Consent is clear, active, and affirmative permission to act, either by words or actions. The person who initiates sexual activity is responsible for obtaining the other person’s consent for that activity each and every time. The existence of a dating relationship, or prior intimate relationships, does not imply consent, and once consent has been given, it can be withdrawn at any time. Consent can never be assumed or implied. The absence of “no” or silence does not mean that consent has been given. Additionally, consent to one form of sexual activity does not imply consent to other forms of sexual activity. Consent is not present when coercion, manipulation, intimidation, or force is used. Consent can not be obtained under duress as described below:
- Consent cannot be obtained by force, including:
- physical violence, meaning that a person is exerting control over another person through the use of physical force. Examples of physical force include hitting, punching, slapping, kicking, restraining, choking, and brandishing or using any weapon.
- threats, meaning words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples include threats to harm a person physically, to reveal private information to harm a person’s reputation, or to cause a person academic or economic harm.
- intimidation, meaning an implied threat that menaces or causes reasonable fear in another person. A person’s size alone does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g. blocking access to an exit).
- coercion, meaning the use of an unreasonable amount of pressure to gain sexual access. Coercion is more than an effort to persuade, entice, or attract another person to have sex. When a person makes a clear decision not to participate in a particular form of sexual contact or sexual intercourse, a decision to stop, or a decision not to go beyond a certain interaction, continued pressure can be coercive. In evaluating whether coercion was used, the College will consider: (a) the frequency of the application of the pressure, (b) the intensity of the pressure, (c) the degree of isolation of the person being pressured, and (d) the duration of the pressure. Coercion includes continued pressure after an individual has made it clear that they do not want to engage in the behavior.
- Consent is not present when an individual is incapacitated. An incapacitated individual is someone who cannot make rational, reasonable decisions because that person lacks the capacity to understand the “who, what, when, where, why, or how” of a sexual interaction. This includes a person whose incapacity results from a disability, sleep or lack thereof, involuntary physical restraint, unconsciousness, or use of alcohol or other drugs. Every individual may manifest signs of incapacitation differently; typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional distress, vomiting, or incontinence. The impact of alcohol and other drugs varies from person to person, and if there is any doubt as to the level or extent of the other person’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.
- Being impaired by alcohol or other drugs is not a defense to any violation of this policy, including failure to obtain consent. In evaluating consent in cases of alleged incapacitation, the College seeks to determine 1) if the person initiating sexual activity knew that the other participant was incapacitated and 2) if not, would a reasonable person have known that the other participant was incapacitated. If the College determines that either of these statements are true, consent was absent.
- Consent is never present if an individual is under the legal age of consent (17 in the State of Texas).
Students may be concerned about reporting sexual misconduct believing that their own behavior might subject them to disciplinary action (e.g., if a reporting participant or witness is underage and was using alcohol or drugs at the time of the incident). Witnesses and reporting participants should be assured that the focus in matters of sexual misconduct is always on the reported behavior, not on whether the witness or reporting participant was using alcohol or drugs at the time. Individuals are encouraged to come forward and report such conduct regardless of the surrounding circumstances.
In situations involving allegations of sexual misconduct, Austin College will seek to make the sexual misconduct allegation the primary focus of any investigation or disciplinary action. The College will not pursue disciplinary action against reporting participants, witnesses or a third party for disclosure of their own personal consumption of alcohol or drugs at or near the time of the incident provided that any such violation did not harm or place the health and safety of any other person at risk. It should be noted that the use of alcohol or drugs does not excuse sexual misconduct and a person who has been incapacitated through the use of alcohol or drugs (or by any other means) cannot give consent to sexual activity.
Because breaches of confidentiality compromise the ability of Austin College to investigate and resolve claims of harassment and discrimination, the Title IX Coordinator will attempt to protect the confidentiality of harassment and discrimination proceedings to the extent reasonably possible.
On campus, complete confidentiality can only be guaranteed when a concern is shared with a College-designated confidential source (defined herein) and when the concern does not involve a continuing threat of serious harm to self or others as determined by the Title IX Coordinator.
A list of confidential resources on and off campus is available. The College is obligated to investigate all allegations that may constitute harassment or discrimination. Any person seeking information or guidance concerning potential harassment or discrimination should be advised that the College may need to act once informed of an allegation, whether or not the person wants to pursue a complaint.
D. Academic Freedom and Harassment
Austin College is committed to principles of free speech and upholding the tradition of academic freedom. This policy is not intended to restrict teaching methods or freedom of expression, nor will it be permitted to do so. The proper exercise of academic freedom does not include harassment or discrimination as defined by this policy.
Title IX Coordinator: This individual is responsible for the oversight of this policy.
Informing Participant: Any person who shares information with the College regarding a possible violation of this policy.
