Policy Prohibiting Discriminatory Harassment & Sexual Misconduct

Effective August 14, 2020 

Wesleyan University 

Wesleyan is an institution devoted to learning, openness, and the life of the mind.  It follows that its character can be measured in part by the kind of human relationships built and sustained within this small but complex environment. Wesleyan strives to be a community built upon mutual trust and respect for its constituent members: students, faculty, staff and those visiting or under temporary contract. A community will flourish only to the degree that the virtues of mutual respect, generosity, and concern for others are maintained. Therefore, it is vitally important that harassment and discrimination in all their forms not be tolerated. As noted in University Policy, members of the University community have the right to a safe and welcoming campus environment.

These policies and procedures apply to all College community members, and all members of the College community are responsible for being familiar with and abiding by them at all times.

Wesleyan University will not tolerate discriminatory harassment and/or sexual misconduct against students, faculty, staff, trustees, volunteers, and employees of any university contractors/agents.

Discriminatory Harassment It is illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. Accordingly, the University recruits, hires, trains, promotes and educates individuals without regard to race, color, religion, national or ethnic origin, age, disability, veteran status, sex, marital status, sexual orientation, gender identity or gender expression. Under the Federal guidance and direction of Title II, Title IV, Title IX, ADEA, EPA, and ADA / Section 504, Wesleyan University administers all personnel action such as compensation, benefits, transfers, layoffs, return from layoffs, education, tuition assistance, and social and recreational programs without regard to race, color, religion, national or ethnic origin, age, disability, veteran status, sex, marital status, sexual orientation, gender identity or gender expression.

In an ongoing effort to prevent sexual misconduct on the Wesleyan campus, the University provides education and prevention programs for all members of the Wesleyan community and pursues available administrative and/or criminal remedies for complaints of sexual misconduct involving students and/or employees (faculty, staff, contractors) as appropriate.

All acts of discriminatory harassment and/or sexual misconduct threaten personal safety and violate the standards of conduct -- mutual respect, generosity, and concern for others -- expected of all community members.

Statement of Policy

Wesleyan University prohibits all forms of discriminatory harassment and sexual misconduct. Wesleyan University is committed to ensuring that each member of the university community has the opportunity to participate fully in the process of education and development. Wesleyan strives to maintain a safe and welcoming environment free from acts of discriminatory harassment and sexual misconduct. However, when incidents occur, the University is committed to respond in a manner that provides safety, privacy and support to those affected.

Individuals and Entities Affected by this Policy

This policy shall apply to all individuals affiliated with Wesleyan University, including but not limited to students, faculty, staff, trustees, volunteers, and employees of contractors/agents.  It is intended to protect the rights and privacy of the complainant, respondent and other involved individuals, as well as to prevent retaliation or reprisal. Individuals who violate this policy may be subject to disciplinary or other corrective action.

This policy applies to anyone on the property of Wesleyan University and anyone present at Wesleyan-sponsored programs or events. This policy extends to off-campus violations by both students and employees in limited circumstances, as outlined by Clery Act.

Relationships

General statement regarding relationships by persons in authority: 

Wesleyan University is committed to maintaining learning and work environments as free as possible from conflicts of interest, exploitation, and favoritism. Where a party uses a position of authority to induce another person to enter into an amorous, sexual, or intimate relationship, the harm both to that person and to the institution is clear.

As related to employees:

All Wesleyan employees must be aware that relationships with subordinates or superiors are likely to lead to difficulties and have the potential to place faculty and staff at great personal and professional risk.  Amorous, sexual, or intimate relationships between supervisors and their subordinates often adversely affect decisions, distort judgment, and undermine workplace morale even for those not engaged in the relationships.  Any University employee who participates in supervisory or administrative decisions concerning an employee with whom he/she has or has had an amorous, sexual, or intimate relationship has a conflict of interest in those decisions and must disclose the relationship to Human Resources.  Amorous, sexual or intimate relationships between employees where there is a power differential may be presumed to constitute sexual harassment as defined by The Connecticut Discriminatory Employment Practices Act (Section 46a-60(A)(8) Of the Connecticut General Statutes.

As related to students:

For the purpose of this policy, a prohibited power differential is presumed in all cases wherein a faculty/staff member is on one side of the relationship and a student is on the other.  All faculty and staff must be aware that amorous, sexual, or intimate relationships with students are likely to lead to difficulties and have the potential to place faculty and staff at great personal and professional risk.  The power difference inherent in the faculty-student or staff-student relationship means that any amorous, sexual, or intimate relationship between a faculty/staff member and a student is potentially exploitative and could at any time be perceived as exploitative.  In the event of a charge of Sexual Harassment arising from such circumstances, the University will in general be unsympathetic to a defense based upon consent. 

Undergraduate Students

All members of the faculty and staff are prohibited from pursuing or engaging in an amorous, sexual, or intimate relationship with any Wesleyan undergraduate, matriculated or not.

Graduate Students

All faculty and staff are prohibited from pursuing or engaging in an amorous, sexual, or intimate relationship with a graduate student over whom they have authority. Situations of authority include, but are not limited to: teaching; formal mentoring or advising; supervising research; employing as a research or teaching assistant; exercising substantial responsibility for grades, honors, or degrees; and involvement in disciplinary action related to the student.

Graduate students and faculty/staff alike should be aware that amorous, sexual, or intimate relationships between student and faculty/staff will bring to an end the ability of the latter to teach, mentor, advise, direct work, employ and promote the career of the former. 

Graduate Students in Positions of Authority

Like faculty and staff members, graduate students may themselves be in a position of authority over other students: for example, when serving as a teaching assistant or as a research assistant who supervises other students in the research project.  The power difference inherent in such relationships means that any amorous, sexual, or intimate relationship between the graduate student and another student over whom he/she has authority is potentially exploitative.  

Any graduate student currently or previously engaged in an amorous, sexual, or intimate relationship with another student is prohibited from serving in a position of authority over that student.  Graduate students should be sensitive to the continuous possibility that they may unexpectedly be placed in a position of responsibility for another student’s instruction or evaluation.

