The College has zero-tolerance for sex or gender misconduct including all forms of discrimination, harassment, or violence.
Sexual Misconduct Policy
Scope of Policy
Definitions
Reporting and Available Resources
Investigation and Hearing
Sanctions
Recordkeeping
This policy is intended to educate the College community about these issues and thereby prevent such incidents from occurring and also explain the way in which the College will respond to incidents in the event they do occur.
This policy applies to all students, faculty, employees, applicants, and visitors of Hartwick College. This policy applies to conduct on-campus and in connection with any College-sponsored program or activity, regardless of where it occurs. Additionally, off-campus conduct may violate this policy, regardless of whether it is connected to a College-sponsored program or activity. Non-community members (e.g., alumni, family of students, vendors, etc.) visiting campus, participating in a College program or activity or interacting with Hartwick College community members are expected to abide by the behavioral expectations in this policy. Sexual misconduct may occur between members of the same or different sex, or any combination of student, staff, faculty, or visitor. While sexual misconduct can constitute a criminal offense under New York State law, a person’s conduct may violate this policy even if it does not violate State law.
This policy applies regardless of an individual’s race, color, national origin, religion, creed, age, disability, sexual orientation, gender, gender identity, gender expression, familial status, pregnancy, predisposing genetic characteristics, military status, domestic violence victim status, or criminal conviction. Each member of the College community is expected to assist in maintaining a working and learning environment that is free of sex discrimination, sexual harassment, and other sexual misconduct at Hartwick College.
A. Sexual Misconduct
For purposes of this policy, the term “sexual misconduct” is a term used to more conveniently refer to any form of sex or gender-based discrimination; sexual or gender-based harassment; sex or gender-based exploitation; non-consensual sexual activity or sexual offense; dating or domestic violence; or stalking.
B. Sex Discrimination
Sex discrimination is an act that disadvantages a person and that occurs because of the affected individual’s sex or gender, sexual orientation, gender identity, or gender expression. Examples include, but are not limited to, denying a student a research opportunity because of the student’s sex or gender; giving a student a lower grade than they deserved because of the student’s sex or gender; denying an employee a raise because of the employee’s sex or gender.
A person who believes that they have been discriminated against with respect to an academic or employment decision is generally entitled to bring a complaint pursuant to this policy in addition to any other College process or procedure that may be available (such as a grade appeal policy or appeal procedures for work performance or promotion). However, the role of this policy is not to modify or displace another’s legitimate decision as to competency or performance; the only function of this policy is to ensure that the decision was not biased.
C. Sexual Harassment
It is the policy of Hartwick College that all of our employees and students should be able to enjoy a work and educational environment free from sexual harassment. Sexual harassment is unwelcome, offensive conduct that occurs on the basis of sex, gender, sexual orientation, gender identity, or gender expression. When harassment becomes so severe or pervasive as to interfere with an individual’s ability to work, learn or participate in the College’s programs, it is called a “hostile environment”.
Sexual harassment can be verbal, written, visual, or physical.
The fact that a person was personally offended by a statement or incident (including an incident of an unwanted touch) does not alone constitute a violation of this policy. Instead, the determination is based on a “reasonable person” standard and takes into account the totality of the circumstances. The College considers the context of a communication or incident, the relationship of the individuals involved in the communication or incident, whether an incident was an isolated incident or part of a broader pattern or course of offensive conduct, the seriousness of the incident, the intent of the individual who engaged in the allegedly offensive conduct, and its effect or impact on the individual and the learning community. The College may decline to address pursuant to this policy an incident that is not found to have any connection to or impact on the College’s educational or working environment.
Hartwick College reserves the right to discipline conduct that is inconsistent with community standards (as reflected in the Code of Student Conduct, Employee Handbook, and other College policies) even if it does not rise to the level of a hostile environment as defined by applicable law. Further, the College encourages students and others to report incidents that concern them even if the incidents are not particularly egregious, as early reporting assists the College to address and correct situations before they become so severe or pervasive as to create a hostile environment.
Hartwick College also prohibits “quid pro quo” harassment. Quid pro quo (or “this for that”) harassment occurs when a person in a position of authority or control links the receipt of some benefit (such as a promotion) to another’s submission to unwelcome sexual advances or sexual conduct or requires the other to perform or submit to demeaning or degrading sex or sexually-charged acts. “Quid pro quo” harassment can be expressly stated, but it also can be implied by words, actions or the surrounding circumstances. No person should believe that any other person – no matter their title or position with Hartwick College – has the right to pressure another person for sexual activity; they do not have this right.
The above definitions and explanations are provided for educational and illustrative purposes. A person reporting an incident of concern need not worry about whether all elements of a particular definition have been met. An individual reporting an incident of concern is expected only to relay the facts in good-faith; College representatives trained in these issues will assist the Complainant in determining whether the incident may constitute a violation of this policy.
D. Gender-Based Harassment
Gender-Based Harassment includes acts of verbal, nonverbal, or physical aggression, intimidation, stalking, or hostility based on gender or gender-stereotyping, even if those acts do not involve conduct of a sexual nature. Gender-based harassment can occur if individuals are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity or femininity.
E. Sexual Offenses
Hartwick College expects that any sexual activity or contact will be based on mutual, affirmative consent to the specific sexual activity.
