Sexual Misconduct and Gender-based Violence Process and Procedure

All formal complaints received that do not fall within the scope of Federal Title IX Regulations will be addressed through the following process and procedures.

Roles, Concepts and Definitions

Roles

• Complainant– The individual who is the alleged victim of sexual misconduct, sexual harassment, gender-based violence, and/or sex and gender-based discrimination.
• Respondent – The individual alleged to have committed sexual misconduct, sexual harassment, gender-based violence, and/or sex and gender-based discrimination.
• Title IX Coordinator – The Title IX Coordinator is a full-time staff member trained in all aspects of Title IX and this policy and process. The Coordinator is responsible for overseeing the University’s education, prevention, and response to Sexual Misconduct, Gender-Based Violence, and Gender and/or Sex-based harassment and discrimination. The Title IX Coordinator receives reports, assigns investigators in conjunction with the Title IX Investigator, reviews investigative reports, including recommendations of finding, renders outcome decisions, and serves as the primary point of contact regarding Title IX at the University. The Title IX Coordinator (or designee) also facilitates informal resolution of complaints. The AVP – Human Resources may appoint an Interim Title IX Coordinator as needed.
• Deputy Title IX Coordinator – Deputy Title IX Coordinators are trained on Title IX and all aspects of this policy, and primarily fulfill other full-time roles within the University. Deputy Coordinators are responsible for providing education, training, and handling intake of reports. Additionally, they serve in an advisory capacity to the Title IX Coordinator and Title IX Investigator on prevention, education, and policy development given their expertise from their primary full-time roles. Deputy Coordinators may serve as the Title IX Coordinator on an interim basis when circumstances dictate.
• Investigator – The Investigator is a full-time staff member trained in the investigation of Sexual Misconduct and Title IX cases, including all aspects of this policy and process. They serve as the primary investigator and/or team lead for all investigations under this policy. The Investigator can provide the following functions:
  • Receive reports;
  • Investigate reports of prohibited conduct under this policy; and
  • Write reports recommending findings of responsibility and potential outcomes.

Concepts

• Consent – Consent is clear, knowing, and voluntary words or actions that give permission for specific sexual activity. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable permission regarding willingness to engage in (and the conditions of) sexual activity. There is no consent when force, coercion, intimidation, or threats are used. There also cannot be consent when an individual is incapacitated. Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity, nor can previous relationships or previous consent imply consent to any future sexual acts. Consent can be withdrawn once it is given, as long as that withdrawal is clearly communicated. Lastly, one must be of legal age to grant consent. Legal age in North Carolina is 16 years of age.
• Coercion – Coercion is unreasonable pressure for sexual activity. When someone makes clear to you that they do not want sexual contact, 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. If coercion is used, there is no consent.
• Force – Force is the use of physical violence, and/or imposing on someone physically, to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcome resistance to produce consent. If force is used, there is no consent.
• Incapacitation- Incapacitation is defined as a state in which a person cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, where, why or how” of their sexual interaction). Incapacitation can occur from many things, including mental disability, sleep, involuntary physical restraint, from the use of alcohol and/or drugs, or blackout. If a person is incapacitated, there is no consent. Sexual activity with someone known to be or whom an individual should reasonably know to be incapacitated constitutes a violation of this policy.

• Note: The use of alcohol or other drugs will never function as a defense for any behavior that violates this policy.

Definitions

• Sexual Harassment – Sexual Harassment is unwelcome, sexual, sex-based and/or gender-based verbal, written, online and/or physical conduct.
  • Sexual harassment can take the form of quid pro quo harassment, retaliatory harassment and/or creates a hostile environment.

  • Sex/Gender-Based Harassment is defined as unwelcome conduct determined by a reasonable person to be so severe or pervasive, or objectively offensive that it unreasonably interferes with an individual’s performance or creates an intimidating, hostile, or abusive working or learning environment.

