Student Handbook

Student Sexual Misconduct Policy – updated August 1, 2008

INTRODUCTION

Pacific University is committed to providing a learning environment that affirms the dignity and inherent worth of every member of the student community.  Sexual misconduct, in any form, is contrary to the very goals and mission of the University and will not be tolerated.  An individual found responsible of violating the University policy on sexual misconduct will be subject to disciplinary action.

POLICY

Sexual misconduct violates the standards of conduct expected of every student member of the University community and is strictly prohibited by The Student Code of Conduct ( see www.pacificu.edu/studentlife/handbook).  In reported cases of sexual misconduct, the person making the report must offer credible evidence that opens the question of whether voluntary consent existed.  It then becomes the responsibility of the accused student to demonstrate that such consent did exist.  The University is charged with determining whether voluntary consent existed, not in determining the precise details of the offense.  If it is found that behavior took place without voluntary consent, then a violation of the Sexual Misconduct Policy occurred.  The other evidence at the hearing is used to determine the most appropriate outcome to a violation. 


A note about consent - in the absence of mutually clear words or actions (a  true and mutual understanding of what is to be done, where, with whom, and in what way), it is the responsibility of the initiator, or the person who wants to engage in the specific sexual activity to make sure that he or she has voluntary consent from his/her partner(s). Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent must be obtained by the initiator of the behavior at every stage of sexual interaction. 
Because sexual misconduct between students often occurs in the context of the use of alcohol or other controlled substances, it is important to stress the critical significance of clear communication, consent, and levels of responsibility for behavior while under the influence. As Pacific's Alcohol Policy clearly states, individuals are responsible for their behavior when they are drinking, and drinking is never an excuse for behavior. This applies to all students. However, under theories of consent, when an individual is intoxicated and unable to communicate consent or lack thereof, that individual can no longer be responsible for decisions about sexual activity because he or she is mentally incapable of giving or denying consent.  Therefore, if a student has sexual contact with another student who does not have the necessary mental capacity to consent to this behavior, this sexual contact is considered sexual misconduct by the University. 

DEFINITIONS

Sexual Misconduct -
Rape, sexual assault, or forced or unwanted sexual contact of any kind, or threat of such contact, is prohibited.  Sexual contact is considered “unwanted” or without consent if clear consent is not given; if inflicted through force, threat of force, or coercion; or if inflicted upon a person who is unconscious or otherwise without the physical or mental capacity to consent.  If sexual contact is inflicted on someone who is intoxicated or impaired by alcohol or drugs, it is considered without consent.
Sexual misconduct includes but is not limited to:

Sexual misconduct includes acts of sexual exploitation.  Acts of sexual exploitation are including, but are not limited to:

Consent -
voluntary, non-coerced and clear verbal and/or nonverbal communication indicating a willingness to engage in a particular act. Consent includes an affirmative verbal response or voluntary acts unmistakable in their meaning.
Sexual Contact -
the touching of the genitalia, anus, buttocks or breast of a person or causing such person to touch the genitalia, anus, buttocks or breasts of another.

Mental Incapacitation –
a condition wherein a person is rendered incapable of appraising or controlling his/her conduct at the time of the alleged offense because of the influence of a controlled or other intoxicating substance or because of any act committed upon the person without his/her consent.

Physical Helplessness –
a condition wherein a person is asleep, unconscious or for any other reason is physically unable to communicate consent to an act.
Mental Disorder –
a condition wherein a person suffers from a mental disease or disorder that renders the person incapable of appraising the nature or the conduct of him/herself.
Conduct Officer -
A conduct officer is a full-time, professional Pacific University employee who has been specifically trained in sexual misconduct definitions, conduct procedures, due process, and fact-finding.  The conduct officer may be the conduct advisor, or is assigned by the conduct advisor from members of the Sexual Misconduct Review Board and should have no power-relationship or significant history with the accused student and/or person making the report. 
Conduct Advisor –
The conduct advisor is a specifically trained University staff member who manages the conduct process and ensures that all procedures are falling in accord with the University Code of Conduct.  The conduct advisor is an unbiased source for the process and will equally offer resources and procedural information to both the accused and the student making the report of sexual misconduct.  The conduct advisor does not have a vote in any FORMAL hearing decision, and will only conduct INFORMAL hearings if he or she can be an impartial decision-maker.  At Pacific University, the Assistant Dean of Students, or designee, serves as the Conduct Advisor.
Conduct Administrator –
The conduct administrator is a trained University staff member who manages all disciplinary administrator duties, including managing and gathering reports, recording information in files, serving as an administrative resource with the hearing board and for individual INFORMAL hearings, etc.  At Pacific University, the Student Life Administrative Assistant serves as the conduct administrator.
Sexual Misconduct Review Board -   
Faculty, staff and administrative members of the University who have been specifically trained in sexual misconduct definitions, conduct procedures, due process, and fact-finding.  Individual members may be called upon to serve as  Conduct Officers in INFORMAL hearings, or a group of three members will be asked to act as the Sexual Misconduct Review Board in FORMAL hearing.  Members serving as hearing officers should have no power-relationship or significant history with the accused student and/or the student making the report. 

