StudentRights150A

Appendix K - Sexual Harassment and Misconduct Policy

Revised July 18, 2014 

This policy applies to all forms of sexual harassment, sexual violence, stalking, and intimate partner violence. Printer-friendly pdf with table of contents here: BSU Sexual Harassment and Misconduct Policy 2014.

Introduction 

Ball State University prohibits sexual and gender-based harassment, sexual violence, intimate partner violence, and stalking. These behaviors, referred to collectively as sexual harassment and misconduct in this policy, are prohibited by Ball State University, are inconsistent with the university’s values, and are incompatible with the safe, healthy environment that the Ball State community requires to function effectively. Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex or gender in educational programs. Sexual harassment and misconduct, as defined in this policy, are all forms of sex discrimination. Many forms of sexual misconduct violate both this policy and state law. The university will not condone or tolerate any verbal or physical conduct that would constitute sexual harassment, sexual violence, stalking, or intimate partner violence from any member of the university community, including students, staff and faculty, or from guests or visitors to the campus. 

This policy prohibits a broad continuum of behaviors including but not limited to: sexual harassment, non-consensual sexual intercourse, non-consensual sexual contact, sexual exploitation, bullying or cyber-bullying, stalking, retaliation, intimidation and harm, threat, or endangerment. Each of these terms is defined later in this policy. 

This policy applies to the resolution of complaints against students who have been accused of sexual harassment or misconduct, regardless of whom is making the complaint. The university will respond according to the severity or pervasiveness of the offense and the threat it poses to the community. Complainants[1] can expect the university to respond promptly and effectively, to make interim protective measures available, and to take the complainant’s wishes into consideration in its response. Individuals who are found responsible under this policy may face disciplinary sanctions up to and including expulsion. The university will treat all parties fairly and respectfully; take measures necessary to provide safety for individuals and the university community; utilize processes that are thorough, fair, and impartial; and balance the needs and interests of individuals with the safety of the university community as a whole.

 [1] Ball State University recognizes that an individual may choose to self-identify as a victim or a survivor. For consistency in this policy, the term “complainant” will be used to refer to the individual who alleges conduct that violates this policy, regardless of whether that individual makes a report or seeks formal disciplinary action. A “respondent” refers to the individual who has been accused of conduct that violates this policy. “Third party” refers to any other participant in the process, e.g., a witness to an incident or an individual who makes a report on behalf of someone else. 

The Ball State community has a responsibility to maintain an environment free from harassment and discrimination. The university is committed to taking all appropriate steps to eliminate sexual harassment and misconduct, prevent its recurrence, and address its effects. The university seeks to foster a climate that is free from sexual harassment, sexual violence, stalking, and intimate partner violence through clear and effective policies, a coordinated education and prevention program, and prompt and equitable procedures for resolution of complaints that are accessible to all. The university expects and encourages all members, visitors, and guests of the Ball State community to participate in the process of creating a safe, effective, and respectful environment on campus. 

The university will not tolerate retaliation against an individual who makes a report or participates in an investigation. Retaliation, whether actual or threatened, destroys the sense of community and trust that is central to an effective educational environment. Ball State policy prohibits any form of reprisals or retaliation. Community members engaging in reprisals or retaliation will be subject to disciplinary action. 

The university will make every reasonable effort to stop retaliation immediately, to conduct a complete and thorough investigation of alleged acts of retaliation in a timely manner, to provide remedies to victims of retaliation, and to sanction the perpetrators of retaliation as appropriate. 

Sexual and gender-based harassment and violence committed by one student against another or directed toward a student by a university employee or other representative of the university violate Title IX of the Education Amendments of 1972. Ball State will not tolerate sexual harassment of and sexual violence directed at students in any of the university’s programs or activities. 

Ball State has designated John Bowers (contact information below) to serve as the institution’s Title IX Coordinator. Inquiries or complaints concerning the application of Title IX may be referred to the university’s Title IX Coordinator and/or the United States Department of Education: 

Institutional Title IX Coordinator  

John Bowers Director of Institutional Equity and Internal Investigations 

Office of University Compliance 

Administration Building (AD) 335 

2000 W University Avenue 

Muncie, IN 47304 

Phone: (765) 285-5162 

Email: John Bowers 

United States Department of Education: 

Office for Civil Rights, Chicago Office 

Citigroup Center 

500 W. Madison Street, Suite 1475 

Chicago, IL 60661-4544 

Telephone: 312-730-1560 

FAX: 312-730-1576; TDD: 800-877-8339 

Email: OCR.Chicago@ed.gov

Application 

 Complaints against Students or Student Organizations 

This policy applies to alleged violations by Ball State students, regardless of sexual orientation or gender identity, and student organizations as defined in the Code of Student Rights and Responsibilities (Code) which may be found at www.bsu.edu/studentcode. Although the Code provides that any person (student, university employee, third party) may file a complaint against a student with the Office of Student Rights and Community Standards [Student Center L-5, (765) 285-5036], all complaints against students alleging sexual misconduct will be forwarded to the Associate Dean of Students/Title IX Coordinator for Student Affairs [Administration Building (AD) 238, (765) 285-1545]. Complaints against a student for sexual harassment or misconduct also may be filed with the University Police Department by calling (765) 285-1111. 

 Complaints against Employees 

The Statement on Sexual Harassment  applies to complaints against employees. Complaints of sexual harassment or misconduct against an employee should be filed with the Office of University Compliance [AD 335, (765) 285-5162] or with the University Police Department [200 N. McKinley Avenue or (765) 285-1111.] 

 Complaints against Other Individuals 

Complaints of sexual harassment or misconduct against an individual who is not a student or employee (e.g., a guest of or visitor to the university) should be filed with the University Police Department located at 200 N. McKinley Avenue [(765) 285-1111]. 

 On and Off Campus Behaviors 

This policy applies to conduct that occurs on campus or in the context of any university program or activity, including off-campus conduct in the context of a university program or activity. This policy also applies to conduct that has a continuing adverse effect or creates a hostile environment on campus or in any university program or activity whether on or off campus. Prohibited conduct that takes place off campus is covered in this policy when (from Code section 2.2 Authority) it is: 

a.   Conduct that causes or threatens harm to the health or safety of a person or damage or destruction to the property of a member of the university community;

b.   Conduct in connection with an academic course assignment, internship, practicum, field trip, student teaching, research, or other university activity; 

c.   Conduct in connection with any activity sponsored, conducted, or authorized by the university or by a student organization; 

d.   Conduct involving serious crimes including all crimes of violence, felonies, or the sale or distribution of illegal drugs or controlled substances, if a police report has been filed, a summons or indictment has been issued, or an arrest has occurred; or 

e.   Conduct adversely affecting the university community or indicating that the continued presence of a student on campus poses a threat to the student's well-being or the well-being of other members of the university community. 

Notice of Non-Discrimination 

Ball State University is committed to establishing and maintaining an effective, safe, and nondiscriminatory educational environment in which all individuals are treated with respect and dignity. The university does not permit discrimination or harassment in its programs and activities on the basis of race, religion, color, sex (except where sex is a bona fide qualification), sexual orientation, gender identity/gender expression, physical or mental disability, national origin, ancestry, age, or any other characteristic protected by institutional policy or state, local, or federal law. 

This policy addresses all forms of sexual discrimination, including sexual harassment, sexual violence, stalking, and intimate partner violence. Ball State University does not discriminate on the basis of sex in its educational, extracurricular, athletic, or other programs or in the context of employment. Sex discrimination is prohibited by Title IX of the Education Amendments of 1972, a federal law which provides that: 

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.  

Sexual harassment is also prohibited under Title VII of the Civil Rights Act of 1964, Indiana state law, and other applicable statutes. 

This policy prohibits sexual harassment, sexual violence, stalking, and intimate partner violence against Ball State community members of any gender, gender identity, gender expression, or sexual orientation. This policy also prohibits gender-based harassment that does not involve conduct of a sexual nature, including hazing and stalking. 

The university, as an educational community, will promptly and equitably respond to reports of sexual harassment, sexual violence, stalking, and intimate partner violence that it knew or should have known about in order to eliminate the harassment, prevent its recurrence, and address its effects on any individual or the community. 

Title IX Coordinator  

Ball State has designated John Bowers to serve as the institution’s Title IX Coordinator. The Title IX Coordinator will be informed of all reports of sexual harassment, sexual violence, stalking, and intimate partner violence, and will oversee the university’s centralized review, investigation, and resolution of those reports to ensure the university’s compliance with Title IX and the effective implementation of this policy. 

