General Statement of Policy and Notice of Non-Discrimination

Earlham College (“the College”) and the Earlham School of Religion (“the School”) are committed to the values clearly stated in our Principles and Practices document: respect for persons, integrity, peace and justice, simplicity and community. These principles undergird our Sexual Harassment Policy (“the Policy”) and guide the College and School’s conduct processes.

Earlham is committed to providing an educational and workplace environment, as well as other benefits, programs, and activities, that are free from discrimination, harassment, and retaliation. To ensure compliance with federal and state civil rights laws and regulations, and to affirm its commitment to promoting the goals of fairness and equity in all aspects of the educational program or activity, Earlham has developed internal policies and procedures that provide a prompt, fair, and impartial process for those involved in an allegation of sexual harassment, and for allegations of retaliation. Earlham values and upholds the equal dignity of all members of its community and strives to balance the rights of the parties in the grievance process during what is often a difficult time for all those involved.

Quick Links

File a Formal Complaint
Speak to Someone in the Office of Title IX
Review the Sexual Harassment Policy Violation Grievance Procedures

Scope of the Policy

The core purpose of the Policy is the prohibition of sexual harassment which includes: sexual assault, stalking, sexual exploitation, dating violence or domestic violence. When an alleged violation of the Policy is reported, the allegations are subject to grievance procedures detailed below (see page 28).

When the Respondent is a member of the Earlham community, a grievance process may be available regardless of the status of the Complainant, who may or may not be a member of the Earlham community. This community includes, but is not limited to, students, student organizations, faculty, administrators, staff, and third parties such as guests, visitors, volunteers and invitees.

The procedures below may be applied to incidents, to patterns, and/or to the campus climate, all of which may be addressed and investigated in accordance with the Policy.

Title IX Coordinator

The Title IX Coordinator and oversees implementation of Earlham’s Sexual Harassment Policy. The Title IX Coordinator has the primary responsibility for coordinating Earlham’s efforts related to the intake, investigation, resolution, and implementation of supportive measures to stop, remediate, and prevent discrimination, harassment, and retaliation prohibited under the Policy.

Independence and Conflict-of-Interest

The Title IX Coordinator manages the Office of Title IX and acts with independence and authority free from bias and conflicts of interest. The Title IX Coordinator oversees all resolutions under this policy and these procedures. Members of the Office of Title IX are vetted and trained to ensure they are not biased for or against any party in a specific case, or for or against Complainants and/or Respondents, generally.

To raise any concern involving bias or conflict of interest by the Title IX Coordinator, contact the Senior Vice President for Finance and Administration, Stacy Lutz Davidson at [email protected]. Concerns of bias or a potential conflict of interest by any other Title IX Team member should be raised with the Title IX Coordinator.

Reports of misconduct or discrimination committed by the Title IX Coordinator should be reported to the Senior Vice President of Finance and Administration, Stacy Lutz Davidson at [email protected] or designee. Reports of misconduct or discrimination committed by any other member involved in a Title IX process should be reported to the Title IX Coordinator.

Administrative Contact Information

Complaints or notice of alleged policy violations, or inquiries about or concerns regarding this policy and procedures, may be made internally to:

General Contact for the Office of Title IX

Visit https://earlham.edu/title-ix-information
Email: [email protected]

Title IX Coordinator

Bonita Washington-Lacey, M.A.
Interim Director of Title IX
Earlham Hall
Student Life 103
Phone: 765-983-1472
Email: [email protected]

Deputy Title IX Coordinator for Athletics

Cathryn Dickman, MPH
Athletics and Wellness Center, Office 2105
Phone: 765-983-1889
Email: [email protected]

Inquiries may be made externally to:

Office for Civil Rights (OCR)
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-1100
Customer Service Hotline #: 800-421-3481
Fax: 202-453-6012
TDD#: 877-521-2172
Email: [email protected]
Web: http://www.ed.gov/ocr

Office for Civil Rights (OCR)-Chicago Office
U.S. Department of Education
John C. Kluczynski Building
230 S. Dearborn Street, 37th Floor
Chicago, IL 60604
Telephone: 312-730-1560
Fax: 312-730-1576
TDD#: 800-877-8339
Email: [email protected]

For complaints involving employees, please refer to the Equal Employment Opportunity Commission (EEOC) of the United States Government. The EEOC has jurisdiction over Title IX employment claims. Please consult: http://www.eeoc.gov/field/index.cfm to locate the local office’s contact info.

Confidential Community Resources

Reports made to the Title IX Coordinator will be kept private but not confidential. For confidential communication, please contact one of the following on-campus or community confidential resources: Health Services, Counseling Services, Office of Religious Life, or Earlham College’s Ompudsperson.

