Sexual Misconduct Policy
Shenandoah University is committed to investigate reports of sexual misconduct, to adjudicate them according to the policies of the university, and to provide support to those who are the survivors.
Shenandoah University values the unique and diverse perspectives of individuals and communities locally and globally and seeks to foster mutual understanding in an inviting community where individuals are welcome and respected. The university does not discriminate on the basis of sex, race, color, religion, national or ethnic origin, age, physical or mental disability or sexual orientation.
As a recipient of federal funds, the University complies with Title IX of the Education Amendments of 1972 (Title IX). Title IX provides that: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
The University is committed to educating, preventing and responding to behavior that violates its non-discrimination policy. Any individual whose conduct violates this policy will be subject to disciplinary action in accordance with student code of conduct and other university regulations and policies.
SEXUAL MISCONDUCT POLICY
All members of the Shenandoah University community including guests and visitors have a right to be free from sexual discrimination in the form of sexual misconduct by any other member of the university community. Sexual misconduct
encompasses a wide scope of behavior that includes but is not limited to non-consensual sexual intercourse, non-consensual sexual contact, sexual exploitation, sexual harassment, relationship violence and stalking.
Consent is defined as the voluntary willingness between both parties to engage in mutually-agreed upon sexual activity without coercion, force or taking advantage of a person’s incapacitation. Both parties have the obligation to communicate consent or the lack of consent. A verbal “no” (no matter how indecisive) or resistance (no matter how passive) constitutes the lack of consent. Silence or lack of resistance does not infer consent.
Consent to a sexual activity may be withdrawn at any time and at
that time, if consent is withdrawn, all sexual activity must cease. Consenting to one sexual act does not automatically provide consent for additional sexual acts. Likewise, previous consent to sexual behaviors does not imply consent for future sexual acts. A person who ceases such sexual activity at the time consent is withdrawn, may not, in some instances be subject to judicial action for a sexual conduct policy violation occurring prior to the withdrawal of consent.
Consent cannot be given by the following persons:
- Individuals who are mentally incapacitated at the time of the sexual contact in a manner that prevents him or her from understanding the nature or consequences of the sexual act involved.
- Individuals who are unconscious or physically incapacitated
Incapacitation is defined as the physical and/or mental inability to make informed, rational decisions that voids an individual's ability to give consent. Incapacitation may be caused by a permanent or temporary physical or mental impairment. Incapacitation may also result from the consumption of alcohol or the use of both illegal and prescribed substances.
- The use of alcohol or drugs may, but does not automatically, affect a person's ability to consent to sexual contact. The consumption of alcohol or drugs may create a mental incapacity if the nature and degree of the intoxication go beyond the stage of merely reduced inhibition and reach a point in which the victim does not understand the nature and consequences of the sexual act. In this event, the person cannot give consent. Consent can never be given when a person is under the influence of a date rape drug, such as Rohypnol, Ketamine, GHB, etc.
- A violation of the sexual misconduct policy includes having sexual contact with someone who is mentally incapacitated or has reached incapacitation due to the consumption of drugs or alcohol. A guideline to gauge another individual’s incapacitation is if another reasonable, sober person would know the individual in question’s incapacitation.
- The use of alcohol, drugs or other impairment does not minimize or excuse an accused individual’s responsibility or involvement in cases of sexual misconduct.
- Incapacitation may also occur when someone is unconscious, asleep, or has been involuntarily restrained.
Coercion is defined as an unreasonable amount of pressure to engage in sexual activity. Coercive behavior is not the same as seduction. Coercion begins when a person continues to pressure another individual into sexual acts when it is clear that the person does not want to be seduced or convinced into engaging in sexual activity.
Force is defined as the use physical violence and/or imposing on someone physically to gain sexual access. Force can include but is not limited to: threats, intimidation, implied threats, and coercion that overcome resistance or produce consent.
Intimidation is defined as intentional behavior that implies a threat. The threat could be both positive or negative. An example of a positive threat includes, “If you sleep with me, I will invite you to a party.” An example of a negative threat includes, “If you don’t sleep with me, I will ruin your reputation.”
Non-Consensual Sexual Contact involves any intentional sexual touching, however slight, with any object, by a man or woman upon a man or a woman that is without consent and/or by force.
Non-Consensual Sexual Intercourse involves any sexual intercourse, however slight, with any object, by a man or woman upon a man or woman that is without consent and/or by force. Intercourse is defined by penetration (anal, oral, vaginal) by a penis, tongue, finger, or inanimate object.
