Resources Policy on Sexual Harassment and Sexual Misconduct

It is against the policies of Marlboro College, and illegal under state and federal law, for any student, faculty or staff to harass another student, faculty, staff or visitor because of sex. Marlboro College is committed to providing a workplace and educational environment that is free from this unlawful conduct. Harassment need not be intentional; the effect and characteristics of the conduct determine whether the behavior constitutes sexual harassment.

Individuals with supervisory or oversight responsibility (for example, staff supervisors or faculty) are responsible for promptly reporting to the Sexual Harassment and Sexual Misconduct Compliance Coordinator (hereafter referred to as the "Compliance Coordinator") any complaint or suspected and/or alleged acts of sexual harassment.

The college will provide a copy of this Policy to every student, faculty, and staff, and extra copies will be available in the office of the Assistant to the President.

Sexual harassment is a form of sex discrimination and means unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:

1. submission to that conduct is made either explicitly or implicitly a term or condition of employment or academic standing;
2. submission to or rejection of such conduct by an individual is used as a component of the basis for employment or academic decisions affecting that individual; or
3. the conduct has the purpose or effect of substantially interfering with an individual's work or academic performance or creating an intimidating, hostile or offensive working or academic environment.

Examples of sexual harassment include, but are not limited to the following, when such acts or behavior come within one of the above definitions:

• either explicitly or implicitly conditioning any term of employment (e.g. continued employment, wages, evaluation, advancement, assigned duties or shifts) or academic standing ( e.g. admission, grades/evaluation, accessibility to classes/tutorials or plan work) on the provision of sexual favors;
• touching or grabbing a sexual part of an individual's body;
• touching or grabbing any part of an individual's body after that person has indicated, or it is known, that such physical conduct is unwelcome;
• continuing to ask an individual to socialize on- or off-duty when that individual has indicated she or he is not interested, including one who has been previously involved in a consensual relationship;
• displaying or transmitting sexually suggestive pictures, objects, cartoons or posters if it is known or should be known that the behavior is unwelcome;
• continuing to write sexually suggestive notes or letters if it is known or should be known that the individual does not welcome such behavior;
• referring to or calling an individual sexualized names if it is known or should be known that the person does not welcome such behavior;
• regularly telling sexual jokes or using sexually vulgar or explicit language in the presence of an individual if it is known or should be known that the individual does not welcome such behavior;
• making derogatory or provoking remarks about or relating to an individual's sex or sexual orientation;
• engaging in harassing acts or behavior directed against an individual on the basis of his or her sex or sexual orientation;
• creating a hostile environment by pursuing harassing acts or behavior directed against a third person or persons; or engaging in off-duty conduct which falls within the above definition and affects the work or academic environment.

It is helpful to an investigation if the employee, student or faculty member keeps notes regarding events and the names of people that witnessed or were told of the harassment.

Sexual Misconduct

Marlboro College expressly prohibits all forms of sexual misconduct as defined in this Policy. This Policy applies to all Marlboro College students, faculty, and staff, as well as to participants in any Marlboro College program or activity, on-or off-campus. Impaired judgment due to alcohol or drug use does not excuse conduct that violates this Policy.

Definitions

"Sexual misconduct" is all sexual contact that takes place without effective consent of all parties involved.

"Effective consent" means a voluntary agreement to engage in a sexual act. Effective consent must be actively given - through words or actions -- and it must be given freely and without coercion. The words or actions that make up effective consent should be mutually understandable to the parties involved. A reasonable person should be able to understand those words or actions, and the parties involved in the sexual act should indicate, through words or actions that would be understandable to a reasonable person, a willingness to do the same thing with each other, at the same time, in the same way.

Effective consent cannot be obtained by fraud or force (actual or implied), whether that force be physical force, threats, intimidation or coercion. A person who is the object of sexual aggression is not required to resist a sexual aggressor, physically or otherwise, and the absence of such resistance does not indicate consent. "Effective consent" does not include consent that is given by a person who is younger than 16, mentally disabled, intoxicated or otherwise impaired, or unable to make a reasonable judgment concerning the nature or harmfulness of the activity.

It is always the responsibility of the person initiating a specific sexual activity to make certain the other person has given effective consent. Even if a person has consented to some form of sexual activity, that doesn't mean he or she has consented to others. And even when both parties have previously consented to sexual activity, circumstances may change, and conduct that was once welcome may later be unwelcome. It is the right of either party to withdraw consent at any point during sexual activity. Effective consent cannot be inferred from silence, a previous sexual relationship, a current sexual relationship, the way someone is dressed or their acceptance of dinner or an invitation for a date.

