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WHAT IS SEXUAL MISCONDUCT?
Sexual misconduct is a form of physical sexual harassment that includes a range of behaviors from unwanted touching and fondling to acts of sexual assault or rape. Any genital or oral penetration, however slight, by a part of the respondent's body or by an object without the consent of the complainant is sufficient to constitute sexual assault, and such acts are subject to criminal charges.
Sexual misconduct is defined as engaging or causing another person to engage in a sexual act through force, threat of force or without the person's consent. Consent must not be impaired by mental or physical condition, by advanced age or by any drug or intoxicant, regardless of who administered the drug or intoxicant, even if it was self-administered. In sexual encounters, each participant has a duty to communicate clearly-in words or actions-the desired level of intimacy. Consent is not presumed.
HOW DOES WITTENBERG DEFINE SEXUAL HARASSMENT?
Sexual harassment may be verbal, visual or involve physical contact. It can be overt, such as a professor's suggestion that a person could get a higher grade or a supervisor's offer to an employee for a higher salary in return for submission to sexual advances. The suggestion or advance need not be direct or explicit - it may be implied by the conduct, circumstances and relationship of the individuals involved. Sexual harassment can also consist of persistent, unwanted attempts to change a professional or educational relationship to a sexual one. It can range from abusive remarks about individual persons to sexual misconduct including serious criminal abuses such as assault.
A person does not have to be the target of sexual harassment to be sexually harassed. The harassment of others can be so offensive, demeaning or disruptive as to constitute a hostile work environment, even though the harassment is not specifically directed at the observer.
Although no exhaustive listing of behaviors that constitute sexual harassment is possible, some examples could include: unwelcome sexual flirtations or advances; repeated sexually oriented kidding, teasing, joking and flirting; verbal abuse of a sexual nature; graphic commentary about an individual's body, sexual prowess or presumed sexual deficiencies; derogatory or demeaning comments directed to one's gender; derogatory or demeaning comments about sexual orientation; leering, whistling, touching, pinching or brushing against another's body; touching of an erogenous zone, offensive, crude language; displaying of pornographic materials on personal computers; and displaying objects or pictures that are sexual in nature. All such conduct can be threatening and coercive and may create a hostile or offensive working environment that is not conducive to teaching, learning and working.
Sexual harassment also may consist of patterns or episodes of speech or other behavior that create a hostile or offensive environment for individuals based on their gender or sexual orientation; it may or may not involve unwanted sexual attention.
The university will determine that a behavior or series of behaviors constitutes sexual harassment when one of the following four criteria exists:
- Submission to such behavior is made either explicitly or implicitly a term or condition of a person's employment or education; is used as the basis for academic or employment decisions affecting the person; or is a condition to participate in a university activity;
- The behavior has the purpose or effect of creating a threatening, hostile or offensive environment;
- The behavior unreasonably interferes with an individual's work, academic performance or living environment or otherwise interferes with required tasks, career opportunities or learning;
- The behavior causes a person to engage in a sexual act through force, threat of force, or without the person's consent.
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INITIATING A COMPLAINT THROUGH WITTENBERG
Wittenberg strives to provide an environment that promotes and supports positive, effective resolutions for any kind of complaint or concern. A person wishing to make a complaint about sexual harassment or sexual misconduct has the following options under this policy:
(1) Informal Resolution - does not require a signed complaint
(a) Direct--by the complaint directly with the respondent
(b) Assisted by a university official as set forth
(2) Formal Complaint - requires submission of a signed written complaint
(a) Assisted Resolution
(b) Adjudication
(3) Seek Assistance Outside the University
Anyone who believes he or she has been sexually harassed or assaulted may also elect to make a complaint outside the university by initiating civil and/or criminal charges against the offending party or parties. If you request, the university will assist you in reporting an assault and filing a criminal charge. You should be aware that the Ohio criminal and civil justice systems and the Wittenberg process for investigation, adjudication and discipline are separate and distinct ways in which to seek redress. If any party initiates and civil, criminal or agency proceeding, the university reserves the right to initiate, to suspend, to terminate or to continue the internal proceeding.
- Informal Resolution
Any member of the university community who believes he or she has been subjected to harassment may try to resolve the matter informally. The goal of an informal resolution is to stop any harassment that has occurred or is occurring without pursuing a fact-finding process or seeking sanctions. This can be done directly or with the assistance of a university official.
If an attempted direct resolution does not bring a satisfactory result, one may initiate a formal complaint.
Direct
This option means that the person who believes he or she has been subjected to harassment directly communicates with the person doing the harassing. This can be done through a conversation or by written communication. The communication should include a description of the offensive behavior and a request that such a behavior stop.
With the Assistance of the University
Under informal resolution, the role of the university official is to help stop the harassing behavior. At this point, the role of the university official does not include mediation or adjudication. A person seeking help with the direct resolution process may consult with one of the following persons:
- Associate Dean of Students
- Assistant Provost for Academic Services
- Chair of the SCGB
- Director of Human Resources
- Assistant Director of Human Resources for Benefits and Recruiting
- Associate Director of Athletics
- Dean of Students (except in student-to-student cases)
These university officials can talk with you about options for handling a direct resolution and also can provide guidance on the procedures for filing a formal complaint. Upon request and at their discretion, such persons may serve as a go-between with you and the offender and may do so without revealing your name.
