Wilkes University

Sexual Misconduct Policy and Procedures

Purpose and Scope of the Policy

Wilkes University prohibits all forms of sexual misconduct. The University conducts programs to educate the campus community regarding prevention and issues surrounding sexual misconduct and assisting victims. In addition, the University has established policies and procedures to adjudicate cases involving alleged sexual misconduct and support systems for victims.

As a recipient of Federal funds, the University is required to comply with Title IX of the Higher Education Amendments of 1972 along with other applicable laws, which prohibit discrimination on the basis of sex in education programs or activities. Sexual harassment and sexual misconduct, as defined in this policy, are forms of sexual discrimination prohibited by Title IX. The protections of Title IX apply to all Wilkes University students, faculty and staff, as well as third parties participating in University programs and activities.

When the responding party is a member of Wilkes University, the Sexual Misconduct Policy and Procedures are applicable regardless of the status of the reporting party.

Where the Respondent is a Student

The Sexual Misconduct Policy and Procedures for Students will be utilized to process the report of gender discrimination. These procedures can be found in the Student Handbook, or on the web here.

Where the Respondent is a Faculty/Staff Member

The Policies and Procedures outlined below will be utilized to resolve the complaint in a prompt and equitable manner.

  1. Where the Respondent is a Third-Party

The University’s ability to take appropriate corrective action against a Third-Party will be determined by the nature of the relationship of the Third-Party to the University. The Title IX Coordinator and Deputy Title IX Coordinator(s) will determine the appropriate manner of resolution consistent with the University’s commitment to a prompt and equitable process consistent with federal law, guidance, and this Policy.

This policy applies when the conduct takes place while on University property, at University sponsored events and activities, and at off-campus programs including but not limited to study abroad programs, internships, athletic events and travel. Additionally, this policy applies to off-campus conduct that violates the policy and has the effect of interfering with or limiting one’s ability to participate in or benefit from an educational or work-related program/activity, or if the conduct has the potential to adversely affect a substantial University interest.

When a report of sexual harassment and/or sexual misconduct is brought to an appropriate University official’s attention, the University will take prompt, effective, and thorough steps to stop the harassment, eliminate any hostile environment, prevent its recurrence and as appropriate, remedy its effects.

Notice of Non-Discrimination

Wilkes University is committed to providing a welcoming environment for all members of our community and to ensuring that all educational and employment decisions are based on individuals' abilities and qualifications.

Wilkes University prohibits discrimination in its educational programs, employment, admissions or any activities on the basis of race, color, national or ethnic origin, age, religion, disability, pregnancy, gender, gender identity and/or expression, sexual orientation, marital or family status, military or veteran status, genetic information, or any other characteristic protected under applicable federal, state or local laws. Discriminatory conduct including sexual harassment and other sexual misconduct or violence such as rape, sexual assault, sexual exploitation and coercion will not be tolerated.

Consistent with this principle, Wilkes University will comply with state and federal laws such as the Pennsylvania Human Relations Act or other applicable state law, Title IX, Title VI and Title VII of the Civil Rights Act, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination in Employment Act of 1967, the Ethnic Intimidation Act of 1982 (P.L. 537-154) and other laws that prohibit discrimination.

Any member of the Wilkes University community has the right to raise concerns or make a complaint regarding discrimination under this policy without fear of retaliation.

Prohibited Conduct

For the purposes of this policy, sexual misconduct, which can occur between people of the opposite sex or people of the same sex, includes but is not limited to:

Sexual Harassment: Any unwelcome sexual or gender-based conduct such as sexual advances (verbal or physical), requests for sexual favors, or other verbal or physical conduct of a sexual nature when:

(1) submitting to or participating in the conduct is either explicitly or implicitly a term or condition of an individual’s employment or educational achievement; or

(2) the conduct interferes with or is intended to interfere with work or education; or

(3) if the conduct creates an intimidating, hostile or offensive educational or work environment. A single instance of sexual misconduct may be sufficiently severe to create a hostile learning environment.

