University Sexual Misconduct Policy

Student Sexual Misconduct Policy

The Student Sexual Misconduct Policy is a component of the University Sexual Misconduct Policy.

 

Updated August 14, 2020

Section 1 - STATEMENT

Southwestern University is a community of trust dependent upon strict adherence to standards of conduct by its members. Sexual misconduct violates the dignity of individuals and will not be tolerated within our community. It is a form of discrimination based on sex or gender that violates federal Title IX regulations and is prohibited by University policy. In some cases, sexual misconduct can also be a violation of criminal law. Students at Southwestern University are charged with the responsibility of being familiar with and abiding by the standards of conduct set forth herein.

Southwestern University affirms the rights of its students to live, work, and learn in an atmosphere of mutual respect, free from the threat of sexual misconduct. Accordingly, any form of sexual misconduct will not be tolerated. Southwestern University values the rights and dignity of all members of its community. 

Sexual misconduct (whether on or off campus) affects the emotional, physical, and psychological well-being of the Complainant (the person alleging they were harmed in violation of policy) and Respondent (the person alleged to have done the harm). The University has an obligation to investigate and resolve cases in which students feel they have been violated, and to do so in a timely manner. State and federal law, including Title IX of the Education Amendments of 1972, prohibits sex/gender-based discrimination. Title IX covers all of the University’s programs and activities, and Title VII of the 1964 Civil Rights Act, as amended, also prohibits sex discrimination in employment. Consistent with these legal requirements, Southwestern University is committed to providing a campus environment free of discrimination based on sex, race, color, religion, age, disability, national or ethnic origin, sexual orientation, gender identity/transgender status or any other impermissible factor. 

Southwestern University prohibits sexual harassment, sexual violence including sexual assault and other non-consensual sexual touching (forcible or not), relationship violence (including domestic and

dating violence), stalking and other gender-based misconduct. Retaliation against anyone who reports an incident of sexual misconduct is strictly prohibited. All universities are required by law to name a Title IX coordinator to manage campus sexual misconduct issues. That person’s role is to oversee reporting requirements; to ensure procedures and educational resources are in place; and to identify and address any patterns or systemic problems revealed by such reports and complaints. Southwestern University has designated the Associate Vice President for Human Resources, Elma Benavides, as the Title IX Coordinator. In addition, a Deputy Title IX Coordinator has been identified as the Dean of Students.

All employees of the University are required by state law (Senate Bill 212) to promptly report allegations of sexual misconduct that they learn about or observe to the Title IX Coordinator or Deputy. The University encourages other members of the University community to report any concerns or complaints of sexual misconduct as well.

The University takes all allegations of sexual misconduct seriously and will respond to all complaints, reports, allegations and information about sexual misconduct, of which it is aware. A student Complainant initiates the investigative process by making a report to any University employee (who must report to the Title IX Coordinator or Deputy), directly to the Dean of Students, or through the online reporting form (https://www.southwestern.edu/life-at-southwestern/title-ix/help-for-sexual-misconduct-sexual-assault/). A Complainant may also inform the University of an incident of sexual misconduct but request that no action be taken. The Dean of Students will in their discretion weigh the request against the University’s obligation to provide a safe, non-discriminatory environment for all members of the community. The University seeks consent from Complainants prior to conducting an investigation. Declining to consent to an investigation will be honored unless the University determines in its discretion that an investigation is required in order to prevent serious future physical harm to the Complainant or community. If the University determines that an investigation is required, it will notify the Complainant and take appropriate action. 

The University is committed to assisting victims/survivors of sexual misconduct through various resources and support services. To receive confidential support before or after making a report, the University encourages assistance from the counseling/health center and/or medical attention. Students are also encouraged to make reports to local law enforcement and/or to SUPD and have evidence collected, if this aligns with their wishes. In addition, the University discipline system can be used concurrently or independent from the legal system.

Section 2 - JURISDICTION

Southwestern University has the right to review and respond to on- and off-campus violations of the University’s Student Sexual Misconduct Policy by students, groups of students, or student organizations (see definitions in Section 16). Anyone may report a violation. The University may take disciplinary action in response to incidents that take place during official functions of the University, or those sponsored by registered student organizations, or incidents that have a substantial connection to the interests of Southwestern University regardless of the location in which they occur. This Sexual Misconduct Policy applies to all students, regardless of sexual orientation or gender identity, and applies to third parties. When a student is convicted of any crime, whether it took place on or off campus, the University reserves the right to pursue its own internal disciplinary proceedings. An action involving a student in a legal proceeding in civil or criminal court does not affect the University’s ability to pursue its own internal disciplinary proceedings.

Under certain circumstances and with some conditions, violations of this policy will qualify as “Sexual Harassment” as defined by implementing regulations for Title IX of the Education Amendments of 1972 (see 34 C.F.R. § 106 et seq.). Those violations will be addressed under the separate “Title IX Policy.” All other violations will be addressed under this policy.

Section 3 - DEFINITION OF SEXUAL MISCONDUCT

Southwestern University prohibits sexual harassment, sexual violence including sexual assault and other non-consensual sexual touching (forcible or not), relationship violence (including domestic and dating violence), stalking and other gender-based misconduct. The University defines sexual misconduct as any non-consensual sexual contact between students, including but not limited to unwanted sexual touching and/or sexual intercourse. Sexual touching includes, but is not limited to, any touching of the breasts, buttocks, groin or genitals or the use of any of these parts for touching another. Sexual touching includes forcing one to self-touch on any of these parts. The definition of sexual misconduct includes contact by means of an object.

