The health, safety and well-being of students is the College’s primary concern. If you or someone you know may be the victim of any form of Sexual Misconduct, you are strongly urged to seek immediate assistance from the appropriate community resource. Assistance can be obtained 24 hours a day, seven days a week from:
* Police (Town of Brunswick): 911 or (207) 725-6620
* Sexual Support Services of Midcoast Maine: (800) 871-7741
* Midcoast Hospital: 911 or (207) 729-0181
* Parkview Adventist Medical Center: 911 or (207) 373-2000
You are also strongly urged to contact the Advisor to the Student Sexual Misconduct Board (the “Advisor”), Meadow Davis, who is the designated Title IX Deputy Coordinator for the purposes of this Policy, by telephone at (207) 721-5189 or by email at email@example.com, as soon as reasonably possible to report any Sexual Misconduct you believe may have occurred. The Advisor can help connect students to the resources available on campus and in the community as well as explaining the processes available through this Policy.
This Policy covers complaints of alleged Sexual Misconduct by Bowdoin College students. If you or someone you know may be the victim of Sexual Misconduct by a member of the College’s faculty or staff, you may report such misconduct or file a Complaint with the College’s Title IX Coordinator. Bowdoin College’s Title IX Coordinator is the Director of Human Resources, Tamara Spoerri, who can be reached at the Office of Human Resources (in person in the McLellan Building First Floor, by telephone at (207) 725-3838 or by email at firstname.lastname@example.org).
Further information about Title IX and sex discrimination in education is available from the Office for Civil Rights, 400 Maryland Avenue, SW, Washington, DC 20202-1100 (by Customer Service Hotline: (800) 421-3481; fax: (202) 453-6012; TDD: (877) 521-2171; email: OCR@ed.gov; or on the web at http://www.ed.gov/ocr).
A. Overview of College Procedures
Sexual Misconduct, as defined by this Student Sexual Misconduct Policy and Procedures (this “Policy”), comprises a broad range of behavior that will not be tolerated in the College’s community of trust. For purposes of this Policy, “Sexual Misconduct” includes Sexual Exploitation, Sexual Harassment, Non-Consensual Sexual Contact, and Non-Consensual Sexual Intercourse, each as more fully defined below. Sexual Misconduct is a serious offense that violates College policy and federal law and may also be subject to criminal prosecution. The College encourages students to report Sexual Misconduct promptly to local law enforcement agencies and under these administrative provisions for the timely and fair resolution of Sexual Misconduct Complaints.
As a recipient of federal funds, the College is required to and does comply with Title IX of the Education Amendments of 1972, 20 USC 1681 et seq. (“Title IX”), which prohibits discrimination on the basis of sex in education programs and activities. Sexual Misconduct, as defined by this Policy, is a form of sex discrimination prohibited by Title IX. Students who have experienced instances of Sexual Misconduct may receive support from a variety of sources, including the Office of the Dean of Student Affairs, Women’s Resource Center, Resource Center for Sexual and Gender Diversity, Counseling Services, Health Services, Sexual Assault Support Services of Midcoast Maine (SASSMM), and Safe Space. The College urges all of its students to become familiar with available support services and obtain this support. College students are eligible to receive support regardless of whether they elect to pursue administrative remedies under these procedures.
The College offers alternative options to address cases of alleged Sexual Misconduct within the framework of the College’s administrative processes. The options are designed to provide an opportunity for parties to present their versions of the incident and to understand the nature of the incident and its effects on each party and the College community. The options differ in their procedures, degree of formality, and potential results.
The initiation of procedural options is normally coordinated through the Advisor to the Student Sexual Misconduct Board. However, nothing in these procedures precludes the Dean of Student Affairs or other College officials from taking appropriate action to enforce College policy or comply with applicable law in response to a report of Sexual Misconduct. This would include, but not be limited to, restricting contacts between the parties, initiating housing or academic accommodations, or ordering interim suspensions. The College may take appropriate protective and administrative action even in situations where the student who alleges that Sexual Misconduct has been committed against him/herself is absent. Use of these procedures does not preclude the use of other dispute resolution options outside the College, including civil and/or criminal proceedings.
Instances in which a current Bowdoin College student is alleged to have committed Sexual Misconduct may be resolved through the procedures outlined herein. These procedures apply to all students who are currently matriculants, 12 College Exchange or Special Students at Bowdoin College. Instances in which a non-student College employee is alleged to have committed Sexual Misconduct will be resolved through the appropriate College department, e.g., Human Resources or Academic Affairs. The Office of the Dean of Student Affairs will assist students in accessing support and resources in these other instances involving a non-student College employee.
“Advisor” means Advisor to the Student Sexual Misconduct Board. This person is appointed by the Dean of Student Affairs and is designated as the Title IX Deputy Coordinator for purposes of this Policy.
“Board Chair” means the Chair of the Student Sexual Misconduct Board. The Chair is the Dean of Student Affairs or his/her designee.
“Clery Act” means the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act, 20 U.S.C. Section 1092(f); 34 C.F.R., Part 668.46.
