The Harassment and Sexual Misconduct Board shall be composed of at least eight and no more than ten members appointed by the President to staggered terms of two years in the case of student members and three years for non-student members. Each year the current Board will solicit applications and nominations and will recommend members who will serve in the following year. All members of the community may nominate individuals for Board membership provided the nominees are willing to serve if appointed. Every effort will be made to maintain a gender balance on the Board, which will include students and members of the faculty, administration, staff, and maintenance and operations. At least one member of the Board will be a tenured faculty member and at least one a student.
The President shall appoint new members to the Board and designate the chair before the final week of classes of the spring term. Normally, the Chair will be a tenured member of the faculty. The Chair shall arrange for the Board members to receive training prior to assuming their responsibilities. The term of appointment for new members shall begin with the first meeting of the Board in the fall semester.
B. Hearing Committee
The Chair will annually appoint a three person hearing committee composed of at least one student and two other Board members to conduct hearings of the Board. The Chair is a non-voting member of the Hearing Committee who presides over the hearing. Normally, to be eligible to serve on the Hearing Committee, each member must have served for at least one year on the Board. The term of appointment to the Hearing Committee will be one year. If any vacancy on the Committee occurs during the academic year, or if the Chair determines that a legitimate conflict of interest exists between a member of the Committee and a party to a complaint, the Chair may request that the Board nominate a replacement from those members of the Board eligible to serve.
If, pursuant to a formal complaint, the respondent accepts responsibility for a violation of this policy, or if the Hearing Committee finds him or her responsible, various sanctions, ranging from a warning to permanent separation from the College, may be imposed. Individuals found responsible for violation of the College policy on Non-consensual Sexual Intercourse should expect to be separated from the College. Individuals are encouraged to bring complaints forward in a timely manner, as it becomes difficult to establish the facts of the complaint as time passes.
C. Investigation of Complaint
Unless the respondent accepts responsibility for the alleged violation or the facts are uncontested, Hamilton College uses an investigation model to resolve complaints of harassment and sexual misconduct. Upon receipt of a formal complaint, the Chair and appropriate College Officer will meet with the complainant and explain the investigation procedures that will be followed. The Chair and Officer will meet with the respondent to provide notification and a copy of the written complaint. The respondent is required to submit to the Chair a written response to the complaint within 48 hours of receipt of the complaint. The complainant will be provided with a copy of the respondent's written response prior to the investigation subcommittee beginning its work.
All parties and witnesses will be interviewed and evidence collected by a two member subcommittee of the Board. All members of the Board receive special training, and subcommittees of two persons, who are not members of the Hearing Committee, will be appointed by the Chair for each complaint. The investigation subcommittee will usually have a male and female member. A third investigator from Campus Safety or another administrative office may be added at the discretion of the Chair.
In addition to interviewing the complainant and the respondent, the investigation subcommittee will interview and gather written statements from witnesses for the complainant and for the respondent who have information relevant to the investigation. The respondent must participate in all proceedings, and will be required to answer truthfully all of the questions posed during the investigation and any hearings.
It is the responsibility of the investigation subcommittee to take custody of, and arrange safekeeping for, any physical evidence to be used in making a finding, though evidence related to the commission of a crime will be handled by appropriate law enforcement authorities. At the conclusion of the investigation, the investigation subcommittee will issue to the Chair a written report of the evidence gathered and of its findings.
If the complainant and the respondent agree to the findings, and the findings indicate a violation by the College's "more likely than not" standard, the College Officer will assign a sanction, determined in consultation with the Chair and/or Hearing Committee.
If the investigation subcommittee is unable to reach a finding or finds that the evidence does not meet the College's "more likely than not" standard, or if the investigation subcommittee finding is rejected by the complainant or the respondent, the complainant and/or respondent may request a hearing with the Hearing Committee. The Chair will issue a formal charge to the respondent, detailing each policy alleged to have been violated, the range of sanctions which might be imposed upon a finding of a violation, and the relevant procedures to be followed. The Chair will give formal notice to the complainant, the respondent, and relevant witnesses of the time, place and details of the hearing. The Hearing Committee will receive a copy of the investigation subcommittee report and may call on the investigation subcommittee as necessary during these proceedings. It will be the responsibility of the investigation subcommittee to arrange for and/or provide the Hearing Committee with expert sources of information as necessary.
