SEXUAL MISCONDUCT POLICY
Barry University is committed to providing the best possible setting for carrying out its educational mission. An essential component of this environment is an atmosphere in which all members of the university community have an equal opportunity to work, to learn, and to develop. The Division of Student Affairs, in an effort to educate students and others, provides programs throughout the year that focus on individual responsibilities regarding sexual misconduct and how to avoid, confront, report and eliminate it from the campus environment.
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”) prohibits discrimination on the basis of sex in education programs or activities. Sexual Misconduct, as defined in this policy, is a form of sex discrimination prohibited by Title IX. Barry University is committed to providing programs, activities and an educational environment free from sex discrimination.
Sexual misconduct offenses include, but are not limited to:
- Sexual Harassment
- Non-Consensual Sexual Contact (or attempts to commit same)
- Non-Consensual Sexual Intercourse (or attempts to commit same)
- Sexual Exploitation
A student’s safety, well being and health are the primary concerns of Barry University. If you or someone you know may be the victim of any type of sexual misconduct, you are strongly urged to seek immediate assistance. Assistance can be obtained, 24 hours a day at
- Miami Shores Police Department 911
- Barry University Public Safety (305) 899-3333 or x3333 from any campus phone
- Dade County Roxy Boulton Rape Treatment Center (305) 585-5185
- Broward County Rape Treatment Center (954) 357-5775
- Switchboard of Miami Crisis Hotline (305) 358-4357
During office hours (Monday through Friday 9:00 am to 5:00 pm) students are strongly urged to contact the Dean of Students (in person in Landon Student Union, suite 101, by telephone (305) 899-4925, or by e-mail at deanofstudents@mail.barry.edu) as soon as possible to report any acts of sexual misconduct you believe may have occurred.
The following university policies and guidelines are established for students who seek information and assistance with intervention strategies should they be a victim of or witness to sexual harassment or assault.
SEXUAL MISCONDUCT
Sexual misconduct encompasses a range of behavior used to obtain sexual gratification against another’s will or at the expense of another. Sexual misconduct includes sexual harassment, sexual assault, and any conduct of a sexual nature that is without consent, or has the effect of threatening or intimidating the person against whom such conduct is directed. State laws vary on defining acts which constitute sexual misconduct.
Generally sexual misconduct can involve, but is not limited to, any of the following acts:
- Intentionally indecent and/or offensive actions that are of a sexual nature including, but not limited to voyeurism, exposure, sexually explicit communication (i.e., electronic and voice messages, photos, pictures, graphics, etc.)
- Sexually explicit touching or attempt of such touching. This includes, but is not limited to, the touching, either directly or through clothing, of another person’s genitalia, breasts, inner thigh, or buttocks of any person with a clothed or unclothed body part or object;
- Exposing his or her genitals under circumstances likely to cause affront or alarm;
- Having sexual contact in the presence of a third person or persons under circumstances likely to cause affront or alarm;
- Having sexual intercourse or deviate sexual intercourse in a public place in the presence of a third person;
- Soliciting or requesting another person to engage in sexual conduct under circumstances in which s/he knows that her/his requests or solicitation is likely to cause affront or alarm.
SEXUAL HARASSMENT
For purposes of this policy, sexual harassment is unwelcome sexual advances, requests for sexual favors, and other physical, verbal, or visual conduct based on sex constitute sexual harassment when:
- submission to the conduct is an explicit or implicit term or condition of employment,
- submission to or rejection of the conduct is used as the basis for an employment decision, or
- the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Sexual harassment is conduct based on sex, whether directed towards a person of the opposite sex or same sex, and may include explicit sexual propositions, sexual innuendo, suggestive comments, sexually oriented “kidding” or “teasing,” “practical jokes,” jokes about obscene or visual material and physical contact such as patting, pinching, or brushing against another person’s body.
Title IX and the university also prohibit gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature.
Some examples of sexual harassment include, but are not limited to:
- Subtle or persistent pressure for sexual activity;
- Unnecessary touching, pinching or brushing against a person;
- Requesting or demanding sexual favors concerning employment, academic activities or other University activities;
- Unwelcome communications (electronic, verbal, written, etc.) of a sexual nature;
- Failure to accept the termination of a consensual relationship with repeated and persistent requests and behavior.