In University disciplinary proceedings, consent to sexual acts requires affirmative verbal response to specific sexual suggestion. Consent is a voluntary, ongoing, non-impaired, verbal expression of agreement to engage in each instance and stage of sexual activity. The absence of “no” does not mean “yes.” Participation in social activities, sexual history, previous sexual involvement, or a lack of response does not itself create consent. Consent is not effective when any participant in the sexual activity is unsure if a knowing, intentional, voluntary agreement to engage in each act of sexual activity has been demonstrated. Consent to one act does not imply consent to another; past consent does not imply future consent.  Any expression of an unwillingness to engage in any instance of sexual activity establishes a presumptive lack of consent. Knowledge of consent is the responsibility of each person involved in every instance of sexual activity, and consent may be withdrawn at any time by any party. 

An individual is unable to provide consent to engage in sexual activity when the individual:

  • is under age 17 and (1) is not a spouse of the Respondent or (2) is more than three years older than the victim at the time of the offense;
  • has a mental disorder or developmental or physical disability that renders her or him incapable of giving knowing consent;
  • is asleep, unconscious, or physically unable to resist; or
  • is incapacitated from alcohol or other drugs, and this condition was known, or reasonably should have been known, by the Respondent.

“Incapacitated” refers to a state of being that prevents an individual from having the mental ability, emotional stability, or maturity to provide consent at the time the alleged behavior occurs. Incapacitation could result from the use of drugs or alcohol, a person being asleep or unconscious, or because of an intellectual or other disability or medical condition.

A person is incapacitated and cannot consent if that person: 

  • lacks control of their motor skills; 
  • is unable to understand what is happening or make informed judgments; 
  • is intoxicated to the point of a potential black out; or 
  • is asleep or unconscious for any reason, including voluntary or involuntary use of alcohol or drugs. 

An individual, who engages in sexual activity when the individual knows, or should reasonably know, that the other person is incapacitated, has violated the policy.

Students who are not sure if they are interacting with a person who is incapacitated should, as a matter of practice, avoid engaging in a sexual act with that person at that time. A person who has ingested a “date rape” or other drug or is blacked out may not appear incapacitated; nonetheless this person may be incapable of consent. Thus, a student who has sexual interactions with anyone who may be under the influence of any substance is vulnerable to accusations of violations of this policy.

Possession, use and/or distribution and/or administering of any incapacitating drugs, is prohibited and is a violation of this policy. It is not an excuse that the respondent party of sexual misconduct was drunk/intoxicated, and therefore did not realize the incapacity of the other.

Consent cannot be given or obtained when there is any form of intimidation, coercion, including but not limited to, the application or threat of physical force, threat of social disparagement to the victim, threat to withhold benefits to which the victim may be entitled, or any other factor that would eliminate an individual’s ability to exercise their own free will to choose whether or not to have sexual activity. Coercion may include tacit coercion, as may happen when one party holds significant power over another. Such a power differential may make verbal expressions of consent by the less powerful party open to doubt in any disciplinary proceeding.

Three principles are critical in understanding the University’s position in regards to sexual misconduct:

  1. Consent of all parties is mandatory and must be verbal.
  2. Consent may be withdrawn by either party at any time via verbal or non-verbal communication.
  3. Alcohol and other drugs impair judgment and undermine the possibility for consent.

A student organization (as defined in Section 16) may be held responsible for sexual misconduct when any of the following conditions exist:

  1. the violation occurs on its premises with the knowledge and/or involvement of a member of the organization, or when a reasonable and prudent person would conclude that a member of the organization should have had such knowledge;
  2. the violation occurs in conjunction with an organization-related event, regardless of whether the event is held on or off campus;
  3. one or more members of an organization permit, encourage, aid, or assist any of its members, alumni/alumnae, or guests in committing a violation;
  4. one or more members of a student organization, under circumstances where such persons knew or should have known that an action constituting a violation was occurring or about to occur, fails to prevent that action or to intercede on the victim’s behalf;
  5. one or more members of an organization fail to immediately report to appropriate University authorities their first-hand knowledge of a violation;
  6. alcohol or other drugs made available or were knowingly allowed by the organization during an organization-related event were a factor in a violation, and that organization did not take reasonable precautions to ensure the safety of the members and their guests.

If a student organization meets any of the above criteria and any member(s) of the organization self-report an incident to the University and cooperate with any investigation(s), it will be taken into consideration as an act of good faith when determining any sanctions. If the University discovers that the student organization knowingly withheld information, the organization may be subject to additional sanctions.

Section 4 - IMMEDIATE RESPONSE OPTIONS

NOTE ON POLICE PROCEDURE: If a crime is reported to police in the State of Texas, they may be obligated to pursue an investigation even without the victim’s consent. Therefore, reporting an assault to the police is not a confidential process. Students who choose to file a report are encouraged to bring a trusted friend or family member for support. An SU counselor or an advocate from Williamson County Crisis Center (also known as Hope Alliance) can also be available to accompany students through the reporting process.

