Policy and Procedures for Student Sexual Misconduct
The following policy and procedures apply to any offense that constitutes Sexual Misconduct (as that term is defined in Section VI of the Code of Responsibility) in which the accused is a student. The Davidson College Sexual Harassment Policy contains information pertaining to situations in which the accused in a sexual misconduct case is a member of the College's faculty or staff.
A. Resources for Students Involved in Sexual Misconduct Cases
The College is committed to providing maximum support for all students involved in Sexual Misconduct cases and strongly encourages students to report any incident of Sexual Misconduct. All College services are available to victims of Sexual Misconduct regardless of whether or not a student intends to file a formal complaint. Likewise, all College services are available to students accused of Sexual Misconduct. In coping with an incident or allegation of Sexual Misconduct, both accused and accusing students are strongly encouraged to make use of appropriate resources, including health services, counseling, rearrangement of classes and/or housing, immediate assistance to secure one's safety, the Dean of Students Office, and the Chaplain's Office. The contact information for such resources is listed below.
|Dean of Students Office
|Student Health and Counseling
For information about the confidentiality of resources, see Sections B.2 and E.2 of this policy.
B. Reporting Sexual Misconduct
- How to Report. If you are the victim of sexual assault, sexual harassment, or other Sexual Misconduct, you are encouraged to report the incident immediately to the Dean of Students (x2225) and/or the Campus Police (x2178). In an emergency, dial 911 to contact Campus Police.
Moreover, as a recipient of Federal funds, Davidson College is required to comply with Title IX of the Higher Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX") which prohibits discrimination on the basis of sex in education programs or activities. Sexual Misconduct is a form of sex discrimination prohibited by Title IX.
Davidson College has designated an Associate Dean of Students to serve as a Title IX Coordinator to oversee compliance with Title IX. All incidents of Sexual Misconduct involving students that are reported to the College will be reviewed by the Title IX Coordinator in the Dean of Students Office.
While students are encouraged to report incidents of Sexual Misconduct directly to the Dean of Students Office and/or the Campus Police, students may report a Sexual Misconduct incident to any member of the Davidson College faculty or staff. Reports made to Davidson College faculty or staff (including Residence Life student staff members) of incidents of Sexual Misconduct involving students will be referred to the Title IX Coordinator in the Dean of Students Office for assessment and will be reported to the Campus Police for Clery Act reporting purposes.
- Confidential and Anonymous Reports. If a student requests confidentiality when making a report, the College will take all reasonable steps to respond consistent with the request for confidentiality. Reports made directly to the College Chaplain or to the counselors and doctors at the Student Health Center are protected by confidentiality laws, will remain strictly confidential, and will not be referred to the Title IX Coordinator in the Dean of Students Office or to the Campus Police without the consent of the student. All other reports, including reports to the Student Health Educator, faculty, staff, coaches, and to Residence Life student staff members, will be referred to the Title IX Coordinator in the Dean of Students Office for assessment and will be reported to the Campus Police for Clery Act reporting purposes. To the extent possible, the College will respect a student's request to remain anonymous and to keep the details of the report confidential. Refer to Section E.2 below for additional information about confidentiality.
This Sexual Misconduct Policy applies to the on-campus conduct of all students. It also applies to off-campus conduct of students that, in the College's judgment, involves or affects the College or other members of the College community, such as conduct in connection with:
- Academic work or other Davidson-related educational activities and experiences, such as class projects, field trips, study abroad, or internships;
- Activities sponsored, conducted, or authorized by the College or its student organizations; or
- Activities that cause or threaten harm to the health, safety, well-being, or property of the College or members of the College community, including the student him- or herself.
This Sexual Misconduct Policy applies to all such conduct by a student while a student, even if it occurs outside of an academic term or when the student is not otherwise enrolled at Davidson College. Moreover, the College continues to have authority to administer the Sexual Misconduct Policy with respect to any such conduct by a student while a student even if the student subsequently graduates, withdraws, takes leave, or is otherwise absent from Davidson College, and even if the College does not learn of such conduct until after the student graduates, withdraws, takes leave, or is otherwise absent from Davidson College.
D. Options for the Reporting Person ("Complainant")
Persons, including students, who are victims of Sexual Misconduct by a student, may elect to take the following actions:
- File a criminal report with Campus Police. Campus Police will discuss with the victim the possibility of conducting a criminal investigation.
