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Introduction. Sexual misconduct, including acts of sexual violence, is a form of sexual harassment that is prohibited under federal law and the Duke University Harassment Policy. The following special policies and procedures are in place regarding allegations of student-to-student physical sexual misconduct. Complaints of sexual misconduct in which either the complainant or respondent is not a student are addressed through the Harassment Policy. Complaints of non-physical sexual harassment between students are addressed through the Harassment Policy using the undergraduate/graduate/professional school disciplinary process as applicable (see web.duke.edu/policies/students/policies.php for detailed information). The Harassment Policy may be found here.
Complaints regarding student-to-student physical sexual misconduct may be filed with the director of the Office of Student Conduct (919-684-6938; firstname.lastname@example.org; www.dukejams.com; 200 Crowell Building; Box 90893; Durham, NC 27708).
Retaliation prohibited. Federal regulations and university policy protect against retaliation directed at any individual who files a complaint under this policy or participates in a complaint investigation. A complaint of retaliation may be initiated with Dr. Reese for any retaliatory actions resulting from the filing of a complaint under this policy.
Note: Any university employee—as well as any student who serves in an ongoing peer-advising role—informed of an allegation of sexual misconduct involving a student is required to notify the Office of Student Conduct with the names of the parties involved and the details of the report shared with him/her. University employees who serve in a professional role in which communication is privileged under North Carolina law (e.g., medical providers, therapists, rape crisis counselors, clergy) are not bound by this expectation, except as required by law.
Upon receipt of a report the Office of Student Conduct will take appropriate responsive action to ensure that the educational environment at Duke University is free of discrimination and a hostile environment. Additionally, as appropriate, steps may be taken to remedy the effects of the harassment on the complainant. This may include commencement of the disciplinary process against an accused student.
Sexual misconduct defined. Sexual misconduct is defined as any physical act of a sexual nature perpetrated against an individual without consent or when an individual is unable to freely give consent. Acts of a sexual nature include, but are not limited to, touching or attempted touching of an unwilling person’s breasts, buttocks, inner thighs, groin, or genitalia, either directly or indirectly; and/or rape, forcible sodomy, or sexual penetration (however slight) of another person’s oral, anal or genital opening with any object. Sexual misconduct also includes sexual exploitation (defined as taking non-consensual, unjust sexual advantage of another for one’s benefit or the benefit of another party), gender-based relationship violence, and gender-based stalking. These acts may or may not be accompanied by the use of coercion, intimidation, or through advantage gained by the use of alcohol or other drugs.
Consent defined. The university’s definition of sexual misconduct mandates that each participant obtains and gives consent in each instance of sexual activity. Consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions or words. It is an informed decision made freely and actively by all parties. Relying solely upon non-verbal communication can lead to miscommunication. It is important not to make assumptions; if confusion or ambiguity on the issue of consent arises anytime during the sexual interaction, it is essential that each participant stops and clarifies, verbally, willingness to continue. Students should understand that consent may not be inferred from silence, passivity, or lack of active resistance alone. Furthermore, a current or previous dating or sexual relationship is not sufficient to constitute consent, and consent to one form of sexual activity does not imply consent to other forms of sexual activity. Being intoxicated does not diminish one’s responsibility to obtain consent.
Conduct will be considered “without consent” if no clear consent, verbal or nonverbal, is given. It should be noted that in some situations an individual’s ability to freely consent is taken away by another person or circumstance. Examples include, but are not limited to, when an individual is incapacitated due to alcohol or other drugs, scared, physically forced, passed out, intimidated, coerced, mentally or physically impaired, beaten, threatened, isolated, or confined.
The use of alcohol or other drugs. The use of alcohol or other drugs can have unintended consequences. Alcohol or other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and effectively given. The perspective of a reasonable person will be the basis for determining whether one should have known about the impact of the use of alcohol or drugs on another’s ability to give consent. Being intoxicated or high is never an excuse for sexual misconduct.
Reporting Sexual Misconduct for University Action
The Office of Student Conduct receives complaints of a possible violation of this policy for investigation and possible remedial actions, including adjudication through the university’s disciplinary process or other remedies designed to reasonably minimize the recurrence of such conduct as well as mitigate the effects of the harassment. Reports may be filed at any time; prompt reporting can aid an investigation. The disciplinary process is available as an option until an accused student graduates.
Investigation. The conduct officer, or designee, may meet with the complainant to hear or clarify his/her account of the incident and review the investigation process and possible remedies, including the disciplinary process. A formal investigation may be launched, which may include the use of an independent investigator to investigate the complaint, interview witnesses, and collect additional information. After an initial investigation, the conduct officer or designee may ask further clarifying questions of the complainant, accused, or witnesses. A determination will be made on whether to proceed with the disciplinary process based on sufficient information to believe that a policy violation may have occurred. Should a determination be made not to proceed with the disciplinary process, the complainant may meet with the conduct officer to review that decision. During the investigation and until resolution of the matter, interim restrictions may be issued as deemed appropriate by the conduct officer or designee, including restrictions on contact between the complainant and the accused, exclusion from areas of campus, removal or relocation from residential areas, etc. An investigation will typically take no longer than 60 days after receipt of a complaint.