Pre-existing Relationships with Any Student

In cases where an amorous, sexual, or intimate relationship between a faculty/staff member and an undergraduate existed prior to the time of the student’s enrollment, the faculty/staff member is obligated to report that relationship to Human Resources. In cases where an amorous, sexual, or intimate relationship ever existed between a faculty/staff member and a graduate student, that relationship must be disclosed by that faculty/staff member to Human Resources prior to accepting a supervisory role of any type over that student.

Similarly, all graduate students ever engaged in an amorous, sexual, or intimate relationship with another student are prohibited from serving in a position of authority over that student.

Rights of Those Who Report Policy Violations

Those who report any type of discriminatory harassment or sexual misconduct, to a University employee will be referred to the Office for Equity & Inclusion / Title IX Office and informed of all their rights and options, including the necessary steps for each option.

The University will provide assistance to those involved in a report of sexual misconduct or discriminatory harassment, including but not limited to reasonably available accommodations and modifications for academic, transportation, housing or working situations as well as honoring lawful protective or temporary restraining orders.

Procedures

Procedures for the investigation and resolution of complaints are specific for students, faculty, and staff and are outlined in respective handbooks. Each process provides an equitable and timely process for both complainants and respondents.  The specific procedure follows the responding party.  If the responding party is a student (undergraduate or graduate*) the process follows the student procedures.  If the responding party is an employee (faculty and/or staff), the process follows employee procedures.

*  The process for a graduate student responding party is determined based on the primary purpose the person is on campus.  The primary purpose of degree-seeking graduate students (PhDs, MAs, BA/MAs) is to be a student and an employee second; the process for students would be followed.   The primary purpose of non-degree seeking graduate students (Foreign Language Teaching Assistants, Writing Fellows) is to work at Wesleyan; they are an employee first and a student second and the process for employees would be followed.   The same rationale would be used to address students in the GLS program.  If their primary relationship to Wesleyan is to take courses in the GLS program, they would follow the student process.    If they are Wesleyan employees who are taking a course, their primary relationship with the university is as an employee and they would follow the employee process.   

Accountability, Investigation and Resolution

In determining whether alleged conduct constitutes discriminatory harassment or sexual misconduct, the University looks at the totality of circumstances including the nature of the conduct and the context in which the alleged incident(s) occurred.

The determination that the conduct violates University policy will be made on a case-by-case basis using the “preponderance of the evidence” standard. Violations of policy may lead to disciplinary action up to and including academic dismissal or termination of employment. The University will take immediate and appropriate corrective action based on the findings in each case as outlined in the respective handbooks: 

Retaliation

Any individual subject to this policy who intentionally engages in retaliation may be subject to disciplinary or other corrective action as appropriate.

Policy Oversight

The Department of Education’s Office for Civil Rights (OCR) has published clear guidance that instructs and directs the Office for Equity & Inclusion and the Title IX Officer to ensure campus-wide protocol is implemented and serve as the central person to whom all complaints or notice related to discriminatory harassment, sex/gender bias, sexual misconduct and disability discrimination is directed.

The Vice President for Equity & Inclusion / Title IX Officer serves Wesleyan in this way and has the following responsibilities:

  • Ensure prompt response to stop the harassment/discrimination
  • Implement immediate remedial support for the complainant
  • Initiate the preliminary investigation
  • Oversee action to reasonably prevent the recurrence
  • Conduct ongoing educational campaigns and climate monitoring of sexual misconduct allegations.

Wesleyan Equity & Inclusion / Title IX Staff

Alison Williams

Vice President for Equity & Inclusion / Title IX Officer

317 North College

860-685-4771

awilliams@wesleyan.edu

 

Debbie Colucci

Assistant Vice President for Equity & Inclusion/Title IX Coordinator

121 North College

860-685-2456

dcolucci@wesleyan.edu

 

Policy Prohibiting Sexual Misconduct

Effective August 14, 2020

Wesleyan is an institution devoted to learning, openness, and the life of the mind.  It follows that its character can be measured in part by the kind of human relationships built and sustained within this small but complex environment.  Wesleyan strives to be a community built upon mutual trust and respect for its constituent members: students, faculty, staff, and those visiting or under temporary contract.  A community will flourish only to the degree that the virtues of mutual respect, generosity, and concern for others are maintained.  Therefore, it is vitally important that harassment and discrimination in all their forms not be tolerated and Wesleyan has several policies and practices to achieve this result.

The purpose of this Sexual Misconduct Policy and the related process set forth below is to make clear that the University is committed to providing an environment of well-being, learning, and accountability for its members by preventing the occurrence of many forms of sexual misconduct and addressing its effects.  The forms of misconduct are defined in the Definitions document found here:  INSERT LINK (*Note that the Definitions document may be updated to reflect legal and regulatory changes, as well as to provide clarity if the Wesleyan community expresses broad confusion over any defined terms in the Policy, so please refer back for the most updated content.)

Process for Addressing Student Sexual Misconduct

The University follows through on its commitment to respond appropriately to sexual misconduct in different ways, as appropriate to the case at hand.  This includes a formal complaint process, as well as an informal resolution process, in which parties can seek to resolve their concerns outside of a more formal process.  These processes are discussed below, but you are encouraged to discuss these different processes with the Dean of Students Office and/or the Title IX Coordinator.  It is important to understand that if you share personal experiences with certain individuals on campus, they, in turn, may be required to share specific information with the Title IX Office.  You may also discuss this process with a confidential resource, and that individual would not need to report anything you share with them.  You should also feel free to ask the Title IX Office any questions, provided you do not provide specific personal information before you are ready to file a report.  (This information is shared so that community members can control any disclosures that they make.  The Title IX Office is obligated to take certain actions in certain situations if it has actual knowledge of sexual misconduct.)     

The following process describes how the University will investigate a report that an individual has engaged in prohibited conduct that could violate this Sexual Misconduct Policy.   