Campus Resources

Title IX: 765-983-1346

Earlham’s Title IX website: https://earlham.edu/title-ix-information/ Public Safety: 765-983-1400 (24 Hours)

Health Services: 765-983-1328

Counseling Services: 765-983-1432

Religious Life/Ombudsperson: 765-983-1413

Community Resources

A Better Way Rape & Domestic Violence Crisis Center: 765-966-0538 Reid Hospital: 765-983-3000

Rape, Abuse, Incest National Hotline (RAINN): 1-800-656-HOPE (4673)

Notice/Complaints of Sexual Harassment, Sex- and Gender-Based Discrimination, and/or Retaliation

Notice or complaints of sexual harassment and/or retaliation may be made using any of the following options:

  1.   File a complaint with, or give verbal notice to, the Title IX Coordinator or Deputy Title IX Coordinator through the contact information listed above. Such a report may be made at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator or any other official listed.
  2. Report online using the reporting form posted here.

Anonymous reports are accepted but can give rise to a need to investigate. Earlham is mandated to offer supportive measures to all Complainants, which is impossible with an anonymous report. Because reporting carries no obligation to initiate a formal response, and as Earlham respects Complainant requests to dismiss complaints unless there is a compelling threat to health and/or safety, the Complainant is largely in control and should not fear a loss of privacy by making a report that allows Earlham to discuss and/or provide supportive measures.

A Formal Complaint means a document filed/signed by the Complainant or signed by the Title IX Coordinator alleging a policy violation by a Respondent and requesting that the Recipient investigate the allegation(s). A complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information in the section immediately above, or as described in this section. As used in this paragraph, the phrase “document filed by a Complainant” means a document or electronic submission that contains the Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the person filing the complaint.

If notice is submitted in a form that does not meet this standard, the Title IX Coordinator will contact the Complainant to ensure that it is filed correctly.

Supportive Measures

Earlham will offer and implement appropriate and reasonable supportive measures to the parties upon notice of alleged harassment, discrimination, and/or retaliation.

Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the parties to restore or preserve access to the College or School’s education program or activity, including measures designed to protect the safety of all parties or Earlham’s educational environment, and/or deter harassment, discrimination, and/or retaliation.

The Title IX Coordinator promptly makes supportive measures available to the parties upon receiving notice or a complaint. At the time that supportive measures are offered, Earlham will inform the Complainant, in writing, that they may file a formal complaint either at that time or in the future, if they have not done so already. The Title IX Coordinator works with the Complainant to ensure that their wishes are considered with respect to the supportive measures that are planned and implemented.

Earlham will maintain the privacy of the supportive measures, provided that privacy does not impair Earlham’s ability to provide the supportive measures. Earlham will act to ensure as minimal an academic impact on the parties as possible. Earlham will implement measures in a way that does not unreasonably burden the other party.

These actions may include, but are not limited to:

  • Referral to counseling, medical, and/or other healthcare services
  • Referral to community-based service providers
  • Visa and immigration assistance
  • Student financial aid counseling
  • Education to the community or community subgroup(s)
  • Altering campus housing assignment(s)
  • Altering work arrangements for employees or student-employees
  • Safety planning
  • Providing campus safety escorts
  • Providing transportation accommodations
  • Implementing contact limitations (no contact directives) between the parties
  • Academic support, extensions of deadlines, or other course/program-related adjustments
  • Trespass, Persona Non Grata (PNG), or Be-On-the-Lookout (BOLO) order
  • Class schedule modifications, withdrawals, or leaves of absence
  • Increased security and monitoring of certain areas of the campus
  • Any other actions deemed appropriate by the Title IX Coordinator

Violations of no contact orders will be referred to appropriate student or employee conduct processes for enforcement.

Orders of Protection, No Contact Directives, Restraining Orders, or Similar Lawful Orders

Earlham College complies with Indiana law in recognizing Order of Protection, No Contact Directives, Restraining Orders, or other similar lawful orders.

If a campus community member or visitor has a valid court order, please inform Earlham’s Department of Public Safety. Provide a copy of the valid order to Earlham’s Department of Public Safety and to the Title IX Office so the order is on file. If an individual wishes to file for an Order of Protection, this can be done at the Wayne County Courthouse in Richmond, IN.

A No Contact Directive (NCD) may be issued by the Title IX Coordinator as a supportive measure, informal resolution item, or sanction when there is a reasonable fear of safety for the victim, including where there is the potential for bullying, intimidation, threat, or retaliation due to previous experience or other patterns of conduct. A violation of the terms of the NCD will result in a referral to the student conduct process outlined in Earlham’s Student Code of Conduct.

Emergency Removal

Earlham can act to remove a Respondent entirely or partially from its education program or activities on an emergency basis when an individualized safety and risk analysis has determined that an immediate threat to the physical health or safety of any student or other individual justifies removal. This risk analysis is performed by the Title IX Coordinator in conjunction with the Threat Assessment Team using its standard objective violence risk assessment procedures.

