Sex Discrimination and Other Forms of Sexual Misconduct Policy (Title IX)

Policy

Hesston College is committed to providing a learning, working and living environment that promotes personal integrity, civility and mutual respect in an environment free of discrimination on the basis of sex. Sex discrimination violates an individual’s fundamental rights and personal dignity. Hesston College considers sex discrimination in all its forms—referred to in this policy as “sexual misconduct”—to be a serious offense.

Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in educational programs and activities that receive federal financial assistance. To ensure compliance with Title IX and other federal and state civil rights laws, Hesston College has developed policies and procedures (specified below) that prohibit sexual misconduct in all of its forms. This policy applies to all persons who participate in the college’s educational programs and activities, including students, administrators, faculty, staff, and those who come onto campus, including visitors, alumni, vendors, guests, and prospective students. As such, the term utilized throughout this policy to refer to those covered is “individual.”

In situations where this policy is violated, Hesston College strives to stop the behavior, appropriately remedy what occurred, and work to prevent future occurrences. A reporting and investigation process is in place to provide appropriate action for policy violations.

Sexual Misconduct

Sexual misconduct is an omnibus term that captures all forms of sex discrimination prohibited by this policy. By its very nature, sexual misconduct refers to behavior or conduct that the target of the conduct did not want or did not consent to. Sexual misconduct can take many forms as defined below. (Click on terms below to see definitions. See additional definitions)

Domestic Violence

The term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.


Dating Violence

The term “dating violence” means violence committed by a person

  1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
  2. Where the existence of such a relationship shall be determined based on a consideration of the following factors:
    • The length of the relationship.
    • The type of relationship.
    • The frequency of interaction between the persons involved in the relationship.

Retaliation

No one may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing.


Sex Discrimination

Sex discrimination is material, adverse treatment on the basis of sex with respect to access to or the benefits of the college’s educational programs and activities. For purposes of this policy, sex discrimination includes material, adverse treatment on the basis of gender identity or gender stereotype.


Sexual Assault

Sexual assault, defined as: Sex Offenses, Forcible. “Sexual Assault” includes the sex offenses of Rape, Sodomy, Sexual Assault with an Object, Fondling, Incest, and Statutory Rape.

    1. “Rape” is the carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. There is “carnal knowledge” if there is the slightest penetration of the vagina or penis by the sex organ of the other person. Attempted Rape is included.
    2. “Sodomy” is oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
    3. “Sexual Assault with an Object” is using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. An “object” or “instrument” is anything used by the offender other than the offender’s genitalia.
    4. “Fondling” is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
    5. “Incest” is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by Kansas law.
    6. “Statutory Rape” is sexual intercourse with a person who is under the statutory age of consent as defined by Kansas law.

Sexual Harassment

Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:

  1. An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
  3. “Sexual assault” as defined herein.

Stalking

Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

  • Fear for their safety or the safety of others; or
  • Suffer substantial emotional distress.

A course of conduct means two or more acts over a period of time.


Additional definitions

Consent

Consent is all of the following three things: clear, knowing, and voluntary. Consent is words or actions that give permission for specific sexual activity. In certain cases the college must determine whether consent was present. Here is some additional guidance as it relates to consent:

  • Consent is active, not passive.
  • Silence, in and of itself, cannot be interpreted as consent.
  • Consent can be given by words or actions, as long as those words or actions would lead a reasonable person to understand the other party is willing to engage in the specific sexual conduct at issue
    • Consent to one form of sexual activity does not automatically imply consent to any other form of sexual activity.
    • Previous relationships or prior consent do not imply consent to future sexual acts.
    • Consent can be withdrawn once given, as long as that withdrawal is clearly communicated. Once consent is withdrawn, sexual activity must stop promptly.
    • In order to give consent, one must be of legal age.
    • Consent cannot be given by someone who is incapacitated.
    • Consent cannot be obtained by force or threats of force.

Force

Force occurs when physical violence, a threat, intimidation, or coercion are used to gain sexual activity.

  • Physical violence is the intentional use of force upon another, use of physical restraint, or the presence of a weapon to gain sexual access. This could include (but is not limited to) being hit, held down, pushed, restrained, or otherwise acted upon violently.
  • Threats cause someone to do something they would not have done absent the threat, and the statement is clear and explicit. One example of this would be stating “if you do not have sex with me, I will hurt you.”
  • Intimidation is an implied threat, where someone uses his or her power or authority to influence someone else. For example, the statement “if you sleep with me you will receive an A on the next exam,” is not a threat, but could be seen as intimidation.
  • Coercion occurs when pressure, duress, and compulsion are used to gain sexual activity. Coercion can occur when someone makes it clear that pressure is unwelcome, and yet the pressure continues.