Initial Steps

After receiving a report of conduct that could fall under the Sexual Misconduct Policy, the Title IX Coordinator will take a number of initial steps; these initial steps are not an investigation.  Rather, these initial steps will enable the University to assess the need to take any immediate action to address the safety and health needs of the parties involved in a matter, to help the parties determine the next appropriate steps, whether under this Policy or another policy or process. 

These initial steps may include, but are not limited to, the following:

Initial Contact.  The Title IX Coordinator will contact the party making the initial allegation (the “Reporting Party”) and encourage them to meet virtually or in person to discuss the nature and circumstances of the reported conduct and review relevant information that is available, and describe the various options and resources available.

Supportive Measures.  Regardless of whether a Reporting Party decides to file a Formal Complaint or not, they may be entitled to supportive measures.  Supportive measures are defined in LINK.   

Interim Restrictions.  During the pendency of an investigation and hearing (discussed below), the University reserves the right to explicitly prohibit either party from entering upon the University’s property or participating in any activities absent written authorization from an appropriate University official.  The failure of either party to comply with an interim restriction such as this may lead to additional disciplinary action that can be determined under this or separate policies, as appropriate.  The decision to impose interim restrictions will be communicated by the Title IX Coordinator in writing and parties will be informed of any appellate rights.  The University may be limited in its notification in certain situations when student or employee privacy issues limit disclosures. 

Discussion of Process.  The Title IX Coordinator will describe the Sexual Misconduct Policy and related process.  The Title IX Coordinator will also explain the right to report, as well as the right to delay or decline to report the matter to the University.  The Reporting Party may also choose to report such conduct to local law enforcement if the conduct is potentially criminal in nature.  Such a report will not change the University’s obligation to potentially investigate the matter, but it may briefly delay the timing of the investigation if a law enforcement agency requests that the University delay its process for a reasonable amount of time to allow it to gather evidence of criminal conduct.  The University will typically not consider a criminal proceeding on the same facts in its process because the University does not use the same process or standard of proof as a criminal process.  Typically, the University will only inquire about criminal processes to the extent they may impact an individual’s ability to access or utilize the University’s process.  In no instance will an adverse inference follow the fact that either party is involved in the criminal justice system, but certain information may be relevant for the University to consider in limited situations, e.g., if a court enters a separate restraining order, that may be considered while the University determines the restrictions of the parties on campus to maintain the status quo pending investigation.

Formal Complaint.  If the Reporting Party wishes to move forward with a formal complaint under this Policy, the Reporting Party must provide a statement in writing and sign that statement in person or electronically.  If, at this time, the Reporting Party requests that the process not move forward or move forward under a different policy, the University will weigh that request against the obligation to address any risk of harm to the Reporting Party, the Responding Party, or other individuals in the community given the nature of the allegation(s).  The University reserves the right to move forward with a formal complaint process unilaterally by signing a complaint or statement of allegations against another Responding Party.  This will be utilized in limited situations in which the University has a concern related to the safety of the broader University community.  In such situations, the University will not be a party to the action, and both the Reporting Party and Responding Party will receive notice, as set forth in Section II

Initial Review and Dismissal or Referral, if Necessary.  Upon reviewing any written complaint materials submitted, if the Title IX Coordinator determines that the conduct would, if proven, be prohibited by this Policy, they will move to the next phase of this process.  If the conduct, if proven, would not be prohibited by this Policy, the Title IX Coordinator may dismiss the matter without limiting the individual’s ability to provide additional information, or the Title IX Coordinator may refer the matter directly to the staff that is charged with executing any other relevant policy that may be implicated.  For example, a claim of harassment that is based on race or disability status, even if proven, would not violate the Sexual Misconduct Policy.  The University could, in that circumstance, refer the matter directly to the process prohibiting these forms of harassment. 

Consolidation Considerations.  The Title IX Coordinator also has sole discretion to address behavior that may fall outside of the range of behavior prohibited in this Policy, however, any behavior that is included within the formal complaint process must have significant factual overlap and will be entitled to the process set forth below even if the behavior would be subject to a lower review process through another policy.  If lesser conduct is included in a Title IX matter defined under this Policy and then the Title IX-related conduct is dismissed for any reason, the Title IX Coordinator has the discretion to refer any remaining matters back to the original process that they would have fallen under if not for the consolidation with the Title IX matter.  For example, the University generally prohibits sexual exploitation, but sexual exploitation is not defined as prohibited conduct under the current federal Title IX regulations.  If the allegations indicate that the sexual exploitation occurred in the same factual circumstances as a sexual assault, which is included under this Policy, then the matter may be consolidated.  If the sexual assault matter is later withdrawn or dismissed, the University would then have the right to address the sexual exploitation under another relevant policy that prohibits such behavior.  

The Investigation Phase

Notice of an Investigation.  If it is determined that an investigation will begin, the Title IX Coordinator will prepare a written notice to both the Reporting Party and the Responding Party.  The notice will include a description of the allegations as they are understood at the time, the name(s) of the parties, the date(s) and location(s) of the conduct in question, the portions of the Policy that are alleged to have been violated, any interim measures in place of which either party must be made aware, and a statement that the Responding Party is presumed not responsible for the alleged conduct.  This written notice does not constitute a finding or a determination of responsibility.  Further, the written notice will be updated or amended if new allegations are raised by either party and accepted for investigation throughout this process.   

Designation of Investigator.  The Title IX Coordinator will designate at least one investigator to conduct a prompt, fair, and impartial investigation of the reported conduct and prepare a report of investigative findings (the “Investigative Report”).  All investigators will be selected from a group of qualified and trained individuals employed by or engaged by the University for the purpose of conducting investigations under the Sexual Misconduct Policy.  The Title IX Coordinator will provide the parties with the name of the person(s) assigned to investigate the reported conduct.  As soon as possible, but no later than three (3) calendar days after delivery of the identity of the Investigator(s), the parties shall inform the Title IX Coordinator (in writing) of any conflicts of interest with regard to the selected Investigator(s).  The Title IX Coordinator will consider the nature of the conflict and determine if different individuals should be assigned as Investigator(s).  The Title IX Coordinator’s decision regarding any conflicts is final.  The Title IX Coordinator may consult with other University personnel to discuss any conflicts of interest.