In all cases in which an emergency removal is imposed, the student, or employee, will be given notice of the action and the option to request to meet with the Title IX Coordinator prior to such action/removal being imposed, or as soon thereafter as reasonably possible, to show cause why the action/removal should not be implemented or should be modified.

This meeting is not a hearing on the merits of the allegation(s), but rather is an administrative process intended to determine solely whether the emergency removal is appropriate. When this meeting is not requested within five (5) academic days, objections to the emergency removal will be deemed waived. A Complainant and their Advisor may be permitted to participate in this meeting if the Title IX Coordinator determines it is equitable to do so. This section also applies to any restrictions that a coach or athletic administrator may place on a student-athlete arising from allegations related to Title IX. There is no appeal process for emergency removal decisions.

A Respondent may be accompanied by an Advisor of their choice when meeting with the Title IX Coordinator for the show cause meeting. The Respondent will be given access to a written summary of the basis for the emergency removal prior to the meeting to allow for adequate preparation.

The Title IX Coordinator has sole discretion under this policy to implement or stay an emergency removal and to determine the conditions and duration. Violation of an emergency removal under this policy will be grounds for discipline, which may include expulsion or termination.

Earlham will implement the least restrictive emergency actions possible in light of the circumstances and safety concerns. As determined by the Title IX Coordinator, these actions could include, but are not limited to: removing a student from a residence hall, temporarily re- assigning an employee, restricting a student’s or employee’s access to or use of facilities or equipment, allowing a student to withdraw or take grades of incomplete without financial penalty, authorizing an administrative leave, and suspending a student’s participation in extracurricular activities, student employment, student organizational leadership, or intercollegiate/intramural athletics.

At the discretion of the Title IX Coordinator, alternative coursework options may be pursued to ensure as minimal an academic impact as possible on the parties.

Promptness

All allegations are acted upon promptly by Earlham once it has received notice or a formal complaint. Complaints can take sixty-ninety (60-90) academic days to resolve, typically. There are always exceptions and extenuating circumstances that can cause a resolution to take longer, but Earlham will avoid all undue delays within its control.

Any time the general timeframes for resolution outlined in Earlham’s procedures will be delayed, Earlham will provide written notice to the parties of the delay, the cause of the delay, and an estimate of the anticipated additional time that will be needed as a result of the delay.

Privacy and Confidentiality

Every effort is made by Earlham to preserve the privacy of reports.1 Earlham will not share the identity of any individual who has made a report or complaint of harassment, discrimination, or retaliation; any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, or any witness, except as permitted by the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g; FERPA regulations, 34 CFR part 99; or as

required by law; or to carry out the purposes of federal law 34 CFR Part 106, including the conducting of any investigation, hearing, or grievance proceeding arising under these policies and procedures.

Earlham reserves the right to designate which Earlham officials have a legitimate educational interest in being informed about incidents that fall within this policy, pursuant to the Family Educational Rights and Privacy Act (FERPA). Only a small group of officials who need to know will typically be told about the complaint, including but not limited to: the Office of Student Life, the Office of Academic Affairs, the Office of Finance and Administration, the Department of Public Safety, and the Department of Counseling Services. Information will be shared as necessary with Investigators, Hearing Panel members, witnesses, and the parties. The circle of people with this knowledge will be kept as tight as possible to preserve the parties’ rights and privacy.

Earlham may contact parents/guardians to inform them of situations in which there is a significant and articulable health and/or safety risk, but will usually consult with the student first before doing so.

Confidentiality and mandated reporting are addressed more specifically below.

For the purpose of this policy, privacy and confidentiality have distinct meanings.

  • Privacy means that information related to a complaint will be shared with a limited number of Earlham’s employees who “need to know” in order to assist in the assessment, investigation, and resolution of the report. All employees who are involved in Earlham’s response to notice under this policy receive specific training and guidance about sharing and safeguarding private information in accordance with state and federal law. Student education records will be protected in accordance with the Family Educational Rights and Privacy Act (FERPA) and related Earlham’s policies. Employee records will be protected in accordance with Human Resources policies.
  • Confidentiality exists in the context of laws that protect certain relationships, including those who provide services related to medical and clinical care, mental health providers, counselors, and ordained clergy. The law creates a privilege between certain health care providers, mental health care providers, attorneys, clergy, spouses, and others, with their patients, clients, parishioners, and spouses. Earlham has designated individuals who have the ability to have privileged communications as Confidential Resources. When information is shared by a Complainant with a Confidential Resource, the Confidential Resource cannot reveal the information to any third party except when an applicable law or a court order requires or permits disclosure of such information. Non-identifiable information may be shared by Confidential Resources for statistical tracking purposes as required by the federal Clery Act. Other information may be shared as required by law.

