Marlboro College

Resources Policy on Sexual Harassment and Sexual Misconduct

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

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. The College will hold training during both new student orientations as well as employee education on the topics of policy and prevention. To assure adherence to federal law and best practice, this policy will be reviewed every three years by the Selectboard in consultation with the Board of Trustees.

Sexual Misconduct

MarlboroCollegeexpressly prohibits all forms of sexual misconduct as defined in this Policy, which includes sexual harassment and retaliation. This Policy applies to allMarlboroCollegestudents, faculty, and staff, as well as to participants in anyMarlboroCollegeprogram or activity, on-or off-campus. Impaired judgment due to alcohol or drug use does not excuse conduct that violates this Policy.

If You Have Been Sexually Violated:

The Complaint Process:

Complaints may be formal, informal, or anonymous. In an anonymous complaint, the Complainant may speak with a counselor in Health Services (in theTotalHealthCenter) to seek advice about an instance of sexual misconduct without naming the Respondent or initiating a formal or informal procedure. Conversations with Health Services are confidential.

An informal complaint process will entail the Complainant and Compliance Coordinator discussing the Complainant's desired resolution, and a meeting between the Compliance Coordinator, the Respondent, and the Complainant if he or she chooses to attend. The Compliance Coordinator may obtain a written agreement from the Respondent which will include compliance with the policy and may outline appropriate future conduct and behavior. Either the Complainant or Respondent may opt out of this procedure at any point. Individuals wishing to opt out of the process should understand that once the college is notified of a claim of sexual misconduct or retaliation, it has a legal obligation to investigate and take action if necessary.

A formal complaint process will initiate an investigation and hearing of the Sexual Misconduct Panel. This will entail interviews with the Complainant and Respondent, as well as witnesses. This procedure will conclude with a recommendation of sanctions, if any, from the Panel to the the Dean of Students (if the Respondent is a student), the Dean of Faculty (if the Respondent is a faculty member) or the Chief Human Resources Officer (if the Respondent is a staff member) .

Both Complainants and Respondents may have Advocates help them navigate this policy and process, including any meetings related to the case. The Compliance Coordinator is available to assist both parties in finding suitable Advocates.

For more information on the complaint procedure, please see the section titled Marlboro College Complaint Procedure. For more information on Advocates and the Compliance Coordinator, see the Definitions section.

Statement of the Complainant’s Rights

Statement of the Respondent’s Rights

Definitions of Sexual Misconduct

"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 (i) younger than 16, unless such person is at least 15 and the other person is less than 19 years old, (ii)  mentally disabled in a manner that precludes the person from understanding the nature or harmfulness of the activity, or (iii) 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.

Definitions of Sexual Harassment

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.

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:

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.

Definition of Retaliation

Retaliation against an individual for reporting, in good faith, sexual misconduct, or for cooperating in the investigation of a complaint of such 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 sexual misconduct or cooperated in or supported a complaint or investigation of sexual misconduct. Any person who believes that he or she is subject to retaliation should follow the complaint resolution procedures of this Policy.

Support and Resources

Marlboro College is committed to offering support to those who have experienced sexual misconduct. The Compliance Coordinator will discuss all available options with a person reporting sexual misconduct, including criminal and civil options, as well as the college's sexual misconduct complaint process. The college will also make these services available to people who have been indirectly involved in a sexual misconduct situation, even if they were not the victims. The Compliance Coordinator is encouraged to assist a Complainant and Respondent in acquiring an appropriate Advocate to provide advice and support.

A Complainant or a Respondent who is a student may at any time request that the College provide a change in their housing assignment, free of charge, for the purposes of safety. The Compliance Coordinator will work with the Complainant or Respondent and the Director of Housing and Residential Life to find suitable safe housing as soon as possible after the request is made. Safe housing may include temporary off-campus accommodation so long as transportation is readily available.

Prevention

Marlboro College is committed to the prevention of sexual misconduct and expects community members to participate in regular workshops. The Dean of Students, in consultation with the Sexual Misconduct Panel, will arrange for at least one prominently publicized educational training during each semester's student orientation aimed at the prevention of sexual misconduct. This training will take place when students will be present on campus and able to attend. The training will introduce students to this Policy and good practice. This workshop will be conducted by, at the very least, an expert in sexual misconduct education, and a member of the community who is familiar with this Policy.

