Together, Bridgewater State University, Fitchburg State University, Framingham State University, Massachusetts College of Art and Design, Massachusetts College of Liberal Arts, Massachusetts Maritime Academy, Salem State University, Westfield State University, and Worcester State University (collectively, “the Universities”) are committed to maintaining safe and healthy learning, living, and working environments that are free from all forms of discrimination and harassment.
Consistent with their commitment, the Universities do not discriminate on the basis of sex in the education program or activity that they operate and are required by Title IX of the Education Amendments of 1972 (“Title IX”) to not discriminate in such a manner. The requirement not to discriminate in the education program or activity extends to admission and employment. Inquiries about the application of Title IX to the Universities may refer to each respective institution’s Title IX Coordinator, to the Assistant Secretary of the Office for Civil Rights, or both.
This Title IX Sexual Harassment Policy (“Policy”) prohibits sexual harassment, sexual assault, dating violence, domestic violence, stalking, and retaliation as defined under Title IX and outlines the procedures for resolution of reports of these behaviors. The Universities provide educational and prevention programs, services for individuals who have been affected by discrimination and harassment on the basis of sex, and accessible, timely and equitable methods of investigation and resolution of complaints.
Previously known as the “Sexual Violence Policy,” the Title IX Sexual Harassment Policy has been amended, and renamed, to be consistent with the Title IX Regulations that became effective August 14, 2020. Additionally, this policy is intended to comply with the reauthorized Violence Against Women Reauthorized Act of 2018 (“VAWA”), including the Campus SaVE Act, and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery Act”). The Title IX Sexual Harassment Policy replaces and supersedes the “Sexual Violence Policy” previously contained on pages 13-45 of the Equal Opportunity, Diversity and Affirmative Action Plan (“EO Plan”).
The Universities prohibit all forms of discrimination, harassment, and sexual misconduct. These behaviors are antithetical to the mission of the Universities and, if not covered by this Policy, the Universities ensure that such conduct is prohibited and addressed through the Policy Against Discrimination, Discriminatory Harassment, and Retaliation contained in the EO Plan, Student Code of Conduct and/or employee handbooks and collective bargaining agreements.
Actual Knowledge
Notice of sexual harassment or allegations of sexual harassment to the University’s Title IX Coordinator or any official of the University who has authority to institute corrective measures on behalf of the University. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the University. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the University with actual knowledge is the Respondent.
Administrative Investigator
The Administrative Investigator is an impartial fact finder who investigates alleged violations of this Policy by interviewing parties and witnesses, collecting and reviewing statements and other relevant evidence, and providing a detailed, unbiased report regarding the findings of the investigation.
Advisor
A single person of the party’s choice, who may be, but is not required to be, an attorney, who may be present in any meeting or grievance proceeding, and who may inspect and review evidence. It is the advisor’s responsibility to conduct cross-examination during the live hearing. The advisor’s role is otherwise strictly limited to providing direct and non-disruptive assistance to the party.
Appellate Administrator/Body
The Appellate Administrator/Body is annually trained and authorized by the Title IX Coordinator or designee to conduct a review of a decision made regarding an emergency removal, dismissal of a complaint, or decision reached by a Decision Maker(s).
Coercion
Unreasonable pressure or emotional manipulation to persuade another to engage in sexual activity. When someone makes it clear that they do not want to engage in sexual behavior, or they do not want to go beyond a certain point of sexual activity, continued pressure beyond that point can be considered coercive. Being coerced into sexual activity is not consent to that activity.
Complainant
A student or employee who is alleged to have been subjected to conduct that could constitute discrimination under the Policy of Nondiscrimination; or
A person other than a student or employee who is alleged to have been subjected to conduct that could constitute discrimination under the Policy of Nondiscrimination and who was participating or attempting to participate in the University’s program or activity at the time of the alleged discrimination.
Consent
An understandable exchange of affirmative words or actions, which indicates a willingness by all parties to participate in mutually agreed-upon sexual activity. Consent must be informed and freely and actively given. It is the responsibility of the initiator to obtain clear and affirmative responses at each stage of sexual involvement. Consent to sexual activity may be withdrawn at any time, as long as the withdrawal is communicated clearly. Whether an individual has taken advantage of a position of influence over a Complainant may be a factor in determining consent. A position of influence could include supervisory or disciplinary authority. Silence, previous sexual relationships or experiences, and/or a current relationship may not, in themselves, be taken to imply consent. While nonverbal consent is possible (through active participation), it is best to obtain verbal consent. Similarly, consent to one form of sexual activity does not imply consent to other forms of sexual activity.