Information about Advisors in Connection with this Policy.  In connection with an allegation of prohibited conduct under this Policy, and as defined in the Definitions document [INSERT LINK], each party may have a single advisor of their choice present during any formal disciplinary proceeding, including any related meeting, interview, or hearing, held pursuant to the Policy.  Except to the extent expressly permitted in the hearing process outlined below, the advisor may advise their respective party privately, but cannot act as a speaking advocate.   Wesleyan staff and/or investigators may delay or terminate meetings or hearings, remove or dismiss advisors, and/or proceed with the investigation if an advisor is disruptive or otherwise refuses to comply with the requirements of this Policy.   An advisor is subject to the same confidentiality expectations applicable to others in attendance as outlined in the Student Handbook.   Accommodations, including unreasonable scheduling changes, generally will not be made for any advisor if they unduly delay the process.  The advisor is not permitted to attend a meeting or proceeding without the party they are advising being present without the prior approval of the Title IX Coordinator, at their discretion.  The University reserves the right to take appropriate action regarding any advisor who disrupts the process, or who does not abide by the restrictions on their participation. 

Nature of the Investigation.  The investigation provides an opportunity for fact-finding and will include separate interviews with the Reporting Party, the Responding Party, and any relevant witnesses.  The Investigator(s) will provide the parties with advance notice of meetings at which their presence is required; three days advance notice will be provided to allow the individual sufficient time to prepare for the meeting.    

The Parties’ Identification of Potential Witness and Documentation. The parties have the opportunity (and are expected) to provide the Investigator(s) with the identification of potential witnesses who have specific information about the reported conduct and with whom they would like the Investigator(s) to speak.  The parties also have the opportunity (and are expected) to provide the Investigator(s) any documentation or other items or questions they would like to be considered.  All information described in this section must be presented to the Investigator(s) in writing and include a brief description as to how the persons, documents, and/or items are relevant to the reported conduct.  This information must be provided to the Investigator(s) during the Investigation Phase and without delay upon becoming aware of it.  The Investigator(s) will exercise discretion in their determination of what information to consider and which potential witnesses can provide relevant information to the investigation.  Further, the Investigator(s) have the right to interview any member of the Wesleyan community that may have specific information about the incident that has been reported.

Investigation Prohibitions.  At no point will the investigation require both parties to be in the same room.  At no point will either party be permitted to question or cross-examine the other party directly during the investigation, adjudication, or appeal process.  The parties may ask questions of the other party and/or witnesses at the Determination Hearing, described below, but all such questions must be asked through the party’s advisor.  Additionally, the Investigator(s) generally will not gather or consider information related to either party’s sexual history unless deemed relevant to the incident in question.  

Responding Party Voluntary Agreement to Policy Violation.  At any point prior to convening a Determination Hearing, as described below, a Responding Party may agree in writing to the alleged violation(s) of the Sexual Misconduct Policy and may also accept a sanction as proposed by the Dean of Students Office. 

Other Informal Processes.  At any time prior to convening a Determination Hearing, either party may request an informal resolution of a complaint rather than an investigation and/or hearing by contacting the Title IX Coordinator.  The Title IX Coordinator will assess the request for informal resolution against the severity of the alleged violation and the potential risks to campus community members.  All parties and the Title IX Coordinator must agree in writing to informal resolution for this option to be used.  The Title IX Coordinator will designate a University employee or outside service provider to facilitate a dialogue with the parties in an attempt to reach a resolution.  The Title IX Coordinator can end such a process if it becomes unproductive or abusive.  The allegation will only be deemed resolved when the parties expressly agree to an outcome that is acceptable to them and which is approved by the Title IX Coordinator in consultation with other appropriate University administrators.  Either party may withdraw from the informal resolution process at any time and, unless resolution is reached, the matter will continue through the process.  The informal resolution process will be conducted in accordance with procedures specified by the Title IX Coordinator, as determined in their sole discretion.

Investigative Report.  At the conclusion of the Investigation Phase, the Investigator(s) will prepare an Investigative Report, which should include a summary of the factual information presented during the Investigation Phase, a separate section where the Investigator(s) point out relevant consistencies or inconsistencies (if any) between all sources of information, and a separate optional  section describing the Investigator'(s) assessment of the credibility of parties and witnesses with regard to the Investigator(s) interactions with them.  The Investigator(s) will provide any relevant evidence gathered, whether inculpatory (i.e., proving the responsibility of a party) or exculpatory (i.e., proving that a party did not commit the conduct alleged).  The Investigative Report will not include a determination as to whether a party has violated the Sexual Misconduct Policy or what sanctions may be appropriate.  These determinations will be made by the Determination Officer, as described below.

Notification of Charges and Review by the Parties. The University will inform both parties of their opportunity to review the entire Investigative Report and that they may submit written comments and/or questions about the content of the Investigative Report to the Title IX Coordinator within ten (10) calendar days of the date they are notified that the Investigative Report is available for review.  This review will take place at a secure location and/or in a secure manner determined by the University.  The time to submit written comments can be extended for a brief period if the Title IX Coordinator concludes, in their sole discretion, that the additional time is warranted.  In circumstances where an extension is provided to one party, it will be provided to the other party, as well.  Each party may have their advisor present as they review the Investigative Report, but the University reserves the right to create appropriate procedures to protect the privacy and sensitivity of the materials in question. 

Photographs or any other copies of the Investigative Report are not allowed by either party or advisor.  The comments submitted by the parties may not exceed ten (10) double-spaced pages unless a higher page limit is otherwise determined to be necessary and appropriate in the sole discretion of the Title IX Coordinator.  After reviewing the submissions, if any, from the parties, the Investigator(s) may determine that either additional investigation is required or no further investigation is needed. 

If, at any point in this review process or the prior investigation, it becomes apparent that a witness will not take part and subject themselves to examination in the Adjudication Process described in Section III, the Investigator may revise the Investigative Report to remove that information so as not to impact the hearing.  If this decision is made prior to the parties’ review, it will be noted in a cover memo to the Investigative Report.  If the decision is made following the parties’ review, it will be communicated to the parties and they will be informed in writing of any information that will be removed prior to the hearing.