Incapacitation

Incapacitation is a state where decision-making faculties are dysfunctional. In other words, the reporting person does not understand the Who, What, When, Where, Why, and How with respect to sexual activity. Sexual activity with someone you know to be or should know to be incapacitated is a violation of this policy.

  • Incapacitation can occur mentally or physically, from developmental disability, by alcohol or other drug use, or blackout.
  • What the responding party should have known is objectively based on what a reasonable person in the place of the responding party – sober and exercising good judgment – would have known about the condition of the reporting party.
  • Incapacitation is a state where someone cannot make rational, reasonable decisions because they lack the capacity to give consent.
  • Incapacitation also covers people who are incapacitated due to mental disability, sleep, unconsciousness, involuntary physical restraint, or from the taking of rape drugs.

A person who is incapacitated cannot give valid consent.


Title IX Coordinator

The Title IX Coordinator for Hesston College oversees this policy as well as the reporting, investigation, and response process to any report. This position is currently housed within the Business Office. The current Title IX Coordinator is Monica Miller, 2nd Floor Alliman Administration Center, 301 S Main St, Hesston, KS 67062; monica.miller@hesston.edu; and 620-327-8265.

Reporting

Hesston College prohibits sexual misconduct and will take steps calculated to stop the behavior, appropriately remedy what occurred, and work to prevent future occurrences. We want individuals who believe they have experienced sexual misconduct to tell someone, and encourage reporting of what occurred to a faculty or staff member. Reporting can be completed anonymously through our online reporting system. The majority of our faculty and staff members are considered responsible employees and are obligated to report a concern of sexual misconduct to the Title IX Coordinator. However, the college has actual knowledge of a report only when it is reported to the Title IX Coordinator or the Vice President of Student Life. These two individuals are trained to communicate to you your rights, our obligations as an institution, discuss the resources available to you, or to point you to someone who can provide additional assistance you may need. Students who work in the Student Life department (i.e. Resident Assistants; Assistant Resident Directors; etc.) are considered responsible employees; all other student workers do not have a duty to report.

Once a report of sexual harassment is made, a complainant (i.e. the alleged victim of the sexual harassment) may file a formal complaint requesting an investigation and hearing under this policy. A complainant may also elect not to file a formal complaint, in which case the Title IX Coordinator may elect to file a formal complaint if doing so is not clearly unreasonable.

Whether a complainant makes a formal complaint or not, the complainant may receive supportive measures during the reporting phase of this process, or ongoing as needed. Supportive measures are also available to a respondent.

When receiving a report, Hesston College will:

  • Respect a complainant’s choice not to file a formal complaint when doing so is in the best interest of the parties involved as well as the college community.
  • If a formal complaint is filed, provide a neutral, unbiased, impartial, and objective investigation and hearing to determine if this policy was violated.
  • Utilize a Title IX Coordinator, investigator, hearing officer, and appeals officer who are free of conflicts of interest and bias.
  • Follow college procedures without material deviation.
  • Treat everyone who participates in the investigation with dignity and respect.
  • Ensure both the complainant and respondent have equal opportunities to participate in the investigation by being interviewed, identifying witnesses, and providing evidence.
  • Pursuant to Department of Education regulations, the college will presume that the respondent is not responsible for the alleged conduct unless and until a determination of responsibility is made at the end of the processes specified in this policy.
  • Recognize that the college has the burden of collecting evidence and proving any violation of policy; that burden is not on those involved in the investigation.
  • Provide equitable procedural protections to all parties.
  • Determine if the respondent more likely than not violated the policy and provide a written notice of such determination to the complainant and the respondent.
  • Provide the complainant and the respondent an opportunity to review relevant evidence gathered in the formal investigation if they so choose. Give them 10 days to respond with any additional information relevant to the investigation.
  • Provide the complainant and the respondent an opportunity to review the draft investigation report and give them 10 days to respond with any additional information relevant to the investigation before the investigation report is finalized.
  • Take appropriate action for any policy violation, including disciplinary and remedial measures.

When a formal complaint is filed, the Title IX Coordinator or an authorized designee will conduct an initial assessment to determine if a formal complaint is subject to dismissal. At any time during this assessment or formal investigation, a formal complaint must be dismissed for the following reasons:

  1. If the complainant filed the formal complaint and at the time the complainant is not participating in or attempting to participate in the education programs or activities of the college;
  2. If the conduct alleged in the formal complaint would not constitute sexual harassment as defined in this policy even if proved;
  3. If the conduct did not occur in college’s education programs and activities; or
  4. If the conduct did not occur against a person in the United States.

