Sexual Assault Policy
Hagerstown Community College complies with Section 485(F) of the Higher Education Act of 1965 as amended by Section 486(C)(2) of the Higher Education Amendments of 1992, Subtitle 7, Sexual Assault Policy, and the addition of the Violence Against Women Act passed in 1994 and re-authorized in 2013, and is committed to taking necessary measures in an effort to prevent incidents of sexual assault on campus and to taking action to support victims, involve police and take appropriate disciplinary action should an incident occur. Sexual assault is being coerced to engage in a sexual act by force, threat of force, against one’s will and without consent as defined in the Maryland Annotated Code, Criminal Offenses. The Violence Against Women Act expands the definition of sexual assault to include domestic violence, dating violence and stalking as reportable offenses.
Hagerstown Community College will not tolerate sexual assault in any form, including date or acquaintance rape. Making reports and taking action in response to a sexual assault against a student or employee will be limited to incidents occurring on College property or facilities or at College-sponsored functions, regardless of where these events take place.
Any type of retaliatory and/or intimidating behavior against a person who files a complaint or otherwise participates in an investigation or adjudicatory action is expressly prohibited by the College. Hagerstown Community College shall take strong disciplinary action against any individual or group of individuals found responsible for retaliating and/or intimidating, or attempting to retaliate and/or intimidate, another person for making a report of sexual misconduct, participating in the investigation of sexual misconduct, participating as a witness in an adjudicatory proceeding, and/or otherwise participating in any way in support of a person exercising their rights under the Sexual Assault Policy.
For purposes of the Sexual Assault Policy as well as Sexual Harassment, Title IX and the Violence Against Women Act, the following definitions of prohibited forms of sexual assault/misconduct include:
Sexual harassment is unwanted sexual contact, unwelcome sexual advances, requests for sexual favors and/or other unwanted communications or physical conduct of a sexual nature which has the purpose or effect of unreasonably interfering with an individual’s academic or work performance. Such conduct is illegal and will not be tolerated. Examples of sexual harassment include, but are not limited to:
Direct or implied threat that submission to sexual advances will be a condition of grades, letters of recommendation, or employment.
Unwelcome physical contact, including unnecessary touching, patting, hugging or brushing against a person’s body.
Inappropriate or unwelcome sexual remarks about a person’s clothing, body, or sexual relations.
The display in a classroom or workplace of sexually suggestive objects, pictures, posters, cartoons and like items which are without defensible educational purpose.
Repeated unwelcome communications, both verbal or written (including electronic and social networking) with sexual or demeaning implications about one’s gender or sexual orientation.
Physical Acts (such as rape, attempted rape, sexual touching and sexual battery) perpetrated against an individual without consent or who does not have the capacity to give knowing consent due to alcohol, drugs or disability. Examples of Sexual Violence:
Any sexual activity performed in the absence of consent or through coercion.
Forced oral, anal, or vaginal sex with any body part or object.
Unwanted rough or violent sexual activity.
Rape or attempted rape.
Keeping someone from protecting themselves from unwanted pregnancies or STIs.
Sexual contact with someone who is very drunk, drugged, unconscious or unable to give a clear and informed yes.
Threatening or pressuring someone into sexual activity.
Intimate Partner Violence (Dating Violence, Domestic Violence)
A pattern of abusive behaviors used to exert power and control over a current or former partner. It can include emotional, sexual, verbal or economic actions, or physical threats of violence. Acts may include any behaviors that intimidate, isolate, manipulate, humiliate, coerce, frighten, blame or hurt someone. It can happen to anyone, regardless of race, sexual orientation, age, education, religion, etc. The existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
General Pattern of Behavior:
Tension Building: Relationship begins to get strained or tense between partners.
Explosion: Outburst that includes verbal, emotional, or physical abuse.
Honeymoon: Apologies where the abuser tries to re-connect with his/her partner by shifting the blame onto someone or something else.
A pattern of unwanted conduct directed at another person that threatens or endangers the safety, physical or mental health, or life or property of that person, or creates a reasonable fear of such a threat or action. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others or suffer substantial emotional distress.
Signs that it could be stalking:
Following you, with or without your knowledge.
Calling or texting excessively.
Knowing your schedule and/or showing up at places you go.
Threatening to hurt you, your friends, family, pets, or themselves.
Damaging your property.
It can even look romantic or non-threatening, like cards, flowers, Emails, etc, but if this behavior is unwanted, it could be stalking.
Definitions of Consent
While Maryland’s criminal code does not specifically define the term “consent” it’s general premise is receiving permission to act. It may be given by words or actions, so long as those words or actions create clear, mutually understood permission to engage in (and the conditions of) sexual activity. Consent must meet all of the following standards:
Active, not passive. Silence, in and of itself, cannot be interpreted as consent. There is no requirement that an individual resist a sexual act or advance, but resistance is a clear demonstration of non-consent.
Given freely. A person cannot give consent under force, threats, or unreasonable pressure (coercion). Coercion includes continued pressure after an individual has made it clear that he/she does not want to engage in the behavior.