Sexual misconduct also includes sexual exploitation. "Sexual exploitation" means someone taking non-consensual or abusive sexual advantage of another person, for his or her own advantage or benefit, or for the advantage or benefit of anyone other than the one being exploited. Some examples of sexual exploitation include videotaping private sexual acts without the knowledge or consent of all parties; "peeping tom" behavior; or incapacitating someone with alcohol or other drugs with the intent of raping or sexually assaulting them. Sexual exploitation may occur regardless of whether sexual activity takes place.

Sexual misconduct in all its forms is an act prohibited, in separate ways, by Vermont law and Marlboro College policy. Sexual misconduct may include sexual assault, rape, date rape, or any act considered to be a violation of Vermont's laws against sexual assault and sexual exploitation. Thus, offenders may be prosecuted under Vermont criminal statutes, and subject to disciplinary action by the college. The college may choose to pursue disciplinary action while criminal action is pending or even if criminal justice authorities choose not to prosecute.

Support and Resources

Marlboro College is committed to offering support to those who have experienced sexual harassment and sexual misconduct. The Compliance Coordinator provides immediate response, and the Total Health Center offers both individual counseling and health services. The Compliance Coordinator will discuss all available options with a person reporting sexual harassment or sexual misconduct, including criminal and civil options, as well as the college's sexual harassment and sexual misconduct complaint process. The college will also make these services available to people who have been indirectly involved in a sexual harassment or sexual misconduct situation, even if they were not the victims.

If You Have Been Sexually Violated:

Find a safe environment away from your attacker (it need only be temporary). When possible, ask a trusted person to stay with you and assist you with getting help. To obtain immediate medical care or to contact the police, phone 911 for emergency services. (To provide proof of a criminal offense, evidence must be preserved. Do not use the toilet, bathe, brush your teeth or change clothing prior to a medical/legal exam.) On weekdays, contact the Compliance Coordinator (802-451-7123 or x123 on campus) who will connect you with medical/mental health resources. On nights and weekends, the Student Life Advisor (SLA) should be paged (877-730-6051) . The SLA will contact the Compliance Coordinator. The Compliance Coordinator or a professional staff member from the Total Health Center will provide immediate assistance with safety issues such as relocation to a safe place and will support you throughout the emergency situation. A staff member from the Total Health Center will go with you or meet you at the hospital, stay with you during the interview process, assist you with getting to a safe place and help you with contacting other support persons. The Compliance Coordinator will assist you with filing a Marlboro College complaint (if desired) and connect you with health care and counseling resources. Services through the Total Health Center may be requested at any point after an incident of sexual harassment or sexual misconduct has occurred. For individuals who wish to seek counseling, confidential counseling resources at Marlboro College include: College Counselors (258-9249, 258-9250) and Director of Health Services (258-9225). Resources outside of the college community include: Women's Crisis Center (254-6954); Mental Health Services (254-0028 and 258-9250); and Brattleboro Hospital Emergency Room (257-8222).

Retaliation

Retaliation against an individual for reporting, in good faith, harassment, sexual harassment or sexual misconduct, or for cooperating in the investigation of a complaint of such harassment or sexual misconduct is unlawful and violates this Policy. Retaliation includes, but is not limited to, materially adverse acts that affect the educational or work environment of any individual involved in the complaint or the investigation such as, intimidation, reprisal, ostracism, action altering the person's duties or assignments, work or academic environment because the individual reported harassment or sexual misconduct or cooperated in or supported a complaint or investigation of harassment or sexual misconduct. Any person who believes that he or she is subject to retaliation should follow the complaint resolution procedures of this Policy.

Marlboro College Complaint Procedure

If Marlboro College receives a complaint of sexual harassment, retaliation or sexual misconduct, or otherwise has reason to believe that such conduct has occurred, it will take prompt remedial action. Marlboro College is committed, and required by law, to take action if it learns of harassment or retaliation, even if the party does not wish to file a complaint. As much as possible, Marlboro College will protect the identity of the person making the complaint ("Complainant") and of the accused party or parties ("Respondent"), except as is reasonably necessary to complete a full and impartial investigation. In the event that a complaint is filed with the police or the state's attorney, and a criminal justice investigation ensues, Marlboro College will suspend proceedings under this Complaint Procedure until the criminal investigation or prosecution is concluded. Although the proceedings may be suspended, Marlboro College will take whatever action it deems necessary for the safety and wellbeing of the Complainant and the college community.

