Title IX/Sexual Misconduct Policy

Responsible Office or Person: Title IX Coordinator

Related Law and Policy:

• Carroll University Harassment Policy
• Title VII of the Civil Rights Act of 1964
• Title IX of the Higher Education Act of 1972
• Jeanne Clery Disclosure of Campus Security Policy & Campus Crime Statistics Act of 1998
• Violence Against Women Reauthorization Act of 2013 (VAWA)

Title IX of the Education Amendments of 1972 is a federal law that prohibits sex and gender-based discrimination in education:

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Title IX of the Education Amendments of 1972, and its implementing regulation at 34 C.F.R. Part 106 (Title IX)

This policy covers all students, faculty, staff, and guests of Carroll University, with a commitment to eliminating, preventing, and addressing the effects of gender-based discrimination and sexual misconduct. Carroll University is committed to providing a safe and non-discriminatory learning, living, and working environment for all members of the University community.

Carroll University prohibits discrimination on the basis of sex or gender in any of its education or employment programs and activities. This policy prohibits behaviors that violate Title IX of the Education Amendments of 1972 (“Title IX”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). Such behavior also requires the University to fulfill certain obligations under the Violence Against Women Reauthorization Act of 2013 (“VAWA”) and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery Act”).

Carroll University prohibits all forms of Sexual Misconduct, including Sexual Assault, Sexual Exploitation, Dating Violence, Domestic Violence, Stalking, and Sexual or Gender-Based Harassment, and Retaliation (together “Sexual Misconduct”). This policy applies to all Sexual Misconduct that occurs on campus. It also applies to Sexual Misconduct that occurs off campus, if the conduct occurred in the context of an education program or activity of the University, or when the conduct has continuing adverse effects on campus or in an off-campus education program or activity.

Employees and Students who violate this policy may face disciplinary action up to and including termination (employee) or dismissal (student). The University will take prompt and equitable action to eliminate sex or gender-based discrimination and sexual misconduct, prevent its recurrence, and remedy its effects.

1. Coercion. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure an individual uses to get consent from another. When an individual makes it clear that they do not want sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual activity, continued pressure beyond that point can be coercive.
2. Consent. Consent is clear, knowing, and voluntary agreement to participate in certain conduct. 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 clear permission regarding willingness to engage in (and the conditions of) sexual activity.
   1. Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.
   2. Previous relationships or prior consent cannot imply consent to future sexual acts.
   3. In order to give effective consent, one must be of legal age.
3. Force. Force is the use of physical violence and/or imposing on an individual physically to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that overcome resistance or produce consent. There is no requirement that an individual resist the sexual advance or request, but resistance is a clear demonstration of non-consent. Sexual activity that is forced is by definition non-consensual, but non-consensual sexual activity is not, by definition, forced.
4. Incapacitation. Incapacitation is a state where an individual cannot make rational, reasonable decisions because they lack the capacity to give knowing consent.
   1. Sexual activity with an individual who one should know to be – or based on the circumstances should reasonably know to be – mentally or physically incapacitated constitutes a violation of this policy.
   2. Sexual activity with an individual whose incapacity results from alcohol or other drug use, unconsciousness or blackout, mental disability, sleep, involuntary physical restraint, or from administering a date rape drug (e.g. Rohypnol or Ketamine) constitutes a violation of this policy.
5. Sexual Intercourse. Sexual intercourse includes vaginal penetration by a penis, object, tongue, or finger, anal penetration by a penis, object, tongue, or finger, or oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.
6. Non-Consensual Sexual Contact (or attempts to commit the same). Non-Consensual Sexual Contact is any intentional sexual touching, however slight, with any object, by a person, upon a person, which is without consent. This includes but is not limited to: intentional contact with the breasts, buttocks, groin, and/or genitals, or touching another with any of these body parts, and/or making another person touch yourself and/or them with or on any of these body parts.
7. Non-Consensual Sexual Intercourse. (or attempts to commit the same). Non-Consensual Sexual Intercourse is any sexual intercourse however slight, with any object, by a person, upon a person, which is without consent.
8. Sexual Exploitation. Sexual Exploitation occurs when an individual takes non-consensual or abusive sexual advantage of another for the actor’s 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 of sexual exploitation include but are not limited to:
   1. invasion of sexual privacy
   2. prostituting another student
   3. photographing, video-taping or audio-taping of sexual activity or of a nude or partially nude person without consent
   4. engaging in voyeurism
   5. knowingly transmitting an STI or HIV to another student
   6. exposing one’s genitals in non-consensual circumstances and/or inducing another to expose their genitals
9. Sexual Harassment. Sexual Harassment is unwelcome, gender-based verbal or physical conduct that is sufficiently severe, persistent or pervasive that it unreasonably interferes with, denies or limits an individual’s ability to participate in or benefit from the University’s educational program and/or activities, and is based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation. There are three types of sexual harassment:
   1. Hostile Environment. Hostile Environment sexual harassment includes any situation in which there is harassing conduct that is sufficiently severe, pervasive and objectively offensive that it alters the conditions of education or employment or limits, interferes with or denies educational benefits or opportunities, from both a subjective (the alleged survivor’s) and an objective (reasonable person’s) viewpoint.
   2. Quid pro Quo. Quid pro quo sexual harassment exists when:
      1. There are unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; and
      2. Submission to or rejection of such conduct is likely to result in adverse educational, co-curricular or employment action.
   3. Retaliatory. Retaliatory harassment is any adverse action taken against an individual because of the individual’s participation in a complaint or investigation of discrimination or sexual misconduct.
10. Other Gender-Based Misconduct. Other prohibited misconduct is deemed sexual misconduct when the misconduct is based on gender. Such misconduct may include threatening or causing physical harm, Verbal Abuse, Intimidation, Hazing, Bullying, Dating Violence, Domestic Violence, Stalking or violence between those in an intimate relationship with each other.
11. Reporting Party. A person bringing forth an allegation of sexual misconduct. An individual who reports a Title IX/Sexual Misconduct violation or someone who is the target of a reported incident.
12. Responding Party. A person responding to an allegation of sexual misconduct. An individual alleged to have violated the Title IX/Sexual Misconduct Policy and who has been identified as such in a complaint.