The Title IX Coordinator is: 

  1. Responsible for oversight of the investigation and resolution of all reports of sexual harassment, sexual violence, stalking, and intimate partner violence involving students, staff, and faculty;
  2. Knowledgeable and trained in university policies and procedures and relevant state and federal laws; 
  3. Available to advise any individual, including a complainant, a respondent, or a third party, about the courses of action available at the university, both informally and formally, and in the community; 
  4. Available to provide assistance to any university employee regarding how to respond appropriately to a report of sexual harassment, sexual violence, intimate partner violence, or stalking; 
  5. Responsible for monitoring full compliance with all procedural requirements, record-keeping, and timeframes outlined in this policy; and 
  6. Responsible for overseeing training, prevention, and education efforts, and annual reviews of climate and culture. 

The Title IX Coordinator is supported by the Associate Dean of Students/Title IX Coordinator for Student Affairs (Katie Slabaugh) and other Title IX Deputy Coordinators. In addition, based on the role of the complainant and the respondent, the Title IX Coordinator can designate other university employees to implement procedures outlined in this policy. 

In cases that involve students, either as a complainant or a respondent, the Associate Dean of Students/Title IX Coordinator for Student Affairs is responsible for ensuring that Ball State responds to complaints in a prompt, thorough, and impartial manner and coordinates education and prevention efforts. During business hours, persons wishing to report sexual misconduct by or towards a student may call or email Katie Slabaugh, the Associate Dean of Students/Title IX Coordinator for Student Affairs or her designee at (765) 285-1545 or Katie Slabaugh. Additional information about the duties of the Associate Dean of Students/Title IX Coordinator for Student Affairs may be found below. 

Privacy and Confidentiality 

The university is committed to protecting the privacy of all individuals involved in a report of sexual harassment, sexual violence, stalking, or intimate partner violence. In any report made under this policy, every effort will be made to protect the privacy interests of all individuals involved in a manner consistent with the need for a careful assessment of the allegation and any necessary steps to eliminate the harassment, prevent its recurrence, and address its effects. 

The privacy of the parties will be respected and safeguarded at all times. All university employees who are involved in the university’s Title IX response receive specific training and guidance about safeguarding private information. 

Privacy and confidentiality have distinct meanings under this policy. 

Privacy: Privacy generally means that information related to a report of misconduct will only be shared with a limited circle of individuals. The use of this information is limited to those university employees who “need to know” in order to assist in the active review, investigation, or resolution of the report. While not bound by confidentiality, these individuals will be discreet and respect the privacy of all individuals involved in the process. Ball State will designate which university employees have a legitimate need to know about individual conduct complaints pursuant to the Family Educational Rights and Privacy Act (FERPA) and will share information accordingly. 

Confidentiality: Confidentiality means that information shared by an individual with designated campus or community professionals cannot be revealed to any other individual without express permission of the individual. Those campus and community professionals include medical providers, mental health providers, ordained clergy, victim advocates, and rape crisis counselors, all of whom have privileged confidentiality that has been recognized by federal or Indiana law. These individuals are prohibited from breaking confidentiality unless there is an imminent threat of harm to self or others, or the conduct involves suspected abuse of a minor under the age of 18. 

Community members wishing to seek completely confidential assistance may speak with counselors in the Ball State Counseling Center, the Victim Advocate in the Office of Victim Services, health service providers in the Health Center, off-campus rape crisis resources, such as A Better Way or the IU Ball Memorial Hospital Emergency Room, other health professional counselors, or members of the clergy/chaplains. 

Reporting on Campus: It is important to understand that any Ball State employee who is not designated as a confidential resource under this policy is required to promptly share a report of sexual harassment, sexual violence, stalking, or intimate partner violence with the Institutional Title IX Coordinator or Associate Dean of Students/Title IX Coordinator for Student Affairs. In addition, there are a number of university personnel who are designated as “responsible employees.” Responsible employees have the additional authority and obligation to take action to redress the harassment in addition to their reporting duties. These employees include but are not limited to vice presidents, deans and associate deans, directors, and department chairpersons. Student resident assistants are also considered responsible employees. All employees, including responsible employees, are required to forward all known details of the reports they receive (including the identity of parties, time, date, location, and description of the alleged behavior) to the Institutional Title IX Coordinator or Associate Dean of Students/Title IX Coordinator for Student Affairs. 

Release of Information: If a report of misconduct discloses a serious and continuing threat to the safety of the campus community, the university will issue a timely notification to the community to protect the health or safety of the community. The university may also share non-identifying information about the reports received; when the university does share this information, information (such as data about outcomes and sanction) is typically combined. At no time will the university release the name of a complainant to the general public without the express consent of the complainant or as otherwise permitted or required by law. 

Statistical information will be shared with the University Police Department or the Office of Student Rights and Community Standards as needed to comply with the Clery Campus Safety and Security Act (a.k.a. “Clery Act”). The Clery Act requires Ball State to distribute an annual security report (available at www.bsu.edu/fireandsafetyreports) to the U.S. Department of Education and Ball State students and employees; the report includes the number of certain criminal offenses that have been reported on or near campus. The information contained in the annual security report tracks the number of reportable offenses occurring at designated locations but does not include the names or any other identifying information about the persons involved in the incident. 

No information shall be released from proceedings under this policy except as required or permitted by law and university policy. 

Prohibited Conduct 

The university prohibits a variety of behaviors under this policy, many of which fall under the broad categories of sexual harassment, sexual violence, and intimate partner violence. Sexual harassment and sexual violence generally refer to verbal or physical acts that are unwelcome or without consent. Intimate partner violence, also referred to as dating violence or domestic violence, includes any act of violence or threatened act of violence against a person who is—or has been involved in—a sexual, dating, domestic, or other intimate relationship with that person. Intimate partner violence can encompass a broad range of behavior including but not limited to physical violence, sexual violence, emotional violence, and economic abuse. Intimate partner violence is also referred to as dating violence, domestic violence, and relationship violence. Domestic violence and dating violence are further defined as crimes by the state of Indiana; those definitions are included here as reports of these crimes can be found in Ball State’s annual security report [beginning with calendar year 2013]: 

Domestic violence is defined as violence committed by a current or former spouse or intimate partner of the complainant; by a person with whom the complainant shares a child in common; by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner; by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of the state of Indiana; or by any other person against an adult or youth who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred. 

Dating violence is defined as violence committed by a person who is or has been in a relationship of a romantic or intimate nature with the complainant—characterized by the expectation of affection or sexual involvement between the parties—but not including acts covered by domestic violence as defined above. 

The following conduct is specifically prohibited under this policy and may form the basis of specific charges under the Code of Student Rights and Responsibilities as modified by this policy: 

Sexual Harassment 

Sexual harassment is defined as any unwelcome sexual advance, request for sexual favor or other unwelcome verbal or physical conduct of a sexual nature, when 

  1. Submission to such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment or participation in a university-sponsored education program or activity;
  2. Submission to or rejection of such conduct by an individual is used as the basis or threatened to be used as the basis for employment decisions or academic decisions or assessments affecting an individual; or 
  3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance, i.e., it is sufficiently serious, pervasive or persistent as to create an intimidating, hostile, or offensive living, working, or educational environment. 

Sexual harassment also includes harassment based on gender, sexual orientation, gender identity, or gender expression, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex/gender or sex/gender-stereotyping, even if the acts do not involve conduct of a sexual nature. 

Sexual harassment can take many forms. Sexual harassment: 

  1. May be blatant and intentional and involve an overt action, a threat, or reprisal, or may be subtle and indirect, with a coercive aspect that is unstated. 
  2. Does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. 
  3. May be committed by anyone, regardless of gender, age, position, or authority. While there is often a power differential between two persons—perhaps due to differences in age or their relative positions in social, educational, or employment relationships—harassment can occur in any context. 
  4. May be committed by a stranger, an acquaintance, or someone with whom the complainant has an intimate or sexual relationship. 
  5. May be committed by or against an individual or may be a result of the actions of an organization or group. 
  6. May occur by or against an individual of any sex, gender identity, gender expression, or sexual orientation. 
  7. May occur in the classroom, in the workplace, in residential settings, over electronic media (including the internet, telephone, and text), or in any other setting. 
  8. May be a one-time event or part of a pattern of behavior. 
  9. May be committed in the presence of others or when the parties are alone. 
  10. May affect the complainant and/or third parties who witness or observe harassment. 

Sexually harassing behaviors differ in type and severity and can range from subtle verbal harassment to unwelcome physical contact. There is a wide range of behaviors that fall within the general definition of sexual harassment and many differing notions about what behaviors are and are not acceptable. Key determining factors are that the behavior is unwelcome, is based on sex or gender, and is reasonably perceived as offensive and objectionable under both a subjective and objective assessment of the conduct.