Please refer to complete University policy on Harassment, which can be found under Harassment Policy in this Handbook and/or at
bucwis.barry.edu/hr/pdf/Harassment%20Policy%20Final%205-15-12.pdf
SEXUAL ASSAULT
Sexual assault is physical contact of a sexual nature without clear, voluntary, intelligent, or knowing consent. In the state of Florida, sexual assault is legally referred to as sexual battery and is defined in Florida State Statute 794.011 as “any oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” Individuals cannot give permission or consent if they are obviously incapacitated by any drug or intoxicant. They cannot give consent if they are unaware, unconscious, asleep, or physically or mentally unable to communicate non-consent. Furthermore, individuals cannot be forced, threatened, coerced, or deceived into giving consent, which may be especially pertinent in disciplinary or supervisory relationships.
CONSENT
Consent is an exchange of words or actions that show an active, knowing and voluntary agreement to engage in mutually agreed upon sexually explicit touching or penetration. Consent must be informed, and freely and actively given. Each individual involved in the activity is responsible to either obtain or give consent prior to any sexual activity. If at any time during sexual interaction confusion should arise on the issue of consent, it is the responsibility of each individual involved to stop and clarify, verbally, the other’s willingness to continue. Past consent to sexual activity does not imply future consent.
- Consent may never be given by a minor (in the State of Florida, the age of consent to engage in sexual activity is 18; however, if a person is less than 24 years old, they may enter into consensual sexual contact with a person who is at least 16 years old).
- Consent cannot be obtained through the use of physical force, threats, coercion (this includes the administration of a drug or substance that impairs the faculties of a person) or intimidation.
- Consent may never be given by someone who is physically incapacitated as a result of alcohol or drug consumption (voluntary or involuntary) or who is unconscious, unaware, or otherwise physically helpless. One may not engage in sexual activity with another who one knows or should reasonable know to be physically incapacitated. A student’s use of alcohol and/or drugs shall not diminish the student’s responsibility to obtain consent before engaging in any sexual activity.
Non-Consensual Sexual Contact is:
- any intentional sexual touching,
- however slight,
- with any object,
- by a man or a woman upon a man or a woman,
- that is without consent and/or by force.
Sexual Contact includes contact with the breasts, buttocks, groin, or genitals, or touching another with any of these body parts, or making another touché you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/or/by breasts, buttocks, groin, genitals, mouth or other orifice.
Non-Consensual Sexual Intercourse is
- any sexual intercourse
- however slight,
- with any object,
- by a man or woman upon a man or woman,
- that is without consent and/or by force.
Intercourse includes vaginal penetration by a penis, object, tongue, or finger, anal penetration by a penis, object, tongue, or finger and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.
SEXUAL EXPLOITATION
This occurs when a student takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses.
Examples of sexual exploitation include, but are not limited to:
- Invasion of sexual privacy;
- Prostituting another student;
- Non-consensual video or audio-taping of sexual activity;
- Going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex);
- Engaging in voyeurism;
- Knowingly transmitting an STI or HIV to another student;
- Exposing one’s genitals in non-consensual circumstance; inducing another to expose their genitals;
- Sexually-based stalking and/or bullying may also be forms of sexual exploitation.
INTIMATE PARTNER VIOLENCE
Relationship violence is a pattern of behavior in an intimate relationship that is used to establish power and control over another person through fear and intimidation. This behavior can be verbal, emotional and/or physical. Examples include, but are not limited to: striking another person (slapping, punching, etc.), property damage, reckless behavior, name calling and insults, public humiliation, harassment directed toward friends and/or acquaintances, and verbal and/or physical threats.
STALKING
Stalking involves any behaviors or activities occurring on more than one occasion that collectively instill fear and/or threatened a person’s safety, mental health, and/or physical health. Such behaviors or activities may include, but are not limited to non-consensual communications (i.e., face to face, telephone, mail, email, texting, and social media), threatening or obscene gestures, surveillance, or showing up outside the targeted individual’s classroom, residence or workplace.
OTHER MISCONDUCT OFFENSES (which will fall under Title IX when gender-based)
- Threatening or causing physical harm, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of any person;
- Discrimination, defined as actions that deprive other members of the community of educational or employment access, benefits or opportunities on the basis of gender;
- Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another;
- Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the university community, when related to the admission, initiation, pledging, joining, or any other group affiliation activity (as further defined in the University’s Hazing Policy);
- Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally (that is not speech or conduct otherwise protected by the First Amendment);
- Violence between those in an intimate relationship to each other;
- Stalking, defined as repetitive and/or menacing pursuit, following, harassment and/or interference with the peace and/or safety of a member of the community; of the safety of any of the immediate family members of the community.