  • A student who believes they have had an unwanted sexual experience (even if they are unsure), may contact SU Police 24 hours a day by calling 512.863.1944. The SU Police will help the student get to the appropriate hospital for medical treatment, if necessary. Students may also call 911 if the sexual misconduct happened off campus. The student does not have to press charges; however, the student should understand that, if a crime has occurred, police officers in the State of Texas (including SU Police) are obligated to pursue an investigation with or without the student’s consent.
  • When seeking immediate medical treatment, there are several options. We suggest the first call is to either Brave Alliance (512.738.8817) or SAFE Alliance (512.267.7233). Both agencies have SANE Nurses on call 24/7, with Brave Alliance being located in Georgetown and SAFE Alliance in Austin, who will provide completely free and confidential SANE Nurse services. A SANE Nurse is a specially trained medical provider who can conduct a rape examination to preserve evidence should the student decide to pursue criminal charges either now or in the future. The nurse will walk the student through their options for seeking medical services including pros and cons for each available option. Obtaining medical attention is highly encouraged to ensure the student’s injuries are treated and medication provided to treat certain STD’s, and to receive information about HIV/AIDS and pregnancy prevention. If the student desires medical treatment only, they may utilize services at the University Health Center located on the second floor of the Prothro Center. The contact number is 512.863.1252.
  • When seeking immediate medical treatment, there are several options. We suggest the first call is to SAFE Alliance (512.267.7233). SANE Nurses on call can meet you at either St. David’s - Georgetown or Seton Williamson County hospital. SAFE Alliance also has a clinic in Austin, where they provide completely free and confidential SANE Nurse services. A SANE Nurse is a specially trained medical provider who can conduct a rape examination to preserve evidence should the student decide to pursue criminal charges either now or in the future. The nurse will walk the student through their options for seeking medical services including pros and cons for each available option. Obtaining medical attention is highly encouraged to ensure the student’s injuries are treated and medication provided to treat certain STD’s, and to receive information about HIV/AIDS and pregnancy prevention. If the student desires medical treatment only, they may utilize services at the University Health Center located on the second floor of the Prothro Center. The contact number is 512.863.1252.
  • A student may talk with an SU counselor by calling 512.863.1252 during business hours. After 5:00 p.m. or on weekends, a student can call the SU Police (512.863.1944) and tell them it is a confidential matter. The Police can then connect the student with a Southwestern counselor. The counselor will provide confidential support, discuss options regarding reporting, accompany the student to the hospital and/or police department (either on or off campus) if requested and facilitate arrangements to ensure safety.
  • A student may contact the Health Center at 512.863.1252. After 5:00 p.m. or on weekends, a student can call the SU Police (512.863.1944) and tell them it is a confidential matter. The Police can then connect the student with the Southwestern nurse practitioner or nurse. The nurse practitioner or nurse will provide confidential support, discuss options regarding reporting, accompany the student to the hospital and/or police department (either on or off campus) if requested and facilitate arrangements to ensure safety.
  • The University Chaplain may be reached by dialing 512.863.1056, or by calling the campus operator (512.863.6511). After 5:00 p.m. and on weekends, a student can call the SU Police (dial 512.863.1944) and tell them it is a confidential matter. The Police can then connect the student with the University Chaplain. The Chaplain will provide confidential support, discuss options regarding reporting, accompany the student to the hospital and/or police department (either on or off campus) if requested and facilitate arrangements to ensure safety.
  • A student may choose to contact off campus resources. Williamson County Crisis Center (Hope Alliance) can be reached at 800.460.SAFE (7233), Brave Alliance at 512.738.8817, or SAFE Alliance at 512.267.SAFE (7233). Both Hope Alliance and SAFE Alliance (of these resources) offer trained advocates to accompany the student to the hospital and immediate counseling to determine options for medical care as well as deciding whether or not to report to the police. SAFE Alliance can accommodate Spanish speakers and deaf persons. Brave Alliance provides SANE Nurses services only.
  • If a student chooses to go directly to the hospital, it is recommended that they have someone they trust accompany them for support - the Williamson County Crisis Center (also known as Hope Alliance) will provide a trained volunteer to accompany the student to the hospital, should they desire such assistance. Call 800.460.SAFE (7233) to reach the Williamson County Crisis Center.
  • The Southwestern University Yellow Book, “Resources and Reporting Options for Sexual Assault, Domestic Violence, Dating Violence, Stalking, and Other Sexual Misconduct” may be obtained online at www.southwestern.edu/titleix/SUYellowBook.pdf. The Yellow Book is also available from Counseling Center, the University Chaplain, any RA, SUPD and the Dean of Students Office. For the most up-to-date version, please see the online version of the Yellow Book.
  • The Title IX webpage (www.southwestern.edu/life-at-southwestern/title-ix/help-for-sexual-misconduct-sexual-assault/) and the Counseling Center’s website (https://www.southwestern.edu/counseling-center/self-help-links-resources/) list other resources  addressing sexual violence which students may find helpful.
    Important Note: The printed 2020-21 version of the Handbook was updated with current information as of May 2020; however, the most recent version of the Yellow Book can always be found online.