Hostile Environment Caused by Sexual Harassment 

A single, isolated incident of sexual harassment alone 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 create a hostile environment, particularly if the harassment is physical. A hostile environment occurs when unwelcome conduct of a sexual nature is so severe, persistent, or pervasive that it affects a student's ability to participate in or benefit from an educational program or activity, or creates an intimidating, threatening, or abusive educational environment. A hostile environment can be created by an employee, another student, or a visitor to the university. 

The determination of whether an environment is “hostile” must be based on all the circumstances. These circumstances could include, but are not limited to: 

  1. The frequency of the speech or conduct; 
  2. The nature and severity of the speech or conduct; 
  3. Whether the conduct was physically threatening; 
  4. Whether the speech or conduct was humiliating; 
  5. The effect of the speech or conduct on the complainant’s mental and/or emotional state; 
  6. Whether the speech or conduct was directed at more than one person; 
  7. Whether the speech or conduct arose in the context of other discriminatory conduct; 
  8. Whether the speech or conduct unreasonably interfered with the complainant’s educationalopportunities or performance (including study abroad), university-controlled living environment, or university-controlled work opportunities or performance; 
  9. Whether a statement is a mere utterance of an epithet which engenders offense in an employee or a student or offends by mere discourtesy or rudeness; and/or 
  10. Whether the speech or conduct is constitutionally protected or deserves the protections of academic freedom. 

Non-consensual Sexual Intercourse 

Non-consensual sexual intercourse is having or attempting to have sexual intercourse with another individual by force or threat of force, without effective consent, or where that individual is incapacitated. Sexual intercourse includes vaginal or anal penetration, however slight, with a body part (e.g., penis, tongue, finger, hand) or object, or oral penetration involving mouth-to-genital contact. 

Non-consensual Sexual Contact 

Non-consensual sexual contact is having sexual contact with another individual, by force or threat of force, without effective consent, or where that individual is incapacitated. Sexual contact includes any intentional touching of the intimate parts of another, causing another person to touch one's own intimate parts, or disrobing or exposure of another without permission. Intimate parts may include the breasts, genitals, buttocks, groin, mouth, or any other part of the body that is touched in a sexual manner. 

Sexual Exploitation 

Sexual exploitation is taking advantage of the sexuality of another person without consent or in a manner that extends the bounds of consensual sexual activity without the knowledge of the other individual for any purpose, including sexual gratification, financial gain, personal benefit, or any other non-legitimate purpose. Examples of sexual exploitation include but are not limited to: 

  1. Exposing one’s genitals without consent; 
  2. Non-consensual streaming, audio- or video-recording, photographing, or transmitting intimate or sexual utterances, sounds, or images without consent of all parties involved; 
  3. Allowing others to view sexual acts (whether in person or via a video camera or other recording device) without the consent of all parties involved; 
  4. Engaging in any form of voyeurism (e.g., “peeping”); 
  5. Prostituting another individual; 
  6. Compelling another individual to touch his or her own or another person’s (third party) intimate parts without consent; 
  7. Knowingly exposing another individual to a sexually transmitted disease or virus without that individual’s knowledge; and 
  8. Inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity. 

Harm, Threat, or Endangerment 

Harm, threat, or endangerment is prohibited separately in the Code of Student Rights and Responsibilities as follows: “conduct that causes physical harm to any person is prohibited, as is any reckless or unauthorized conduct that threatens, endangers or reasonably could threaten or endanger the health or safety of any person. Conduct covered under this rule also includes but is not limited to intimidation, coercion, or impairment of any person’s freedom of movement as well as verbal or written threats of any action described above.” When these acts occur in the context of intimate partner violence or when the behavior is perpetrated on the basis of sex or gender, the conduct will be resolved under this policy.

Harassment, Bullying, or Cyber-bullying 

Harassment, bullying, or cyber-bullying, are defined as repeated and/or severe aggressive behavior likely to or intended to intimidate, hurt, or control another person whether physically or mentally. These terms include but are not limited to: creating web pages; posting photos on social networking sites; and/or spreading rumors. When these acts occur in the context of intimate partner violence or when the behavior is perpetrated on the basis of sex or gender, the conduct will be resolved under this policy. 

Stalking 

Stalking is a knowing or intentional course of conduct that (1) would cause a reasonable person to feel frightened, harassed, intimidated, threatened, or alarmed and (2) that causes the person who is the subject or target of the stalking to feel frightened, harassed, intimidated, threatened, or alarmed. Such actions could be either implicit or explicit threats against a specific person; an acquaintance, friend, family member, or pet of that person; or that person’s property. Stalking includes the concept of cyber-stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used to pursue, harass, or to make unwelcome contact with another person in an unsolicited fashion. 

Examples of stalking include: 

  1. Unwelcome and repeated visual or physical proximity to a person; 
  2. Repeated oral or written threats; 
  3. Extortion of money or valuables; 
  4. Unwelcome/unsolicited written communication, including letters, cards, emails, instant messages, and messages on on-line bulletin boards; 
  5. Unwelcome/unsolicited communications about a person, their family, friends, or co-workers; or
  6. Sending/posting unwelcome and/or unsolicited messages with another username; 
  7. Implicitly threatening physical conduct or any combination of these behaviors directed toward an individual person. 

Retaliation 

Retaliation is any overt or covert act of reprisal, interference, restraint, penalty, discrimination, intimidation, or harassment against any person or group involved in the investigation and/or resolutions under this policy. This policy also prohibits retaliation against individuals who oppose, in a reasonable manner, an act or policy believed to constitute sex discrimination. Retaliation includes acts by the respondent, a third party, and agents of Ball State. 

Retaliation can take many forms, including continued abuse or violence, threats, and intimidation. Any individual or group of individuals, including a complainant or respondent, can engage in retaliation and will be held accountable under this policy. 

Actions by the university are considered retaliatory if they are: (1) in response to a good faith disclosure of real or perceived university-related misconduct, (2) the actions have a materially adverse effect on the working, academic, or university-controlled living environment of an employee or student; or if the faculty, employee, or student can no longer effectively carry out his or her university responsibilities; and, (3) there is a causal connection between the adverse impact and the protected activity. 

Behavior that may be retaliation should be reported immediately to the Ball State police by calling (765) 285-1111 or the Associate Dean of Students/Title IX Coordinator for Student Affairs at (765) 285-1545. 

Intimidation or Threats to Inhibit Reporting 

Intimidation is any threatened retaliation or other adverse action to prevent or otherwise obstruct the reporting of sexual misconduct or the participation in an investigation or adjudication related to sexual misconduct. Intimidation includes acts by the respondent, a third party, agents of Ball State, or any other individual. 

Behavior that may be intimidation should be reported immediately to the Ball State police by calling (765) 285-1111 or the Associate Dean of Students/Title IX Coordinator for Student Affairs at (765) 285-1545. 

Understanding Consent 

Consent is a knowing, voluntary, and clear mutual agreement to engage in sexual activity. Consent is effective when it is informed, freely and actively given, and communicated by clearly and mutually understandable words or actions to participate in each form of sexual activity. This includes the following concepts: 

  1. Consent cannot be given by someone who is incapacitated. Engaging in sexual activity with someone who one knows to be, or reasonably should know to be, incapacitated is a violation of this policy. [Incapacitation is defined below.] Where alcohol or other drugs are involved, incapacitation is assessed with respect as to how the alcohol or other drugs consumed affects a person’s ability to understand fully the "who, what, when, where, why, and/or how" of his/her sexual interaction with someone else. An individual accused of sexual misconduct is not excused if he or she was intoxicated and, therefore, did not realize the incapacity of the other person. 
  2. Indiana law provides that a minor (meaning a person under the age of 16 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 16 years old is a crime, as well as violation of this policy, even if the minor wanted to engage in the act. 
  3. Consent cannot be inferred from silence, passivity, or lack of active resistance. 
  4. Consent can be withdrawn at any time. 
  5. Consent does not exist when there is a threat of force, violence, or any other form of coercion or intimidation whether of a physical, psychological, or, for another example, financial nature. [See discussions on force and intimidation below.] A person who is the object of sexual aggression is not required to physically or otherwise resist the aggressor. 
  6. A current or previous dating or sexual relationship is not sufficient to constitute consent; past consent does not imply future consent; consent to one form of sexual activity does not imply consent to other forms of sexual activity; and consent to engage in sexual activity with one person does not imply or confer consent to engage in sexual activity with another person. 