“Complainant” means the individual who alleges that Sexual Misconduct has been committed against him/herself or against another individual.
“Complaint” means the document prepared by the Advisor, and signed by the Complainant, that sets forth the name of the Respondent, and the date, location and nature of the alleged Sexual Misconduct.
“Effective Consent” means words or actions that show a knowing and voluntary agreement to engage in mutually agreed-upon sexual activity. Effective Consent cannot be gained by Force, by ignoring or acting in spite of the objections of another, or by taking advantage of the Incapacitation of another, where the Respondent knows or reasonably should have known of such Incapacitation. The use of alcohol or other drugs will never function to excuse behavior that violates this Policy. Effective Consent is also absent when the activity in question exceeds the scope of Effective Consent previously given. In addition, certain states have designated a minimum age under which a person cannot give Effective Consent.
“Expert Witness” means any individual who has expertise, training or special knowledge that is relevant to the specific details of a Sexual Misconduct case.
“FERPA” means the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g; 34 C.F.R. Part 99.
“Force” means physical force, violence, threat, intimidation or coercion.
“Incapacitation” means the physical and/or mental inability to make informed, rational judgments. States of Incapacitation include, without limitation, sleep, blackouts, and flashbacks. Where alcohol [or other drug] is involved, Incapacitation is determined by how the alcohol [or other drug] consumed impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments.
“Investigator” means the neutral fact-finder, who, during the course of a Sexual Misconduct investigation, typically conducts interviews with the Complainant, the Respondent, and each third-party Witness and completes the Investigative Report. The Investigator decides, based on his/her investigation, whether there is substantial basis for a hearing.
“Investigative Report” means the report, submitted to the Advisor, the Complainant and the Respondent. The report generally includes summaries of all interviews, copies of all other evidence, and a detailed written analysis of the events in question.
“Respondent” means the individual student who is alleged to have committed one or more acts of Sexual Misconduct.
“Sexual Misconduct” is a broad term encompassing “Sexual Exploitation,” “Sexual Harassment,” “Non-Consensual Sexual Contact,” and “Non-Consensual Sexual Intercourse,” as defined in this Policy. Sexual Misconduct can occur between strangers or acquaintances, including people involved in an intimate sexual relationship. Sexual Misconduct can be committed by men or women, and it can occur between people of the same or different sex.
“Non-Consensual Sexual Contact” means Sexual Contact that occurs without Effective Consent.
“Non-Consensual Sexual Intercourse” means Sexual Intercourse that occurs without Effective Consent.
“Sexual Contact” means the deliberate touching of a person’s intimate parts (including genetalia, groin, breast or buttocks, or clothing covering any of those areas), or using Force to cause a person to touch his or her own or another person’s intimate parts.
“Sexual Exploitation” means taking sexual advantage of another person without Effective Consent, and includes, without limitation, causing or attempting to cause the Incapacitation of another person in order to gain a sexual advantage over such other person; recording, photographing or transmitting identifiable images of private sexual activity and/or the intimate parts (including genetalia, groin, breasts or buttocks) of another person; allowing third parties to observe private sexual acts; engaging in voyeurism; and/or knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection.
“Sexual Harassment” means unwelcome conduct, based on sex or gender stereotypes, which is sufficiently serious that it unreasonably or substantially interferes with a student’s College employment, academic performance or participation in College programs or activities or creates a living, learning or working environment that a reasonable person would find intimidating, hostile or offensive. Sexual Harassment, if severe, pervasive, or objectively offensive, may include, for example, unwelcome physical contact, sexually explicit comments in person or via phone, letter, note, gift, text message, email or other electronic medium, sexual advances, requests for sexual favors, unwelcome invitations to engage in sexual activity, unwelcome commentary about an individual’s body or sexual activities, threatening to engage in an unwelcome sexual act with another person, engaging in indecent exposure, and stalking or cyber-stalking. Title IX and this Policy prohibit gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature. In evaluating any Complaint of Sexual Harassment, the perceived offensiveness of a particular expression, standing alone, is not sufficient by itself to constitute Sexual Harassment. The conduct in question must be objectively intimidating, hostile or offensive and interfere with a person’s right to equally participate in programs and activities of the College.
“Sexual Intercourse” means penetration (anal, oral or vaginal) by a penis, tongue, finger or an inanimate object.
“Witness” means any individual who can attest first-hand to the specific details of an alleged Sexual Misconduct case.
C. Geographic Jurisdiction
Bowdoin students are responsible for their behavior on and off campus and are expected to comply with the Bowdoin College Academic Honor Code and Social Code, including the Sexual Misconduct Policy, in all circumstances. Therefore, this Policy applies to any allegation of Sexual Misconduct against a Bowdoin student, regardless of where the alleged Sexual Misconduct occurred. Although there is no geographical limitation to invoking this Policy, Sexual Misconduct that is alleged to have occurred at a significant distance from the College may be more difficult to investigate.
D. Procedural Options
The College has established two procedures to address cases of alleged Sexual Misconduct based on the filing of a written Complaint with the Office of the Dean of Student Affairs: Formal and Informal Resolution. Details of these procedures and any limitations on their use are outlined below.
