonably interfered with the alleged victim's educational or work performance;
  • 3.1.A.1.i Whether the statement is a mere utterance of an epithet, which engenders offense in an employee or student,or offends by mere discourtesy or rudeness;
  • 3.1.A.1.j Whether the speech or conduct deserves the protections of academic freedom.

3.1.A.2 Quid pro quo sexual harassment exists when there are:

3.1.A.2.a Unwelcome sexual advances,requests for sexual favors or other verbal or physical conduct of a sexual nature; and

3.1.A.2.b submission to or rejection of such conduct results in adverse educational or employment action.

3.1.A.3 Retaliatory harassment is any adverse employement or educational action taken against a person because of the person's participation in a complaint or investigation of discrimination or sexual misconduct.

3.2 NON-CONSENSUAL SEXUAL INTERCOURSE

Non-Consensual Sexual Intercourse is any sexual intercourse (anal,oral,or vaginal), however slight, with any object, by a man or woman upon a man or a woman, without consent.

3.3 NON-CONSENSUAL SEXUAL CONTACT

Non-Consensual Sexual Contact is any intentional sexual touching,however slight, with any object, by a man or a woman upon a man or a woman, without consent.

3.4 SEXUAL EXPLOITATION

Occurs when a person takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses. Examples of sexual exploitation include, but are not limited to:

3.4.A Prostituting another person;

3.4.B Non-consensual video or audio-taping of sexual activity;

3.4.C Going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex);

3.4.D Engaging in Peeping Tommery;

3.4.E Knowingly transmitting an STI or HIV to another student.

The requirements of this policy are blind to the sexual orientation or preference of individuals engaging in sexual activity.

4) SANCTION STATEMENT

4.1 Any student found responsible for violating the policy on Non-Consensual Sexual Contact (where no intercourse has occurred) will likely receive a sanction ranging from warning to expulsion, depending on the severity of the incident, and taking into account any previous campus conduct code violations.

4.2 Any student found responsible for violating the policy on Non-Consensual Sexual Intercourse will likely face a recommended sanction of suspension or expulsion.

4.3 Any student found responsible for violating the policy on sexual exploitation or sexual harassment will likely receive a recommended sanction ranging from warning to expulsion, depending on the severity of the incident, and taking into account any previous campus conduct code violations.

4.4 Any employee found responsible for violating the sexual misconduct policy will be subject to disciplinary action up to and including dismissal.

5) CONFIDENTIALITY AND REPORTING POLICY

Different people at COCC have different reporting responsibilities, and different abilities to maintain confidentiality, depending on their roles at the College. When consulting campus resources, victims should be aware of confidentiality and mandatory reporting, in order to make informed choices (see GP­ HR-3-6: Mandatory Reporting Requirements http://www.cocc.edu/general-procedures-manual/human-resources some resources may maintain complete confidentiality, offering options and advice without any obligation to tell anyone, unless the victim wants them to. Other resources are expressly there to receive reports of crimes and policy violations, and they will take action when victimization is reported to them. Most resources on campus fall in the middle of these two extremes. Neither the College nor the law requires them to divulge private Information that is shared with them, except in extremely rare circumstances, described below. Victims may seek assistance from them without starting a chain of events that takes things out of their control, or violates their privacy

5.1 To Report Confidentially

If the victim desires that details of the incident be kept confidential, they should speak with on campus counselors or off-campus rape crisis resources, who will maintain confidentiality. Campus counselors are available in the CAP Center, located in the lower level of the Library. The counselors are available free of charge, and can be seen on an emergency basis. In addition, victims may speak on and off campus with members of the clergy and chaplains, who will also keep reports made to them confidential. Employees have access to counseling through the Employee Assistance Program (EAP) and can make direct contact to the program or have assistance through the Human Resources Department.