OPTIONS FOR ADJUDICATION AND COMPLAINT PROCEDURES

A student may make a disclosure of sexual misconduct to any professional on the Pacific campus to seek information about resources available for support, advocacy, or conduct options (i.e. Sexual Assault Response Advocate/Campus Wellness Coordinator, RD’s, Counseling Center, Health Center, CPS, Center for Gender Equity, Student Life, Dean’s Office, etc.).  If the student making the report decides that she or he would like to pursue a University disciplinary hearing, the above listed professionals may assist the student to make contact with the Conduct Advisor or designee.  Students may also elect to make direct contact with the Conduct Advisor as their first point of contact.  (In cases where a student wishes to make a report, but is not comfortable with the Conduct Advisor, a trained designee will be named.) 
If the student making the report chooses, she or he may pursue one of the following processes for adjudication of an incident of sexual misconduct.  The student has the ability to first consult with the Conduct Advisor without providing any identifying information about who the accused might be.  However, once the name of an accused student is given, an INFORMAL or FORMAL hearing process will begin.* 
The procedures below are designed to assure fairness and a balanced process, maintain confidentiality (wherever possible), and impose appropriate sanctions on members of the student community in violation of the policy.  Two hearing options are available, INFORMAL and FORMAL, and are outlined below.
OPTIONS  
INFORMAL Hearing Process
The student making the report may choose to bring an alleged sexual misconduct incident to an INFORMAL hearing with an individually trained conduct officer. Both the student making the report and accused student will be participants in a hearing within fifteen (15) working days of notice being given to the accused student, barring any delays due to academic calendar and/or the temporary withdrawal or absence of either student, or the unavailability of impartial hearing officers, medical emergencies, etc. The hearing will be procedurally identical for both students – same location, same Conduct Officer, same preparatory materials provided, same opportunity for an advisor (see Complaint Procedures).  However, the day and time of the hearing will be different to ensure that the student making the report and accused student are NOT asked to have direct contact with one another through the process.  The two students will NOT be asked to be in the same room, at the same time, during the hearing. 
In the course of the hearing the conduct officer will speak individually with both the accused student and the student making the report.  Both the accused and person making the report will have the opportunity to read any submitted written reports regarding the incident and may speak to the information in the reports.  The Conduct Officer will also speak with all reported witnesses to the incident before rendering a decision.  INFORMAL cases cannot be appealed; removal from housing, suspension, and/or expulsion from the University cannot be imposed at an INFORMAL hearing.  A listing of potential conduct sanctions or interventions is included in the “Sanction” section of the Sexual Misconduct Policy.
After both the student who filed the report and the accused student have participated in their portions of the hearing, the Conduct Officer will decide if the accused student is responsible for a violation of the Sexual Misconduct Policy.  Just as in any University disciplinary case, decisions are made based on a “preponderance of evidence” meaning the incident was more likely than not to have happened (more than 50% chance). Lack of voluntary consent constitutes the violation.
Once the Conduct Officer renders a decision after the hearing, both students will be notified of that decision in personal meetings with the Conduct Officer or designee.  If the accused student is found in violation of the Sexual Misconduct Policy, he or she will be informed of assigned sanctions at that time. There is no appeal offered after an INFORMAL hearing.

