Policy 1340
Sexual Misconduct

Date of Current Revision: January 2018
Primary Responsible Officer: Title IX Office

1. PURPOSE

The university is committed to providing a work and learning environment that is free from discrimination based on sex, sexual orientation, gender and gender identity. One form of sex discrimination is sexual misconduct.  This policy sets out the university’s commitment to providing a workplace and learning environment free from all forms of illegal sex discrimination including, but not limited to, sexual harassment, sexual misconduct, sexual assault and sexual violence (hereafter in this policy referred to in the aggregate as “sexual misconduct”). It also provides procedures for university employees, students, affiliates and visitors to file reports and/or formal complaints alleging sexual misconduct against any student, employee, affiliate or visitor whose sexual misconduct interferes with the reporter’s workplace or learning environment. The policy on nondiscrimination may be found in Policy 1302, Equal Opportunity. The policy and procedures concerning all forms of discrimination, including sex discrimination, may be found in Policy 1324, Discrimination and Harassment (other than sexual harassment and misconduct). This policy and Policy 1324 together address all forms of sex discrimination, harassment, and misconduct. Questions concerning the application of these policies to specific behavior and actions should be addressed to the Title IX Coordinator.

2. AUTHORITY

The Board of Visitors has been authorized by the Commonwealth of Virginia to govern James Madison University. See Code of Virginia §23.1-1600: 23.1-1301. The Board has delegated the authority to manage the university to the president.

STATE OR FEDERAL STATUTE AND / OR REGULATION

This policy is written in accordance with Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§2000e), Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.), The Clery Act (20 U.S.C. § 1092(f)),  the Violence Against Women Act (42 U.S.C. § 13701), the Virginia Human Rights Act (Code of Virginia §2.2-3900 et seq.) and §§ 23-9.2:10 through 23-9.2:18 of the Code of Virginia. Some behavior prohibited by this policy is also criminal activity under Title 18.2 of the Code of Virginia.

3. DEFINITIONS

Affiliate
An individual who has a formal affiliation with the university under the terms of Policy 1337.

Confidential Resources
University employees who provide or support the provision of counseling, advocacy, health, mental health or sexual assault-related services to members of the university community who have experienced sexual misconduct. These include campus mental-health counselors, social workers, psychologists, health-center employees and any other person with a professional license requiring confidentiality, or an employee in the office who is supervised by such a person. Confidential resources also include affiliates who are pastoral or religious counselors.

Consensual Relationship
A relationship between adult members of the university community which is freely and mutually entered into and continued, and is not coerced, influenced by an unfair power differential, or the subject of any type of inappropriate or undue pressure or force.

Consent
An outward demonstration through understandable words or actions that convey a knowing and voluntary agreement to engage in mutually agreed-upon sexual activity. Consent cannot be gained by force that is express or implied, coercion, intimidation, threats or duress. Consent cannot be obtained by ignoring or acting in spite of the objections of another, by previous consent, or by taking advantage of another person’s incapacitation or physical helplessness where one knows or reasonably should have known of such incapacitation or helplessness. An individual who is incapacitated because of age, disability, voluntary activity or through the acts of others cannot give consent. Silence or absence of resistance does not imply consent. Consent is voluntary and may be withdrawn at any time by communicating the withdrawal through an outward demonstration of understandable words or actions.

Dating Violence
A form of sexual violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with another person, where the existence of such a relationship shall be determined based on a consideration of the following factors:

  • The length of the relationship.
  • The type of relationship.
  • The frequency of interaction between the persons involved in the relationship.

Day
A calendar day. When a substantial portion of a specified period of days falls during a period of time when the university is closed, that portion of the time period shall not be counted, and the time period shall be extended by the number of days falling on days when the university is closed. Weekends are not considered substantial periods of time, and will not be added to extend a deadline. If a time period is set to end on a day when the university is closed, the time period shall be extended to end on the next scheduled day when the university reopens. Examples: A specified time period will not end during winter break or on any day when the university is closed for inclement weather. A five-day time period set to begin on the first day of winter break will be extended by the number of days for the scheduled winter break, so that the time will actually begin to run upon the first day after winter break. A deadline that falls on a day when the university is closed for inclement weather will be extended until the next day the university opens for business.