Sexual Assault: Defined as any non-consensual attempted or completed sexual contact and/or intercourse. Sexual Assault consists of (1) Non-Consensual Sexual Intercourse and (2) Non-Consensual Sexual Contact.

(1) Non-Consensual Sexual Intercourse - A person commits sexual assault when that person engages in sexual intercourse with a complainant without the complainant's consent. This includes the penetration of the vagina or anus of another individual with any body part or object without consent, or makes oral penetration with a sex organ without consent.

(2) Non-Consensual Sexual Contact - Includes the deliberate touching of a person’s intimate parts (including genitalia, groin, breast or buttocks), or using force to cause a person to touch his or her own or another person’s intimate parts.

Sexual Exploitation: Conduct that exploits another person in a sexual and non-consensual way, including but not limited to a visual or auditory recording of sexual activity that is made without explicit consent; sharing such a recording without explicit consent; exposure of one’s body in an indecent manner; inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity; allowing others to view sexual activities without the consent of all the participants; and voyeurism (observing the naked bodies or sexual acts of others, especially from a secret vantage point without consent).

Intimate Partner Violence: Includes any act of violence or threatened act of violence that occurs between individuals who are involved or have been involved in a sexual, dating, spousal, domestic, or other intimate relationship. Intimate Partner Violence may include any form of the prohibited conduct under this Policy.

Stalking: A course of conduct or repeatedly committed acts or communications toward another person, including following the person without proper authority under circumstances which demonstrate either an intent to place the other person in reasonable fear of bodily harm or causing substantial emotional distress.

Examples: unwelcome and persistent electronic messages, phone calls, gifts, and other forms of observation.

Retaliation: Acts or attempts to retaliate or seek retribution against anyone involved in or connected to an allegation and/or resolution of sexual harassment or sexual misconduct.

Other Definitions

Complicity: Complicity is any act taken with the purpose of aiding, facilitating, promoting or encouraging the commission of an act of prohibited conduct under this Policy by another person.

Consent: For the purposes of this Policy, consent to a sexual act is a clear expression of permission and agreement. Consenting persons must act freely, voluntarily, and have knowledge of the act or transaction involved. Consent will not be implied by silence or mere passivity from a state of incapacitation or unconsciousness. Lack of consent is implied if there is a threat of violence, if violence is in fact used, or if the respondent has taken advantage of a position of influence which that person has over the complainant. Non-consent to a sexual act is a lack of clear expression of consent to a sexual act.

Gender-based discrimination: Occurs when someone is treated adversely because of, or on the basis of their gender or sex. Gender/sex discrimination includes sexual harassment, sexual assault and other forms of misconduct as well as discrimination or harassment of a person based on the person’s nonconformity with gender stereotypes.

Hostile Environment: A hostile environment is created when sexual harassment is:

  • Severe, or
  • persistent or pervasive, and
  • objectively offensive, such that it: unreasonably interferes with, denies, or limits someone’s ability to participate in or benefit from the University’s educational or employment programs.

Incapacitation: Defined as the physical and/or mental inability for individuals to make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g. to understand the “who, what, when, where, why or how” of their sexual interaction). Incapacitation is a state beyond drunkenness or intoxication when an individual is under the influence of drugs or alcohol to the degree that judgment is significantly impaired.

Example: In evaluating consent in cases of alleged incapacitation, the University asks two questions: (1) Did the person initiating sexual activity know that the other party was incapacitated? and if not, (2) Should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “YES,” consent was absent and the conduct is likely a violation of this policy.

Sexual Misconduct Review Team: Although a report of sexual misconduct may come in through many sources, the report will be promptly referred to a Sexual Misconduct Review Team (“SMRT”) to ensure consistent application of this Policy and Procedures to all individuals and allow the University to respond promptly and equitably to eliminate harassment, prevent its recurrence and remedy its effects.