• The Complainant should report the situation as soon as possible to either the Compliance Coordinator (802-451-7123, or x123 on campus), to his or her supervisor, to the SLA on Duty (page 877-730-6051) or to the appropriate Dean.
• The Compliance Coordinator will meet with the Complainant to discuss the complaint and explain the options the Complainant can pursue: a confidential discussion in which no individual is identified, an informal complaint resolution procedure, which identifies the Respondent, or a formal complaint resolution procedure that initiates an investigation and hearing.
• Anonymous Complaint in Which the Respondent is Not Identified. Under this option, the Complainant can speak with the Compliance Coordinator about the situation to seek feedback, advice or addition resources. Once a Respondent is identified by name, the conversation is no longer anonymous and one of the following two procedures may be enacted.
• Informal Complaint Resolution Procedure. If the Complainant decides to pursue an informal resolution, the Compliance Coordinator will obtain information from the Complainant about the objectionable behavior and will discuss the Complainant's desired resolution. The Compliance Coordinator shall present this information to the Respondent in a meeting with the Complainant (if he or she chooses to attend) and the Compliance Coordinator. The Compliance Coordinator will explain the College's Policy on Harassment and Sexual Misconduct and the prohibition on retaliation. The Compliance Coordinator will obtain a commitment from the Respondent to comply with the College's Policy, which may include a written agreement outlining appropriate future conduct and behavior. The Compliance Coordinator will make a written record to be kept on file in the Compliance Coordinator's office. The Compliance Coordinator will inform both the Complainant and the Respondent that the Compliance Coordinator's observations and written records might be subpoenaed at a later date and could become evidence in a later civil or criminal proceeding or college proceeding. The Compliance Coordinator will encourage both the Complainant and the Respondent to seek advice. Either the Complainant or the Respondent may opt out of the this informal resolution process at any point. If any party, including the Compliance Coordinator, is not satisfied with the progress or result of the informal complaint resolution procedure, the party may ask to begin the formal complaint resolution procedure.
• Formal Complaint Resolution Procedure. Any party involved in a claim of sexual harassment, sexual misconduct or retaliation may initiate the formal procedure which results in a hearing before the Panel on Sexual Harassment and Sexual Misconduct. The Panel shall be composed of the two faculty, two staff members, and two students evenly divided between men and women. The staff and faculty members shall be chosen through an application process and appointed by the President in consultation with the standing Panel, for an indefinite term. The two student Panel members shall be elected by Town Meeting for a one year term. With the assistance of the Total Health Center and the Dean of Students, the Compliance Coordinator will coordinate a comprehensive training at the start of the academic year for the Panel. This training shall include, but is not limited to, an in-depth review of this policy, general information about sexual harassment and sexual misconduct and a "mock hearing" of a case.
  1. Within three (3) calendar days of the complaint or the request to move forward with the formal complaint resolution procedure, the Compliance Coordinator or designee shall notify the Complainant and the Respondent in writing that a complaint has been filed. The notification shall include any conditions to be observed during the investigation, for example, third party supervision, no contact or alternative grade review. The appropriate Dean or supervisor shall implement the conditions. The Compliance Coordinator will also identify for the Complainant and Respondent the members of the Panel on Harassment and Sexual Misconduct and inform them of their right to challenge the participation of any member because of conflict of interest. If a Panel member is unavailable or when there is a real or perceived conflict of interest, the Panel member must remove herself or himself from the proceedings, and the Compliance coordinator shall appoint a substitute member, with the approval of the President.
  2. The Compliance Coordinator or designee ("Investigator") will conduct an investigation, which includes interviews of the Complainant, Respondent, and any witnesses with relevant information. To the extent possible, the investigator shall keep the witnesses' identities confidential and shall notify the witnesses of their obligation to maintain the confidentiality of the investigation and to not retaliate. The Compliance Coordinator will again inform both the Complainant and the Respondent that the Compliance Coordinator's observations and written records might be subpoenaed at a later date and could become evidence in a later civil or criminal proceeding or college proceeding. The Compliance Coordinator will remind all parties that either the Complainant or the Respondent may opt out of the formal complaint resolution process at any point. Individuals wishing to opt out of the process should understand that once the college is notified of a claim of sexual harassment, sexual misconduct or retaliation, it has a legal obligation to investigate and take action if necessary.
  3. Within two (2) calendar weeks of the complaint, the Investigator will submit an accurate and comprehensive report to the Complainant, Respondent, and the Panel
  4. The Complainant and the Respondent may submit written responses to the investigatory report within seven (7) calendar days of the date of the issuance of this report. These responses must be submitted to the Sexual Harassment Compliance Coordinator
  5. Within ten (10) calendar days from the date of the written responses of the Complainant and Respondent, the Panel shall hold a hearing. The hearing is closed. Either the Complainant or the Respondent may have an advisor at the hearing. The advisors may be any member of the Marlboro community. The role of the advisor is to advise and support, which may include asking a question on the Complainant or Respondent’s behalf, helping to prepare their statements and providing general support. The Complainant or Respondent may pause the proceedings at any point to speak with their advisor or dismiss them. The college may have its attorney present.