  • The determination of whether an environment is “hostile” must be based on the totality of the circumstances. These circumstances include, but are not limited to, the following:
    • The frequency of the conduct
    • The nature and severity of the conduct
    • Whether the conduct was physically threatening
    • Whether the conduct was humiliating
    • The effect of the conduct on the alleged victim’s mental or emotional state
    • Whether the conduct was directed at more than one person
    • Whether the conduct arose in the context of other discriminatory conduct
    • Whether the conduct unreasonably interfered with the Complainant’s educational or work performance
  • Quid Pro Quo Harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by a person having power or authority over another or when submission to such sexual conduct is made either explicitly or implicitly a term or condition of rating or evaluating an individual’s educational or employment progress, development, or performance. This includes when submission to such conduct would be a condition for access to receiving the benefits of any educational or employment program.
• Non-Consensual Sexual Contact – Non-Consensual Sexual Contact is any intentional sexual touching, however slight, with any object, by a person upon another person, that is without consent. o Sexual Contact includes intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; or any other intentional bodily contact in a sexual manner.
• Non-Consensual Sexual Intercourse – Non-Consensual Sexual Intercourse is any sexual intercourse, however slight, with any body part or object, by a person upon another person, that is without consent and/or by force. This includes vaginal or anal penetration by a penis, object, tongue, or finger, and oral copulation (mouth to genital contact), no matter how slight the penetration or contact.
• Sexual Exploitation – Sexual Exploitation occurs when one person 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 the other sexual misconduct offenses. Examples include, but are not limited to:
  • Invasion of sexual privacy;
  • Prostituting another person;
  • Non-consensual digital, video or audio recording of nudity or sexual activity;
  • Unauthorized sharing or distribution of digital, video or audio recording of nudity or sexual activity;
  • Engaging in voyeurism;
  • Knowingly exposing someone to or transmitting an STI, STD, HIV, or other infectious disease or virus to another person through engaging in sexual activity;
  • Intentionally or recklessly exposing one’s genitals in non-consensual circumstances or inducing another to expose their genitals in non-consensual circumstances;
  • Sexually-based stalking and/or bullying may also be forms of sexual exploitation
• Relationship or Intimate Partner Abuse – Relationship or Intimate Partner Abuse (also known as Dating Violence or Domestic Violence) is abusive behavior that is used by an intimate partner to gain or maintain power and control over the other partner. Intimate partner violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. Intimate partner violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the alleged victim, where the existence of such a relationship is determined based on the following factors: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
• Stalking – Stalking is a course of conduct directed at a specific person on the basis of actual or perceived membership in a protected class that is unwelcome, and would cause a reasonable person to feel fear. Stalking can also be repetitive and menacing conduct, purposely or knowingly causing emotional distress, or pursuing, following, harassing, and/or interfering with the peace and/or the safety of another. Note: Conduct which violates any other University policy may fall under this policy when it is allegedly motivated by actual or perceived sex or gender.

Standard of Evidence

Preponderance of Evidence is the standard of proof in which decisions will be made regarding violations of this policy. The standard of preponderance of evidence is defined as being more likely than not that a policy violation occurred. Respondents are presumed not responsible until determined otherwise, and Complainants are presumed to be reporting in good faith. False reports are a violation of our Code of Conduct and will be investigated through the Office of Student Conduct.

Intake

Formal Complaint

When prohibited conduct within the scope of the Sexual Misconduct policy is alleged, the following procedures can only be taken when a formal complaint is submitted in writing (in hard copy or electronic form) by the Complainant denoting the submission is in fact a formal complaint and the Complainant wishes formal or alternative action be pursued or by the Title IX Coordinator, who can submit a formal complaint without the Complainant. Regardless of a request that an investigation not be pursued, the University may still provide supportive measures and resources to a Complainant and Respondent. The University will not only take steps to prevent retaliation but will take a strong responsive action if retaliation occurs, even if a formal investigation is not pursued.

Complainants can withdraw their formal complaint at any time in the process up until the final decision.

Informal Resolution

Elon may facilitate informal or alternative resolution of a complaint, such as mediation, that does not require a full investigation. Alternative resolution of a complaint is only available in appropriate cases and is never appropriate in cases involving:

• allegations of nonconsensual sexual intercourse
• allegations that an employee engaged in misconduct against a student

The Title IX Coordinator has final discretion to determine if it would be appropriate to use an alternative resolution to resolve a sexual misconduct complaint.

A formal complaint through the Title IX office must be filed in order to pursue an alternative resolution. Both parties must give voluntary, informed, written consent to engage in the alternative resolution process, which can be initiated by either party. Any time prior to agreeing to a resolution, any party has the right to withdraw from the alternative resolution process and resume the formal grievance process with respect to the original complaint. Outcomes agreed upon during the alternative resolution process are not appealable.

Timing of Investigations

If the Title IX Coordinator (or designee) determines that a full investigation is necessary, the University will conduct a prompt, fair, and impartial investigation.