Sexual Assault – Hartwick College defines sexual assault as including:
Sexual Exploitation. Sexual exploitation occurs when, without affirmative consent, a person takes sexual advantage of another. Examples of sexual exploitation include, but are not limited to, prostitution, acts of incest, observing or recording (whether by video, still photo or audio tape) of a sexual or other private activity (such as consensual sexual activity, undressing or showering) without the consent of all involved; taking intimate pictures of another but then distributing the pictures to others without the photographed person’s affirmative consent; engaging in voyeurism, engaging in consensual sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) without informing the other person of such infection; or exposing one’s genitals in non-consensual circumstances.
F. Dating Violence
Dating violence refers to a pattern of violent behavior (including, but not limited to, sexual or physical abuse or the threat of such abuse) that is committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship is determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
G. Stalking
Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person under similar circumstances and with similar identities to that person to fear for his or her safety or the safety of others; or suffer substantial emotional distress (that may, but does not necessarily require medical or other professional treatment or counseling).
H. Domestic Violence
Domestic violence refers to physical violence, threats of violence or acts of physical intimidation between spouses, former spouses or intimate partners, cohabitating romantic partners or individuals who were formerly cohabitating romantic partners, individuals who share a child in common, individuals who are similarly situated to spouses and/or individuals who are protected from the other person’s acts under the domestic or family violence laws of the jurisdiction in which the act of violence occurs.
I. Affirmative Consent
Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of affirmative consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
Consent is free and informed permission. Consent given verbally is evidenced by affirmative agreement to engage in specific sexual activity. Consent through action is active participation in the specific sexual activity. Past consent to sexual activity cannot be presumed to be consent to engage in the same sexual activity in the future, and consent can be withdrawn at any time, and, if so, the sexual activity must cease. Consent to some sexual activity (e.g., kissing, fondling) cannot be presumed consent for other sexual activity (e.g., intercourse). Consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another.
Certain conditions prevent a person from being able to consent. Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol or drugs or other intoxicants may be incapacitated and therefore unable to consent.
A person who has been drinking or using drugs is still responsible for ensuring that the person has the other person’s affirmative consent and/or appreciating the other person’s incapacity to consent. This means that, even if the accused was drunk or high and, as a result, did not realize that the other person was not consenting to or was unable to consent to sexual activity, the person who committed the non-consensual act is still responsible for having violated this policy.
Sexual activity as the result of coercion is non-consensual. Coercion is a threat, undue pressure, or intimidation to engage in sexual activity.
Sexual relationships between faculty and students and staff and students are problematic due to the inherent power differential. Therefore, sexual or romantic relationships between faculty and students and between staff and students are prohibited. See Non-Fraternization policy.
J. Complainant
The term Complainant refers to the person who allegedly experienced the discrimination, harassment, sexual misconduct or other violation of this policy. That person is usually, but not always, the person who made the initial report to the College.
K. Reporting Party
The term Reporting Party refers to the person who made the report. This may or may not be the same as the Complainant.
L. Respondent
The term Respondent refers to the person alleged to have committed the alleged discrimination, harassment, any other form of sexual misconduct, or other violation of this policy once they have entered into the investigation process whether informal or formal. They are considered the accused prior to an investigation.
M. Preponderance Standard
The standard for decisions is a preponderance of the evidence, meaning that it is more likely than not that a violation of this policy occurred. This is often referred to as 50% plus a feather.
III. Reporting and Available Resources
A member of the Hartwick College community who believes that they have experienced or are experiencing any form of sexual misconduct should speak to someone for help or advice. Any College community member who has been the victim of sexual misconduct has the right to make a report to Campus Safety or one of the Responsible Administrators listed below, local law enforcement, and/or the New York State Police, or choose not to report. If reported to the College under this policy; a reporting individual will be protected from retaliation and will receive appropriate assistance and resources from the College. A Students’ Bill of Rights and Additional Rights for cases involving sexual assault, domestic violence, dating violence or stalking is attached at the end of this policy.
A. Confidential Resources
Individuals may confidentially report to hotlines, medical, and counseling providers on- and off-campus. Confidential resources do not report identifiable information to the Title IX Coordinator, College, or law enforcement without consent unless allowed or required by law.
Campus Resources
A victim is encouraged to seek support for their emotional and physical needs. A student seeking confidential emotional or medical care may contact the following resources.
These Confidential Resources can provide assistance and information regarding medical assistance and treatment (including information about sexually transmitted infections, and sexual assault forensic examinations), and resources available through the New York State Office of Victim Services, academic and other campus support options, campus disciplinary proceedings, and law enforcement options. The health and counseling services noted above are available to students free of charge. Healthcare and counseling professionals associated with the above are confidential resources as a matter of law. This means that while these resources may provide health and counseling services, when a report is made to them, you are not making a report to the College and it will not result in remedial action or an investigation or disciplinary action. Reports made to these resources will not be reported to other College officials in any personally identifiable manner (reports made to some of these individuals may result in a report to College officials that an incident occurred, but will not result in the reporting of any personally identifiable information). Any person who desires remedial action (such as a change in housing, academic or work assignments) or wishes to seek disciplinary action against the Respondent must make a report to one of the Responsible Administrators, listed below.