SUPPORT AND RESOURCES
The University reserves the right to take whatever measures it deems necessary in response to an allegation of sexual misconduct in order to protect students’ rights and personal safety. Such measures include, but are not limited to, modification of living arrangements, interim suspension from campus pending a hearing, and reporting the matter to the local police. Not all forms of sexual misconduct will be deemed to be equally serious offenses, and the University reserves the right to impose different sanctions, ranging from verbal warning to expulsion, depending on the severity of the offense. The University will consider the concerns and rights of both the complainant and the person accused of sexual misconduct.
The University encourages students to make use of all appropriate resources and will assist students in an allegation of sexual misconduct. The primary resource for student is the Dean of Students, located in Suite 102 and Suite 300 of the Landon Student Union, (305) 899-4926 or (305) 899-3083.
Other resources include:
- Center for Counseling and Psychological Services, Landon Student Union, Suite105 305-899-3950
- Student Health Center, Landon Student Union, Suite 104, 305-899-3750
- Department of Housing and Residence Life, Landon Student Union, Suite 305, 305-899-3875
- Campus Ministry (behind Cor Jesu Chapel) 305-899-3650
- Office of Public Safety, Landon Student Union, Suite 304, 305-899-3333
The University shall enforce this policy through the means of the student conduct system and through enforcement of the Student Code of Conduct. Sexual offenses are considered as major violations of the Student Code of Conduct, and students found responsible are subject to sanctions up to and including expulsion from the university.
STUDENT CODE OF CONDUCT HEARING PROCEDURES
The University, through the Vice President for Student Affairs, has the duty and corollary disciplinary power to protect its educational purpose and objectives through setting standards of conduct.
The Student Conduct process aims to treat alleged victims and accused students with equal care and dignity and also to reach fair and correct results. Student conduct processes and procedures are substantially secondary to the use of example, guidance, counseling, mediation and admonition in the development of responsible student conduct. However, when these preferred means fail to resolve problems of student conduct, procedural safeguards allow for proper action while protecting the student from unfair imposition of serious penalties.
A. Charges
Any member of the University community, department or academic unit may register a complaint of violation of the Student Code of Conduct. A complaint must be prepared in writing and directed to the Student Conduct Coordinator in the Office of the Dean of Students. Any complaint should be submitted as soon as possible after the incident occurs, preferably with forty-eight (48) hours.
B. Procedures
- The Student Conduct Coordinator will send out a “Notice to Talk” to the student(s) involved in the incident reported. A student will then have forty-eight (48) hours (not including weekends or holidays) to schedule a meeting. If the University is on break (e.g., Spring break, Christmas):
- Resident students will schedule a meeting with a Student Conduct Administrator in the Department of Housing and Residence Life.
- Commuter students will schedule a meeting with a Student Conduct Administrator in the Office of the Dean of Students.
C. Adjudication Levels
- Student Conduct Administrator Meeting
- The Student Conduct Administrator will meet with the student (Respondent) to determine if a violation of the Student Code of Conduct has occurred. If the Student Conduct Administrator determines that no violation has occurred, then the disposition is final and no further meetings will be held.
- If it is determined that a violation did occur and the Respondent admits responsibility for engaging in the alleged behaviors or actions, the Student Conduct Administrator can assign sanctions and adjudicate the incident at this meeting. If there is more than one student involved in the same incident, the Student Conduct Administrator will adjudicate the incident after meeting with all the students allegedly involved.
- If the Respondent does not admit responsibility for the alleged behavior and/or actions, the Student Conduct Administrator will conduct an inquiry of the alleged violation. After the inquiry, if a determination is made by the Student Conduct Administrator that the student is more likely than not responsible for the violation, sanctions shall be assigned.
- Results of the Student Conduct Meeting, including all sanctions, must be given to the Respondent in writing no later than twenty-four (24) hours (excluding weekends and holidays) after the meeting.
- Appeals of these Student Conduct Meetings must be submitted, in writing, to the next highest Conduct level within forty-eight hours. Appeals shall be based only on: questions of improper procedure and/or new evidence uncovered post hearing and/or claims of excessively harsh sanctions.
- Adjudicated by Residence Coordinators – appeals to Assistant Director of Residence Life
- Adjudicated by Assistant Director of Residence Life – appeal to Director of Housing & Residence Life
- Adjudicated by Director of Housing & Residence Life –appeal to Dean of Students which is the final level
- Adjudicated by Student Conduct Administrator in the Dean of Students office – appeal to the Dean of Student, which is the final level
- Possible sanctions at this level may include, but are not limited to:
- Warning – A notice in writing that the students is in violation or has violated University regulations
- Redress (apology, either written or oral)
- Restitution – compensation for loss, damage or injury. This may take the form of appropriate service and/or monetary or material replacement.