Incapacitation 

Incapacitation is a state where someone cannot make informed, rational judgments and cannot consent to sexual activity. States of incapacitation can be temporary or permanent and include but are not limited to unconsciousness, sleep, mental disability, or any other state in which a person is unaware that sexual activity is occurring. 

Where alcohol or other drugs are involved, incapacitation is defined with respect to how the alcohol or other drugs consumed affect a person’s decision-making capacity, awareness of consequences, ability to make fully informed judgments, the capacity to appreciate the nature and quality of the act, or level of consciousness. In other words, a person may be considered unable to give effective consent due to incapacitation if the person cannot appreciate or understand the "who, what, when, where, why, and/or how" of a sexual interaction. 

Incapacitation is a state beyond “under the influence,” drunkenness, or intoxication. The impact of alcohol and other drugs varies from person to person; however, warning signs that a person may be approaching incapacitation may include slurred speech, vomiting, walking with difficulty or with assistance, odor of alcohol, combativeness, or emotional volatility. Evaluating incapacitation also requires an assessment of whether a respondent should have been aware of the complainant’s incapacitation based on objectively and reasonably apparent indications of impairment when viewed from the perspective of a sober, reasonable person in the respondent’s position. 

In determining whether consent has been given, the university will consider both (1) the extent to which a complainant affirmatively gives words or performs actions indicating a willingness to engage in sexual activity, and (2) whether the respondent was aware or reasonably should have known of the complainant’s level of alcohol consumption and/or level of impairment. A respondent is not excused from responsibility if he or she was intoxicated and, therefore, did not realize the incapacity of the other person. 

An individual who engages in sexual activity with someone the individual knows or reasonably should know is incapable of making a rational, reasonable decision about whether to engage in sexual activity is in violation of this policy. 

Force 

Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom of will to choose whether or not to participate in sexual activity. There is no requirement for a party to resist the sexual advance or request, but resistance will be viewed as a clear demonstration of non-consent. 

Coercion 

Coercion is the use of unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail. Coercion may be emotional, intellectual, psychological, or moral. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include (1) threatening to disclose another individual’s private sexual information related to sexual orientation, gender identity, or gender expression and (2) threatening to harm oneself if the other party does not engage in the sexual activity. Coercing an individual into engaging in sexual activity violates this policy in the same way as physically forcing someone into engaging in sexual activity. 

Alcohol or Other Drugs 

Alcohol and drugs impair a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. It is especially important, therefore, 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. 

Being intoxicated or impaired by alcohol or other drugs does not reduce one’s responsibility to obtain informed and freely given consent. 

Assistance Following an Incident of Sexual Misconduct 

A first step for any complainant or third party witness may be choosing how to proceed following an incident of sexual harassment, sexual violence, stalking, or intimate partner violence. The university provides two distinct institutional resources: 

Confidential Resources, which do not involve notifying the university of the incident unless the complainant requests such action; and 

Reporting Options, which provide notice of the incident to the university and begin the Title IX assessment and ultimate resolution of the report through remedies or investigation and imposition of any appropriate sanctions. 

It is also important to note that emergency medical and campus safety/law enforcement assistance are available both on and off campus, and all individuals are encouraged to contact law enforcement and seek medical treatment as soon as possible following an incident which poses a threat to safety or physical well-being. 

The university is committed to treating all members of the community with dignity, care, and respect. Any individual affected by sexual harassment, sexual violence, stalking, or intimate partner violence, whether as a complainant, a respondent, or a third party, will have equal access to support consistent with their needs and available university resources. 

This section outlines assistance from advocates, medical professionals, mental health professionals, law enforcement, and university officials that may be accessed immediately or on an on-going basis. Assistance is further noted as to its location—on or off campus—and whether or not the agency is a confidential resource or a reporting option. 

Confidential Resource: Immediate/Crisis Response On Campus 

It is especially important for students who have been sexually assaulted to seek immediate and appropriate medical treatment. Students are encouraged to seek evaluation for the collection of evidence, which is most useful if collected within 96 hours of the assault. 

The Office of Victim Services (OVS) provides 24 hour victim advocacy and support. During office hours, the OVS can be reached at (765) 285-7844. A victim advocate is available after hours for emergencies by calling the Ball State University Police dispatch at (765) 285-1111 and requesting the on-call victim advocate be paged. 

The Ball State Counseling Center may be reached for emergencies after normal working hours at (765) 747-7330. 

Confidential Resource: Immediate/Crisis Response Off Campus 

The Indiana University Ball Memorial Hospital Emergency Services (a.k.a., the “ER” or “emergency department”—located at 2401 W. University Ave) has a specially trained sexual assault team available 24 hours a day, seven days a week. Forensic exams (“rape kits”) for sexual assaults are provided at the ER. Under Indiana law, the tests and procedures at the hospital are free of charge if treatment is sought within 96 hours of the assault. ER staff may ask if the patient wishes to speak to the police; this decision is up to the patient. Persons undergoing the exam do not have to report to the police in order for the rape kit to be completed. A person has the option to file a police report up to a year after the rape kit is completed, which allows time to consider options and preferences, while still having critical evidence collected and preserved. The ER can be reached by calling 911 or (765) 747-3241. ER staff also will notify Ball State students of OVS support and contact the OVS upon request for support. 

A Better Way provides advocacy services for victims and is a participating member of the Delaware County Sexual Assault Response Team (SART). A Better Way can be reached at (765) 288-4357. 

Reporting Options: Immediate/Crisis Response On Campus 

The university encourages persons to report all incidents of sexual harassment, sexual violence, stalking, and intimate partner violence committed by students or any other person to the University Police Department regardless of where the incident occurred. 

University Police Department—(765) 285-1111 (24 hour emergency line) 

Incidents of sexual misconduct involving students that are reported to the University Police Department also will be referred to the Associate Dean of Students/ Title IX Coordinator for Student Affairs for follow-up and administrative investigation. 

Associate Dean of Students/Title IX Coordinator for Student Affairs 

During business hours, persons wishing to report sexual harassment or misconduct by a student may also call or email the Associate Dean of Students/Title IX Coordinator for Student Affairs or her designee at (765) 285-1545 or kslabaugh@bsu.edu. 

Reporting Options: Immediate/Crisis Response Off Campus 

Muncie Police Department--911 (Depending on the caller’s location, a call to 911 may result in a dispatch of University Police Department officers.) 

Confidential Resource: Follow-up Health Care On Campus 

In addition to emergency response at the ER, the Student Health Center (on campus at 1500 Neely Avenue) is equipped to provide confidential and professional medical care including treatment (e.g., for injuries and infection), assistance, and support. Student Health Center staff members do not perform rape kits or collect any other evidence for the purpose of criminal prosecution. Assistance is offered for transportation to the ER for this purpose, but the collection of evidence is not a requirement for students to receive comprehensive care at the Student Health Center. Follow-up treatment or testing for sexually transmitted infections can be provided as well. The Student Health Center phone number is (765) 285-8431; the website is www.bsu.edu/healthcenter. 

Confidential Resource: Follow-up Health Care Off Campus 

Medical Testing/Preserving Evidence—Preservation of evidence is an important consideration in sexual assaults. As noted above, Indiana University-Ball Memorial Hospital’s ER services include access to certified Sexual Assault Nurse Examiners (SANE) 24 hours a day, seven days a week. SANE nurses can conduct forensic exams (“rape kits”) for sexual assaults at the ER. Persons believing themselves to have been assaulted are advised to refrain from bathing or brushing teeth after an assault and to retain clothing worn during an assault as these actions help to preserve evidence collected during a forensic exam. Under Indiana law, the tests and procedures at the hospital are free of charge if treatment is sought within 96 hours of the assault. ER staff may ask if the patient wishes to speak to the police. This decision is up to the patient; a forensic exam can be conducted without making a report to a police officer. In these cases, evidence collected during a forensic exam is marked as “non-reporting,” turned over to the police, and retained for one year. 

Health care also is available through numerous private physicians and medical groups located in and around Muncie. The Ball State Counseling Center or Office of Victim Services staff members can provide assistance in identifying health care outside of the university or Indiana University-Ball Memorial Hospital.

  Confidential Resource: Ongoing Assistance On Campus 

The following offices provide on-going counseling, advocacy, and/or other support for student complainants of sexual misconduct regardless of whether the student chooses to make an official report or participate in campus conduct or criminal justice processes. 

