Policy and Procedures

Policy, Procedures and Resources for Sexual Misconduct

 

Note: The College is continuing a process of review of its sexual misconduct policies and procedures to ensure that processes, protocols and resources are in compliance with guidance issued by the United States Department of Education. During this process, the content on this website supersedes all print documents and will serve as the essential resource for current information about policies, procedures and resources.

 

I.   Introduction

II.  Definitions

III. Sexual Misconduct Policy

        Unwelcome Conduct of a Sexual Nature

        Non-Consensual Sexual Contact

        Sexual Exploitation

IV. Initial Steps and Resources

V.  Filing A Report

VI. Resolution

Notice of Nondiscrimination:  Augustana College is committed to providing equal access to and participation in employment opportunities and in programs and services, without regard to race, color, religion, creed, sex, sexual orientation, national origin, ancestry, age or disability.  The College complies with Title IX of the Education Amendments of 1972, the Americans with Disabilities Act, the Rehabilitation Act, and other applicable laws providing for nondiscrimination against all individuals.  The College will provide reasonable accommodations for known disabilities to the extent required by law.
Student inquiries or concerns may be directed to the Vice President for Student Services at 605.274.4124, or email sservice@augie.edu.  Other inquiries or concerns may be directed to the Vice President for Human Resources at 605.274.4110, or email humanresources@augie.edu.

 

I. Introduction

Augustana College believes that sexual misconduct is a violation of not only an individual’s rights and dignity; it is an act that affects the entire campus community.  These policies, procedures and resources have been developed with guidance issued by the United States Department of Education and its Office of Civil Rights.  Title IX of the  Education Amendments of 1972, 20 U.S.C. § 1681 et seq., has specific requirements for colleges and universities which prohibit discrimination on the basis of sex in education programs and activities. Sexual misconduct, as defined by Title IX, is a form of sex discrimination.

The College has established procedures for reporting, investigating and resolving sexual misconduct reports (refer to sections IV. Process: Initial Steps, V.  and VI. Process: Formal Resolution).  The Dean of Students Office administers the process involving student reports of misconduct. The Human Resources Office is responsible for reports involving faculty, staff and third parties.  Students experiencing sexual misconduct committed by a faculty, staff or a third party should contact either the Dean of Students Office or Human Resources Office for information about complaint procedures.

II. Definitions

Terms identified here pertain to our sexual misconduct processes that are not otherwise defined in the associated statement of policy, procedure and/or resources

Complainant – one who makes a complaint or files a report of misconduct.

Respondent – one who is accused in a complaint or report of misconduct.

Survivor – one who is a victim of sexual trauma. “Survivor” is the preferred term used to describe a victim of sexual assault because it implies a sense of empowerment to heal from sexual abuse or assault.

Victim – one who is harmed by or made to suffer from an act of misconduct.  In the context of the sexual misconduct policy, “victim” is used in cases of sexual harassment and the term “survivor” is used in cases involving sexual assault.

Dean of Students Office – The office with responsibility for the College’s student code of conduct and judicial system; also means the Vice President for Student Services and Dean of Students and his or her designee.  The Vice President (Dean of Students) serves as the designated Title IX coordinator for purposes of discrimination and sexual violence involving students.

Human Resources Office – The administrative office responsible for policies and procedures pertaining to college employees; also means the Vice President for Human Resources who serves as the College’s Title IX coordinator.

Title IX – United States Department of Education regulations (Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.) that prohibit discrimination on the basis of sex in educational programs or activities operated by recipients of Federal financial assistance.  Sexual Harassment and other acts of sexual misconduct are forms of sex discrimination.

III. Sexual Misconduct Policy

Augustana College is committed to a safe environment that promotes dignity and respect and will not tolerate sexual misconduct in any form.  Sexual misconduct is a violation of not only an individual’s rights and dignity; it is an act that affects our entire college community.   A number of different acts fall under the category of sexual misconduct including sexual harassment and sexual assault.

This policy applies to all persons associated with all college programs, whether on- or off-campus.

1) Unwelcome Conduct of a Sexual Nature includes unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature when:

  •  submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic standing, or
  • submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting such an individual, or
  • such conduct has the purpose or effect of unreasonably interfering with an individual’s academic or work performance or creating an intimidating, hostile, or offensive academic, work, or student life environment.

In addition to the forms of sexual harassment described above, students, faculty, staff and others should understand that sexual relationships between individuals of unequal status where a position of power or control exists may in fact become a sexual harassment violation. Consequently, to claim a consensual relationship may not be an acceptable defense against a charge of sexual harassment.

