Sexual Misconduct and Sexual Assault Policy

INTRODUCTION

Sexual misconduct of any kind is inconsistent with the University’s values and incompatible with the safe, healthy environment that the Notre Dame community expects. All members of this community share responsibility for creating and maintaining an environment which promotes the safety and dignity of each individual. The most egregious form of sexual misconduct is sexual assault, which is an affront to justice that will not be tolerated at Notre Dame. Federal law views sexual misconduct and sexual assault as forms of sexual harassment prohibited under Title IX.  Sexual assault also violates state law as well as University policy. Students found responsible for sexual misconduct or sexual assault will ordinarily face outcomes up to and including dismissal from the University.
 
The University believes that no person should bear the effects of sexual assault alone.  When a sexual assault occurs, the University’s paramount concern is for the safety, health and well-being of those impacted.  To support and assist students, the University provides a wide range of services and resources.  Please see the section below on Resources for Medical, Counseling and Pastoral Care or the Committee on Sexual Assault Prevention website at csap.nd.edu to learn more about these resources. 

SEXUAL MISCONDUCT OFFENSES

Sexual misconduct offenses that are prohibited are:
  • Non-consensual sexual intercourse, which is any sexual intercourse by any person upon another without consent. It includes oral, anal and vaginal penetration, to any degree, with any object. It is referred to as “sexual assault” in this policy.
  • Non-consensual sexual contact, which is any sexual touching with any object, by any person upon another, without consent. Sexual touching is contact of a sexual nature, however slight.
  • Other forms of sexual misconduct include, but are not limited to:
  • Indecent Exposure
  • Sexual exhibitionism
  • Sex-based cyber-harassment
  • Prostitution or the solicitation of a prostitute
  • Peeping or other voyeurism
  • Going beyond the boundaries of consent, e.g., by allowing others to view consensual sex or the non-consensual video or audiotaping of sexual activity.
 
Consent means informed, freely given agreement, communicated by clearly understandable words or actions, to participate in each form of sexual activity. Consent cannot be inferred from silence, passivity, or lack of active resistance.  A current or previous dating or sexual relationship is not sufficient to constitute consent, and consent to one form of sexual activity does not imply consent to other forms of sexual activity. By definition, there is no consent when there is a threat of force or violence or any other form of coercion or intimidation, physical or psychological. A person who is the object of sexual aggression is not required to physically or otherwise resist the aggressor; the lack of informed, freely given consent to sexual contact constitutes sexual misconduct.
 
Intoxication is not an excuse for failure to obtain consent. 
 
An incapacitated person is incapable of giving consent.  A person is incapacitated if that person is in a physical or mental state such that he or she lacks the ability to make a knowing and deliberate choice to engage in the sexual interaction.  For the purposes of this policy, a person who is asleep or unconscious is incapacitated, without exception.  A person may also become incapacitated due to other factors, which may include the use of alcohol and/or drugs to such a degree that the person no longer has the ability to make a knowing or deliberate choice to engage in the sexual interaction.  When the question of whether the complainant was incapacitated is at issue, the perspective of a sober, reasonable person in the position of the respondent will be the basis for determining whether the respondent should have known that the complainant was incapacitated and thus incapable of giving consent.  
 
 

PRIVACY AND CONFIDENTIALITY


Confidential Resources

If a student wishes the details of an incident to be kept confidential, she or he can speak with counselors at the University Counseling Center, health providers, or off-campus rape crisis resources, such as S-O-S, the rape crisis center for St. Joseph County.  Within Campus Ministry, priests, deacons, and religious sisters and brothers will also honor a student’s request for confidentiality.  These individuals will honor confidentiality unless there is an imminent danger to the student or to others.   In addition, a student’s disclosure during the sacrament of confession will not be revealed by the priest for any reason, which is a sacred obligation protected by law.

Parameters of Confidentiality and Mandated Title IX Investigations

In all instances and to the extent possible, the University will protect the privacy of all parties to a report of sexual misconduct or sexual assault.  That said, under federal law, campus officials (with the exception of those listed under Confidential Resources, above) who receive a report of sexual assault, whether from the student involved or a third party, must share that information with the appropriate University authorities for investigation and follow-up.  The University is obligated under the law to investigate the complaint, to take action to eliminate sexual harassment and sexual assault, prevent its recurrence and address its effects.   An administrative investigation under Title IX must be initiated if the University has enough information to reasonably determine key facts, e.g.,  time, date, location and names of parties involved in an alleged incident.  Ordinarily, this administrative investigation will include a review of statements obtained from either party, interviews with both parties, interviews with witnesses as appropriate and review of relevant documentary evidence, and will be conducted by the Student Affairs Deputy Title IX Coordinator or his/her designee. The University is obligated to conduct this investigation regardless of the complainant’s requests. 
 
In the course of the administrative investigation, information will be shared as necessary with people who need to know, such as investigators, witnesses, and the respondent.  Any response by the University may be hindered by the complainant’s requests for anonymity and/or inaction.
 