 

Definitions of Parties Involved in a Complaint

Complainant

A Complainant may be any Marlboro College Community Member with knowledge of an act of sexual misconduct. Community members may bring complaints on behalf of Non-Community members, so long as the situation in question took place on school grounds or at an event sponsored by the school. The College Community shall include students, faculty, staff, and their respective spouses, kitchen staff regularly assigned to Marlboro College, and trustees when present.

Respondent

A Respondent is any Marlboro College Community Member against whom the Complainant is bringing a charge. The College Community shall include students, faculty, staff, and their respective spouses, kitchen staff regularly assigned to Marlboro College, and trustees when present.

Panel on Sexual Misconduct

The Panel on Sexual Misconduct 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 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 misconduct and a "mock hearing" of a case.

Advocate

The Advocates’ purpose is to provide support and advice to the Complainant or Respondent. Advocates must be members of the college community. The role of the Advocate 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. Any conflicts of interest will be reviewed by the Compliance Coordinator.

Marlboro College Complaint Procedure

If Marlboro College receives a complaint of sexual misconduct or retaliation 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 misconduct 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 its investigation under this Complaint Procedure until the criminal investigation is concluded.  Although the proceedings will be suspended, the rights, as applicable, of both the Complainant and the Respondent, as articulated in this document, will be maintained and Marlboro College will take whatever action it deems necessary for the safety and well-being of the Complainant and the college community, including, but not limited to, third party supervision, a no contact agreement, housing relocation, emergency suspension or alternative grade review.

1      Within three (3) business 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 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 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 five (5) business days of the date of the issuance of this report. These responses must be submitted to the Compliance Coordinator

5      Within five (5) business 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 Advocate at the hearing. The Advocates may be any member of the Marlboro community. The Complainant or Respondent may pause the proceedings at any point to speak with their Advocate 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 Advocates 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-recorded, except for the Panel's deliberations. The recording 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 recording will be available for review.

7      The Panel shall make its findings within four (4) business 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 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 misconduct or retaliation, the Panel will inform, in writing, the Complainant and the Respondent.

■      If the Panel finds that the Respondent’s actions constituted sexual misconduct or retaliation, it will promptly notify the Complainant to give the Complainant an opportunity to present a “victim impact statement” to assist in determining the appropriate sanction. Evidence that the Respondent has previous complaints against him or her that have been heard through the Sexual Misconduct process will here be introduced. The Panel may consult with the Deans or Chief Human Resources Officer to insure that the details of the execution of its sentence are both clear and practical. The Panel will forward its findings and recommendation for action to the Respondent, the Dean of Students (if the Respondent is a student), the Dean of Faculty (if the Respondent is a faculty member) or the Chief Human Resources Officer (if the Respondent is a staff member) who will affirm or modify the proposed sanction. When this individual determines the sanction, he or she shall notify in writing the Complainant, the Respondent and the Compliance Coordinator within three (3) business days of receiving the Panel’s findings and recommendation for 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 Chief Human Resources Officer.

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 Chief Human Resources Officer or the Dean of Faculty, as chair of the Committee on Faculty) within five (5) business 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. 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) business days from the receipt of the appeal.

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. Any mandated separation from the college for sexual misconduct shall recommend conditions that must be satisfied before the student's return. In the case that a student is separated from the college, the Panel will consider putting conditions into place which must continue to be met after the student's return.

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

1      The Title IX Coordinator
(802) 451-7160

Any Marlboro College Community Member involved with the college’s sexual misconduct procedure may file a complaint with the college’s Title IX Coordinator concerning how procedure was followed, violation of complainant or respondent’s legal rights, apparent conflicts of interest by Panel members or Compliance Coordinator or, other violation of policy that was not reviewed in an appeal process. Records of these complaints will be reviewed by the President and by the Chair of the Board of Trustees and the person making the complaint will be notified of any action taken in response.

2      Vermont Attorney General's Office
Civil Rights Unit, 109 State Street
Montpelier, VT 05602
tel: (802) 828-3172 (voice/TDD)

3      Equal Employment Opportunity Commission
John F. Kennedy Federal Building, Room 475
Boston, MA 02203
tel: (617) 565-3200 (voice), (617) 565-3204 (TDD)

4      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 policies from Antioch College, Hamilton College, Sarah Lawrence College, Hampshire College and Williams College.

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