2) Non-Consensual Sexual Contact is unwanted sexual contact whether by an acquaintance or by a stranger which a reasonable person would consider intimidating or offensive. Under this policy, non-consensual sexual contact includes but is not limited to rape, forcible fondling and unwanted touching and kissing. This contact can occur under threat or coercion and can occur either forcibly and/or when a person is unable to give consent due to an incapacity or impairment due to alcohol or drugs; is unconscious; or otherwise suffers from a mental incapacity or physical helplessness. A person is legally incapable of giving consent if under the age of 18.

3) Sexual Exploitation is the act of taking advantage of another without consent and includes but is not limited to sexually-based stalking, cyber-bullying, recording, photographing, or transmitting intimate or sexual activity of another; allowing others to observe sexual acts; engaging in voyeurism; and distributing intimate or sexual information about another person.

IV. Initial Steps and Resources

Members of the campus community who experience any form of sexual misconduct are encouraged to contact one of the offices or agencies listed below. These resources can assist you, a classmate, or a colleague in recovering from the experience and to determine available options. It is important to understand that when consulting with any of the college resources, only the survivor/victim can decide who will be informed, what reports will be made and to whom, and to what level of detail. 

Most importantly, the College recommends that a survivor of rape seek prompt medical attention for personal protection and the collection of forensic evidence from a hospital emergency room.

Individuals who are uncertain they want to file a report should still seek guidance from one of the sexual misconduct resources. Contacting the Dean of Students Office, Human Resources Office, a college counselor, or other office or agency does not mean that an official report must be filed with the College or reported to law enforcement. These resources are provided to offer non-judgmental support and information to help the victim decide what is best for him or her.

College Resources

Dean of Students Office (Mortenson Center)                                                       605.274.4124
Counseling Services (Sioux Falls Seminary - lower level)                                605.334.2696
Sanford Health Campus Clinic (Solberg Hall)                                                    605.274.5552
Campus Ministry (Chapel of Reconciliation)                                                       605.274.5403
Campus Safety (Morrison Commons)                                                                  605.274.4014
Sexual Misconduct Hotline (Recorded procedures and local resources)     605.274.4357
Helpline (Confidential assistance available 24-7)                                             605.274.5548

Community Resources

Sanford Hospital (Emergency Room)
1305 West 18th Street
605.333.6688

Avera McKennan Hospital (Emergency Room)
1325 South Cliff Avenue
605.332.8000

If the sexual misconduct occurred within the last 72 hours, a physical evidence examination is important for collecting forensic evidence for use in a possible criminal investigation.  It is advised that he or she give consideration to being accompanied from either The Compass Center or the College so that he or she can have support and access to information to make the best choices possible.

Sioux Falls Police Department
Law Enforcement Center
320 West 4th Street
605.367.7212 or 911

Many forms of sexual misconduct are crimes and may be reported to the Sioux Falls Police Department.  An officer can be dispatched to the campus.  A complaint with supporting evidence is reviewed by the State’s Attorney’s Office to determine if there is sufficient evidence to prosecute.

It is suggested that the survivor/victim consider being accompanied by a friend or advocate from either the College or The Compass Center when a report is made to the police. An advocate can be a valuable resource in making a determination to report an assault to the police.

The Compass Center
1800 West 12th Street, Suite 100
605.339.0116

An advocate will be available to accompany the victim/survivor to the hospital, to the police department, and/or to a court hearing.

V. Filing A Report

Students, faculty or staff who experience any form of unwanted sexual contact are encouraged to report the incident and/or seek support.  The following information is offered as advice and clarification to persons considering filing a report of sexual misconduct.

Jurisdiction and Offices Available to Receive a Report of Sexual Misconduct

Augustana’s sexual misconduct policy applies to any allegation of sexual harassment and/or sexual assault regardless of where the alleged misconduct occurred. Any person may file a report of sexual misconduct.  If the report is alleging misconduct by a person who is not a student, the reporting party is encouraged to file a report with the Human Resources Office.

Dean of Students Office
Mortenson Center
605.274.4124

Campus Safety Office
Morrison Commons
605.274.4014

Human Resources Office
Administration Building
605.274.4110                                                                             

Timing of Report

There is no time limit to filing a report. Nevertheless, persons are encouraged to report alleged sexual misconduct as soon as possible in order to maximize the College’s ability to respond promptly and effectively. 

Confidentiality

Every effort will be made to protect privacy and confidentiality. Information is shared only on a need-to-know basis, after consultation with the complainant. 

If a campus resource is informed of an alleged incident of sexual misconduct, the College may need to investigate and take appropriate action to fulfill its Title IX obligation to provide a non-discriminatory environment, even if the complainant wishes to remain anonymous or not to pursue a formal complaint.