- File a formal complaint with the Dean of Students Office, to request that the incident be adjudicated by the Sexual Misconduct Board pursuant to the procedures set forth in this Policy.
- Pursue informal mediation of the complaint conducted by staff of the Dean of Students Office in appropriate cases. Informal mediation is never appropriate in cases involving allegations of sexual assault. Both the Complainant and Accused must agree to engage in informal mediation, and either party can end the informal mediation process at any time, for any reason. Students must understand that anything said in this informal mediation process may be used in either criminal proceedings or formal adjudication by the Sexual Misconduct Board. The Dean of Students has the discretion to determine if it would be inappropriate to informally mediate any particular Sexual Misconduct complaint.
Students who elect not to pursue any of the above options may nonetheless do any of the following:
- Seek counseling.
- Request a rearrangement of class schedule or housing.
- Request a no-contact order.
- Request the Dean of Students address the Complainant's concerns with the Accused.
E. College Investigation of Sexual Misconduct Reports
The College is committed to taking appropriate action to resolve incidents of Sexual Misconduct and to ensure a safe and non-hostile environment for all students. The College strongly encourages all students to report incidents of Sexual Misconduct and will not tolerate any form of retaliation for reporting. Statistics indicate that most sexual assaults are committed by repeat offenders. The College is severely limited in its ability to investigate and address sexual assault on campus without student cooperation and information.
- Nature of the College's Inquiry
The College will undertake an appropriate inquiry with all reports of alleged Sexual Misconduct involving students, regardless of whether the person making the complaint wishes to pursue resolution of any kind. The specific steps in the College's inquiry will vary depending on the nature of the allegations; the information available to the College; whether the person complaining of the Sexual Misconduct (the "Complainant") elects to pursue criminal charges, files a formal complaint with the Dean of Students, or requests the College not to pursue action; and other factors.
As a general rule, the College will not conduct an investigation or take any remedial action without first obtaining the consent of the Complainant, and will conduct any investigation and respond to a report consistent with a Complainant's request for confidentiality or request not to pursue action. The College's ability to respond to a Sexual Misconduct complaint, to prevent its recurrence, or to address its effects may be severely limited if the Complainant requests confidentiality, does not provide the name of the alleged perpetrator, or asks that the report not be pursued.
- Requests for Confidentiality/Not to Pursue Investigation.
In cases where the Complainant requests confidentiality or requests the College not to pursue an investigation, the Title IX Coordinator in the Dean of Students Office or his or her designee will conduct a preliminary assessment into the alleged Sexual Misconduct and may weigh the Complainant's request against the following factors: the seriousness of the alleged Sexual Misconduct; the Complainant's age; whether there have been other complaints or reports of Sexual Misconduct against the same accused student; and the accused student's right to receive information about the allegations if the information is maintained by the College as an "education record." The Title IX Coordinator in the Dean of Students Office may determine that, in the interest of providing a safe and nondiscriminatory environment for students, it is necessary for the College to act on information it has received.
In cases where the Complainant files a formal complaint, the College cannot keep the Complainant's identity from the accused student. Sexual Misconduct is a serious offense and the accused student has the right to know the identity of the Complainant/alleged victim. However, the college will provide options during the hearing before the Sexual Misconduct Board for questioning without confrontation, including using a room divider, using separate hearing rooms, or using technology such as Skype.
- Interim and Non-Disciplinary Measures
Upon receiving a report and making the appropriate inquiries, and regardless of whether the Complainant wishes to pursue criminal charges, a formal complaint with the Dean of Students, informal mediation (where appropriate), or no resolution of any kind, the Dean of Students may take interim and non-disciplinary measures before the final outcome of an investigation or hearing, if any. These interim and non-disciplinary measures include, but are not limited to, a no-contact order, alteration of class schedules or housing arrangements, meeting with the accused student to address the concerns of the complainant, or interim suspension as described in the Extraordinary Disciplinary Powers of the President.
F. Rights of the Student Parties
Being charged with Sexual Misconduct is both serious and difficult. A student who has been charged with a Sexual Misconduct complaint is strongly encouraged to confer with the Dean of Students to learn about Sexual Misconduct policies and procedures.
Rights of the Student Parties
Any student who is a Complainant or Accused Student in a disciplinary proceeding before the Sexual Misconduct Board shall be afforded the following rights:
- Accused students shall be informed in writing of the charges against them. Both the Complainant and the Accused students shall be provided with copies of Pre-Hearing materials and shall have adequate time to prepare for a hearing (See specified times in Sections H-I below).