FORMAL Hearing Process
A student filing a report may choose to bring an alleged sexual misconduct incident through a FORMAL hearing process with the Sexual Misconduct Review Board.  Both the student making the report and accused student will be participants in a hearing within fifteen (15) working days of notice being given to the accused student, barring any delays due to academic calendar and/or the temporary withdrawal or absence of either student, or the unavailability of impartial hearing officers, medical emergencies, etc. In a FORMAL hearing both the student making the report and accused student must appear before the Board, in the same room (or via closed caption video), to tell his/her side of the incident.  Both the person making the report and accused student may be questioned by the Board.  Neither the accused student nor the student bringing forward the report may question one another.  Witnesses will be brought forward and may be questioned by the Board.  The University's role is to determine whether it is more believable than not that a violation of the Sexual Misconduct Policy has occurred.  A violation has occurred if it is found that voluntary consent did not exist. A decision by the Sexual Misconduct Review Board in which a student is found in violation of the code may result in a number of sanctions including suspension and/or expulsion from the University.
The students involved in the alleged incident may challenge the composition of the Board.  The accused and the student forwarding the report will be notified of the names of those who will serve on the Board at the time the hearing is scheduled.  If either objects to any member or members of the Board, he or she must submit the reasons for objection in writing to the Conduct Advisor no less than 72 hours prior to the hearing.  The Conduct Advisor will review the objection and decide whether the Board members should or should not be replaced.  Removal from the Board will occur if the Conduct Advisor is convinced that bias or other harm could result from allowing the selected member to adjudicate the incident.   
FORMAL hearings require that all three members of the Sexual Misconduct Board are present.  Once the Board renders a decision, both students will be notified of that decision either in person at the conclusion of the hearing or in a personal meeting with the Conduct Advisor or designee.  If the accused student is found in violation of the Sexual Misconduct Policy, he or she will be informed of assigned sanctions at that time.
A decision by the Board will be made by a majority vote if a consensus is not possible.  Just as in any University disciplinary case, decisions are made based on a “preponderance of evidence” meaning the incident was more likely than not to have happened (more than 50% chance). Lack of voluntary consent constitutes the violation.
Only FORMAL hearings may be appealed to the Director of Human Resources or designee within five (5) working days of the hearing.  As a response to hearing the appeal, the Director of Human Resources, or designee, may support the original decision, overturn the original decision, or request a new hearing.  In order to move forward, all appeals must meet one or more of the four criteria outlined in this policy (see FORMAL Hearing Appeal Process). 

COMPLAINT PROCEDURES
Once the student decides how she or he wants to move forward, the Conduct Advisor, or designee, will request a written report describing the incident.  Within 48 hours, or as soon as thereafter as possible, this report will then be presented to the accused student by the Conduct Advisor and the accused will have an opportunity to submit his or her own report.  Any other related reports will be collected during this time by the Conduct Advisor (i.e. CPS report, witness reports, etc.).
The accused student may consult the Conduct Advisor for general support and information regarding options, or he or she may ask for another trained individual to act as a resource. 
Both the accused student and the student making the report have the right to review all submitted reports before the hearing.  All reports must be submitted to the Conduct Advisor within a minimum of 48 hours before the hearing.
Once the accused student has been notified, either the INFORMAL or the FORMAL hearing will be held as quickly as possible, within fifteen (15) working days of this notification.  If this timeframe cannot be met, both the accused student and the student making the report will be notified.  Only specific conditions may allow for a hearing delay including academic calendar delays and/or the temporary withdrawal or absence of either student, or the unavailability of impartial hearing officers, medical emergency, etc.  Both the accused student and the student making the report will be informed by the Conduct Advisor of the hearing format, specific charges, and related protocol. 
If the Conduct Advisor determines that the safety or well being of either the accused student or the student making the report may be compromised before or after the hearing, other residential accommodations will be provided to one or both students when appropriate.  Both students will be instructed to cease and resist all forms of contact, including third party contact, with one another before and possibly after the hearing (a “no contact” order will be in effect).  If the “no contact” instructions are violated, the student who made the contact will face disciplinary procedures and sanctions including possible immediate suspension and/or a trespass from campus. 
It is the reporting student’s prerogative whether to also report sexual misconduct to civil authorities. A report to the Conduct Advisor does not trigger a report to law enforcement authorities.  (See Violation of the Law and the Student Judicial Process.)  The University will maintain the confidentiality of the reporting student and the accused at all stages of the conduct system unless unavoidable. As required by law, however, the person making the report has a right to know the outcome of any conduct hearing involving sexual misconduct, and will be so informed by the Conduct Advisor.
In both INFORMAL and FORMAL hearings, the accused and student making the report have the right to have one non-participatory advisor or support person with him/her in any meeting with University personnel regarding the incident (note – the advisor/support person may be an attorney but may act only in an advisory role to the student). If either student utilizes an attorney as an advisor, the student must give the Conduct Advisor at least 48-hours notice.  If the student elects to be advised by an attorney, the Conduct Advisor may elect to have the University advised by University Counsel during the proceedings. 
Also, in both INFORMAL and FORMAL hearings, the hearing will be convened in a private room and will not be open to the public.  A record of the hearing (audio tape and written) will be maintained by the Conduct Administrator. 
In aFORMAL hearing there will be separate waiting rooms for the accused and the student making the report and related witnesses.  The Conduct Advisor must receive a list of all witnesses at least 48 hours before the hearing.   The Conduct Advisor must also receive any objections to the persons selected to sit as the Sexual Misconduct Board no later than 72 hours prior to the hearing.  (Meritorious objections may delay the hearing while other Board members are located.) Both the accused student and student making the report have a right to be present throughout FORMAL proceedings and will have the right to know in advance any witnesses that may come forward.   However, the student making the report and the accused student do not need to be present in the hearing room at the same time and a FORMAL hearing can be conducted via a live video feed from another location.
Any person disruptive to a hearing may be excluded from the process by the Conduct Advisor and/or a Conduct Officer.  If this person is a student, he or she will be subject to disciplinary sanctions including immediate suspension and/or lesser charges appropriate to the disruption.
All students have a right to a fair and impartial hearing.  However, a student’s failure to attend a scheduled hearing after receiving appropriate, timely notice, and without notifying the University of his or her absence, or a student’s failure to participate appropriately in the proceeding, are not sufficient reasons to halt the Sexual Misconduct Review Board and/or Conduct Officer from rendering a decision.
Just as in any University disciplinary case, decisions are made based on a “preponderance of evidence” meaning the incident was more likely than not to have happened (more than 50% chance).
Only after a finding of responsibility has been reached in either the INFORMAL or the FORMAL hearing, may prior violations of the Sexual Misconduct Policy, or of  the Student Code of Conduct or of public law that are deemed relevant be made known to decision makers who then determine appropriate sanctions.  