Protection

When a report of sexual misconduct is shared with a campus resource, that resource will work with the Dean of Students Office or Human Resources Office to make sure the reporting party is protected.  Measures such as adjusting academic class schedules, changing student housing assignments, modifying workplace assignments, removing personal information from the online directory, issuing a “no contact order” is typically issued.

No person filing a complaint of sexual misconduct (complainant) will be required to face the accused individual (respondent). If the complainant chooses to not appear, the complaint will be resolved based upon the evidence in support of the charges.

Retaliation

The College prohibits any retaliation against any person making a report of sexual misconduct or against any person cooperating in the investigation of an incident including witnesses. Retaliation includes intimidation, threats, or harassment.

Amnesty from Student Discipline

Assisting persons who report sexual misconduct is the College’s primary interest.  With incidents of misconduct involving students, it is not the practice of the Dean of Students Office to pursue disciplinary action against a victim or witness for other code of conduct violations (such as consuming alcohol or drugs) provided the student acts in good faith in filing a report and/or cooperates in the investigation.

Standard of Proof

The College’s resolution of an allegation of sexual misconduct is based upon a preponderance of evidence standard (i.e., it is more likely than not that sexual misconduct occurred).  As a point of clarification, a complaint filed with a law enforcement agency with charges brought forward through the criminal justice system in South Dakota will be decided using a higher burden of proof – beyond a reasonable doubt.  Consequently, an act may constitute sexual misconduct under this policy even if it is not a crime or the law enforcement agency lacks sufficient evidence and declines prosecution.

VI. Resolution

The following information presents a general outline of procedures for addressing sexual misconduct complaints. Augustana College has adopted these procedures to promote a community free from violence, threats and intimidation. No code of conduct and judicial procedures can anticipate every circumstance regarding policy and procedure. Therefore, the College reserves the right to amend, supplement, interpret, rescind or deviate from prescribed procedures in certain instances when it is deemed necessary to protect student welfare as long as the rules of fundamental fairness as outlined in the Student Handbook are not compromised. (Source: Code of Student Conduct).

Students involved with a complaint shall be accorded the following rights by the College.

  •  The right to be treated with dignity.
  • The right to receive a timely and impartial investigation of the complaint. 
  • The right to receive evidence and other fact-finding reports necessary to prepare for a judicial review.
  • The right to appear and to be accompanied by an advisor.
  • The right to make statements, to ask questions, and to call witnesses.
  • The right to be advised in writing of the outcome of the judicial hearing.
  • The right to request an appeal of the judicial decision.

A report of sexual misconduct will be promptly addressed. Upon receiving a report from the complainant, the College will initiate an immediate investigation.

a. Upon completion of a preliminary investigation, if it is determined that the complaint merits further investigation, an advocate will be    assigned to the complainant and the respondent. The imposition of an interim suspension will be considered prior to the completion of the investigation in order to ensure the safety and well-being of the complainant and other members of the college community. During an interim suspension, the respondent may be denied access to college facilities including attendance at classes or other college activities or privileges for which they might otherwise be eligible.

b. An investigation will be completed in a timely manner.  The investigation will include the reports of separate interviews of the complainant and the respondent. The investigation will also gather other evidence as necessary and will typically include statements from others identified as having knowledge about details of the complaint.

c. If the charges have merit, the charges may be resolved by mutual consent of both the complainant and the respondent on a basis acceptable to the Dean of Students Office. Such disposition shall be final, and there shall be no subsequent proceedings.

d. If the charges have merit and are not resolved by mutual consent, the charges will be referred to the Sexual Misconduct Review Panel.

e. The decision determined by mutual consent or by the Sexual Misconduct Review Panel is shared with the complainant and the respondent.

Sexual Harassment Process for Faculty and Staff

Augustana’s commitment to address sexual harassment in the workplace and throughout the larger campus community is based upon leadership provided by a Sexual Harassment Committee.  The committee is charged with educational programs for students, faculty and staff, serving as advocates for complainants and respondents, and having responsibility for hearing formal sexual harassment complaints.

The committee works from the office of the Vice President for Human Resources.  The vice president, as the College’s Title IX coordinator shall serve as the convener of the Sexual Harassment Committee.

Sexual Harassment Committee:
Beth Torkelson, Assistant Dean of Students
Sandra Looney, Professor of English
Amy Meyers, Employee Health Educator
Mary Jane Minnig, Secretary for Social Sciences Division
Peter Schotten, Professor of Government and International Affairs

Any member of the campus community is encouraged to report a complaint in a timely manner.  A reported incident or complaint is encouraged within one semester (3 months) of the incident or before graduation or separation from the College.

All reports of sexual harassment will be promptly addressed. Upon receiving a report from the complainant, the College will initiate an investigation and will also assign an advocate to the complainant and to the respondent.