- At their request, Complainant and Accused students shall not be required to take any reviews or examinations between the time the Dean of Students delivers the charging statement and two days after the Notice of Action is delivered by the Sexual Misconduct Board.
- Accused students shall be assumed "not responsible" until proven "responsible" by a preponderance of the evidence.
- Students shall have a fair and equitable hearing, with a presumption that the Accused student is not responsible for the charges until proven otherwise.
- Accused students shall not be required to testify against themselves, but the Sexual Misconduct Board may require other students to testify against them.
- Accused students shall not suffer an excessive penalty.
- No evidence obtained in violation of a right to privacy shall be admitted.
- No pressure shall be placed on Accused students to confess or incriminate themselves.
- Students shall not be restrained in any manner from the full exercise of their rights on appeal.
- Students have the right to be present during the hearing and to be advised of the sanctions imposed (See specific privacy provisions in Section L below).
- Students shall have access to support from the counseling center staff and the college chaplain's office.
Any student who is a Complainant or Accused Student in a disciplinary proceeding before the Sexual Misconduct Board also has all of the rights described in the hearing and appeal procedures set forth below.
G. The Sexual Misconduct Board
- Organization. The Sexual Misconduct Board (the "Board") comprises six professional staff, ordinarily from the Student Life division appointed by the Dean of Students, one of whom will act as chair and secretary (the "Chair"); six faculty members (three of which shall be appointed by the President (for three years, renewable) and three of which shall be elected by the faculty in accordance with their bylaws); and six members of the Honor Council selected by the Dean and the Chair of the Honor Council.
- Hearing Panels. From the Board, a panel of six persons will be convened to hear each case. Typically, the panel will include the Chair, two faculty members, two Honor Council members, and two staff representatives (in addition to the Chair). Upon written request to the Dean of Students by either the Complainant or the Accused, the panel will not include members of the Honor Council. In that case, the panel will include the Chair, three faculty members and three staff representatives (in addition to the Chair). The Chair shall preside over the hearing but shall not have a vote in the deliberations.
- Function and Authority. The Board's purpose is to hear cases which include allegations of Sexual Misconduct. The Board is charged with determining whether the Accused is responsible or not responsible for the alleged conduct and determining appropriate sanctions. A hearing before the Board does not preclude subsequent legal action. The Board is empowered to consider any charge under the Code of Responsibility which is linked to a charge of Sexual Misconduct, following the hearing procedures set forth below.
- Training. Annual training will be provided through the Dean of Student's Office to the Board.
H. Initiating a Sexual Misconduct Complaint Before the Board
- Filing a Formal Complaint. Any student, faculty member, employee, or guest of the College may file a formal Sexual Misconduct complaint against a student. The Complainant must submit a formal statement (the "formal complaint") describing the incident to the Dean of Students.
- Investigation. Upon receipt of the formal complaint, the Dean of Students will assign a staff member as an Investigator to thoroughly investigate the allegations. Investigators are neutral fact-finders who, during the course of the investigation, typically conduct interviews with the Complainant, the Accused student, and third-party witnesses; visit and take photographs at each relevant site; and, where applicable, coordinate with Campus Police or other law enforcement agencies. The completed investigative report typically will include summaries of interviews with Complainant, Accused, and third-party witnesses; other photographic, electronic and forensic evidence; and a list of facts undisputed by the parties. A typical investigation will be completed within sixty (60) days, if not sooner. Investigators will not communicate with parents of either the Complainant or the Accused student. Parents may call the Dean of Students office with questions about the process; details regarding a specific case will not be shared.
- Charging Statement. Upon review of the investigative report and in consultation with the Investigator, if the Dean of Students determines the complaint alleges a Sexual Misconduct offense, the Dean shall prepare a statement of charges setting forth the nature, time, and place of the violations, as alleged by the Complainant. The Dean shall provide the charging statement and a copy of the investigative report promptly to the Accused by hand delivery or by registered mail to the last known College recorded address of the Accused if hand delivery is not possible. The Dean also will concurrently provide a copy of the charging statement and the investigative report to the Complainant.