Investigations regarding potential violations of this policy are expected to be completed in a timely fashion, however, investigations may take longer in some circumstances, including but not limited to the complexity of the case, the number of parties involved, the availability and cooperation of parties and witnesses, the University calendar, or instances where the University investigation may compromise a law enforcement investigation. (Note: The University may delay its investigation to allow evidence collection by law enforcement, however, this policy and the processes herein are separate and distinct from any criminal investigation or legal proceeding.)

Advisors

The Complainant and Respondent each may have an advisor or support person of their choosing present throughout the process. This person may be a friend, family member, faculty or staff member, or an attorney. The University has designated and trained individuals who may serve in this capacity and their information will be shared with both parties. The role of the advisor is limited in scope. Complainants and Respondents are expected to ask and respond to questions each on their own behalves, and an advisor may not answer for, speak for, or represent the advisee. The advisor may consult with their advisee quietly or in writing during the meeting, or outside of the meeting during breaks.

Complainants and Respondents should inform the investigative team in advance of any meeting if an advisor will be present so they may make accommodations for the meeting location. To ensure timely completion of investigations, these processes and timeline will not be extended due to the unavailability of an advisor. The University reserves the right to proceed with any meetings regardless of the availability of an advisor.

Investigation and Resolution

When it is determined that a formal investigation is necessary, the Title IX Coordinator (or designee) will open a case file and the investigation will proceed as follows:

1. Determine the identity of the Complainant (if not already known), the Respondent (if not already known), any witnesses, and contact information for all involved.
2. Specify prohibited conduct within this policy to have allegedly occurred, including a determination on whether the prohibited conduct falls under Federal Title IX Regulations. If it does not, the case will be dismissed from Title IX procedures and be completed under the decision-making process for non-Title IX Sexual Misconduct Cases. If the prohibited conduct does fall within the scope of Federal Title IX regulations the investigation and decision making process will proceed as outlined above in the Title IX Offenses and Procedures section.
3. A Notice of Investigation and Potential Violation will be sent to the Respondent and Complainant.
   • Note: Notices will be sent via e-mail to recipients University provided e- mail address. Per University policy, it is expected that e-mail is checked consistently and in a timely manner. 
4. Investigators will review statements obtained from all parties, conduct interviews with both the Complainant and Respondent and any witnesses, and identify, locate, and review other pertinent information.
5. The Complainant and Respondent will have the same opportunity to identify witnesses for the Investigators to interview. Investigators reserve the right to forgo interviewing a witness if it is determined that the person does not have information that is relevant to the investigation. Investigators will not interview character witnesses if they have no pertinent factual information about the incident. Additionally, letters or artifacts addressing character will not be included into the record for consideration.
6. At the conclusion of interviews and prior to rendering findings, the Investigators will provide the Complainant and Respondent with a copy of their preliminary investigative report for review, questions, comments, and recommendations. In keeping with the timeliness of this process, both parties will be given 5 business days to provide their feedback, ask questions, etc. regarding this report. Failure to respond within this timeline forfeits the opportunity to address the report before a decision is rendered.
7. Both the Complainant and Respondent may request that the Investigators ask certain questions of the parties and/or witnesses. Questioning of opposite parties and/or witnesses will not be done directly, but through the Investigators. Questions are to be provided to the Investigators who will determine whether the questions are pertinent to the investigation and, if appropriate, will ask them of the appropriate party and/or witness.
8. Both parties will be given one final opportunity to provide feedback after the compilation of cross-examination responses and additions to the Investigative Report. Investigators will include these responses in the full investigative report and recommended findings based on the preponderance of evidence, and any outcomes (if applicable). The full report will be submitted to the Title IX Coordinator for review and the rendering of the determination unless other information arose during the review that requires further investigation. Should this occur, both the Complainant and Respondent will be notified of the delay.
9. Decisions are typically rendered by the Title IX Coordinator within 3 business days from receipt of the full investigative report. The Title IX Coordinator will inform the Complainant and Respondent of the determination by issuing a Notice of Outcome to both parties concurrently. The Notice of Outcome will include the determination of responsibility for each potential policy violation, rationale, and Outcomes (if applicable).
   • If a Respondent is found responsible for violating this policy, and regardless of whether the Respondent accepts the findings, the outcome will be sent to the appropriate University official(s) for action on the Outcomes. Implementation of those Outcomes by University officials will be communicated back to the Title IX Coordinator.
10. The Complainant and Respondent have the right to appeal both the findings and Outcomes (when applicable). For detailed information on the Appeal process, please see the Appeals section.