The Counseling Center [located in Lucina Hall 320] is staffed by trained professionals who can provide confidential, specialized support and assistance to students who have been assaulted. Current students may seek counseling at any time after the incident. The Counseling Center can be reached at (765) 285-1736 (during office hours) and (765) 747-7330 for after-hours emergencies. The Counseling Center website is www.bsu.edu/counselingcenter

The Office of Victim Services (OVS) works closely with Counseling Center staff members to provide educational and supportive services for the Ball State University community related to sexual assault, intimate partner violence, and stalking. The program is designed to assist individuals in the recovery process by providing timely information and confidential support and guidance through the campus conduct and criminal justice systems. During office hours, the OVS can be reached at (765) 285-7844. A victim advocate is available after hours for emergencies by calling the Ball State University Police Department (765) 285-1111 and requesting the on-call victim advocate be contacted. 

Confidential Resources: Ongoing Assistance Off Campus 

Counseling services are available through numerous private practices and agencies located in and around Muncie. The Ball State Counseling Center or Office of Victim Services staff members can provide assistance in identifying mental health care outside of the university. 

A Better Way provides advocacy services for victims including a 24-hour crisis line at (765) 288-4357. 

The Muncie Police Department Victim Advocate provides advocacy services for persons believing themselves to have been sexually assaulted and can be reached at (765) 747-4777. 

Sexual Assault Response Team (Delaware County, IN) 

Indiana establishes Sexual Assault Response Teams (SART) by statute in each county’s prosecutor’s office. SART teams consist of a Sexual Assault Nurse Examiner (SANE) or forensic nurse examiner, a law enforcement officer trained to conduct sexual assault investigations, a victim advocate to provide emotional support and information, and prosecuting attorneys with special training in sexual assault investigation and prosecution. The University Police Department and Office of Victim Services are part of and coordinate services with other members of the Delaware County SART team. 

Reporting Sexual Harassment and Misconduct 

Although a report may come in through many sources, the university is committed to ensuring that all reports alleging sexual harassment or misconduct by a student are referred to the Associate Dean of Students/Title IX Coordinator for Student Affairs, who will ensure consistent application of the policy to all individuals and allow the university to respond promptly and equitably to eliminate the harassment, prevent its recurrence, and eliminate its effects. 

Students can report an incident of sexual misconduct to the University Police Department by calling (765) 285-1111; Ball State police officers are available 24 hours a day, seven days a week. Incidents of sexual misconduct involving students that are reported to the University Police Department also will be referred to the Associate Dean of Students/Title IX Coordinator for Student Affairs for follow-up and administrative investigation. 

Students may also contact Katie Slabaugh, Associate Dean of Students/Title IX Coordinator for Student Affairs, directly to make a formal complaint during business hours. They may contact her or her designee at (765) 285-1545 or by email at kslabaugh@bsu.edu. The Associate Dean of Students/Title IX Coordinator for Student Affairs will follow-up where appropriate in those instances where the university has a report of an incident of sexual assault or misconduct that has been reported by an employee or a law enforcement agency other than the University Police Department. The administrative investigation conducted by the Associate Dean of Students/Title IX Coordinator for Student Affairs or her designee is separate from any criminal investigation. 

All Ball State employees who are not designated as a confidential resource under this policy are required to promptly share a report of sexual harassment, sexual violence, stalking, or intimate partner violence with the Institutional Title IX Coordinator or Associate Dean of Students/Title IX Coordinator for Student Affairs. In addition, there are a number of university personnel who are designated as “responsible employees.” Responsible employees have the additional authority and obligation to take action to redress the harassment in addition to their reporting duties. These employees include but are not limited to vice presidents, deans and associate deans, directors, and department chairpersons. Student resident assistants are also considered responsible employees. All employees, including responsible employees, are required to forward all known details of the reports they receive (including the identity of parties, time, date, location, and description of the alleged behavior) to the Institutional Title IX Coordinator or Associate Dean of Students/Title IX Coordinator for Student Affairs. 

Timeframe for Reporting 

The university encourages persons to report all incidents of sexual misconduct, including sexual assault, stalking, or intimate partner violence by students regardless of when or where the incident occurred. There is no time limit for reporting. Regardless of when the incident occurred, the university will provide support and assistance, and will respond consistent with the procedural options available at the time of the report. Even when a matter does not fall under the jurisdiction of the university, university employees will act to provide support and assist a complainant in contacting the appropriate law enforcement or external agency. 

Anonymous Reports 

Persons who wish to submit anonymous reports (which are examined to determine Clery Act timely warning and crime reporting requirements) can do so at www.bsu.edu/silentwitness, a service of the University Police Department. 

Amnesty for Violations of Other Policies 

Ball State strongly encourages reporting of sexual misconduct but also recognizes that incidents of sexual misconduct can occur in conjunction with other policy violations, such as underage drinking or illicit drug use. The university’s priority is to address sexual misconduct. Therefore, students who provide information regarding sexual misconduct will not be disciplined for their behavior (a) that violated the university’s alcohol or drug policies and (b) that is connected with the reported incident of possible sexual misconduct. However, in circumstances where students engaged in behavior that placed any person’s (including their own) safety or health at risk, the university may provide those individuals appropriate educational or therapeutic support. 

Academic Accommodations and Interim Measures 

When a student reports an incident of sexual misconduct to an office at the university, there are a number of immediate and interim measures that can be provided—in addition to the emergency and other support services described above—to ensure the safety and well-being of all parties and prevent retaliation by any party. The university will provide appropriate interim measures and accommodations regardless of the chosen course of action under this policy. A request for interim measures may be made by or on behalf of the complainant to the Institutional Title IX Coordinator, the Associate Dean of Students/Title IX Coordinator for Student Affairs, or the Office of the Vice President for Student Affairs/Dean of Students. The Institutional Title IX Coordinator will work through the Associate Dean of Students/Title IX Coordinator to ensure the implementation of appropriate interim steps and coordinate the university’s response to these individual cases with the appropriate offices on campus. 

These include but are not limited to: 

  1. Temporarily moving the student—if living in university housing—to other living/dining arrangements; 
  2. Assistance from university support staff in completing housing relocation; 
  3. Making alternative instructional arrangements (e.g., academic schedule) for the complainant, the respondent, or both; 
  4. Academic support, such as tutoring, rescheduling exams or assignments, or providing alternative course completion options; 
  5. Changes in class schedule, changing to a different course section if available, withdrawing from a class, or retaking a class without penalty; 
  6. Access to counseling services and assistance in setting up an initial appointment on or off campus; 
  7. Providing an escort to ensure safe movement between classes and activities; 
  8. Providing medical services; 
  9. Providing information to students and employees about visa and immigration assistance, and other available victim services, both on and off campus; and 
  10. Providing any other remedy which can be tailored to the involved individuals to achieve the goals of this policy. 

During the investigation of a complaint, additional measures can be taken that include but are not limited to the following: 

  1. Issuing written instructions to the respondent restricting him or her from making contact with the complainant (also known as an administrative “no-contact order”); 
  2. Assisting a complainant in identifying options to obtain orders of protection, no contact orders, restraining orders, or similar lawful orders issued by a criminal, civil, or tribal court; 
  3. Temporarily moving the respondent—if living in university housing—to other living/dining arrangements; 
  4. Making alternative instructional (e.g., academic schedule) or on-campus work schedule arrangements for the respondent; 
  5. Limiting an individual or organization respondent’s access to certain university facilities or activities pending resolution of the matter; and 
  6. Imposing an interim suspension on the respondent. 

Interim Suspension 

The following information about interim suspension is excerpted from section 6.5.3 of the Code and is provided here for convenience: 

“Under certain circumstances, a student accused of a violation of the Code of Student Rights and Responsibilities may be subject to interim suspension from the university prior to a University Review Board hearing. During the interim suspension, the student is subject to trespass from university property and facilities and is denied access to all classes, activities and privileges for which the student might be eligible. Interim suspension shall be imposed only when: 

a.  A student is deemed to be a threat to the safety and well-being of the university community or property, or 

b.  It is determined that such action would be beneficial to the student’s own safety and well-being, or 

c.  A student’s presence is deemed to pose a substantial threat of disruption to the university’s educational process. 

The decision to suspend on an interim basis shall be made by the Vice President for Student Affairs and Dean of Students or her designee. The student will be notified in writing of this action and the reasons for the interim suspension. The notice should include the time, date, and place of a subsequent hearing within three business days at which the student may show cause why his or her continued presence on the campus does not constitute a threat [and at which they may contest whether a violation of the Code took place]. The interim suspension may continue until the entire disciplinary process including appeal, is completed. Every effort will be made to complete the disciplinary process in a timely manner so as to limit the interim suspension to the shortest time possible.” 