Provided knowingly. Legally valid consent to sexual activity cannot be given by:
A person under the legal age to consent (16 years old in Maryland) or An individual who is known to be (or based on the circumstances should reasonably be known to be) mentally or physically incapacitated.
An incapacitated individual is someone who cannot make rational, reasonable decisions because he or she 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 mental disability, sleep, involuntary physical restraint, unconsciousness, use of alcohol or other drugs.
Permission to engage in one form of sexual activity does not imply permission for another activity. In addition, previous relationships or prior consent do not imply consent to future sexual acts. It is the responsibility of the initiator of the act to receive permission for the specific act. As a result, consent may be requested and given several times by multiple parties during a sexual encounter involving multiple acts.
Consent cannot be obtained from a person who is incapacitated. This refers to those persons who have mental or physical disabilities that temporarily or permanently render the person incapable of appraising the nature of the sexual activity, resisting the sexual activity, or able to communicate an unwillingness to engage in the sexual activity. Consent cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated due to alcohol, drugs, medication, or some other condition.
Other Applicable Definitions
Retaliation means intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by law or College policy relating to Sexual Assault/Misconduct, or because an individual has made a report, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing related to Sexual Assault/Misconduct. Retaliation includes retaliatory harassment.
Interim Measures means reasonably available steps the College may take to protect the parties while a Sexual Assault/Misconduct investigation is pending.
Responsible Employee includes any College employee who (1) has the authority to take action regarding Sexual Assault/Misconduct; (2) is an employee who has been given the duty of reporting Sexual Assault/Misconduct; or (3) is someone another individual could reasonably believe has this authority or duty. At a minimum, Responsible Employees must include: the Title IX Coordinator and any Title IX Team members, all College administrators, all faculty, all athletic coaches, and College security staff members.
The victim reports the misconduct to the Title IX Coordinator or another College employee whom the College has designated as responsible for receiving and/or responding to reports of sexual misconduct. The victim should be notified of the interim measures available and requests for interim measures can be made by the victim to the Title IX Coordinator or responsible employee. Reports of sexual misconduct to responsible employees will be forwarded to the Title IX Coordinator who will determine what steps need to be taken. Generally, the College will investigate the report to determine what occurred and the College will provide interim measures during the investigative process and any disciplinary process.
All employees of the college are responsible employees who must report Title IX the possible assault to the Title IX coordinator, even if the student does not wish to report it themselves.
Third Party and Anonymous Reporting
Individuals who have become aware of a violation of the Sexual Assault/Misconduct Policy that does not involve the individual directly should report to the Hagerstown Community College Title IX Coordinator. If an individual wishes to report a violation of the Sexual Assault/Misconduct Policy anonymously, the report should also be made to the Title IX Coordinator. Anonymous reporting may limit what action HCC is able to take.
A student who reports an incident of sexual assault/misconduct, either as a complainant or a third party witness, will not be held responsible for violating the Code of Conduct if he/she was under the influence of alcohol and/or drugs at the time of the incident. HCC does not want the fear of receiving disciplinary charges or a sanction to prevent a student from reporting an incident of sexual assault/misconduct.
Complainants have the right to decline notifying law enforcement of an alleged incident of sexual misconduct. However, HCC encourages complainants to report alleged incidents of sexual assault/misconduct that are also considered a crime under Maryland law to the HCC Campus Police Department or other appropriate law enforcement agencies.
If the HCC Campus Police Department or local law enforcement agency determines that the alleged incident of sexual assault/misconduct does not constitute a crime, HCC will still proceed with its investigation under this Sexual Assault/Misconduct procedure.
Interim measures are those services, accommodations, or other assistance that the College puts in place for victims after receiving notice of alleged sexual misconduct but before any final outcomes - investigatory, disciplinary, or remedial - have been determined. The College wants its students to be safe, to receive appropriate medical attention, and to get the help they need to heal and to continue to access their educational opportunities. Upon receiving a report of sexual misconduct, the College will provide the victim, or the victim’s advocate, with a written explanation of the interim measures available on campus and/or through local community resources and shall ask victims, or their counselors or advocates, what measures are sought. The College shall determine which measures are appropriate for a particular victim on a case-by-case basis. If the victim or advocate identifies an interim measure that is not already provided by the College, the College will consider whether the request can be granted. In those instances where interim measures affect both a victim and the alleged perpetrator, the College will minimize the burden on the victim wherever appropriate.
A victim of sexual misconduct, or the victim’s counselor or advocate, may request the interim measures listed below. The College - after consulting with the victim or the victim’s advocate though the Dean of Student Affairs Office - will determine which measures are appropriate to ensure the victim’s safety and equal access to educational programs and activities:
Academic accommodations which include switching of sections or other schedule changes without financial implications.
Assistance in arranging for alternative College employment arrangements and/or changing work schedules.
A “No contact” directive pending the outcome of an investigation. Such a directive serves as notice to both parties that they must not have verbal, electronic, written, or third party communication with one another.
Providing an escort to ensure that the student can move safely between school programs and activities.
Assistance identifying an advocate to help secure additional resources or assistance including off-campus and community advocacy, support, and services.