Jurisdiction of Earlham

This policy applies to the education program and activities of Earlham College and Earlham School of Religion, to conduct that takes place on the campus or on property owned or controlled by Earlham, at Earlham-sponsored events, or in buildings owned or controlled by Earlham recognized student organizations. The Respondent must be a member of Earlham’s community in order for its policies to apply.

This policy can also be applicable to the effects of off-campus misconduct that effectively deprive someone of access to Earlham’s educational program. Earlham may also extend jurisdiction to off-campus and/or to online conduct when the Title IX Coordinator determines it is necessary.

Regardless of where the conduct occurred, Earlham will address notice/complaints to determine whether the conduct occurred in the context of its employment or educational program or activity and/or has continuing effects on campus or in an off-campus sponsored program or activity.

A substantial Earlham interest includes:

  1. Any action that constitutes a criminal offense as defined by law. This includes, but is not limited to, single or repeat violations of any local, state, or federal law;
  2. Any situation in which it is determined that the Respondent poses an immediate threat to the physical health or safety of any student or other individual;
  3. Any situation that significantly impinges upon the rights, property, or achievements of oneself or others or significantly breaches the peace and/or causes social disorder; and/or
  4. Any situation that is detrimental to the educational interests or mission of Earlham.

If the Respondent is unknown or is not a member of the Earlham community, the Title IX Coordinator will assist the Complainant in identifying appropriate campus and local resources and support options and/or, when criminal conduct is alleged, in contacting local or campus law enforcement if the individual would like to file a police report.

Further, even when the Respondent is not a member of Earlham’s community, supportive measures, remedies, and resources may be accessible to the Complainant by contacting the Title IX Coordinator.

In addition, Earlham may take other actions as appropriate to protect the Complainant against third parties, such as barring individuals from Earlham’s property and/or events.

All vendors serving Earlham through third-party contracts are subject to the policies and procedures of their employers and to these policies and procedures to which their employer has agreed to be bound by their contracts.

When the Respondent is enrolled in or employed by another institution, the Title IX Coordinator can assist the Complainant in liaising with the appropriate individual at that institution, as it may be possible to allege violations through that institution’s policies.

Similarly, the Title IX Coordinator may be able to advocate for a student or employee Complainant who experiences sexual harassment in an externship, study abroad program, or other environment external to Earlham where sexual harassment policies and procedures of the facilitating or host organization may give recourse to the Complainant.

Time Limits on Reporting

There is no time limitation on providing notice/complaints to the Title IX Coordinator. However, if the Respondent is no longer subject to Earlham’s jurisdiction and/or significant time has passed, the ability to investigate, respond, and provide remedies may be more limited or impossible.

Acting on notice/complaints significantly impacted by the passage of time (including, but not limited to, the rescission or revision of policy) is at the discretion of the Title IX Coordinator, who may document allegations for future reference, offer supportive measures and/or remedies, and/or

engage in informal or formal action, as appropriate. When notice/complaint is affected by a significant time delay, Earlham will typically apply the policy in place at the time of the alleged misconduct and the procedures in place at the time of notice/complaint.2

2 There is an argument to be made to apply current policy definitions to past misconduct, but such an approach would have to be consented to by the parties and/or carefully vetted with legal counsel.

Online Harassment and Misconduct

The policies of Earlham are written and interpreted broadly to include online and cyber manifestations of any of the behaviors prohibited below, when those behaviors occur in or have an effect on Earlham’s education program and activities or use Earlham networks, technology, or equipment.

While Earlham may not control websites, social media, and other venues in which harassing communications are made, when such communications are reported to Earlham, it will engage in a variety of means to address and mitigate the effects.

Members of the community are encouraged to be good digital citizens and to refrain from online misconduct, such as feeding anonymous gossip sites, sharing inappropriate content via Snaps or other social media, unwelcome sexting, revenge porn, breaches of privacy, or otherwise using the ease of transmission and/or anonymity of the Internet or other technology to harm another member of Earlham’s community. Otherwise, such communications are considered speech protected by the First Amendment. Supportive measures for Complainants will be provided, but protected speech cannot legally be subjected to discipline.

Off-campus harassing speech by employees, whether online or in person, may be regulated by Earlham only when such speech is made in an employee’s official or work-related capacity.

Definitions of Sexual Misconduct

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of Indiana regard Sexual Harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice.

In line with Earlham has adopted the following definition of sexual harassment in order to address the unique environment of an academic community, which consists not only of employer and employees, but of students as well. Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.

As a result of the U.S. Department of Education’s Final Rule under Title IX of the Education Amendments of 1972 issued on May 19, 2020, Earlham must narrow both the 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 formal grievance process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a formal hearing for adjudication of policy violation.