Members of this interdepartmental Sexual Misconduct Review Team may include: (1) the Title IX Coordinator (facilitator); (2) the Deputy Title IX Coordinator for faculty/staff (and/or Deputy Title IX Coordinator for students depending on the circumstances reported and the status of the complainant and the respondent); (3) the Director of Public Safety (or other designated representative); and (4) the Provost or the Vice President for Student Affairs (or other University administrators deemed necessary depending on the circumstances).

In addition to meeting to discuss a report made under this Policy, the SMRT will meet periodically at pre-determined times to stay abreast of the current campus culture and address patterns, issues and concerns that may arise.

Support Services

Wilkes University offers support services victims which include, but are not limited to the following:

  • Accompaniment to the hospital (if desired).
  • Assistance in reporting the incident to the local police department (if desired).
  • Assistance on how to obtain a Protection from Abuse or Sexual Violence Protection Order.
  • Access to ongoing information including criminal and University policy options as well as support and advice from campus and/or off campus counselors. Please note that information shared with campus and off campus counselors is confidential; however, alleged sexual misconduct cases brought to the attention of the University through non-confidential sources must be addressed and/or investigated. Efforts will be made to honor confidentiality but cannot be guaranteed.
  • Access to the Employee Assistance Program
  • Accommodations to minimize contact with the alleged assailant.
  • Protection from retaliation. Retaliation against a person who files a complaint or participates in an investigation is prohibited by University policy, and by state and federal law.
  • A full explanation of the investigation adjudication process.
  • Access to a Title IX coordinator. The Title IX coordinator will serve as an impartial observer to assist with any questions or concerns that they may have beginning from the time immediately following the alleged misconduct, through the investigation, outcome, and any appeal.

Staff Responsibilities and Contact Information

All faculty and staff members who do not work within the Health and Wellness Services Office are designated by Wilkes University as “responsible employees”. Title IX requires all responsible employees “who know or reasonably should know of possible sexual violence” to report the information to the appropriate designated officials.

Responsible employees who become aware of an alleged episode of sexual misconduct are obligated to report all of the relevant facts pertaining to the incident (including names, dates, times, and locations) to the Title IX Coordinator, or a Deputy Title IX Coordinator. Once an incident is reported, confidentiality will be respected based on the reporting party’s wishes, however, there may be situations when confidentiality cannot be guaranteed depending on the nature of the incident and potential threat to the campus community.

The University recognizes that circumstances related to alleged violations may cause employees to feel uncomfortable making a report in person and has established a confidential reporting mechanism to address this issue (see Confidential Reporting Mechanism here).

The Assistant Vice President & Chief Human Resources Officer, in conjunction and cooperation with the Title IX Coordinator will investigate the case; inform the complainant (alleged victim) and respondent (accused) of rights and processes; prepare all documents relative to the case; and notify involved parties of the outcome of the investigation. A designee will serve in this role in the Assistant Vice President & Chief Human Resources Officer’s absence.

Coordinator

Deputy Coordinator

Deputy Coordinator

Samantha Hart

Kristin Pitarra

Phillip Ruthkosky, Ph.D.

Title IX Coordinator

Human Resources Director

Associate Dean, Student Development

10 East South Street, Suite A

10 East South Street, Suite A

2nd Floor, Passan Hall

Wilkes-Barre, PA 18766

Wilkes-Barre, PA 18766

Wilkes-Barre, PA 18766

Phone: (570) 408-3842

Phone: (570) 408-2034

Phone: (570) 408-4108

While the Title IX Coordinator has ultimate oversight responsibility for all Title IX complaints, the Deputy Coordinator(s) will provide direct guidance and supervision in allegations of sexual misconduct involving employees. When an allegation of sexual harassment or violence occurs that involves a student and a member of the University’s staff/faculty or contracted worker, the Title IX Coordinator and Deputy Coordinator(s) will work collaboratively with the appropriate department supervisors.

