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SMU Policy

SEXUAL VIOLENCE POLICY

Samuel Merritt University holds that sexual violence has no place in the academic environment and the University will not tolerate it.  Additionally, under state and Federal laws, sexual violence (inclusive of, but not limited to: sexual harassment, sexual misconduct, dating violence, domestic violence, stalking and sexual assault of employees or students) is illegal.  Samuel Merritt University seeks to eliminate sexual violence through education and by encouraging faculty, staff, and students to report concerns or complaints.  The University takes the matter of sexual violence very seriously; indeed, the University and individual employees and/or students may be legally liable for acts of sexual violence. Therefore, any acts of sexual violence should be reported immediately to the Executive Director of Human Resources (Title IX Coordinator).  After a thorough investigation, anyone found to have violated this policy will be subject to disciplinary action —up to and including dismissal/discharge from the University.

The University uses an “affirmative consent” standard, whereas:

  • Consent is informed and an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.
  • Consent is voluntary.  It must be given without coercion, force, threats, or intimidation.  Consent is an expression of free will.
  • Consent is revocable.  Consent in some form of sexual activity does not imply consent to other forms of sexual activity.  Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion.  A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent.  Even in the context of a relationship, there must be mutual consent to engage in sexual activity.  Consent must be ongoing throughout a sexual encounter and can be revoked at any time.  Once consent is withdrawn, the sexual activity must stop immediately.
  • Consent cannot be given when a person is incapacitated.  A person cannot consent if she/he/ze is under the influence of drugs, alcohol, or medication, unconscious or coming in and out of consciousness.  A person cannot consent if she/he/ze is under the threat of violence, bodily injury or other forms of coercion.  A person cannot consent if his/her/hir understanding of the act is affected by a physical or mental impairment.

Definition of Sexual Misconduct
Sexual misconduct includes a range of behaviors used to obtain sexual contact against a person's will.  Sexual misconduct is defined as sexual contact without consent by someone you know or a stranger and includes:  intentional touching without consent, either of the victim or when the victim is forced to touch, directly or through clothing, another person's genitals, breast, groin, thighs or buttocks; rape (sexual intercourse without consent whether by someone you know or stranger); attempted rape; sodomy (oral or anal intercourse) without consent; or sexual penetration with an object without consent.

Definition of Sexual Harassment

1.     The prohibition applies to all staff employees and students, and in particular to supervisors (including direct supervisory and other management staff).  A sexual advance violates this policy regardless of whether the advance is expressly related to the affected employee’s/student’s employment/academic status. It is improper to make sexual advances, ask for, demand or seek by subtle pressure sexual favors or activity from an employee/student, or to subject another employee/student to verbal or physical conduct of a sexual nature where:

  • The submission to such behavior is a condition of any employment/academic opportunity, benefit, job retention, grade; or
  • The submission to or rejection of such conduct is used as a basis for employment/academic decisions; or
  • Such conduct has the purpose or the effect of unreasonably interfering with the individual’s work/academic performance; or
  • Such conduct creates an intimidating, hostile, or offensive work/academic environment.

2.     It is improper for an employee/student to make sexual advances or to offer or suggest sexual favors or activity in exchange or in consideration for any personnel/academic action.

3.     It is improper to retaliate against an employee/student for refusing a sexual advance or for refusing a request, demand or pressure for sexual favors or activity or to retaliate against an employee/student who has reported an incident of possible sexual harassment to the University or to any government agency.