Earlham College and the Office of Title IX remain committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule. To the extent that alleged misconduct falls outside the Sexual Harassment Policy, or misconduct falling outside the Sexual Harassment Policy is discovered in the course of investigating covered sexual misconduct, Earlham retains authority to refer involved parties to the appropriate student or employee conduct process. Alleged academic and social conduct violations for students will be addressed per the Student Code of Conduct and associated processes. Alleged misconduct of employees will be addressed per the Faculty and Staff handbooks and associated college policies and processes as appropriate.

Sexual Harassment

Sexual Harassment, as an umbrella category, includes the offenses of sexual harassment, sexual assault, intimate partner violence (domestic violence and dating violence), and stalking, and is defined as:

Conduct on the basis of sex that satisfies one or more of the following:

Quid Pro Quo:

  1. an employee of Earlham,
  2. conditions the provision of an aid, benefit, or service of Earlham,
  3. on an individual’s participation in unwelcome3 sexual conduct; and/or

3 Unwelcome sexual or other conduct is subjective and determined by the Complainant (except when the Complainant is below the age of consent). Severity, pervasiveness, and objective offensiveness are evaluated based on the totality of the circumstances from the perspective of a reasonable person in the same or similar circumstances (“in the shoes of the Complainant”), including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.

Sexual Harassment

  1. unwelcome conduct,
  2. determined by a reasonable person,
  3. to be so severe, and
  4. pervasive, and,
  5. objectively offensive,
  6. that it effectively denies a person equal access to Earlham’s education program or activity.
  7. conditions the provision of an aid, benefit, or service of Earlham,
  8. on an individual’s participation in unwelcome3 sexual conduct; and/or

Sexual assault, defined as:

Sex Offenses, Forcible:
  1. Any sexual act directed against another person,
  2. without the consent of the Complainant,
  3. including instances in which the Complainant is incapable of giving consent.
Forcible Rape:
  1. Penetration,
  2. no matter how slight,
  3. of the vagina or anus with any body part or object, or
  4. oral penetration by a sex organ of another person,
  5. without the consent of the Complainant.
Forcible Sodomy:
  1. Oral or anal sexual intercourse with another person,
  2. forcibly,
  3. and/or against that person’s will (non-consensually), or
  4. not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent due to age or temporary or permanent mental or physical incapacity.
Sexual Assault with an Object:
  1. The use of an object or instrument to penetrate,
  2. however slightly,
  3. the genital or anal opening of the body of another person,
  4. forcibly,
  5. and/or against that person’s will (non-consensually),
  6. or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent due to age or temporary or permanent mental or physical incapacity.
Forcible Fondling:
  1. The touching of the private body parts of another person (buttocks, groin, breasts),
  2. for the purpose of sexual gratification,
  3. forcibly,
  4. and/or against that person’s will (non-consensually), or
  5. not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent due to age or temporary or permanent mental or physical incapacity.
Sex Offenses, Non-forcible:
  1. Incest:
    1. Non-forcible sexual intercourse
    2. Between persons who are related to each other,
    3. within the degrees wherein marriage is prohibited by Indiana law.
  2. Statutory Rape:
    1. Non-forcible sexual intercourse,
    2. with a person who is under the statutory age of consent of 16 (per the state of Indiana)
  3. and/or against that person’s will (non-consensually), or
  4. not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent due to age or temporary or permanent mental or physical incapacity.

Intimate Partner Violence

Intimate Partner Violence, as an umbrella term, encompasses dating violence and domestic violence, and is defined as:

Dating Violence

Dating Violence, defined as:

  1. violence,
  2. on the basis of sex,
  3. committed by a person,
  4. who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.

The existence of such a relationship shall be determined based on the Complainant’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.

  1. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
  2. Dating violence does not include acts covered under the definition of domestic violence.
Domestic Violence

Domestic Violence, defined as:

  1. violence,
  2. on the basis of sex,
  3. committed by a current or former spouse or intimate partner of the Complainant,
  4. by a person with whom the Complainant shares a child in common, or
  5. by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
  6. by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of Indiana or
  7. by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of Indiana.

To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.

Stalking

Stalking, defined as:

  1. engaging in a course of conduct,
  2. on the basis of sex,
  3. directed at a specific person, that
    1. would cause a reasonable person to fear for the person’s safety, or
    2. the safety of others; or
    3. suffer substantial emotional distress

For the purposes of this definition:

  1. Course of conduct means two or more acts, including, but not limited to, acts in which the Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
  2. Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
  3. Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

Earlham reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any offense under this policy.

Force, Coercion, and Incapacitation

As used in the offenses above, the following definitions and understandings apply:

Force

Force: Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” “Okay, don’t hit me, I’ll do what you want.”).

Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

Coercion

Coercion: Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.

Consent

Consent: Consent is an unambiguous, affirmative, and conscious decision by each person to engage in mutually agreed-upon sexual activity. Consent is knowing, voluntary, clear, active, and ongoing permission by word or action to engage in sexual activity.