5.2 Quasi-Confidential Reporting

Victims can seek advice from certain resources who are not required to tell anyone else private, personally identifiable information unless there is cause for fear for the victims safety, or the safety of others. These resources include those without supervisory responsibility or remedial authority to address sexual misconduct, such as RAs, faculty members, academic advisors, advisors to student organizations, student activities personnel, and many others. If unsure of someone's duties and ability to maintain your privacy, ask them before talking to them. They will be able to tell the victim and help make decisions about who can help them best. Some of these resources, such as RAs, are instructed to share incident reports with their supervisors, but they do not share any personally identifiable information about the report unless given permission, except in the rare event that the incident reveals a need to protect the victim or other members of the community. If personally identifiable information is shared, it will be shared with as few people as possible, and all efforts will be made to protect confidentiality to the greatest extent.

5.3 Non-Confidential Reporting Options

Victims are encouraged to speak to officials of the institution to make formal reports of Incidents. For student victims, most reports will be made to either The Director of Student Life or COCC Safety and Security office. For COCC staff, reports will be made through the Human Resources office. Victims have the right and can expect to have incidents of sexual misconduct to be taken seriously by the college when formally reported, and to have those incidents investigated and properly resolved through administrative procedures. Formal reporting does not mean that the report will not be confidential, but it does mean that people who need to know will be told, and information will be shared as necessary with investigators, witnesses, and the accused. The circle of people will be kept as tight as possible, to preserve victim rights and privacy.

6) SPECIAL PROVISIONS

6.1 Attempted Violations

Attempts to violate this Code, including unsuccessful attempts, are prohibited and are subject to the same response under this Code as are actual violations;

6.2 COCC Complainant

As necessary, COCC reserves the right to initiate a complaint, to serve as complainant, and to initiate conduct proceedings without a formal complaint by the victim of misconduct.

6.3 False Reports

COCC will not tolerate intentional false reporting of incidents. It is a violation of the Student Code of Conduct to make an intentionally false report of any policy violation, and it may also violate state criminal statutes and civil defamation laws.

6.4 Immunity for Victims

The College community encourages the reporting of Conduct Code violations, especially sexual misconduct. Sometimes, victims are hesitant to report to college officials because they fear that they themselves may be charged with policy violations, such as underage drinking. It is in the best interest of this community that as many victims as possible report concerns to college officials. To encourage reporting, COCC generally offers victims of sexual misconduct limited immunity for policy violations related to the sexual misconduct incident. While violations may not be completely overlooked, the College will provide educational options rather than punishment, where appropriate.

6.5 Good Samaritan

The welfare of students in our community is of paramount importance. COCC encourages students to offer help and assistance to others in need. Sometimes, students are hesitant to offer assistance to others, for fear that they may get themselves in trouble (for example, a student who has been drinking underage might hesitate to help take a sexual misconduct victim to Safety and Security). COCC generally offers limited immunity for students who offer help to others in need. While policy violations may not be overlooked, the college will provide educational options, rather than punishment, to those who offer their assistance.

6.6 Parental Notification

COCC reserves the right to notify parents/guardians of dependent students regarding any health or safety risk, change in student status or conduct situation, particularly alcohol and other drug violations. The College may also notify parents/guardians of non-dependent students who are under age 21 of alcohol and/or drug policy violations, or if there is a health and/or safety risk. COCC also reserves the right to designate which college officials have a need to know about individual conduct complaints pursuant to the Family Educational Rights and Privacy Act (FERPA).

6.7 Notification of Outcomes

The outcome of a campus hearing is part of the educational record of the accused student, and is protected from release under a federal law, (FERPA). However, COCC observes the legal exceptions as follows:

  • 6.7.A Complainants in non-consensual sexual contact/intercourse, sexual exploitation, sexual harassment, stalking, and relationship violence incidents have an absolute right to be informed of the outcome and sanctions of the hearing, in writing, without condition or limitation.
  • 6.7.B Students who bring any sort of sexual misconduct complaint against faculty or staff may be informed of the outcome and sanction within the parameters of Oregon statutes protecting confidentiality of personnel actions.
  • 6.7.C The college may release publicly the name, nature of the violation and the sanction for any student who is found in violation of a university policy that is a "crime of violence," including: arson, burglary, robbery, criminal homicide,sex offenses, assault, destruction/damage/vandalism of property and kidnapping/abduction. The College will release this information to the complainant in any of these offenses regardless of the outcome.