E. Timing of Complaints and Availability of Procedures
Any person may file a Complaint of Sexual Misconduct against a Bowdoin College student under this Policy. So long as the Respondent is matriculated as a Bowdoin College student, there is no time limit to invoking this Policy. Nevertheless, students are encouraged to report alleged Sexual Misconduct immediately in order to maximize the College’s ability to obtain evidence and conduct a thorough, impartial and reliable investigation. Failure to promptly report alleged Sexual Misconduct may result in the loss of relevant evidence and Witness testimony and may impair the College’s ability to enforce this Policy.
Under no circumstances will the College allow an impending graduation to compromise its resolution processes. The conferral of a degree may therefore be postponed or deferred, if necessary, until proper resolution of any Sexual Misconduct charges, provided that a hearing opportunity will be scheduled for the earliest practicable date that can accommodate the parties and their Witnesses.
It is a violation of College policy to retaliate against any person making a Complaint of Sexual Misconduct or against any person cooperating in the investigation of (including testifying as a Witness to) any allegation of Sexual Misconduct. For these purposes, “retaliation” includes intimidation, threats, and other adverse action against any such Complainant or third party. Retaliation should be reported promptly to the Advisor and may result in disciplinary action independent of the sanction or interim measures imposed in response to the underlying allegations of Sexual Misconduct.
G. Other Related Misconduct
In accordance with this Policy, the Student Sexual Misconduct Board is empowered to hear allegations of, and to impose sanctions for, Sexual Misconduct and any alleged violations of the Bowdoin College Academic Honor Code and Social Code directly related to the alleged Sexual Misconduct or any alleged violations of this Policy. Such related misconduct may include, without limitation, violations of the rules of privacy and/or confidentiality as articulated herein, violations of the Dean's or Advisor’s directive(s) and/or protective action(s), and/or violations of the Bowdoin College Academic Honor Code and Social Code that occurred in the course of the alleged Sexual Misconduct.
College students who appear before the Student Sexual Misconduct Board, whether as parties to the proceedings or as Witnesses, are expected to provide truthful testimony in accordance with the College's Academic Honor Code and Social Code, and failure to do so may result in the initiation of a case with the Judicial Board.
H. Criminal Proceedings
Because Sexual Misconduct may constitute both a violation of this Policy and criminal activity, Bowdoin encourages students to report alleged Sexual Misconduct promptly to local law enforcement agencies. Criminal investigations may be useful in the gathering of relevant evidence, particularly forensic evidence. Because the standards for finding a violation of criminal law are different from the standards for finding a violation of this Policy, criminal investigations or reports are not determinative of whether Sexual Misconduct, for purposes of this Policy, has occurred. In other words, conduct may constitute Sexual Misconduct under this Policy even if law enforcement agencies lack sufficient evidence of a crime and therefore decline to prosecute. In such cases, the Complainant may not initially understand the results of the criminal investigation, the nature of criminal procedure, or the grounds for the law enforcement decision not to prosecute. The Complainant in such cases may request that the Advisor identify a member of the Dean’s Office to assist the Complainant in seeking and attending a meeting with the local prosecutor to gain an understanding of the decision to decline a prosecution.
The filing of a Complaint of Sexual Misconduct under this Policy is independent of any criminal investigation or proceeding and (except that the College’s investigation may be delayed temporarily while the criminal investigators are gathering evidence) the College will not wait for the conclusion of any criminal investigation or proceeding to commence its own investigation and take interim measures to protect the Complainant and the Bowdoin community, if necessary, as described in Section II.D., below.
II.THE PROCESS: INITIAL STEPS
A. Intake Meeting with Complainant
Upon receipt of notice of any allegation of Sexual Misconduct, the Advisor will first schedule an individual intake meeting with the Complainant in order to provide to the Complainant a general understanding of this Policy and to identify forms of support or immediate interventions available to the Complainant. The intake meeting may also involve a discussion of any accommodations that may be appropriate concerning the Complainant’s academic, College housing, and/or College employment arrangements.
B. Complainant Wishes to Pursue Formal or Informal Resolution
At the initial intake meeting with the Complainant, the Advisor will seek to determine how the Complainant wishes to proceed, i.e., whether the Complainant wishes to pursue Formal Resolution, Informal Resolution or does not wish to pursue resolution of any kind. If the Complainant wishes to proceed with either Formal or Informal Resolution, the Advisor will determine the name of the Respondent, and the date, location and nature of the alleged Sexual Misconduct, and will schedule an individual intake meeting with the Respondent in order to provide to the Respondent a general understanding of this Policy and to identify forms of support or immediate interventions available to the Respondent.
If the Complainant wishes to proceed with Formal Resolution, the Advisor will promptly prepare and forward a formal Complaint, signed by the Complainant, to the Investigator for investigation, in accordance with Section III.C., below. The formal Complaint will set forth the name of the Respondent, and the date, location and nature of the alleged Sexual Misconduct.
