Sexual Misconduct Policy

Sexual misconduct represents a continuum of behaviors ranging from physical sexual assault and abuse to sexual harassment and intimidation. Anyone can be subject to and can be capable of sexual misconduct. It can occur between two people, whether or not they are in a relationship, in which one has power over the other, or are of different sexual identities. The College is committed to a learning and living environment that is free of sexual misconduct, discrimination, and harassment of any kind. All forms of sexual misconduct are prohibited and are serious violations of the College's code of conduct. Whenever the College learns of allegations of sexual misconduct, it will take appropriate action to investigate the allegations and take prompt 
remedial action that is aimed at stopping and preventing sexual misconduct in any form.

The College has a number of programs and organizations that address issues of sexual misconduct. The RAs, Sexual Misconduct Advisors & Resource Team (SMART) members, and Sexual Health Counselors are trained how to respond to sexual misconduct and provide education to the campus about how to avoid difficulties. Workshops for the new students during orientation explain and explore policies and cultural norms about sexual matters. The Clothesline Project, Take Back the Night, and other events highlight community concerns about sexual assault and its consequences.

Students who are the victim of sexual misconduct are encouraged to report the incident immediately. There are also a number of services available at the College to support survivors of sexual misconduct.

See the Sexual Misconduct Resources Chart to contact resource personnel.

    A. Definitions of Sexual Assault, Consent, Sexual Harassment, and Indecent Exposure

    1. Definition of Sexual Assault 

    Sexual assault is defined as any sexual contact that occurs without the consent of the other person. Specifically, it is intentional physical contact with an intimate part of the body or with clothes covering intimate body parts without the consent of the person touched. Sexual assault includes but is not limited to sexual penetration of an unwilling person's genital, anal, or oral openings; touching an unwilling person's intimate parts such as genitalia, groin, breasts, lips, buttocks, or the clothes covering them; or forcing an unwilling person to touch another person's intimate parts or clothes covering them. When sexual assault occurs repeatedly between individuals, it is referred to as sexual abuse.

    2. Definition of Consent

    Consent is an understandable exchange of affirmative words or actions that indicate a willingness to participate in mutually agreed upon sexually explicit touching or sexual penetration. Consent must be informed, and freely and actively given. Consent is active not passive and consent is possible only when there is equal power.

    It is incumbent upon each individual involved in the activity to either obtain or give consent prior to any sexual activity, and again, prior to sexual penetration. If at any time during the sexual interaction any confusion or ambiguity should arise on the issue of consent, it is incumbent upon each individual involved in the activity to stop and clarify, verbally, the other's willingness to continue.

    • A verbal -"no", even if it may sound indecisive or insincere, constitutes lack of consent.
    • When consent is requested verbally, absence of any explicit verbal response constitutes lack of consent.
    • Once consent has been established, if a person decides to no longer participate in the sexual activity, it is expected that the person will communicate through words or actions, the decision to no longer proceed.
    • Past consent to sexual activity does not imply future ongoing consent, and the fact that two persons are in an on-going relationship shall not preclude the possibility that sexual misconduct or sexual assault might occur within that relationship.
    • A person who is asleep or mentally or physically incapacitated, either through the effect of alcohol or drugs, or for any other reason, is not capable of giving valid consent and consent is not valid if a reasonable person would understand that such a person is incapable of giving valid consent.
    • A student's use of alcohol and/or other drugs shall not diminish a student's responsibility to obtain informed and freely given consent.

    3. Definition of Sexual Harassment

    The following definition is based in part on those formulated by the Federal Equal Opportunity Commission and The Office for Civil Rights of the U.S. Department of Education. Sexual Harassment, a form of discrimination based on sex or gender clearly endangers the environment of mutual respect and is prohibited. Swarthmore College also finds that harassment based on sexual orientation, gender identity, or gender expression is a form of sexual harassment for purposes of the College's policies. Some behavior that constitutes sexual harassment within this policy may also be a violation of law (Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Swarthmore Borough Ordinance on Non-Discrimination) and students always have the option of pursuing claims through other options, including law enforcement or civil claims.

    Sexual harassment is of two basic types:

    a. Intimidating, Hostile, or Demeaning Environment - Any unwelcome action, verbal expression, usually repeated or persistent, or series of actions or expressions that have either the intent, or are reasonably perceived as having the effect, of creating an intimidating, hostile, or demeaning educational, employment, or living environment for a student or College employee, either by being sexual in nature or by focusing on a person's gender, sexual orientation, gender identity, or gender expression. An intimidating, hostile, or demeaning environment is defined as one that is so severe, pervasive, or objectively offensive that it interferes with a person's ability to learn, exist in living conditions, work (if employed by the College), or have access and opportunity to participate in all and any aspect of campus life.

    b. Quid Pro Quo Harassment - Any action in which:
i. submission to conduct of a sexual nature is made either explicitly or implicitly a term or condition of an individual's education, grades, recommendations, opportunities or employment, or
ii. submission to or rejection of such conduct is used as the basis for academic or employment decisions affecting that individual.