REPORTING SEXUAL MISCONDUCT AND SEXUAL ASSAULT

To report an incident of sexual misconduct or sexual assault, please call Notre Dame Security Police at 911 or (574) 631-5555; NDSP is available 24 hours a day, 7 days a week. During business hours, you may also call or email the Deputy Title IX Coordinator or his/her designee at (574) 631-7728 or DepTitleIXCoordinator@nd.edu.
 

Additional University Steps in Responding to a Complaint of Sexual Misconduct or Sexual Assault

1)  Assignment of a Resource Coordinator 
Whenever the University receives a report of sexual misconduct or sexual assault, the complainant will be referred to a Resource Coordinator (RC) who will serve as a resource person to the complainant to identify, explain and navigate the complainant’s reporting options and the available support services.  This can include referrals to counseling, educational support, pastoral care, and medical treatment, and information about University and legal processes.   The RC can also provide assistance in rearranging class schedules, extracurricular activities and housing and on-campus dining arrangements; to the extent that a student’s requests are reasonable and can be accommodated, every effort will be made to do so.  Where appropriate, the goal of any adjustment will be to minimize the burden on the complainant’s educational program. Similarly, a respondent will also be assigned a RC, to provide him or her with support, information and assistance.
 
2)  No Contact Orders Issued to the Complainant and the Respondent 
Upon receipt of a report of alleged sexual misconduct in which the respondent is a current Notre Dame student, the Deputy Title IX Coordinator shall issue no contact orders to the complainant and respondent.
 

Intimidation or Threats to Inhibit Reporting

The University strongly encourages students to report any incident of sexual misconduct or sexual assault.  Notre Dame takes such reports very seriously. Any actual or threatened retaliation or any act of intimidation to prevent or otherwise obstruct the reporting of sexual misconduct or sexual assault or the participation in proceedings relating to sexual misconduct or sexual assault by a respondent or third party is itself prohibited and will result in a referral to the University Conduct Process.  A complainant or witness who is threatened in any way should immediately report these concerns to their assigned Resource Coordinator (RC) or to NDSP by calling (574) 631-5555.
 
 

Timely Warning to Campus

In an effort to provide timely notice to the Notre Dame community, and in the event of a serious crime against people that occurs on campus, where it is determined that the incident may pose a serious, ongoing threat to members of the Notre Dame community, a mass email Crime Alert is sent to all students and employees on campus and is posted on the Notre Dame Security Police (NDSP) website. Crime alerts are also posted by NDSP in the residence halls and various other buildings on campus, and are typically posted in the lobby/entrance area of the building(s) for seven days. Updates to the Notre Dame community about any particular case resulting in a Crime Alert may be distributed via email, may be posted on the Notre Dame Security Police website or may be shared with The Observer for a follow-up story.
 
 

Reporting Options

A student has the option to pursue a criminal complaint with the appropriate law enforcement agency, to pursue a complaint through the University Conduct Process, or to pursue both processes consecutively or concurrently. Regardless of the option chosen the University will initiate an administrative investigation under Title IX.
 
Option 1:  Criminal Complaint
The University encourages students to report all incidents of sexual misconduct or sexual assault to the police. If the incident occurred on Notre Dame property, Notre Dame Security Police, a duly licensed police agency in the state of Indiana, is the appropriate agency with which to file a report.  Off-campus incidents will likely fall in the jurisdiction of the South Bend, St. Joseph County or Mishawaka police departments. Notre Dame Security Police (911 or (574) 631-5555) can assist with contacting the appropriate agency. 
 
Incidents of sexual misconduct involving students that are reported to Notre Dame Security Police will also be referred to the Deputy Title IX Coordinator in the Office of Student Affairs for follow-up and administrative investigation. Similarly, the Deputy Coordinator will follow-up where appropriate in those instances where the University has a report of an incident of sexual misconduct or sexual assault that has been reported to another police agency.  
 
The administrative investigation conducted by the Deputy Title IX Coordinator or his/her designee is distinct from the criminal investigation and flows from the University’s obligation under Title IX to ensure that it is providing a safe environment for all students. If a complainant wishes to pursue a criminal complaint exclusively, the complainant may choose to temporarily defer the administrative investigation and/or University Conduct Process by making a formal written request to the Deputy Title IX Coordinator, which may delay the administrative investigation and the University’s ability to respond. The University may continue its administrative investigation where it has reason to believe that the alleged harasser may be an imminent threat to the safety of the complainant and/or other students.  At any time, the complainant may choose to rescind the deferral by making a formal written request to the Deputy Title IX Coordinator, electing to resume the administrative investigation and/or University Conduct Process.  The University will maintain documentation of the date of deferral.  Information obtained through the criminal investigation may be used by the Office of Community Standards for consideration in the University conduct process. 
 