Title IX Review and Investigation 

Overview of Procedural Options 

Upon receipt of a report, the Associate Dean of Students/Title IX Coordinator for Student Affairs or her designee will conduct an initial Title IX assessment. The goal of this assessment is to provide an integrated and coordinated response to reports of sexual harassment, sexual violence, stalking, and intimate partner violence. The assessment will consider the nature of the report, the safety of the individual and of the campus community, the complainant’s expressed preference for resolution, and the necessity for any interim remedies or accommodations to protect the safety of the complainant or the community. 

Following this assessment, the Associate Dean of Students/Title IX Coordinator for Student Affairs may: (1) seek a remedies-based resolution that does not involve disciplinary action against a respondent; or (2) seek resolution through adjudication procedures (outlined below) by initiating an investigation to determine if disciplinary action is warranted. The goal of the investigation is to gather all relevant facts and determine if there is sufficient information to refer the report for disciplinary action. 

Each resolution process is guided by the same principles of fairness and respect for all parties. The resolution process outlined in this policy to resolve complaints is designed to protect the rights of both the complainant and the respondent. Resources are available for students, whether as complainants or respondents, for support and guidance throughout the investigation and resolution of the complaint. 

Title IX Assessment 

The Associate Dean of Students/Title IX Coordinator for Student Affairs will conduct an initial Title IX assessment. In the course of this assessment, the Associate Dean of Students/Title IX Coordinator for Student Affairs will consider the interest of the complainant and the complainant’s expressed preference for manner of resolution. Where possible and as warranted by an assessment of the facts and circumstances, the Associate Dean of Students/Title IX Coordinator for Student Affairs will seek action consistent with the complainant’s request. 

  1. As part of the initial assessment of the facts, the Associate Dean of Students/Title IX Coordinator for Student Affairs will: 
  2. Assess the nature and circumstances of the allegation; 
  3. Address immediate physical safety and emotional well-being; 
  4. Notify the complainant of the right to contact, or decline to contact, law enforcement and seek medical treatment; 
  5. Notify the complainant of the importance of preservation of evidence; 
  6. Inform the University Police Department so that the reported conduct can be assessed regarding the need to issue a timely warning under the Clery Act; 
  7. Request the University Police Department to enter a report into the university’s daily crime log;
  8. Provide the complainant with information about on and off-campus resources; 
  9. Notify the complainant of the range of interim accommodations and remedies; 
  10. Provide the complainant with an explanation of the procedural options to resolve the complaint, including remedies-based resolution and resolution through adjudication procedures; 
  11. Inform the complainant and respondent of the right to have an adviser and/or support person for all subsequent meetings and proceedings; 
  12. Assess for pattern evidence or other similar conduct by respondent; 
  13. Discuss the complainant’s expressed preference for manner of resolution and any barriers to proceeding; and 
  14. Explain the university’s policy prohibiting retaliation. 

The initial review will proceed to the point where a reasonable assessment of the safety of the individual and of the campus community can be made and the university has sufficient information to determine the best course of action. 

At the conclusion of the Title IX assessment, the Associate Dean of Students/Title IX Coordinator for Student Affairs will determine the appropriate manner of resolution, which may include remedies-based actions or the initiation of an investigation to determine if adjudication is warranted. It is at the discretion of the Associate Dean of Students/Title IX Coordinator for Student Affairs to determine which method of resolution is appropriate. Any individual wishing to explore alternative dispute resolution methods is encouraged to discuss these options with the Associate Dean of Students/Title IX Coordinator for Student Affairs. 

The determination as to how to proceed will be communicated to the complainant in writing. Depending on the circumstances and requested resolution, the respondent may or may not be notified of the report or resolution. A respondent will be notified when the university seeks action that would impact a respondent, such as protective measures that restrict the respondent’s movement on campus, the initiation of an investigation, or the decision to involve the respondent in remedies-based resolution. 

Complainant Agency and Autonomy to Not Proceed 

The university will seek action consistent with the complainant’s request where possible. Where a complainant makes a report but requests that a name or other identifiable information not be shared with the respondent or that no formal action be taken, the Associate Dean of Students/Title IX Coordinator for Student Affairs will balance this request with the university’s dual obligation to provide a safe and non-discriminatory environment for all Ball State community members and to ensure fundamental fairness through due process which requires notice and an opportunity to respond before action is taken against a respondent. 

In the event that a complainant does not wish to proceed with an investigation or adjudication, the Associate Dean of Students/Title IX Coordinator for Student Affairs will determine, based on the available information, including any investigative report, whether the investigation or judicial resolution proceedings should nonetheless go forward. 

  1. In making this determination, the university will consider, among other factors: 
  2. Whether the complainant has requested confidentiality; 
  3. Whether the complainant wants to participate in an investigation or conduct hearing; 
  4. The severity and impact of the conduct; 
  5. Whether the reported misconduct was perpetrated with a weapon; 
  6. The respective ages of the parties; 
  7. Whether the complainant is a minor under the age of 18; 
  8. Whether the respondent has admitted to the conduct; 
  9. Whether the respondent has demonstrated a pattern of similar conduct; 
  10. The extent of prior remedial methods taken with the respondent; 
  11. The rights of the respondent to receive notice and relevant information before disciplinary action is initiated; 
  12. Whether the report reveals a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group; and 
  13. The existence of independent evidence. 

The university will take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation, but its ability to do so effectively may be limited based on the nature of the request by the complainant. The university will assess any barriers to proceeding, including retaliation, and will inform the complainant that Title IX prohibits retaliation and the university will take strong responsive action to protect the complainant. Where the university is unable to take action consistent with the request of the complainant, the Associate Dean of Students/Title IX Coordinator for Student Affairs or designee will communicate with the complainant about the university’s chosen course of action, which may include the university choosing to pursue action against a respondent on its own behalf. Alternatively, the course of action may also include steps to limit the effects of the alleged misconduct and prevent its recurrence that do not involve formal disciplinary action against a respondent or revealing the identity of the complainant. 

Remedies-Based Resolution 

Remedies-based resolution is designed to eliminate a hostile environment without or in addition to taking disciplinary action against a respondent. Where the Title IX assessment concludes that remedies-based resolution may be appropriate, the university will take immediate and corrective action through the imposition of individual and community remedies designed to maximize the complainant’s access to the educational, extracurricular, and employment activities at the university and to eliminate a hostile environment. Examples of protective remedies are provided in the earlier section Academic Accommodations and Interim Measures. Other potential remedies include increased monitoring, supervision, or security at activities or locations where the alleged misconduct occurred; targeted or broad-based educational programming or training; supported direct confrontation of the respondent; and/or indirect action by the Associate Dean of Students/Title IX Coordinator for Student Affairs, her designee or the university. Depending on the form of remedies-based resolution used, it may be possible to maintain the complainant’s anonymity. 

The university will offer mediation for appropriate cases, but will not compel a complainant to engage in mediation, to directly confront the respondent, or to participate in any particular form of remedies-based resolution. Mediation, even if voluntary, will not be used in cases involving sexual assault. The decision to pursue remedies-based resolution will be made when the university has sufficient information about the nature and scope of the conduct, which may occur at any time. Participation in remedies-based resolution is voluntary, and a complainant can request to end remedies-based resolution at any time. 

The Title IX Coordinator will maintain records of all reports and conduct referred for remedies- based resolution, which will typically be initiated within thirty (30) business days of the initial report. 

Investigation Procedures and Protocols 

Where the Title IX assessment concludes that further investigation and disciplinary action may be appropriate, the Associate Dean of Students/Title IX Coordinator for Student Affairs will initiate an investigation by designating one or more investigators who have specific training and experience investigating allegations of sexual harassment, sexual violence, stalking, and intimate partner violence. Any investigator chosen to conduct an investigation must be impartial and free of any actual conflict of interest. 

  1. Briefly, during an investigation, both the complainant and respondent have an equal right to 
  2. Protection under applicable privacy laws (e.g., FERPA); 
  3. Be informed of the university’s student conduct process; 
  4. Have an advisor of their choice (this person may be a friend, instructor, parent, or attorney) accompany and assist them during interviews, meetings or hearings. However, the advisor may not represent or speak for the complainant or respondent. Any expenses related to the advisor will be borne by the party; 
  5. Receive reports of the investigation’s status; 
  6. Present witnesses and evidence they believe to be relevant to the investigator; and 
  7. Meet with the investigator prior to the completion of the investigation to review the investigator’s preliminary report, request additional information (e.g., a witness) be considered, and be given an opportunity to provide a written response that will be included in the final report. 

