2008-2009 Occidental College Sexual Assault Policy

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Occidental College used to have a zero tolerance policy. After paying hundreds of thousands of dollars to NCHERM and law firm Pepper Hamilton, the College now has a rape-tolerant policy that has no clear definition of sexual consent.

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2008-2009 Occidental College Sexual Assault Policy

  1. 1. ______________________________________________________________ Occidental College Code of Student Conduct 2008-2009 ____________________________________________________________________ - 1 -
  2. 2. CODE OF STUDENT CONDUCT 2008-2009 Table of Contents MISSION......................................................................................................................................................3 DEFINITIONS..............................................................................................................................................3 AUTHORITY ...............................................................................................................................................4 INTERPRETATION.....................................................................................................................................4 PROCEDURAL PROTECTIONS................................................................................................................4 STUDENT PARTICIPATION .....................................................................................................................5 INHERENT AUTHORITY ..........................................................................................................................5 VIOLATIONS OF LAW AND COLLEGE REGULATIONS ....................................................................5 INTERIM SUSPENSION.............................................................................................................................5 STANDARDS OF CLASSROOM BEHAVIOR .........................................................................................6 POTENTIAL VIOLATIONS OF THE CODE OF STUDENT CONDUCT ...............................................6 SANCTIONS................................................................................................................................................7 PROCEDURAL STANDARDS...................................................................................................................9 CASE REFERRALS.....................................................................................................................................9 CASE REVIEW AND ASSIGNMENT OF VENUE...................................................................................9 JUDICIAL COUNCIL..................................................................................................................................9 JUDICIAL COUNCIL PROCEDURES.....................................................................................................10 CONDUCT CONFERENCES....................................................................................................................11 MEDIATION..............................................................................................................................................12 ADVISORS ................................................................................................................................................12 STUDENT GROUPS AND ORGANIZATIONS ......................................................................................12 APPEALS ...................................................................................................................................................13 TRANSCRIPT ACTIONS..........................................................................................................................14 CONDUCT FILES AND RECORDS.........................................................................................................14 - 2 -
  3. 3. MISSION Living in a community requires members to abide by a spirit of mutual respect. The Code of Student Conduct (“Code”) outlines the minimum behavioral expectations of Occidental College as it strives to fulfill its commitment to excellence, equity, community, and service. The Code is intended to protect individual rights, to support community values, and to guide students toward behavior that is compatible with membership in a learning community. All students are expected to hold each other accountable to the principles outlined in the Code. All behavior has consequences. The Office of Community Rights and Responsibilities enforces the Code. Reflecting the College’s commitment to learning, students charged with violating the Code are encouraged to grow in their respect for others, to understand how their behavior affects the community, and to alter their behavior as necessary. DEFINITIONS 1. When used in the Code: a. The term “disciplinary action” refers to the process of investigation and determination of a sanction as the result of a violation of the code. b. The term “group” means persons who are associated with each other but whom have not complied with College requirements for registration or organization. c. The terms “institution” and “College” mean Occidental College and all of its undergraduate or graduate departments and programs. d. The term “organization” means a number of persons who have complied with College