The Investigative Report will then be submitted to the Title IX Coordinator for review and compilation for the adjudication process.  Any submissions made by either party pursuant to this section, as well as any other documentation deemed relevant by the Investigator(s), will be attached to the Investigative Report.  When the Investigator(s) have completed any additional fact finding, both parties will be permitted to review the entire Investigative Report as it will be submitted to the Determination Officer, although no further information will be added at this point.

Adjudication Process and, if Necessary, Sanction Process

The Determination Officer.   The Title IX Coordinator will inform the parties of the identity of the Determination Officer.  As soon as possible, but no later than three (3) calendar days after delivery of the identity of the assigned Determination Officer, the parties should inform the Title IX Coordinator (in writing) of any conflicts of interest in regard to the selected Determination Officer.  If a conflict of interest is raised, the Title IX Coordinator will consider the nature of the conflict and determine if different individual(s) should be assigned to hear the matter.  This decision regarding any conflicts is final.  The Title IX Coordinator will then provide the Determination Officer with the Investigative Report and set a subsequent date for the Determination Officer to hold a hearing to determine responsibility.

Role of the Determination Officer.  The Determination Officer will preside over the hearings and make all decisions by a preponderance of the evidence as to whether or not the Responding Party violated the policy provisions at issue.  The Determination Officer has broad authority to determine the process, timing and conduct of a hearing.  For example, the Determination Officer will determine the order of presentation and timing of the different hearing components. The Determination Officer will also determine what evidence is relevant and what information and questions are relevant and/or permissible.

Role of Advisors at the Hearing.  Each party may have an advisor of their choice present at a hearing for the limited purpose of conducting witness examinations on behalf of that party.  Advisors may be, but are not required to be, attorneys.  If a party does not have an advisor of their choice present at a hearing, Wesleyan will, without fee or charge to the party, provide an advisor of Wesleyan’s choice for the limited purpose of conducting  witness examinations on behalf of that party.  No later than ten (10) calendar days before the hearing, parties should inform the Title IX Coordinator of the identity of any advisor of choice who will accompany them to the hearing, so that Wesleyan will know whether or not it needs to arrange for the presence of a Wesleyan-provided advisor.

Hearing Process:  Advisor Examinations.  At a time and manner deemed appropriate by the Determination Officer, the advisor for each party will be permitted to ask the other party and any witnesses all relevant examination questions and follow-up questions, including those challenging credibility.  Except for that limited role, advisors may not participate actively in the hearing and may not speak or otherwise communicate on the part of the party that the advisor is advising.  However, the advisor may consult privately in a non-disruptive manner with their advisee during and/or at a recess in the hearing. Scheduling accommodations generally will not be made for advisors if they unduly delay the process.  Wesleyan reserves the right to take appropriate action regarding any advisor who disrupts the process or who does not abide by the restrictions on their participation as determined in the sole discretion of the Determination Officer.   In limited situations, this may include exclusion of the advisor from the hearing and the appointment of an alternate Wesleyan-provided advisor.

Hearing Process:  General Restrictions.  Questions and evidence about sexual predisposition or prior sexual behavior are generally not relevant, unless such questions and evidence about the prior sexual behavior are offered to prove that someone other than the Responding Party committed the conduct alleged, or if the questions and evidence concern specific incidents of the Reporting Party’s prior sexual behavior that are offered solely to prove consent.

Hearing Process:  Privileged Information.  Information protected under a legally recognized privilege (such as, for example, privileged communications between a party and their physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in a treatment capacity, or privileged communications between a party and their attorney), are not admissible unless the person holding the privilege has waived the privilege in writing.

Hearing Process:  Virtual Option.  At the request of either party, Wesleyan will provide for the hearing to occur with the parties located in separate rooms with technology enabling the hearing officer and parties to simultaneously see and hear the party or the witness answering questions.  Live hearings may be conducted with all parties physically present in the same geographic location or, at Wesleyan’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.

Hearing Process: Examination Requirement.  In accord with federal regulations, if a party or witness does not submit to examination at the live hearing, the Determination Officer will not rely on any statement of that party or witness in reaching a determination regarding responsibility.  The Determination Officer will not draw an adverse inference regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer examination or other questions.

Sanctioning Consistency.  In the instance that the Determination Officer determines that a party is responsible for violating this Policy, they may then request from the University information on prior sanctioning decisions in factually similar matters so that the Determination Officer can apply a consistent sanction in the matter at hand. 

Notification of Decision. Upon reaching a determination of responsibility, the Determination Officer will provide a written notification of the decision and rationale to the Title IX Coordinator.   The notification will consist of a summary of the allegations and determination(s) made by the Determination Officer with respect to responsibility and any sanctions that are imposed.  The notification will also include the procedures for either party to appeal, as set forth in Section IV, below.  The University reserves the right to inform other University officials with a legitimate educational interest about the outcome of the finding.  This could include, but is not limited to, notice to administrators charged with executing the sanction, athletic team coaches, or others that may have a role in carrying out the sanction or any ongoing supportive measures for either party.   

Record of Hearings.  Wesleyan will create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.  It will not be provided for distribution and Wesleyan will provide the same protective measures as used in Section II regarding the parties’ review of investigative reports.

Appeals

Grounds and Timing for Appeals.  The following process applies to all appeals. Within five (5) business days of the delivery of the decision, either party may appeal the decision by submitting to the Title IX Coordinator a letter stating why they believe the decision was inappropriate based on one or more of the following limited grounds:

  • Procedural error that materially prejudiced the outcome; and/or
  • Newly discovered material information that was not known/available to the Investigator(s) or the Determination Officer and which likely could have changed the finding of responsibility or the sanction imposed had it been available.
  • Bias or a conflict of interest with regard to the Title IX Coordinator, Investigator(s), or Determination Officer that materially impacted the outcome or the sanction.