A Complainant may choose to file a formal Complaint of Sexual Misconduct, but to participate in the process solely as a Witness and may decline to provide pre-hearing submissions, to attend the pre-hearing meeting, to attend the hearing for the testimony of the Respondent or other Witnesses, to call Witnesses, to pose questions of the Respondent or other Witnesses, or to make opening or closing statements, as described in Section III.K., below.
If the Complainant wishes to proceed with Informal Resolution, the Advisor will promptly refer the Complainant to the Student Sexual Misconduct Board Chair to initiate Informal Resolution proceedings, in accordance with Section IV, below.
C. Complainant Does Not Wish to Pursue Resolution or Requests Confidentiality
If the Complainant does not wish to pursue Formal or Informal Resolution and/or requests that his or her Complaint remain confidential, Title IX nevertheless requires the College to investigate and take reasonable action in response to the Complainant’s Complaint consistent with the Complainant’s request(s). If the Complainant requests that his or her name or other identifiable information not be disclosed to the Respondent, the Advisor will inform the Complainant that the College's ability to respond may be limited and that Title IX prohibits retaliation. If the Complainant requests that his or her Complaint not be resolved, such request shall be in writing and include a waiver of investigation and resolution. The College will evaluate the Complainant’s request(s) for confidentiality or no action in the context of the College’s commitment to provide a reasonably safe and non-discriminatory environment for all students. In order to make such an evaluation, the Advisor may conduct a preliminary investigation into the alleged Sexual Misconduct and may weigh the Complainant’s request(s) against the following factors: the seriousness of the alleged Sexual Misconduct; the Complainant’s age; whether there have been other complaints of Sexual Misconduct against the same Respondent; and the Respondent’s right to receive information about the allegation if the information is maintained by the College as an “education record” under FERPA. The Advisor will inform the Complainant if the College cannot ensure confidentiality. Even if the College cannot take disciplinary action against the Respondent because the Complainant insists on confidentiality or that the Complaint not be resolved, the Advisor reserves the authority to undertake an appropriate inquiry, issue a “no-contact” order, and take other reasonably necessary measures, including the interim measures described in Section II.D., below.
D. Interim Measures
In all Complaints of alleged Sexual Misconduct, regardless of whether the Complainant wishes to pursue Formal Resolution, Informal Resolution or no resolution of any kind, the College will undertake an appropriate inquiry and take such prompt and effective action as is reasonably practicable under the circumstances to support and protect the Complainant and protect the College community, including taking appropriate interim measures before the final outcome of the investigation and hearing, if any. Accordingly, at or after the Intake Meeting, the Advisor may impose a “no-contact” order, which typically will include a directive that the Respondent refrain from having contact with the Complainant, directly or through proxies, whether in person or via electronic means, pending the investigation and, if applicable, the hearing. The Advisor, as the Title IX Deputy Coordinator for purposes of this Policy, or the Dean of Student Affairs, also may take any further protective action that he or she deems appropriate concerning the interaction of the parties pending the hearing, if any, including, without limitation, ordering interim suspensions, and directing appropriate College officials to alter the students’ academic, College housing and/or College employment arrangements. When taking steps to separate the Complainant and the Respondent, the Advisor or the Dean of Student Affairs will seek to minimize unnecessary or unreasonable burdens on either party; provided, however, that every reasonable effort will be made to allow the Complainant to continue in his or her academic, College housing and/or College employment arrangements. Violations of the Advisor’s or Dean’s directives and/or protective actions will constitute related offenses that may lead to additional disciplinary action.
A Complainant may elect to pursue Formal Resolution, which may involve a hearing before a panel of the Student Sexual Misconduct Board, as more particularly described in this section.
The parties may waive minimum time limits set forth in this Policy; the Student Sexual Misconduct Board Chair may extend maximum time limits in his or her sole discretion.
A. Student Sexual Misconduct Board
The Board is composed of students, faculty, and staff, and the Dean of Student Affairs or his/her designee serves as its Chair. The Committee on Governance and Faculty Affairs appoints faculty. Student members will be appointed from current members of the Judicial Board. An ex-officio Board Advisor will be appointed by the Dean of Student Affairs. The Board Chair and Advisor shall ensure all Board members receive annual training that draws on professional and expert resources.
B. The Hearing Panel
The panel shall include one student and two faculty/staff members, one of whom will serve as the presiding chair. The Dean of Student Affairs will serve as Chair of the Student Sexual Misconduct Board and will either serve as the presiding chair or will appoint the presiding chair of a formal hearing. If the Dean of Student Affairs or his/her designee is unavailable, the President shall select the panel members and designate a Board member to preside over the hearing.
When the Complainant elects to pursue Formal Resolution, the Advisor will prepare and forward the Complaint, signed by the Complainant, to a trained Investigator. The Investigator is a neutral fact-finder, who, during the course of the investigation, typically conducts interviews with the Complainant, the Respondent and each third-party Witness (including Expert Witnesses, where applicable) and where applicable, coordinates with law enforcement agencies to collect and preserve relevant evidence. The completed Investigative Report includes, among other things, summaries of interviews with the Complainant, the Respondent and each third-party Witness; summaries of interviews with Expert Witnesses, where applicable; photographic, electronic and forensic evidence; and a detailed written analysis of the events in question (the “Investigative Report”). A typical investigation will be completed within sixty (60) days. The Investigative Report will be distributed, concurrently, to both of the parties. If a hearing is held, the Board Chair and the Panel will also be provided with a copy of the Investigative Report.