Off Campus Resources
In addition, there are off campus, community confidential resources that are available to you. Reports to these resources will not constitute a report to the College and will not result in the College taking any action against the accused. These confidential resources, which may or may not charge service fees, include:
B. Non-Confidential Resources
Non-confidential resources report to college officials who will process the report with safety and privacy in mind. Non-confidential reports are forwarded to the Title IX Coordinator where interim measures, protections, resources, and supports will be communicated and arranged as appropriate. Options and assistance with reporting the incident to law enforcement will be provided if applicable or desired by the complainant or reporting party.
College – Responsible Administrators
The following offices and individuals have been trained to receive and respond to allegations of violations of this policy.
Reports may be made by the victim, someone on behalf of the victim, or anonymously. While all employees (except the Confidential Resources noted above) are required to report incidents of sexual misconduct that they witness or learn about, Responsible Administrators are specially designated by the College to receive reports of violations of this policy.
Campus Safety
Hartwick College’s Campus Safety staff are trained and available to respond immediately to any incidents of sexual misconduct and to provide individuals with assistance in obtaining medical treatment and filing an internal complaint with the College and/or criminal charges with local law enforcement. Campus Safety staff will be available to discuss a victim’s various options. The Office of Campus Safety operates 24 hours a day, 7 days a week and is located on the 3rd floor of Dewar Hall.
The Silent Witness Program is provided as a service to you for reporting of actual crimes/incidents or serious policy violations which may affect the health, safety or welfare of the Hartwick College community. It is not designed to replace the need to contact Campus Safety or 911 directly with information about an emergency, crime in progress or potential harmful situation.
Law Enforcement
A victim of a crime is encouraged to, but is not required to, report the incident to law enforcement and pursue criminal charges. The criminal process and the College’s disciplinary processes are not mutually exclusive or dependent on each other, meaning that a person may pursue either a criminal complaint or College complaint or both.
In criminal cases, the preservation of evidence is critical and must be done properly and promptly. For example, in cases of rape or other forms of sexual assault, it is important not to shower, change clothes and even brush your hair or teeth, as physical evidence may be lost. In cases of violence or physical abuse, it is important to document injuries, including by taking photographs. If possible, all clothing that was worn at the time of the sexual assault should be placed in individual paper bags or pillow cases to preserve any evidence. Law enforcement can assist in filing a criminal complaint and in securing an appropriate examination, including by a Sexual Assault Nurse Examiner (SANE nurse).
Additionally, orders of protection and other forms of legal protection may be available to individuals who have experienced or are threatened with violence by a Hartwick College community member or other person. In appropriate circumstances, an order of protection may be available that restricts the offender’s right to enter or remain on College property, and Hartwick College will abide by a lawfully issued order of protection. Campus Safety or other College officials will, upon request, provide reasonable assistance to any member of the College community in obtaining an order of protection or, if outside of New York State, an equivalent protective or restraining order, including providing that person with:
Any internal College investigation and/or hearing process will be conducted concurrently with any criminal justice investigation and proceeding that may be pending. Temporary delays in the College’s internal processes may be requested by law enforcement authorities for the purpose of gathering evidence. Any requested temporary delay shall not last more than ten (10) days, except when law enforcement authorities specifically request and justify a longer delay. The College will cooperate with any criminal proceedings as permitted by law. The Responsible Administrators listed above can assist individuals in making a report of a crime to law enforcement.
Complainants should understand that not all sexual misconduct under this policy is a crime and that the standard law enforcement employs in processing complaints is different than the College’s standard under this policy. Questions about whether incidents violate criminal laws and how the criminal process works should be directed to law enforcement officials or the Otsego County District Attorney.
C. Response Options
What happens after contacting a College Responsible Administrator (see Section III (B)):
A Responsible Administrator will discuss with the Complainant available avenues and options. A Complainant may be able to take advantage of multiple options simultaneously. Options include contacting local law enforcement (if the incident involves a crime) and/or pursuing disciplinary action against the accused and/or mediation. In situations where the Complainant’s well-being requires, other options may include immediate remedial action, such as no-contact orders directing the Respondent to have no contact with the Complainant, changes in class assignments, residence hall assignments, transportation arrangements, or work assignments to assist the Complainant in avoiding contact with the Respondent, or other measures to enhance the Complainant’s safety, such as escorts or increased monitoring of an area.
How information is shared within the College: A Responsible Administrator is not a confidential resource. A Responsible Administrator who receives a report of sexual misconduct, observes sexual misconduct firsthand, or learns about it in some other way will share all information reported/observed with the Title IX Coordinator. This information will include the name of the victim, the name of the accused if known, any witnesses and any other relevant factors, including the date, time, and location of the incident. However, even Hartwick College offices and employees who cannot guarantee confidentiality will maintain one’s privacy to the greatest extent possible. The information one provides to a Non-Confidential Resource will be relayed only as necessary for the Title IX Coordinator to investigate and/or seek a resolution. If one wishes to ensure confidentiality, one should not report to any of the Responsible Administrators listed above, but should instead speak to the Confidential Resources identified above and/or law enforcement.
How confidentiality and decisions about taking action are handled: A report to a Responsible Administrator or employee may or may not lead to an investigation or disciplinary action. The decision about what action(s) to take depend on many factors, including the Complainant’s wishes, particularly in cases of sexual assaults or other sexual offenses. A Complainant may make a report to a Responsible Administrator and request that the College take no investigatory or disciplinary action. Alternatively, a person may make a report intending for the College to investigate and take disciplinary action, but then later request that the complaint be withdrawn. Hartwick College will try to honor Complainant’s wishes to not initiate or to stop an investigation or disciplinary process. However, that is not always possible.