requirements for registration as managed by the Office of Student Life. e. The term “reckless” means conduct that one should reasonably be expected to know would create a substantial risk of harm to persons or property or that would otherwise be likely to result in interference with normal College business or College sponsored activities. f. The term “student” means any person for whom the College maintains current educational records, as defined by the Family Educational Rights and Privacy Act of 1974 and subsequent revisions, as well as related regulations. g. The term “College premises” means buildings or grounds owned, leased, operated, controlled, or supervised by the College. h. The term “weapon” means firearms, explosives, metal knuckles, knives with blades more than 3 inches long, firearms including guns, air/pellet guns, paint guns, gun replicas (including facsimile water pistols) or any other instrument identified as a weapon in published College policies. i. The term “College-sponsored activity” means any activity on- or off-College premises that is specifically initiated or supervised by the College. j. The terms “will” or “shall” are used in the imperative sense. k. The term “written notice” covers both paper copy and electronic mail. Official notifications in this Code may be made by e-mail to the e-mail address provided to students by the College. - 3 -
  4. 4. l. The term “alleged” means that reports or accusations of violations of college policy presume that an individual is not responsible for the violation until investigation, statements, or other facts demonstrate actual violation. AUTHORITY 2. The authority for student discipline is ultimately vested in the Vice President of Student Affairs/Dean of Students (“Dean of Students”), who delegates this authority to the Office of Community Rights and Responsibilities. In some instances this authority may be delegated to students, College administrators, faculty members, committees, and organizations, according to this Code or in other policies or regulations as approved by the Dean of Students. A separate disciplinary process is established to adjudicate all cases of academic misconduct, e.g., plagiarism or cheating. Refer to ACADEMIC ETHICS in the Student Handbook. INTERPRETATION 3. The College publishes this Code to provide students with general notice of prohibited conduct. Since this Code is not written with the specificity of a criminal statute, it is open to interpretation and application by the students, College administrators, faculty members, committees, and organizations acting in an official capacity. PROCEDURAL PROTECTIONS 4. Students accused of disciplinary violations are entitled to the following procedural protections: To be informed of the specific charges against them and the identity of the complainant, except in rare instances in which identification might pose a risk of danger to the health or safety of the complainant. In such instances, the College will act as complainant. In certain circumstances, where the College acts as complainant (see Part 19), the student must still be informed of the specific charges against him/her; To be informed of the applicable venues to resolve the case, including mediation, a disciplinary conference with an administrator, or a Judicial Council hearing; To be allowed reasonable time to prepare a response; To hear and respond to all evidence upon which a charge is based; To present relevant witnesses; To be assured of confidentiality, in accordance with the terms of the Family Educational Rights and Privacy Act as modified by the most recent revisions; - 4 -
  5. 5. To be allowed to request that any person conducting a disciplinary conference, or serving as a Judicial Council member or a Hearing Officer, be disqualified on the grounds of personal bias; To be informed of these rights prior to any conference or hearing; To be considered “not responsible” for the violation or alleged charges until proven “responsible” by clear and convincing evidence; To have an advisor if he/she chooses, as provided in Part 29 of this Code. STUDENT PARTICIPATION 5. Students participate in Judicial Councils or other committees in order to contribute their skills and insights into the resolution of disciplinary cases. Final authority in disciplinary matters, however, is vested in the Dean of Students. INHERENT AUTHORITY 6. The conduct of students, groups, and organizations is subject to this Code whether the behavior occurs on-campus or in the community. The College reserves the right to impose disciplinary action on students’ for conduct off-campus in order to protect the safety and well- being of students and/or the College’s relationship with the community. VIOLATIONS OF LAW AND COLLEGE REGULATIONS 7. Students may be accountable both to civil authorities and to the College for acts that constitute violations of law and of this Code. Disciplinary action at the College will normally proceed concurrent with civil or criminal proceedings despite the dismissal or reduction of the charges by civil authorities. The College may, at its discretion, postpone disciplinary proceedings pending the outcome of a civil or criminal action. INTERIM SUSPENSION 8. The Dean of Students or designee may suspend a student from the College for an interim period pending disciplinary or criminal proceedings or medical evaluation. An interim suspension shall become effective immediately, without prior notice, if there is information that the student’s continued presence on campus poses a substantial and immediate threat to her/himself, others, and/or the performance of normal College functions. 9. A student on interim suspension shall be granted a hearing in a timely fashion. - 5 -