Since individuals may experience the same interaction in different ways, it is the responsibility of each party to determine that the other has consented before engaging in the activity and with each new sexual act in advance of initiation. Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent.

For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Reasonable reciprocation can be implied. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.

If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction, but clear communication from the outset is strongly encouraged. Consent can also be withdrawn once given with withdrawal reasonably and clearly communicated. If consent is withdrawn, sexual activity should cease immediately.

Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on Earlham to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.

Consent in relationships must also be considered in context. When parties consent to Bondage, discipline/dominance, submission/sadism, and/or masochism (BDSM) or other forms of sexual kink, non-consent may be shown by the use of a safe word. Resistance, force, violence, or even saying “no” may be part of the kink and thus consensual, so Earlham’s evaluation of communication in kink situations should be guided by reasonableness rather than strict adherence to policy that assumes non-kink relationships as a default.

Incapacitation

Incapacitation: A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this policy if they engage in sexual activity with someone who is incapable of giving consent.

It is a defense to a sexual assault policy violation that the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated. “Should have known” is an objective, reasonable person standard which assumes that a reasonable person is both sober and exercising sound judgment.

Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction).

Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.

This policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs.

Other Civil Rights Offenses

In addition to the forms of sexual harassment described above, which fall within the coverage of Title IX, Earlham additionally prohibits the following offenses as forms of discrimination outside of Title IX when the act is based upon the Complainant’s actual or perceived membership in a protected class.

  1. Sexual Exploitation, defined as: taking non-consensual or abusive sexual advantage of another for their own benefit or for the benefit of anyone other than the person being exploited, and that conduct does not otherwise constitute sexual harassment under this policy.

Examples of Sexual Exploitation include, but are not limited to:

  1. Sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed).
  2. Invasion of sexual privacy: Taking pictures, video, or audio recording of another in a sexual act, or in any other sexually-related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent), including the making or posting of revenge pornography.Prostituting another person.Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or a sexually-transmitted disease (STD) or infection (STI), without informing the other person of the infection.
  3. Causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non- consensual sexual activity.
  4. Misappropriation of another person’s identity on apps, websites, or other venues
  5. designed for dating or sexual connections.
  6. Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity.
  7. Knowingly soliciting a minor for sexual activity.
  8. Engaging in sex trafficking.
  9. Creation, possession, or dissemination or child pornography.
  1. Threat of causing physical harm, extreme verbal, emotional, or psychological abuse, or other conduct which threatens or endangers the health or safety of any person;
  2. Sex- or gender-based discrimination, defined as actions that deprive, limit, or deny, on the basis of sex or gender, other members of the community of educational or employment access, benefits, or opportunities;
  3. Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another;
  4. Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the Earlham community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity;
  5. Bullying, defined as an ongoing and deliberate misuse of power in relationships through repeated verbal, physical and/or social behavior that intends to cause physical, social and/or psychological harm. It can involve an individual or a group misusing their power, or perceived power, over one or more persons who feel unable to stop it from happening.

Bullying can happen in person or online via various digital platforms. Bullying is:

  1. Repeated, deliberate, and/or severe;
  2. Likely to intimidate or intentionally hurt, control, or diminish another person, physically and/or mentally;
  3. obvious (overt) or hidden (covert);
  4. not speech or conduct otherwise protected by the First Amendment.

Violation of any other Earlham policies may constitute a Civil Rights Offense when a violation is motivated by actual or perceived membership in a protected class, and the result is a discriminatory limitation or denial of employment or educational access, benefits, or opportunities.

Sanctions for the above-listed Civil Rights Offenses range from reprimand through expulsion or termination.

Retaliation

Protected activity under this policy includes reporting an incident that may implicate this policy, participating in the grievance process, supporting a Complainant or Respondent, assisting in providing information relevant to an investigation, and/or acting in good faith to oppose conduct that constitutes a violation of this Policy.

Acts of alleged retaliation should be reported immediately to the Title IX Coordinator and will be promptly investigated. Earlham is prepared to take appropriate steps to protect individuals who fear that they may be subjected to retaliation.

It is prohibited for Earlham or any member of Earlham’s community to take materially adverse action by intimidating, threatening, coercing, harassing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by 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 this policy and procedure.

Charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment but arise out of the same facts or circumstances as a report or complaint of

sex discrimination, or a report or complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.

The exercise of rights protected under the First Amendment does not constitute retaliation.

Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this policy and procedure does not constitute retaliation, provided that a determination regarding responsibility, alone, is not sufficient to conclude that any party has made a materially false statement in bad faith.

Mandatory Reporting

Earlham employees (faculty, staff, administrators) are expected to report actual or suspected discrimination or harassment to appropriate officials immediately, though there are some limited exceptions.