Sexual Misconduct Review Board -
 The Sexual Misconduct Review Board is composed of some combination of three members (either administrators, faculty, and/or staff) who have not had, and are unlikely to have, past or future relationship with either student involved.  Both men and women will comprise the board and all three must be in attendance at a FORMAL hearing.  Board members are appointed by the Conduct Advisor or designee.  Eligible faculty, staff and administrative members will be assigned according to adopted procedures for committee assignments.  The Conduct Advisor serves as the Chair of the Board during the hearing and provides administrative support and policy and protocol clarifications as needed.  The Board must hear all reported cases assigned to a FORMAL Hearing within fifteen (15) working days of notice to the accused student.  (This may be delayed if a successful objection to any of the Board members sitting on a specific case is lodged, or there are calendar delays, medical emergency, etc.) 
Board members receive comprehensive training on sexual misconduct including the role of consent, characteristics of Rape Trauma Syndrome, myths and facts about sexual misconduct, balanced and fair conduct procedures and protocols, sensitivity to diversity and culture, appropriate standards of proof and appropriate questioning standards. 

  

SANCTIONS

The following may be sanctions imposed by a Conduct Officer (INFORMAL hearings) or the Sexual Misconduct Review Board (FORMAL hearings). 

1. Warning - A notice in writing to the student that he or she has violated the Student Code of Conduct or University community standards, with language that clearly indicates the particular aspects of behavior that were at issue.
2. Loss of Privileges - Denial of specified privileges for a designated period of time.
3.  Educational Intervention – An educational task such as a research paper, interview, lecture, observation, etc. that would increase a student’s understanding of related issues of consent and/or appropriate physical boundaries.
4.  Program Development – The development of an educational program for a living and/or learning community on a relevant topic (i.e. healthy relationships, consent, effects of alcohol on decision-making, etc.).
5. Fines – Dollar amounts appropriate to the case.
6. Restitution - Compensation for property damage or loss.
7. Discretionary Sanctions - Work assignments, service to the University or other related discretionary assignments.
8. Behavioral Agreements - A written statement of behavioral expectations developed for those who have already received written warnings, or whose conduct indicates that formalized ongoing structures are beneficial.
9.  Psychological Assessment – an assessment of functioning conducted by a licensed or certified mental health professional.  Such services are available on campus and subsidized by student fees.  Should a student prefer to seek a psychological assessment off-campus, the student will be responsible for all payment for services.
10. Probation - A written reprimand for violation of specified regulations. Probation is for a designated period of time, and includes the warning of more severe disciplinary sanctions if the student is found to be in violation of any institutional regulation(s) during the probationary period.

11.  Residence Hall Relocation – The Relocation of the accused to a different living unit managed by the University.  The University reserves the right to select the new housing assignment and the student is responsible for incurring additional costs that may result from the move.