Form of Submission.  The party submitting the appeal must set forth in detail the grounds for review and must attach all materials that they wish to have considered in the appeal process.  Following the submission of an appeal by either party, the appeal will be provided to the other party and they may give a limited response to the appeal that must be submitted within three (3) business days.   

Extensions of Time.  Extensions of time to respond must be requested with the Title IX Coordinator and will be provided in the sole discretion of that person.  The request should state explicitly the reasons for the requested extension.  Any extension of time granted to one party will be automatically extended to the other party.  Both parties will be informed of the extension in writing and simultaneously. 

The Appellate Officer.  In the instance of an appeal, the information is forwarded to the Vice President for Student Affairs or their designee.  Both parties will be provided with the name of the Appellate Officer prior to the materials being provided to them.  As soon as possible, but no later than three (3) calendar days after delivery of the identity of the Appellate Officer, the parties should inform the Title IX Coordinator in writing of any conflicts of interest in regard to the assigned person. The Title IX Coordinator will consider the nature of the conflict and determine if different individual(s) should be assigned to review the appeal.

Sanctions Pending Appeal.  Sanctions of all types (including, but not limited to, suspension, dismissal, or separation) may be imposed while an appeal is pending at the sole discretion of the University. 

Additional Issues

Disability Accommodations. Wesleyan is committed to ensuring that all community members, and applicants, have an equal opportunity to participate in all of its programs and activities.  If any person requires an accommodation, because of disability, to access any part of this process, they may make that request to the Dean of Students.  Any accommodations will be provided in consult with the Title IX Coordinator to ensure it does not impact the rights or protections of any party or witness.

Duty of Honesty.  All parties and witnesses are obligated to be completely honest during the course of the entire process set forth under this Policy.  Any person who knowingly makes a false statement – either explicitly or by omission – in connection with any part of the process may be subject to separate disciplinary action.  A report made in good faith, however, is not considered false merely because the evidence does not ultimately support the allegation of a violation of the Policy.

Duty of Cooperation.  All parties and witnesses are obligated to cooperate with the Title IX Coordinator and any persons charged with implementing the Policy.   Any person who knowingly interferes with the actions taken to implement the reporting, investigation, or resolution of matters under the Policy may be subject to separate and/or additional disciplinary action.  Please note that the Duty of Cooperation will not be utilized to undermine an individual’s decision not to take part in this process if it would force them to forfeit any constitutional rights in a criminal investigation involving the same or similar facts and circumstances.

Special Situations.  The University retains the right to determine, in its sole discretion, if it will address a report of conduct under this Policy administratively and outside of the process described herein when the safety of the University community is at risk, if there are extenuating circumstances involving either of the parties, or if the Title IX Coordinator, in consultation with appropriate administrators, determines it is in the best interest of the University and/or the University community to do so.  If the University utilizes this provision to alter the process set forth in this Policy, it will clearly communicate change to the parties in a reasonable and timely manner.

Delegation.  Where the Title IX Coordinator or any other University official or employee is listed as the designated point of contact for any role in the Policy, the Title IX Coordinator may designate another qualified member of the University community to assume the role at issue, as necessary and appropriate.  Any delegation must be approved by the Title IX Coordinator and the appointed individual will be identified to the parties.  

 

Definitions for the Policy

Prohibiting Sexual Misconduct

Effective August 14, 2020

The following definitions supplement Wesleyan’s Policy Prohibiting Sexual Misconduct (“Policy”).  Section One provides general definitions that help elucidate the University’s Policy; Section Two defines the conduct specifically prohibited by the Policy.

The University reserves the right to update the definitions in this document to create more clarity for our community.  Similarly, the University may be required to update or change such definitions in response to state and federal laws. Accordingly, please ensure that you check back this document to make sure you have the most updated definitions. 

Section One: General Definitions

Actual Knowledge or Notice Wesleyan has actual notice of alleged Title IX prohibited conduct only if a report concerning the conduct is made to Wesleyan’s Title IX Coordinator, a Deputy Title IX Coordinator, or to one of the following Wesleyan officials who have authority to institute corrective measures on Wesleyan’s behalf including the Office for Equity & Inclusion/Title IX, Human Resources, Academic Affairs/Provost and or Student Affairs.

Advisor A person chosen by a party, who may but need not be an attorney, who provides support and advice to the party during any stage of the process set forth in the Policy.  Any person serving as a party’s advisor is prohibited from publicly disclosing private information learned during this process, including information protected under the Family Educational Rights and Privacy Act (“FERPA”) or other state or federal laws.  Parties and advisors are expected to maintain the privacy and respect the privacy concerns of all parties and witnesses to the greatest extent possible.  If any advisor is concerned about violating this assurance of privacy to gather evidence, they should raise such concerns with the Title IX Coordinator immediately so that it can be appropriately addressed to protect the sensitivity of the information without limiting the ability of either party to find and present relevant evidence.  

Consent and Related Concepts 

Wesleyan defines consent and the related concepts as follows:

Consent

  • Sexual consent is when all parties agree to engage in sexual activity.  Consent should always be mutual, voluntary and given without pressure, intimidation, or fear.
  • Consent must be freely and affirmatively communicated in order to participate in sexual activity or behavior.  It can be expressed either by words or clear, unambiguous actions. It is the responsibility of the person who wants to engage in sexual activity to ensure consent of their partner(s).
  • Consent must be obtained at each step and be present throughout the sexual activity.  A participant can withdraw consent or communicate that they no longer consent to continuing the activity.  If there is confusion as to whether anyone has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion is clearly and mutually resolved.
  • Silence, lack of protest, or lack of resistance does not indicate consent.
  • Consent is not present if it results from the use of physical force, threat of physical force, intimidation, coercion (see below), incapacitation (see below), or any other factor that would eliminate an individual’s ability to exercise free will to choose whether or not to have sexual contact.
  • A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent.  Even in the context of a relationship, a willingness to engage in sexual activity must be freely and affirmatively communicated each time.