- Accused's Response to Charging Statement. Within five days of receipt of the charging statement, the Accused may submit a formal written response to the Dean of Students. In the event that the charging statement includes other charges under the Code of Responsibility that are linked to Sexual Misconduct, the Accused may include in his or her formal written response a request that those other charges be adjudicated by the Judicial Board separately from the hearing on the Sexual Misconduct charge(s).
- Preparing for Hearing. Upon receipt of the Accused's response or lapse of the five-day response period, the Dean of Students shall concurrently provide copies of the "Pre-Hearing Materials" (including the formal complaint, the charging statement, the investigative report, and the Accused's response, if any) to the Complainant, the Accused, and the Chair of the Board in preparation for a hearing.
- Composition of Panel. Within three days of receipt of the Pre-Hearing Materials, either the Complainant or the Accused may submit a written request to the Dean of Students that the hearing panel not include members of the Honor Council. Such a request made by either party will be honored. The Dean of Students shall forward any such request promptly to the Chair, who will compose the panel without members of the Honor Council.
- Multiple Accused Students. In the event the complaint involves more than one accused student, upon written request to the Dean of Students by any of the accused students within three days of receipt of the Pre-Hearing Materials, the hearings concerning each student shall be conducted separately.
I. Preparation for the Hearing
- Setting the Hearing. Upon receipt of a request regarding composition of the hearing panel or lapse of the three-day request period, the Chair of the Board promptly confers with the Complainant, Accused, and Dean of Students to ascertain the earliest practicable date for the hearing, taking into account the time required for adequate preparation. The Chair then sets a hearing time, date, and place, and dockets it on the Board's records, and gives written notice of the setting to the members of the Board panel who are to hear the case, the Complainant, and the Accused. Notice to the Complainant and Accused shall be served by hand delivery, or if that is impossible, by registered mail. Unless otherwise agreed to by both parties, the hearing date shall not be less than three, nor more than ten, days from the date of service of notice.
- Distribution of Additional Hearing Materials, if Any. Prior to the hearing (and in any case not less than two days before the hearing) the Dean of Students shall provide to the Complainant, Accused, Chair, and members of the hearing panel additional information pertinent to the case, if any.
- Witnesses. The Dean of Students will try to arrange the attendance of possible witnesses who are members of the College community, if reasonably possible, who are identified by the Complainant and/or the Accused at least two business days prior to the hearing date. The Dean of Students also may identify and arrange the attendance of possible witnesses based on the Investigator's investigation of the formal complaint.
- Panel Preparation. To ensure an efficient and thorough hearing, the hearing panel may choose to meet in advance, without the parties present, to prepare for the hearing.
J. Personal Support for the Parties
- Representatives of the Parties. The Complainant and the Accused each have the right to have one representative attend the hearing. The representative may be selected by the party from a list of approved representatives maintained by the Dean of Students Office, or may be a fellow Davidson student chosen by the party. Parents or lawyers may not act as representatives. The role of the representative is to provide support to the party. The representative does not make statements, present evidence, or call or question witnesses at the hearing.
- Additional Support for the Parties. The Complainant and the Accused each may request that additional persons (e.g., family member, spiritual advisor, lawyer) be allowed to sit in a nearby waiting room during the proceedings of the Sexual Misconduct Board. To facilitate personal support and counsel to the parties, the Chair may provide appropriate recesses from time to time. However, such persons shall not be permitted to sit in the hearing room during the closed hearing.
K. Hearing Procedures
- Fair and Equitable Hearing. The College is committed to providing a hearing that is fair and equitable to all parties, with a presumption that the Accused is not responsible for the charges until proven otherwise.
- Confidentiality. All aspects and phases of proceedings involving the Board shall be strictly confidential, including the investigations, hearings, and appeals. The hearings shall be closed and confidential and any person participating in any aspect of the proceedings must strictly maintain their confidentiality. All persons participating in a Sexual Misconduct hearing shall pledge in writing to maintain in confidence all matters presented or discussed at the hearing.
- Pledge of Honesty. All witnesses in a Sexual Misconduct hearing, including the parties, shall pledge in writing to present honest testimony. In the event that the Accused student is found to be "not responsible" due to inconclusive evidence, the Complainant will not be subject to disciplinary action for lying on the grounds of filing a formal complaint. Likewise, in the event that the Accused student is found to be "responsible" by a preponderance of the evidence, the Accused will not be subject to disciplinary action for lying on the grounds that the Accused student pled "not responsible." However, if the Chair has reason to believe that a student lies during the hearing, then the student may be formally accused of lying as an Honor Code violation.