The investigator will conduct the investigation in a manner appropriate given the case’s circumstances. The investigator will coordinate the gathering of information from the complainant, the respondent, and any other individuals who may have information relevant to the determination. Information gathering from parties may take the form of face-to-face interviews or through other means, will usually be recorded, and may include follow-up after an initial interview. The investigator will also gather and review any available physical evidence, including documents, communications between the parties, and other electronic records as appropriate. Technical rules of evidence regarding handling and preservation of information, such as are applied in a criminal proceeding, are not used in the university’s administrative investigations. 

The complainant and respondent will have an equal opportunity to be heard, to submit information, and to identify witnesses who may have relevant information. Witnesses must have observed the acts in question or have information relevant to the incident and cannot be participating solely to speak about an individual’s character. In gathering the facts, the investigator may consider prior allegations of, or findings of responsibility for, similar conduct by the respondent to the extent such information is relevant. 

The investigation is designed to provide a fair and reliable gathering of the facts. The investigation will be thorough, impartial, and fair, and all individuals will be treated with appropriate sensitivity and respect. As described in the earlier Privacy and Confidentiality section, the investigation will be conducted in a manner that is respectful of individual privacy concerns. Throughout the process, a complainant or respondent may have an advisor of his or her choice (this person may be a friend, instructor, parent, or attorney—any expenses related to the advisor will be borne by the party) present at any meeting related to the investigation. While the parties are not restricted from discussing and sharing information relating to their complaints with others that may support them or assist them, the university expects that the parties will respect the privacy of other parties and the integrity of the process. 

The university will seek to complete the initial fact-finding phase investigation within twenty-five (25) business days of receiving the complaint. This time frame may be extended for good cause as necessary to ensure the integrity and completeness of the investigation, to comply with a request by external law enforcement, to accommodate the availability of witnesses, to account for university breaks or vacations, or to address other legitimate reasons. Any extension of the timeframe, and the reason for the extension, will be shared with the parties in writing. Best efforts will be made to complete the process in a timely manner by balancing principles of thoroughness and fundamental fairness with promptness. 

At the request of law enforcement, the university may agree to defer its Title IX fact-gathering until after the initial stages of a criminal investigation have been completed. The university will nevertheless communicate with the complainant regarding Title IX rights, procedural options and the implementation of interim measures to assure the safety and well-being of all affected individuals. The university will promptly resume its Title IX fact-gathering as soon as law enforcement has released the case for review following the initial criminal investigation. 

Information gathered during the review or investigation will be used to evaluate the responsibility of the respondent, provide for the safety of the complainant and the university campus community, and take appropriate measures designed to end the misconduct, prevent its recurrence, and address its effects. 

The Associate Dean of Students/Title IX Coordinator for Student Affairs or her designee will document each report or request for assistance in resolving a report under this policy and will review and retain copies of all reports generated as a result of investigations. These records will be kept confidential to the extent permitted by law. 

Review of Investigation Report 

At the conclusion of the investigation, the investigator will prepare a written report that summarizes the information gathered and synthesizes the areas of agreement and disagreement between the parties and any supporting information or accounts. In preparing the report, the investigator will review all facts gathered to determine whether the information is relevant and material to the determination of responsibility given the nature of the allegation. In general, the investigator may redact information that is irrelevant, more prejudicial than informative, or immaterial. The investigator may also redact statements of personal opinion, rather than direct observations or reasonable inferences from the facts, and statements as to general reputation for any character trait, including honesty. 

Before the report is finalized, the complainant and respondent will be given the opportunity to review their own statement and, as permitted by FERPA, a summary of other information collected during the investigation, including the statements of the other party and any witnesses. A complainant and respondent may submit any additional comment or evidence to the investigator within three (3) business days of the opportunity to review the relevant portions of the report. 

Upon receipt of any additional information by the complainant or respondent, or after the three (3) day comment period has lapsed without comment, the investigator will finalize the report and submit it to the Associate Dean of Students/Title IX Coordinator for Student Affairs. 

Preliminary Determination 

The Associate Dean of Students/Title IX Coordinator for Student Affairs, in consultation with the Director of Student Rights and Community Standards, will make a preliminary determination, by a preponderance of the evidence, regarding whether a policy violation occurred. Both the complainant and respondent will be informed of this determination in writing. 

Insufficient Information to Warrant Subsequent Adjudication 

If the Associate Dean of Students/Title IX Coordinator for Student Affairs, in consultation with the Director of Student Rights and Community Standards, makes a preliminary determination that no policy violation occurred, the complainant will have the opportunity to seek review by the Institutional Title IX Coordinator by submitting a written request for additional review within three (3) business days. The respondent will be notified of this request and have the opportunity to respond within three (3) business days. The Institutional Title IX Coordinator may (1) agree with the preliminary determination, (2) reverse the finding and refer the case for adjudication, or (3) request that additional investigative steps be taken. The Institutional Title IX Coordinator will render a decision in writing to both parties within ten (10) business days of receipt of the request for review. The decision of the Institutional Title IX Coordinator is final. 

Sufficient Information to Warrant Subsequent Adjudication 

If the Associate Dean of Students/Title IX Coordinator for Student Affairs, in consultation with the Director of Student Rights and Community Standards, makes a preliminary determination that a policy violation occurred, the Associate Dean of Students/Title IX Coordinator for Student Affairs will forward the investigative report to the Office of Student Rights and Community Standards for a final determination regarding adjudication. 

University Adjudication Procedures 

Where there is a preliminary determination that a policy violation occurred, adjudication will be governed by the Ball State Code of Student Rights and Responsibilities and as modified below. Following the preliminary determination, the Director of Student Rights and Community Standards or his designee (Director) will prepare a notice of charge regarding the applicable sections of this policy. The notice will include a recommended sanction and/or remedy. This notice will be sent within five (5) business days of receipt of the final investigative report. 

The Director will request separate meetings with the parties to review the determination made by the Director and subsequent procedures including options for the respondent to (a) accept responsibility for the charged violation and seek an informal resolution or (b) contest the charged violation and request a hearing. 

As specified elsewhere, both the complainant and the respondent may be accompanied at this meeting by an advisor of their choice; 

Prior to the meeting, both the complainant and respondent have an equal right to review the final report and any other information that will be used at the meeting in a timely manner prior to the meeting; 

If the respondent accepts responsibility in writing and seeks an informal resolution, the Director may impose sanctions up to and including suspension but not expulsion from the university; 

If the respondent requests a hearing, the Director will convene the Sexual Misconduct Board to conduct a hearing and determine if a violation has occurred. The determination in the hearing will be made using a preponderance of evidence standard. 