Allegations of Sexual Misconduct must be referred to the Title IX Coordinator who will review the complaint and make an initial assessment of the reported information. If the initial assessment (1) does not allege a Title IX/Sexual Misconduct policy violation, (2) other resolution options are appropriate, or (3) a Reporting Party does not wish to pursue further action, then the complaint will not proceed to a University Title IX investigation, barring extenuating circumstances. Deputy Title IX Coordinators work with the Title IX Coordinator and may act on their behalf when so designated.

When the Title IX Coordinator determines a formal Title IX investigation is necessary, the Title IX Coordinator will promptly assign two investigators to investigate the complaint. The Title IX Coordinator will send a notice of investigation through University email to both the Reporting Party and Responding Party. If a conflict of interest arises, the Title IX Coordinator may assign a different investigator.

The investigators will review statements obtained from all parties, conduct interviews with both the Reporting Party and Responding Party, conduct witness interviews, identify, locate and review other relevant information.

Once the investigators gather all the evidence, each party will have the opportunity to review a summary of the evidence collected and respond to the evidence before a finding is made.

Using the standard of a preponderance of evidence (more likely than not that a violation has occurred), the investigators will reach one of the following conclusions:

1. no violation of policy has occurred,
2. a violation(s) of policy has occurred, or
3. no finding (not enough evidence to reach a decision)

The investigators will complete and provide a report to the Title IX Coordinator summarizing the evidence collected, an analysis of the evidence and the finding and recommended sanction if warranted. The Title IX Coordinator reserves the right to broaden or lessen any range of recommended sanctions in the case of serious mitigating circumstances.

Once the Title IX Coordinator finalizes the investigative report, the parties will receive a written notice of the outcome, setting forth the reasoning for the finding. The parties may request a copy of the investigative report and a meeting with the Title IX Coordinator to review the report upon receiving the written notice of the outcome.

The Title IX Investigators will make every effort to complete an investigation within 60 days. If an investigation cannot be completed within 60 days, the Title IX Coordinator will notify both parties.