  6. 6. STANDARDS OF CLASSROOM BEHAVIOR 10. Primary responsibility for managing the classroom environment rests with the faculty. Students who engage in any inappropriate, prohibited or unlawful acts that result in disruption of a class may be directed by the faculty member to leave the class for the remainder of the class period, and may be referred to the Office of Community Rights and Responsibilities. Longer suspensions from a class or dismissal on disciplinary grounds must be preceded by a Judicial Council hearing or disciplinary conference, as set forth in Parts 26 and 27 of this Code. POTENTIAL VIOLATIONS OF THE CODE OF STUDENT CONDUCT 11. Occidental College expects that its students will strive for high standards of honor and good citizenship and that they will conduct themselves, both on- and off-campus, in a manner that reflects credit on themselves and the College. The following, while not exhaustive, represents misconduct subject to judicial action: a. Intentionally or recklessly endangering, threatening, or causing physical harm to any person or oneself, or intentionally or recklessly causing reasonable apprehension of such harm. b. Sexual Assault. Sexual assault charges involving students will be handled in accordance with the College’s Sexual Assault Policy. c. Sexual Harassment. Sexual harassment will be handled in accordance with the College’s Policy on Sexual Harassment. d. Harassment. In this Code ‘harassment’: (a) is the use, display, or other demonstration of words, gestures, imagery, or physical materials, or the engagement in any form of bodily conduct, on the basis of race, color, national or ethnic origin, alienage, sex, religion, age, sexual orientation, or physical or mental disability, that has the effect of creating a hostile and intimidating environment sufficiently severe or pervasive to substantially impair a reasonable person’s participation in College programs or activities, or use of College facilities; (b) must target a specific person or persons; and (c) must be addressed directly to that person or persons. e. Hate crime and/or bias incidents will be handled in accordance with the Policy on Hate Crime or Bias Incidents. f. Possession of a weapon (see item 1.h for definition of “weapon”). g. Reckless, disorderly, or lewd conduct on College property or at official College functions. h. Participation in any act of hazing, as defined by Article 5, Section 32050 of the California Education Code and the College’s policy on Hazing. - 6 -
  7. 7. i. Intentionally or recklessly interfering with normal College or College-sponsored activities, including but not limited to studying, teaching, research, administration, or fire, police, or emergency services. j. Intentionally initiating or causing to be initiated any false report, warning or threat of fire, explosion or other emergency. k. Unauthorized entry or use of College facilities. l. Unauthorized or inappropriate use of College computers, e-mail, or network; other violations as specified by the Computer Use Policy. m. Knowingly violating the terms of any disciplinary sanction imposed in accordance with the Code. n. Intentionally furnishing false information to the College or a College Official. o. Violation of the College Alcohol and Drug Policy. p. Forgery, unauthorized alteration, or unauthorized use of any College document or instrument of identification. q. Intentionally and substantially interfering with the freedom of expression of others. r. Theft of property or services; knowing possession of stolen property. s. Intentionally or recklessly destroying or damaging College property or the property of others. t. Willfully failing to comply with the reasonable directions of College officials, including Campus Safety officers and residence hall staff, acting in performance of their duties. This may also include withholding information regarding violations of this Code. u. Intentional violations of other published College regulations or policies, such as the Residence Living License Agreement, use of amplifying equipment, campus demonstrations, parking rules and regulations, and regulations governing student organizations. v. Actions by a student’s guest that violate College policies. SANCTIONS 12. Sanctions that may be imposed in accordance with this Code include: a. Warning: Notice, orally or in writing, that continuation or repetition of prohibited conduct may be cause for additional disciplinary action. - 7 -