If a Complainant requests that no action be taken against the accused (i.e., no investigation or disciplinary action or that the investigation or disciplinary process cease), then the Responsible Administrator or employee will consult with the Title IX Coordinator and other appropriate administrators. The College will consider whether an investigation and/or disciplinary process is necessary to ensure a safe, non-discriminatory environment for all members of the Hartwick College community. The College’s decision as to responsive action will depend on the seriousness of the offense, whether there was a single accused or multiple, whether there is reason to believe that the accused has engaged in this or similar conduct previously, whether the incident represents escalation in unlawful conduct on behalf of the accused from previously noted behavior, whether the circumstances suggest an ongoing or future risk to the campus community or the Complainant, whether the act was perpetrated with a weapon, whether the victim is a minor, and similar considerations. A decision will be made and shared with the Complainant.
Similarly, a Complainant may desire to have investigatory and/or disciplinary action taken, but may wish to have his/her identity as the Complainant kept confidential. Depending on the circumstances, this may or may not be possible. If any number of people could have reported the incident, then it may be possible for the Complainant’s identity to remain confidential and not shared with the Respondent. However, in other cases, it may not be possible to proceed with investigatory or disciplinary action without revealing the identity of the Complainant. If a Complainant requests that their name be kept confidential (or if the Complainant makes an anonymous complaint), the College’s ability to respond to the complaint may be limited. The appropriate administrators will discuss the situation and the Complainant’s request for confidentiality, and a decision will be made and shared with the Complainant. Ultimately, the College retains the right to act upon any information that comes to its attention.
Interim actions and accommodations: The College may implement interim actions and accommodations in order to immediately respond to a situation. Interim actions and accommodations are designed to end any sexual misconduct and/or help to ensure that a thorough and impartial investigation can take place in a timely manner. Interim actions and accommodations may include the imposition of a “no contact” order directing one party to have no communication with the other party, including in person communication, through third parties, or via electronic means. Other interim actions and accommodations may include, but are not limited to, changes in class assignments, academic support services (such as tutoring), extracurricular programs, dining arrangements, residence hall assignments, transportation arrangements, or work assignments to assist the parties in not having to interact with one another, or other measures to enhance safety. The College will review the facts and circumstances of each case, in deciding whether and what steps are reasonable and appropriate.
Right to review of interim actions & accommodations: When a no-contact order is issued against a student, both the student and the person to whom the no contact order prohibits contact, will, upon request, be afforded a prompt review, reasonable under the circumstances, of the need for and the terms of the no contact order. This request shall be made by submitting a written request to the Title IX Coordinator, providing the basis for the request and submitting evidence in support of the request. Upon receipt of such a request, the Title IX Coordinator will inform the other party of the request and allow the other party to respond, including the right to submit evidence relevant to the request if desired. Upon request, an individual may also seek a prompt review of the need for and terms of any other interim measures and accommodations that directly affects him/her, by submitting a written request for review to the Title IX Coordinator, providing the basis for that request and any evidence in support of the request. The Title IX Coordinator may, in their discretion, modify or suspend the interim measures or accommodations on a temporary basis while the parties are submitting their information and responses. The Title IX Coordinator will respond to any such requests as soon as possible, but generally no later than one calendar week of the request and the parties’ submission of any evidence.
When a student accused of sexual assault, domestic or dating violence or stalking is determined to present a continuing threat to the health and safety of the campus community, the accused student is subject to interim actions pending the outcome of any proceedings under this policy, which may include a temporary suspension. Upon written request, the complainant or reporting party and/or the accused may seek a modification of the interim actions, including asking that the need for and terms of any interim actions be reconsidered. Such a request should be submitted in writing to the Title IX Coordinator, providing the basis for that request and any evidence in support. When the accused is not a student but is a member of the College community, the person is subject to interim action and/or other measures in accordance with applicable collective bargaining agreements and College employment policies and practices.
The following investigatory, disciplinary hearing and appeal procedures shall apply to the handling of all alleged violations of this policy. Faculty members should note that, as expressly provided in IV.B and IV.L of the Faculty Manual, the investigatory, disciplinary hearing and appeal procedures set forth in this policy shall apply in the event that the Complainant or Respondent is a faculty member.
A. Investigation of Complaint
If a report appears to allege a plausible violation of this policy, the College will conduct an investigation. An investigation may occur because a Complainant wishes to proceed with a complaint, or because the College determines that this is necessary despite the wishes of the Complainant. The College strives to ensure that complaints are responded to in a prompt, fair and impartial manner.
The investigation will be performed by appropriate trained persons. Where circumstances warrant, the Title IX Coordinator or designee, may determine that investigators who are external to the College will be utilized. No investigator will have a conflict of interest.
The Complainant and the Respondent shall receive notice referencing the specific provision(s) of this policy alleged to have been violated and the possible sanctions. Both parties will be provided with the date, time, location and factual allegations concerning the alleged violation and a copy of this policy. The Complainant and the Respondent will be given an equal opportunity to present separately, information in the context of the investigation, and to have irrelevant information concerning their character or other incidents not directly related to the complaint excluded from the investigation and hearing process. Information will be obtained from each party separately.
The Complainant and Respondent shall have the right to exclude their own prior sexual history with persons other than the other party or their own mental health diagnosis and/or treatment from admittance in the investigation and hearing process.