- Role of the Chair. The Chair presides and makes all rulings regarding procedure, evidence, and practice. Formal rules of process, procedure, and/or technical rules of evidence, such as are applied in criminal or civil court, are not used in Sexual Misconduct hearings. The Chair controls, by recognition, the participation of the members of the Board and others in the hearing.
- Role of the Investigator. The Investigator (designated by the Dean of Students) shall attend the hearing to present evidence and facilitate the questioning of the parties and any non-party witnesses, as set forth in detail below.
- Rules of Order. The Board, by majority vote, may adopt specific rules of order for the conduct of its hearings and other deliberations, but these shall not abridge any of the General Rules of Procedure or rights secured to the parties as herein provided.
- Evidence. No attempt shall be made to apply technical rules of evidence. In general, any evidence, whether oral testimony or documentary, which is considered by the Chair to be relevant to the charge or defense, should be received subject to the power of the Chair to exclude frivolous, repetitive, or merely cumulative testimony. Hearsay evidence (testimony by a witness to what a person not present at the hearing stated) should be received and evaluated with caution, since no opportunity ordinarily exists to question the absent person. Circumstantial evidence can receive the same consideration as direct evidence. Objections to evidence are ruled upon by the Chair alone.
- Reputation and Opinion Evidence. Reputation or opinion evidence of past sexual behavior of the Complainant is not admissible in evidence. Reliable and trustworthy evidence regarding sexual activity between the Complainant and Accused shall be admissible at the discretion of the Chair. Reliable and trustworthy evidence regarding the sexual activity of the Accused, regardless of whether the student was formally charged with a violation of the Sexual Misconduct Policy, may be admissible at the discretion of the Chair if the alleged past conduct is sufficiently similar in nature to suggest a pattern of behavior; provided, however, that evidence of past sexual activity is not admissible if the accused student previously was formally charged and found "not responsible" by the Sexual Misconduct Board.
- Burden and Standard of Proof. No Board member should vote to find that the person charged is responsible as charged unless on weighing all of the evidence the violation is proven by a preponderance of the evidence. No Board member should consider any evidence of violation not presented in the hearing. Board members may properly consider as evidence of violation that the Accused has refused to cooperate in a proper institutional investigation if there is other evidence to support the charge. Whenever the charge is not admitted, no violation is found unless a majority of the Board hearing the matter concurs in finding it.
- Provision of Record for Review. The hearing will be taped. The audio tape shall be secured in the Dean of Student's Office and shall be released only for purposes of appeal or under court order or subpoena. Additionally, the Chair shall prepare a written digest of the proceedings at all hearings without regard to whether evidence is received on the question of violation, and without any request being made by the Complainant or the Accused.
- Confrontation. At the request of the Complainant and to allow for questioning without confrontation, the hearing may be conducted in a room with a room divider or screen, in separate hearing rooms, or with the assistance of technology such as Skype.
- General Rules of Procedure. The hearing shall proceed as follows:
a. The Chair calls the hearing to order and reviews the rules of procedure for the hearing.
b. The Investigator reads the charging statement. The Chair asks the Accused whether he or she admits to the substance of the charge, or declines to admit it.
c. If the Accused admits to the substance of the charge, the Investigator shall read the investigative report. The Accused may then make a statement in mitigation or extenuation, and may request the Investigator call a reasonable number of witnesses in substantiation of his or her statement. The Investigator may ask questions of the Accused, the Complainant, and/or the witnesses. Questions may be suggested by the Complainant, Accused, or Board members, with such questions directed to the Investigator, who will in turn question the witness. This method is used to preserve the non-adversarial tone of the hearing. Members of the Board may then ask questions of the Investigator. Final remarks may be made by the Complainant followed by the Accused. The Board shall then go into executive session to consider and determine the sanction, if any, to be imposed.
d. If the Accused declines to admit to the substance of the charge, the Board proceeds to hear evidence as to the matters in dispute, normally in the order set forth below.
e. The Investigator gives an opening statement that shall include: (i) any stipulations of fact and facts that are not disputed; (ii) a summary of the policies the Accused is alleged of violating; (iii) a statement concerning the standard of proof; and (iv) a list of witnesses to be called during the hearing and a statement concerning the substance and relevancy of their testimony.
f. The Investigator reads the investigative report and may introduce exhibits.