 

Section 5 - ADJUDICATION OPTIONS

If a student has had an unwanted sexual experience, there are numerous options, including doing nothing or one or more of the following:

  1. Pursue charges based on Texas state laws. This would entail making a police report followed by an investigation and possible criminal proceedings involving the appropriate District Attorney’s office.
  2. Pursue a case through a civil suit. This option generally seeks monetary remedies and is initiated by contacting an attorney of the student’s choosing and at the student’s expense. Agencies for help finding an attorney include the Austin Bar Association’s Lawyer Referral Service – www.austinlrs.com or (512).472.8303 or the Sexual Assault Legal Line at 888.296.SAFE.
  3. Seek confidential support. The on campus options are to meet with the Counseling Center, the Health Center or the University Chaplain. These options do not require an investigation nor do they prevent a student from pursuing other options.
  4. Pursue a formal, on-campus University disciplinary action by informing the Dean of Students of their desire to register a formal complaint. Any member of the University community can make a report.

The University reserves the right to act as the Complainant via Residence Life staff, the Dean of Students, or SU Police. Any outcome from a University disciplinary process will not necessarily have any jurisdictional authority beyond the physical campus, its students and affiliated programs.

Once the University is notified of allegations of sexual misconduct, an inquiry (but not necessarily an investigation) must be initiated. If the inquiry identifies the Complainant, and the Complainant desires to proceed with a formal disciplinary complaint against the Respondent, a prompt, fair, and impartial investigation by the University will follow.

Section 6 - SEXUAL MISCONDUCT HEARING BOARD

Disciplinary complaints involving sexual misconduct are heard by the Sexual Misconduct Hearing Board (“Hearing Board”). The Hearing Board is composed of faculty and staff, and its members receive formal training prior to serving as a Board member. This training includes, among other topics, referral sources for assistance, presentations on how Southwestern adjudicates sexual misconduct disciplinary cases, dynamics of acquaintance rape scenarios, variable survivor reactions, myths and facts about sexual misconduct that apply to both men and women, sensitivity to sexual orientation factors and appropriate standards of proof.

The Hearing Board is the only board that can hear cases involving alleged student or student organization sexual misconduct, except during Special Periods (defined in Section 16), when the Special Periods Committee on Discipline shall act as the Hearing Board.

The Hearing Board shall consist of three Hearing Board Members. Every attempt will be made to have gender diversity within the Hearing Board. The Dean of Students (or designee) will choose the chair of the Hearing Board. The Hearing Board shall be provided with the charge(s), the Complainant’s written complaint, the written reply of the Respondent (if any), attachments or list of witnesses, and any other documents or materials submitted by the parties or obtained during the investigation.

The Complainant and the Respondent will be informed of the names of the pool of potential Hearing Board members at least forty-eight hours prior to the hearing. The Complainant and the Respondent can request dismissal, with cause, of any potential member of the Hearing Board up to twenty-four hours before the hearing. The decision to grant a dismissal shall be made in the sole discretion of the Dean of Students (or designee).

 

Section 7 - THE SEXUAL MISCONDUCT HEARING

The Dean of Students or their designee (if the Dean is the Complainant) is responsible for presenting charges to the Hearing Board. At this point, the Respondent may enter a plea of responsible or not responsible. In the absence of a plea, or in the case of a plea of not responsible, the hearing continues.

In the event the Respondent pleads responsible, the Hearing Board will consider statements from the Respondent and the Complainant. The Dean of Students (or designee) and Hearing Board members may ask questions at that time.

The Complainant and the Respondent have the right to attend the full hearing, excluding the deliberations of the Hearing Board, if they so choose. If the Respondent has been formally notified of the hearing but fails to attend, the Hearing Board will hear the case in their absence.

All witnesses at the hearing must testify live and in real time before the Hearing Board, either in person or via videoconference. Under no circumstance will written statements be permitted as testimony of a witness.

If the Respondent pleads not responsible or makes no plea, the Dean of Students (or designee) will present witnesses in support of the charge(s), including any witnesses provided by the Complainant. The Hearing Board members may ask questions, for clarification purposes only, during the witness’s direct testimony.

Upon completion of the testimony by the Complainant or a witness, the Hearing Board can conduct more complete questioning. Should the Respondent or the Complainant have a question of a witness, or of each other, that question must be provided at the conclusion of the witness’s statement and must be presented in writing to the chair, who will determine whether to ask the question of the witness, based on relevance or other factors at the chair’s discretion.

The Dean of Students (or designee) will then present witnesses on behalf of the Respondent. It is the choice of the Respondent whether or not to testify. Once again, the Hearing Board members may ask questions, for clarification purposes only, during the direct testimony of the witness. 

Upon completion of the testimony by the Respondent or a witness, the Hearing Board may conduct more complete questioning. Should the Respondent or the Complainant have a question of a witness, that question must be provided at the conclusion of the witness’s statement, and must be presented in writing to the chair, who will determine whether to ask the question of the witness, based on relevance or other factors at the chair’s discretion.

The Hearing Board may, during a hearing, request additional information or witnesses and may take a recess of sufficient time to acquire the information. The Hearing Board chair or Dean of Students (or designee) may also declare a recess, if they believe that either the Complainant or the Respondent is emotionally unfit to continue or that there is fatigue of any party in the proceedings.