Relationship Violence is the use of physical, emotional or sexually abusive behaviors to gain power or control in an intimate relationship.
Sexual Exploitation occurs when an individual takes sexual advantage of another person without consent. This includes but is not limited to causing or attempting to cause incapacitation of another individual for sexual purposes; prostitution of another person; videotaping, recording, photographing or transmitting, including electronically, intimate or sexual sounds or images of another person; allowing third parties to observe sexual acts; engaging in voyeurism; distributing intimate or sexual information about another person; invasion of sexual privacy; and knowingly transmitting a sexually transmitted infection, including HIV, to another person.
Sexual Harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when at least one of the following conditions are met:
1. Submission to such conduct is made explicitly or implicitly a term or condition of an individual’s employment or academic status in a course, program or activity; or verbal misconduct, without accompanying physical contact as described above may constitute sexual harassment, which is also prohibited under university regulations.
2. Submission to, or rejection of, such conduct by an individual is used as a basis for employment or academic decisions affecting such individual; or
3. Such conduct that creates an intimidating, hostile, or offensive environment that substantially interferes with an employee’s work performance or a student’s ability to participate in or benefit from the university’s programs or activities.
Examples of Sexual Harassment
Examples of physical and verbal conduct that may constitute sexual harassment may include, but are not limited to, the following:
1. A direct or implied threat that submission to sexual advances will be a condition of employment, promotion, or grades.
2. A direct and unwanted proposal or subtle unwanted pressure to engage in sexual activity.
3. A pattern of conduct causing discomfort or humiliation. e.g., unnecessary touching, gestures of a sexual nature, or remarks of a sexual nature, including comments about dress, jokes, or anecdotes.
Sexual harassment does not include personal compliments, social interaction or relationships freely entered into by students, employees, or prospective employees; however, the potential for sexual harassment, even in consensual relationships, must be recognized, especially in situations where a professional power differential exists (e.g. administrator/student, faculty/student, supervisor/employee). Sexual harassment does not include behavior that is considered to be appropriate to an academic discipline for the purpose of instruction or individual safety.
Sexual Misconduct can include but is not limited to incidents of sexual harassment, non-consensual sexual contact (or attempts to commit same), non-consensual intercourse (or attempts to commit same) and sexual exploitation.
Stalking is repeatedly contacting another person when the contact is unwanted. This behavior can cause the other person to be concerned for his or her physical safety or causes apprehension of the abilities to perform the activities of daily life. This behavior can include: communication (in person, phone, electronic, social media), following a person, watching or remaining in the physical presence of the other person.
Threats are defined as taking action to cause a person to do something that he or she would not have done without the threat. Example - If you do not have sex with me, I will:
- harm your reputation.
- cause harm to someone you are close to.
Shenandoah University encourages all members of the university community to be aware of both the consequences of sexual misconduct and the options available to those who have experienced sexual misconduct.
Resources for Victims of Sexual Misconduct
Students who believe that they have been subjected to incidents of sexual misconduct are encouraged to seek assistance from their choice of available support services. On campus resources include: the health and counseling services staff (Wilkins Wellness Center 540-665-4530 or on the third floor of Cooley Hall), Department of Public Safety (540-665-4614 or on the north end of Armstrong Hall), the Title IX Coordinator at 540-665-4921 or in 206 Cooley Hall, Residence Life (540-665-4611), and the Vice President for Student Life (540-665-4863).
Community Resources include: the Winchester Medical Center hospital (540-536-8000 or 1840 Amherst Street; Winchester, VA) Winchester Police Department (540-662-4131 or 231 E. Piccadilly St. Suite 310) Frederick County Police Department (540-662-6168 or 1080 Coverstone Drive; Winchester, VA) The Concern Hotline (540-667-0145) and The Free Medical Clinic of Northern Shenandoah Valley, Inc (540-536-1680 or 301 N. Cameron Street; Winchester, VA).
Students also have the right to file a formal complaint with the United States Department of Education (firstname.lastname@example.org). More information is available at http://www.ed.gov/ocr.
Adjudication and Sanction
Any student or employee charged with sexual misconduct can be disciplined under the University's conduct code and may be prosecuted under Virginia criminal statutes. Even if the criminal justice authorities choose not to prosecute, university officials can pursue disciplinary action which may result in dismissal from the university.