    Sexual misconduct committed by faculty or staff: The College prohibits sexual misconduct by a faculty or staff member against a student. The College policy governing staff and the related grievance procedures can be found in the Staff Handbook. The College policy governing faculty and the related grievance procedure can be found in The Faculty and Instructional Staff Handbook. Please contact the Title IX Coordinator to discuss your concerns and have your options for resolution explained to you.

    Because at Swarthmore it is not unusual for students to supervise other students, or for students to have actual or perceived power or influence over another student's academic performance (e.g., student graders, student laboratory assistants, and student writing associates), there can exist a power imbalance between students that makes it possible for quid pro quo harassment to occur between them.

    4. Descriptions of Sexual Harassment

    Sexually harassing behaviors differ in type and severity and can range from subtle verbal harassment to unwelcome physical contact. Sexual harassment includes but is not limited to:

    a. Unwelcome verbal or physical advances, persistent leers, lewd comments.

    b. The persistent use of irrelevant references that insult or degrade a person's gender, or the use of sex stereotypes to insult or degrade.

    c. The use by a person in authority of his/her position to coerce another person to do something of a sexual nature that s/he would not otherwise do. Coercion need not involve physical force.

    d. Stalking is a form of harassment, which, following Pennsylvania Criminal Code, occurs when a person engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances that demonstrate either of the following:

    i. placing the person in reasonable fear of bodily injury; or,

    ii. reasonably causing substantial emotional distress to the person.

    There is a wide range of behaviors that falls within the general definition of sexual harassment and many differing notions of what behaviors are and are not acceptable. Key determining factors in instances of sexual harassment are that the behavior is unwelcome, is gender-based, and is reasonably perceived as offensive and objectionable. Such behavior need not produce or threaten some tangible loss to the receiver in order to be deemed harassment. If it is unclear that the behavior constitutes harassment, the effected person should not spend considerable time struggling alone with this issue.Students are strongly encouraged to bring their [sexual misconduct concerns] to the Title IX Coordinator-Sharmaine LaMar, the head of the Worth Health Center-Beth Kotarski, a dean, or others trained in this area for support, clarification, and to discuss options for informal resolution or formal adjudication. [See the Sexual Misconduct Resources Chart for a list of resources.]

    Making the harasser aware: It cannot be assumed that the offending persons are aware of the ways in which their behavior constitutes sexual harassment. It is important to understand that without in some way being made aware of the offensive actions, the harasser may continue the offensive behavior. The grievant is never under any obligation to come into contact with the harasser in ways that are uncomfortable. Instead, the grievant can consider all the informal and formal means available for resolution and choose what seems most useful and workable in the particular case. In the most serious instances of sexual harassment, it is unreasonable to expect grievants to confront their perceived harassers; in these cases, the grievant should enlist the help of a trained third party such as the Title IX Coordinator, a dean, or another person trained in this area. Students are never required to work out problems directly with the alleged harasser, and while voluntary mediation or informal dispute resolution may be appropriate in certain types of disputes, not involving sexual violence, a victim always has the right to file a formal complaint under the process described below.

    It is important to remember that any member of the community can be guilty of sexually harassing any other member regardless of position of authority or status. Although students have often found it difficult to come forward when the perceived harasser is in a position of authority or is threatening, procedures are in place to respond and to provide support throughout the resolution process. Further, as explained below, it is a violation of College policy for anyone to retaliate against a person for reporting acts of sexual misconduct and the College will promptly respond to any acts of retaliation.

    5. Indecent Exposure

    Pennsylvania law regulates nudity and indecent exposure. Severe consequences can occur from breaking this law including being placed on the registry of sexual offenders. College policy follows the state laws and does not permit public nudity.

    B. Support Services in the Event of a Sexual Assault

    The College has several major concerns in the event of a sexual assault: to provide physical safety, emotional support and medical care to the survivor. The College will also help the survivor seek resolution through internal and/or criminal methods if that is desired and will take whatever actions are necessary and appropriate to investigate and resolve situations involving sexual misconduct which create a hostile environment at the College. 