Upon completion of the witnesses’ statements and questioning, the Complainant and the Respondent will have the opportunity to make a brief statement to the Hearing Board concerning the evidence or the issues for the Hearing Board to consider. No new evidence will be permitted in such statements and the Chair of the Hearing Board will have the right to place reasonable restrictions on the length of such statements. Upon completion of the closing statements by the Complainant and the Respondent, the Hearing Board will commence deliberation of responsible or not responsible in closed session. Only Hearing Board members are present in the closed session during deliberation. A preponderance of the evidence standard will determine the violation, meaning that it is more likely than not that the Respondent committed the conduct violation. 

If the Respondent is found responsible, or pleads responsible, both the Respondent and Complainant may make personal statements, followed by questions from the Hearing Board. Character witnesses for the Respondent may then be offered. A character witness is a person who may speak to their experiences with the Respondent and the Respondent’s good qualities, character and morality. Character witnesses may not address the issue of guilt or the facts relating to the policy violation(s). Such witnesses are limited to two, and a total time of fifteen minutes is allotted. 

The Dean of Students (or designee) will offer any history of discipline problems. The Dean of Students (or designee) may also recommend appropriate sanctions. Those recommendations will be given in the presence of the Respondent. These are recommendations only and are not binding. This is followed by deliberation on the sanction by the Hearing Board in closed session. The Respondent is then informed of the sanction and reminded of the right to appeal. The Complainant is notified of the outcome of the hearing and the right to appeal. If the Respondent is a student organization, the organization shall be represented at the hearing by its president (or designee appointed from within the student membership of the organization).

The only persons entitled to be present during the hearing are the Dean of Students (or designee), the Complainant, the Complainant’s advisor selected pursuant to Section 8 below, the Respondent, the Respondent’s advisor selected pursuant to Section 8 below, witnesses (during their testimony only), and the Hearing Board members. In addition, an officer of the SUPD and/or a Residence Life staff member may attend, if determined necessary by the Dean of Students (or designee). Finally, the University may choose to have its attorney attend the hearing to consult with the University, the Dean of Students (or designee) and/or the Hearing Board on legal and procedural issues.

If during the hearing, the Hearing Board becomes aware of any other violation(s) of University policy which may have occurred in connection with the circumstances surrounding the alleged misconduct, the Hearing Board may in its discretion at the conclusion of the hearing make a confidential referral of such other potential violation(s) to the Dean of Students (or designee) for possible future or other disciplinary proceedings.

Southwestern University seeks to complete the investigation of all reports of sexual misconduct within sixty (60) days. That time frame is meant to be a guideline rather than rigid requirement. Circumstances may arise that require the extension of time frames, including extension beyond sixty (60) days. Such

circumstances may include school breaks or holidays, the complexity of the allegations, the number of witnesses involved, the availability of the parties or witnesses, the effect of a concurrent criminal investigation, or other unforeseen circumstances 

 

Section 8 - RIGHT OF A STUDENT TO HAVE AN ADVISOR

When a student appears before the Sexual Misconduct Hearing Board as a Complainant or Respondent, they are entitled to be accompanied by one advisor of their choosing. The Dean of Students (or designee) should be informed of the identity of the advisor not less than 10 days before the hearing. The advisor may be anyone, including a friend, a member of the faculty or staff, a parent, or an attorney.

The only persons disqualified from being an advisor are witnesses, administrators over the disciplinary process, and any person who supervises a participant in the disciplinary process as an employee. If the advisor is an attorney, the Dean of Students (or designee) will still communicate directly with the Complainant and/or the Respondent regarding the procedures and other matters relating to the hearing; however, the attorney may communicate only with the University’s attorney and not with the Dean of Students (or designee). Whoever is the advisor, the advisor is not allowed to speak during the hearing, to speak for the party, to argue for the party, to address the Hearing Board, or to address/question any witness during the hearing. The advisor’s role is limited to advising the Complainant or the Respondent privately, in a non-disruptive manner. It is the responsibility of the Complainant/Respondent to assure that their advisor is aware of their role.

Section 9 - RIGHTS OF THE COMPLAINANT

The rights of the Complainant are as follows:

  1. To have assistance from a CASAR (Center for Academic Success and Registrar) Advisor that can help assess your academic situation and what your options might be. Every case is different, but these options could include (but are not limited to) transferring classes and/or withdrawing from one or more of your classes. Alternative meal hours or housing can be arranged if necessary by talking to the Dean of Students (or designee). Assistance can also be received in regards to any concerns about financial aid and scholarships.
  2. To be informed in writing of time and date of the sexual misconduct hearing and the charge against the Respondent.
  3. To be informed of the names of the pool of potential Hearing Board members at least forty-eight hours prior to the hearing.
  4. To request dismissal, with cause, of any potential member of the Hearing Board up to twenty-four hours before the hearing.
  5. To know the name(s) of the Respondent’s witness(es).
  6. To have an advisor (See Section 8).
  7. To supply the Dean of Students (or designee) with a written statement and any evidence in support of the complaint.
  8. To appear as a witness at the hearing.
  9. To attend the entire hearing exclusive of closed sessions.
  10. To request alternative hearing procedures (See Section 11) in which the Complainant does not have to be physically present at the hearing site.
  11. To supply the Dean of Students (or designee) with a list of witnesses in support of the accusations.
  12. To receive notice and explanation of the processes involving allegations of sexual misconduct.
  13. To provide questions of witnesses to the hearing chair for consideration (See Section 7).
  14. To be informed, in writing, of the final judgment of the Hearing Board, of any appeal request, and of the results of an appeal.
  15. To appeal the decision (See Section 12).
  16. To be notified of any sanction(s) by the Dean of Students (or designee) within twenty-four hours of the Hearing Board’s decision, followed by a letter outlining the sanction(s).
  17. To receive updates and copies of all correspondence throughout the process (when statements are provided to the other, appeal filed, etc.) simultaneously with the Respondent.

