StudentRights150D

Appendix K - Sexual Misconduct Policy

Introduction

 Sexual misconduct of any kind is inconsistent with the University’s values and incompatible with the safe, healthy environment that the Ball State community expects. All members of this community share responsibility for creating and maintaining an environment which promotes the safety and dignity of each individual. Sexual misconduct in any form (including sexual harassment, sexual assault, rape, etc.) will not be tolerated at Ball State. Federal law views sexual misconduct and sexual assault as forms of sexual harassment prohibited under Title IX. Sexual assault also violates state law as well as University policy. Students found responsible for sexual misconduct or sexual assault will ordinarily face disciplinary sanctions up to and including expulsion from the University.  In addition to sanctions imposed on students found in violation of this policy, victims can expect the University to respond promptly and effectively and to take the victim's wishes into consideration in responding.

The University believes that no person should bear the effects of sexual assault alone.  When sexual misconduct occurs, the University’s paramount concern is for the safety, health, and well-being of those impacted. To support and assist students, the University provides a wide range of services and resources. Please see the section below on Resources to learn more.

Application

This policy applies to Ball State students as defined in the Code of Student Rights and Responsibilities (or Code which may be found at www.bsu.edu/studentcode). The Code provides that any person may file a complaint against a student. Complaints of sexual misconduct by an employee should be filed with the Office of University Compliance (AD 335, 285-5162) or with the Ball State Police by calling (765) 285-1111. Complaints of sexual misconduct by a third party should be filed with the Ball State Police (765) 285-1111.

Sexual Misconduct Offenses

Sexual misconduct offenses include, but are not limited to: 

    Non-consensual sexual intercourse is any sexual intercourse by any person upon another without  consent. It includes oral, anal, and vaginal penetration, to any degree, with any object. 

    Non-consensual sexual contact is any sexual touching, with any object, by any person upon another, without consent. Sexual touching is contact of a sexual nature, however slight. It includes, but is not limited to, disrobing or exposing another person.

Other forms of sexual misconduct include, but are not limited to:

  • Sexual exhibitionism
  • Sex-based cyber-harassment
  • Prostitution or the solicitation of a prostitute
  • Peeping or other voyeurism
  • Going beyond the boundaries of consent, e.g., by allowing others to view consensual sex or the non-consensual video or audiotaping of sexual activity.

Other forms of misconduct may fall under this policy when gender-based.  They include, but are not limited to:

  • Causing or threatening physical harm
  • Intimidation
  • Discrimination
  • Hazing
  • Bullying
  • Intimate partner, domestic or relationship violence
  • Stalking

Sexual harassment as defined in Appendix J. Sexual Harassment Policy.  Paraphrased for brevity, sexual harrassment is:

  • Unwelcome, gender-based verbal or physical conduct that is...
  • sufficienty severe, persistent, or pervasive that it...
  • unreasonably interferes with, denies, or limits someone's ability to participate in or benefit from the University's educational program and/or activities, and is....
  • based on power differentials (i.e. quid pro quo), the creation of a hostile environmental or retalation.

Consent is knowing, voluntary, and clear.  Consent is effective when it is an informed, freely, and actively given mutual agreement, communicated by clearly understandable words, to participate in each form of sexual activity. Consent cannot be inferred from silence, passivity, or lack of active resistance. A current or previous dating or sexual relationship is not sufficient to constitute consent, and consent to one form of sexual activity does not imply consent to other forms of sexual activity. By definition, there is no consent when there is a threat of force or violence or any other form of coercion or intimidation, physical, or psychological. A person who is the object of sexual aggression is not required to physically or otherwise resist the aggressor; the lack of informed, freely given consent to sexual contact constitutes sexual misconduct.

In addition, having sexual activity with someone who one knows to be, or reasonably should know to be incapable of making a rational, reasonable decision about a sexual situation policy is a violation of this policy. For example, a person who:

    is incapacitated by alcohol or drug consumption; or

    is unconscious, asleep, or otherwise physically impaired; or

    has a cognitive or emotional impairment

is incapable of giving effective consent. Having sex with such a person is a violation of this policy; being intoxicated is not an excuse for failure to obtain consent.

 
Privacy and Confidentiality

    Confidential Resources

Under Indiana law, if a student wishes the details of an incident to be kept confidential, she or he can speak with counselors at the Ball State Counseling Center, Student Health Center, Office of Victims Services, or off-campus rape crisis resources, such as A Better Way, the IU Ball Memorial Hospital Emergency Room, other health providers, or pastoral counselors. These individuals will honor confidentiality unless there is an imminent danger to the student or to others.

