Policy Against Sexual Misconduct
SEXUAL MISCONDUCT INTRODUCTION
Pacific community members shall be able to pursue their interests in a safe and respectful environment free from any form of sexual misconduct. The University will not tolerate such acts against its members, will evaluate known incidents of alleged sexual misconduct, and, when appropriate, apply student conduct action.
Violations of the Sexual Misconduct Policy are forms of sexual harassment, which constitute prohibited sex-based discrimination, under Title IX of the Education Amendments Act of 1972 and other public laws and their associated regulations. University of the Pacific addresses Sexual Misconduct Policy violations as forms of prohibited gender-based discrimination not only as violations of the Student Code of Conduct, but also as a gender-based discrimination grievance through the Student Conduct Review process. Therefore, the process of review by the Student Conduct Review Board is Pacific's gender-based discrimination grievance procedure under Title IX.
This policy pertains to incidents of sexual misconduct between students or when the alleged perpetrator is a student. Alleged victims may be of any gender or sexual orientation. This policy defines sexual misconduct and the activities that constitute a violation; identifies procedures for responding to incidents; outlines options for reporting alleged violations; and explains the student conduct hearing process for alleged violations. In instances where a student asserts that a faculty or staff member has engaged in sexual misconduct, a student should make a report with the Office of Human Resources or alert the Director of Judicial Affairs who will assist the student in making a report.
Reporting is the only way the University can take action against an alleged violator of the policy. Students may choose to file a report of alleged sexual misconduct at any point in time; however, anyone that is made aware of an alleged assault is strongly encouraged to report incidents to appropriate University officials as soon as possible. Reporting within 72 hours will help ensure that a student receives appropriate medical attention and emotional support. Timely reporting will also aid in the collection and preservation of potential evidence. In order to provide the level of care to reporting of such events and to avoid any failures of communications, the University expects that a student’s reporting of alleged incidents of sexual misconduct should include an electronic, email, or in-person report to a University staff member who is at the director or higher level in administration.
The University encourages victims of sexual misconduct to report it to University officials, but recognizes that some victims are hesitant to report to University officials because they fear that they themselves may be accused of policy violations, such as underage drinking at the time of the incident. It is in the best interests of our community that as many victims as possible choose to report to University officials. To encourage reporting, the University pursues a policy of offering victims amnesty from policy violations related to the incident.
The University reserves the right to take whatever measures it deems necessary in response to an allegation of sexual misconduct in order to protect students’ rights and personal safety. Such measures include, but are not limited to, modification of living arrangements, interim suspension from campus pending a hearing, and reporting to the local police. Prosecution by the criminal justice authorities is not a requirement for the student conduct process to be initiated.
Not all forms of sexual misconduct will be deemed to be equally serious offenses, and the university reserves the right to impose differing sanctions, ranging from verbal warning to dismissal, depending on the severity of the offense. The university will consider the concerns and rights of both the complainant and the person accused of sexual misconduct when making determinations.
Sexual misconduct offenses 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)
· Sexual Exploitation
11.1. Sexual Harassment
Gender-based verbal or physical conduct that unreasonably interferes with or deprives someone of educational access, benefits, or opportunities.
Three Types of Sexual Harassment
11.1.1. Hostile Environment includes any situation in which there is harassing conduct that is sufficiently severe, pervasive and objectively offensive that it alters the conditions of education or employment, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint.
Consideration is given to the following:
· the frequency of the conduct;
· the nature and severity of the conduct;
· whether the conduct was physically threatening;
· whether the conduct was humiliating;
· the effect of the conduct on the alleged victim’s mental or emotional state;
· whether the conduct was directed at more than one person;
· whether the conduct arose in the context of other discriminatory conduct;
· whether the conduct unreasonably interfered with the alleged victim’s educational or work performance; or
· 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:
· whether the speech or conduct deserves the protections of academic freedom.
11.1.2. Quid pro quo sexual harassment exists when there are:
· unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; and
· submission to or rejection of such conduct results in adverse educational or employment action.
11.1.3. Retaliatory harassment is any adverse employment or educational action taken against a person because of the person’s participation in a complaint or investigation of discrimination or sexual misconduct.11.2. Non-Consensual Sexual Intercourse ‑ (stranger/non-stranger rape) 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, as defined by this policy. Silence does not constitute consent.