 

Section 10 - RIGHTS OF THE RESPONDENT

The rights of the Respondent are as follows:

  1. To have assistance from a CASAR (Center for Academic Success and Registrar) Advisor that can help assess your academic situation and what your options might be. Every case is different, but these options could include (but are not limited to) transferring classes and/or withdrawing from one or more of your classes. Alternative meal hours or housing can be arranged if necessary by talking to the Dean of Students (or designee). Assistance can also be received in regard to any concerns about financial aid and scholarships.
  2. To be informed in writing of the time and date of the sexual misconduct hearing and of the charge(s).
  3. To be informed of the names of the pool of potential Hearing Board members at least forty-eight hours prior to the hearing.
  4. To request dismissal, with cause, of any potential member of the Hearing Board up to twenty-four hours before the hearing.
  5. To know the name(s) of their Complainant and witness(es).
  6. To have an advisor (See Section 8).
  7. To supply the Dean of Students (or designee) with any evidence in support of their defense.
  8. To appear as a witness at the hearing.
  9. To attend the entire hearing exclusive of closed sessions.
  10. Not to appear at the hearing.
  11. To supply the Dean of Students (or designee) with a list of witnesses in defense of the accusation(s).
  12. To receive notice and explanation of the processes involving allegations of sexual misconduct.
  13. To provide questions of witness(es) to the hearing chair for consideration (See Section 7).
  14. To be informed, in writing, of the final judgment of the Hearing Board, of any appeal request, and of the results of an appeal.
  15. To appeal the decision (See Section 12).
  16. To be notified of any sanction(s) by the Dean of Students (or designee) within twenty-four hours of the Hearing Board’s decision, followed by a letter outlining the sanction(s)
  17. To receive updates and copies of all correspondence throughout the process (when statements are provided to the other, appeal filed, etc.) simultaneously with the Complainant.

 

Section 11 - ALTERNATIVE PROCEDURE

If the Dean of Students (or designee) concludes in their discretion that implementation of the usual sexual misconduct hearing procedure would result in significant trauma for the Complainant or alleged victim, the Complainant will have an additional option. The Complainant and their advisor would be connected to the process via telephone or video conferencing technology instead of being physically

present at the site of the hearing. This option does not require the consent of the Respondent. All other aspects of the hearing remain the same.

 

Section 12 - APPEALS

Appeals may be made by both the Respondent and the Complainant. Appeals must be submitted in writing to the Office of the Vice President for Student Life within three business days from the date of written notification of the hearing results, with a copy of such appeal being delivered to the Dean of Students (or designee). The Dean of Students (or designee) will then provide a copy of the written

appeal to the non-appealing party at which time the non-appealing party may provide a written response within three business days. Appeals must be in writing and signed by the Complainant or Respondent and not by the advisor. An appeal must concisely set forth the grounds for appeal, as well as provide any supporting material.

The grounds for appeal are limited to the following:

  1. The hearing was conducted in a manner materially and unfairly inconsistent with the established Hearing Board procedure (see Section 7).
  2. Information is available that was unavailable at the time of the hearing, and the new information is relevant to the Hearing Board’s determination.
  3. Sanction(s) is (are) inappropriate for the violation(s).

A decision on the appeal by the Appellate Board, composed of three (3) members of the Hearing Board pool who were not involved in the original hearing or intake process, will be based upon the written appeal and such other information as the Appellate Board deems at its discretion to be relevant. There is no live hearing or other oral presentation by the parties in connection with the appeal. The decision on the appeal rendered by the Appellate Board is final, meaning that there is no appeal beyond the Appellate Board, and will be mailed, within thirteen business days of receipt of the appeal, to both the Complainant and the Respondent.

The Appellate Board may take the following measures on appeal:

  1. Uphold the original decision(s) and sanction(s).
  2. Uphold the original decision(s) and alter sanction(s).
  3. Refer the case back to the Hearing Board for rehearing. Both the Respondent and Complainant will have the opportunity to participate in a rehearing.
  4. Refer the case back to the Hearing Board for review. Both the Respondent and Complainant will be informed of the outcome of the review.

The outcome of the appeal process is final. Departures from these procedures and errors in their application shall not be grounds to withhold disciplinary action unless, in the sole judgment of the Appellate Board, the departures or errors were such as to have prevented a fair and just hearing. 

If you want to learn more about your rights or if you believe the University is violating Federal law, you can contact the U.S. Department of Education, Office for Civil Rights, at ocr@ed.gov or 800-421-3481. You can also fill out a form online at www2.ed.gov/about/offices/list/ocr/complaintintro.html.

Section 13 - INTERIM SANCTIONS

In certain instances, it may be necessary for the University to impose interim sanctions, including suspension, pending a hearing. This action may be necessary when in the sole opinion of the Dean of Students (or designee), the continued presence of the Respondent student may constitute a threat or disruption to the normal academic process of the University, or where the student is considered a danger to other students or to themselves. In such cases, a hearing will be scheduled as soon as appropriate after interim sanctions commence.