4.     It is not possible to identify each and every act which constitutes or may constitute sexual harassment.  However, certain conduct is clearly improper and is strictly prohibited.  Persons engaging in this conduct, or other similar acts, will be subject to discipline up to and including dismissal from the University.  Such acts might include:

a.     Any unwanted, intentional touching of an employee/student by another may be sexual harassment and is prohibited.  Due to the possibility of misinterpretation of acts by other employees/students, the University discourages all roughhousing or physical contact, except that contact necessary and incidental to an employee’s job/student’s academic status. Further, certain kinds of physical conduct in the work/academic environment are particularly inappropriate and may be grounds for immediate discipline, including dismissal from the University. That conduct includes, but is not limited to:

  • Kissing or attempting to kiss an employee/student;
  • Touching or attempting to touch or pretending to touch the breasts, buttocks or genitals of an employee/student;
  • Physically restraining by force or blocking the path of an employee/student when accompanied by other conduct of a sexual nature;
  • Any other touching or attempted touching reasonably interpreted to be of a sexual nature.

b.     Sexual advances, unwelcome requests, demands, or subtle pressure for sexual favors or activity, lewd comments and sexual innuendoes are also prohibited. This conduct includes, but is not limited to:

  • Comments to an employee/student or others about the body of an employee/student which are intended to draw attention to the sex of the employee/student or can reasonably be interpreted to draw attention to the sex of the employee/student;
  • Comments to the employee/student or others about the sexual conduct, capability, or desirability of an employee/student;
  • Cat calls, whistles, or other conduct reasonably interpreted to be of a sexual nature.

c.     Sexually suggestive gestures are also prohibited.

d.     It is improper to subject employees/students to photographs, cartoons, articles, or other written or pictorial materials of a sexual nature after the employee/student has expressed his/her/hir displeasure with such activity. These materials may be offensive to the public as well and should not be on display in offices or public areas in any event.

e.     This policy is not intended to prohibit employees/students from asking other employees/students for social engagements.  However, repeated requests where prior social invitations have been refused can be interpreted as sexual harassment.  Employees/students should refrain from persistent invitations after an employee/student has indicated that such invitations are unwelcome.

 

Definition of Dating Violence
The term “dating violence” means violence committed by a person:

Who is or has been in a social relationship of a romantic or intimate nature with the victim; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship; the type of relationship; and the frequency of the interaction between the persons involved in the relationship

Definition of Domestic Violence
The term ‘‘domestic violence’’ includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.

Definition of Stalking
The term ‘‘stalking’’ means engaging in a course of conduct, regardless of medium used, that is directed at a specific person that would cause a reasonable person to— (A) fear for his/her/hir safety or the safety of others; or (B) suffer substantial emotional distress.

Definition of Sexual Assault
An offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. The conduct described in this policy is strictly prohibited.  If anyone, including non-employees/non-students, engages in such conduct, it is important that the conduct be reported to the Executive Director of Human Resources.  It is not possible for the University to enforce this policy if incidents of harassment are not reported.  The procedure to follow if the student feels that he/she/ze has been subjected to sexual harassment/sexual misconduct is set forth in this Catalog/Handbook.

Sexual Violence Complaint Procedure
The University has a compelling obligation to address allegations and suspected instances of discrimination, harassment, and misconduct, including sexual violence.  The following procedures are designed to allow for prompt and equitable resolution of sexual violence complaints.  The Title IX Coordinator (Executive Director of Human Resources) is responsible for investigating all complaints of sexual violence.  The University will take immediate steps to prevent reoccurrence of any sexual violence and to correct its discriminatory effects on the complainant and others, if appropriate.

The person should let the offending person know immediately and firmly that he/she/ze is rejecting the advance or invitation and/or finds the conduct offensive. The person should report the matter to the Title IX Coordinator (Executive Director of Human Resources) or to the Title IX Investigator (Assistant Vice President of Enrollment and Student Services). The Title IX Coordinator will assign a Title IX Investigator to conduct a complete investigation.  It is important that the person report everything to the investigator so a thorough investigation can be made, including providing witnesses and/or documentation from individuals who have first-hand knowledge of the situation.

Those who participate in the investigation of sexual assault, domestic violence, dating violence, or stalking, either as a complainant or a third-party witness, will not be subject to disciplinary sanctions for violations of the University’s code of conduct at or near the time of the incident if the violations did not place the health or safety of any other person at risk.

The person has the right to file a criminal complaint with the appropriate local police department.  The University can assist the person with this process.

