Sexual Misconduct and the Judicial Process

This Sexual Misconduct and the Judicial Process policy applies to complaints brought by students against other students.

Boston University is committed to fostering a safe learning environment for members of the University community. As required by Title IX of the Education Amendments of 1972, and in accordance with this policy, the University undertakes to investigate any allegation of sexual misconduct. Sexual misconduct encompasses a range of behavior including sexual harassment, sexual assault, sexual violence, rape, dating violence, domestic violence, stalking and any other conduct of a sexual nature that is nonconsensual, or has the effect of threatening or intimidating the person against whom such conduct is directed. The University is committed to preventing sexual misconduct.

Contents

I. What is Sexual Misconduct?
II. Reporting Sexual Misconduct
III. Confidentiality
IV. Allegations of Sexual Misconduct Against Students
V. Procedures
VI. Additional Resources
VII. Concerns

I. What is Sexual Misconduct?

Sexual misconduct includes, but is not limited to sexual harassment, sexual assault, sexual violence, rape, dating violence, domestic violence, stalking, and sex discrimination. Sexual misconduct also includes any conduct of a sexual nature that is nonconsensual, or has the purpose or effect of threatening, intimidating, or coercing a person or persons. When there is a lack of mutual consent about sexual activity, or there is ambiguity about whether consent has been given, the activity may constitute sexual assault or another form of sexual misconduct. Sexual misconduct can involve persons of the same or opposite sex.

It is not possible to list all circumstances that might constitute sexual misconduct. Determining whether conduct constitutes sexual misconduct is dependent upon the totality of the circumstances, including the pervasiveness or severity of the conduct. The following are examples of conduct which may constitute sexual misconduct:

• Unwelcome sexual advances—whether involving physical touching or not;
• Sexual epithets, jokes, written or oral references to sexual conduct, gossip regarding another’s sex life;
• Comments on a person’s body, sexual activity, deficiencies, or prowess;
• Displaying sexually suggestive objects, pictures, or cartoons;
• Unwelcome leering, whistling, brushing against the body, sexual gestures, or suggestive or insulting comments;
• Inquiries into a person’s sexual experiences;
• Discussion of a person’s sexual activities;
• Pressure for a date or a romantic or intimate relationship;
• Unwelcome touching, kissing, hugging, or massaging;
• Pressure for or forced sexual activity;
• Belittling remarks about a person’s gender or belittling remarks about a person’s sexual orientation based in gender-stereotyping;
• Videotaping or photographing others without consent;
• Making obscene gestures of a sexual or gender-based nature;
• Sexually explicit profanity; and
• Use of email, the Internet, or other forms of digital media to facilitate any of the above.

In order to constitute sexual misconduct, conduct must be unwelcome. Conduct is unwelcome when the person affected does not solicit or invite it and regards it as undesirable or offensive. The fact that a person may accept the conduct does not mean that he or she welcomes it.


II. Reporting Sexual Misconduct


A student who has experienced sexual misconduct may report the incident(s) to both on-campus and off-campus authorities. If you need assistance making a report, please contact the Sexual Assault Response and Prevention Center (SARP) at 617-353-7277 or the University’s Title IX Coordinator at 617-353-9286.

a. Reporting a Violation of University Policy

All forms of sexual misconduct, regardless of where they occur, are violations of Boston University’s policies. If a student knows or believes his or her assailant is a member of the Boston University community, the student may report the incident directly to the Dean of Students Office at 617-353-4126 or the Title IX Coordinator at 617-353-9286 or both. If the student reports the incident to another staff or faculty member at the University (including resident advisors), that faculty or staff member must report the incident to the Title IX Coordinator, unless the faculty or staff member is acting in his or her capacity as a clergy member, therapist or physician. The Title IX Coordinator oversees the University’s response to complaints of sexual misconduct in cases where a member of the University community is the complainant.

Students may also report allegations of sexual misconduct to any of the following University offices:
• Dean of Students’ Office of Judicial Affairs (617-358-0700)
• Behavioral Medicine (617-353-3569)
• Sexual Assault Response and Prevention Center (617-353-7277)

Each of these offices can assist students with finding other available resources, including medical care and counseling. In addition, each of these offices can assist with reporting allegations of sexual misconduct to law enforcement. A complainant may report an incident to law enforcement even if the incident has been reported to one of these offices. Similarly, a complainant is free to reach out to any of these offices even if he or she has already reported the incident to law enforcement. Additional resources are identified at http://www.bu.edu/safety/.

b. Reporting a Crime

Many forms of sexual misconduct, including sexual assault, domestic and dating violence, and stalking, are crimes. The University strongly encourages students who have been affected by sexual misconduct to report such misconduct as soon as possible, even if the student is unsure whether he or she will seek prosecution of the assailant. A report is not a commitment to prosecute.

