ARTICLE VII. POLICIES AND PROHIBITED CONDUCT

Violation of the Sexual Misconduct Policy, actual or threatened sexual assault.

This includes but is not limited to, unwanted sexual touching, sexual assault, rape, sexual  harassment or misconduct, making unwelcome sexual advances, or request for sexual favors.

SEXUAL MISCONDUCT POLICY 

PREAMBLE

Buena Vista University will not tolerate sexual aggression in any form. The University is committed to a campus environment, which is free from the emotional and physical threat of sexual assault. A student, staff, administrator or faculty member charged with sexual misconduct can be prosecuted under Iowa criminal statutes and/or disciplined under the University's Sexual Misconduct Policy. Buena Vista University affirms that those who bring charges forward – whether administrators, faculty, staff, or students – will be supported and will be treated with dignity and respect. Victims are strongly encouraged to report sexually abusive behaviors to the Office for Student Affairs Counseling Services, Campus Security or SAVE (Students Against A Violent Environment) as soon as possible after the incident. Compassionate support, assistance and treatment services are available on campus for victims. The campus' first responsibility in responding to reports of sexual misconduct is attending to the needs of the victim. All reports of sexual aggression are taken with the utmost seriousness, and the victim will be referred to the appropriate support persons for assistance. Victims are encouraged to preserve evidence in case they would like to pursue charges at a later date. Confidentiality will be protected and support for victims will be provided when not in conflict with overriding community interests.

Buena Vista University proceedings are separate and distinct from state and federal legal proceedings. If the victim wishes to enter the legal system, it will be necessary to file separate charges with local law enforcement officers. The University will provide support to victims who choose to file charges with local law enforcement. Even if criminal justice authorities choose not to prosecute, the University will pursue disciplinary action at the request of the victim. 

JURISDICTION

Buena Vista University shall have jurisdiction over all students who are enrolled at Buena Vista University. Any school sponsored or sanctioned activities, during which harassment is alleged to have occurred, shall trigger jurisdiction. For any other alleged incident occurring off campus, however, this jurisdiction will be invoked only upon the written concurrence of the president and the vice president for student affairs/dean of students. 

Persons who knowingly, willfully, and/or maliciously make false accusations of sexual misconduct may be prosecuted under the Code of Conduct. 

DEFINITIONS OF SEXUAL MISCONDUCT

Consent requires actual words or conduct explicitly demonstrating a knowing and voluntary agreement to have sexual intercourse or to participate in sexual activities. However, in determining whether consent was given, the following rules shall apply:

1. Silence is not consent

2. Previous sexual relationships and current relationships with the accused may not be taken as an indication of consent.

A person who is incapacitated cannot give consent. In determining whether a person has the capacity to consent in a knowing and voluntary manner, the totality of the circumstances shall be considered. In determining capacity, the circumstances to be considered include, but are not limited, to:

1. use of alcohol, drugs and/or other intoxicants

2. use of force, threat of force, or deception

3. lack of awareness that the act is being committed

4. impairment by virtue of mental or physical condition

5. coercion by supervisory or disciplinary authority.

The following constitute sexual misconduct:

a. non-consensual sexual contact: any sexual contact, either bodily or with an object, including, but not limited to, kissing, fondling, rubbing or grabbing, without consent. Attempted sexual contact may be adjudicated as if the contact actually took place. 

b. non-consensual sexual intercourse: including, but not limited to, vaginal, anal or oral penetration, however slight, without consent. Any attempted sexual intercourse may be adjudicated as if the act were carried out. Some common terms used are rape, date rape and acquaintance rape.

c. sexual exploitation: any sexually exploitive conduct, examples of which are: filming or photographing an individual or party in a sexual manner without consent from that individual or parties and/or publishing distributing, printing, disseminating the material in a manner the individual or parties involved did not consent to. 

HEARING BOARDS

If the complainant chooses to proceed with internal action, he or she may choose from among three hearing options. The members and alternates of the Hearing Boards are chosen by the President’s Council for employees and by the Judicial Board for students. 