Coercion Coercion is the use or attempted use of pressure and/or oppressive behavior, including express or implied threats, intimidation, or physical force, which places a person in fear of immediate harm or physical injury or causes a person to engage in unwelcome sexual activity.  A person’s words or conduct cannot amount to coercion unless they wrongfully impair the other’s freedom of will and ability to choose whether or not to engage in sexual activity.  Coercion also includes administering or pressuring another to consume a drug, intoxicant, or similar substance with the intent to impair that person’s ability to consent prior to engaging in sexual activity.  

Incapacitation Incapacitation is defined as the inability, temporarily or permanently, to give consent, because an individual is mentally and/or physically helpless, unconscious, or unaware that the sexual activity is occurring.  This may or may not be due to alcohol or other drugs (see below).

An individual who is incapacitated cannot consent to sexual activity.

Alcohol or Other Drugs The University considers any sexual contact while under the influence of alcohol or other drugs to be risky behavior.  Alcohol and drugs impair a person’s decision-making capacity, awareness of the consequences, and ability to make informed judgments.  Being intoxicated or impaired by drugs or alcohol is never an excuse for sexual harassment, misconduct, or violence and does not diminish one’s responsibility to obtain consent.  If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.

The use of alcohol or drugs can limit a person’s ability to freely and clearly give consent.   Similarly, the use of alcohol or drugs can create an atmosphere of confusion over whether or not consent has been freely and clearly sought or given.  It is especially important that anyone engaging in sexual activity be aware of the other person’s level of intoxication.  If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.

Warning signs of incapacitation may include, but are not limited to, one or more of the following: slurred speech, vomiting, unsteady gait, combativeness, emotional volatility, and/or sleeping.

The perspective of a reasonable person will be the basis for determining whether a Responding Party (see below) should have been aware of the amount of the ingestion of alcohol or drugs by the reporting party, or of the extent to which the use of alcohol or drugs impacted a Reporting Party’s ability to give consent.

For example, an individual who is in a blackout may appear to act normally and be giving consent, but may not actually have conscious awareness or the ability to consent to or later recall the events in question.  The extent to which a person in this state affirmatively gives words or actions indicating a willingness to engage in sexual activity (and the person reasonably could not have known of the person’s level of alcohol consumption and/or level of impairment) must be evaluated in determining whether consent has been given.

Educational Program or Activity Locations, events, or circumstances in which the University exercises substantial control, as well as in any building owned or controlled by a student organization that is officially recognized by the University.

Formal Complaint A document filed by a Reporting Party alleging that another individual engaged in conduct prohibited by this Policy (see Section Two, below) and requesting that the University investigate the allegation.  In exceptional situations, the Title IX Coordinator may sign a complaint in place of a Reporting Party.  If the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a party to a matter and the party who has standing to be a Reporting Party under this Policy shall receive the rights afforded under this Policy.  Similarly, the Responding Party will receive the name of the Reporting Party and other information that constitutes requisite notice.   

Parties Both the Reporting Party and the Responding Party.  Note that the University will typically address communications to the parties and not to any advisor (even an attorney-advisor) or parent.  

Standard of Proof:  Preponderance of the Evidence  The University uses the preponderance of the evidence standard (i.e., it is more likely than not that the reported incident and/or behavior violated University policies).  Therefore, all findings and determinations of responsibility under this Policy will be made using this preponderance of the evidence standard.  Please note:  The preponderance of the evidence standard is not the standard used for criminal culpability in most jurisdictions and a determination of responsibility under the Policy does not equate with a finding of a violation of criminal laws;

Conversely, lack of a prosecution, dismissal, or lack of a criminal conviction does not necessarily imply that the University’s Policy was not violated. The two procedures are significantly different and utilize different standards for determining violations.

Relevant As used in these procedures, “relevant” refers to a fact, witness, or other piece of information that a reasonable person could conclude makes a material disputed fact or event more or less likely to be true.   Information about an individual’s sexual predisposition or prior sexual behavior is generally not considered relevant and will not be considered in the grievance process.  An example where information about past sexual behavior may be considered relevant is if offered to prove that someone other than the Responding Party committed the conduct.

Reporting Party A person who, at the time they file a formal Complaint, is currently participating in, or attempting to participate in, Wesleyan’s domestic educational programs or activities and who alleges they experienced Prohibited Conduct, as defined below.  If an individual is a student or employee at another institution and makes an allegation against an individual who is a student or employee at Wesleyan, the Title IX Coordinator may exercise discretion in signing a complaint for the aggrieved party.  In such situations, the parties will be duly noticed in accord with the Policy and the University will not be considered a party to the matter, though it will maintain the burden of proving that any individual violated a University Policy.    

Responding Party  A person reported to be the perpetrator of conduct that could violate a form of prohibited conduct set forth in Section Two, below, or any other form of conduct consolidated into the process set forth in this Policy.   

Sanctions Punitive or educational measures imposed by the University in response to a determination that a respondent has violated this or another University policy.  Sanctions may include, but are not limited to: expulsion, termination, suspension, probation, reprimand, warning, restitution, education/counseling requirement; restrictions on participation in a program or activity; loss of privileges; loss of leadership opportunities or positions; housing restriction; and/or restrictions on employment by the University.  If a Responding Party is found to have violated this Policy, a determination of appropriate sanctions will include consideration of the nature and circumstances of the misconduct; the impact of the misconduct on the Reporting Party and/or on others in the University community; the disciplinary history of the Responding Party; and any other mitigating or aggravating circumstances.  

Supportive Measures  Non-disciplinary, non-punitive individualized services, offered as appropriate, as reasonably available, and without fee or charge to either the Reporting Party or the Responding Party before or after the filing of a formal complaint or where no formal complaint has been filed.  Supportive measures are designed to restore or preserve equal access to Wesleyan’s educational programs or activities, and they will be designed so as not to unreasonably burden the other party.  Supportive measures may include but are not limited to:  counseling; academic accommodations, such as extensions of deadlines or other course-related adjustments; course changes or drops; modifications of work or class schedules; campus escort services; mutual restrictions on contact between the parties; residential accommodations, including but not limited to arranging for new housing, or providing temporary housing options, as appropriate; changes in work locations; leaves of absence; increased security and monitoring of certain areas of the campus; and no trespass notices, among others.   Factors to be considered in determining reasonable supportive measure may include the following:

  • the specific need expressed by the party;
  • the severity and/or pervasiveness of the allegations;
  • any continuing effects on the party;
  • whether the parties share the same residence hall, dining hall, class, extracurricular activities, transportation and/or job location; and
  • whether other judicial measures have been taken to protect a party or the parties.