- Fines – previously established and published fines may be imposed
- Educational project
- Community service
- Loss of privileges – Denial of specified privileges for a designated period of time, including, but not limited to, restrictions from and/or limited access to specified areas of campus and/or university events
- Housing probation – A written reprimand indicating that the student’s behavior has raised serious question concerning the student’s status as a resident student. The student will be given a stated period of time during which his/her conduct will determine whether s/he is to be returned to good standing. This sanction includes the probability of loss of privilege of living in University housing.
- Loss of housing
- University probation – A written reprimand indicating that the student’s behavior has raised serious questions concerning the student’s status as a member of the University community. The student will be given a stated period during which his/her conduct will establish whether s/he is to be returned to good standing by having met definite requirements in behavior or whether s/he is to be suspended or expelled from the University. This sanction includes the probability of more severe sanctions if the student is found to violate any University regulation(s) during the probationary period. Students may not represent the university or hold office in any student organization during the period of probation.
2. Administrative or Student Conduct Board Hearing
When Student Conduct violations indicate the alleged violation to be more serious in nature, with possible sanctions to include suspension or expulsion from the University, the Respondent being accused of the violation(s) may choose to have either an Administrative or Student Conduct Board Hearing. These violations may include, but are not limited to:
- Sexual harassment
- Acts of violence
- Bias-related incidents
- Drug violations
- Major alcohol violations
- Possession of firearms
- Acts of dishonesty
- Hazing
All charges presented to the Respondent must in writing, with sufficient particularity and at least forty-eight hours before the hearing is scheduled.
All Student Conduct Hearings shall be conducted in private and closed to the public.
If a Respondent does not appear for the hearing and does not, in the opinion of the Student Conduct Administrator or Student Conduct Board, give adequate reasons, the hearing may continue and decisions may be made in the absence of the Respondent.
Both Respondent and Complainant have the right to be assisted by a campus advisor. This advisor must be a University enrolled student or current faculty or staff member. Attorneys will not be allowed in any hearing, whether Administrative or Student Conduct Board.
The Complainant and the Respondent and their advisors shall be allowed to attend the entire portion of the Hearing at which information is received, excluding deliberations.
The Complainant and Respondent are responsible for presenting his or her information, and therefore, advisors are not permitted to speak or to participate directly in any Hearing.
In either Administrative or Student Conduct Board Hearings involving more than one Respondent, the Dean of Students, in his or her discretion, may permit the Hearings concerning each student to be conducted either separately or jointly.
The Respondent and Complainant may arrange for witnesses to present pertinent information at the hearing. Witnesses must be members of the University community and must be identified at least two weekdays prior to the Hearing. Witness will provide information to and answer questions from the Student Conduct Administrator or the Student Conduct Board.
The Respondent shall be given an opportunity to speak on his/her behalf. S/he should have an opportunity to hear and question those who speak against him/her. In no case shall a Student Conduct Administrator at an Administrative Hearing or a Student Conduct Board consider statements against the Respondent unless s/he has been advised of their content and of the names of those who made them, and unless s/he has been given an opportunity to rebut unfavorable inferences, which might otherwise be drawn.
Pertinent records, exhibits, and written statements (including Student Impact Statements) may be accepted as information for consideration by a Student Conduct Board at the discretion of the chairperson and at Administrative Hearing at the discretion of the Student Conduct Administration holding the hearing. \
All information or matters upon which the decision is based must be presented at the hearing.
An audio recording of the hearing will be maintained by the Office of the Dean of Students. This recording will be used only in cases of appeal which claim questions of improper procedure(s) at the hearing. The recording will be destroyed once the forty-eight (48) hour period to appeal the sanction(s) has elapsed.
The decisions reached by an Administrative and/or Student Conduct Board hearing are final, subject only to the student’s right of appeal to the Vice President for Student Affairs.
The Student Conduct Administrator holding an Administrative Hearing and the Student Conduct Board are authorized to impose the following sanctions:
- Warning – a notice in writing that the student has violated institutional regulations
- Redress (apology, either written or oral)
- Restitution – compensation for loss, damage or injury. This may take the form of appropriate service and/or monetary or material replacement.
- Fine
- Educational project
- Community service
- Loss of privileges – denial of specified privileges for a designated period of time, including, but not limited to, restrictions from and/or limited access to specified areas of campus and/or university events
- Behavioral contract – a set of appropriate actions imposed to provide an educational experience as well as conduct guidelines for an extended period.