Students may report allegations of sexual misconduct to the Boston University Police Department (“BUPD”) at 617-353-2110 or to local law enforcement or both.
Students who experience domestic violence, dating violence, sexual assault, or stalking should try to preserve physical evidence, which is crucial for effective prosecution, by refraining from bathing, brushing teeth, drinking, eating, douching or changing clothes until the evidence can be collected.


III. Confidentiality


Please note that this section applies only to complaints by students against students. The University must take all reasonable steps to investigate and respond to allegations of sexual misconduct, even when a complainant requests confidentiality. To the extent possible, the University will investigate and respond to the allegations consistent with requests for confidentiality; however, the University’s ability to respond may be limited in such a case. Still, if a complainant requests that the University not pursue an investigation or if the University is unable take disciplinary action against the alleged perpetrator because of a request for confidentiality, the University will pursue other steps to limit the effects of the alleged misconduct and prevent its recurrence. The University will abide by the wishes of the complainant (for confidentiality and/or not to pursue an investigation) unless the University, in its sole discretion, finds that the character of the incident raises the possibility of a continued threat. In some cases, it may also be necessary for the University to issue an emergency notification of the incident to the community; however, the notification will not include information about the complainant’s identity.

The University assures the adequate, reliable and impartial investigation of all complaints of sexual misconduct, with supervision by the University’s Director of Equal Opportunity. As a general rule, the University will not delay its investigation of an allegation of sexual misconduct due to other criminal investigations or other proceedings related to the allegations. The University may, at the request of law enforcement, temporarily delay the University’s investigation while the police gather evidence, but after such a temporary delay the University will resume its investigation of the allegations.

IV. Allegations of Sexual Misconduct Against Students


a. Jurisdiction

The University (often acting through Judicial Affairs) has jurisdiction over all allegations of sexual misconduct brought against University students. This jurisdiction extends to allegations of sexual misconduct that occur anywhere, including off-campus, and to allegations of sexual misconduct brought against any student, including graduate students. When an allegation involving a student is made to a faculty or staff member, the faculty or staff member will report the allegation to the Title IX Coordinator who will, in turn, report the allegation to BUPD and the Dean of Students office. Though BUPD or other law enforcement may investigate, the Title IX Coordinator will coordinate with the Dean of Students office to investigate the complaint.

b. Investigation Process

Sexual misconduct violates the University’s Code of Student Responsibilities (the “Code”), and the University employs the judicial processes outlined in Sections III, IV, and V of the Code, supplemented by the procedures below, to address allegations of sexual misconduct. Upon receipt of an allegation of sexual misconduct by a University student against another student, the Dean of Students or his or her designee will attempt to resolve the allegation as set forth in Section III.B of the Code. The Dean of Students will ensure that appropriate law enforcement is notified.

If the complainant requests confidentiality or asks that the complaint not be pursued, the University will take reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or not to pursue an investigation. The University will weigh the request for confidentiality against several important factors, including the seriousness of the alleged misconduct and the accused student’s right to receive information about the allegation. The University may redact the complainant’s name and other identifying information from any information provided to the accused, including the specific charge and the complaint or related materials. Where the University cannot take disciplinary action against an accused student because of a complainant’s insistence on confidentiality, it will pursue other steps to limit the effects of the alleged misconduct and prevent its recurrence.