In resolving all formal complaints of harassment and sexual misconduct, the complainant and the respondent will be notified in writing of the findings (material facts, evidence, credibility determinations and the reasons why the committee determined that the standard of evidence was or was not met) and any sanction(s). In some instances, the College may also choose to make a brief public announcement of the nature of the violation and the action taken, using no names. Certain college administrators (e.g., the College President and Director of Campus Safety) may be informed on a confidential basis. If an act of alleged harassment or sexual misconduct is reported to a College Officer and there is evidence that a felony has occurred, local police will be notified. This does not mean that charges will be automatically filed or that a victim must speak with the police, but the College is legally required to notify law enforcement authorities. The College must also report statistics concerning the occurrence on campus of any of six major violent crimes, including certain sex offenses, in an annual report of campus crime statistics. This statistical report does not include any personally identifiable information.
D. Rights of the Respondent and Complainant at Committee Hearings
1. Common Rights
In all complaints, each party has the right:
to an investigation and appropriate resolution of all complaints of harassment and sexual misconduct deemed credible by the Chair and appropriate officer and made in good faith to College administrators;
to receive the counsel and support of an advisor of his or her choice, who may be a designated member of the Board or another member of the Hamilton community, throughout the hearing process. Neither hearing Committee members nor attorneys may serve as advisors. The advisor may consult with the advisee but may not speak on behalf of the advisee unless directed to answer questions raised by Committee members or to assist the advisee with questioning, as defined in the Hearing procedures (E.10 and 11);
to the same opportunity to have others present in support or advisory roles during the hearing;
to be notified of the finding and any sanction following any hearing involving harassment or sexual misconduct, usually within 24 hours of the end of the hearing;
to seek the professional counsel of an attorney at his or her own expense and to have access to the attorney at every stage of the hearing process. The attorney will not be permitted to be present at the hearing itself, during conversations between the Officer and Chair, or during interviews between members of the investigation subcommittee and the respondent or the complainant;
to medical and emotional support (in the case of students) from the Student Health Service, the Counseling Center, and/or trained advocates;
to an expeditious review of the complaint and timely hearing conducted in the manner described in the Harassment and Sexual Misconduct Board Procedures;
to identify witnesses who may be called at the hearing;
to have information concerning his or her sexual history, character, or incidents not directly relevant to the complaint, excluded from the hearing;
to testify, orally and/or in a written document;
to make an opening and closing statement in the event of formal proceedings;
to submit a written impact statement and to have that statement considered by the Hearing Committee and/or the Chair and Officer in determining the sanction;
to review all documentary evidence available regarding the complaint, subject to the confidentiality limitations imposed by state and federal law, at least 48 hours prior to the hearing;
to be informed of the names of all witnesses who will be called to give testimony, at least 48 hours prior to the hearing;
to preservation of confidentiality, to the extent possible and allowed by law;
to a hearing closed to the public;
to petition the Chair that any member of the investigation subcommittee or Hearing Committee be removed on the basis of demonstrated bias or conflict of interest;
to appeal the finding and any sanction, in accordance with the standards for appeal established by the Harassment and Sexual Misconduct policy;
to be fully informed of campus judicial rules and procedures as well as the nature and extent of all alleged violations contained within the complaint;
to have the College compel the presence at the hearing of student, faculty and staff witnesses, to ask questions, directly or indirectly, of witnesses (including the respondent or complainant), and to challenge documentary evidence;
to be present for all testimony given and evidence presented before the Hearing Committee;
to have complaints heard by Hearing Committee members who have received annual harassment and sexual misconduct adjudication training;
to have College policies and procedures followed without material deviation;
to be informed in advance of any public release of information regarding the complaint;
to have any personal information about the complainant withheld from the public and not released without the complainant's consent;
2. Additional Rights of the Complainant
To be informed by college officials of options to notify proper law enforcement authorities, including on-campus and local police, and the option to be assisted by campus authorities in notifying such authorities, if the complainant so chooses. This also includes the right not to report, if this is the complainant's desire;
To have limitations placed on the respondent regarding contact with the complainant while the complaint is being reviewed. These limitations may include, but are not limited to, a separation of the working, living, and/or academic arrangements of the complainant and the respondent;
To bring an advocate or advisor to all phases of the investigation and hearing process;
To give testimony in a campus hearing by means other than being in the same room with the respondent;
To be informed of options for, and assistance in, changing academic and living situations after an alleged harassment or sexual misconduct incident, if so requested by the victim and if such changes are reasonably available (no formal complaint, or investigation, campus or criminal, need occur before this option is available). Accommodations may include:
Change of a student's housing to a different on-campus location;
Assistance from College support staff in completing the relocation;
Exam (paper, assignment) rescheduling;
Taking an incomplete in a class;
Transferring class sections;
Temporary withdrawal;
Alternative course completion options.