The Sexual Misconduct Hearing Board, for any particular hearing, consists of one administrator, one faculty or staff member, and one student, the combination to be determined by the status of the persons involved. The members and alternates of the Hearing Board will be selected by the President’s Council and the Judicial Board. The vice president for student affairs/dean of students is responsible for selecting representatives to serve on a particular Hearing Board. The chair of the committee will be selected by the Hearing Board prior to each hearing. 

The Administrative Hearing Board consists of three administrators, selected by the vice president for student affairs/dean of students. The Chair will be selected by the Board prior to each hearing. 

The process for a member of the faculty, administration or staff accused of sexual misconduct shall be a hearing before the Administrative Hearing Board, which will make a finding of fact to the appropriate vice president, who will determine the final disposition. In the event the accused is a vice president, the finding of fact will go to the president of the University for disposition. In the matter that the accused is the president, the matter will go to the chair of the Board of Trustees. 

The Dean’s Hearing consists of the vice president for student affairs/dean of students or his/her designee. The vice president for student affairs/dean of students, or his/her designee, has the right to refer the case to one of the Hearing Boards. 

The University will file charges on campus with the consent of the complainant. The university will support the victim regardless of the decision he or she makes regarding the filing of a complaint on campus and/or with law enforcement officials. 

HEARING PROCEDURES

Each Hearing Board will choose a chair prior to a hearing. The process is the same for all hearing Boards. Copies of the complaint will be distributed to all members of the hearing body at least 24 hours prior to the hearing.

All hearings pursuant to this policy shall be closed and all persons in the hearing room shall be admonished to keep all evidence, testimony, and deliberations confidential. All information presented at the hearing is confidential. Disclosure of privileged information by a member of the Hearing Board will result in that member’s expulsion from the Board. In such an instance, the seat will be filled by a standing alternate, representing the same constituency, and a new alternate will be selected by the appropriate body. Board members may be subject to sanction and will be expelled from the Hearing Board. Any allegation regarding a breach of confidentiality on the part of any board member shall be submitted in writing to the vice president for student affairs/dean of students for appropriate and timely action.

Members of the Hearing Boards must disqualify themselves from hearing cases arising from matters directly relating to them, or concerning persons about whom they are prejudiced. The accused and the complainant may each request that Board members be removed for cause. The accused and the complainant shall 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/she must submit reasons for the objections to the vice president for student affairs/dean of students, in writing, at least 24 hours before the hearing. The vice president for student affairs/dean of students will review the objection and decide whether the Hearing Board member(s) should or should not be replaced. Removal from the Hearing Board shall only occur if the vice president for student affairs/dean of students is convinced that a lack of impartiality or other extenuating circumstances would result, were the hearing board member to adjudicate the incident. The decision of the vice president for student affairs/dean of students must be delivered to the chair prior to the scheduled hearing and be entered into the minutes of the hearing. If necessary, another Board member will be selected to replace that person. 

The hearing will not be video-taped, but the hearing process will be audio-taped for possible appeals. The vice president for student affairs/dean of students will destroy the tapes after the appeals period has expired. 

HEARING PROTOCOL

The complainant will be asked to make a statement to the Hearing Board first, followed by a statement from the accused. The accused has the right to remain silent at the hearing. If the accused does not come to the hearing, the hearing will continue in his/her absence. Members of the Board may ask questions. Each party may submit questions to the Board to be asked of the other party and/or witnesses during the hearing. Either party may request a reasonable recess during the proceedings. 

Individuals appearing before the Hearing Board are responsible for presenting truthful information. Any person found to be willfully presenting false or misleading information shall be subject to disciplinary action. 

RECORD OF HEARING

When opening statements and clarifying questions are completed, witnesses will be brought individually into the hearing room. All witnesses not testifying will remain outside the hearing room. All witnesses may be questioned by the Hearing Board. When all witnesses have been heard, the complainant and the accused will be given the opportunity to make final statements. Following final statements, the matter will be deliberated by the Board. 