D. Granting/Denying a Hearing
After investigation of a Complaint, if the Investigator determines that there is a substantial basis for a hearing, notice of that determination will be delivered, by the Advisor, to the Complainant, Respondent and Dean of Student Affairs. The Investigator’s determination of a substantial basis for a hearing is based on whether sufficient facts exist to allow the Student Sexual Misconduct Board to find a violation of this Policy. The Investigator may specify which alleged violations of this Policy (i.e., which type or types of Sexual Misconduct) and, if applicable, which other, related alleged misconduct will go forward to a hearing.
Within five (5) working days of receipt of the Investigator’s determination, the Complainant may appeal a determination denying a hearing to the Dean of Student Affairs or his/her designee whose decision shall be final. If a hearing is denied by the Investigator or by the Dean of Student Affairs or his/her designee on appeal, the Complainant may proceed with Informal Resolution.
E. Complainant Changes Election to Informal Resolution
After reviewing the Investigative Report, the Complainant may elect to pursue Informal Resolution instead of Formal Resolution, by making such request to the Advisor or the Board Chair prior to the hearing date.
F. Respondent Elects to Accept Responsibility
At any time prior to the hearing, the Respondent may elect to acknowledge his or her actions and take responsibility for the alleged Sexual Misconduct. In such cases, the Board Chair will propose a resolution to the Complainant and a sanction. If both the Complainant and the Respondent agree to the proposed sanction, the Complaint is resolved without a hearing. At any time during this process, the Board Chair may request a statement from the Complainant and/or the Respondent in order to determine an appropriate sanction. If either the Complainant or the Respondent objects to such proposed sanction, a hearing before the Board will be convened for the exclusive purpose of determining a sanction, which determination is not subject to appeal. For purposes of this sanction hearing, all of the other provisions of this Policy relating to the imposition of a sanction for Sexual Misconduct shall apply.
G. Notice of Charges
If a hearing is granted by the Investigator or by the Dean of Student Affairs or his/her designee on appeal, the Advisor on behalf of the Office of the Dean of Student Affairs will commence the Formal Resolution process by providing written notice to the Respondent (“Notice of Charges”) stating: (1) the nature of the complaint; (2) the aspects of the Sexual Misconduct Policy and/or Bowdoin College Academic Honor Code and Social Code allegedly violated; (3) the name of the Complainant; (4) the date, time, and place of the pre-hearing meeting at which preliminary matters will be discussed as more fully addressed in Section III.K.c., below; and (5) the names of the Board members selected by the Chair of the Student Sexual Misconduct Board to serve as the hearing panel. The Complainant shall be copied on the Notice of Charges, which shall be delivered in accordance with any method outlined in paragraph I below.
H. Challenges to Panel
A party wishing to challenge the participation of any panel member shall notify the Board Chair of the Student Sexual Misconduct Board in writing, stating the reason(s) for the party's objection. Such a challenge must be made in writing and delivered to the Board Chair’s office within five (5) working days of receipt of the Notice of Charges. The Board Chair will determine whether the challenge has merit and reserves discretion to make changes in the panel composition at all times. A party wishing to challenge the participation of the Board Chair of the Student Sexual Misconduct Board shall notify the President in writing, stating the reason(s) for the party’s objection, within five (5) working days of receipt of the Notice of Charges. The President will determine if challenges to the Board Chair have merit and will make the final decision whether or not to remove and replace the Board Chair.
I. Delivery of Notice of Charges
The Notice of Charges will be delivered, at the Advisor’s discretion, by e-mail or in person, and will be considered effective immediately upon delivery. The hearing will be scheduled promptly following delivery of the Notice of Charges. The parties are expected to cooperate in the scheduling of the hearing.
J. Supporters to the Parties
Both the Complainant and the Respondent may each have one Supporter present to support and assist them during the Intake Meeting, Investigation, Informal Resolution or pre-hearing, hearing, and appeal stages of the Formal Resolution process. The Advisor will appoint to each party a Supporter who has completed the training required by the College or students may select and arrange for a Supporter of their choice provided that the Supporter shall be a member of the Bowdoin community, including a student, faculty member, College official or College employee, but shall not be a member of the Dean of Student Affairs or Counseling Service staffs. The Board Chair may disallow a particular Supporter in cases where the Supporter might be a Witness or where the Supporter’s presence, in the Board Chair’s sole determination, would be obstructive to the process. The Supporter is available for emotional and personal support and assistance throughout the process. If a hearing is held, the Supporter will not have an opportunity to make statements to the panel, direct questions to the panel, or direct questions to the Complainant, the Respondent or any other individual participating in the hearing. The Board Chair shall not allow a Supporter’s presence to inhibit the parties’ open testimony or the conduct of the hearing.