    Limits of Confidentiality and Mandated Title IX Investigations

In all instances and to the extent possible, the University will protect the privacy of all parties to a report of sexual misconduct or sexual assault. That said, under federal law, campus officials (with the exception of those listed under Confidential Resources, above) who receive a report of sexual misconduct, whether from the student involved or a third party, must share that information with the appropriate University authorities for investigation and follow-up.

An administrative investigation under Title IX must be initiated if the University has enough information to reasonably determine key facts, e.g., time, date, location, and names of parties involved in an alleged incident. Victims who wish to make Jane/John Doe reports that omit these specifics may do so by contacting the Office of Victim Services to access support and resources without initiating a formal University response.  When sufficient details are provided, the administrative investigation will include a review of statements obtained from either party, interviews with both parties, interviews with witnesses as appropriate, and review of relevant documentary evidence, and will be conducted by the Assistant to the Vice President for Student Affairs/Deputy Coordinator for Title IX or his/her designee when the accused person is a student.

The University will seek the complainant’s consent prior to beginning the investigation. However, the University is obligated to conduct at least a preliminary investigation regardless of the complainant’s requests, to determine how best to protect the University community. In the course of the administrative investigation, information will be shared as necessary with people who need to know, such as investigators, witnesses, and the accused while still making every effort to maintain the privacy of the complainant.  At no point will a complainant be required to participate in the process, which can proceed on the basis of other available information, should she/he choose not to participate.

As required by Title IX and in accordance with the Ball State Code of Student Rights and Responsibilities, the University typically will not wait for criminal investigations or criminal proceedings to conclude or begin before beginning its own administrative investigation. When the University must delay temporarily to delay its investigation in order not to interfere with criminal investigations, it will resume promptly its investigation once notified that police have completed gathering evidence.

Reporting Sexual Misconduct and Sexual Assault

To report an incident of sexual misconduct or sexual assault, call Ball State Police at 285-1111; Ball State police officers are available 24 hours a day, 7 days a week. During business hours, persons wishing to report sexual misconduct by a student may also call or email.

  • the Assistant to the Vice President for Student Affairs/Deputy Coordinator for Title IX or her designee (Deputy Coordinator) at (765) 285-1545

The University encourages persons to report all incidents of sexual misconduct including sexual assault, rape, stalking, or relationship violence by students to the Ball State Police regardless of where the incident occurred.

Incidents of sexual misconduct involving students that are reported to Ball State Police will also be referred to the Deputy Coordinator for follow-up and administrative investigation. Similarly, the Deputy Coordinator or her designee 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 to another law enforcement agency. The administrative investigation conducted by the Deputy Coordinator or her designee is separate from any criminal investigation.

Other University Responses to Sexual Misconduct Complaints

Whenever the University receives a report of sexual misconduct or sexual assault, complainants who are members of the University community may be referred to an advocate from the Office of Victim Services (OVS—located in Rm. 205 of the Student Health Services Building at 1500 W. Neely Ave. (www.bsu.edu/ovs) who can serve as a resource person to the complainant to identify, explain and navigate the complainant’s reporting options and the available support services. This can include but is not limited to referrals to counseling, educational support, medical treatment, and information about University processes, criminal processes, and legal assistance. 

The advocate can also assist the complainant with working with appropriate offices to make reasonable accommodations such as but not limited to:

  • issuing written instructions to the accused student restricting him or her from making contact with the complainant;
  • temporarily moving the complainant or the accused or both—if living in University housing—to other living/dining arrangements; or
  • making alternative instructional arrangements for the complainant, the accused student or both.

Intimidation or Threats to Inhibit Reporting

Any actual or threatened retaliation act of intimidation, or other adverse action to prevent or otherwise obstruct the reporting of sexual misconduct or the participation in proceedings relating to sexual misconduct by an accused student or third party is itself prohibited and may result in criminal proceedings or disciplinary proceedings or both. A complainant or witness who is threatened in any way should immediately report these concerns to the Ball State police by calling (765) 285-1111.

University Disciplinary Procedures

Administrative investigations of complaints of sexual misconduct against students will be conducted by the Deputy Coordinator or her designee. Should the investigation result in a finding, using a preponderance of evidence standard, that a student has violated this policy, the matter will be referred to the Office of Student Rights and Community Standards for adjudication using procedures outlined in the Ball State Code of Student Rights and Responsibilities found at www.bsu.edu/studentcode. Those procedures are briefly described below and include but are not limited to:

  • a determination by the Director of Student Rights and Community Standards of whether to charge the accused student with a violation of this sexual misconduct policy using a preponderance of evidence standard;
  • providing the accused student the option to accept responsibility for the violation and seek an informal resolution or request a hearing:
    • if the accused student accepts responsibility in writing and seeks an informal resolution, the Director may impose sanctions up to and including suspension from the University;
    • if the accused student requests a hearing, a hearing of the University Review Board (a body comprised of University students, faculty, and professional staff members) will be convened to determine if a violation has been occurred. The determination will be made using a preponderance of evidence standard;
  • Alleged violations other than sexual misconduct that may have been committed by the accused student as part of the same incident will be addressed in separate procedures;
  • Mediation will not be used to resolve sexual assault complaints.