An investigation usually involves interviews of the persons involved, including witnesses, and gathering and reviewing relevant evidence. The College has the right to consult with legal counsel during the investigation. The Complainant and Respondent may each request that witnesses having relevant information be included in the investigation process. The investigator(s) retains discretion to determine the order and method of investigation and what, if any, witnesses will be interviewed as part of the investigatory process. At the conclusion of the investigation, the investigator(s) will complete a written investigation report, which will include a summary of the facts discovered during the investigation, an assessment of the credibility of the Complainant, Respondent and/or witnesses (as relevant). Upon completion of the report, both parties will be provided the opportunity to review the documentation, in person, subject to redaction permitted and/or required by law and an opportunity to respond in writing to the investigation report. The parties will be allowed three (3) business days to review and submit a written response to the investigation report. The College strives to complete the investigatory phase within 30 days, but this timeframe may be extended if necessary under the circumstances.
If two or more complaints are reported pertaining to the same or related sets of facts and circumstances, the Title IX Coordinator may determine that the cases should be investigated and adjudicated by the same investigator(s), hearing officer, and appeals panel, subject to the limits of applicable law including but not limited to FERPA. One such instance may be cross-complaints filed by the parties against each other.
The Title IX Coordinator, or designee, may decline to proceed with a complaint where the issues or incidents in the complaint were previously processed pursuant to this policy or when the party asserting the complaint could have and reasonably should have provided the evidence in a previous investigation and/or adjudication.
Some incidents may not sufficiently invoke the interests of the College for the College to pursue or may be more appropriately handled under another College policy or procedure. The Title IX Coordinator, in conjunction with other administrators if necessary, will decide if an incident will not be pursued or will be handled under a different policy for this reason. This decision may be made at any stage of the investigatory process.
B. Informal Resolution
In some cases, an informal resolution may be appropriate. An informal resolution is not the same as mediation and does not require the parties to meet together. An informal resolution may involve a third-party facilitator to explore whether the parties can agree on a result. An informal resolution must be agreed upon by both parties, and the Title IX Coordinator must agree that it is appropriate.
It may be necessary to conduct an investigation before an informal resolution can be arranged. The College will select the facilitator. The parties will not be required to meet together as part of the informal resolution process. At any time during the process the Complainant or the Respondent has the right to resume the formal processing of the complaint (i.e., investigation, disciplinary procedure, appeal). An informal resolution may include sanctions.
If an informal resolution results in an agreement, and if this agreement is acceptable to the College, then the informal resolution is considered successful. Both parties will sign a statement agreeing that the informal resolution was successful, and the matter will be considered resolved. If attempts at informal resolution are unsuccessful, then the formal process will resume. If a party with obligations pursuant to an informal resolution fails in his/her obligations, then the other party may ask the College to enforce the terms of the resolution or may proceed with a formal complaint process.
C. Disciplinary Hearing
At the conclusion of the investigation, the investigator(s) will issue a written investigatory report to the Title IX Coordinator. The Title IX Coordinator, or designee, will appoint a Hearing Officer from a pool of specially trained College personnel taking into account the circumstances of the case, including the status of the Respondent as a student, faculty member, employee or non-community member. Where circumstances warrant, the Title IX Coordinator or designee, may determine that a Hearing Officer external to the College will be assigned. The Hearing Officer will not have a conflict of interest.
The Hearing Officer will review the investigatory report as well as any written response to the report submitted by the parties, and may, if deemed necessary, communicate with the investigator(s) and/or any party or witness directly as part of the hearing process. The Hearing Officer is not bound by the investigator’s report; rather, it is advisory. The Hearing Officer may request additional investigation by the investigator(s). Both the Complainant and Respondent will be provided with the same opportunity to submit information and evidence with the Hearing Officer, including the right to submit a written statement to the Hearing Officer for consideration and/or request to meet individually with the Hearing Officer to provide any other relevant evidence. If the Hearing Officer concludes that the Respondent is responsible for a violation of this policy, then the Hearing Officer shall receive the Respondent’s disciplinary record (i.e., any previous disciplinary action or other violation of College policy, including this policy, for which the Respondent was found responsible), to consider, as appropriate, in determining sanctions. In addition, both the Complainant and the Respondent will be permitted to submit a written impact statement to the Hearing Officer for purposes of the determination of appropriate sanctions. The Hearing Officer may consult with other appropriate College officials in determining any appropriate sanctions. Upon conclusion of the hearing process, the Hearing Officer will issue a written decision to the Title IX Coordinator outlining relevant factual findings and whether a violation of this policy has occurred and, if relevant, the appropriate sanctions.
A non-member of the community may make a report that a Hartwick College community member has violated this policy. A non-community member’s complaint will be processed in accordance with the disciplinary hearing procedure (above).
The College may proceed with a complaint, including an investigation and through to a disciplinary outcome, even if the Complainant and/or Respondent elect not to participate. The College will attempt to complete the hearing process and issue the Hearing Officer’s decision within 60 calendar days, but this time frame may need to be extended under certain circumstances, such as where there are multiple complaints and/or respondents and/or where delays are necessitated by involvement of law enforcement, College breaks or other reasons of unavailability. All parties to the process will be notified in writing if, during the process, it becomes necessary to extend the time frame to allow for a fair and complete examination and resolution of the complaint.
