I. Policy Statement on Student Sexual Misconduct

Luther College is committed to creating and maintaining a safe and healthy environment where all members of the community—students, faculty, staff, and visitors—are treated with respect and dignity. Therefore, the college will not tolerate sexual misconduct in any form. Sexual misconduct is not only an act against an individual; it is also an act that affects the entire college community.

Maintaining a safe environment requires that any sexual behavior of students be consensual. Special emphasis is placed on violence prevention, providing support to those who may have been victimized, and ensuring enforcement of institutional policy and law. The college seeks to balance the rights, needs, and privacy of those students who may have been victimized, as well as those students who have been accused, while maintaining the health and safety of the campus community.

This policy describes prohibited sexual conduct in which a Luther student is involved, including sexual assault, sexual harassment and other forms of non-consensual sexual behavior; identifies resources and support provided to victims; establishes procedures for reporting incidents of sexual misconduct; and articulates the college’s commitment to preventing sexual misconduct and responding appropriately when incidents do occur. This policy is an elaboration of the Luther Code of Conduct. Sexual misconduct is a violation of the Luther Code of Conduct and is subject to the same jurisdiction, regulations, conduct procedures, and sanctions as described in the Code of Conduct and/or highlighted below.

Luther College encourages students who believe they have been the victims of sexual misconduct to report incidents to appropriate college authorities as described in part IV of this policy. Perpetrators of sexual misconduct will be subject to strict disciplinary action by the college, up to and including suspension, expulsion, or other appropriate sanctions. Retaliation against an individual who brings a complaint, participates in an investigation of sexual misconduct, or pursues legal action is prohibited and will not be tolerated.

II. Definitions

Sexual Misconduct
Sexual misconduct under this policy is defined as any unwanted sexual activity with another person who does not or cannot give consent, including but not limited to sexual assault. It represents a continuum of conduct from forcible sexual assault to other forms of pressure that compel individuals to engage in or be exposed to sexual activity against their will. It includes any physical contact of a sexual nature that is committed by either force or intimidation or through the use of a person’s mental or physical incapacity, including incapacitation caused by the use of drugs or alcohol.

The list of behaviors prohibited under this policy includes, but is not limited to, the following:

• Unwanted touching of the genitals, buttocks, or breasts that is intentional; other unwanted touching or groping
• Forcing/coercing someone to touch you or someone else in a sexual manner

Threatening to sexually harm someone

• Sexual assault or attempted sexual assault
• Ignoring a sexual limit that has been communicated
• Initiating sexual activity with a person who is unable to provide consent due to incapacitation from alcohol and/or drug consumption or other condition
• Unwanted penetration of an orifice (anal, vaginal, oral)
• Coercing or intimidating someone into sexual behavior
• Intentionally observing nudity or sexual acts of another person without the person’s knowledge or permission (voyeurism)

Sexual Harassment
Sexual harassment is a form of harassing conduct defined as unwelcome advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome and offensive. Sexual harassment is a violation of the Luther Code of Conduct. For detailed information, see the Discriminatory and Harassing Conduct Policies and Procedures.

Consent
Consent is defined as a freely and affirmatively communicated willingness to participate in sexual activity, expressed either by words or clear, unambiguous actions. Consent can only be given or implied by someone who acts freely, voluntarily, and with knowledge of the nature of the act involved. It is the responsibility of the initiator of the sexual activity to ensure he or she has the others person’s consent to engage in sexual activity. Consent must be present throughout the sexual activity by all parties involved. Consent may never be obtained through the use of force, coercion or intimidation, or if the victim is mentally or physically disabled or incapacitated, including through the use of drugs or alcohol. In addition, consent cannot be inferred from permission for one particular act; a prior sexual, romantic or marital relationship; or an existing sexual, romantic or marital relationship.

Luther College will make every effort to safeguard the identities of students who seek help and/or report sexual misconduct. While steps are taken to protect the privacy of victims, the college may need to investigate an incident and take action once an allegation is known, whether or not the student chooses to pursue a complaint.

On Campus Confidential Resources: Students who feel they have been the victim of any form of sexual misconduct may wish to seek confidential counseling or support. The following individuals are designated as confidential resources; they will seek to maintain information received as private and will not share confidential information with college officials or others, unless required to do so by law:

• Campus Pastors/Catholic Chaplain, College Ministries, x1040
• College Licensed Mental Health Counselors, Counseling Service, x1375
• College Nurses/Physicians, Health Service, x1045

On Campus “Mandatory Reporting” Resources: Students should be aware that almost all faculty/staff members and most offices on campus are considered “mandatory reporting resources.” Because the college takes allegations of sexual misconduct very seriously, we expect faculty and staff to report all allegations. The following mandatory reporting individuals and offices are specially equipped to follow up on allegations of sexual misconduct. These individuals and offices will do so with respect for the privacy of those allegedly involved in the incident:

• Harassing Conduct Officers:
• Dan Bellrichard, Dahl Centennial Union 102, 1253; Erin Flater, Valders 272C, x1632; Marty Berg, Dahl Centennial Union 204, x1289; Mark Johns, Campus House 105, x1347
• Hall Directors/Area Coordinators/Resident Assistants, residence halls
• Residence Life Office, Dahl Centennial Union, x1330
• Safety and Security Office, Dahl Centennial Union, x2111 (24 hours, seven days/week)

Decorah Area Confidential Resources: Students who feel they have been the victim of any form of sexual misconduct may also choose to seek out confidential counseling or support off campus. Resources include:

• Winneshiek Medical Center, 563-382-2911
• Domestic and Sexual Abuse Resource Center 24-Hour Crisis Line, 563-382-2989
• Decorah Police Department, 563-382-3667

Students have two general options for making a complaint of sexual misconduct. Students may make an on-campus complaint in person (followed up in writing by the student or by a representative of the college) according to the procedures listed below. Students may also make a formal complaint with the Decorah Police Department. Finally, students may also pursue both complaint options concurrently.

On-Campus Reporting

1. Complaints of sexual misconduct may be made by students, faculty members, or staff members to one of the Harassing Conduct Officers, a Vice President or Dean, the Human Resources Office, a Residence Life staff member, or the Safety and Security Office. Please note: If a complaint is made to another individual or office, the Complainant risks the possibility that the alleged Code of Conduct violation will not come to the attention of proper college officials and may, therefore, not be acted upon.

2. Sexual misconduct is a violation of the Luther Code of Conduct. The Code of Conduct outlines the procedures for addressing complaints against students including a description of the rights of Complainants and Respondents, student code authority and policy jurisdiction, prohibited behaviors, conduct procedures, possible sanctions, interim suspension, and the appeals process. Sexual misconduct cases are handled in a manner similar to the process outlined in the Code of Conduct.

3. Additional procedures related to managing complaints of sexual misconduct follow:

a. Complaints of sexual misconduct will be promptly investigated. For most complaints, investigations will be done by the Student Conduct Coordinator or a Harassing Conduct Officer if the Respondent is a student, and by a representative of the Human Resources Office or a Harassing Conduct Officer if the Respondent is a faculty or staff member.

b. If the Respondent is a student, the person investigating the complaint will prepare a written fact-finding report in consultation with the Vice President and Dean for Student Life. The investigation will generally include, at a minimum, separate interviews of the Complainant and the Respondent. The Complainant and the Respondent will be permitted to have an advisor/support person (not an attorney) present during their respective interviews. The investigator will also gather and review other evidence as deemed necessary.
c. The Vice President and Dean for Student Life and/or the Student Conduct Coordinator shall, based on the available evidence including the fact-finding report and the information gathered by the investigator, make an initial determination that the charges either have merit or do not have merit. They may, at their discretion, conduct additional investigations and/or institute a formal hearing before the Interpersonal Violence Hearing Board.
d. If the charges do have merit, the Vice President and Dean for Student Life and/or the Student Conduct Coordinator may resolve the charges administratively by mutual consent of the parties involved on a basis acceptable to the Vice President and Dean for Student Life and/or the Student Conduct Coordinator. Such disposition shall be final, and there shall be no subsequent proceedings.
e. If the charges do have merit and cannot be resolved administratively, a formal hearing is held in a manner specified in the Code of Conduct for all college hearing boards. The complaint will be heard by the Interpersonal Violence Hearing Board, a specially trained group consisting of four students and four faculty/staff members. At least six members of the Interpersonal Violence Hearing Board must be present for each hearing; a simple majority vote is sufficient for reaching a decision.
f. The Complainant and the Respondent will be permitted to each have a support person (not an attorney) present during the hearing; however, this support person will not participate directly in the hearing.

4. A complaint of sexual misconduct will be resolved as follows:

a. The charges may be resolved administratively (including the imposition of sanctions), by mutual consent of the parties involved, on a basis acceptable to the Vice President and Dean for Student Life and/or the Student Conduct Coordinator.
b. The Interpersonal Violence Hearing Board may find that the Code of Conduct/Student Sexual Misconduct Policy has been violated; the Student Conduct Coordinator, in consultation with the hearing board, may impose disciplinary sanction(s) as outlined in the Code of Conduct and/ or take other appropriate action.
c. The Interpersonal Violence Hearing Board may find that the Code of Conduct/Student Sexual Misconduct Policy was not violated; the complaint will be dismissed.
d. The Interpersonal Violence Hearing Board may conclude that information about the case was insufficient or contradictory and a decision cannot be reached; the complaint will be dismissed.

5. Complainants and Respondents will be notified about the Interpersonal Violence Hearing Board decision.

A decision reached administratively by the Vice President and Dean for Student Life and/or the Student Conduct Coordinator, a decision reached by the Interpersonal Violence Hearing Board, and/or a sanction imposed by a Student Conduct Coordinator may be appealed by the Respondent(s) or Complainant(s) to the Campus Appeals Board within five class days of the decision. Such appeals shall be in writing and shall be delivered to the Student Conduct Coordinator or his/her designee. The entire appeals process is described in the Code of Conduct.

Approved by Community Assembly, May 5, 2009
Reviewed by Legal Counsel, June 24, 2009