Day
Day may refer to a calendar day or business day and will be specified in each instance in the Policy. A calendar day is any 24-hour period including weekends and holidays. A business day is a weekday, Monday through Friday, on which the Universities are open. Business days explicitly
Decision Maker
The Decision Maker is trained to participate in the hearing process and private deliberations. Decision Makers determine the relevance of proposed questions during hearings, and issue written determinations of responsibility that include all findings, sanctions, and remedies.
Education Program or Activity
All operations of the University, including locations, events, or circumstances at or in which the University exercises substantial control over both the Respondent and the context in which the sexual harassment occurs, including any building owned or controlled by a student organization that is officially recognized by the University. Additionally, education programs and activities include: ● Operations on campus or on other property owned or controlled by the University, including networks, digital platforms, social media accounts, and computer hardware or software owned or operated by, or used by the University; or ● Off-campus incidents in which the University exercised substantial control over both the Respondent and the context in which the behavior occurred.
Evidence
Information that is presented to establish whether a fact is more or less true. The type and extent of evidence available will differ based on the facts of each incident, but explicitly includes the parties’ own statements and statements of witnesses. Evidence may be inculpatory or exculpatory. Exculpatory evidence is evidence that is favorable to the Respondent in that it exonerates or tends to exonerate the Respondent of responsibility. Inculpatory evidence is evidence that shows, or tends to show, a person’s involvement in an act, or evidence that can establish responsibility. Evidence must be relevant, according to the ordinary meaning of the word. Information or evidence protected by a legally recognized privilege (e.g., attorney/client, doctor/patient) is excluded from consideration unless the holder of the privilege has waived the privilege in writing to the Title IX Coordinator. In addition, in accordance with Title IX regulations and the Massachusetts Rape Shield Law (Mass. G.L. c. 233, § 21B) the Respondent or their Advisor are prohibited from asking questions related to the Complainant’s alleged prior sexual behavior or alleged sexual reputation unless offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent. Outside of the specific allowable exceptions, such information is not considered relevant.
Force
The use of physical strength or action (no matter how slight), violence, threats of violence or intimidation (implied threats of violence) as a means to engage in sexual activity. A person who is the object of actual or threatened force is not required to physically, verbally or otherwise resist the aggressor, and lack of such resistance cannot be relied upon as the sole indicator of consent.
Formal Complaint
A document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the University investigate the allegation of sexual harassment.
Incapacitation
An individual who is incapacitated by alcohol and/or drugs, whether voluntarily or involuntarily consumed, may not give consent. Alcohol or drug related incapacitation is more severe than impairment, being under the influence, or intoxication. Evidence of incapacity may be detected from context clues, such as slurred speech, bloodshot eyes, the smell of alcohol on the breath, shaky equilibrium, vomiting, unusual behavior or unconsciousness. While context clues are important in determining incapacitation, they alone do not necessarily indicate incapacitation.
Persons unable to consent due to incapacitation also include, but are not limited to: persons under age sixteen (16); persons who are intellectually incapable of understanding the implications and consequences of the act or actions in question; and persons who are physically helpless. A physically helpless person is one who is asleep, blacked out, involuntarily physically restrained, unconscious, or, for any other reason, unable to communicate unwillingness to engage in any act. The use of alcohol or drugs to render another person mentally or physically incapacitated as a precursor to or part of a sexual assault is prohibited. The use of alcohol, medications or other drugs by the Respondent or accused does not excuse a violation of this Policy.
Preponderance of Evidence
Preponderance of evidence is a standard of review. Under this standard, conclusions by the Decision Maker must be based on what “more likely than not” occurred, based on available information and evidence. Accordingly, the Decision Maker must determine whether it is more likely than not that the Respondent violated this Policy.
Respondent
A person or persons who are alleged to have violated the University’s Policy of Nondiscrimination.
Supportive Measures
Supportive measures are individualized measures offered as appropriate and as reasonably available, without unreasonably burdening a complainant or respondent, not for punitive or disciplinary reasons, and without fee or charge to the complainant or respondent to:
A. Restore or preserve that party’s access to the University’s program or activity, including measures that are designed to protect the safety of the parties or the University’s environment; or
B. Provide support during the University’s complaint investigation and resolution procedures or during an informal resolution process.
Such measures are designed to restore or preserve equal access to the University’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment, or deter prohibited harassment. Supportive measures may include, but are not limited to, counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules or dining arrangements, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, restrictions from areas of campus, leaves of absence, increased security and monitoring of certain areas of the campus, statutorily provided leave to employees, and other similar measures.
A formal complaint is not required to request or access supportive measures. Supportive measures may be appealed under the same grounds as outlined in section 5.5.18 of this Plan. Appeals may be submitted to the Title IX Coordinator or EO Officer.
The Policy applies to all members of the campus communities, including, but not limited to, students, faculty, librarians, staff, visitors, contractors, and applicants for employment or admission, or any other person participating in an education program or activity of the University. The Policy applies to on-campus and off-campus conduct, including online and virtual, that takes place in the United States within an education program or activity.