g. The Complainant and the Accused may provide testimony under the direction of the Investigator, in that order, but neither party is required to make a statement or provide testimony.
h. The Investigator calls non-party witnesses, if any, to testify. If a potential witness identified by the Complainant or the Accused is not called to testify, the Investigator may state the reason why that potential witness is not testifying.
i. Following the statements of each of the Complainant, Accused, and non-party witnesses, the Investigator may ask questions. Questions may be suggested by the Complainant, Accused, or Board members, with such questions directed to the Investigator, who will in turn question the witness. This method is used to preserve the non-adversarial tone of the hearing.
j. The Board may ask questions of the Investigator.
k. Pertinent records, exhibits, and written statements may be accepted as information for consideration by the Board at the discretion of the Chair.
l. The Complainant and the Accused may each make final remarks, in that order, but neither party is required to make final remarks.
m. The Board then determines in executive session by majority vote whether the Accused is responsible for the charge(s). If the Board determines the Accused is responsible, the hearing resumes, at which time the Complainant may suggest sanctions and the Accused may present any mitigating circumstances in regard to the suggested sanctions. The Board then goes into executive session to determine the sanctions, if any, to be imposed.
- When Accused Does Not Appear. If the Accused does not appear personally, the fact that the Accused has been duly notified of the time and date of the hearing shall be verified. If it is determined that the Accused has not been duly notified, the hearing is adjourned and the procedures revert to setting and notification of a rescheduled hearing. If it is determined that due notice was given, the hearing proceeds without the Accused.
L. Notice of Action.
The Sexual Misconduct Board may inform the parties orally of its disposition of the charges following its determination, or it may defer giving any notice for a period not to exceed two days from formal closing of the hearing. In any event, the Chair shall, no later than three days from the formal closing of the hearing, give to the Accused a written Notice of Action. The Chair shall concurrently give to the Complainant a copy of the Notice of Action, redacted as necessary to comply with the Family Education Rights and Privacy Act ("FERPA") and any other applicable privacy laws.
M. Imposition of Sanctions.
- Standards. Unless specifically limited by some provision of this document, the Board may consider as possible sanctions in any case where a violation is found or admitted all those sanctions enumerated in Part II, Section A, without regard to the particular violation involved. It should, however, attempt to fairly fit the sanction to the violation seen in total context. Thus, a fairly severe sanction might appropriately be imposed for a relatively minor violation which has been persistently repeated despite formal warning, while a relatively minor sanction might appropriately be imposed for a serious violation where substantial extenuation is shown. The sanctions of suspension for a definite time and indefinite suspension, involving loss or interruption of educational opportunity, are appropriate only when the violator's continued membership in the College community is judged to: (i) fundamentally be at variance with the integrity of its educational mission; (ii) pose a specific threat to his or her own emotional health; or (iii) pose a specific threat to the minimal internal order of the community.
- Number of Board Required to Impose Particular Sanctions. In order to impose the sanction of indefinite or definite suspension, all members of the Board sitting on the particular hearing must concur with its imposition. Two-thirds concurrence is required to impose any other particular sanction.
N. Finality of Determination by Board
Determination by the Board, both as to the fact of violation and as to the sanction to be imposed, are finally dispositive of the disciplinary proceeding, subject only to the rights of the parties to appeal as provided below.
No person shall be subject to restraints, interference, coercion, or reprisal for action taken in good faith to seek advice concerning a harassment or Sexual Misconduct grievance, to file a grievance or to serve as a witness, panel member, or representative in the investigation and hearing of a grievance. Acts or threats of retaliation are a violation of the Code of Responsibility and will be investigated and adjudicated accordingly.
P. Malicious and False Accusations
An allegation which is both false and brought with malicious intent is a violation of the Honor Code and will be investigated and adjudicated accordingly.
Q. Appeal Procedures from Sexual Misconduct Board Decisions
- Grounds for Appeal. The Complainant or the Accused may appeal to the Review Board (i) any determination of "responsible" or "not responsible" of the accused, and (ii) the imposition of any sanction, by the Sexual Misconduct Board, subject to the scope of review set forth in Section 5, below.