The Title IX Coordinator acts with independence and authority free of conflicts of interest. To raise any concern involving a conflict of interest/bias by the Title IX Coordinator, contact the Special Assistant to the President, External Affairs. To raise concerns regarding a potential conflict of interest/bias with any other administrator involved in the Sexual Misconduct Policy and Procedures, please contact the Title IX Coordinator. If it is determined that the individual cannot perform their responsibilities fairly and impartially, they will be recused on the basis of demonstrated bias and/or conflict of interest.

Reporting an Incident of Sexual Misconduct

Emergency Services and Immediate Care

If you believe you are a victim of any form of sexual misconduct, or witness to any form of sexual misconduct:

  • Get yourself or the alleged victim to a safe place as soon as possible
  • Seek immediate medical attention
  • Call 911
  • Notify the Public Safety Office at 570-408-4999 or Human Resources at: 570-408-4631
  • Notify the Title IX Coordinator at: 570-408-3842
  • File a report with the Public Safety Office, Human Resources Department, or the Title IX Coordinator

Preserve any evidence (paper bags are best). Once a feeling of safety is achieved, take every effort to save anything that might contain the offender’s DNA. Therefore, a victim should not:

  • Bathe or shower
  • Use the restroom
  • Change clothes
  • Comb hair
  • Clean up the crime scene
  • Move anything the offender may have touched

Report to the University

Allegations of sexual misconduct are to be reported to the Assistant Vice President & Chief Human Resources Officer or the Title IX Coordinator. There is no time limit with regard to reporting; however, complainants are encouraged to proceed as quickly as possible. Evidence, witnesses, and even the respondent may not be available after a period of time.

The Assistant Vice President & Chief Human Resources Officer (or designee) will work in conjunction with other University offices to accommodate any necessary workplace changes. Once the immediate necessities have been addressed, options available to the complainant with regard to University adjudication and criminal procedures will be explained.

Confidentiality:

Reporting parties have the option to request the school maintain their confidentiality or that the complaint not be pursued. The University will take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or that the complaint not move forward. Although the University cannot completely ensure confidentiality, the Title IX Coordinator/Deputy Title IX Coordinator will evaluate the request in the context of the University’s responsibility to provide a safe and nondiscriminatory environment for all members of the community.

Employees who wish to seek confidential support may contact a professional counselor through the University’s Employee Assistance Program at:

The Employee Counseling Service
Family Service Association of Wyoming Valley
31 West Market Street
Wilkes-Barre, PA 18701-1304

(570) 823-5144

Employees may also seek confidential counseling off campus at:

The Victims Resource Center
71 North Franklin Street
Wilkes-Barre, PA 18701
(570) 823-0765

Retaliation:

Retaliation against a person who files a complaint or participates in an investigation is prohibited by University policy, and by state and federal law.

Any type of retaliation against the complainant, the respondent (other than discipline that may be imposed by this policy), witnesses, members and others associated with the process will be considered a conduct violation.

Report to the Police

Options available to the reporting party with regard to University adjudication and criminal procedures will be explained. Every individual reporting sexual misconduct to the University, also has the option to report to the local police department and University officials will assist in contacting the police if the reporter desires. It is the reporting party’s decision to participate in the University process, a criminal process, both or neither

Filing A Complaint with the Office of Civil Rights

The Department of Education’s Office for Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972, which prohibits sex discrimination in programs or activities that receive federal financial assistance from the Department of Education.

Individuals who believe they were discriminated against on the basis of race, color, national origin, sex, disability, or age can file a complaint with the Office of Civil Rights at the information provided below:

Mail or Facsimile:

Office for Civil Rights,
Philadelphia Office
U.S. Department of Education
The Wanamaker Building
100 Penn Square East, Suite 515
Philadelphia, PA 19107-3323
Telephone: (215) 656-8541
Facsimile: (215) 656-8605
Email: OCR.Philadelphia@ed.gov

Online:http://www.ed.gov/about/offices/list/ocr/complaintintro.html.