K. Hearing Procedures
a. Attendance at Hearing: Should the Complainant or the Respondent fail to appear at the scheduled hearing, the Board Chair may postpone the proceedings or direct that the panel proceed and determine the Complaint on the basis of the Investigative Report and other available information, provided the absent party was duly notified of the scheduled hearing date, as outlined above.
b. Pre-Hearing Submissions: The parties may provide the Board Chair with a list of Witnesses they propose to call, and copies of documents and a description of any other evidence they propose to present at the hearing, on or before a date set by the Chair. In the absence of good cause as determined by the Board Chair in his or her sole discretion, parties may not introduce Witnesses, documents, or other evidence at the hearing that were not provided to the Board Chair by the deadline set by the Board Chair. The parties are also responsible for the attendance of their Witnesses at the hearing. The Board Chair reserves the right to call a Witness not listed by either party. The Board Chair also reserves the right to solicit expert information or call an Expert Witness that might assist the Board in its work. The parties may not call an Expert Witness. The Board Chair will notify both parties prior to the hearing if such Witnesses are called or such expert information is solicited. The prior sexual history of either party is not admissible in the hearing, except testimony submitted by a party concerning his or her own sexual history. Either party may submit evidence of the history of any sexual relationship between the parties. If either party submits such evidence, then the other party has the right to rebut that evidence.
c. Pre-Hearing Meeting and Determination of Witnesses: The Board Chair will schedule individual pre-hearing meetings with the Complainant and the Respondent and their Supporters prior to the hearing date. At the meeting, the Board Chair will review hearing procedures. The Board Chair will also review the list of proposed Witnesses to assist the Complainant and the Respondent in eliminating redundant or irrelevant testimony. At the meetings, the Board Chair will provide the Complainant and the Respondent with a copy of the list of Witnesses, and identification or copies of documents or other evidence submitted by the other party. The College reserves the right, through the Board Chair, (a) to add to or modify the alleged violations specified by the Investigator, at the pre-hearing meeting, and (b) to add Witnesses to the Witness lists at the pre-hearing meeting and/or with reasonable notice prior to the hearing.
d. Pre-Hearing Board Preparation: Once a Board member has been named to a hearing panel, he or she may not publicly or privately discuss the merits of the case with the parties, with anyone acting on the parties’ behalves, or anyone uninvolved in the case. The Board Chair will provide the panelists with a copy of the Notice of Charges, the Investigative Report, of the list of Witnesses submitted by the parties and any other documents or evidence submitted by the parties. The panel will not be bound by any findings or conclusions in the Investigative Report.
e. Legal Counsel: The Complainant and the Respondent may have an attorney present during the Investigator’s interview or at the hearing only when independent criminal proceedings are pending; otherwise, attorneys shall not participate in the College’s disciplinary process. When attorneys are permitted, they are limited to advisory status to their client with no opportunities to make statements for the record, ask questions, or cross-examine any parties, Witnesses and/or other individuals participating in the investigation or in the hearing. Involved parties must notify the Board Chair that an attorney will be present at least five (5) working days prior to the hearing.
Any attorney for a party wishing to communicate with the College must direct communications to the College’s counsel. The hearing panel, Advisor, and Board Chair reserve the right to consult the College’s counsel on questions of law and procedure at any time.
f. Multiple Students: In cases involving multiple students, the Board Chair has sole discretion in determining whether to hold separate or combined hearings, and, if separate, whether to preside over each hearing.i. In cases involving more than one Complainant and a single Respondent, the Board may conduct separate hearings for each Complainant or a combined hearing for all Complainants.
ii. In cases involving a single Complainant and more than one Respondent, the Board may conduct separate hearings for each Respondent or a combined hearing for all Respondents.
iii. In cases involving more than one Complainant and more than one Respondent and involving a common set of facts or evidence, the Board may conduct separate hearings or a combined hearing for all of the parties.
g. Conduct of the Hearing: The hearing will not follow a courtroom model, and the rules of evidence and civil or criminal procedure do not apply. Upon timely request by a party or Witness, the Board Chair may accommodate concerns for the personal safety, well-being, and/or fears of confrontation of the Complainant, the Respondent, or any other Witness during the hearing by providing separate facilities, by using a visual screen, and/or by permitting participation by telephone, videophone, closed circuit television, video conferencing, videotape, audiotape, written statement or other means, where and as determined in the sole discretion of the Board Chair to be appropriate.
The Board Chair has the sole discretion to commence, recess, and reconvene the hearing and may suspend the hearing at any time. The Board Chair will make any procedural decisions during the hearing that are deemed necessary to assure fairness and avoid undue delay. The Board Chair will determine the admissibility, relevance, and materiality of the evidence offered and will determine the order of the Witnesses. The Board Chair may exclude evidence or Witnesses that he/she deems to be cumulative, irrelevant, or disruptive.
