The Harassment and Sexual Misconduct Board exists to ensure that all students, faculty, staff and guests can work, study, and enjoy the society of the College community without being subjected to harassment or sexual misconduct.
Harassment is prohibited by Hamilton College policy and by federal laws such as Title VII and Title IX. All members of the community are expected to conduct themselves in a manner that does not infringe upon the rights of others. The Hamilton College Harassment and Sexual Misconduct Policy has been developed to reaffirm these principles and to provide recourse for those individuals whose rights have been violated. This policy serves as a means to determine, after the fact, if behaviors trespass on community values. By educating the Hamilton community about this policy and encouraging a clear understanding of the College's expectations, the Board also hopes to prevent violations.
Hamilton College affirms every individual's right to freedom of expression, and fosters the culture of tolerance and civility necessary to fulfill its educational goals. The academic freedom of an educational institution can create a tension with the prohibition of harassing behaviors. Hamilton College does not consider visual and/or aural demonstrations, depictions or conduct to be sexual harassment when there is a legitimate pedagogical context, such as material having an appropriate connection to course subject matter.
In order for individuals to engage in sexual activity of any type with each other, there must be clear consent. Consent is permission, freely given by word or action, by both participants in a sexual activity. Since two people may experience the same interaction in different ways, it is the responsibility of both parties to make certain that the other has consented before engaging in any sexual activity. Silence cannot be assumed to show consent. Consent to some form of sexual activity cannot be automatically taken as consent to any other sexual activity and consent may be withdrawn at any time. Persons using alcohol or other drugs are considered unable to give consent if they cannot appreciate the nature and implications of a sexual interaction. All individuals who consent to sex must be able to understand what they are doing. In order to give consent, one must be of legal age, which is 17 in New York State.
Consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion. Coercive behavior differs from seductive behavior in the type of pressure someone uses to get consent from another. When someone makes clear that he or she does not want sex, wants it to stop, or does not wish to go past a certain point of sexual interaction, continued pressure beyond that point is coercive.
Persons who have sexual activity with someone whom they know to be - or could reasonably be expected to know to be - mentally or physically incapacitated (substantially impaired by alcohol or other drug use or unconscious) are in violation of this policy. This policy also covers someone whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of so-called "date rape" drugs. Possession, use and/or distribution of any of these substances (including Rohypnol, Ketomine, GHB, Burundanga and others) is prohibited, and administering any of these drugs to another for the purpose of inducing incapacity is a violation of this policy.
Sexual misconduct is prohibited, in separate ways, by New York State law and Hamilton College policy. Thus, offenders may be prosecuted under New York State criminal statutes and subject to disciplinary action by the College. The College may choose to pursue disciplinary action while criminal action is pending, or even if criminal justice authorities choose not to prosecute.
Individuals or groups who have been harassed, or are victims of sexual misconduct as defined above, have recourse through the grievance procedures of the College established by this Policy. These grievance procedures apply to complaints regarding incidents taking place either on the Hamilton College campus or at College-sponsored events off campus.
The Harassment and Sexual Misconduct Board stands ready to respond to complaints in a variety of ways. Anyone who wishes to discuss a concern may approach any individual member of the Board. The privacy of all parties to a complaint of harassment or sexual misconduct must be strictly respected by the Board and by supervisory Senior Staff member, unless strict privacy interferes with the College's obligation to investigate fully the allegations and to record statistics in keeping with the law. Where extended disclosure is warranted, privacy will still be tightly controlled on a need-to-know basis. Dissemination of information and/or written materials to persons not involved in the complaint resolution procedure is not permitted. Campus clergy and professionals in the Counseling and Health Centers, including emergency medical technicians (EMTs), are the only Hamilton College employees who can offer legally protected confidentiality.
The College will not inform students' parents or guardians of their involvement in a complaint of harassment or sexual misconduct unless they are in major medical, disciplinary, or academic jeopardy, but students are strongly encouraged to inform their parents or guardians. College officials will directly inform a student's parents or guardians when requested to do so by the student.
If a complaint is initiated with an employee as respondent, or if a Senior Staff member or Director of Human Resources requests the involvement of the HSMB regarding an employee matter, the Title IX Coordinator and/or HSMB Chair will convene a subcommittee of non-student members of the Board for the purpose of conducting an investigation. At the conclusion of the investigation, the investigation subcommittee will issue to the Chair and relevant Senior Staff member a written report of the evidence gathered and of its findings. The Chair and Senior Staff member will then consult to determine the next appropriate action. If there is a conflict of interest involving the Senior Staff member, the investigation subcommittee will issue its report to the Chair and the President. In the event of a conflict of interest involving the Chair or the Title IX Coordinator, the Senior Staff member or President will appoint another non-student member of the HSMB to oversee the process.
The complainant has the option of three levels of response by the Harassment and Sexual Misconduct Board, which are briefly described below.