Retaliation is prohibited. The Title IX Coordinator will investigate any reported acts of harassment or intimidation, including any act of reprisal, interference, restraint, or penalty - overt or covert- against any student, faculty, or staff who is a party to a complaint or associated with the proceedings described in this policy, including witnesses and members of the Hearing Panel.
Reporting an Incident
Shenandoah University strongly encourages and supports prompt reporting of sexual misconduct. Prompt reporting allows victims to be provided resources and helps contribute to a safe campus environment. Instances of sexual misconduct may be a violation of both university policy and the law. Victims are encouraged to report complaints of sexual misconduct to university officials and local law enforcement. Law enforcement officials can explain the procedures for pursuing a criminal investigation of sexual misconduct.
Employees of Shenandoah University who become aware of any possible sexual misconduct must immediately report it to the Title IX Coordinator regardless of whether a formal complaint has been filed, except for those employees who are statutorily prohibited from reporting.
Reporting Sexual Misconduct to University Officials
If you or someone you know has been the victim of sexual misconduct, please contact the Shenandoah University Compliance Office, the Department of Public Safety, a Resident Assistant, or the Office of the Vice President for Student Life. In all cases, the Title IX Coordinator or designee will complete an investigation of each complaint.
If a complainant does not wish to pursue Formal or Informal Resolution, or requests that his or her complaint remain confidential, the university will take reasonable action in response to the complainant’s information. The Title IX Coordinator will inform complainant that the University’s ability to respond will be limited by adherence to these wishes.
Investigations can take up to sixty (60) calendar days following receipt of the complaint. Factors that could impair the timing of the investigation include the complexity and severity of the sexual misconduct, the number and availability of witnesses, the need to identify and acquire physical or other evidence. Individuals who feel they have experienced sexual misconduct may file criminal charges through the criminal justice system.
To encourage reporting of incidents of sexual misconduct, Shenandoah University pursues a policy of offering complainants and witnesses limited immunity from being charged for policy violations related to an alleged incident (such as policies prohibiting the use of alcohol or drugs). While the university cannot completely overlook policy violations, it will pursue educational rather than punitive responses to such cases.
Responding to an Incident: Complaint Procedures
The Assistant Director of Student Conduct serves as the Shenandoah University Title IX Coordinator. Faculty, staff, or students who believe they have been victims of sexual misconduct should contact the Title IX Coordinator. If the complainant determines that he or she wishes to take action, a verbal or written complaint is to be presented to the Title IX Coordinator
The Title IX Coordinator and the complainant will hold a confidential interview to discuss the alleged sexual misconduct. The Title IX Coordinator will share information regarding the definition of sexual misconduct and possible action that may be taken in response to the alleged sexual misconduct. The Title IX Coordinator will also provide information concerning health and counseling services to the complainant and the accused student. Student complainants will have the option for a formal or informal resolution procedure.
Complainants who requests anonymity should be aware that while health care professionals can guarantee confidentiality by law, other university employees cannot guarantee complete confidentiality. Information is disclosed only to select officials who have an essential need to know in order to carry out their university responsibilities. As is the case with any educational institution, the university is herein governed by FERPA regulations. While the university official will make every effort to adhere to the wishes of the complainant in proceeding with the complaint, officials must balance the needs of the individual student with its obligation to protect the safety and wellbeing of the community at large. Therefore, depending on the seriousness of the alleged incident, further action may be necessary.
The Title IX Coordinator, Department of Public Safety or other Shenandoah University officials may take immediate interim actions to protect the safety of the university community, to enable students with complaints and witnesses to continue studies, and to ensure the integrity of an investigation. These actions may include, but are not limited to:
- Interim suspension of the accused student
- No contact orders
- Modifying class or work schedules
- Making alternative housing arrangements
- Addressing other academic concerns (e.g., absences, assignments, grades, leaves of absence, withdrawal)
Within thirty (30) days, the Title IX Coordinator or designee will meet separately with the complainant, the accused individual, and other persons deemed necessary to determine if there is reasonable cause for the complaint. In general, the investigation will take no longer than sixty (60) days, unless extenuating circumstances create a need for a longer period of time.
If the results of the investigation indicate the likelihood that sexual misconduct occurred, the Title IX Coordinator will present resolution strategies separately to the complainant and the accused. The Title IX Coordinator may conclude that the case needs to go through the formal resolution process; however, if an informal resolution can be reached, resolution strategies may range from the disposing of the case due to insufficient evidence, to action as may be warranted to by circumstances of the case.