Section Two: Definitions of Prohibited Conduct

Sexual Misconduct Wesleyan University prohibits all forms of sexual misconduct. Sexual misconduct refers to a broad spectrum of behavior encompassing sexual harassment and all forms of non-consensual sexual activity.  Sexual misconduct affects individuals of all genders, gender identities, gender expressions, and sexual orientation, and does not discriminate by racial, social, or economic background.

Sexual Assault Having or attempting to have sexual intercourse or sexual contact with another individual without consent.  This includes sexual intercourse or sexual contact achieved by the use or threat of force or coercion, where an individual does not consent to the sexual act, or where an individual is incapacitated.  Sexual assault may include, but is not limited to, the following:

  • Penetrating or attempting to penetrate another individual without their consent.  This includes vaginal or anal penetration, however slight, with a body part or object, or oral copulation by mouth-to-genital contact.
  • Having or attempting to have sexual contact with another individual without consent.  Sexual contact includes kissing, touching the intimate parts of another, causing the other to touch one’s intimate parts, or disrobing of another without permission. Intimate parts may include the breasts, genitals, buttocks, mouth, or any other part of the body that is touched in a sexual manner.

Sexual Exploitation An act or acts committed through non-consensual abuse or exploitation of another person’s sexuality for the purpose of sexual gratification, financial gain, personal benefit or advantage, or any non-legitimate purpose.  Examples include, but are not limited to: observing another individual’s nudity or sexual activity or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved; non-consensual streaming of images, photography, video, or audio recording of sexual activity or nudity, or distribution of such without the knowledge and consent of all parties involved; prostituting another individual; knowingly exposing another individual to a sexually transmitted disease or virus without his or her knowledge; and inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity.

Sexual exploitation is prohibited behavior that will typically be addressed through other policies unless it is consolidated with other forms of prohibited conduct in this section.  In those situations, the University requires a substantial factual overlap with the allegations of the specific matter at hand before this Policy will be utilized. 

Intimate Partner Violence  Intimate partner violence incorporates dating violence, domestic violence, or relationship violence, and includes any act of violence or threatened act of violence against a person who is or has been involved in a sexual or dating relationship with that person.  It may involve one act or an ongoing pattern of behavior.  Intimate partner violence can encompass a broad range of behavior, including, but not limited to threats, assault, property damage, violence or threat of violence to one’s self, one’s sexual or romantic partner, or to the family members or friends of the sexual or romantic partner.  Intimate partner violence affects individuals of all genders, gender identities, gender expressions, and sexual orientation and does not discriminate by racial, social, or economic background.

The University will not tolerate intimate partner violence of any form.  The University also recognizes that certain forms of sexual harassment, sexual assault, sexual exploitation, stalking, harm to others, emotional and psychological abuse, harassing conduct, and retaliation may all be forms of intimate partner violence when committed by a person who is or has been involved in a sexual, dating, or other similar relationship of a romantic or intimate nature with the Reporting Party.  In such situations, all potential charges may be included.

Sexual Harassment Sexual harassment is a form of discriminatory harassment occurring within an employment or educational context that federal and state law addresses with very specific provisions.  In cases where sexual harassment is alleged, the University has a duty to act promptly, so as to assure that if such harassment is, in fact, occurring or has occurred, corrective action is taken and further harm is prevented.

Unwelcome sexual advances, requests of sexual favors, and/or other verbal or physical contact of a sexual nature constitute sexual harassment when:

  • submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s academic or employment success (also known as quid pro quo harassment), or
  • submission to or rejection of such conduct by an individual is used as the basis for academic or employment evaluation and decisions affecting such an individual (also known as quid pro quo harassment), or
  • such conduct has the purpose or effect of substantially interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive living, learning, or work environment (also known as the creation of a hostile environment).

The effect of sexual harassment will be evaluated based on the perspective of a reasonable person in the position of a Reporting Party.  A single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe.  The more severe the conduct, the less need there is to show a repetitive series of incidents to provide a hostile environment, particularly if the harassment is physical.  However, under the new federal regulations, behavior must be severe and pervasive, as well as subjectively and objectively offensive.  That is, not only must the Reporting Party feel that the behavior is offensive, but a reasonable person similarly situated must also consider such behavior to be offensive.

Stalking A course of conduct directed at a specific person that would cause a reasonable person to: fear for their safety or the safety of others; or suffer substantial emotional distress.  This includes cyber-stalking, a particular form of stalking in which electronic media is used to pursue, harass, or make unwelcome contact with another person.  Stalking may involve individuals who are known to one another or have an intimate or sexual relationship, or may involve individuals not known to one another.

Retaliation Acts or attempts to retaliate or seek retribution against the reporting party, responding party, or any individual or group of individuals involved in the investigation and/or resolution of an allegation; including subjecting a person to an adverse employment or educational action because they made a complaint under any portion of this policy or responded to, assisted or participated in any manner in an investigation under this policy.  Any individual or group of individuals, not just a party, can retaliate against another person.  Retaliation may include continued abuse or violence and other forms of harassment.

Retaliation allegations may be consolidated with other forms of prohibited conduct under this Policy if the facts and circumstances significantly overlap.  If the facts and circumstances do not significantly overlap, then the University retains discretion to adjudicate the allegation under a different but appropriate policy.  For example, if a Responding Party retaliates against a Reporting Party with regard to the filing of a complaint, that behavior could be consolidated with the other prohibited conduct alleged, provided appropriate notice is afforded.  On the other hand, if the retaliatory conduct is committed by one of the parties’ friend group who are not otherwise subject to a grievance under this Policy, that behavior could be adjudicated under another student or employee conduct policy which prohibits such behavior.