A member of the community may talk with any member of the Board about the College's process regarding harassment or sexual misconduct. If they wish, a friend or advisor may accompany them.
Under Title IX, however, an investigation would be deemed necessary when any alleged cases of non-consensual sexual misconduct or sexual harassment involving students are reported to a Board member or College employee.
Allegations of sexual misconduct will not be addressed through mediation, but may be addressed through a formal complaint.
In the case of harassment, a complainant may request a referral to a campus mediator (e.g., a member of the Counseling Center staff or Human Resources) who will try to facilitate understanding of the nature of the complaint by the respondent, clear up misunderstanding, and resolve the complaint while maintaining confidentiality. Mediation is particularly appropriate when the complainant wants help in addressing the issue without pursuing formal action.
A person who desires mediation should notify the Chair and/or the appropriate Senior Staff member in writing, outlining the complaint and requesting mediation. The Dean of Students or the Dean’s designee will respond, with the Chair, to complaints brought by one student against another. The Dean of Faculty or the Dean’s designee will respond, with the Chair, to complaints against members of the faculty. The supervising Senior Staff member will respond, with the Chair, to complaints brought against a member of the staff or administration. The Chair and Senior Staff member will meet with the complainant and refer the complaint to a trained campus mediator. A person seeking mediation must agree to be identified to the respondent. A campus mediator will begin mediation efforts promptly and will report to the Chair that the mediation occurred. Complainants are strongly encouraged not to discuss the complaint with other members of the community, except as required by the need for psychological counseling.
At the conclusion of a successful mediation, both parties will sign a statement agreeing that the mediation was successful and that no further action will be taken under this policy. If the mediation is unsuccessful, the complainant can proceed to a formal complaint and hearing within six months of the mediation. A copy of the signed statement will constitute the record of the mediation.
An individual may file a formal complaint by submitting to the Chair a signed written statement, including the time, place and nature of the alleged offense and the name of the respondent, at a minimum.
This will activate the Harassment and Sexual Misconduct Board Procedures and will involve the Chair, the appropriate Senior Staff member, the Title IX Coordinator, an investigation subcommittee of the Board, and the Hearing Committee of the Board. The Dean of Students or the Dean’s designee will respond, with the Chair, to complaints brought by one student against another. The supervising Senior Staff member will respond, with the Chair, to complaints involving members of the faculty, staff, or administration. Once a formal complaint has been filed, a request by a student respondent to withdraw temporarily or permanently from the College will not be approved until the investigation and hearing processes have concluded.
The Harassment and Sexual Misconduct Board shall be composed of at least eight and no more than 12 members appointed by the College’s Title IX Coordinator 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.
In consultation with the outgoing Chair, the Title IX Coordinator shall appoint new members to the Board and designate the new Chair before the start of the fall semester. Normally, the Chair will be a tenured member of the faculty. The Title IX Coordinator shall arrange for the Board members to receive training in a timely fashion. The term of appointment for new members shall begin with the first meeting of the Board in the fall semester.
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 (in the case of students), may be imposed. Individuals found responsible for violation of the College policy on Non-consensual Sexual Penetration 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.
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 Title IX Coordinator will meet with the complainant and explain the investigation procedures that will be followed. The Chair and Title IX Coordinator will meet with the respondent to provide notification of the complaint and the procedures that will be followed.
All parties and witnesses will be interviewed and evidence collected by a trained investigation subcommittee that includes two members of the Board (who are not Hearing Committee members) and a representative from Campus Safety. The investigation subcommittee will usually have a male and a female member. Typically, an investigation will be concluded within two weeks of receiving a complaint.
In addition to interviewing and gathering written statements from 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. Students who fail to do so may face disciplinary action under the Student Code of Conduct.
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 subcommittee will issue to the Chair and Title IX Coordinator a written report of the evidence gathered and investigation findings. A member of the subcommittee will meet with the Chair and Title IX Coordinator to review the written report. The Chair and/or Title IX Coordinator will then meet with the complainant and respondent separately to review the findings.
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). When the College receives complaints of sexual misconduct, a brief public announcement may be sent regarding 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 privacy basis. If an act of alleged harassment or sexual misconduct is reported to a Senior Staff member 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.