For more information on OCR’s grievance procedures, please visit their website at:

http://www2.ed.gov/about/offices/list/ocr/docs/howto.html

Resolution Process

Initial Assessment

Upon report of an alleged violation under this Policy by an employee of this University, the Sexual Misconduct Review Team (“SMRT”) will meet to make an initial assessment of the reported information and respond to any immediate health or safety concerns raised by the report.

Additionally, the SMRT will engage in a preliminary inquiry to review the report and seek to reach a resolution that will eliminate harassment, prevent its recurrence, and address its effects. The assessment will begin with a preliminary meeting between the complainant and appropriate member(s) of the SMRT. In the course of this assessment, the University will consider the interest of the complainant and the complainant’s expressed preference for manner of resolution: 1) Formal Investigation; 2) Voluntary Resolution or 3) Not moving forward. Where possible and supported by an assessment of the facts and circumstances, the University will seek action consistent with the complainant’s request.

As part of the initial assessment of the facts, the University will:

  • Address immediate physical safety and emotional well-being
  • Assess the nature and circumstances of the report
  • Discuss the complainant’s expressed preference for manner of resolution
  • Notify the complainant of the right to contact or decline to contact law enforcement if the conduct is criminal in nature, and if requested, assist them with notifying law enforcement
  • Promptly notify the appropriate county agency if the University receives an allegation of sexual misconduct involving an individual who is under the age of 18
  • Notify the complainant of the availability of medical treatment to address physical and mental health concerns and to preserve evidence
  • Enter the report into the University’s crime log, if applicable, as required by the Clery Act
  • Assess the reported conduct for the need for a timely warning under the Clery Act
  • Provide the complainant with information about on-and off-campus resources
  • Notify the complainant of the range of interim measures available
  • Implement interim measures as necessary
  • Provide the complainant with an explanation of the procedural options, including voluntary resolution and formal resolution
  • Inform the complainant (and respondent) they may have a support person to assist them throughout the investigation and resolution of the complaint, and that the support person may accompany them to any meeting or proceeding under this Policy
  • Assess for pattern evidence or other similar conduct by the respondent(s)
  • Explain the University’s policy prohibiting retaliation

The University will make every reasonable effort to protect the confidentiality of the complainant; however, confidentiality may be compromised if it is determined that an investigation should move forward based on several factors including but not limited to: the seriousness of the infraction; the complainant’s age; and whether there have been previous complaints about the respondent. Furthermore, the complainant will be informed that the University’s ability to respond will be limited when there is a request for the complaint to remain confidential. If the complainant does not wish to move forward with a formal Sexual Misconduct Investigation and/or requests confidentiality, Title IX may require the University to investigate and take reasonable action in response to the information.

If the complainant decides to move forward with the complaint, and from the preliminary inquiry, the SMRT determines there is cause to proceed (i.e. there is reasonable cause to believe the sexual misconduct policy has been violated), the process will proceed to either a voluntary resolution or a formal investigation. The chosen resolution process will be utilized to determine whether the alleged sexual misconduct occurred and created a hostile environment, and to determine what actions the University will take to eliminate the hostile environment and prevent its recurrence.

Voluntary Resolution

Voluntary resolution will be utilized only when the Title IX Coordinator in consultation with the Deputy Title IX Coordinator, has determined this is a suitable option for resolving the concern, and both the complainant and respondent agree to use the process. Reports of sexual assault cannot be resolved using this process.

Voluntary resolution is used where, based upon the prohibited conduct at issue, the likely outcome would not alter the employee’s status with the University. Voluntary Resolution may include mediation with a member of the Title IX team, Human Resources Department, or other relevant office, and with the expectation of amicable and respectful discussion by all parties participating. The resolution achieved will be agreed upon by all parties and is therefore not appealable.

If the parties are unable to agree on the outcomes of the voluntary resolution proceeding, any party may request that the matter be resolved through the Formal Investigation process. Additionally, if one of the parties fails to comply with the terms of the Voluntary Resolution, the matter may be referred for a Formal Investigation Process. Any statements or disclosures made by the parties during the course of the Voluntary Resolution may be considered in a subsequent investigation and hearing.