Hearing procedures. If an investigation supports moving forward with a hearing, a three-person hearing panel will preside over a case that is referred to the Undergraduate Conduct Board, comprised of two faculty or staff members and one student. (Hearings involving students within other communities [Fuqua, Law, Divinity, Medical, etc.] will proceed based on that community’s procedures. Hearings involving students from multiple communities will be adjudicated by the University Judicial Board. A finding of responsibility must be based on a unanimous vote using a “preponderance of evidence” standard; any sanction must be decided by a majority vote with the exception of suspension or expulsion, which must be supported unanimously. A complainant may have an advisor (a member of the university community) present during a hearing, but as with the accused’s advisor, he/she may only confer quietly or through notes with the complainant and may not address the panel.
Participants are reminded that any information shared during a hearing is confidential. The hearing panel will decide what testimony, witnesses, or other information is relevant, and may exclude information or a witness that is deemed duplicative or immaterial. Absent exceptional circumstances, the complainant or accused should inform the conduct officer in writing at least 24 hours in advance of the hearing the names of any witnesses he/she wishes to testify and to what they will attest.
Information for complainants. Complainants will be treated with respect before, during, and after the disciplinary process. The university will make all reasonable efforts to ensure the preservation of confidentiality, restricting information to those with a legitimate need for it. Complainants will be informed of the university’s disciplinary process and possible outcomes. The university will communicate substantive and, when warranted, procedural developments regarding the investigation. The alleged conduct may also be criminal in nature, and complainants have the right to report such conduct to local law enforcement, which does not preclude university disciplinary action. Regardless of whether a complainant pursues a criminal complaint and/or the university’s grievance process through this outlined policy, the university may investigate the incident(s) in question and will take appropriate responsive action to ensure that the educational environment is free of discrimination and the prevent the recurrence of a hostile environment—and, if appropriate, remedy the effects of the harassment on the complainant. Remedies available to a complainant may include, but are not limited to: reasonable academic accommodations, on-campus housing reassignment, a “no contact” order between the accused and the complainant, and disciplinary action against the accused as determined through the disciplinary process.
Complainants have the right to (and are strongly encouraged to seek) counseling and support available through resources such as Gender Violence Prevention and Intervention (GVPI) in the Women’s Center, Counseling and Psychological Services (CAPS), and Durham Crisis Response Center (DCRC).
Complainants may request changes to academic and living situations and will be notified as to what changes are reasonably available. Complainants also have access to disciplinary advisors to guide them through the disciplinary process.
Allegations of sexual misconduct will be investigated in a thorough and timely manner, typically within 60 days of receipt of a complaint. An advisor (who is a member of the university community) may accompany complainants to any meeting with the conduct officer or to a hearing. Complainants have the right to receive—within the parameters of the Family Educational Rights and Privacy Act (FERPA)—a copy of the written information given to a hearing panel, and written notice of the outcome of an investigation. Complainants may offer relevant material witnesses to speak on their behalf. (Note that a hearing panel may exclude witness testimony deemed irrelevant or duplicative.) Complainants may also submit two written character references to a hearing panel before the hearing begins. Complainants will be given the opportunity to make opening and closing statements to a hearing panel.
Information for accused students. Students accused of sexual misconduct who proceed to a hearing have similar rights as a student accused of any other policy violation (unless noted otherwise). For undergraduates, this includes the right to a 120-hour/five day notice in advance of a hearing, the right to bring material witnesses to speak on his/her behalf (written testimony of two character witnesses may be submitted to a hearing panel before the hearing begins), the opportunity to make opening and closing statements, and the right to ask questions (directed through the hearing panel) of any witness present. (Note that a hearing panel may exclude witness testimony deemed irrelevant or duplicative.) Students within other communities (Fuqua, Law, Divinity, etc.) should consult their respective school’s bulletin (or web.duke.edu/policies/students/policies.php) for any different or additional rights.
An accused student may request changes to academic and living situations, and will be notified as to what changes are reasonably available. Accused students can expect a presumption of innocence throughout the disciplinary process unless found responsible through an impartial and fair hearing using a “preponderance of the evidence” standard, and will be treated with respect throughout the process.
Disciplinary advisors are made available to the accused and should be consulted at the onset of an investigation. Their role is to educate accused students about the disciplinary process and provide support. An advisor (a disciplinary advisor or any other member of the university community) may accompany the accused to a hearing, but may only confer with the accused.
Notification of hearing outcome, sanctions, and appeal. The accused will receive verbal notification of the outcome of a hearing no sooner than two business days and no later than five business days after the hearing. The complainant will be notified of the outcome of a hearing consistent with federal law. Notification will be individually given to the accused and complainant at approximately the same time. A written hearing report outlining the decision and rationale of the hearing panel will be later delivered to the accused and the complainant consistent with the Family Educational Rights and Privacy Act. Sanctions for a finding of responsibility include, but are not limited to, expulsion, suspension, disciplinary probation, recommended counseling, and/or other educational sanctions deemed appropriate by the hearing body. Students who are found responsible for a violation of this policy have a right of appeal based on the following grounds: 1) new information (available after a hearing) of a nature that the verdict or sanction may have been different; 2) procedural errors within the hearing process which may have substantially affected the fairness of the hearing; and 3) the finding was inconsistent with the weight of the information. Complainants have the same rights of appeal afforded to accused students. Appeals will typically be decided within 10 business days of submission.