    If you are assaulted you should:

    1. Go to a safe place

    2. Seek support from someone you trust

    3. Seek medical attention

    Obtaining Medical Care

    Go to Worth Health Center (x8058)

    Worth is staffed 24 hours a day to assist students. The survivor will be examined by a nurse who will assess the survivor's injuries. Once stable, the survivor has the option of going to the hospital for care, or seeing a nurse practitioner at the Health Center. The primary purpose of the medical evaluation is to check for physical injuries, presence of sexually transmitted diseases, and pregnancy as a result of the rape. The survivor will be encouraged to have evidence collected. If the survivor chooses to have evidence
collected, the survivor will be escorted to the nearest hospital by Public Safety. The survivor can later return to Worth Health Center for follow-up medical care. Another resource available is Counseling and Psychological Services (CAPS). While at the Health Center, the survivor may request to speak with a CAPS counselor.

    Go to the Emergency Room of the nearest hospital

    At the emergency room an examination and collection of evidence will take place. The hospital will either complete a rape kit or transfer you to a nearby hospital that will do so. The survivor should not shower, bathe, douche, smoke, drink, or change clothes between the time of the incident and the time of the collection of evidence. The survivor should bring a change of clothes including underwear. The police and Women Against Rape (WAR) will be notified. WAR will be present to provide support for the survivor. Most hospitals have a policy to report all rapes. Going to collect evidence does not mean that the survivor must press charges.

    Confidential Supportive Resources

    In the event that the survivor desires confidential consultation with someone on campus for support, professionals of the following departments can provide confidential support:

    • Worth Health Center               
    • Counseling and Psychological Services
    • Alcohol and Drug Intervention Specialist
    • Religious Advisors

    Reporting by Confidential Resource Personnel

    Because these relationships involve privileged conversations, employees of these departments will not refer the survivor's concerns to the Title IX Coordinator for investigation UNLESS the survivor specifically consents for them to do so. Worth Health Center personnel will make an anonymous statistical Clery report to Public Safety, where appropriate. Annual Clery reporting to the U.S. Department of Education is required by educational institutions for certain offenses that have been reported at campus locations. The information contained in the Clery report only tracks the number of Clery reportable offenses occurring at campus locations, but does not include the names of any other information about the persons involved in the incident. In accordance with the U.S. Department of Education regulations, Clery statistics [may] not include incidents shared solely with CAPS or Religious Advisors/Clergy personnel.

    Additional Support Services

    In addition to medical support, a survivor can also seek out the deans for specific support related to academics and help in communicating with faculty and they can specifically talk with the Assistant Dean of Residential Life about a new room assignment, if this is appropriate. The Title IX Coordinator, the RAs, and SMART Team members are also available for support and comfort.

    The survivor may use any of these support options, without choosing to press charges or making a formal complaint. However, the survivor should know that when contacting any support option that is not specifically listed as a confidential resource above, a referral will be made to the Title IX Coordinator, Sharmaine LaMar, for investigation.

    C. Reporting a Sexual Assault to Public Safety or the Borough Police

    Call Public Safety

    If the sexual assault has been by a person who is not known or if there is danger the assailant may make an immediate escape from campus, the victim or someone else should call Public Safety at 610-328-8333 immediately. The person answering the phone will have a list of questions to ask, will get a description of the suspect, and will immediately mobilize help for the survivor. They will rush to detain the suspect and publish an immediate security brief. It is important to note that the community may be alerted to the presence of danger without identifying the victim. This will be done to help prevent further incidents on campus. Public Safety may also notify the Swarthmore Borough Police, providing a description of the suspect. If the Borough Police are notified, and a suspect is caught, the case may be handed to a local prosecutor for a potential trial. Public Safety will also notify the Title IX Coordinator.

    Call Swarthmore Borough Police (911)

    Promptly reporting incidents to the police will enable the authorities to gather important evidence for investigations and potential hearings. The police will interview the survivor and gather evidence. They may contact a counselor from WAR (Women Against Rape). If the survivor has been assaulted by someone s/he does not know, they will attempt to apprehend the suspect. Swarthmore Borough Police generally escort the survivor directly to the emergency room. Public Safety will have access to any call made to Swarthmore Borough Police. The College will assist a student in notifying law enforcement 
authorities if the student requests the assistance of these personnel. Reporting promptly will enable police authorities to gather evidence needed for potential future hearings.

    D. Reporting, [Confidentiality], and Investigation

    [Anyone who has reason to believe that a community member has been involved in sexual misconduct is strongly urged to report the incident to the Title IX Coordinator, Public Safety, a dean, or to any other resource persons identified on the Sexual Misconduct Resource Chart. Employees of the college are obligated to report every allegation of sexual misconduct. Reports of sexual misconduct may come from any source like, community members, parents, visitors, alumni.]