 

Section 14 - TYPICAL SANCTIONS

If the Respondent (student or student organization) is found in violation of the University’s Student Sexual Misconduct Policy, the notification will also include notice of any sanctions which may be imposed by the Hearing Board. More than one sanction may be imposed for any single violation. A history of inappropriate behavior by the student or student organization and the nature or severity of an incident are considered in determining appropriate sanctions. If a student chooses to withdraw from Southwestern University prior to a Sexual Misconduct Hearing, a Criminal Trespass may be issued through Southwestern University Police Department.

The Hearing Board has wide discretion to impose the sanction(s) it deems appropriate for the violation it found of the Sexual Misconduct Policy. In considering the appropriate sanction, the Hearing Board will consider, among other things, the nature of the specific acts, the interests of the Complainant, the character and interests of the individual found responsible, the testimony, if any, at the sanctioning phase of the hearing, and the interests of the University in a safe environment.

The range of potential sanctions includes:

Contract Probation – A warning that future violations may be handled more strictly and with additional sanctions imposed by the Dean of Students (or designee). Contract probation expires after a specified amount of time but remains in the internal SU record until graduation (or in the case the student leaves the University, for four years after the violation).

Disciplinary Probation – An official sanction by the University that becomes a part of the student’s record. Future misconduct will result in a hearing by the University Committee on Discipline, with sanctions up to and including University suspension or expulsion. Students placed on disciplinary probation may not graduate, re-enroll, or confirm registration until the terms of probation are met. Additional loss of privileges may include, but are not limited to, leadership in student organizations and representing a student organization off campus, participation in athletics, University activities and events, access to facilities, and parking and vehicle registration and use privileges.

Expulsion – The permanent dismissal of a student or organization. Expelled students must leave campus within twenty-four hours, unless the Hearing Board directs otherwise. Expelled organizations must cease to exist within twenty-four hours, unless the Hearing Board directs otherwise. See Disciplinary Status and Eligibility, p. 50.

Loss of Privileges – Denial of specified privileges for a designated period of time. 

Mandated Counseling – Requirement that a student take part in a counseling program conducted by an off campus licensed professional as determined by the Hearing Board. This includes signing a “Request and Authorization to Exchange Information” form provided by the Dean of Students (or designee). The Hearing Board may require the student to participate in a counseling program that addresses particular issues, such as substance abuse.

Mandated Counseling Assessment – Assessment and/or session with an off-campus licensed professional as determined by the Hearing Board by a specified date. This includes signing a “Request and Authorization to Exchange Information” form provided by the Dean of Students (or designee). Unless otherwise stated by the Hearing Board, the student is required to follow all recommendations made by the treating professional.

Mandatory Housing Relocation and Class Scheduling – To facilitate the Respondent and Complainant avoiding all contact unless the Complainant agrees otherwise.

Physical Restrictions – A directive that forbids a student(s) to be in specified locations on University premises.

Suspension – The forced withdrawal of a student or an organization for a specifically stated period of time. Suspended students must leave campus within twenty-four hours, unless the Hearing Board directs otherwise. Suspended organizations must suspend all operations within twenty-four hours, unless the Hearing Board directs otherwise. See Disciplinary Status and Eligibility, p. 50.

Student Organizations Sanctions – In addition to the other sanctions identified here, as appropriate, student organizations found responsible of a violation of the Sexual Misconduct Policy may also face the following sanctions:

  • Alcohol Ban – Alcohol may be banned from all functions and/or from specific premises, even if all students are of legal age.
  • Expulsion – In addition to the expulsion sanctions identified above, the removal of all organization identification, removal or covering of any permanent signage, social areas being restricted to residents only, the loss of all University privileges, and residential occupancy determined by the Dean of Students (or designee).
  • Mandated Educational Programs approved by the Dean of Students (or designee).
  • National Organization Contact – informing any relevant national organization of the violation.
  • Prohibition of recruiting, adding and/or inducting new members.
  • Social Probation – Prohibiting a student organization from having any social activities (including parties) on or off campus for a specified period of time.
  • Suspension – In addition to the suspension sanctions identified above, the removal of all non-permanent signage during the time of suspension, and residential occupancy determined by the Dean of Students (or designee).
Section 15 - RECORDS

Accurate records of hearings and other actions by administrators shall be kept in the student’s and/or organization’s files in the Office of Student Life. These records will be made available to the Vice President for Student Life (or designee) and the Appellate Board upon appeal. Records of hearings usually include information provided by several students. Therefore, they are not considered to be

a part of any one student’s record, and are not made available to anyone outside the hearing or the campus appeal process, except under proper subpoena and in accordance with law.

Student disciplinary hearing files will be maintained for seven years following graduation, at which time they may be destroyed.

Section 16 - OTHER SEXUAL MISCONDUCT INFORMATION AND POLICY DEFINITIONS

The following is some additional information relating to the University’s Sexual Misconduct Policy, as well as some definitions of commonly used words that may arise in the Policy. To the extent these terms are defined above in the Policy, the following definitions are not intended to replace them, but are simply short-hand guidance. Similarly, witnesses’ use of terms defined here are not deemed to adopt these definitions. Rather, witnesses may explain and offer their own meaning as to their use of such terms. The definitions for sexual assault, dating violence, domestic violence, and stalking come from the Texas Penal Code and the Texas Family Code.