  8. 8. b. Censure: A written reprimand for violation of specified regulations, including a warning that continuation or repetition of prohibited conduct may be cause for additional disciplinary action. c. Disciplinary Probation: Exclusion from participation in privileged or co-curricular activities for a specified period of time (privileged activities include but are not limited to elected or appointed ASOC offices, varsity athletics, and study abroad). Additional restrictions or conditions may also be imposed. Violations of the terms of disciplinary probation or any other violation of this Code during the period of probation will normally result in suspension or expulsion from the College. d. Restitution: Repayment to the College or to an affected party for damages resulting from a violation of this Code. To enforce this sanction, the College reserves the right to withhold its transcripts and degrees or to deny a student participation in graduation ceremonies and events. e. Removal from Campus Housing: Students may be removed from College housing and/or barred from applying for campus housing due to disciplinary violations that occur in the residence halls. f. Suspension: Exclusion from College premises and other privileges or activities for a specified period of time, as set forth in the suspension notice. Notice of this action will remain in the student’s disciplinary file and may be reflected on the student’s transcript. g. Expulsion: Permanent termination of student status and exclusion from College premises, privileges, and activities. This action will be permanently recorded on the student’s academic transcript. h. Other sanctions: May be imposed instead of or in addition to those specified in sections (a) through (g) of this section. For example, a student may be offered the option to voluntary withdrawal rather than be suspended. Service, education or research projects may also be assigned. 13. Significant mitigating or aggravating factors shall be considered when sanctions are imposed, including the present demeanor and past disciplinary record of the student as well as the nature of the offense and the severity of any damage, injury or harm resulting from it. 14. A student’s intent to commit any act(s) prohibited by this Code may be considered the same as if the violation(s) were actually committed. 15. Documentation of sanctions shall remain in a student’s disciplinary file for the duration of their time at the College. See CONDUCT FILES AND RECORDS in this Code for more information about disciplinary files. - 8 -
  9. 9. PROCEDURAL STANDARDS 16. Students alleged to have violated this Code will be entitled to the option of (a) a hearing before the Judicial Council, (b) a disciplinary conference with a hearing officer, or (c) mediation among the parties facilitated by a mediator appointed by the Office of Community Rights and Responsibilities. 17. The purpose of campus disciplinary proceedings is to provide a fair evaluation of a student’s alleged responsibility of violating College regulations. Formal rules of evidence shall not be applied, nor shall deviations from the prescribed procedures necessarily invalidate a decision, unless significant prejudice to a respondent or the College may result. CASE REFERRALS 18. Any person may refer a student, group or organization suspected of violating this Code to the Office of Community Rights and Responsibilities. 19. An individual(s) who refers a case typically serves as the complainant and presents relevant information in a hearing or conference. The College itself, represented by a member of the faculty or staff, may also act as complainant. The complainant may request the assistance of a member of the College community, as set forth in Part 30 of this Code. CASE REVIEW AND ASSIGNMENT OF VENUE 20. The Office of Community Rights and Responsibilities will conduct a preliminary review to determine whether the alleged misconduct might result in expulsion or suspension from the College. Students subject to suspension or expulsion shall receive a hearing before the Judicial Council. Students alleged to have committed lesser violations of this Code will be provided the option of a hearing before the Judicial Council or a disciplinary conference with a hearing officer. 21. A student who elects to participate in a disciplinary conference must affirm in writing that he/she is aware a hearing is waived and that the full range of sanctions may be imposed, including suspension or expulsion. 22. The Office of Community Rights and Responsibilities may defer proceedings for alleged minor violations of this Code for a period not to exceed ninety (90) days. JUDICIAL COUNCIL 23. The Judicial Council may hear cases referred under this Code. The Council shall be composed of one (1) faculty member, one (1) administrator, and two (2) students who are members of the Honor Board. The Office of Community Rights and Responsibilities shall provide training and administrative support to the Council. - 9 -
  10. 10. 24. Both the findings and the sanctions determined by the Judicial Council shall be regarded as recommendations to the Dean of Students. 25. Members of the Judicial Council who are charged with any violation of this Code or with a criminal offense may be suspended from their positions while the charges against them are pending. Members found responsible for any such violation or offense may be disqualified from any further participation on the Council. The Office of Community Rights and Responsibilities may establish additional grounds and procedures for removal. JUDICIAL COUNCIL PROCEDURES 26. The following procedural guidelines shall be applicable in hearings conducted by the Judicial Council: a. The Office of Community Rights and Responsibilities will appoint a Hearing Officer. The Hearing Officer shall conduct the hearing. He or she may participate in Council deliberations and discussions but shall not vote. b. The Office of Community Rights and Responsibilities shall give respondents notice of the hearing date and the specific charges brought against them at least five business days in advance. Respondents shall be accorded reasonable access to the case file, which will be retained by the Office of Community Rights and Responsibilities. c. The Hearing Officer may require the presence of