Members of the hearing panel will review in advance of the hearing all the written materials provided to them by the Board Chair. The parties will have received or been provided the opportunity to review and copy these materials during earlier stages of the pre-hearing process. The parties will not be expected to repeat undisputed details or non-material circumstances that would merely duplicate information contained in the Investigative Report or other written materials.
Both parties will have the opportunity to present an opening statement at the start of the hearing. Only the Board Chair and the panel may question the individual parties and any Witnesses. However, the Complainant and the Respondent may ask the Board Chair to pose additional questions to Witnesses present at the hearing or inquire further into specific matters by submitting these requests to the Board Chair in writing or orally, at the discretion of the Chair. The Board Chair may disallow or reframe any questions that are redundant, irrelevant or disruptive. After all Witnesses have been questioned, the Complainant and the Respondent may make a closing statement and request a short recess to prepare it. If, prior to the conclusion of the hearing, the panel determines that unresolved issues exist that would be clarified by the presentation of additional evidence, the Board Chair may suspend the hearing and reconvene it in a timely manner to receive such additional information, call rebuttal Witnesses, or call back Witnesses who have already appeared. A recess may not be based on the failure of Witnesses to appear without good cause or on the proposed introduction of documents or other evidence that could have been presented at the pre-hearing meetings.
h. Respondent Testimony: The Respondent shall have the right not to testify during the investigation or hearing; however, the exercise of that right shall not preclude the Investigator from completing the investigation and the panel from proceeding and determining the Complaint on the basis of the Investigative Report and other available information, including any inferences fairly drawn from the Respondent’s failure to testify.
i. Recording: The Board Chair will arrange for the hearing to be recorded and may arrange for the preparation of any transcript of the recording that he or she deems appropriate or which a party requests (upon prompt payment by the requester of the transcription fee). Such recording will be arranged through the Office of the Dean of Student Affairs and will become property of the College thereafter. The panel’s post-hearing deliberation will not be recorded. For more information on the privacy of the hearing process, see Section III.K.o., below.
j. Preponderance of Evidence Standard: All decisions by the panel will be made by majority vote. The panel first determines whether the Respondent is responsible for the charges, and then, if appropriate, the sanction. A finding of responsibility must be supported by a preponderance of evidence. A preponderance of the evidence means that the information shows that it is “more likely than not” that the Respondent violated this Policy.
k. Impact Statement: If the Respondent is found responsible, or accepts responsibility, for Sexual Misconduct, both parties may present the panel with a statement, either verbally or in writing at the sole discretion of the Board Chair, that outlines their thoughts regarding an appropriate sanction (the “Impact Statement”). The panel is not bound by these statements in determining a sanction. Individuals other than the Complainant and the Respondent and their Supporters normally are not permitted to participate at the Impact Statement phase of the hearing; however, the Board Chair reserves the discretion to permit the presence of other persons.
l. Sanction: The panel may impose any sanction that it finds to be fair and proportionate to the violation and that is authorized for violations of the Sexual Misconduct Policy and/or the Bowdoin College Academic Honor Code and Social Code, including but not limited to social probation, suspension, and indefinite or permanent dismissal. In determining an appropriate sanction, the panel may consider any record of past violation(s) of the Sexual Misconduct Policy, the Bowdoin College Academic Honor Code and Social Code and/or any directives or protective actions, as well as the nature and severity of such past violation(s). The panel will also consider, as part of its deliberations, whether the sanction will (a) bring an end to the violation in question, (b) reasonably prevent a recurrence of a similar violation, and (c) remedy the effects of the violation on the Complainant and the Bowdoin community.
m. Decision: Within five (5) working days from the conclusion of the hearing (or such longer time as the Board Chair may for good cause determine), the Board Chair will provide concurrently the Complainant, the Respondent, and the Dean of Student Affairs (if he/she is not the Chair) with a copy of the panel’s Final Outcome Letter. The Final Outcome Letter will set forth, as required by the Clery Act, the name of the Respondent; the violation(s) of this Policy for which the Respondent was found responsible, if any; any essential findings supporting the Panel’s decision on the issue of responsibility; and the sanction imposed, if any. College policy neither encourages nor discourages the further disclosure of the Final Outcome Letter by either the Complainant or the Respondent.
n. Effective Date of Sanction: Sanctions imposed by the Panel are not effective until any timely administrative appeal of the decision is completed. However, if advisable to protect the welfare of the Complainant or the College community, the Panel may include in its Final Outcome Letter that any probation, suspension, or dismissal is effective immediately and shall continue in effect until such time as the Student Appeals and Grievances Committee may determine otherwise. As Chair of the Student Appeals and Grievances Committee, the President may suspend the implementation of the sanction pending exhaustion of appeal, or allow the student to attend classes or other activity on a supervised or monitored basis. The President’s decision may not be appealed.
o. Privacy of the Hearing Process: In order to comply with FERPA and Title IX and to provide an orderly process for the presentation and consideration of relevant information without undue intimidation or pressure, the hearing process is not open to the general public. Accordingly, documents prepared in anticipation of the hearing (including the Investigative Report, the Notice of Charges, and the pre-hearing submissions referenced in Section III.K.b above, documents, testimony or other information introduced at the hearing, and any transcripts of the investigative interviews or hearing itself) may not be disclosed outside of the hearing procedures, except as may be required or authorized by law.
p. Appeals: Either the Complainant or the Respondent may appeal the Panel’s decision by notifying the President of the College, who serves as the Chair of the Student Appeals and Grievances Committee, in writing with any supporting materials within five (5) working days of the Panel’s decision. The Office of the Dean of Student Affairs may provide a written statement to the Student Appeals and Grievances Committee in response to issues raised in the appeal. A case is limited to one appeal.