- Review Board. Appeals from Sexual Misconduct Board Decisions shall be heard by the Review Board. While five members present are preferred, three members, including at least one student member, of the Review Board constitute a quorum for hearing and determination of appeals. If the hearing panel of the Sexual Misconduct Board did not include members of the Honor Council (upon written request of a party), then any appeal of that hearing will be heard solely by the faculty members of the Review Board. In that event, three members of the Review Board constitute a quorum for hearing and determination of the appeal. The Chair of the Sexual Misconduct Board shall be present with the Review Board without vote, when an appeal is being heard. If the Chair is unavailable, then the Chair will designate a member of the Sexual Misconduct Board which heard the case to be present.
- Method of Appeals to Review Board. Appeal to the Review Board is made by giving written notice of appeal to the Dean of Students within five days after receipt of Notice of Action by the Sexual Misconduct Board. Upon receiving the written notice of appeal, the Dean of Students shall immediately give written notice of the appeal to the Chair of the Sexual Misconduct Board, the Chair of the Review Board, and to the other party to the proceedings. All appeals to the Review Board shall specify exactly why the appeal is being made and shall be limited in scope to the matters set forth in Section 5(b), below. A copy of the formal Notice of Action should be attached.
- Record of Appeal. The Review Board considers appeals solely on the record of proceedings before the Sexual Misconduct Board. It shall not receive any new evidence. It shall, however, be permitted to consider arguments and written materials regarding alleged procedural errors. In the case of appeal from the Sexual Misconduct Board the record consists of the Notice of Action, the digest of proceedings, and audio tape recording of the proceedings. The responsibility for preparation and transmittal to the Review Board of the record is with the Chair of the Sexual Misconduct Board. The digest shall be available to the members of the Review Board no less than 24 hours before the commencement of the Review.
- Consideration of appeal; scope of review.
(a) Consideration of appeal. The Review Board shall consider the appeal solely on the record. It shall not receive any new evidence. Upon request, the Review Board may permit oral arguments and/or written briefs, by the student filing the appeal (hereinafter the "Appellant"), the student responding to the appeal (hereinafter the "Respondent"), or the Chair. If the Review Board permits oral argument and/or written brief by the Appellant, it must also permit oral argument and/or written brief by the Respondent. Such arguments and briefs shall be confined to matters properly to be considered by the Review Board within the scope of its review defined in (b) of this subsection 5.
(b) Scope of review. Review of the finding of violation is confined to the questions: (1) whether there is sufficient evidence in the record to support the finding by a preponderance of the evidence; (2) whether the hearing was free of substantial error prejudicial to the Appellant under the prescribed procedures; and (3) whether the sanction imposed is essentially appropriate in light of the seriousness of the violation.
- Determination of appeal; Notice of Action.
(a) Determination. The Board shall reach decision in executive conference of all those sitting on the appeal. A majority of those sitting on the appeal voting together determine the action on the appeal both in respect of the finding of violation and of the imposition of sanction. A different majority may determine the action in respect of each. Decision shall be rendered within fifteen days after receipt of the record of appeal, unless for extraordinary reasons shown by the Appellant or Respondent, the time is extended to allow more time for presentation.
(b) Notice of Action. Written Notice of Action taken on appeal shall be given by the Secretary of the Board to the Appellant not later than two days after a decision is reached in conference. The Secretary shall concurrently give to the Respondent a copy of the Notice of Action, redacted as necessary to comply with FERPA and any other applicable privacy laws.
(c) The Secretary shall prepare a written digest of the action of the Review Board.
- The Review Board will follow a standard procedure in its hearings
(a) The appeal will come in writing stating clearly the issues to be raised. The Respondent will have time to read the appeal and to prepare a written response that shall be made available to the Appellant prior to the meeting of the Review Board.
(b) The Review Board will meet in executive session to read the appeal, the response, any briefs permitted by the Review Board, and to review the digest of the Sexual Misconduct Board.
(c) The Chair of the Sexual Misconduct Board, the Investigator, Appellant, Respondent, and the party's representatives (as that term is defined in Section J.1 of the Sexual Misconduct Policy), if requested by the parties, will then be admitted. No other witnesses, including character witnesses, may appear.
(d) Review Board members may then ask any questions about the nature of the appeal and the particular evidence to support it. Issues involving evidence not previously heard by the Sexual Misconduct Board shall not be considered. The Review Board may ask questions of the Appellant, Respondent, Chair, and/or Investigator.
(e) The Review Board shall meet in executive session to discuss the case and to reach its decision. The Secretary of the Review Board shall prepare the digest of its deliberations. The digest shall be available to the President of the College in the case of a subsequent appeal.