Although the Code provides that the Dean of Students will endeavor to complete an investigation within 45 days, procedural complexities in investigations of allegations of sexual misconduct may require additional time and the Dean of Students will endeavor to complete such investigation within 60 days.

c. Interim Measures

The University will take appropriate steps to protect an individual who complains of sexual misconduct, as necessary, including taking interim steps before the final outcome of the investigation. For example, the Dean of Students may relocate an accused student’s residence or issue a “stay away” order to the accused student. In instances in which the allegations are made anonymously or the complainant does not wish to pursue recourse through the disciplinary process, the University will make reasonable efforts to address the allegations.

d. Retaliation

Retaliation, occurring either during or after the filing of a sexual misconduct complaint, is unlawful and in violation of University policy. If a complainant (or his or her family members or others, as appropriate) believes that the complainant is being harassed or retaliated against in any way as a result of alleging sexual misconduct, he or she should immediately notify the Title IX Coordinator at 617-353-9286.

e. Sanctions

Following a determination (whether initial or final) that sexual misconduct has occurred, the University will take immediate remedial action to prevent misconduct from recurring and to restore a positive environment. The University may take any action consistent with the Code, including but not limited to disciplinary probation, residential separation, suspension from the University or expulsion from the University.


V. Procedures


In all matters involving allegations of sexual misconduct, the University will use a “preponderance of the evidence” standard to determine whether a violation occurred. This standard requires that the evidence supporting a finding is more convincing than the evidence against the finding.

No form of mediation or other informal mechanism will be used to resolve allegations of sexual assault. An informal process will only be offered for resolving other types of sexual misconduct complaints when appropriate and on a voluntary basis. If the parties agree to an informal process, either party or the University may choose to end the informal process at any time and begin the formal complaint process.

Both the accused and the complainant will be afforded the same and timely access to any information that the University is aware will be used at any meeting or hearing. The University may redact the complainant’s name and other identifying information from any information provided to the accused, including the specific charge and the complaint or related materials.

The failure of the accused to participate in the disciplinary process will not prevent the Dean of Students from imposing a disciplinary sanction.

Both the accused and the complainant will receive contemporaneously, in writing, the outcome of any University disciplinary proceeding relating to sexual misconduct, including any appeal(s). In any instance in which the accused is allowed an appeal under the Code, the complainant will have the same appeal rights and the appeal will be conducted in an impartial manner.

In addition to the procedures set forth in the Code, the Dean of Students will adhere to the following procedures in addressing allegations of sexual misconduct against students:

1. The Dean of Students will give both the complainant and the accused student an opportunity to meet with him or her, accompanied by an advisor of their choice. If the Dean of Students conducts a meeting with the accused student at which the accused student is given an opportunity to present his or her side of the story, a similar meeting will take place with the complainant. The students will receive notice of any disciplinary meeting sufficiently in advance of the meeting to afford both the complainant and the accused student a reasonable opportunity to prepare a response.

2. Once the Dean of Students has determined whether there has been a Code violation and whether sanctions are appropriate, he or she will inform both the complainant and the accused of those determinations in writing.

3. Both the complainant and accused may appeal the Dean of Students’ findings to the Board of Student Conduct or the University Provost, per Sections IV and V of the Code. In addition, both the complainant and accused may appeal any sanctions imposed to the University Provost. If either party requests an appeal of the findings, it will be heard prior to any appeal of the sanctions.

a. Section IV of the Code: In the event of a hearing before a panel of the Board of Student Conduct, both the complainant and the accused shall each have the same rights to receive notice concerning such a hearing; to present evidence, testimony, and witnesses at the hearing; to provide any written statement on his or her behalf; to know the nature and source of the evidence and testimony presented against him or her; to rebut such evidence and testimony; and to be accompanied by an advisor, as set forth in the Code.

b. Section V of the Code: In the event of an appeal to the University Provost, both the complainant and the accused shall each have the same right to submit one written statement on his or her behalf and will be provided a reasonable opportunity to rebut such written statement. The University Provost shall have the discretion to conduct meetings with the complainant and the accused; if the University Provost conducts a meeting with one party, a similar meeting will take place with the other.


VI. Additional Resources


In addition to the resources listed above, there are other means for obtaining counseling and health, mental health, victim advocacy, legal assistance, and other services both on campus and in the community. More guidance is available at www.bu.edu/safety.

VII. Concerns


All members of the University community are encouraged to report any concerns about the University’s handling of sexual misconduct investigations to the University’s Title IX Coordinator, who is the Executive Director of the University’s Equal Opportunity Office (www.bu.edu/eoo). The Office is located at 19 Deerfield Street, 2nd floor and you may contact the Executive Director at (617) 353-9286. Individuals may also report concerns about the University’s handling of sexual misconduct investigations to the regional Office for Civil Rights, U.S. Department of Education, 5 Post Office Square, 8th floor, Boston, MA, 02110, (617) 289-0111.

Revised October 24, 2013