The standard for decisions in disciplinary hearing proceedings is a preponderance of the evidence, meaning that it is more likely than not that a violation of this policy occurred. Both parties will receive simultaneous written notice of outcomes of all hearing proceedings, to the extent permitted by law. The final outcome letter shall include factual findings supporting the determination, the decision and the sanction, if any, as well as the rationale for the decision and sanction. The decision of the Hearing Officer is effective immediately.
Upon the conclusion of the hearing process, both the Complainant and Respondent shall have access to a full and fair record of the hearing, in person, subject to redaction permitted and/or required by law. The record of the disciplinary hearing shall be protected from public release until a final determination is made. A final determination is made under this policy when no appeal of the decision of the Hearing Officer is sought, or in the event of an appeal, when the decision of the Appeals Panel is communicated to the Complainant and Respondent.
D. Advisor of Choice
The Complainant and Respondent may be accompanied during any investigatory meetings and/or disciplinary hearing proceedings by an advisor of choice (at the party’s own expense, if the advisor is a paid advisor). The advisor’s role is to support the Complainant or Respondent throughout the process and aid in their understanding of the investigatory and/or disciplinary hearing process. The advisor may talk quietly with the party, but may not participate in the interview or be disruptive to any meeting and the party is required to speak on their own behalf. If an advisor is not adhering to these or other ground rules of any meeting, then the advisor may be removed from the meeting and the meeting will continue without opportunity for the party to secure a new advisor. Investigations and hearings will not be delayed based on the unavailability of a party’s desired advisor.
E. Appeals
Following issuance of the decision letter, the Complainant and Respondent, if a student, faculty member or employee, may file an appeal with the Title IX Coordinator. A written appeal, based on one or more of the grounds listed below, must be made within three (3) business days of the receipt of the decision letter and must clearly and fully set forth the evidence to support each identified ground of appeal which the appealing party is asserting. The grounds for appeal are limited to:
The Title IX Coordinator, or designee, will determine if the written appeal clearly identifies one or more of the grounds for appeal. The Title IX Coordinator will not assess the merit of the appeal, but will review the documentation to confirm that a ground or basis for appeal has been asserted in the appeal. If a request for appeal is accepted, both parties will be notified. The non-appealing party will be provided the opportunity to review the appeal and will be permitted three (3) business days in which to respond to the appeal.
The Title IX Coordinator will appoint an Appeals Panel, which shall be made up of three (3) members from the pool of available Hearing Officers, or where appropriate, individuals trained in Title IX who are external to the College, to review the appeal. No member of the Appeals Panel shall have a conflict of interest.
The Appeals Panel will have access to the investigatory report, the Hearing Officer’s decision and may, if the Appeals Panel deems it necessary, communicate with the investigator(s), the Hearing Officer, and/or any party or witness directly as part of the appeal process. However, appeals are not intended to be full re-hearings of the complaint. In most cases, appeals will be considered upon a review of the written documentation or record of the investigator(s) and/or Hearing Officer, and any pertinent documentation regarding the grounds for appeal.
The Appeals Panel may affirm the Hearing Officer’s decision, alter the Hearing Officer’s decision (with respect to a finding of responsibility and/or sanctions), or return the case to the investigator(s) for further investigation. A case returned to the investigator(s) for further investigation will then proceed directly back to the Appeals Panel for its decision unless the Appeals Panel directs otherwise.
Sanctions remain in place pending the outcome of the appeal, unless the Title IX Coordinator decides otherwise. A preponderance of the evidence standard will be applied on appeal. The decision of the Appeals Panel will normally be communicated within eight (8) business days to both parties in writing. The Appeals Panel’s decision will be final and binding.
The sanction(s) for a violation of this policy will be based on a consideration of all of the circumstances, including the severity of the conduct and the Respondent’s disciplinary history. The range of sanction(s) imposed may include, but are not limited to, any one or more of the following:
If the conclusion reached is that there has been no violation of this policy but other inappropriate conduct has occurred, the College retains the right to address that inappropriate behavior in accordance with College policy and practice.
For those crimes of violence that Hartwick College is required by federal law to include in its Annual Security Report, the transcripts of students found responsible after a hearing and appeal, if any, shall include the following notation:
For the Respondent who withdraws while such charges are pending, the transcript shall include the following notation:
Transcript notations for suspensions may be removed at the discretion of the College, but no earlier than one (1) year after the conclusion of the suspension. Transcript notations for expulsion shall not be removed.
Hartwick retains conduct jurisdiction over students who choose to take a leave of absence, withdraw or have graduated for any misconduct that occurred prior to the leave, withdrawal or graduation. If an accused student takes a leave of absence or withdraws, the College in its discretion may continue processing a report or complaint pursuant to this Policy. In addition, the College may preclude a student subject to allegations of violations from graduating until the allegations are resolved. The outcome of allegations made pursuant to this Policy will take precedence over any leave, withdrawal or departure from the College, which may include graduation, until all allegations are resolved. A hold may be placed on a student’s ability to re-enroll and/or obtain official transcripts and/or graduate. In the event of serious misconduct committed while still enrolled but reported after the accused student has graduated, Hartwick may invoke this Policy and these procedures and should the former student be found responsible, Hartwick may revoke that student’s degree or impose a ban from campus of any length of time.