In all complaints, each party has the right:
a. to a timely investigation (typically within two weeks) and appropriate resolution of all complaints of harassment and sexual misconduct deemed credible by the Chair and appropriate Senior Staff member and made in good faith to College administrators;
b. 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);
c. to bring an advocate or advisor to all phases of the investigation and hearing process;
d. 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;
e. 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 Senior Staff Member or Title IX Coordinator and Chair, or during interviews between members of the investigation subcommittee and the respondent or the complainant;
f. to medical and emotional support (in the case of students) from the Student Health Service, the Counseling Center, and/or trained advocates;
g. to an expeditious review of the complaint and timely hearing conducted in the manner described in the Harassment and Sexual Misconduct Board Procedures;
h. to identify witnesses who may be called at the hearing;
i. to have irrelevant information concerning his or her sexual history, character, or incidents not directly related to the complaint, excluded from the hearing. The Chair and Title IX Coordinator may determine that evidence demonstrating a pattern of behavior directly related to the alleged violation is admissible information;
j. to testify, orally and/or in a written document;
k. to make an opening and closing statement in the event of formal proceedings;
l. to submit a written impact statement and to have that statement considered by the Hearing Committee and/or the Chair and Senior Staff Member in determining the sanction;
m. 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;
n. to be informed of the names of all witnesses who will be called to give testimony, at least 48 hours prior to the hearing;
o. to preservation of privacy, to the extent possible and allowed by law;
p. to a hearing closed to the public;
q. 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;
r. to appeal the finding and any sanction, in accordance with the standards for appeal established by the Harassment and Sexual Misconduct policy;
s. 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;
t. 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;
u. to be present for all testimony given and evidence presented before the Hearing Committee;
v. to have complaints heard by Hearing Committee members who have received annual harassment and sexual misconduct adjudication training;
w. to have College policies and procedures followed without material deviation;
x. to be informed in advance of any public release of information regarding the complaint;
y. to have any personal information about the complainant withheld from the public and not released without the complainant's consent.
a. To be informed by college officials of options to notify proper law enforcement authorities, and the option to be assisted by campus officials in notifying such authorities;
b. 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;
c. To give testimony in a campus hearing by means other than being in the same room with the respondent;
d. 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.
1. The Hearing Committee reviews all materials from the investigation privately prior to the hearing.
2. 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.
3. Participants introduce themselves and their role in the hearing.
4. Rules of the hearing and hearing procedures are explained by the Chair.
5. All participants are admonished that: (i) they are expected to be truthful (and may face judicial 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) the Chair is responsible for ensuring that these procedures are followed. Each witness called into the hearing room is instructed on the requirement of truthfulness.
6. The Chair introduces the formal charge (reads first section of charge) and identifies the policies allegedly violated.
7. The complainant is asked to make an opening statement. Specific comments should be directed to areas of agreement/disagreement with the investigation report.
8. The respondent is asked to make an opening statement. Specific comments should be directed to areas of agreement/disagreement with the investigation report.
9. 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.
10. 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.
11. The complainant may call witnesses.
12. The complainant's witnesses are questioned by the complainant, the committee, and the respondent.
13. The respondent may call witnesses.
14. The respondent's witnesses are questioned by the respondent, the committee, and the complainant.
15. Any witnesses who need to be recalled and re-questioned are called and then excused.
16. The complainant is given the opportunity to make a closing statement.
17. The respondent is given the opportunity to make a closing statement.
18. The Chair confirms that neither the committee, the complainant, nor the respondent has any further questions.
19. Any impact statements are submitted in writing at this point.
20. The hearing is adjourned. Only the committee members and the Chair will remain for deliberations.
21. 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.
22. 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.
23. 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.
24. 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.
25. Within 48 hours after receiving the committee's recommendation, the Chair and the College Officer will convene the parties 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.
26. A 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.
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. In cases where the two members do not agree, the 3rd Appeals Board member will review the case and make a determination. If there is a conflict of interest, a student Appeals Board member shall be appointed.
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 request an appeal 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 Senior Staff member and Chair of the Harassment and Sexual Misconduct Board that an appeal has been made and will invite the Senior Staff member and Chair to make written statements to the Appeals Panel. Where an appeal is requested by the respondent party, the complainant will be invited to respond if he or she chooses. Where an appeal is requested by the complainant party, the respondent will be invited to respond.
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:
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, Senior Staff member 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:
The parties and the Officer and Chair will be informed in writing of the decision and of the grounds for the decision. The record of the appeal will consist of the letter of appeal, the written statements from the parties, Senior Staff member 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.
The Title IX Coordinator shall keep only such records as are needed for the Board's annual report. The Senior Staff member and the Title IX Coordinator shall keep on file in his or her office for seven 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 Senior Staff member.
At the end of each academic year, the Board shall submit a report to the Title IX Coordinator. 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 Title IX Coordinator shall make it public at the beginning of the next academic year. The report shall not mention the name of any individual or identifying details of any case.
Members of the community may suggest changes to members of the Board or the Title IX Coordinator, who shall bring them to the Board for discussion. Final policy changes are to be approved by the President.
Portions of this policy were adapted from policies of NCHERM, SUNY University at Buffalo and Skidmore College, and is in keeping with Title IX procedures and the April 4, 2011 "Dear Colleague" letter from the U.S. Department of Education's Office of Civil Rights.. This policy was revised on May 20, 2013.