Ultimately, a mutually-satisfactory resolution will be sought between the Title IX Coordinator, the complainant, and the accused individual. To the extent that all three parties are able to
achieve a satisfactory resolution of the problem or issue the complaint will be considered resolved. In cases involving alleged sexual assault, informal resolution through a meeting of the parties and the Title IX Coordinator is not an option. In the event
of a mutually agreed upon resolution no additional hearing or appeal will be permitted. If a mutually satisfactory resolution cannot be achieved, either:
1) The complaint will be advanced to the formal procedure described below or
2) Upon the request of the complainant, the process may be concluded.
The fact that a complaint of sexual misconduct may be concluded at the request of the accusing party does not preclude the filing of a formal complaint by others, including appropriate university officials.
Formal complaints of sexual misconduct should be filed in writing by the Shenandoah University Title IX Coordinator under the following conditions:
1) Mutually satisfactory conflict resolution (if applicable) was not achieved by complainant or accused individual,
2) The complainant requests that the case go directly to a formal process,
3) The Title IX Coordinator may exercise the option of moving directly to a formal process.
Upon receipt of a formal, written complaint, the Title IX Coordinator will, within ten working days, inform the accused individual in writing of the following: a formal complaint of sexual misconduct has been filed, the nature of the complaint, a formal hearing is to be convened regarding the charges, the maximum disciplinary action that may be taken, and conditions and procedures by which an appeal may be filed. The complainant will also receive a copy of this written notice. Within thirty calendar days from the day in which the accused was formally notified of the complaint against him or her, a Panel will be convened for the purpose of hearing the alleged charges.
The Hearing Panel consists of three (3) members: two (2) faculty/staff members and one (1) deputy title IX coordinator from either athletics or human. In addition, the Title IX Coordinator will designate a hearing panel chair.
- Pre-hearing submissions. The parties will provide the Title IX Coordinator with a list of witnesses they propose to be called and copies of all documents and information they wish to propose to present at the hearing process on or before the date set by the Title IX Coordinator. Evidence of the complainant or accused individual's past sexual conduct history will not be permitted unless it is relevant to the investigation. The Title IX Coordinator will provide each party with a copy of the list of witnesses, identification or copies of documents or information submitted by each party.
- Pre-hearing meetings. The Title IX Coordinator will schedule individual pre-hearing meetings with all parties. At the meeting the Title IX Coordinator will review hearing procedures, complaint of alleged sexual misconduct, and will review the list of witnesses and pre-hearing submissions.
- To ensure an impartial hearing, no panel member may have had prior involvement in the investigation of the complaint or be in a direct or indirect subordinate position to either party. Also, a panel member may remove him or herself from the panel for a particular case if he or she feels rendering of an objective decision is not possible due to a personal relationships with any of the parties involved. A complainant or accused individual can also highlight such a conflict of interest and request that a panel member be removed. In such an event, the Title IX Coordinator shall appoint an appropriate member to the panel for hearing that particular complaint. Any panel member who cannot attend a particular hearing for a compelling reason must be replaced for that hearing by an appropriate member appointed by the Title IX Coordinator.
- Hearings involving charges of sexual misconduct will be closed to the University community-at-large and the public. In addition to the Hearing Panel, the complainant and the accused individual, others present at the hearing may include: a) one advisor each for the complainant and accused individual, b) witnesses called by the complainant and the accused individual, c) witnesses called by the Hearing Panel, and d) legal counsel for either party. Legal counsel may not address the Hearing Panel but may offer private consultation as the hearings proceed. Should the legal counsel for either party attempt to address the Hearing Panel, the process described herein is suspended. Ultimately, each party involved in the formal process has the right to bring an advisor, to call a reasonable number of witnesses, and to be present during the entire hearing. All persons attending must agree to maintain confidentiality regarding the proceedings.
- The testimonies of both the complainant and the accused individual shall be heard by the Hearing Panel. The testimony of witnesses offered by the complainant and the accused individual will also be accepted. The Panel may also hear testimony from parties who may have relevant information for the case, but only after notifying the complainant and the accused individual at least three working days prior to the scheduled hearing as to the names of such parties. Evidence of prior disciplinary action involving allegations of sexual misconduct of the accused individual may be considered by the Panel but the prior sexual activities of either the complainant or the accused individual which are not relevant to the issue before the Panel, as determined by the Title IX Coordinator, will not be considered.