witnesses, after consultation with the Office of Community Rights and Responsibilities. Witnesses shall be notified by e-mail or by letter, sent by certified mail. Students and employees are expected to comply with the request to appear, unless their presence would result in significant and unavoidable personal hardship or substantial interference with normal College activities, as determined by the Office of Community Rights and Responsibilities. d. Respondents who fail to appear after proper notice will have their case reviewed in their absence. The Council will make its decision based on the information in its possession. e. Hearings will be closed to the public, except for no more than two members of the respondent’s family. An open hearing may be held, at the discretion of the Hearing Officer, if requested by the respondent. f. The Hearing Officer shall exercise control over the proceedings to avoid needless consumption of time and to achieve orderly completion of the hearing. The Hearing Officer may exclude any person, including the accused student, who disrupts a hearing. g. Hearings shall be tape recorded and/or transcribed. h. Any party may challenge a Council member or Hearing Officer on the grounds of personal bias in advance of the hearing. The Office of Community Rights and Responsibilities may - 10 -
  11. 11. disqualify the Hearing Officer. Council members may be disqualified by the Hearing Officer or upon majority vote of the voting members, conducted by secret ballot. i. Witnesses shall be asked to affirm that their statements are truthful and may be subject to charges of violating this Code by intentionally providing false information to the College. j. Prospective witnesses other than the complainant and the respondent may be excluded from the hearing during the testimony of other witnesses. All parties, the witnesses, and the public shall be excluded during Council deliberations, which shall not be recorded or transcribed. k. The charges against the respondent must be established by clear and convincing evidence. l. Formal rules of evidence shall not be applicable in disciplinary proceedings conducted pursuant to this Code. Excluding confidential or privileged information, the Council members shall otherwise weigh all facts of the case against what reasonable persons would consider to be typical conduct in their daily affairs. Unduly repetitious or irrelevant information may be excluded. m. Complainants and respondents shall be accorded an opportunity to ask relevant questions of those witnesses who testify at the hearing. n. Affidavits shall only be admitted into evidence if signed by the affiant and witnessed by the Office of Community Rights and Responsibilities. o. Council members may take judicial notice of matters that would be within the general experience of college students, faculty members, and administrators. p. A determination of responsibility for the violation shall be followed by a supplemental proceeding, in which either party may submit relevant evidence or make relevant statements concerning the appropriate sanction to be imposed. The past disciplinary record of the accused student will only be supplied to the Council during the supplementary proceeding. q. Any determination of responsibility will be supported by written findings that will be placed in the case file and made available to the student respondent before a final recommendation is rendered to the Office of Community Rights and Responsibilities. CONDUCT CONFERENCES 27. Students accused of non-academic offenses that may result in penalties less than expulsion or suspension are subject to a conduct conference with a hearing officer. The following procedural protections are provided to respondents in conduct conferences. Written notice of the specific charges at least two business days prior to the scheduled conference unless waived by the student. - 11 -
  12. 12. Reasonable access to the case file prior to or during the conference. The case file consists of materials that would be considered “educational records,” pursuant to the Family Educational Rights and Privacy Act of 1974; personal notes of College staff members or complainants are not included. An opportunity to respond to the information gathered and to have present appropriate and relevant witnesses. A right to be accompanied by an advisor, as provided in Part 29 of this Code. Respondents who fail to appear for a conduct conference after proper notice and reasonable follow-up will have the case reviewed in their absence. The administrator in charge of the conduct conference will assign a sanction based on the information available. MEDIATION 28. Mediation is encouraged as an alternative means to resolve disciplinary cases. The Dean of Students Office working directly with the parties involved in a non-academic misconduct case may postpone processing a complaint, according to the judicial procedures outlined in this Code, until the parties make a reasonable attempt to achieve a mediated settlement. To be binding, the Office of Community Rights and Responsibilities must approve any mediated settlement. If mediation fails, the complainant may exercise his/her option for a Judicial Council hearing or disciplinary conference. ADVISORS 29. Any student, faculty member, administrator, or staff member at Occidental College who is not an attorney may advise complainants and respondents. Advisors may not address hearing bodies, speak in disciplinary conferences, or question witnesses. 30. The role of a College community member present at disciplinary proceedings will be limited to consultation. STUDENT GROUPS AND ORGANIZATIONS 31. Student groups and organizations may be charged with violations of the Code. 32. A student group or organization and its officers may be held collectively and individually responsible when violations of this Code by those associated with the group or organization have received the consent or encouragement of the group or organization or of the group’s or organization’s leaders or officers. 33. Sanctions for group or organization misconduct may include revocation or denial of registration or recognition as well as other appropriate sanctions. - 12 -