6.8 Alternative Testimony Options

For sexual misconduct complaints, and other complaints of a sensitive nature, whether the alleged victim is serving as the complainant or as a witness, alternative testimony options will be given, such a placing a privacy screen in the hearing room, or allowing the alleged victim to testify from another room via remote broadcasting. While these options are intended to help make the alleged victim more comfortable, they are not intended to work to the disadvantage of the accused student.

6.9 Past Sexual History / Character

The past sexual history or sexual character of a party will not be admissible by the other party in hearings unless such information is determined to be highly relevant by the hearings officer. All such information sought to be admitted will be presumed irrelevant, and any request to overcome this presumption by the parties must be included in the complaint/response or a subsequent written request, and must be reviewed in advance of the hearing by the hearings officer. While previous conduct violations by the accused student are not generally admissible as information about the present alleged violation, the hearings officer may consider previous complaint information only if:

  • 6.9.A The accused was previously found to be responsible;
  • 6.9.B The previous incident was substantially similar to the present allegation;
  • 6.9.C Information indicates a pattern of behavior and substantial conformity with that pattern by the accused student.

7) STATEMENT OF THE RIGHTS OF THE ALLEGED VICTIM

7.1 The right to investigation and appropriate resolution of all credible complaints of sexual misconduct made in good faith to college administrators;

7.2 The right to be treated with respect by college officials;

7.3 The right of both accuser and accused to have the same opportunity to have others present (in support or advisory roles only) during a campus disciplinary hearing;

7.4 The right not to be discouraged by college officials from reporting an assault to both on-campus and off-campus authorities;

7.5 The right to be informed of the outcome and sanction of any disciplinary hearing (as allowable under Oregon statues) involving sexual assault, usually within 48 hours of the end of the conduct hearing;

7.6 The right to be informed by college officials of options to notify proper law enforcement authorities, including on-campus and local police, and the option to be assisted by campus authorities in notifying such authorities, if the student so chooses. This also includes the right not to report, if this is the victim's desire;

7.7 The right to be notified of available counseling, mental health or student services for victims of sexual assault, both on campus and in the community;

7.8 The right to notification of and options for, and available assistance in, changing academic, employment and living situations after an alleged sexual assault incident, if so requested by the victim and if such changes are reasonably available (no formal complaint, or investigation, campus or criminal, need occur before this option is available). Accommodations may include:

  • 7.8.A Change of an on-campus student's housing to a different on-campus location;
  • 7.8.B Arranging to dissolve a housing contract and pro-rating a refund;
  • 7.8.C Exam (paper, assignment) rescheduling;
  • 7.8.D Taking an incomplete in a class;
  • 7.8.E Transferring class sections;
  • 7.8.F Temporary withdrawal;
  • 7.8.G Alternative course completion options;
  • 7.8.H Reassignment of work location.

7.9 The right not to have irrelevant prior sexual history admitted as evidence in a campus hearing;

7.10 The right not to have any complaint of sexual assault mediated (as opposed to adjudicated);

7.11 The right to make a victim-impact statement at the campus conduct proceeding and to have that statement considered by the hearing officer in determining its sanction;

7.12 The right to a campus no contact order against another student or staff member who has engaged in or threatens to engage in stalking, threatening, harassing or other improper behavior that presents a danger to the welfare of the complaining student or others;

7.13 The right to have complaints of sexual misconduct responded to quickly and with sensitivity by campus law enforcement;

7.14 The right to appeal the finding and sanction of the conduct body,in accordance with the standards for appeal established by the institution;

7.15 The right to review all documentary evidence available regarding the complaint, subject to the confidentiality limitations imposed by state and federal law, at least 48 hours prior to the hearing;