- In the absence of good cause, as determined by the Chair in his or her sole discretion, the parties may not introduce witnesses, documents, or other evidence at the hearing that were not provided to the Chair by this deadline. The parties are also responsible for the attendance of their witnesses at the hearing.
- If, at any time prior to the hearing, the accused student elects to acknowledge his or her actions and take responsibility for the alleged Sexual Misconduct, he or she may request that the Chair propose a resolution to the charges and a sanction and, with the consent of the complainant, resolve the complaint without a hearing.
- Upon request from either party, the university will arrange for hearing processes in which complainants and accused individual can be separated from each other during the hearing.
- The accused student and complainant shall not be permitted to question the each other directly. The accused student and complainant must direct questions to hearing panel chair, who will repeat the questions to the complainant or accused individual. If complainant is participating in the process via video conferencing, the Title IX Coordinator will request questions in advance of the accused student entering the hearing room process.
- Pre-Hearing Discussion. Once a hearing panel member has been named to the panel, he or she may not discuss the merits of the complaint. The Chair will provide the hearing panel with a copy of the Notice of Hearing, the investigation report, and the list of witnesses submitted by the parties with an instruction to avoid discussion of the merits of the complaint.
- The hearing will not follow a courtroom model, and formal rules of evidence will not be observed. The Chair will determine the order of the witnesses and resolve any questions of procedure arising during the hearing. The parties are responsible for ensuring that their proposed witnesses are present. The Board will review in advance of the hearing all the written materials provided to them by the Chair. The parties will have received or been provided the opportunity to review these materials prior to the hearing. The parties will be expected not to repeat undisputed details or non-material circumstances that would merely duplicate the written materials. If the panel determines that unresolved issues exist that would be clarified by the presentation of additional evidence, the Chair may recess the hearing and reconvene it in a timely manner to receive such evidence. A recess may not be based on the failure of witnesses to appear.
- The accused student has the option not to testify; however, the exercise of that option will not preclude the panel from the hearing process and determining the complaint on the basis of the evidence presented.
- The evidence of alleged Sexual Misconduct will be evaluated under a "preponderance of the evidence" standard, meaning that the evidence shows that it is "more likely than not" that the accused student violated this policy.
Findings, conclusions, and recommendations of the Hearing Panel must be based on a preponderance of the evidence presented and shall be the result of a majority vote of the Hearing Panel. In determining whether alleged conduct constitutes sexual misconduct, the Hearing Panel will look at the facts and records of the case as a whole and at the totality of the circumstance, such as the nature of the sexual misconduct and the context in which the alleged incident or incidents occurred.
If the accused is a student, FERPA regulations prevent disclosure of any discipline or penalty imposed. If evidence supports the finding that sexual misconduct has taken place, the recommended disposition is to be appropriate and reasonable according to the merits of the case, and may include censure, probation, educational experience, separation (suspension) and/or dismissal.
Following review of the Hearing Panel, the chair will communicate findings and sanctions in writing to the complainant and the accused individual concurrently within ten (10) calendar days following the conclusion of the hearing (or a longer time if the chair determines that circumstances dictate the need). Final outcome communications will be copied to the Title IX Coordinator and the Office of Student Conduct.
The written request for an appeal by either the accused or complainant must be submitted to the Vice President of Student Life within five business days following notification of the findings of the Hearing Panel. An appeal may be submitted for one of the following reasons: insufficient information that a policy was violated; a serious procedural error in resolving the case; and/or sanction or sanctions are inappropriate for the violation. Within seven business days of the appeal hearing, the Vice President for Student Life will provide to both parties, concurrently, and to the Title IX coordinator a written decision. The decision of the Vice President of Student Life is final, and there is no further appeal following the Vice President of Student Life’s decision.
Sanctions imposed by the Hearing Panel are not effective until any timely appeal of the decision is resolved. However, if it is advisable to protect the welfare of the complainant or the campus community, the Hearing Panel may include in its findings letter that any probation, suspension, or expulsion or appropriate sanctions be effective immediately and continue in effect until such time as the Vice President of Student Life may otherwise determine. The Vice President of Student Life also may allow the student to attend classes or other activities on a supervised or monitored basis, or make such other modifications to the sanctions during the appeal evaluation.
Informal and formal sexual misconduct case records will be kept for a period of ten years. Sexual misconduct case records involving faculty members or staff employees will be kept in the Personnel Office and sexual misconduct case records involving students will be kept in the Office of Student Conduct.