11.3. Non-Consensual Sexual Contact (sexual battery) is:
· any intentional sexual touching,
· however slight,
· with any object,
· by a man or a woman upon a man or a woman,
· without consent as defined in this policy. Silence does not constitute consent.
11.4. Sexual Exploitation
Occurs when a student 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:
· prostituting another student;
· voyeurism, non-consensual photography, video or audio-taping of sexual activity, individuals dressing or undressing, showering or engaged in other behavior considered private
· going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex);
•· knowingly transmitting an STI or HIV to another student.
*as defined in this policy
11.5.1. Sexual activity shall not take place unless consent is freely given. Freely given consent requires that the participants are fully conscious; are equally free to act; have clearly communicated a mutually understood, sincere desire to engage in a specific sexual activity; and are free to cease ongoing consensual activity at any time.
11.5.2. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent.
11.5.3. Consent and/or non-consent to sexual activity may occur through both verbal and/or non-verbal communication. Participants engaged in sexual activity should not make assumptions about the activities in which the other person wants to engage. This is especially important when those assumptions are based on non-verbal communication.
11.5.4. Consent to one form of sexual activity cannot imply consent to other forms of sexual activity. Consensual participation in a sexual activity shows consent to that specific activity, but does not necessarily show consent to additional activity of a longer or more intense nature.
11.5.5. Previous relationships or consent cannot imply consent to future sexual acts.
11.5.6. Consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion.
11.5.7. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that he or she does not want sex, wants to stop, or does not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
11.5.8. In order to give consent, one must be of legal age, 18 years old.
11.5.9. If you have sexual activity with someone you know to be--or should know to be-mentally or physically incapacitated (by alcohol or other drug use, unconsciousness, or blackout), you are in violation of this policy. Incapacitation is a state where one cannot make a rational, reasonable decision. When incapacitated, one lacks the ability to know or understand critical elements of a decision about sexual interaction --who, what, when, where, why, or how.
11.5.10. This policy also covers someone whose incapacity results from mental disability, sleep, shock, involuntary physical restraint, or from the taking of a "date-rape" drug.
Possession, use and/or distribution of any substance including Rohypnol, Ketomine, GHB, Burundanga, etc., is prohibited. Administering one of these drugs to another student for the purpose of inducing incapacity is a violation of this policy. More information on these drugs can be found at www.911rape.org/
• Use of alcohol or other drugs will never function to excuse behavior that violates this policy.
11.6. Sexual Activity includes:
• Intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.
• Intercourse however slight, meaning vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object, tongue, or finger, and oral copulation (mouth to genital contact or genital to mouth contact).
11.7. Sanction Statement
11.7.1. 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 dismissal, depending on the severity of the incident, and taking into account any previous campus conduct code violations.*
11.7.2. Any student found responsible for violating the policy on Non-Consensual Sexual Intercourse will likely face a recommended sanction of suspension or dismissal.*
11.7.3. Any student found responsible for violating the policy on sexual exploitation or sexual harassment will likely receive a recommended sanction ranging from warning to dismissal, depending on the severity of the incident, and taking into account any previous campus conduct code violations.*
*The conduct officer or board reserves the right to broaden or lessen any range of recommended sanctions in the complaint of serious mitigating circumstances or egregiously offensive behavior. Neither the initial hearing officer or review board nor any appeals committee or officer will deviate from the range of recommended sanctions unless compelling justification exists to do so.
For emergency assistance, the student may contact:
· Pacific Student Victim Advocate - 209.403.0250
· Counseling Services 209.946.2315 x2
· Residence Director On-Call 209.401.9854
· Greek Residence Director On-Call 209.479-6014
· Department of Public Safety 209.946.3911
· Women’s Center of San Joaquin County 209.465.4997. The Women’s Center of San Joaquin County, which serves males as well as females, has a 24-hour rape crisis advocate who can offer assistance.
Medical Attention— The student should seek immediate medical attention at San Joaquin County General Hospital (209.468.6000) within 72 hours of the assault. The medical exam includes checking for injuries, screening for sexually transmitted infections, gathering evidence, providing medications with follow-up care, and preserving a legal chain of command of the evidence. Evidence collected during the exam will be preserved in the event the student decides at a later point to press charges. Filing a police report at the hospital will ensure the student is not charged for any treatment. The student may ask for an advocate (both are confidential) from either the Women’s Center of San Joaquin County (209.465.4997) or the University’s Victim Advocate (209.403.0250) to offer support at the hospital. Cowell Wellness Center is available to provide follow-up non-evidentiary medical tests and medications (209.946.2315x1).