Hearings 

  1. The Sexual Misconduct Board (SMB) is comprised of faculty and professional employees who undergo annual, comprehensive, and specialized training in order to hear sexual misconduct cases. For a hearing, three SMB members will comprise a hearing panel; one member will serve as a chairperson. Prior to the hearing, the SMB panel members will review the investigative report, witness statements, and relevant documentary evidence. 
  2. Both the complainant and respondent will be notified in writing of the date, time, and location of the hearing, their rights at the hearing, the names of the panelists, and information on how to raise issues about potential conflicts of interest on the part of any panelist. 
  3. Alleged violations of related conduct (other than sexual misconduct) that may have been committed by the respondent as part of the same incident may be addressed in the same adjudication procedure. The decision to do so will be at the sole discretion of the Director. The inclusion of related matters, however, will not delay the prompt resolution of a report of sexual misconduct. 
  4. Normally, the SMB panel will expect to hear testimony from the following persons: complainant, respondent, and the designated investigator(s). However, after its review of the case file, the SMB panel may instruct the Director to solicit any witnesses previously   interviewed by the investigator(s) to attend the hearing, provide testimony, and respond to additional questions.  The SMB hearing panel may limit or reject any other witness not interviewed previously by the designated investigator or requested by the SMB panel. Character witnesses will not be allowed to testify but may provide written statements to be considered at the time of sanction determination if a sanctioning recommendation is required. 
  5. The Director will be responsible at the hearing for compiling documentation for the SMB panel’s review and presenting the case against the respondent. 
  6. The parties’ rights at the hearing include being present at the entire hearing, presenting evidence and testimony, being allowed equal and timely access to information to be presented at the hearing, and being allowed the presence of an advisor of their choice. 
  7. The Director normally will make arrangements to convene hearings in such a manner to limit direct contact between the complainant and respondent but allows effective participation by both parties (e.g., conducting the hearing in separate rooms connected by teleconferencing). The Director will consider but retain the final decision regarding an arrangement where all parties are in the same room for the hearing if requested by either party and if both parties agree to such an arrangement. 
  8. The complainant and respondent may ask questions of each other by submitting questions in writing to the hearing chairperson (face-to-face “cross-examination” is not permitted). The chairperson may choose to ask some but not all questions on behalf of the party submitting the questions and also may choose to reword questions to improve the information gathered and/or to reduce confrontation. 
  9. The parties also will be allowed to question witnesses requested/allowed to provide testimony by the SMB panel. The questioning by the parties will proceed in a manner similar to that described above. 
  10. In order to meet Ball State’s obligations to investigate and address patterns of sexual misconduct, the university may admit previous accusations of sexual misconduct and violations of law and policy regarding sexual misconduct as evidence in hearings on current complaints. 
  11. Questioning or presentation of evidence about the complainant’s prior sexual conduct with anyone other than the alleged perpetrator will be prohibited, unless the information is relevant to explain a physical finding or motive. 
  12. While evidence of a prior consensual dating or sexual relationship between the parties may be presented, the SMB and the parties are advised that the prior relationship by itself does not imply consent or preclude a finding of sexual misconduct. 
  13. After conducting the hearing, the SMB panel will excuse all parties and deliberate with a professional staff member designated by the Student Rights and Community Standards office to serve as advisor and secretary to the panel. The SMB panel members will determine which facts they will rely on for their decision and then determine (a) that the respondent is responsible for a violation of the sexual misconduct policy or (b) that there is insufficient information to find the respondent responsible for a violation of this policy. If the SMB panel finds the respondent responsible for violating the sexual misconduct policy, it will make a recommendation for sanctioning to the Director. The decision, rationale, and sanctions if appropriate will be delivered to the Director in writing within three (3) business days of the decision. 
  14. In cases where a student is found responsible for sexual misconduct, the SMB panel is required to consider suspension or expulsion but may recommend any lesser sanctions it believes to be fair and proportionate to the violation and its impact on the complainant. 
  15. The Director may accept, lessen, or request specific reconsideration of the panel’s recommendations for sanctioning; he may not increase the severity of the recommended sanctions. 
  16. The Director will be responsible for finalizing the board’s finding regarding responsibility for the violation, reviewing the board’s recommendation for sanctions if applicable, determining appropriate sanctions, and notifying the parties of the hearing’s final outcome. 
  17. Any procedural right given to the respondent will be extended to the complainant and vice versa. 
  18. Any procedures for the hearing not specifically addressed above will be guided by section 6.5.5 Procedures for Disciplinary Hearings of the Code

Notice of Outcome 

Both the complainant and the respondent will be notified simultaneously in writing of the outcome of the informal resolution or hearing (that is, whether the sexual misconduct policy was found to have been violated) including a rationale for the decision and a statement of the parties’ options to appeal. The respondent also will be notified of all sanctions that have been imposed. In cases of sexual assault, the complainant will be notified of the same information; in cases of sexual misconduct violations less than assault, the complainant will be notified of the outcome and sanctions imposed against the respondent that are related directly to the complainant. Both the complainant and the respondent will also receive simultaneous written notification of any changes to the outcome before it becomes final and will be informed when the outcome is final. 

Ball State neither encourages nor discourages the subsequent disclosure of the written notification by either party. Ball State will not require any party to abide by a nondisclosure agreement, in writing or otherwise, that would prevent subsequent disclosure of information related to the outcome of the proceedings. 

Sanctions, Remedies, and Other Accommodations 

After the final determination of a disciplinary proceeding against a student for sexual misconduct, the Director may impose sanctions including but not limited to: disciplinary probation, mandated assessments, other educational sanctions, suspension, and expulsion (see the Ball State Code of Student Rights and Responsibilities section 6.6 Sanctions for a complete list of sanctions). The Director may also continue remedies and accommodations for the complainant already in place (e.g., continued restrictions on contact by the respondent or altered living, instructional, or work arrangements) and work with the Associate Dean of Students/Title IX Coordinator for Student Affairs to ensure additional needed remedies for the complainant, or the university community, or both are implemented. 

Appeals 

Either party may appeal the outcome of the proceedings. In cases where the respondent has accepted responsibility and sought an informal resolution in lieu of a formal hearing, the respondent and complainant may only appeal on the basis of the severity/insufficiency of sanctions. Sexual Misconduct Board panel hearing procedures and outcomes may be appealed on multiple bases that are limited to: 

  1. Substantial procedural error that unreasonably impaired the student or the hearing body; 
  2. An unduly harsh sanction (appeal by the respondent) or an insufficient sanction (appeal by the complainant); 
  3. New information of a substantive nature sufficient to alter a decision, because such information and/or facts were not known to the person appealing at the time of the original hearing; and 
  4. Information of substantial bias on the part of the disciplinary body hearing the case. 

Complete information about appeals can be found at section 6.5.7 Appeal Process in the Code.

Communication with Parties 

University-issued email is the primary means of communication used by the university. The Title IX Coordinator, Associate Dean of Students/Title IX Coordinator for Student Affairs, designated investigators, and the Director of Student Rights and Community Standards may deliver notice to parties by one or more of the following methods: 

  1. In person by the Title IX Coordinator or designated university administrator; 
  2. Mailed to the local or permanent address of the individual as indicated in official university records; or 
  3. Emailed to the individual’s university-issued email account. 

Notice sent via email will be presumed to have been received by parties. In all other circumstances, the party is expected to confirm receipt of the communication to the Associate Dean of Students/Title IX Coordinator for Student Affairs within three (3) business days. 

Ball State’s Clery Act/Annual Security Report Obligations 

Ball State is obligated to report the incidence of certain crimes that occur on and around Ball State property to the public and the U.S. Department of Education in an annual security report. Information from these incidents—when reported to Ball State police, the Associate Dean of Students/Title IX Coordinator for Student Affairs, other responsible employees, and Campus Security Authorities—is included in an aggregated statistical report which does not disclose any information that identifies complainants. Information about reported incidents of sexual misconduct is also examined to determine if timely warnings must be issued to Ball State community members. Likewise, timely warnings do not include any information that identifies complainants. More information about Ball State’s Clery Act/Annual Security Report obligations, including crime reports and information about Campus Security Authorities, can be found at www.bsu.edu/fireandsafetyreports

Prevention and Education 

Ball State employs a comprehensive, harm reduction approach to prevention of sexual misconduct as well as related alcohol abuse and other drug use. All new students to the university, beginning Fall 2014, will be provided an educational program that addresses sexual assault, consent, the role of alcohol and other drugs, stalking, intimate partner violence, risk reduction, and effective bystander intervention. The program also will introduce Ball State’s policies on sexual misconduct, alcohol, and other drugs. 

In addition to the program described above, a number of offices (e.g., Office of Victim Services, Counseling Center, University Police Department, and the Office of Health, Alcohol and Drug Education) provide regular programming for residence halls, classrooms, and student organizations. Programming is designed to meet the needs of the audience and campus wide social marketing campaigns are utilized annually. Targeted programming occurs during specific awareness campaigns such as National Collegiate Alcohol Awareness Week and Sexual Assault Awareness Month. 

Training 

Beginning Fall 2014, all new Ball State employees will be trained on policies, prevention, response, and reporting obligations regarding sexual misconduct. Training will be coordinated by University Human Resources. 

Faculty and staff members who are designated responsible employees, Title IX coordinators and designated investigators, members of the University Police Department, victim advocates, faculty, and staff members involved with adjudicating sexual misconduct cases are provided annual, comprehensive, and specific training on to how to respond appropriately to reports of sexual violence, reporting obligations, the extent to which they may keep reports confidential, how to identify and respond to sexual violence, bystander intervention, victimization and re-victimization, trauma-informed support, and to whom reports must be made. 

Maintenance of Records 

The university will maintain records of sexual misconduct complaints, including audio recordings of hearings, in a manner and for a period of time that complies with federal law including Title IX and the Clery Campus Safety and Security Act. 

Policy and Implementation Modifications 

This policy may be modified as needed, with published notice, and minor deviations may be made with notice to the parties in any complaint, when the deviation will not impact on the fairness of the process or the outcome of the complaint. Further, to the extent that any of the provisions of this policy are found to be inconsistent with state or federal law or regulations, those laws and regulations will be applied. 


Student Rights and Community Standards
L.A. Pittenger Student Center, Room L-4
2000 W. University Avenue
Muncie, IN 47306

Hours: M-F 8 a.m.-5 p.m.
Summer hours: 7:30 a.m.-4 p.m.
Phone: 765-285-5036
Fax: 765-285-2856
View E-mail Address