Reporting Participant: An individual who provides notice to the College that they have experienced one or more acts of sexual misconduct described in this policy. If necessary the College can assume the role of reporting participant.
Responding Participant: Any individual who is alleged to have carried out one or more of the prohibited acts defined in this policy.
Process Advisor: The College maintains a list of limited reporter employees who are trained to assist participants understand this policy and the resolution processes. These individuals are appointed by the College. They will report the incident to the Title IX Coordinator; however, they are not required to report personally identifiable information about the reporting or responding participants. Not providing identifying information may limit the College’s ability to conduct a thorough investigation and pursue disciplinary action. A process advisor is not a responsible employee as defined in this policy.
Responsible Employees: These persons are College employees who have the duty to report incidents of sexual violence or other misconduct, or who a student or employee could reasonably believe has the authority or duty. All College employees and volunteers (defined as individuals having signed such forms in the current academic year) are considered responsible employees and have an obligation to report any knowledge of a sexual misconduct incident to the Title IX Coordinator or designee. A report to a responsible employee constitutes a formal report to the College and generally obligates the College to investigate the incident and to take appropriate steps to address the situation. These employees cannot guarantee confidentiality due to Austin College’s responsibility to provide a safe campus environment. Reports made to Campus Police will also be reported to the Title IX Coordinator.
Responsible employees include: faculty, administrative staff, coaches, campus police, area coordinators, faculty mentors, communication/inquiry student leaders, resident assistants, and resident language house assistants. Process advisors are limited reporters and therefore are not responsible employees under this definition.
College-appointed work-study students, student-graduate assistants, undergraduate teaching assistants, other student paraprofessionals, and peer leader appointees are exempt from this definition.
Employee Mandatory Reporting: (Texas SB 212) All employees of Austin College who, in the course and scope of employment, witnesses or receives information regarding the occurrence of an incident that the employee reasonably believes constitutes sexual harassment, sexual assault, dating violence, or stalking and is alleged to have been committed by or against a person who was a student enrolled at or an employee of the institution at the time of the incident shall promptly report the incident to the institution’s Title IX Coordinator, or Deputy Title IX Coordinator.
That report must include all the information concerning the incident known to the reporting person that is relevant to the investigation and, if applicable, redress of the incident, including whether an alleged victim has expressed a desire for confidentiality in reporting the incident.
An employee Austin College who has been designated by the college to as a person with whom students may speak confidentially concerning sexual harassment, sexual assault, dating violence, or stalking or who receives information regarding such an incident under the circumstances that renders an employee’s communications confidential or privileged under other law shall, in making a report, state only the type of incident reported and may not include information that would violate a student’s expectation of privacy.
Exceptions to the Employee Reporting Requirement:
1) When the person is a victim of sexual harassment, sexual assault, dating violence, or stalking. (you are not required to report your own experience)
2) When the disclosure was made at a public awareness event on sexual harassment, sexual assault, dating violence, or stalking, and the event was sponsored by Austin College, or by a student organization affiliated with Austin College.
Failure to Report or False Report:
It is a violation of Texas Law & Austin College policy for an employee who is required to make a report to fail to report to the Title IX Office. The State of Texas has determined that an employee commits an offense if: 1) they are required to make a report & knowingly fails to make a report; or 2) with the intent to harm or deceive, knowingly makes a report that is false. These offenses are classified as Class B Misdemeanors, which can be upgraded to a Class A Misdemeanor at trial.
As is required by Texas Law, Austin College shall terminate the employment of an employee whom the institution determines in accordance with the institution’s disciplinary procedure to have committed the offense of not making a report they knew of or making a false report.
Witnesses: The reporting and responding participants have the right to identify any individuals who may be witnesses to the conduct alleged in a formal complaint. Participants may provide an explanation the witness’s relevance to this investigation at the time the witnesses are identified to the investigator(s). Participants should be aware that it is possible for both reporting and responding participants to list the same people as witnesses on their behalf. Witnesses are expected to cooperate and speak the truth. Witnesses should not be intimidated, threatened or improperly influenced in any way by either participant or through others individuals (e.g. friends, family members, attorneys, social media, etc). Any attempt to threaten, intimidate or otherwise improperly influence the recollection of a witness will result in a separate disciplinary action by the College. The investigator(s) will attempt to interview any witnesses identified by the participants that the investigator(s) deems to be relevant to the resolution of the complaint. As members of the Austin College community, students and employees are expected to cooperate with and participate in the investigation process.
Attorneys: Although not necessary, the participants have the right to seek the assistance of a private attorney at their own expense regarding a complaint. This policy and related processes do not attempt to create a courtroom environment and attorneys are not permitted to actively participate in the resolution process. Attorneys will be considered support persons (described below) during the resolution process. Participants should seek legal advice about how this disciplinary process could impact any criminal case in which they are or may become involved. Austin College will conduct its own investigation and resolution of any complaint in accordance with this policy, regardless of whether the alleged misconduct is also being pursued through the criminal justice system.