Finally, all parties have the right to have an advisor present during all stages of a Voluntary Resolution. The same guidelines for advisors as described in the Formal Investigation process will apply.

Investigation

The Human Resources Department, in conjunction with the Title IX Coordinator, appropriate division head(s), legal counsel (when necessary) and legal authorities (when necessary), will investigate all alleged sexual misconduct and take appropriate actions at the conclusion. The University may also utilize a trained outside investigator under certain circumstances as determined by appropriate University administration. Investigations are conducted by individuals who are trained to provide prompt, fair, and impartial investigations of the conduct prohibited under this Policy. The standard of proof used by the investigator in determining Policy violations will be based on “preponderance of evidence,” meaning that it is more likely than not the Policy violation occurred.

The University reserves the right to proceed with the sexual misconduct investigation and adjudication independent of any criminal proceeding. Verdicts in criminal court are not determinative of the proceedings held by the University.

Both the respondent and complainant will be informed that each is allowed to be accompanied to all meetings and interviews by an advisor of their choice. Advisors are allowed solely for the purpose of support and may not serve as representatives of the complainant or respondent. The advisor may be any person including (but not limited to) a friend, mentor, family member, attorney, or any other supporter a party chooses to advise them. All advisors are subject to the same campus rules. 

All advisors are expected to adhere to the same following guidelines:

  • Advisors are only present to guide their advisee, not to represent them, speak for them, or play an active role of any kind in the process.
  • Advisors should therefore not address campus officials in a meeting or interview unless invited to.
  • During the course of an interview or meeting, advisors are not allowed to cross examine or actively engage in the discussion.
  • Advisors are permitted to speak with their advisee as necessary, privately or during campus meetings to fully perform their advising role.
  • Advisors will typically be given an opportunity to meet (or discuss) in advance of any interview with University Administrators. All questions regarding the Sexual Misconduct Process should be addressed to the University Title IX Coordinator or Deputy Title IX Coordinator.

The investigation will provide all individuals involved with the opportunity to submit evidence relevant to the complaint, and suggest witnesses for the investigator to interview. The investigator will inform both parties at regular intervals of the status of this investigation and give each party an opportunity to respond to the other’s statement, witnesses, and evidence.

During the process of investigating the alleged sexual misconduct, additional policy violations may evolve. The University reserves the right to question and sanction those involved in other violations following the outcome of the sexual misconduct investigation. The use of alcohol and drugs is not considered a defense against violations of the sexual misconduct policies.

Following the investigation, the complainant and respondent will be simultaneously notified of the determination in writing.

Either party may appeal the decision by writing to the Vice President for Student Affairs within seven (7) calendar days of receiving the decision. The Vice President for Student Affairs will issue a final decision on the appeal. The Human Resources department and/or the Title IX Coordinator will maintain all investigatory records.

The University will provide a prompt, fair and impartial investigation and resolution process. Therefore, we will endeavor to conclude an investigation within sixty (60) calendar days of the initial decision to move forward with the process. However, there may be extenuating circumstances requiring the University to extend this time-frame. The Title IX Coordinators have the right to extend the timeline when necessary and will notify the parties involved during such extensions.

Sanctions

Any Wilkes University employee that has violated this Policy will be subject to disciplinary action, including but not limited to:

  • Employee termination from the University
  • Unpaid suspension
  • Restrictions from all or portions of campus
  • Change in working facility
  • Mandated education
  • Written reprimand in personnel file
  • Removal from classroom teaching
  • Tenure revocation
  • Withhold salary increase (from one to several years)
  • Removal from administrative position
  • Verbal reprimand
  • Required participation in counseling or training
  • Demotion
  • Change to reporting structure
  • Reinstatement of an employment probationary period

Effective: 12/17/2012 Revised: 06/2018


©