Discrimination
An adverse action or unequal treatment when such action deprives a person of a privilege or right (such as a benefit, an equitable evaluation, a grade, a position or a promotion), or otherwise adversely affects the person on the basis of a protected classification. Discrimination on the basis of sex that does not include sexual misconduct is covered under Policy 1324.

Domestic Violence
An incident or pattern of physically, sexually and/or emotionally abusive behavior used by one individual to assert power or maintain control over another in the context of an intimate or family relationship. Depending on the circumstances, this may be a form of sexual violence.

Employee
An individual employed by the university, whether full time, part time or temporary, and whether faculty, administrator, professional, classified staff, salaried or wage employee, student employee, or in any other employment relationship with the institution. If a complaint under this process is filed against a student employee, the procedures described in Section 6.4.1 concerning student conduct shall be utilized.

Faculty Member
For the purpose of this policy only, employees of the university who are Administrative and Professional (A&P) faculty with tenure or full-time instructional faculty members or part-time instructional faculty members.

Formal Complaint
The signed and written document used to file a formal complaint of sexual misconduct under this policy. A report may be communicated orally, but a formal complaint must be in writing and signed by the reporter.

Good Faith
Actions taken in the honest, sincere and reasonable belief in the truth of the matters alleged and without any malice or the desire to defraud or maliciously harm others. An allegation made or testimony given in a proceeding is not in good faith if made with knowing or reckless disregard for the truth or if the person knowingly withholds information that would negate the allegation or testimony. A person does not act in good faith if his/her acts or omissions are dishonest or influenced by personal, professional or financial conflicts of interest with those involved in the proceeding. A report or formal complaint filed by an individual who knows it to be false or who makes such a report or formal complaint in reckless disregard for the truth is not acting in good faith.

Hearing Panel (for Procedures against Faculty)
A panel of three faculty members shall be drawn by the Title IX Coordinator from the hearing pool in formal sexual misconduct complaints heard under this policy and these procedures against faculty.  Any pool member with a close personal relationship or conflict of interest with a party to the formal complaint is required to recuse himself/herself and be replaced by another member of the pool chosen by the Title IX Coordinator. Questions about recusal may be addressed to the Title IX Coordinator. The hearing panel chair will be appointed by the Title IX Coordinator.

Hearing Pool (for Procedures against Faculty)
The group of employees trained by the university, with the assistance of the Title IX Coordinator, to hear cases under this policy involving allegations of Sexual misconduct against employees. The pool shall reasonably reflect the demographic diversity of the university, and shall be drawn from all relevant divisions and all colleges in the institution.  The members of the pool shall receive both initial training and periodic refresher training concerning this policy and these procedures, including training on the effects of trauma on individuals. Training shall be conducted under the direction of the Title IX Coordinator.

Hostile Environment
A hostile environment may be created by oral, written, graphic or physical conduct that is sufficiently severe, persistent or pervasive and objectively offensive that it interferes with limits or denies the ability of a person’s ability to participate in or benefit from the institution’s educational programs, services, opportunities, or activities or the individual's employment access, benefits or opportunities.  Mere subjective offensiveness is not enough to create a hostile environment.  In determining whether conduct is severe, persistent or pervasive, and thus creates a hostile environment, the following factors will be considered: (a) the degree to which the conduct affected one or more individuals' education or employment; (b) the nature, scope, frequency, duration, and location of the incident(s); (c) the identity, number, and relationships of persons involved; (d) the perspective of a “reasonable person” in the same situation as the person subjected to the conduct, and (e) the nature of higher education. A hostile environment for a member of the university community can be created by the actions of a faculty member, a staff member, a student, an affiliate or a visitor.

Incapacitation
Physical or mental inability to make informed, rational judgments. States of incapacitation include, without limitation, sleep, blackouts, unconsciousness, and the inability to make such decisions due to the voluntary or involuntary use of alcohol or drugs. Incapacitation may occur because of age, disability, voluntary activity or through the acts of others.