Records generated in connection with reports, investigations and disciplinary proceedings are maintained in confidential files maintained by an appropriate office, which may be the Title IX Coordinator, the Assistant Vice President for Student Experience, Human Resources, and/or the Registrar (for records concerning disciplinary outcomes), and only those with a right and need to know are permitted access. For additional information about maintenance and accessibility to student records, please see the College’s policy governing Student Privacy Rights and Confidentiality.
The College prohibits retaliation against any individual who files a good-faith complaint of sex discrimination, sexual harassment, domestic or dating violence, stalking or any other form of sexual misconduct or assists or participates in good-faith in any manner in an investigation or proceeding conducted pursuant to this policy by the College or by an external agency. Any such acts of retaliation should be reported promptly to the Title IX Coordinator, the Director of Campus Safety or the Assistant Vice President for Student Experience. Any retaliation is subject to disciplinary action, up to and including expulsion/termination. Complaints of retaliation will be handled pursuant to the applicable disciplinary procedures (above).
VIII. Amnesty For Individuals Who Report Sexual Misconduct
The health and safety of every student at Hartwick College is of utmost importance. Hartwick College realizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence, including but not limited to domestic violence, dating violence, stalking or sexual assault occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. Hartwick College strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to College officials. A bystander acting in good faith or a reporting individual acting in good faith that discloses any incident of domestic violence, dating violence, stalking or sexual assault to Hartwick College officials or law enforcement will not be subject to the College’s code of conduct action for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the domestic violence, dating violence, stalking or sexual assault.
There is no time limit for making a report. However, the passage of time may make effective responsive action difficult. Further, if the Respondent is no longer a member of the College community, the College’s ability to respond may be limited. It is at the discretion of the Title IX Coordinator to determine the action the College will take concerning complaints which are filed after a substantial amount of time has passed. Individuals are encouraged to bring complaints forward in a timely manner.
Responsible administrators, persons assigned as investigators and individuals appointed to disciplinary hearing proceedings to hear alleged violations of this policy (e.g., hearing officers and appellate officers) will receive annual training on relevant topics, including discrimination, harassment, sexual misconduct, stalking, domestic violence and dating violence and how to conduct investigations and disciplinary proceedings that protect the safety and respectful treatment of all parties and promote accountability to the College community.
In addition, workplace harassment training is required for all employees, including all administrators and all faculty, whether full-time or part-time. The objective of this training is to enable individuals to understand and recognize the nature of harassment, its impacts and when it occurs in their own behavior and that of others. All new employees are required to complete this training within 30 calendar days of hire, and every year thereafter. In the event that an employee does not satisfactorily complete the trainings, written notice will be served that, unless and until they complete the trainings, the College will not provide the employee with any indemnification or defense in the event any workplace harassment charges are brought against them. The College will withhold annual pay increases to any employee who fails to participate in the trainings. Also, the College will relieve an employee who refuses to participate in required trainings of all supervisory responsibilities. The College may, at its discretion, terminate an employee who does not complete the required training(s).
Hartwick College is an academic institution at which academic freedom possessed by those who are teaching/conducting research and their students is necessary and valued. The College will not construe this policy to prevent or penalize a statement, opinion, theory, or idea offered within the bounds of legitimate, relevant, and responsible teaching, learning, working, or discussion.
Information disclosed through a public awareness or advocacy event such as a candlelight vigil, protest, or other event, does not obligate the College to begin an investigation based on such information. The information may be used to inform educational and prevention efforts.
The College will take steps to ensure that answers to required climate surveys and assessments remain anonymous and that no individual is identified. No personally identifiable information will be included in any published results. Information discovered or produced as a result of these surveys will not be in any court proceeding except as required by a court action.
The College is required to include for statistical reporting purposes the occurrence of certain incidents in its Annual Security Report (ASR). Neither the names of individuals involved in incidents nor the specific details of the incidents are reported or disclosed in ASRs. In the case of an emergency or ongoing dangerous situation, the College will issue a timely warning to the campus, except in those circumstances where issuing such a warning may compromise current law enforcement efforts or when the warning itself could potentially identify the reporting individual. In such circumstances, the name of the alleged perpetrator may be disclosed to the community, but the name of the victim/Complainant will not be disclosed.
XV. Coordination with Other Policies
A particular situation may potentially invoke one or more College policies or processes. The College reserves the right to determine the most applicable policy or process and to utilize that policy or process.
If a student is charged with policy violations under both the Sex Discrimination, Harassment and Misconduct Policy and Code of Student Conduct, the alleged violations will be handled through one hearing process, engaging both the Title IX Coordinator and the Assistant Vice President for Student Experience or designee. In circumstances where there is a conflict between the procedures and/or processes set forth in the Code of Student Conduct and this policy, the procedures or process in this policy will take precedence.
The Title IX Coordinator is responsible to oversee and manage this Policy, and has discretionary authority to interpret and construe any uncertain or disputed aspects of the process.
Any College administrator or official to whom this policy empowers to act may delegate their authority to any other appropriate College official. Delegation of authority may be necessary to avoid conflicts of interest or where time constraints or other obligations prevent a College official named in this policy from fulfilling their designated role.
Any person with a concern about this policy or the College’s handling of a particular matter should contact the College’s Title IX Coordinator, Traci Perrin, at (607) 431-4293 or by email at perrint@hartwick.edu. The U.S. Department of Education, Office for Civil Rights is a federal agency responsible for ensuring compliance with Title IX. OCR may be contacted at 400 Maryland Avenue, SW, Washington, DC 20202-1100, (800) 421-3481.