In order to make informed choices, it is important to be aware of confidentiality and mandatory reporting requirements when consulting campus resources. On campus, some resources may maintain confidentiality and are not required to report actual or suspected discrimination or harassment. They may offer options and resources without any obligation to inform an outside agency or campus official unless a Complainant has requested the information be shared.

If a Complainant expects formal action in response to their allegations, reporting to any Mandatory Reporter can connect them with resources to report crimes and/or policy violations, and these employees will immediately pass reports to the Title IX Coordinator (and/or police, if desired by the Complainant), who will take action when an incident is reported to them.

The following sections describe the reporting options at Earlham for a Complainant or third- party (including parents/guardians when appropriate):

Confidential Resources

If a Complainant would like the details of an incident to be kept confidential, the Complainant may speak with:

  • College resources:
    • College professional counselors and staff
    • Health service providers and staff
    • On-campus members of the clergy/chaplains working within the scope of their licensure or ordination
    • Ombudsperson(s)
  • Off-campus (non-employees):
    • Licensed professional counselors and other medical providers
    • Local rape crisis counselors
    • Domestic violence resources
    • Local or state assistance agencies
    • Clergy/Chaplain/Spiritual Leaders
    • Attorneys

All of the above-listed individuals will maintain confidentiality when acting under the scope of their licensure, professional ethics, and/or professional credentials, except in extreme cases of immediacy of threat or danger or abuse of a minor/elder/individuals with a disability, or when required to disclose by law or court order.

Campus counselors and/or the Employee Assistance Program are available to help free of charge and may be consulted on an emergency basis during normal business hours.

Earlham employees who are confidential will timely submit anonymous statistical information for Clery Act purposes unless they believe it would be harmful to their client, patient, or parishioner.

Anonymous Notice to Mandatory Reporters

At the request of a Complainant, notice may be given by a Mandatory Reporter to the Title IX Coordinator anonymously, without identification of the Complainant. The Mandatory Reporter cannot remain anonymous themselves.

If a Complainant has requested that a Mandatory Reporter maintain the Complainant’s anonymity, the Mandatory Reporter may do so unless it is reasonable to believe that a compelling threat to health or safety could exist. The Mandatory Reporter can consult with the Title IX Coordinator on that assessment without revealing personally identifiable information.

Anonymous notice will be investigated by Earlham to the extent possible, both to assess the underlying allegation(s) and to determine if supportive measures or remedies can be provided.

However, anonymous notice typically limits the Recipient’s ability to investigate, respond, and provide remedies, depending on what information is shared.

When a Complainant has made a request for anonymity, the Complainant’s personally identifiable information may be withheld by a Mandatory Reporter, but all other details must be shared with the Title IX Coordinator. Mandatory reporters may not be able to maintain requests for anonymity for Complainants who are minors, elderly, and/or disabled, depending on state reporting of abuse requirements.

When a Complainant Does Not Wish to Proceed

If a Complainant does not wish for their name to be shared, does not wish for an investigation to take place, or does not want a formal complaint to be pursued, they may make such a request to the Title IX Coordinator, who will evaluate that request in light of the duty to ensure the safety of the campus and to comply with state or federal law.

The Title IX Coordinator has final discretion over whether Earlham proceeds when the Complainant does not wish to do so, and the Title IX Coordinator may sign a formal complaint to initiate a grievance process upon completion of an appropriate violence risk assessment.

The Title IX Coordinator’s decision should be based on results of the violence risk assessment that show a compelling risk to health and/or safety that requires Earlham to pursue formal action to protect the community.

A compelling risk to health and/or safety may result from evidence of patterns of misconduct, predatory conduct, threats, abuse of minors, use of weapons, and/or violence. Earlham may be compelled to act on alleged employee misconduct irrespective of a Complainant’s wishes.

The Title IX Coordinator must also consider the effect that non-participation by the Complainant may have on the availability of evidence and Earlham’s ability to pursue a formal grievance process fairly and effectively.

When the Title IX Coordinator executes the written complaint, they do not become the Complainant. The Complainant is the individual who is alleged to be the victim of conduct that could constitute a violation of this policy.

When Earlham proceeds, the Complainant (or their Advisor) may have as much or as little involvement in the process as they wish. The Complainant retains all rights of a Complainant under this Policy irrespective of their level of participation. Typically, when the Complainant chooses not to participate, the Advisor may be appointed as proxy for the Complainant throughout the process, acting to ensure and protect the rights of the Complainant.

Note that Earlham’s ability to remedy and respond to notice may be limited if the Complainant does not want the College to proceed with an investigation and/or grievance process. The goal is to provide the Complainant with as much control over the process as possible, while balancing the College’s obligation to protect its community.

In cases in which the Complainant requests confidentiality/no formal action and the circumstances allow Earlham to honor that request, the College will offer informal resolution options (see below), supportive measures, and remedies to the Complainant and the community, but will not otherwise pursue formal action.