Note – the following sanctions can only be imposed via a FORMAL hearing:
12.  Residence Hall Suspension - Separation of the student from the residence halls for a definite period of time, after which the student may be eligible to return. Conditions to regain a housing assignment may be specified.
13. Residence Hall Expulsion - Permanent separation of the student from any of the living units managed by the University.
14. University Suspension - Separation of the student for a definite period of time, not to exceed one year, after which the student may be eligible to return. Conditions for re-admission may be specified.
15. University Dismissal - Separation of the student from the University, with opportunity to reapply to the University.  Conditions for re-admission may be specified.
16. University Expulsion - Permanent severance of the student from the University.

 FORMAL HEARING APPEAL PROCESS

The decision of the Sexual Misconduct Hearing Board may be appealed by either the student forwarding the report or the accused student within five (5) school or working days of the decision.  Such appeals shall be in writing, and shall be delivered to the Vice President of Student Affairs or designee. To be heard, all appeals must meet one of the four criteria listed in the code of conduct.  These criteria include:

  • To determine whether the original hearing was conducted fairly in light of the allegations and evidence presented, whether the hearing was conducted in conformity with prescribed procedures, and that the process provided a reasonable opportunity to prepare and present evidence that the Student Code was violated, and provided the respondent a reasonable opportunity to prepare and to present a rebuttal of those allegations.
  • To determine whether the decision reached regarding the respondent was based on an appropriate standard of proof - “more likely than not”, that is, whether the information presented in the case was sufficient to establish that a violation of the Student Code more likely than not occurred.
  • To determine whether the sanction(s) imposed were proportional to the violation of the Student Code which the student was found to have committed.
  • To consider new evidence sufficient to alter a decision or other relevant facts not brought out in the original hearing, because such evidence was not known, and could not have been known to the person appealing at the time of the original hearing.

The Vice-President of Student Affairs or designee will determine if an appeal meets one or more of the listed criteria.  If an appeal does meet the criteria, it will be heard by the Director of Human Resources, or designee, within five (5) school days of the student having been notified.  The Director of Human Resources, or designee, has received the same sexual misconduct training as all members of the Sexual Misconduct Review Board. Once the Director of Human Resources or designee, renders a decision, it is final and any sanctions immediately apply.

Note – Generally, sanctions will not be imposed until the appeal process has been completed.  However, in cases where the Sexual Misconduct Review Board finds an accused student in violation and determines that the student must be out of all University housing or suspended, dismissed or expelled from the University, the accused student will be temporarily suspended from living in or visiting any on-campus living environment, and he or she will be given stipulations regarding access to the University until the appeal can be completed.  Generally, in all cases wherein an appeal has been filed, both students will be required to honor a “no contact” agreement during the appeal process at least.


Violation of the Law and the Student Judicial Process
University disciplinary proceedings may be instituted against a student without regard to pending criminal charges, or civil litigation which may arise from the same situation. Proceedings under the Student Judicial Process, including the Sexual Misconduct Policy, may be carried out prior to, simultaneously with, or following civil or criminal proceedings off-campus.
The Vice President for Student Affairs, in consultation with the University Counsel, will determine the University's response when the law has been violated. Under some circumstances, the University may elect to postpone a hearing, pending the outcome of a case in the courts, but it is not obligated to do so.
A student who is disciplined, suspended or expelled from the University by the Sexual Misconduct Review Board for behavior that was also alleged to be illegal and is later found not guilty of charges by a criminal court may appeal the Sexual Misconduct Review Board ruling to the Director of Human Resources.  (The finding of the Sexual Misconduct Review Board has the possibility of remaining in force due to a lesser standard of proof being used—i.e., weight of believable evidence vs. beyond a reasonable doubt.)
When a student is charged by federal, state or local authorities with a violation of law, the University will not request nor agree to special consideration for that individual because of his/her status as a student. If the alleged offense is also involved in a proceeding of the Student Judicial Process, the University may advise off-campus authorities of the existence of the Process, and of how such matters will be handled internally within the University community.


* Important Note – Before revealing the name of the student being accused of misconduct, the reporting student should be made aware of the remote possibility that a FORMAL hearing might be required in some cases.  In cases where the Conduct Advisor, in consultation with the Vice President for Student Affairs, the Director of the Counseling Center and the University Counsel, determines there is a significant risk to the community, a FORMAL hearing may be required to adjudicate an alleged incident. For example, in the rare case where there is a clear pattern of sexual misconduct by the same student against multiple individuals, a FORMAL hearing may be required.  Where such risks to the community are presented by a student who is currently enrolled in one of the graduate/professional programs, or is about to seek admission to such a program, the Dean of the appropriate college may also be notified.