Retaliation 

Retaliation against an individual for alleging harassment or discrimination, supporting a complaint or for assisting in providing information relevant to a claim of harassment or discrimination is a violation of University policy. Acts of alleged retaliation should be reported immediately to the Title IX Coordinator and will be promptly investigated. 

Advisors 

Both the Reporting Party and the Responding Party have the right to be assisted by an advisor of their choice, so long as the advisor is not a potential witness in the case, and as long as the advisor observes the following protocols:

1. The purpose of the advisor is to support a Reporting Party or Responding Party;
2. Both parties must submit the name of their advisor to the Title IX Coordinator via email two (2) business days prior to the initial meeting with investigators;
3. Advisors may confer with their advisee, but they may not speak on behalf of their advisee or otherwise actively participate in the process;
4. The advisor may accompany their advisee to meetings relating to the investigation, but may not appear in lieu of their advisee;
5. While advisors may assist their advisee in drafting written communications to the University, they may not directly or indirectly communicate with the Title IX Coordinator, the Investigators, or witnesses (other than their own advisee);
6. Advisors may not interrupt or otherwise delay the investigation. The University reserves the right to move forward with its process in order to ensure a prompt completion of the process. The University will strive to accommodate advisors’ schedules; however, the process may need to move forward even if an advisor is unavailable;
7. Violations of confidentiality or other forms of interference with the resolution procedure by the advisor may result in disqualification of an advisor;
8. If the advisor is an attorney, the investigators may reschedule the time and or date of the interview(s) so that Carroll University legal counsel may be present.

Interim Measures may be mutually applied under this policy.

Interim Measures may include but are not limited to:

1. Housing, academic and/or student employment accommodations
2. Shuttle services while on campus
3. Athletic team/club, Greek and/or student organizations accommodations
4. No contact order
5. Counseling, medical and/or mental health services

Interim Measures and Sanctions may be simultaneously applied under this policy.

Neither the Title IX Investigators nor Appeal Officer will deviate from the range of sanctions unless compelling justification exists to do so.

1. Any person found responsible for violating this policy as it relates to Non-Consensual or Forced Sexual Contact (where no intercourse has occurred) will likely receive a sanction ranging from probation to dismissal, or termination, depending on the severity of the incident, and taking into account any previous disciplinary violations.
2. Any person found responsible for violating the policy on Non-Consensual or Forced Sexual Intercourse will likely face a sanction of suspension or dismissal or suspension or termination.
3. Any person found responsible for violating the policy on Sexual Exploitation or Sexual Harassment or gender-based misconduct will likely receive a sanction ranging from warning to dismissal or termination, depending on the severity of the incident, and taking into account any previous disciplinary violations.

Both the Reporting Party and the Responding Party may submit an appeal to the Title IX Coordinator within five (5) working days of receiving the written notice of the outcome. Appeals are limited to:

• Ground 1: Procedural error that prevented a fair decision;
• Ground 2: Material misstatement or misapplication of the University rules, regulations or policies alleged to have been violated;
• Ground 3: Decision not supported by substantial evidence; or
• Ground 4: Material evidence or facts newly discovered which could not with reasonable diligence have been discovered and introduced at the hearing.

The Title IX Coordinator will inform all parties of appeals filed by the other party. To address the appeal, the Reporting Party or Responding Party must respond in writing to the Title IX Coordinator within 10 working days of being notified.

If the Title IX Coordinator determines that the appeal does not meet the grounds for appeal, the Title IX Coordinator will inform all parties of that decision. If the appeal meets one or more grounds for appeal, the Title IX Coordinator will forward the appeal to an Appeal Officer and inform all parties of that decision.

The Appeal Officer will consider the appeal, render a decision on the appeal, and inform in writing the Title IX Coordinator of the decision within 10 working days with rational for making said decision. The Title IX Coordinator will inform both the Reporting Party and Responding Party of the Appeal Officer’s decision. The Appeal Officer’s decision is final and there are no further appellate options.

The following University Administrators may act as an Appeal Officer:

1. Vice President for Student Affairs
2. Provost
3. Human Resources Director
4. Other University Officials as appropriate