Confidential Resources: Medical professionals, professional, licensed counselors and the College chaplain are not required to report any information concerning an incident without the participant’s permission.
Counseling Services – Adams Center – 903.813.2247
College Chaplain – Wynne Chapel – 903.813.2220
Medical Professional – Adams Center – 903.813.2247
F. Support Person(s)
Each participant in a sexual misconduct investigation is entitled to one support person of their choosing to accompany and assist them throughout the campus resolution process. The support person can be a friend, family member, attorney, faculty member, or any other individual a participant selects who is willing, eligible, and available. A support person cannot be otherwise involved in the process.
Participants are entitled to be accompanied by their support person in all meetings and interviews at which participants are requested to be present. The support person may help their participant prepare for each meeting.
All support persons are subject to the same campus rules, whether or not they are attorneys. They may not present on behalf of their participant at any point during the process including meetings and interviews. They may confer quietly with their participant as necessary, as long as it does not disrupt the process. Support persons are expected to refrain from interference with the College’s investigation and resolution. Support persons who step out of their role or otherwise violate this policy during the campus resolution process will be subject to removal as a support person.
The College expects the support persons to adjust their schedules to allow them to attend College meetings, interviews, or other necessary events when scheduled. The College does not typically change such scheduled meetings to accommodate a support person’s ability to attend. Other accommodations for participation may be considered (e.g. phone, Skype).
Participants must inform the Title IX Coordinator of the identity of their support person. Participants and the support person must provide timely notice of a change in support persons to the Title IX Coordinator. Prior to attending any interviews, the support person will be required to agree to confidentiality/non-retaliation, agreeing not to disclose or discuss anything relating to the formal report with anyone other than those authorized to see or hear such information under this process. A participant may change support persons or a support person may choose to withdraw from their role during the process for any reason.
Any person may file a report of sexual misconduct through this process against an Austin College student, employee, or third party, regardless of where the alleged sexual misconduct occurred.
The reporting participant need not be an Austin College student. If the person bringing the report is not a current student or the alleged conduct did not occur on campus, at a college-affiliated location, or at a college-sponsored event, the matter will be referred to the Title IX Coordinator for a determination regarding whether the College can exercise jurisdiction over the matter. In cases where Austin College has exercised jurisdiction, the College will investigate the incident of sex/gender-based harassment or discrimination to the best of its ability, regardless of location.
H. College Initiated Investigations
Austin College may independently initiate a disciplinary investigation/action against a person under this resolution process. In this type of investigation or action, the College will act as the reporting participant in the resolution of a sexual misconduct report against a person. Such reports will proceed under the process outlined herein and may result in disciplinary action as if the reporting participant were a student or employee.
I. Timing of Reports
There is no time limit for the submission of a report alleging sexual misconduct. A report received after the semester has ended or during a college break or holiday may result in a delay of the resolution process until the beginning of the subsequent semester or return to college operation. The College’s ability to provide effective sanctions for violations of this policy is limited once the responding participant is no longer enrolled at, employed by, or serving as a third-party at Austin College.
Austin College reserves the right to initiate an investigation of a report immediately when necessary to protect the interests and safety of the Austin College community, even when the incident takes place after the end of the semester.
J. Intentional Presentation of False Information
Participants in this resolution process must present, in good faith, truthful and accurate information to those involved in ensuring a fair process. Knowingly making false statements or presenting inaccurate information is unacceptable and will result in a separate disciplinary action regarding that conduct. Please note that filing a report or providing information which a participant or witness genuinely believes is accurate, but which is ultimately dismissed due to insufficient evidence or found to be untrue, does not constitute the intentional presentation of false information.
K. No-Contact Orders between Participants
When the Title IX Coordinator receives a report, a no-contact order may be issued barring any communication between the reporting participant and the responding participant. This order prohibits any direct or indirect contact between either of the participants. Indirect contact includes a participant contacting the other participant through other people (friends, family, attorneys) in any way, including social media. The Title IX Coordinator will work with participants involved in this resolution process to help facilitate the no-contact order between the participants, so that they may attend classes, perform work-related tasks and use college facilities as appropriate. A no-contact order may be extended after the conclusion of the resolution process at the request of either participant. In cases where a demonstrated violation of this order has been shown, the participant who violated the non-contact order may be separated from the College pending the remainder of the resolution process. Austin College police are able to provide information and assistance to students or employees who wish to seek a protective order from the courts.
L. Parental Notification
Since Austin College views students as adults, parents and guardians will not be notified when a formal complaint is filed under this policy. Parents of minors who are not students at Austin College may be notified as determined by the Title IX Coordinator. Students are encouraged to inform their parent(s) or guardian(s) if they are involved in a disciplinary action and should refer them to the Title IX Coordinator for questions.