University officials may not assist with an informal resolution when the complaint falls under the definition of sexual assault. All complaints concerning sexual assault are handled through the formal complaint process. Once a university official recognizes that the complaint cannot be resolved by direct resolution, the official must remove himself or herself from the direct resolution process.
- Formal Complaint Procedures
Two mechanisms:
1. Assisted Resolution
2. Adjudication
The university believes that for a variety of reasons including privacy, speed of the resolution and a return to normal relations, it may be in the interest of both the complainant and the respondent to resolve the complaint through Assisted Resolution rather than Adjudication. Thus, unless the complainant or respondent specifically requests for resolution through adjudication, the university will attempt to resolve formal complaints through Assisted Resolution.
Experience has shown that Assisted Resolution is particularly appropriate in situations where there are different perceptions about whether consent was given or where thoughtless or unintentional behavior has caused distress.
Initiating the Complaint
All formal complaints must be written, signed and filed with the Department of Human Resources, which will be the Office of Record for all sexual conduct complaints. One who wishes to file a formal complaint may do so by contacting any of the following university staff who are trained to serve as intake officers for complaints:
- Associate Dean of Students (student-initiated complaints)
- Assistant Dean of Students (student-initiated complaints)
- Associate Director of Athletics (student-initiated complaints)
- Director of Human Resources (student-, faculty- or staff-initiated complaints)
- Assistant Provost for Academic Services (student-, faculty- or staff-initiated complaints)
The director of human resources will forward the written complaint to an appropriate university officer (which may be the intake officer) for Assisted Resolution. When the respondent is a faculty member, the director of human resources will seek the participation of the provost when presenting the complaint to the respondent.
Resolution of Complaints by Adjudication are initiated under the following conditions:
- A formal complaint has been filed and the complainant or the respondent decides to bypass the Assisted Resolution process.
- If the complaint has not been resolved by Assisted Resolution within fifteen (15) days after filing, the intake officer will declare an impasse and send all relevant records to the director of human resources for resolution by Adjudication.
- University initiated - Even if the complainant does not wish to pursue a resolution, the university may determine that the issues raised by the complainant are sufficiently serious to initiate the adjudication process.
- Resolution of Complaints by Assisted Resolution
Under Assisted Resolution, a university officer is appointed as a facilitator to help the complainant and respondent reach a mutually satisfactory resolution. The facilitator does not make a determination about whether the university's policy has been violated. Generally, the facilitator meets separately with the complainant and respondent. Examples of resolutions include an apology, counseling and education requirements, access restrictions, disciplinary action, other affirmative steps to be initiated or dismissal of the complaint.
- The director of human resources will refer complaints seeking Assisted Resolution to the following persons, according to the status of those involved:
- If the respondent is a student, to the Associate or Assistant Dean of Students.
- If the respondent is a faculty member, to a grievance officer who is a member of the faculty.
- If the respondent is any other employee, to a grievance officer who is a member of the administration or administrative staff.
- The facilitator will contact the complainant and respondent within five (5) days after receiving the complaint. The facilitator is responsible for documenting the facts as presented and will forward this information to the Hearing Panel should resolution by Adjudication become necessary.
- If the complaint if resolved by Assisted Resolution, the facilitator will forward a written report of that resolution to the director of human resources. The complainant and respondent will sign the report to signify their agreement with the resolution and to forego their rights to an adjudicated hearing for the complaint that they mutually resolved.
- If at any point the respondent or complainant rejects the Assisted Resolution process, the complaint will be returned to the director of human resources for resolution by Adjudication. In such a case, the director of human resources will send the complaint to the chair of the SCGB for resolution by Adjudication and also will attempt to present a copy of the complaint to the respondent within five (5) days after the complaint is filed.
- Resolution of Complaints by Adjudication (SCGB)
Under Resolution by Adjudication, the Chair of the SCGB appoints a Hearing Panel to determine if the respondent has violated the institution's policies concerning sexual harassment or sexual misconduct.
YOUR RIGHTS AS A SEXUAL ASSAULT VICTIM
- You have the right to seek information regarding your options for taking legal and /or administrative action.
- You have the right to be free from pressure in deciding upon the course of action you will take.
- You have the right to free and confidential counseling at the University Health and Wellness Center.
- You have the right to file criminal charges with the local law enforcement authorities, and upon request, are entitled to assistance from the University in notifying local law enforcement authorities.
- The University will assist you, upon request, in obtaining, securing, and maintaining evidence in connection with the sexual assault incident. The University will also assist you, upon request, in preserving any materials relevant to a campus disciplinary proceeding.
- The University will assist you, upon request, in avoiding unwanted contact with the alleged assailant to the extent possible, which includes an adjustment of your living or academic arrangements, if available and feasible.
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