SUPPORT PERSON

Both the complainant and the accused may have a support person accompany them to the hearing. The support person must be from the BVU community. The support person may not speak to or for the complainant and/or the accused, nor write to that person during the hearing.

POLICY LIAISON

BVU provides assistance for the complainant, the accused, and any other involved persons in the form of Policy Liaisons, comprised of students, staff, faculty, and administrators.

Any student or employee who is the complainant, the accused, or a witness of alleged sexual misconduct may ask for support from among the group of Policy Liaisons, or may select his/her own person from the BVU Community. The Policy Liaisons are available to explain the process and may remain with the person during the entire process. The complainant and the accused and witnesses may each request a Policy Liaison. The Policy Liaison is present at the hearing to communicate, concerning policy questions, with the person being helped. 

Student Senate will select students to become Policy Liaisons. The President’s Council will select faculty, administrators, and staff to become Policy Liaisons. 

DELIBERATION

All persons in the room, except for the Hearing Board will be asked to leave during deliberations. The Hearing Board decision will be reached based on a preponderance of the evidence. The accused and the complainant will be brought back into the room separately and told of the decision. The chair of the chosen Hearing Board will also put the decision in writing for both parties. A letter outlining the conditions of the disposition of the hearing will be placed into the adjudicated student’s personal file and in the judicial file of the University.  

SANCTIONS FOR STUDENTS FOUND GUILTY OF SEXUAL MISCONDUCT

The president or a designated vice president may remove the accused from campus prior to a hearing if that person is believed to be a danger to the victim and/or the BVU community. This action has no bearing on the hearing and does not imply guilt. 

Sanctions appropriate for violations include the following, or a combination thereof:

1. Written Censure is an official statement condemning the conduct of the adjudicated student, which will be placed in the student’s personal file.

2. Disciplinary Probation maintains the jurisdiction of the Board over the adjudicated student for a designated period of time. Failure to successfully fulfill the conditions of probation will result in suspension or expulsion and will be determined by vice president for student affairs/dean of students. Conditions of probation are those requirements the student must successfully fulfill and may include but are not limited to:

• Financial restitution for tangible goods and services for the appropriate party(ies).

• Service or educational project.

• Loss of privileges associated with the offense such as the use of university facilities, visitation, attendance at university functions, etc.

• Counseling—encouraged or required participation in counseling sessions.

• Denial of participation in intercollegiate athletics.

• Denial of participation in intramural athletics.

• Denial of participation including but not limited to, co-curricular involvement, public performances, publications events or activities sponsored by student campus organizations, excluding assignments required for course work.

• Denial of holding an office in any student organization.

• Denial of using a motor vehicle on campus.

• Denial of exercising his/her normal housing lottery priority.

• Denial of attending or sponsoring university social functions. 

3. Suspension is a set period of time during which the privilege of attending classes or of being on campus is withdrawn. The student may be reinstated at the completion of the period or after specified conditions are met. When disciplinary action (i.e. suspension or expulsion) results in the loss of any college or college-contracted service for the student, there will be no refund, except pro-rated board, unless required by federal, state or other regulations. When a student is suspended a notation will be made on the student’s academic record (transcript) as follows: “SUSPENDED (date) FOR CONDUCT.” This notation will remain on the record until the terms of the suspension have been satisfied. During a subsequent semester, a student who desires to be reinstated must notify the vice president for student affairs/dean of students and present evidence that the conditions for reinstatement have been satisfied. 

4. Expulsion is withdrawal of the privilege of attending the University with no promise that the student may return in the future. A student who has been expelled from the University for disciplinary reasons may only be re-admitted by the authority of the president. When this expulsion is finalized, a notation will be made on the student’s academic record (transcript) as follows: “EXPELLED (date) FOR CONDUCT.” An expelled student may never be on the BVU campus without permission from the president of the University. 