(f) The Secretary of the Review Board will inform the Appellant and Respondent of its decision with the Notice of Action within two days. The Secretary will also inform the Dean of Students, and the Chair of the Sexual Misconduct Board of the decision of the Review Board.
- If the Appeal is Upheld
If an appeal is upheld by the Review Board, the matter shall be returned to the Sexual Misconduct Board and the Dean of Students for re-opening of the Sexual Misconduct Board hearing to allow reconsideration of the original determination and/or sanction(s), as appropriate.
- If the Appeal is Not Upheld
When an appeal is not upheld, the action of the Review Board is finally dispositive of the disciplinary proceeding, except for the right of the person charged to appeal to the President in the cases provided in subsection 10 following.
- Appeal to the President.
The Accused or the Complainant may appeal to the President of the College only in cases where the Accused was found "responsible" by the Sexual Misconduct Board and either:
(i) the Review Board does not uphold an appeal by the Accused where the Accused appeals the imposition of a sanction of indefinite or definite suspension; or
(ii) the Review Board does not uphold an appeal by the Complainant where the Complainant appeals the appropriateness of the sanction imposed by the Sexual Misconduct Board and states in the Notice of Appeal that the Sexual Misconduct Board should have imposed a sanction of definite or indefinite suspension.
Notice of Appeal must be given in writing to the President and to the Dean of Students within five days after receipt of the Review Board's Notice of Action. Upon receiving the written notice of appeal, the Dean of Students shall immediately give written notice of the appeal to the Chair of the Sexual Misconduct Board, the Secretary of the Review Board, and to the other party to the proceedings. Review is solely on the record on appeal before the Review Board, plus any written briefs filed with the Review Board. The President may, in conference with the Appellant and Respondent, hear and consider oral argument. Review by the President is confined solely to the question of the appropriateness of the sanction in total context. The President shall ordinarily reach a decision and give formal written Notice of Action to Appellant within ten days after receiving the Notice of Appeal. The President shall concurrently give to the Respondent a copy of the Notice of Action, redacted as necessary to comply with FERPA and any other applicable privacy laws. The President may affirm the decision of the Review Board or may modify the sanction imposed by the Sexual Misconduct Board (either by reducing or increasing the sanction) to one deemed more appropriate. The action of the President is finally dispositive of the disciplinary proceedings.
- Stay of sanction pending appeals.
The imposition of sanction is stayed following action by the Sexual Misconduct Board and the Review Board for the periods during which Notice of Appeal may be given following their respective actions, and thereafter until the matter has been finally disposed of within these procedures. If upheld on appeal, a sanction of definite or indefinite suspension shall be effective as of the date imposed by the Sexual Misconduct Board. If either party appeals the sanction of probation, the term of the probationary period will begin after the appeal procedure has been completed if the sanction is upheld. Should the accused be a senior and the length of the probationary period extend beyond the date of commencement, that student shall not be eligible for a degree until the end of the probationary period. (See Code of Disciplinary Procedures, Part II, Section A. Range of Permissible Sanctions, Item 13 regarding out of classroom restrictions on a student receiving a sanction of suspension.)
- Petition for readmission.
A student who has been suspending for an indefinite period under the Sexual Misconduct Policy may petition in writing for readmission to the Faculty Executive Committee. This petition will be submitted to the Dean of Students. The Faculty Executive Committee may, when possible, consult with members of the Sexual Misconduct Board who heard the student's case.
R. Title IX Coordinators
As a recipient of Federal funds, Davidson College is required to comply with Title IX of the Higher Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX), which prohibits discrimination on the basis of sex in education programs or activities. Sexual Misconduct, as defined in Section VI of the Code of Responsibility, is a form of sex discrimination prohibited by Title IX. Davidson College is committed to providing programs, activities, and an educational environment free from sex discrimination. Inquiries concerning the application of Title IX should be directed to the following Title IX coordinators:
- Student inquiries should be directed to Kathy Bray, associate dean of students, Chambers 1255, 704-894-2225, (Title IX Coordinator)
- Student athlete inquiries should be directed to Katy McNay, assistant director of Athletics for compliance, Baker Sports Complex, 704-894-2637, (Deputy Title IX Coordinator)
- Employee inquiries should be directed to Ann Todd, associate director of Human Resources, 11 Jackson Court, 704-894-2214, (Deputy Title IX Coordinator)