Each University will prominently display the contact information for the institution’s Title IX Coordinator, including the name or title, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator(s).
Each University will further prominently display the Title IX policy statement on its website and in each handbook or catalog that it makes available to applicants for admission and employment, students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the University.
The Universities prohibit, under this Policy, conduct on the basis of sex that satisfies one or more of the following conditions:
1. An employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct; or, 2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity.
Additionally, the behaviors as outlined in subsections (b) through (e) of this section constitute sexual harassment under this Policy.
An offense classified as a forcible or non-forcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. Attempts to commit any of these acts are also prohibited.
(i) Sexual Assault – Rape
The penetration, no matter how slight, of the vagina or anus, with any body part or object, or oral penetration by a sex organ of another person without the consent of the victim (or attempts to commit the same). This includes any gender of victim or Respondent.
(ii) Sexual Assault – Fondling
Fondling is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances in which the victim is incapable of giving consent because of age and/or because of temporary or permanent mental incapacity
(iii) Statutory Rape
Sexual intercourse with a person who is under the statutory age of consent, which is 16 years old in Massachusetts.
(iv) Incest
Non-forcible sexual intercourse between people who are related to each other within the degrees wherein marriage is prohibited by law.
Any act of violence or threatened violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; the existence of such a relationship shall be determined based on a consideration of the following factors: (i) the length of the relationship, (ii) The type of relationship, and (iii) the frequency of interaction between the persons involved in the relationship. This includes, but is not limited to, sexual, emotional or physical abuse, or the threat of such abuse.
Includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner 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 or intimate partner, 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.
Engaging in a course of conduct directed (directly, indirectly, through a third party or other means) at a specific person that would cause a reasonable person to (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress. For the purposes of this Policy, the behaviors must be directly related to that person’s sex.
Title IX of the Education Amendments of 1972 is a federal law that states:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving Federal financial assistance.”
Title IX prohibits sex discrimination in all university programs and activities, including, but not limited to, admissions, recruiting, financial aid, academic programs, student services, counseling and guidance, discipline, pregnant and parenting students, class assignment, grading, recreation, athletics, housing, and employment.
Sexual harassment and sexual violence are forms of sex discrimination prohibited by Title IX. Title IX also prohibits retaliation against people for making or participating in complaints of sex discrimination.
The Final Rule, covers a much narrower geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated through the Title IX Grievance Policy. Policy violations that do not fall under the scope of standards defined by the Title IX Grievance Policy or misconduct falling outside the Title IX Grievance Policy is discovered in the course of investigating covered Title IX misconduct, Worcester State retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Policy Against Discrimination, Discriminatory Harassment, and Retaliation: found on page 9 of the Board of Higher Education Equal Opportunity, Diversity, and Affirmative Action Plan.
The Student Code of Conduct establishes the rules and regulations all students of Worcester State University are expected to follow. They are made in any exercise of the powers that are an inherent corollary of the Worcester State’s duty to protect its educational purposes by setting and distributing standards of student conduct and scholarship, and by regulating the use of Worcester State facilities. Students have a right to expect enforcement of these rules and regulations. Worcester State also has the right to expect students to abide by these regulations in a manner that benefits the responsibilities given to students as members of the campus community. Knowledge of these rules and regulations can prove most beneficial to students in utilizing and protecting their rights.
The Massachusetts State Universities have established the practice of applying the sexual harassment policies and procedures in effect on the date of alleged incident and not the date that a report or formal complaint is made to the University. Where alleged prohibited behaviors occurred over multiple dates, the latest date shall be used to determine policy application. For copies of past policies and procedures, please contact the Title IX coordinator.
The health and safety of every student at Worcester State is of utmost importance. Worcester State recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. Worcester State strongly encourages students to report incidents of domestic violence, dating violence, stalking, or sexual assault to the institution. In addition, a bystander acting in good faith or a reporting individual acting in good faith that discloses any incident of dating violence, domestic violence, stalking, or sexual assault to Worcester State officials or law enforcement will not be subject to the college code of conduct action or violations of alcohol and/or drug use policies occurring at or near the time of the incident.
To remove barriers to reporting and responding to sexual misconduct during the global coronavirus pandemic, Worcester State has adopted an exception related to certain violations of the Safe Return Plan/Mutual Contract of Social Responsibility. In situations involving Title IX complaints where violations of the Social Responsibility health and safety requirements also occurred, Worcester State will not pursue violations of the Contract of Social Responsibility for students reporting or responding to Title IX allegations. If Title IX reporting or responding students host or attend unauthorized gatherings in violation of health and safety policies, the Social Responsibility violation may still need to be addressed to mitigate health risks to the community therefore information will be submitted to Health Services. However, how the information was received and the specific relationship of any student to the Title IX office will not be disclosed.