Informal Resolution Process

a. Although a written report of sexual harassment is preferable, a report of complaint may be communicated orally.

b. The informal process provides an opportunity for the complainant to communicate with the respondent, usually by way of a letter that describes the offensive behavior and its affect on the complainant’s academic, employment, or student living environment.  The letter should stipulate an expectation that the offensive behavior ceases, and should also clarify conditions that permit the complainant to function without interference.

c. If the complainant wishes to resolve the complaint by using the informal resolution process, the complainant will be provided guidance to prepare the letter.  In some cases, other forms of communication may be preferable to a letter, including a mediated conversation with the respondent and an advocate (member of the Sexual Harassment Committee).

d. In most cases, the respondent will be asked to provide a written response to the complainant’s letter.  This document may include an explanation for the offensive behavior – whether or not the behavior was intended or was a misperception of intent; an apology; an assurance to discontinue the behavior; and an agreement to comply with conditions stipulated by the complainant.

e. If the complainant finds the response from the respondent satisfactory, s/he will notify the Vice President for Human Resources as a matter for the record. A copy of all documents and other communications will be retained by the College.

f. If the complainant is not satisfied with the outcome of the informal process including the respondent’s reaction to the letter as defined under section d., a formal resolution process may be requested.


Formal Resolution Process

a. A written report alleging the unwelcomed and offensive behavior shall be presented to either the Dean of Students Office or the Human Resources Office.

b. An investigation will be completed in a timely manner.  For most complaints of sexual harassment involving college personnel and third parties who are not employees or students at the College, the investigation will be conducted by the Human Resources Office. Complaints involving students will be investigated by the Dean of Students Office. The investigation will include the reports of separate interviews with the complainant and the respondent. The investigator(s) will also gather other evidence as necessary and will typically include statements from others identified as having knowledge about details of the complaint. A report of fact-finding will be presented to the appropriate Title IX Coordinator; either the Vice President for Human Resources (reports involving college personnel and third parties) or the Vice President for Student Services (reports involving students).

c. The respective vice president or his/her designate shall review all available evidence including the fact-finding report and will make an initial determination that the charges either have merit or do not have merit.

d. If the charges have merit, the charges may be resolved by mutual consent of both the complainant and the respondent on a basis acceptable to the respective vice president. Such disposition shall be final, and there shall be no subsequent proceedings.

e. If the charges do have merit and cannot be resolved by mutual consent, an administrative hearing will be held in a manner specified below.

f. The administrative hearing board shall be composed of three members of the Sexual Harassment Committee and will be convened by the Vice President for Human Resources (or designate). 

g. Either complainant or respondent may with a statement of cause challenge the seating of one member from the Sexual Harassment Committee.  Members of the Sexual Harassment Committee may also with a statement of cause request to be removed from the hearing board. The convener of the hearing board shall rule upon challenges for cause.

h. The complainant and the respondent will each be permitted to have one support person present during the hearing.  Support persons’ participation is limited to offering advice and they may not cross-examine witnesses or in any way provide representation for the complainant or respondent.

i. The hearing shall be conducted in private in order to protect the confidential nature of the proceedings.

j. The respondent shall be entitled to appear in person to present a defense and may call witnesses.

k. Both complainant and respondent shall be entitled to ask questions of the administrative hearing board and witnesses.

l. The complainant and respondent shall be entitled to refuse to answer questions or may elect not to appear before the judicial body.  Should either party elect to not appear, the hearing shall be held in their absence.  No person may be found to have violated the sexual harassment policy because he/she failed to appear at a hearing.  In all cases, the evidence in support of the charges shall be presented and considered.

m. The administrative hearing panel’s decision is based upon a preponderance of evidence standard (i.e., it is more likely than not that sexual misconduct occurred).  The respondent shall be advised in writing of the hearing panel’s decision.  The complainant shall also be notified of the hearing’s outcome.

n. Administrative hearing panel decisions are subject to a request for appeal by either the respondent or the complainant within two calendar weeks following notification of the decision.  Appeal requests shall be in writing and delivered to the Human Resources Office.  A request for appeal shall be acted upon by either Title IX Coordinators (Vice President for Human Resources or Vice President for Student Services) or the President and their decision shall be final.

An appeal request must specify grounds that would justify consideration.  General dissatisfaction with the outcome of the decision shall not be accorded as a basis for consideration of an appeal.  A basis for considering an appeal is the presentation of facts that indicate:

• An error in procedural due process that denies either the complainant or respondent a fundamentally fair hearing because of the error.

• Harshness of consequence to show an abuse of discretion by the hearing panel.
A request for appeal based upon new evidence will not be granted. New evidence that could not have been previously discovered and that, had it been presented at the initial hearing, would have substantially affected the original decision will be treated as grounds for a new hearing by the administrative hearing panel.