The College shall work with victims or their counselors or advocates to identify what interim measures are appropriate in the short term (e.g., during the pendency of an investigation or other school response), and shall continue to work collaboratively throughout the College’s process and as needed thereafter to assess whether the instituted measures are effective, and if not, what additional or different measures are necessary to keep the victim safe.
Investigation Procedure and Protocol
The HCC Title IX Coordinator is responsible for receiving, investigating and coordinating the response to reports of sexual assault/misconduct policy violations at HCC. Once the College knows or reasonably should know of possible sexual assault/misconduct, it must take immediate and appropriate action, in accordance with its internal procedures, to investigate or otherwise determine what occurred. This obligation applies to sexual assault/misconduct covered by this Policy regardless of where the sexual assault/misconduct allegedly occurred, regardless of whether a parallel law enforcement investigation or action is pending, and regardless of whether a formal complaint is filed.
A number of College employees shall be trained in conducting a formal investigation and may be designated by the Title IX Coordinator to assist as appropriate and if needed. As part of the investigation, the investigators shall meet with the reporting party to gather as much information as available about the alleged violation. The investigators should additionally interview anyone involved with the alleged violation in order to collect evidence and information.
Both the complainant and the respondent in an investigation have equitable rights to review evidence and participate in meetings specific to the investigation. A request for confidentiality by the individual reporting alleged sexual misconduct may limit, but not prohibit, the College’s ability to limit the effects or prevent recurrence of alleged sexual misconduct.
Grievance and Adjudication Procedures
Any alleged violation of this Sexual Assault/Misconduct Policy will be adjudicated under the procedures outlined by the HCC Student Code of Conduct in the case of an alleged violation by a student enrolled at HCC and by procedures otherwise applicable to adjudication of employee and third party alleged misconduct generally. The procedures, participants, sanctions and appellate process all apply to these proceedings related to alleged violations of this policy. However, due to the seriousness and scope of an alleged sexual assault/misconduct violation, a trained group of faculty and staff will be appointed as the Hearing Board for all sexual assault/misconduct cases presented through the Dean of Student Affairs Office as a part of the Student Code of Conduct process. Students will not be appointed to this Hearing Board. Also, due to the specifics required in the adjudication of violations of this Sexual Assault/Misconduct Policy, the following rules shall apply:
Mediation shall never be appropriate in sexual assault/misconduct cases.
The parties to the proceeding shall have equitable rights including: notice of hearing(s) to both parties; an opportunity for both parties to present witnesses and other evidence, such as information about the specific alleged violation but not about the complainant’s prior sexual conduct with anyone other than the alleged perpetrator. • The parties shall be afforded similar and timely access to information to be used during the proceeding.
The parties are entitled to the same opportunities to have others present during the proceeding, including the opportunity to be accompanied to any related meeting or proceeding by an adviser of their choice. Advisors are permitted, however, they may not be attorneys. Advisors are permitted to consult with their party only, they are not permitted to ask open questions during the Hearing Board process. Only the parties involved in the complaint will be permitted to speak openly during this process.
The preponderance-of-the-evidence (i.e., more likely than not) standard will be applied as the standard of review for determining findings of fact; used in any Title IX fact-finding and related proceedings, including any hearing.
Evidence of a prior consensual dating or sexual relationship between the parties by itself does not imply consent or preclude a finding of sexual assault/misconduct.
The appeal process shall be equally available to the parties.
Any party participating in a proceeding may raise issues related to potential conflicts of interest of investigators or other individuals participating in the adjudication process by contacting the Title IX Coordinator.
As permitted by law, the institution must notify the parties concurrently, in writing, about the outcome of the complaint and whether or not sexual misconduct was found to have occurred. The institution must also concurrently inform the parties of any change to the results or outcome that occurs before the results or outcome become final, and the institution must inform the parties when the results or outcome become final. In addition, HCC shall not require either participant to abide by a non-disclosure agreement in writing or otherwise that would prevent the re-disclosure of information related to the outcome of the proceeding.
If there is a determination that sexual assault/misconduct has occurred, prompt and effective steps to eliminate the sexual assault/misconduct, prevent its recurrence, and address its effects should be taken.
Prompt generally means within 60 calendar days from the time a report is brought to the College’s attention until an initial decision is rendered.
There may be circumstances that prevent the College from meeting the 60-day timeline. In such circumstances, the College shall document the reasons why it was unable to meet the 60-day timeline.
Authorities and participants in the adjudication process shall participate in appropriate annual training to assist them in meeting their responsibilities related to implementation of this Policy.
Title IX Compliance Oversight
Title IX Coordinator
The President shall appoint a Title IX Coordinator responsible for coordinating the institution’s efforts to comply with and carry out its responsibilities under Title IX.
The Title IX Coordinator must have adequate training on the requirements of Title IX, including what constitutes sexual misconduct, consent, credibility assessments, and counter-intuitive behaviors resulting from sexual misconduct. The Coordinator must understand how relevant institution procedures operate and must receive notice of all reports raising Title IX issues at the College.
Hagerstown Community College has appointed Dr. Christine Ohl-Gigliotti, Dean of Students, as the Title IX Coordinator.