RELEASE OF INFORMATION

Publicizing sexual misconduct is necessary so that the campus community can make informed judgments and take appropriate preventative measures. Support will be provided and confidentiality will be protected when not in conflict with overriding community interests. The information will be posted throughout the campus on a specific color exclusively used for this purpose, and the information will be in each student’s mailbox, and available in the Office for Student Affairs. The vice president for student affairs/dean of students, or his /her designee, will be responsible for distributing the information. 

APPEALS PROCESS

Appeals from the accused will be heard by the vice president for student affairs/dean of students or his/her designee. Appeals must be filed by the accused within two class days after receiving the written decision from the Hearing Board. Appeals will be considered only for failure of the original hearing body to follow process or for new evidence. An appeal must be submitted in writing stating the grounds for the appeal and a copy will be provided to the complainant. A second appeal may be made to the President of the University, and will follow the same process as stated above. 

The complainant is entitled to an appeal if he/she can show, to the satisfaction, that the adjudication process was in any way biased, unfair, or the process or punishment violated the policy. 

RIGHTS OF THE COMPLAINANT

• To be free from any suggestion the complainant must report the crimes.

• To be able to choose the level of involvement in university disciplinary proceedings against an accused, including the right to an advocate.

•To have any allegations of sexual misconduct treated seriously and non-judgmentally; the right to be treated with dignity.

•To be free from any suggestion the complainant is responsible for the commission of crimes against her/him.

•To be free from any pressure from campus personnel to:

-Refrain from reporting policy violations.

-Report policy violations if the complainant does not wish to do so.

-Report policy violations as lesser offenses. 

RIGHTS OF THE ACCUSED

•          To be provided with a full and complete explanation of the charges.

•          To be presumed innocent unless proven otherwise.

•          To be provided with an explanation of the possible range of the penalties/punishments.

•          To cross-examine witnesses and to testify on his/her own behalf.

•          To remain silent during hearing proceedings.

•          To present witness and documentary evidence, and an explanation or argument on his/her own behalf.

RIGHTS TO RESOURCES ON AND OFF-CAMPUS

A right to a facilitated discussion is available on campus, but it is not a part of the process of responding to sexual misconduct. A facilitated discussion may be requested only in the case of non-consensual sexual contact.

•          To be notified of existing campus and community based medical, counseling, mental health and student affairs for complainant of sexual assault whether or not the crime is formally reported to campus or civil authorities.

•          To have access to campus counseling under the same terms and conditions as apply to other students in their institution seeking such counseling.

•          To be informed of and to be assisted in exercising:

Any rights to confidential or anonymous testing for sexually transmitted diseases, human immunodeficiency virus, and/or pregnancy; any rights that may be provided by law to compel and disclose the results of testing of sexual assault suspects for communicable diseases.

•          To receive full and prompt cooperation and assistance of campus personnel in notifying the proper authorities if the complainant so chooses.

•          To receive full, prompt, and victim-sensitive cooperation of campus personnel with regard to obtaining, securing, and maintaining evidence.

CAMPUS JUDICIAL RIGHTS

•          To be able to choose the level of participation in university disciplinary proceedings against an accused, including the right to an advocate.

•          To have all irrelevant sexual/relationship evidence excluded during disciplinary proceedings.

•          To have any allegation of sexual misconduct investigated and adjudicated by campus authorities.

•          To be afforded the opportunity to have a policy liaison and/or support person present during any campus disciplinary proceeding.

•          To be notified in writing of the outcome and sanction of the sexual misconduct disciplinary proceeding against the accused and to be notified of any appeal.

CAMPUS INTERVENTION POLICY

•          In certain instances, state and federal law requires institutions to take certain action for the safety of the community and for the welfare of the complainant, even if not requested by the complainant. This includes, but is not limited to, changes in classes and housing. Decisions will be made with sensitivity to the complainant and in a fair and reasonable manner.

•          There shall be no statute of limitations on campus, as long as the accused remains enrolled at the University.

•          If an accused student withdraws from the University after the incident, the hearing will go forward with or without the accused. The accused may return to campus for the hearing.

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