  6. Complainant and Respondent will have the opportunity to present evidence to the Panel, including the testimony of witnesses. Only the Panel may question witnesses directly. Respondent and Complainant may provide written questions for the Panel to direct to witnesses. The Panel may exclude testimony of witnesses that it deems to be cumulative, irrelevant or disruptive. The Panel shall not receive evidence of or consider Complainant's past sexual history, except evidence of a sexual relationship with the Respondent. The Panel shall not receive evidence of or consider Respondent's past sexual history, except evidence of a sexual relationship with the Complainant. The parties or their advisors will have the opportunity to provide a written or oral summation in support of their position based on the evidence. The hearing will be audio-taped, except for the Panel's deliberations. The tape shall be the property of the college and will be kept in a locked cabinet in the Dean of Students' office for a period of eight years from the date of the Panel's decision. In the event of an appeal, the tape will be available for review.
  7. The Panel shall make its findings within four (4) calendar days of the close of the hearing. The Panel shall apply the preponderance of evidence standard of proof to determine if the Respondent’s actions constituted sexual harassment, sexual misconduct or retaliation, which means that the Panel's findings must be supported by evidence that the existence of the contested facts is more probable than not.
     • If the Panel finds that there is insufficient evidence to support the complaint of sexual harassment, sexual misconduct or retaliation, the Panel will inform, in writing, the Complainant, Respondent and the appropriate Deans or the President.
     • If the Panel finds that the Respondent’s actions constituted sexual harassment, sexual misconduct or retaliation, it will recommend a sanction to the Deans or President. Evidence that the Respondent has previous complaints against him or her that have been heard through the Sexual Harassment and Sexual Misconduct process may here be introduced. The Complainant may also present a “victim impact statement” to assist in determining the appropriate sanction. The Panel may consult with the Deans or President to insure that the details of the execution of its sentence are both clear and practical. The Panel will promptly forward its findings to the Complainant, and its findings and recommendation for action to the Respondent, the Dean of Students, the Dean of Faculty or the President who will affirm or modify the proposed sanction. When the Deans or the President determine the appropriate sanction, he or she shall notify Respondent and the Compliance Coordinator within three (3) calendar days of receiving the Panel’s findings and recommendation for action. The Compliance Coordinator will notify the Complainant that the college has taken appropriate action. The findings and recommendation will be kept on file with the Compliance Coordinator and in the Respondent’s personnel or student file.
  8. If the Panel finds that the Complainant intentionally made a false report of conduct that violates this Policy or provided false information during the investigation, the Panel shall recommend suitable action to the appropriate Dean or the President.
  9. The Complainant may appeal the findings of the Panel and the Respondent may appeal the findings of the Panel and sanction to the Dean’s Advisory Committee (for decisions made by the Dean of Students) or the President (for decisions made by the Dean of Faculty, as chair of the Committee on Faculty) within five (5) calendar days from the date of the Dean's decision. If the President has a conflict of interest, the faculty appeal will be considered by the Chair of the Board of Trustees. Staff may request reconsideration of the President's decision within five (5) days from the date of the decision in accordance with the staff grievance procedure. Appeals must be submitted in writing, detailing the specific reason(s) for the appeal. Appeals will be limited to the following grounds: (1) consideration of new evidence that was not reasonably available at the time of the formal investigation or hearing on the matter; (2) an allegation of substantial procedural error on the part of the Investigator or the Panel; or, for the Respondent only, (3) the sanction imposed was disproportionate to the conduct violating the Policy. The designated committee or individual considering the appeal shall not conduct a new fact investigation but may consult with members of the Panel and shall have the authority to affirm, reverse or modify the decision and/or the penalty imposed, or to remand the matter to the college official imposing the sanction for further consideration. The decision on the appeal is the final appeal available internally to the college. Appeal determinations will generally occur within five (5) days from the receipt of the appeal. 1
  10. Potential remedies or sanctions may include but are not limited to: verbal or written warning, a signed contract describing commitment to future behavior, training, counseling, probation, leave of absence with or without pay, dismissal from employment or expulsion from school, temporary or permanent transfer to a different position, class or academic assignment, reassignment of work or academic work, or alteration of living or work environment.

Although individuals are encouraged to file a complaint of harassment or retaliation through Marlboro College's Complaint Resolution Procedure, the following agencies also process complaints of harassment:

1. Vermont Attorney General's Office
   Civil Rights Unit, 109 State Street
   Montpelier, VT 05602
   tel: (802) 828-3172 (voice/TDD)
2. Equal Employment Opportunity Commission
   John F. Kennedy Federal Building, Room 475
   Boston, MA 02203
   tel: (617) 565-3200 (voice), (617) 565-3204 (TDD)
3. Office of Civil Rights
   U.S. Department of Education
   Region I, Regional Civil Rights Director, John W. McCormack POCH
   Post Office Square, Rm 222
   Boston, Massachusetts 02109-4557
   tel: (617)223-9662 (voice), (617)223-9695 (TDD)

Portions of this policy have been adapted from The Antioch College Sexual Offense Prevention Policy and the Hamilton College policy on Sexual Misconduct.