3. Additional Rights of the Respondent
To waive the hearing process by admitting responsibility. The respondent must submit in writing, to the College Officer and the Chair, 24 hours prior to the scheduled hearing, a decision to waive his/her right to a hearing. In those cases, the College Officer, in consultation with the Chair, may determine an appropriate sanction.
To a hearing on the complaint, including timely notice of the hearing date, and adequate time for preparation;
To a fundamentally fair hearing;
To a hearing committee outcome based solely on evidence presented during the hearing. Such evidence will be credible, relevant, based in fact, and without prejudice.
E. Hearing Procedures
The Hearing Committee reviews all materials from the investigation privately prior to the hearing.
The committee notes any questions they have concerning the investigation subcommittee report.
The committee reviews written statements of the parties in response to the investigation findings, if available.
The Chair designates a committee member to keep minutes of the hearing.
The hearing is called to order with the complainant and the respondent present, with their advisors, unless alternative hearing procedures separating the parties are in place.
Witnesses are not present at this point, and are kept sequestered outside the hearing room.
Participants introduce themselves and their role in the hearing.
Rules of the hearing and hearing procedures are explained by the Chair.
Questions on procedural rules are solicited from the parties.
Rights of the parties are explained.
The Chair confirms that parties received copies of the complaint, response, witness lists and all available written evidence and documentation in advance of the hearing.
All participants are admonished that: (i) they are expected to be truthful (and may face consequences if they are not); (ii) no one may speak unless recognized by the Chair who has full authority over the proceedings; (iii) the proceedings are confidential and should not be discussed outside of the hearing room; (iv) information regarding sexual history, character or incidents not directly related to the complaint will be inadmissible.
Each witness called into the hearing room is instructed on the requirement of truthfulness.
The Chair introduces the formal charge (reads first section of charge) and identifies the policies allegedly violated.
The complainant is asked to make an opening statement. Specific comments should be directed to areas of agreement/disagreement with the investigation report.
The respondent is asked to make an opening statement. Specific comments should be directed to areas of agreement/disagreement with the investigation report.
The committee may ask questions of the complainant; the respondent may ask questions of the complainant. At the request of the respondent, with permission from the Chair, the advisor for the respondent may submit written questions to be asked of the complainant by the Chair.
The committee may ask questions of the respondent; the complainant may ask questions of the respondent. At the request of the complainant, with permission from the Chair, the advisor for the complainant may submit written questions to be asked of the respondent by the Chair.
The complainant may call witnesses.
The complainant's witnesses are questioned by the complainant, the committee, and the respondent.
The respondent may call witnesses.
The respondent's witnesses are questioned by the respondent, the committee, and the complainant.
Any witnesses who need to be recalled and re-questioned are called and then excused.
The complainant is given the opportunity to make a closing statement.
The respondent is given the opportunity to make a closing statement.
The Chair confirms that neither the committee, the complainant, nor the respondent has any further questions.
Any impact statements are submitted in writing at this point.
The hearing is adjourned. Only the committee members and the Chair will remain for deliberations.
The committee determines first, by majority vote, if the respondent is responsible for violation of the policies identified in the charge, by the "more likely than not" standard.
If the committee finds that the evidence supports a finding that the prohibited conduct more likely than not did occur, it will issue a finding that the respondent violated College policy. The "more likely than not" standard is met when evidence in favor of the finding of culpability outweighs the evidence against such a finding even by only a very small amount.
A finding of culpability will trigger the committee's consideration of sanctions. In weighing appropriate sanctions the committee may consider, among other things, the strength of the evidence supporting culpability.
The committee recommends any sanction(s) to the College Officer who makes a final decision. The committee provides a clearly articulated rationale based on findings and the committee's judgment on appropriate action.
In recommending a sanction, the committee will consider available precedent and similar complaint history.
The rationale will note the specific evidence that was and was not considered and why.
