PRO 5.440 Sexual Misconduct

1. The college will maintain, publish, and disseminate to incoming students and new employees, and make available to all other interested parties, the college’s sexual misconduct prevention and awareness programs. These programs shall include: a statement that the college prohibits dating violence, domestic violence, sexual assault, and stalking, and includes definitions of these terms; the definition of “consent” in reference to sexual activity, a description of safe and positive options for bystander intervention, information on risk reduction, and information on the college’s policies and procedures should a sex offense occur.
2. The college shall provide ongoing sexual misconduct prevention and awareness information for students and employees.
3. The college will conduct prompt, fair, and thorough investigations of allegations of sexual misconduct, whether committed by students, employees, or any other persons, regardless of sexual orientation or gender identity, engaged or present under the care, authority, and jurisdiction of the college. Please refer to Board Policies POL 6.125 Rights and Responsibilities of Students (for students), POL 5.055 (for employees) for detailed descriptions of institutional disciplinary proceedings, and sanctions forthcoming from a finding of culpability. Individuals neither enrolled nor employed by the college will be treated under relevant provisions of contract and law.
4. Remedies and protective measures for alleged victims, while providing all due consideration for the due process rights of the alleged perpetrator(s), and depending in part on the nature and severity of the alleged violation, include, but are not limited, to: prohibition of any but “business necessity” communications; prohibition of any and all communications; campus escort; physical separation, with alternative class or work space or schedules offered the alleged perpetrator; temporary suspension, administrative leave, or barring of the alleged perpetrator from college grounds and activities. The college will provide prompt assistance by the provision of contact information for trained individuals who can provide an immediate response in a crisis situation, (e.g. obtain needed resources, explain reporting options, and help navigate the reporting process), provide contact information for security personnel, law enforcement, and responsible college officials (e.g. the Title IX Coordinator), and identify health care options, ensuring the victim is aware of options for treatment of injuries, preventative treatment for sexually transmitted diseases, and preservation of evidence. The complainant will be notified of the right to file a criminal complaint. Professional counseling is available to all students and employees involved. An explanation of the college’s procedures is available to all participants. Retaliation by any party against another is prohibited and will be investigated and addressed as a separate violation.
5. The college encourages victims and observers of sexual misconduct to talk to somebody about what happened – so victims can get the support they need, and so the college can respond appropriately. All direct, compensated employees of the college are considered to be “responsible employees,” and upon report the victim has the right to expect the college to take prompt and appropriate steps to investigate what happened, and to resolve the matter promptly and equitably. To the extent possible, information reported to a responsible employee will be shared only with people responsible for handling the college’s response to the report. If the victim or observer wishes anonymity, the college’s Behavioral Intervention Team (BIT) Form is available at https://www.kirtland.edu/bit  If the victim discloses an incident to a responsible employee but wishes to maintain confidentiality, or requests that no investigation into a particular incident be conducted, or disciplinary action taken, the college must weigh that request against the college’s obligation to provide a safe, non-discriminatory environment for all students, including the victim. The college’s Behavioral Intervention Team will evaluate requests for confidentiality using a range of factors, including but not limited to the following:

1. The risk that the alleged perpetrator will commit additional acts of sexual or other violence, such as:
   a.   whether there have been other sexual violence complaints about the same alleged perpetrator;
   b.   whether the alleged perpetrator has a history of arrests or records from a prior school indicating a history of violence;
   c.   whether the alleged perpetrator threatened further sexual violence or other violence against the victim or others;
   d.   whether the sexual violence was committed by multiple perpetrators;
2. whether the sexual violence was perpetrated with a weapon;
3. whether the victim is a minor (the college will inform and obtain consent from the parents);
4. whether the College possesses other means to obtain relevant evidence of the sexual violence (e.g., security cameras or personnel, physical evidence);
5. whether the victim’s report reveals a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group. The presence of one or more of these factors could lead the College to investigate and, if appropriate, pursue disciplinary action. If none of these factors is present, the College may well respect the victim’s request for confidentiality.If the College determines that it cannot maintain a victim’s confidentiality, the College will inform the victim prior to starting an investigation and will, to the extent possible, only share information with people responsible for handling the College’s response. Compliance with these provisions does not constitute a violation of section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly known as the Family and Educational Rights and Privacy Act of 1974 (FERPA).

   If the College honors the request for confidentiality, a victim must understand that the College’s ability to meaningfully investigate the incident and pursue disciplinary action against the alleged perpetrator(s) may be limited.

6. Employees of the college have an affirmative duty to report a breach of confidentiality, harassment or sexual misconduct, a request for disability accommodation, or a credible threat of violence. Reporting may be made by filing a BIT Referral form, available on both the college website and MyKirtland Forms Central at: https://publicdocs.maxient.com/incidentreport.php?KirtlandCC or to human resources (ext. 271 or 239), or student services (ext. 248 or 289). Sexual misconduct may be reported to any employee of the college. If a threatening individual appears potentially violent, employees are to contact campus public safety immediately (ext 355 on main campus, or local authorities at 911). Making a good faith report best serves the individuals affected, supports public safety, and gains both the reporting individual and the college a measure of protection from legal liability, while failure to do so may expose individuals to harm or loss of access, and the knowing employee to discipline and legal liability.