At any time during this assessment or formal investigation, a formal complaint may be dismissed, in the college’s discretion, for the following reasons:

  1. A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein;
  2. The respondent is no longer enrolled or employed by the recipient; or
  3. Specific circumstances prevent the college from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

If a formal complaint is dismissed under this policy, it may be referred to Student Life for investigation under the student code of conduct policies or for investigation under other college policies and procedures in the case of a formal complaint against an employee.

Emergency Removal

The college may remove a respondent from the college’s education programs and activities on an emergency basis. The college will conduct an individualized safety and risk analysis to determine if there is an immediate threat to the physical health or safety of a student or another individual related to the allegations, which justifies removal. The respondent will be made aware of this decision and provided an opportunity to appeal the decision after removal. Appeals will need to be in writing to the Title IX Coordinator and will follow the appeal process as noted below. The college retains discretion to place an employee on administrative leave irrespective of whether there is an immediate threat to the physical health or safety of any individual.

Good Samaritan Policy for Students

Our main concern under this policy is to ensure the safety of our students. We want to empower students to report concerns for themselves or others who are in danger. Hesston College recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time a sexual misconduct incident occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. Hesston College strongly encourages students to report incidents of sexual misconduct to campus officials. A bystander reporting in good faith or a victim/survivor reporting sexual misconduct to college officials or law enforcement will not be subject to conduct action for community standard violations of alcohol and/or drug use policies occurring at or near the time of the sexual misconduct.

Investigations

When a formal complaint is received, the formal complaint will go through a thorough investigation process that includes notifying the parties in writing, determining jurisdiction, gathering evidence, writing an investigative report, and providing this report to a panel for review via a live hearing. The college will conduct the investigation in a reasonably prompt manner.

The college will provide the complainant, respondent, and their advisors an opportunity to review the evidence as well as the draft investigative report prior to finalizing it for the panel review and give them an opportunity to provide additional relevant materials and witnesses to be interviewed and considered before the investigative report is finalized.

Advisors

The complainant and respondent have the right to an advisor of choice to join them during this investigation and hearing process. The advisor may be a friend, faculty or staff member, family member, or an attorney. If an advisor is not chosen, or the advisor decides to discontinue participation in this process, one will be assigned to the party by the college for purposes of conducting questioning of the other party and witnesses at the hearing.

Advisors have the right to accompany a party to any investigatory meeting, review the evidence subject to inspection, review the investigation report, and to attend the hearing and question directly, orally, and in real time the other party and any witnesses by asking all relevant questions and follow-up questions, including those challenging credibility.

Evidence

In an investigation there may be documents, screenshots, or physical items provided as evidence for consideration in the investigation. In general, three different types of evidence may be gathered:

  1. Evidence that is relevant and directly related to the allegations in the formal complaint.
  2. Evidence that is directly related to the allegations in the formal complaint but that is determined in the investigation to not be relevant.
  3. Evidence that is not relevant nor directly related to the complaint.

The investigator will determine what evidence is directly related to the complaint and therefore used within the investigation. The complainant and respondent will have an opportunity to review any evidence that is directly related to the formal complaint, including both inculpatory and exculpatory evidence, and request that additional evidence be considered. If evidence is provided that contains sexually graphic images, the investigator and/or Title IX Coordinator have the right to redact all or portions of the image provided for purposes of dissemination in the investigation. If the image needs to be provided in full, it will be done so in a controlled manner.

Informal Resolution

At any time during the formal complaint process, and with both the complainant’s and the respondent’s written permission, an informal resolution may be pursued. Informal resolutions are only available if the individuals involved agree to participate and if the Title IX Coordinator agrees that it provides a reasonable outcome for the situation and there are no additional safety concerns. With an informal resolution, the Title IX Coordinator or Student Life Office will work with the appropriate parties to resolve the situation by reaching an agreement. Informal resolutions may include discussions, mutually agreed upon plans of action, mediation, or other options as agreed upon by the parties and Title IX Coordinator. An individual who initially agrees to participate in informal resolution may insist upon a formal investigation at any time before the informal resolution is complete. However, once an informal resolution is reached, it is final unless the terms of the informal resolution state otherwise. An informal resolution may not be used in a situation in which the respondent is an employee and the complainant is a student.