Preserving Evidence— Students should attempt to preserve evidence at the scene in the following ways: leave the scene undisturbed to allow professionals to collect the evidence; if not able to leave the scene undisturbed the student may collect bedding and/or other loose fabrics in the immediate area of the assault which should be stored in a paper bag for evidence; if a prophylactic device of any type was used and remains at the scene of the incident, the student should attempt to retrieve it and/or any other debris and preserve it in a paper bag (not plastic); do not bathe, urinate, douche, brush her/his teeth, drink liquids, or change clothing before seeking medical attention at a hospital; if the student has already changed clothes, she/he should bring all the original clothing to the hospital in a paper bag; all evidentiary materials should be placed in separate paper bags to prevent cross contamination of evidence. Plastic bags damage evidence.
University Reporting— Pacific takes incidents of sexual misconduct very seriously and encourages students to report all incidents. Students are free to report instances of sexual misconduct to the University regardless of whether or not they choose to press formal charges with law enforcement.
In all situations, Pacific’s goal is to treat all complainants (alleged victims) with sensitivity and fairness while also ensuring that the respondent (alleged perpetrator) receives appropriate due process. Both the complainant and the respondent are entitled to a support person throughout the reporting, investigation and hearing process. Please refer to Modified Hearing Procedures for Victim/Witness Protection (Section 44) for more information.
If a student discusses the incident with a University staff, or faculty member, with the exception of therapists from Counseling Services and the Student Victim Advocate, who are confidential resources, the staff member or faculty member must contact the Student Victim Advocate to file an Anonymous Report of sexual misconduct, which will be forwarded to Public Safety, as required by the Clery Act.
Options for Filing a Report
Confidential Report of Sexual Misconduct (Anonymous Report) – Any student, staff, or faculty member may file an anonymous report. The report form need not include the name of the complainant nor the accused unless the student chooses to include them. Initials of the complainant should be included to be able to keep a record of the report in the event the complainant wishes to file a formal report at a future time. Filing an anonymous report will assist the University in compiling crime statistics. It will not result in a police investigation. Copies of the report form are available online and can be found on the Student Victim Advocate site found on the Public Safety main page.
Formal Reports- Students may elect to file a formal report through the Student Victim Advocate or Public Safety. A formal report will include the names of the student filing the report and will include the name of the accused, if known. If a student chooses to file a formal report, then either or both of the following procedures may result:
a) University Student Conduct Process- The Director of Judicial Affairs will review the referral to determine if there is sufficient evidence to file a complaint against a student for a violation of this Code and to hold a student conduct hearing or engage in alternative complaint resolution options.
b) Criminal Justice Process- The report may lead to a review by the criminal justice system, whether or not the University judicial system is reviewing the matter. Students may choose to report these incidents to the University Public Safety Department or to any other law enforcement agency. The Student Victim Advocate or Public Safety Officer can assist in the reporting process within the criminal justice system.
c) Civil Suits- A victim can file a civil suit for monetary damages against an alleged perpetrator for causing physical or emotional injuries, regardless of the outcome of the student conduct process or criminal prosecution.
Student Victim Advocate: (209.403.0250). Trained to support and assist any student who has experienced a sexual assault, harassment, or crime. The Student Victim Advocate can explain options regarding medical care, academic concerns, housing, counseling, student conduct process, and filing a report.
Reassignment of Rooms & Classes: When a student alleging a sexual assault or sexual harassment and the accused attend the same class or reside in the same campus residence or in close proximity to one another, the student may make a request through the Student Victim Advocate for consideration of immediate reassignment. The Student Victim Advocate will consult with the appropriate areas and request that changes be made if possible regarding class changes. A safe room is available on a temporary basis through the Student Victim Advocate.
Education and Counseling: The University of the Pacific offers educational programming to students, faculty, and staff on sexual assault and sexual harassment. The University provides medical treatment and counseling to students who may have been a victim of sexual misconduct.
Portions of this policy have been written or revised by the National Center for Higher Education Risk Management (NCHERM), and are used with permission. www.ncherm.org