An individual who is alleged to be the victim of conduct that could constitute sexual harassment under this Policy. At the time of filing a formal complaint, a Complainant must be participating in or attempting to participate in the education program or activity of the University with which the formal complaint is filed.
An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. A Respondent is presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
Both the Complainant and Respondent have rights and responsibilities. It is important that both parties are aware of these rights and responsibilities while they move through the Title IX Grievance Process.
The Universities prohibit, under this Policy, conduct on the basis of sex that satisfies one or more of the following conditions: 1. An employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct; or, 2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity. Additionally, the behaviors as outlined in subsections (b) through (e) of this section constitute sexual harassment under this Policy.
Sexual Assault is defined as: an offense classified as a forcible or non-forcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. Attempts to commit any of these acts are also prohibited.
Fondling is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances in which the victim is incapable of giving consent because of age and/or because of temporary or permanent mental incapacity.
Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
Any act of violence or threatened violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; the existence of such a relationship shall be determined based on a consideration of the following factors: (i) the length of the relationship, (ii) the type of relationship, and (iii) the frequency of interaction between the persons involved in the relationship. This includes, but is not limited to, sexual, emotional, or physical abuse, or the threat of such abuse.
Includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner 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 or intimate partner, 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. (e) Stalking Engaging in a course of conduct directed (directly, indirectly, through a third party or other means) at a specific person that would cause a reasonable person to—(A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress. For the purposes of this Policy, the behaviors must be directly related to that person’s sex.
Engaging in a course of conduct directed (directly, indirectly, through a third party or other means) at a specific person that would cause a reasonable person to—(A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress. For the purposes of this Policy, the behaviors must be directly related to that person’s sex.
Neither the Universities nor any other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under Title IX or this policy. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sexual harassment but arise out of the same facts or circumstances as a report or formal complaint of sexual harassment for the purpose of interfering with any right or privilege secured by Title IX or this policy constitutes retaliation.
A single person of the party’s choice, who may be, but is not required to be, an attorney, who may present in any meeting or grievance proceeding, and who may inspect and review evidence. It is the advisor’s responsibility to conduct cross-examination during the live hearing. The advisor’s role is otherwise strictly limited to direct and non-disruptive assistance to the party.
An understandable exchange of affirmative words or actions, which indicates a willingness by all parties to participate in mutually agreed upon sexual activity. Consent must be informed and freely and actively given. It is the responsibility of the initiator to obtain clear and affirmative responses at each stage of sexual involvement. Consent to sexual activity may be withdrawn at any time, as long as the withdrawal is communicated clearly. Whether an individual has taken advantage of a position of influence over a Complainant may be a factor in determining consent. A position of influence could include supervisory or disciplinary authority. Silence, previous sexual relationships or experiences, and/or a current relationship may not, in themselves, be taken to imply consent. While nonverbal consent is possible (through active participation), it is best to obtain verbal consent. Similarly, consent to one form of sexual activity does not imply consent to other forms of sexual activity.
The use of physical strength or action (no matter how slight), violence, threats of violence, or intimidation (implied threats of violence) as a means to engage in sexual activity. A person who is the object of actual or threatened force is not required to physically, verbally, or otherwise resist the aggressor, and lack of such resistance cannot be relied upon as the sole indicator of consent.
An individual who is incapacitated by alcohol and/or drugs, whether voluntarily or involuntarily consumed, may not give consent. Alcohol or drug related incapacitation is more severe than impairment, being under the influence, or intoxication. Evidence of incapacity may be detected from context clues, such as slurred speech, bloodshot eyes, the smell of alcohol on the breath, shaky equilibrium, vomiting, unusual behavior, or unconsciousness. While context clues are important in determining incapacitation, they alone do not necessarily indicate incapacitation. Persons unable to consent due to incapacitation also include, but are not limited to, persons under age sixteen (16), persons who are intellectually incapable of understanding the implications and consequences of the act or actions in question, and persons who are physically helpless. A physically helpless person is one who is asleep, blacked out, involuntarily physically restrained, unconscious, or, for any other reason, unable to communicate unwillingness to engage in any act. The use of alcohol or drugs to render another person mentally or physically incapacitated as a precursor to or part of a sexual assault is prohibited. The use of alcohol, medications, or other drugs by the Respondent or accused does not excuse a violation of this Policy.
Title IX Formal Complaint Resolution Procedures (link EO Plan Addendum pages 31–37)
*Per Bill S.2979: An Act relative to sexual violence on higher education campuses the Determination Regarding Responsibility will be provided to all parties no later than seven (7) business days after the final determination of a complaint.