To the extent possible, the complaint and investigation will remain confidential.  If a complainant insists that his/her name or other identifiable information not be disclosed to the accused, the University’s ability to respond to the complaint may be limited.

Retaliation is prohibited.  The University will take steps to prevent retaliation and also strong responsive action if it occurs.  If the person feels that a retaliatory action has been taken because he/she/ze has filed a complaint, that action should be reported as well.

The Title IX Investigator will investigate the matter promptly, thoroughly, and impartially.  The University will not delay conducting its own investigation because of a pending criminal complaint as the University has a responsibility to protect the person in their educational setting.

During the investigation, both parties will have an opportunity to present witnesses and other evidence.

Both the accused and the complainant may have an advisor/advocate of his/her/hir choice present for their portion of the procedures.  The complainant and/or the accused student is responsible for presenting his/her/hir own information, and therefore, advisors are not permitted to speak or to participate directly in any meeting or complaint procedure.  The standard of proof to be used shall be the preponderance of evidence standard (“more likely than not”).

Appropriate sanctions/discipline up to and including termination or dismissal from the University will be imposed if warranted.  Any incidents of further harassment or retaliation should be reported immediately to the Title IX Coordinator (Executive Director of Human Resources).

Both parties will be informed of the outcome of the complaint in writing.  Both parties can grieve the final decision of the Title IX Investigator by requesting a review in writing to the Title IX Coordinator (Executive Director of Human Resources) within five (5) working days of the decision.

The decision of the Title IX Coordinator (Executive Director of Human Resources) is final.

Samuel Merritt University Title IX Coordinator
Elaine Lemay
Executive Director of Human Resources
Samuel Merritt University
3100 Telegraph Avenue
Oakland, CA 94609
(510) 869-6739
elemay@samuelmerritt.edu

Campus Sex Offenses
Students, faculty, and staff are required to report sex offenses to the Assistant Vice President of Enrollment and Student Services.  As required by the Higher Education Amendments of 1992, the University provides an annual report of campus crime statistics, including all sex offenses.  See Campus Security Act of 1990 in the Federal and State Regulatory Policies section.

Policy on Sex Offenses, Violence and Offenders
The University will provide annually educational programming to promote the awareness of sexual misconduct, which may include rape, acquaintance rape and other forcible and non-forcible sex offences, domestic violence, dating violence, sexual assault.  Such educational programs may be done at the request of students, by security in an ad hoc program, or because of a campus concern.  In addition, the University strongly encourages all new students and new employees to complete its online primary prevention and awareness program.

If you are a victim of sexual violence, your first priority should be to get to a place of safety.  You should then obtain necessary medical treatment.  The University strongly advocates that a victim of sexual assault/violence report the incident in a timely manner to the Assistant Vice President of Enrollment and Student Services or Executive Director of Human Resources.

The report to a University official does not obligate the victim to prosecute nor will it subject the victim to scrutiny or judgmental opinions from employees and officers; but it ensures the victim can receive services offered by the University.  The Assistant Vice President of Enrollment and Student Services and others will assist the student in notifying these authorities if the student requests.

The University will take immediate steps to protect complainants even before a final outcome in the investigations, including, but not limited to, prohibiting the accused from having contact with the complainant, campus escorts, academic support services, counseling, additional counseling visits, course withdrawal without penalty, or other remedies as may be appropriate.

The University offers counseling services through the Student Health and Counseling (SHAC) center and through a contracted arrangement with Sutter EAP.  Counseling and support services outside the University system are available through Bay Area Crisis Centers.

University disciplinary proceedings, as well as special guidelines for handling cases of sexual misconduct, are detailed in the Catalog and Student Handbook (and listed above).  The handbook provides, in part, that the accused and the complainant will each be allowed to choose one person who can serve as an advisor/advocate throughout the complaint procedures. Both the complainant and the accused will be informed of the outcome of the hearing.  A student found guilty of violating the University’s sexual violence policy could be criminally prosecuted and/or may be suspended or expelled from the University for the first offense.