7.16 The right to be informed of the names of all witnesses who will be called to give testimony, within 48 hours of the hearing, except in cases where a witness' identity will not be revealed to the accused student for compelling safety reasons (this does not include the name of the alleged victim/complainant, which will always be revealed);

7.17 The right to preservation of confidentiality, to the extent possible and allowed by law;

7.18 The right to a hearing closed to the public;

7.19 The right to petition that any hearing officer be removed on the basis of demonstrated bias;

7.20 The right to bring a victim advocate or advisor to all phases of the investigation and campus conduct proceeding;

7.21 The right to give testimony in a campus hearing by means other than being in the same room with the accused student (closed circuit live audio/video is the recommended method);

7.22 The right to present relevant witnesses to the campus conduct body, including expert witnesses;

7.23 The right to be fully informed of campus conduct rules and procedures as well as the nature and extent of all alleged violations contained within the complaint;

7.24 The right to have the college compel the presence of student, faculty and staff witnesses, and the right to ask questions, directly or indirectly, of witnesses (including the accused),and the right to challenge documentary evidence;

7.25 The right to be present for all testimony given and evidence presented before the conduct body;

7.26 The right to have complaints heard by conduct officers who have received sexual misconduct adjudication training;

7.27 The right to have college policies and procedures followed without material deviation;

7.28 The right to be informed in advance of any public release of information regarding the complaint;

7.29 The right not to have released to the public any personal information about the complainant, without his or her consent.

8) STATEMENT OF THE ACCUSED'S RIGHTS

8.1 The right to investigation and appropriate resolution of all credible complaints of sexual misconduct made in good faith to college administrators against the accused student;

8.2 The right to be treated with respect by college officials;

8.3 The right to be informed of and have access to campus resources for medical, counseling,and advisory services;

8.4 The right to be fully informed of the nature, rules and procedures of the campus conduct process and to timely written notice of all alleged violations within the complaint, including the nature of the violation and possible sanctions;

8.5 The right to a hearing on the complaint, including timely notice of the hearing date,and adequate time for preparation;

8.6 The right not to have irrelevant prior sexual history admitted as evidence in a campus hearing;

8.7 The right to make an impact statement at the campus conduct proceeding and to have that statement considered by the hearing officer in determining its sanction;

8.8 The right to appeal the finding and sanction of the conduct body, in accordance with the standards for appeal established by the institution;

8.9 The right to review all documentary evidence available regarding the complaint, subject to the confidentiality limitations imposed by state and federal law,at least 48 hours prior to the hearing;

8.10 The right to be informed of the names of all witnesses who will be called to give testimony, within 48 hours of the hearing, except in cases where a witness' identity will not be revealed to the accused student for compelling safety reasons (this does not include the name of the alleged victim/complainant, which will always be revealed);

8.11 The right to a hearing closed to the public;

8.12 The right to petition that any member of the conduct body be removed on the basis of bias;

8.13 The right to have the college compel the presence of student, faculty and staff witnesses, and the right to ask questions, directly or indirectly, of witnesses, and the right to challenge documentary evidence;

8.14 The right to have complaints heard by conduct officers who have received sexual misconduct adjudication training;

8.15 The right to have college policies and procedures followed without material deviation;

8.16 The right to have an advisor or advocate to accompany and assist in the campus hearing process. This advisor can be anyone, but the advisor may not take part directly in the hearing itself, though they may communicate with the accused student as necessary;

8.17 The right to a fundamentally fair hearing including union representation where appropriate;

8.18 The right to a campus conduct outcome based solely on evidence presented during the conduct process. Such evidence shall be credible, relevant, based in fact, and without prejudice;

8.19 The right to written notice of the outcome and sanction of the hearing;

8.20 The right to be informed in advance, when possible, of any public release of information regarding the complaint.

This sexual harassment policy incorporates language suggested by Tom Trager, Associate Counsel to the University of Colorado, Boulder, and Brett Sokolow,from NCHERM

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