Definition of Terms related to Sexual Misconduct

Awareness Programs – Information provided to enhance awareness of the issue of sexual misconduct, and to enable individuals to protect themselves, or take appropriate action if they, or someone of which they know, are a victim of sexual misconduct.

Bullying – Is repeated and/or severe aggressive behavior which a reasonable person would infer as likely to intimidate or intentionally hurt, control, or diminish another person, physically or mentally, and which is not speech or conduct otherwise protected by the 1^st Amendment or legal statute.

Bystander Intervention – Bystander (also referred to as witnesses or defenders) intervention is an important component of sexual violence prevention. The college makes training and resources available to persons seeking to intervene in or report perceived sexual misconduct.

Consent – Consent is informed, knowing and voluntary. It is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words and actions create mutually understandable permission regarding the conditions of sexual activity. Consent to one form of sexual activity does not imply consent to other forms of sexual activity and previous relationships or consent does not imply consent to future sexual acts. Consent cannot be obtained by use of physical force, compelling threats, intimidating behavior or coercion. Consent cannot be given by someone known to be – or reasonably should be known to be – mentally or physically incapacitated. In order to give consent, one must be of legal age and relationship.

Dating or Domestic Violence – Violence committed by a person who is or has been in a social or legal relationship of a romantic or intimate nature with the victim.

Disciplinary Proceeding – A timely proceeding in which impartial college personnel will hear the statements of the accuser, the accused, witnesses, and investigators, and evaluate the facts of the matter based on preponderance of the evidence. Their recommendation will be based upon the facts of the matter as applied to the relevant policy, contract, or law, and provided within one (1) business day following the conclusion of the proceeding to the appropriate responsible college official for their decision as to sanction.

Disciplinary Result – The decision of the responsible college official charged with the administration of the relevant college policy, contract, or assignment of the president. The accuser and the accused shall be sent concurrent notification of the result, in writing, and any available appeal procedures.

Non-consensual sexual contact – Any intentional sexual touching, however slight, with any object by an individual upon another individual without consent. Sexual touching means intentional contact with the breasts, buttock, groin, or genitals or touching another with any of these body parts, or making another touch a person or themselves with or on any of these body parts; any intentional bodily contact that a reasonable person would construe as being in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.

Non-consensual sexual intercourse – Any sexual intercourse (anal, oral or vaginal), however slight, with any object by an individual upon another individual without consent. Intercourse, however slight, means vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object, tongue or finger, and oral copulation (mouth to genital or genital to mouth contact).

Primary and Ongoing Prevention Programs – The college’s programs to educate students, employees, and others on identifying, reporting, and avoiding sexual misconduct.

Retaliation – Taking action that substantially harms, whether personally, socially, or professionally, or what a reasonable person would interpret as deliberately creating significant emotional distress in another individual, for the purpose of punishing for, and/or having the effect of inhibiting further, the exercise of their right to complain or to seek grievance.

Risk Reduction – Personal strategies for identifying and avoiding high risk situations through education and access to resources.

Sexual Assault – Any type of sexual contact or behavior that occurs without the explicit consent of the recipient, irrespective of gender, including, but not limited to, non-consensual sexual intercourse or attempted intercourse, non-consensual sexual contact, child molestation, and incest as defined under the laws of the state in which perpetrated.

Sexual Coercion – The act of using pressure, alcohol or drugs, or force to have sexual contact or intimate viewing with or of someone against his or her will, and includes persistent attempts to have sexual contact or intimate viewing with or of someone who has already refused.

Sexual Exploitation – When one or more individuals take non-consensual or abusive sexual advantage over others for their own advantage or benefit.   This action may include prostituting another individual, the sharing or publication of sexually explicit photos without the individuals consent (with or without pecuniary benefit), engaging in or enabling voyeurism, or knowingly transmitting an STI or HIV to another individual.

Sexual Harassment – unwelcome verbal, non-verbal or physical conduct, including sexual violence, when:

1. Submission to such conduct is made a term or condition of employment, education, or participation in a college activity, or
2. Submission to or rejection of such conduct is a factor in a decision affecting employment, education, or participation in a college activity.

Sex-based harassment – Unwelcome verbal, non-verbal or physical conduct based on sex or sex-stereotyping, that is sufficiently serious (severe, persistent or pervasive) to deny or limit benefits or opportunities of college programs or activities. Examples of sex-based conduct may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping. Sex-based discrimination may include harassment either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity.

Stalking – The act of repeatedly following, observing, communicating, or maintaining proximity, physically or virtually, that is unwanted by the person being followed, observed, contacted, or approached, is not within the necessary and proper scope of activity of the person performing the act, and which would cause a reasonable person to fear for their safety or the safety of others, or to suffer substantial emotional distress.

Voyeurism or Intimate Viewing – The deliberate and knowing action of observing or listening to other people in a state of undress or intimate behavior, without their consent, directly or by technical means, and not in the course of an authorized and lawful sexual misconduct investigation.

Adopted August 2015
Revised September 22, 2016

To view the policy, go to POL 5.440 Policy for Sexual Misconduct