Hearings 

  • The Director, having made the determination to charge the accused student with a policy violation, will serve as the official complainant at the hearing; the initial complainant will serve as the complaining witness;
  • Both the initial complainant and accused student will be notified in writing of the date, time, and location of the hearing and their rights at the hearing including being present at the entire hearing, presenting evidence and testimony, presenting witnesses, equal and timely access to information to be presented at the hearing, and the presence of an advisor (who may be an attorney) whose role in the hearing is limited;
  • Both the initial complainant and accused student may ask questions of each other and of witnesses through the hearing chairperson (so-called “cross-examination” is not permitted);
  • The Director may make arrangements to convene hearings in such a manner that contact between the initial complainant and accused student is limited but allows effective participation by both parties (e.g., conducting the hearing in separate rooms connected by teleconferencing).
  • In order to meet its obligations to investigate and address patterns of sexual misconduct, Ball State will admit behavior of previous accusations and violations of law and policy as evidence in hearings on current complaints. 

Notice of Outcome

Both the complainant and the accused student will be notified in writing of the outcome of the informal resolution or hearing and any appeal (that is, whether the sexual misconduct policy was found to have been violated). The accused student will also be notified of all sanctions that have been imposed and procedures for appeal. The complainant will be notified of sanctions imposed against the accused student that are related directly to the complainant (for example, if the accused student is restricted from making contact with the complainant) and procedures for appeal.

Sanctions

The university, following a final determination of a disciplinary proceeding against a student for sexual assault, may impose sanctions including but not limited to disciplinary probation, suspension, and expulsion (see the Ball State Code of Student Rights and Responsibilities for complete list of sanctions). 

Timely Resolution

The University will strive to resolve complaints in a timely and reasonable timeframe. Typically, a full investigation will take no longer than 60 calendar days. Resolution through an informal resolution or hearing will typically take place within 14 school days after completion of the investigation. The notice of outcome will come within three school days after the resolution is completed. Appeal procedures typically will be completed within seven school days after notice of outcome is delivered. If circumstances (for example, a complaint involving multiple incidents, complainants, and/or accused students) require longer timeframes, these will be documented and the complainant(s) informed of the need for additional time.

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 Security Act. 

Resources

It is especially important for students who have been sexually assaulted to seek immediate and appropriate medical treatment. The Student Health Center (at 1500 Neely Avenue). The phone number is (765) 285-8431; the website is www.bsu.edu/healthcenter. The Student Health Center is equipped to provide confidential and professional medical care. The Student Health Center can provide medical care, treatment for injuries and infection, assistance and support. The Student Health Center staff does not perform procedures related to the collection of evidence for the purposes of pursuing criminal prosecution. Students are encouraged to seek evaluation for the collection of evidence, which is most useful if collected within 120 hours of the assault.  Assistance is offered for transportation to the Ball Memorial Hospital Emergency Room 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 by the Women’s Center located within the Student Health Center on the second floor.

The Counseling Center , located in Lucina Hall 320, is staffed by trained professionals who can provide specialized support and assistance to students who have been assaulted. Current students may seek counseling at any time after the incident. The confidential services of the Counseling Center are available to the student or employee who was assaulted. The Counseling Center can be reached at 765-285-173 (during office hours) and 765-747-7330 for after-hours emergencies. The Counseling Center website is www.bsu.edu/counselingcenter.

The on-campus resources listed above are available to all Ball State students including accused students and witnesses in sexual misconduct and sexual assault cases.

The Office of Victim Services (OVS) provides educational and supportive services for the Ball State University community related to sexual assault, relationship 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 judiciary 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 dispatch 765-285-1111 and requesting the on-call victim advocate be paged.

Off-campus support services include but are not limited to:

     A Better Way (advocacy services for victims of sexual assault and a participating member of the Delaware County Sexual Assault Response Team (SART) (765) 288-4357 (HELP).

     The Indiana University Ball Memorial Hospital Emergency Room (ER--located at 2401 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. IU Ball Memorial ER staff may ask if the student wishes to speak to the police; this decision is up to the student. The IU Ball Memorial Hospital Emergency Services can be reached by calling 911 or (765) 747-3241.

For more information about resources, please visit www.bsu.edu/ovs or call the Office of Victim Services at (765) 285-7844.

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.

Revised April 3, 2013

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

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