If the Complainant elects to take no action, they can change that decision if they decide to pursue a formal complaint at a later date. Upon making a formal complaint, a Complainant has the right, and can expect, to have allegations taken seriously by Earlham, and to have the incidents investigated and properly resolved through these procedures.

Federal Timely Warning Obligations

Parties reporting sexual assault, domestic violence, dating violence, and/or stalking should be aware that under the Clery Act, Earlham must issue timely warnings for incidents reported to them that pose a serious or continuing threat of bodily harm or danger to members of the campus community. Earlham will ensure that a Complainant’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the potential danger.

False Allegations and Evidence

Deliberately false and/or malicious accusations under this policy, as opposed to allegations which, even if erroneous, are made in good faith, are a serious offense and will be subject to appropriate disciplinary action. Additionally, witnesses and parties knowingly providing false evidence, tampering with, or destroying evidence after being directed to preserve such evidence or deliberately misleading an official conducting an investigation can be subject to discipline under the appropriate conduct policies and procedures.

Amnesty for Complainants and Witnesses

Earlham encourages the reporting of misconduct and crimes by Complainants and Witnesses. Sometimes, Complainants or witnesses are hesitant to report to officials or participate in grievance processes because they fear that they themselves may be in violation of certain policies, such as underage drinking or use of illicit drugs at the time of the incident. Respondents may hesitate to be forthcoming during the process for the same reasons.

It is in the best interests of the Earlham community that Complainants choose to report misconduct to College officials, that witnesses come forward to share what they know, and that all parties be forthcoming during the process. To encourage reporting and participation in the process, Earlham maintains a policy of offering parties and witnesses amnesty from minor policy violations – such as underage consumption of alcohol or the use of illicit drugs – related to the incident.

Amnesty does not apply to more serious allegations such as physical abuse of another or illicit drug distribution. The decision not to offer amnesty to a Respondent is based on neither sex nor gender, but on the fact that collateral misconduct is typically addressed for all students within a progressive discipline system, and the rationale for amnesty – the incentive to report serious misconduct – is rarely applicable to Respondent with respect to a Complainant.

Students: Sometimes, students are hesitant to assist others for fear that they may get in trouble themselves (for example, an underage student who has been drinking or using marijuana might hesitate to help take an individual who has experienced sexual misconduct to Public Safety.

Earlham maintains a policy of amnesty for students who offer help to others in need. While policy violations cannot be overlooked, the Recipient may provide purely educational options with no official disciplinary finding, rather than punitive sanctions, to those who offer their assistance to others in need.

Employees: Sometimes, employees are hesitant to report harassment or discrimination they have experienced for fear that they may get in trouble themselves. For example, an employee who has violated the sexual relationship with student policy and is then assaulted in the course of that relationship might hesitate to report the incident to Earlham officials.

Earlham may, at its discretion, offer employee Complainants amnesty from such policy violations (typically more minor policy violations) related to the incident. Amnesty may also be granted to Respondents and Witnesses on a case-by-case basis.

Federal Statistical Reporting Obligations

Certain campus officials – those deemed Campus Security Authorities (CSAs) – have a duty to report the following for federal statistical reporting purposes (Clery Act):

  1. All “primary crimes,” which include homicide, sexual assault, robbery, aggravated assault, burglary, motor vehicle theft, and arson;
  2. Hate crimes, which include any bias motivated primary crime as well as any bias motivated larceny or theft, simple assault, intimidation, or destruction/damage/vandalism of property;
  3. VAWA*-based crimes, which include sexual assault, domestic violence, dating violence, and stalking; and
  4. Arrests and referrals for disciplinary action for weapons-related law violations, liquor- related law violations, and drug abuse-related law violations.

All personally identifiable information is kept private, but statistical information must be passed along to Public Safety regarding the type of incident and its general location (on or off- campus or in the surrounding area, but no addresses are given) for publication in the Annual Security Report and daily campus crime log.

CSAs include: student life/student conduct staff, public safety, local police, coaches, athletic directors, residence life staff, student engagement staff, human resources staff, advisors to student organizations, and any other official with significant responsibility for student and campus activities.

*VAWA is the Violence Against Women Act, enacted in 1994 codified in part at 42 U.S.C. sections 13701 through 14040.

Policy Review and Amendment

The Office of Title IX, or another designate of the President, is responsible for annually reviewing the contents of this policy for concurrence with federal and state law, as well as the accuracy of roles, titles, and responsibilities included herein.

Amendments to this policy that go beyond minor corrections or amendments to specific roles, titles, and responsibilities require a review and approval by the president and the Board of Trustees.

Clerical Notes

“Administrative Contact Information” Amended, Approved by the President, September 21, 2023.


Adopted by the President July 20, 2020, in Accordance with the Department of Education’s Title IX Final Rule, dated May 6, 2020.