Bystander Intervention: Bystander intervention is recognizing a potentially harmful situation or interaction and choosing to respond in a way that could prevent or reduce the harm. At Southwestern, community members are encouraged to be active bystanders by holding themselves and others accountable for their language and actions in order to create a safe, welcoming, and inclusive environment. Bystander intervention can be used to address a wide variety of harmful situations,

including high-risk drinking, mental health concerns, sexual misconduct, hazing, and harassment. Many of these behaviors can be expressions of racism, sexism, homophobia, ableism, and other forms of systemic oppression. Mosaic provides student-led workshops throughout the academic year to empower students to take an active role in creating a culture of care at Southwestern. We ask that all Southwestern community members learn and practice bystander intervention techniques to decrease harm on our campus.

CASAR: Center for Academic Success and Registrar.

Coercion: The application or threat of physical force, threat of social disparagement to the victim, threat to withhold benefits to which the victim may be entitled, or any other factor that would eliminate an individual’s ability to exercise their own free will to choose whether or not to have sexual activity. Coercion may include tacit coercion, as may happen when one party holds significant power over another. Such a power differential may make verbal expressions of consent by the less powerful party open to doubt in any disciplinary proceeding.

Complainant: The recipient of the alleged sexual misconduct who is filing a complaint.

Consent: See Section 3 of this Sexual Misconduct Policy.

Dating Violence: An act, other than a defensive measure to protect oneself, by an individual that is committed against a victim with whom the actor has or has had a dating relationship; or because of the victim’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault. ‘Dating relationship’ means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of the length of the relationship; the nature

of the relationship; and the frequency and type of interaction between the persons involved in the relationship. A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a ‘dating relationship’. (Texas Family Code Section 71.0021.)

Domestic (Family) Violence: An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself, or abuse by a member of a family or household toward a child of the family or household, or dating violence. (Texas Family Code Section 71.004.)

Non-impaired: Mentally and physically capable of exercising judgment concerning one’s own behavior, actions and decisions.

Respondent: The person accused of the sexual misconduct by the Complainant.

Retaliation: Any action taken against another person to seek revenge. This includes physical contact, inappropriate comments through email, text messages, social media, Facebook comments or any other form of communication or any other attempts to ostracize by or on behalf of either student.

Sexual Assault: A person commits an offense if the person (1) intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent; causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or causes the sexual organ of another person, without that person’s consent, to

contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or (2) intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means; causes the penetration of the mouth of a child by the sexual organ of the actor; causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

A sexual assault is without the consent of the other person if: the actor compels the other person to submit or participate by the use of physical force or violence; the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat; the other person has not

consented and the actor knows the other person is unconscious or physically unable to resist; the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or resisting it; the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring; the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge; the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat; the actor is a public servant who coerces the other person to submit or participate; or the actor is a mental health services provider

or a health care services provider who causes the other person, who is a patient or former patient of the actor; to submit or participate by exploiting the other person’s emotional dependency on the actor. ‘Child’ means a person younger than 17 years of age. ‘Spouse’ means a person who is legally married to another. (Texas Penal Code Section 22.011.)

Sexual Exploitation: Any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially or politically from the sexual exploitation of another.

Sexual Harassment: See Policies and Procedures on Sexual Harassment, Section XIX of the Student Handbook.

Sexual Misconduct: See Section 3 of this Sexual Misconduct Policy.

Special Periods: When the Honor Code Council Hearing Board, the University Committee on Discipline, and the Sexual Misconduct Hearing Board cannot be assembled to hear a case, or when, in the opinion of the Dean of Students (or designee), unusual and/or extenuating circumstances do not allow for a fair hearing, the Special Periods Committee on Discipline will hear the case and act as the Hearing Board under this policy. These periods include, but are not limited to, the first two weeks of the semester, finals week, vacations, and summer terms. See page 73 of this Handbook for more information on the Special Periods Committee on Discipline.

Stalking: A person who, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that: (1) the person knows or reasonably believes the other person will regard as threatening including bodily injury or death for the other person, bodily injury or death for a member of the person’s family or household

or for an individual with whom the other person has a dating relationship, or fear that an offense will be committed against the other person’s property, and (2) causes the other person, a member of the other person’s family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or fear that an offense will be committed against the

other person’s property, and (3) would cause a reasonable person to fear bodily injury or death for a member of the person’s family or household or for an individual with whom the person has a dating relationship, or fear that an offense will be committed against the person’s property. A fact finder may find that different types of conduct described above, if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct.

(Texas Penal Code Section 42.072.)

Student: An individual is considered a Southwestern student and is expected to comply with all University policy upon submittal of their enrollment deposit and the inception of Welcome Week move-in day. This student status remains until one graduates or withdraws from the University. A deposited individual may be subjected to disciplinary action before move-in day if they violate a University policy while on campus or in any interaction with University personnel. Individuals who are both students and employees will be treated as students for the purpose of this policy and procedure, only if their primary relationship to the situation is that of a student. Allegations against individuals

who are regular employees (regardless of student status) will be handled under the appropriate personnel policies. Where appropriate, “student” also includes student organizations.

Student Organization: Any group that has complied with the formal requirements for University recognition or regulation is a student organization.