The Student Appeals and Grievances Committee will limit its review of Student Sexual Misconduct Board decisions to a review of the record of the original hearing, supporting documents, and any statement by the Complainant, the Respondent, and/or the Office of the Dean of Student Affairs regarding any issue raised in the appeal. In order for an appeal to be granted, the appeal must demonstrate one or both of the following:
i. procedural error(s) that may have prejudiced the Board.
ii. evidence unavailable at the original proceeding, which would likely have affected the decision.
Neither the Complainant nor the Respondent may appeal solely on the basis of dissatisfaction with the sanction.
The Student Appeals and Grievances Committee will not be bound by the Student Sexual Misconduct Board finding of responsibility or the sanction. The Student Appeals and Grievances Committee may affirm, reverse, or modify the decision and/or may eliminate, reduce or increase the sanction. If the Student Appeals and Grievances Committee grants the appeal, it may direct the Chair of the Student Sexual Misconduct Board to take appropriate action in light of its decision or direct the Student Sexual Misconduct Board to reconsider the case with appropriate corrections, either of which could eliminate, reduce or increase the sanction.
A Complainant may elect to pursue Informal Resolution, as more particularly described in this section. Informal Resolution is a resolution process that does not involve a hearing and is not mediation. The Respondent is expected to attend the Informal Resolution proceeding, but is not required to participate in the proceeding.
A. Purpose of Informal Resolution
Informal Resolution provides an opportunity for the Complainant to confront the Respondent, in the presence of and facilitated by, a presiding officer, as described in Section IV.B. below, and to communicate his or her feelings and perceptions regarding the alleged Sexual Misconduct, the impact of the incident, and his or her wishes and expectations regarding protection in the future. The Respondent will have an opportunity to respond.
B. Supporters; Presiding Officer
The Complainant and the Respondent each may bring a Supporter to the Informal Resolution. Supporters are assigned or selected and subject to the same restrictions set forth for Supporters in the Formal Resolution process, outlined in Section III.J., above. The Board Chair, or a designee of the Board Chair, will preside over the Informal Resolution, and may elect to be assisted by another member of the Board or staff of the Dean’s Office.
C. Conduct of the Informal Resolution
Upon timely request by a party, the Board Chair may accommodate concerns for the personal safety, well-being, and/or fears of confrontation of the Complainant or the Respondent by providing separate facilities, by using a visual screen, and /or by permitting participation by telephone, videophone, closed circuit television, video conferencing, videoptape, audiotape, written statements or other means, where and as determined in the sole discretion of the Board Chair to be appropriate.
The Complainant will be given an opportunity to make statements. The Respondent will then be given the opportunity to respond. The Board Chair will then, if applicable, ask clarifying questions. The Complainant and the Respondent may ask the Board Chair to pose additional questions by submitting these requests to the Board Chair in writing or orally, at the discretion of the Board Chair.
D. Outcomes of Informal Resolution
At the conclusion of Informal Resolution, the Board Chair may propose a sanction agreed upon by the parties or may impose a protective order based on information derived from the Informal Resolution proceedings, taken together with any other relevant information known to the College at the time of the Informal Resolution. Protective actions imposed by the Board Chair may include accommodations to living, academic or employment situations; limitations of contact between the parties; and required counseling for the Respondent.
E. Privacy of Informal Resolution
In order to promote honest and direct communication, information disclosed during the Informal Resolution must remain private while the Informal Resolution is pending, except where disclosure may be required by law or authorized in connection with duties on behalf of the College. At the conclusion of Informal Resolution, any documents prepared in anticipation for or disclosed during the Informal Resolution may not be disclosed outside the proceeding, except as may be required or authorized by law.
F. Election of Formal Resolution
Except in cases where a Formal Resolution hearing has already been denied by the Investigator or by the Dean of Student Affairs or his/her designee on appeal, as set forth in Section III.D., above, the College or the Complainant may, at any time prior to the conclusion of the Informal Resolution, elect to end such proceedings and initiate Formal Resolution instead. In such cases, statements or disclosures made by the parties in the course of the Informal Resolution may be considered in the subsequent Formal Resolution. Formal Resolution may not be initiated, however, after the conclusion of an Informal Resolution.
V.POLICY INTERPRETATION AND AMENDMENTS
Any question of interpretation or application of the Student Sexual Misconduct Policy and Procedures shall be referred to the Dean of Student Affairs or his/her designee for final determination.
The Sexual Misconduct Policy may be amended, in writing, by the President or his/her designee at any time.
Date of last revision: August, 2013