  13. 13. 34. Student associations, including fraternities and sororities and student government, may appoint panels or boards to mediate disputes and enforce association bylaws. Decisions or recommendations by such panels or boards do not constitute official action by the College. APPEALS Appeal of Suspension or Expulsion 35. Any disciplinary determination resulting in suspension or expulsion from the College may be appealed to the Dean of Students Office. The appeal must be in writing, addressed to the Dean of Students Office, and sent by e-mail or by certified mail, return receipt requested. The Dean of Students Office must receive the appeal within ten (10) business days after the notice of suspension or expulsion was delivered to the student or student group/organization’s officers to the address provided by the Office of the Registrar or the College’s online directory. Appeals shall be based on the (a) Hearing Officer’s report, (b) the student’s written comments, and (c) any written memoranda prepared by College officials. All written materials considered for the appeal shall be subject to inspection, in accordance with the Family Educational Rights and Privacy Act. Appeals (other than Suspension or Expulsion) 36. All other disciplinary determinations may be appealed in writing in accordance with the following procedures: The appeal must be in writing, sent to the Office of Community Rights and Responsibilities within seven (10) business days of receiving notice of the sanction(s). Appeals will be considered based only on the following grounds: • The student’s rights were violated during the process; • There is new material evidence that could not have been discovered at the time of the disciplinary conference or hearing; • The sanctions imposed were grossly disproportionate to the violation(s). 37. The following are possible outcomes when appeals are considered: Sanctions may be reduced or increased if found to be substantially disproportionate to the offense. However, if the sanctions are found to be appropriate, the original sanction may be upheld. Cases may be remanded for rehearing only under the following conditions: • If specified procedural errors or errors in interpretation of College regulations were so substantial as to effectively deny the student a fair hearing or conference; or, - 13 -
  14. 14. • If new and significant evidence became available that could not have been discovered by a properly diligent student before or during the original hearing or conference. Cases may be dismissed if the finding is unsupported by the evidence. 38. The imposition of sanctions of suspension or expulsion will be deferred during the appeal process, unless, at the discretion of the Office of Community Rights and Responsibilities, the continued presence of the student on the campus poses a substantial threat to him/herself, to others, or to the stability and continuance of normal College functions. TRANSCRIPT ACTIONS 39. The Dean of Students Office and/or the Hearing Officer may direct the Registrar to hold a student’s College records while disciplinary proceedings are pending or as part of a sanction involving restitution for damages to the College or a complainant. 40. Permanent notation of disciplinary action will be made on the transcript whenever a student is expelled. CONDUCT FILES AND RECORDS 41. Case referrals and incident reports naming a student alleged to be in violation of this Code shall be placed in his/her disciplinary file. These documents shall remain in a student’s disciplinary file for the duration of their time at the College, whether the action taken for that incident is current or not. 42. A student’s conduct file may be classified as: Active. A student’s disciplinary file is active if there are any pending actions in the file or the student is currently on probation. Inactive. A student’s disciplinary file is inactive if there are no pending actions in the file or the term of probation has expired. Inactive disciplinary files will not be kept with active files. A student’s active disciplinary file may be designated inactive by the Office of Community Rights and Responsibilities, for good cause, upon written petition of the student. Factors to be considered in review of a petition shall include: (a) the present demeanor of the student, (b) the conduct of the student subsequent to the violation(s), and (c) the nature of the violation(s) and the severity of any damage, injury, or harm resulting from it. Destroyed. A student’s disciplinary file will be destroyed after graduation if there are no pending actions in the file. If pending actions exist at the time of a student’s graduation, the file will be destroyed only after the file becomes inactive. - 14 -

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