- Housing probation
- Loss of housing – this may be for a definite period of time, after which the student is eligible to return or permanent separation from university housing.
- University probation – A written reprimand indicating that the student’s behavior has raised serious questions concerning the student’s status as a member of the University community. The student will be given a stated period during which his/her conduct will establish whether s/he is to be returned to good standing by having met definite requirements in behavior or whether s/he is to be suspended or expelled from the University. This sanction includes the probability of more severe sanctions if the student is found to violate any University regulation(s) during the probationary period. Students may not represent the university or hold office in any student organization during the period of probation.
- University suspension – separation of the student from the university for a definite period of time, after which the student is eligible to return. Readmission, however, is not automatic and is at the sole discretion of the University. Conditions for readmission must be specified. The student is not allowed to be on campus, any university owned or leased property, or attend any university event, on or off campus.
- University expulsion – permanent separation of the student from the university. The student is not allowed to be on campus, any university owned or leased property, or attend any university event, on or off campus.
- Revocation of Admission and/or Degree – Admission to or a degree awarded from the University may be revoked for fraud, misrepresentation, or other violation of University standards in obtaining the degree, or for other serious violations committed by a student prior to graduation.
- Withholding Degree – the University may withhold awarding a degree otherwise earned until the completion of the process set forth in this Student Code of Conduct, including the completion of all sanctions imposed, if any.
- More than one of the sanctions listed above may be imposed for any single violation.
Burden of Proof
Determination of responsibility in any Student Conduct meeting/hearing shall be made on the basis of whether it is more likely than not that the Respondent violated the Student Code of Conduct or any other university policy.
Rules of Evidence
Formal rules of process, procedure and/or technical rules of evidence, such as are applied in criminal or civil court, are not used in Student Conduct meetings/hearings.
Interim Suspension
In certain circumstances, the Vice President for Student Affairs, or his or her designee, may impose a University suspension prior to any Student Conduct Hearing.
- Interim Suspension may be imposed on a student only: 1) to insure the safety and well-being of members of the University community or preservation of University property; 2) to ensure the student’s own physical or emotional safety and well-being; or, 3) if the student poses an ongoing threat of disruption of, or interference with, the normal operations of the University.
- While on Interim Suspension, a student will not be allowed access to the campus, including all University owned or leased properties, including the residence halls and/or all University activities, on or off campus, or privileges as the Dean of Students may determine to be appropriate.
- Interim Suspension does not replace the regular Student Conduct process. At the time a student is summarily dismissed, the individual affected shall be informed of a right to a hearing without undue delay. The student shall remain dismissed until the hearing determines his/her status.
Appeals
A decision reached, and/or sanction imposed, by a Student Conduct Administrator as a result of an Administrative Hearing or a decision reached by a Student Conduct Board may be appealed by the Respondent within forty-eight (48) hours (not including weekend and/or holidays) of the decision.
The appeal shall be in writing to the Vice President for Student Affairs or his or her designee. The response to the appeal shall be sent to the Respondent within forty-eight (48) hours (not including weekend and/or holidays) of receipt by the Vice President. Appeals shall be based only on:
- Questions of improper procedure and/or
- New evidence uncovered post hearing and/or
- Appropriateness of sanctions
The Vice President of Student Affairs will not re-hear the case and/or facts used to determine responsibility. Decisions of the Student Conduct Board and/or Student Conduct Administrator remain in effect until such time, if and when, an appeal is granted. All parties involved will be informed of the disposition of appeals.
Student Conduct Records
Other than expulsion from the University, disciplinary sanctions shall not be made part of the student’s permanent academic record (transcript). They will, however, become part of the student’s disciplinary record which is in turn part of a student’s education records. This applies both to the Complainant and the Respondent.
Cases involving the imposition of sanctions, other than expulsion, shall be expunged from the student’s confidential record seven (7) years after final disposition of the case.
Parental Notification
The University may, in its discretion, send notice and/or copies of disciplinary documents to the parents or legal guardians of student involved in disciplinary matter. The University, in compliance with the Family Educational Rights and Privacy Act (FERPA), may send reports to parents or legal guardians of a dependent student as defined in the Internal Revenue Code. Students may opt to sign a FERPA waiver, allowing the University to community with his/her parents or legal guardians or other designated individuals.
The University may also contact parents or legal guardians of students involved in alcohol and/or drug violation(s) if the student is under 21 years of age at the time of the violation.
Interpretation and Revisions
Any questions of interpretation or application of the Student Code shall be referred to the Vice President of Student Affairs, or his or her designee, for final determination.