    Regardless of whether a victim of sexual misconduct initiates formal proceedings, where 
the College has reason to know about possible sexual misconduct, it has an independent obligation to promptly investigate the matter and then take appropriate steps to resolve the situation. Therefore, where a victim shares information about sexual misconduct with a college employee (excluding the confidential providers in the Health Center, CAPS, the Alcohol and Drug Intervention Specialist, or Religious Advisors), the employee [is obligated to] refer the matter to the Title IX Coordinator for investigation. The College will consult with the complainant and seek [] consent before beginning an investigation. If the complainant requests confidentiality or asks that the complaint not be pursued, the school will take all reasonable steps to investigate and respond to the incident consistent with the request for confidentiality or request that the matter not be investigated. In considering a request for confidentiality or a request that the investigation not be pursued, the College will consider, among other things, the seriousness of the alleged harassment, the complainant's age, and whether there have been other harassment complaints about the same individuals. Because of the College's independent obligation to ensure an educational environment free from harassment, it cannot guarantee confidentiality under all circumstances when it is requested.

    Investigation Process: Once a report of sexual misconduct is made to the Title IX Coordinator, she will then oversee an investigation of the complaint, which will be conducted either by herself, Public Safety, or another investigator with appropriate training in responding to allegations of sexual misconduct. The investigator will conduct the investigation in the manner appropriate in light of the circumstances of the case, which may include interviews with the complainant, the accused, and any witnesses. Once the investigation is complete, the investigator will issue a report setting forth the factual findings of the investigation. This report will usually be completed within 20 (twenty) business days of receiving the complaint, but may take longer or shorter depending on the complexity of the circumstances of each case. In no case will [a resolution take] longer than 60 days. The report will be forwarded to the Dean's Office and included in the evidence for any judiciary action. The accused and accuser will have the opportunity to file a written response to the investigator's report, which will also be included in the evidence. The report will be factual 
in nature and will not make a finding as to the student's guilt or innocence, which is reserved exclusively for a Dean's Adjudication or the College Judiciary Committee Panel hearing the case.

    Where the allegations [are against] a student, the [Title IX Coordinator], will have the discretion to institute formal proceedings against the student with the investigation report serving as the complaint. In making this determination, the [Title IX Coordinator] will, among other things, take into consideration whether the accusing student has requested confidentiality, whether the accusing student wants to participate in a formal complaint, the severity and impact of the sexual misconduct, whether the accused admits to the sexual misconduct, whether the accused has a pattern of committing sexual misconduct, the extent of prior remedial methods taken with the accused. Even if formal proceedings are not pursued, the Dean's Office will have the discretion to require the accused to participate in remedial measures that ensure sufficient education and counseling of the College's policies. Disciplinary action may also be taken in the absence of formal [CJC] proceedings, where the accused admits to the misconduct, [] there is no discernible dispute in the relevant facts of the investigation report, [and the remedies allowable under a Dean's Adjudication are sufficient and appropriate].

    If the allegations [are not against] a student, the Title IX Coordinator will nonetheless fully investigate the allegations and take whatever remedial action is appropriate, including invoking the procedures described in either the Faculty and Instructional Staff Handbook or the Staff Handbook, when the conduct involves College faculty or staff members.

    The Title IX Coordinator will register each request for assistance in resolving a case involving charges of sexual misconduct, whether formal or informal, and will review and retain copies of all reports generated as a result of investigations. These records will be kept confidential to the extent permitted by law.

    Please review the procedures outlined in the Judicial Procedures and Conflict Resolution sections of the handbook for more detailed information about both the formal and informal processes available within the College. Complainants always have the option of filing a complaint in civil or criminal court or with the Office of Civil Rights.

    E. Filing a Complaint Involving Sexual Misconduct

    Charges of sexual misconduct may be handled according to either informal (see Conflict Resolution) or formal procedures (see Judicial System). A victim of sexual misconduct is never required to engage in informal procedures, and informal procedures are never appropriate where sexual assault is involved. Regardless of whether or not options for resolution are pursued within the College system, it is important to note that discussing concerns with or seeking clarification or support from Beth Kotarski, Director of Health Services, Sharmaine LaMar, Title IX Coordinator, one of the deans, or others does not obligate a person to file a formal complaint initiating judicial procedures.

    When a formal complaint is filed against a student of the College, the complaint should be filed in accordance with the Judicial Procedures outlined in another section of the Student Handbook. Complaints involving allegations of sexual misconduct will be referred first to the Title IX Coordinator for investigation.

    F. Retaliation: Any [person] who files a complaint, or participates in a resolution process as a witness, has the right to freedom from intimidation and retaliation. Retaliation includes threats, intimidation, or reprisals. The College strictly prohibits retaliation by any [community member] against a person who makes a report of sexual harassment or sexual misconduct, assists someone with a report, or participates in any aspect of the investigation or resolution of a report. Any violation of this non-retaliation policy will face serious judicial consequences.

    Page last updated: September 21, 2012
    [Text in brackets] represents clarifications made since the publication of the Sexual Misconduct Policy in the 2012-13 Student Handbook and Planner (pp. 131-136).