Live Hearing

An investigation will be followed by a live hearing to determine if there is a violation of this policy as well as any applicable sanctions. The hearing panel will be responsible for resolving disputed facts, determining if this policy was violated, and to recommend appropriate action based on the facts presented. A live hearing will be recorded and available for the parties to review at a future date. The parties will be expected to have their advisor present at the hearing. If a party does not have an advisor available for the hearing, the college will provide one for the limited purpose of conducting questioning of the other party and witnesses. The evidentiary standard used during a formal investigation is whether a violation of policy more likely than not occurred (i.e., a “preponderance of the evidence”).

A respondent, complainant, or witness that does not attend the live hearing and submit to question and cross examination will have the information provided by them removed from consideration of the determination made in the live hearing.

A written determination of the outcome will be simultaneously provided to the complainant and respondent. Each party will have the option of appealing the decision and will be provided the specifics of that process in the determination letter.

Policy Violation Remedies

In the case of a policy violation, the recommended action should take into account the facts and circumstances of the specific investigation, as well as any mitigating factors about the responding party, to include their prior disciplinary history, the nature and seriousness of the offense, and the effect on the reporter as well as the campus community. The recommended action must be in line with action taken in other student misconduct situations. Some potential actions include:
Student

  • Probation
  • Loss of privileges
  • Volunteer services hours
  • Parental Notification
  • Alcohol and/or drug assessment and counseling
  • Fines
  • Required counseling
  • Required training
  • Residence hall relocation, suspension, or expulsion
  • Limited or no access to specific campus buildings
  • No contact order
  • Suspension
  • Dismissal
  • Warning
  • Withholding diploma
  • Revocation of degree
  • Removal from campus and disbarment from future participation in any activities sponsored by Hesston College, in which Hesston College participates, or on Hesston College property.
  • Discretionary sanctions

Faculty/Staff
Faculty or Staff found in violation of this policy may receive disciplinary action up to and including separation per our performance management policy.

  • Limited or no access to specific campus buildings
  • Required counseling
  • Required training
  • No contact order
  • Warning – Verbal or Written
  • Probation
  • Paid or Unpaid Leave
  • Suspension
  • Separation of employment
  • Loss of privileges
  • Reduction in pay/loss of annual increase
  • Loss of supervisory or oversight responsibilities
  • Removal from campus and disbarment from future participation in any activities sponsored by Hesston College, in which Hesston College participates, or on Hesston College property.
  • Discretionary sanctions

The above actions will be reviewed periodically for effectiveness and may have additions and removals as warranted per the situation.

Appeals

The complainant(s) and respondent(s) to the allegation have the right to appeal the investigation finding within five (5) business days of the written determination. An appeal will only be considered if it is based one or more of the following:

  1. Procedural irregularity that affected the outcome of the matter;
  2. New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; or
  3. The Title IX Coordinator, investigator(s), or hearing panel member(s) had a conflict of interest or bias for or against the complainants or respondents generally or the individual complaint or respondent that affected the outcome of the matter.

If an appeal fails to assert one or more of the reasons specified above, it will be dismissed. The appeal should include an explanation and argument for why the appeal should be granted based on the specified ground(s). If the appeal is not dismissed, the non-appealing party will be provided written notice of the appeal and afforded five (5) business days to submit a written response. Thereafter, two Vice Presidents from the Administrative Council will review the documents and provide an appeal decision. If appealed, the decision that results from the appeal will be considered final and there will be no further appeals.

Participation in an Investigation

During the course of an investigation, it is expected that all participants maintain professionalism and provide respectful, cordial responses. Intentionally filing a false report, or knowingly providing false information during an investigation, is a violation of this policy. Tampering with evidence, coercing witnesses, or colluding with others to provide a common response, are violations of this policy.

Resources

Hesston College has several resources available to reporters or those impacted by sexual misconduct:

Advisor
Law Enforcement
loveisrespect.org
Responsible Reporters
Non-Mandated (Confidential) Reporters
Safehope

Campus Safety

Individuals should be aware that the college may have a legal obligation to issue a timely warning to the campus community when incidents reported to them pose a substantial threat of bodily harm or danger to members of the campus community. Details of this warning can be found on our student life website.

Retaliation

This policy prohibits intimidation, threats, coercion, discrimination, and other forms of retaliation against any individual for the purpose of interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. If an individual believes they have been retaliated against, they should immediately report the retaliation in the same way they would report other forms of sexual misconduct.

FERPA

The outcome of an investigation involving students is part of the education record of the students involved, and is generally protected from release to third parties under a federal law called the Family Educational Rights and Privacy Act (FERPA), subject to narrow exceptions. The college will abide by FERPA and only disclose the outcome of an investigation involving student(s) as permitted by the law.

Handbook 2020-21