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Students’ Bill of Rights for Incidents of Sexual Misconduct
All students have the right to:
Additional Rights for Incidents of Sexual Violence
Anyone reporting an incident of sexual assault, domestic or dating violence or stalking, also has the right to:
(i) options to proceed, including the right to make a report to Campus Safety, local law enforcement, and/or state police or choose not to report; to report the incident to Hartwick College; to be protected by the College from retaliation for reporting an incident; and to receive assistance and resources from the College, as set out in its Sexual Misconduct Policy.
(ii) where applicable, the importance of preserving evidence and obtaining a sexual assault forensic examination as soon as possible;
(iii) detailing that the criminal justice process utilizes different standards of proof and evidence and that any questions about whether a specific incident violated the penal law should be addressed to law enforcement or to the district attorney;
(iv) whether such College official is authorized to offer the reporting individual confidentiality or privacy; and
(v) the reporting individual’s other reporting options.
Employee New York State Supplement
Hartwick College Sexual Misconduct Policy Supplement for Employees
On New York State Workplace Sexual Harassment
In compliance with New York State law, the College provides for the following notifications concerning workplace sexual harassment. The following does not replace — and is instead in addition to — the College’s Sexual Misconduct Policy. Sexual harassment is defined and the procedures for reporting, investigating and adjudicating complaints of sexual harassment are contained in the Sexual Misconduct Policy.
The College’s policies addressing sexual harassment apply to all employees. They also apply to individuals who are not employees of the College but are employees of contractors, subcontractors, vendors, consultants, and other persons who provide services in the College’s workplace, such as interns and temporary employees.
Sexual harassment is a form of employee misconduct. A College employee who is experiencing sexual harassment or suspects that another employee is being harassed may contact his/her supervisor or department head or a Responsible Administrator, listed in the Sexual Misconduct Policy. A College supervisor or manager who receives a complaint or information about workplace sexual harassment is required to take appropriate action. Appropriate action may include immediately intervening if harassment is witnessed by the supervisor or manager, and in all instances includes reporting the situation to the Title IX Coordinator. In addition to being subject to discipline if they themselves engage in sex discrimination, sexually harassing conduct, or retaliation, persons with supervisory authority over other College employees will be subject to discipline for knowingly allowing sexual harassment to continue. A reporting form is provided as an attachment to this policy that employees may use, if they wish, to submit a report of workplace sexual harassment.
The College reserves the right to take action to correct — including to discipline — behaviors that violate the College’s professional conduct expectations even if the conduct does not violate the law. Therefore, not all situations that violate College policy will constitute a violation of the law or allow for a legal remedy. The following agencies enforce laws prohibiting sexual harassment. An individual who has experienced harassment may file a complaint with the College only or also may file a complaint with an enforcement agency. Complaining internally to the College does not extend your time to file with an enforcement agency or in court. You do not need an attorney to file a complaint with an enforcement agency and there is no cost to file with an enforcement agency.
The New York State Division of Human Rights (DHR) enforces the Human Rights Law (HRL), codified as N.Y. Executive Law, art. 15, § 290 et seq., which prohibits sexual harassment in employment in New York State, and protects employees, and other individuals working in an employer’s workplace. A complaint alleging a violation of the Human Rights Law may be filed either with DHR, subject to a one year statute of limitations, or in New York State Supreme Court, subject to a three year statute of limitations.
The DHR will investigate the complaint to determine if unlawful harassment occurred and if the circumstances amount to a violation of the law. If unlawful discrimination is found after a hearing, the DHR or the court may award relief, which varies, but may include requiring the employer to take action to stop the harassment, or redress the damage caused, including reversing an unlawful employment action, paying monetary damages, attorneys’ fees and civil fines.
DHR’s main office contact information is: NYS Division of Human Rights, One Fordham Plaza, Fourth Floor, Bronx, New York 10458, (718) 741-8400 www.dhr.ny.gov. The DHR can be contacted at (888) 392-3644 or visit dhr.ny.gov/complaint for more information about filing a complaint. The website has a complaint form and contact information for DHR’s regional offices across New York State.
The United States Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws, including Title VII of the 1964 federal Civil Rights Act (codified as 42 U.S.C. § 2000e et seq.). An employee must file a complaint with the EEOC within 300 days from the conduct giving rise to the complaint. The EEOC also investigates complaints, but does not hold hearings or award relief. The EEOC may take other action including pursuing cases in federal court on behalf of complaining parties, or issuing a Right to Sue Letter that allows an individual to pursue his/her claims in federal court. Federal courts may award remedies if discrimination is found to have occurred.
The EEOC can be contacted by calling 1-800-669-4000 (1-800-669-6820 (TTY)), or visiting their website at www.eeoc.gov or via email at info@eeoc.gov. If an individual files an administrative complaint with DHR, DHR will file the complaint with the EEOC to preserve the individual’s right to proceed in federal court.
There may be additional applicable laws, including local laws, or agencies that address the topics covered by this policy,
Individuals are reminded that no one who in good-faith makes a complaint of sexual harassment or participates in an investigation into sexual harassment — whether an internal College process or an external enforcement agency process — may be retaliated against. Retaliation is against College policy and it is against the law.
Effective October 9, 2018