Within 48 hours after receiving the committee's recommendation, the Chair and the College Officer will convene the parties (without advisors) and orally report the finding and any sanctions, explain appeal options, and explain how sanctions will be implemented. The Chair will deliver to the complainant and the respondent a written summary report of the finding and any sanction.
A tape recording shall be kept of the hearing. This document is an internal College record to be made available to the Appeals Board or to the President by the College Officer. A student preparing an appeal will also be allowed to listen to the tape, under the supervision of the Dean of Student's designee. This tape is destroyed after adjudication or decision in any appeal.
RECORDS
The Chair shall keep only such records as are needed for the Board's semi-annual report. The College Officer and the President shall keep on file in his or her office for six years from the date of the filing of the formal complaint, copies of the written statement of the complainant, the respondent, and the action taken by the College Officer.
SEMI-ANNUAL REPORT
At the beginning of each semester, the Board shall report on its activities during the past term. Its report shall include the number of individuals who came to Board members for help, the number of requests for mediation, the number of formal complaints that were lodged, and the kinds of behavior that gave rise to the complaints. The Board shall submit its report to the President, who shall make it public. The report shall not mention the name of any individual or identifying details of any case.
POLICY AMENDMENT
The Harassment and Sexual Misconduct Board and/or an Officer of the College may recommend modifications of this policy to the President.
APPEALS PROCEDURES
Appeals of a Harassment and Sexual Misconduct Board decision are heard by a two-member subset of the Appeals Board (Appeals Panel) consisting of the Chair of the Appeals Board and one other faculty member from the Appeals Board, determined by the Appeals Board Chair. Both members of the Appeals Panel will participate in the annual training of the Harassment and Sexual Misconduct Board.
The Appeals Panel will not substitute its own judgment for that of the hearing committee and/or officer, nor will it concern itself with the possibility that others might have arrived at a different judgment. Its terms of reference extend only to investigation of the procedures by which the original judgment was reached. Decisions of the Appeals Panel are final.
Any party to a Harassment and Sexual Misconduct Board decision may appeal a decision within one week of being informed in writing of that decision. Respondents who accept investigation findings may only appeal on the basis of sanction. The appeal must be made in writing to the Chair of the Appeals Board, and must state in detail the reasons for the appeal. The Chair will inform the College Officer and Chair of the Harassment and Sexual Misconduct Board that an appeal has been made and will invite the Officer and Chair to make written statements to the Appeals Panel. Where an appeal is requested by the respondent party, a written statement will also be solicited from the complainant. Where an appeal is requested by the complainant party, a written statement will also be solicited from the respondent.
Within one week of receipt of the appeal, the Chair will convene the Appeals Panel to determine whether the appeal will be considered. In making that decision, the Appeals Panel will have access to the written records of the case. Acceptable grounds for an appeal are limited to:
Sanction inconsistent with the severity of the violation or with stated community standards and precedents
Procedural irregularity that affected the outcome of the hearing
Prejudicial bias on the part of the hearing body
New evidence not available at the time of the original hearing that could be outcome determinative must be brought to the attention of the Harassment and Sexual Misconduct Board for consideration before the complaint can be presented on appeal.
If the Appeals Panel decides to consider the appeal, the Chair will schedule another meeting for consideration and disposition of the appeal. The Appeals Panel will have access to the records of the hearing. Normally, the parties and Officer and Chair will not appear before the Appeals Panel, though they may be summoned at the discretion of the Chair.
The Appeals Panel may decide:
To uphold the original decision.
To remand the complaint to Harassment and Sexual Misconduct Board for rehearing. This will normally be done when there is a procedural irregularity that could be corrected in a rehearing.
To remand the complaint to the appropriate college officer with a recommendation that the penalty be modified, together with an explanation of why the original penalty is deemed inappropriate.
To remand the complaint to an ad hoc hearing board. This will be done only in extraordinary cases when, in the considered opinion of the Appeals Panel, prejudicial bias or procedural problems would make it impossible for the appropriate body to reach a fair decision.
The parties and the Officer and Chair will be informed in writing of the decision and of the grounds for the decision.
RECORDS
The record of the appeal will consist of the letter of appeal, the written statements from the parties and Dean/Officer and Chair; the written decision whether to hear the appeal and the outcome of the appeal. This record will be appended to the written record of the original decision and will be kept with it.
Portions of this policy were adapted from policies of NCHERM, SUNY University at Buffalo and Skidmore College.