 
If a student pursues a criminal complaint, a member of the Office of Campus Safety will request that the St. Joseph County Prosecutor’s Office keep the University informed and immediately advise of its decision whether to prosecute the complaint.  The University will maintain documentation of the date of the request to the Prosecutor’s Office.  In cases where the Prosecutor’s Office declines prosecution, a member of the Office of Campus Safety will provide written notice to the complainant of the Prosecutor’s decision.
 
Option 2:  University Conduct Process
Sexual misconduct involving students, including sexual assaults whether or not they have been reported to a police agency, should also be reported to the University for investigation and resolution through University processes.  
 
If a student reports an incident of sexual misconduct or sexual assault to the University, the Deputy Title IX Coordinator in the Office of Student Affairs or his/her designee will conduct an administrative investigation.  Ordinarily, an administrative investigation will include a review of statements obtained from either party, interviews with both parties, interviews with witnesses as appropriate and review of relevant documentary evidence.  Once the investigation is complete, the Deputy Title IX Coordinator or his/her designee, in conjunction with a tripartite board in Student Affairs, will make a determination about whether the case should be referred to the Office of Community Standards for resolution.  Information obtained through the administrative investigation may be used by the Office of Community Standards for consideration in the University Conduct Process, with or without the cooperation of the complainant. 
 
See the University Conduct Process for information about addressing incidents of alleged sexual misconduct or sexual assault.
 
Option 3:  Simultaneous Processes
A student has the option to pursue a criminal complaint with the appropriate law enforcement agency, to pursue the University Conduct Process, or to pursue both processes consecutively or concurrently. 
 

Written Notice of  Reporting Options

Students who report alleged sexual misconduct or sexual assault will be provided with written notice of the above referenced reporting options.  The University, through the Deputy Title IX Coordinator or his/her designee, must also obtain written acknowledgment from the student of her/his decision regarding which options, if any, the student wishes to pursue.

Other Potential Policy Violations

At times, students are hesitant to report the occurrence of a sexual assault to University officials because they are concerned that they themselves, or witnesses to the misconduct, may be found responsible with other policy violations, e.g, parietals or alcohol violations.  These behaviors are not condoned by the University, but the importance of dealing with alleged sexual misconduct or sexual assault outweighs the University’s interest in addressing lesser violations.  Accordingly, in these cases, the University will not refer a student to the conduct process for a student who makes a complaint of sexual misconduct or sexual assault in connection with the reporting of that incident, or students named as witnesses to the incident.
 

Resources for Medical, Counseling and Pastoral Care

It is especially important for students who have been sexually assaulted to seek immediate and appropriate medical treatment.  University Health Services is open 24 hours a day during the academic year and is equipped to provide confidential and professional medical care.  University Health Services (UHS) can be reached in Saint Liam Hall, (574) 631-7567 (24 hours).  While the UHS staff is unable to perform procedures related to the collection of evidence for the purposes of pursuing criminal prosecution, they can provide assistance and support when a student requests or requires transportation to the hospital.  St. Joseph’s Regional Medical Center has a specially trained sexual assault team available 24 hours a day, seven days a week; Memorial Hospital also offers these services.  Under Indiana law, the tests and procedures at the hospital are free of charge if treatment is sought within 96 hours of the assault.  Emergency Room staff may ask if the student wishes to speak to the police; this decision is up to the student.
The University Counseling Center is staffed by trained professionals who can provide specialized support and assistance to students who have been assaulted.  Current students may seek counseling at any time, whether it is days, months or years after the incident.  The confidential services of the UCC are available to the student who was assaulted and her or his friends who may need support in assisting the student.  The Counseling Center can be reached at (574) 631-7336 (24 hours); in addition, a Walk-In Crisis Service is available in Saint Liam Hall, Monday-Friday, 9 a.m. – 5 p.m. For further information, go to ucc.nd.edu.
 
S-O-S is the rape-crisis center for St. Joseph County.  S-O-S is staffed by trained professionals and volunteer advocates who are available 24 hours a day. The staff can provide confidential counseling and recovery services, as well as support and information about communication with the police, family and friends.  S-O-S Volunteer Advocates provide emotional support and information on the phone and in person at area hospital Emergency Departments around the clock. Specially trained professionals offer confidential counseling, group therapy, information, and referrals. The S-O-S Advocate acts as a liaison between the student and the legal process, and can accompany them to court, if desired. The 24-hour telephone number for the Rape Crisis Center is (574) 289-4357.
 
Within Campus Ministry, priests, deacons, and religious sisters and brothers will also honor a student’s request for confidentiality.  These individuals will honor confidentiality unless there is an imminent danger to the student or to others.   In addition, a student’s disclosure during the sacrament of confession will not be revealed by the priest for any reason, which is a sacred obligation protected by law.  Campus Ministry can be reached at 574-631-7800 or at campusministry.nd.edu.
 
The on-campus resources listed above are available to all Notre Dame students including respondents and witnesses in sexual misconduct and sexual assault cases.
 
For more information about resources, please visit csap.nd.edu.