Interim Measures
Temporary and immediate measures or interventions which may be taken by the university upon receipt of a  report or formal complaint of sexual misconduct to ensure a safe environment for the parties including, but not limited to, no contact orders between the reporter and the respondent; temporary changes of assignments, classes, schedules or jobs; temporary changes of university-provided housing; temporary restrictions on use of facilities; temporary transportation options; temporary suspensions from school or work; unpaid leave; or any other measure that would provide a safe work and/or learning environment for both parties during the processing of a report and/or a formal complaint. Remedial actions may be imposed upon a finding of a violation of this policy.

Relational Violence
A form of sexual violence which consists of physical assaults or serious threats of bodily harm including, but not limited to, domestic violence and dating violence.

Remedial Actions
Appropriate measures which may be taken upon a finding of a violation of this policy. Actions may include, but are not limited to, provision of an escort to ensure that the reporter can move safely between classes or work places and activities; ensuring that the reporter and the respondent do not attend the same classes or work in the same physical space or are otherwise required to interact with each other; moving the reporter or respondent to a different residence hall, a different shift of work or a different office; providing counseling, medical or academic support services for the reporter; arranging for the reporter to re-take a course, withdraw from a class, or change a work schedule or assignment without penalty; or reversing disciplinary action against the reporter if there is a causal connection between the disciplinary action taken against the reporter and the sexual misconduct of the respondent. Remedial actions also include appropriate sanctions against the respondent.

Report
Any oral or written allegations by a university community member that describes an alleged instance of sexual misconduct by a student, employee, affiliate or visitor, whether or not a respondent is identified by name or the reporter files a formal complaint under this policy. An oral report is not a formal complaint. All reports made to a responsible employee must be communicated to a Title IX Officer.

Reporter
A university community member who reasonably believes that he/she has been subjected to sexual misconduct by a student, employee, affiliate or visitor, whether or not he/she identifies a respondent by name or files a report or a formal complaint under this policy. Even if a report is made by a third party alleging sexual misconduct against a university community member, the term “reporter” as used in this policy refers to the individual who has allegedly been subjected to sexual misconduct. In that instance, the person making the report shall be identified as the “third-party reporter.”

Respondent
A student, employee, affiliate or visitor who is accused of sexual misconduct or against whom a report is made or a formal complaint is filed under this policy.

Responsible Employee
A university employee who has the duty to disclose all reports of sexual misconduct to a Title IX Officer. All university employees (except confidential resources defined above) are responsible employees. Student employees are covered by this definition, but students who are not employees of the university are not covered.

Retaliation
Overt or covert acts of discrimination, harassment, interference, intimidation, penalty, reprisal or restraint against a group or individual exercising rights, making a report, filing a formal complaint, or cooperating with the collection of statements under this policy. Retaliation shall be considered a violation of this policy.

Sex Discrimination
To take an adverse action or provide unequal treatment based on a person's sex, sexual orientation, gender or gender identity when such action deprives a person of a privilege or right (such as a benefit, an equitable evaluation, a grade, a position or a promotion) or otherwise adversely affects the person. Sex discrimination is not limited by gender, gender identity, or sexual orientation of the reporter or the respondent. Sex discrimination also includes retaliation for filing a complaint under this policy or Policy 1324, and harassment on the basis of sex, sexual orientation or gender identity, as covered by Policy 1324. Sex discrimination specifically includes instances of sexual misconduct of any type (including dating violence, domestic violence, relational violence, sexual exploitation and stalking) perpetrated against a member of the university community or a visitor. See Policy 1324.

Sexual Assault
Any physical contact of a sexual nature that is forced on another person, including unwelcome sexual touching of any kind. This includes engaging or attempting to engage in any unwelcome sexual intercourse (oral, anal or vaginal) or penetration, however slight, with any object or body part without consent, or intentional touching (either of another person or when the person is forced to touch) of a body part in a sexual manner without consent, directly or through clothing. Sexual assault includes nonconsensual attempted or completed sexual intercourse, penetration with any part of the body or an object, touching or forcing another person to touch in a sexual manner, kissing, physical contact with any part of the body for sexual purposes or forcing another to touch himself or herself in a sexual manner.

Sexual Exploitation
Taking sexual advantage of another person without that individual’s consent. Examples include, but are not limited to, prostituting another person; causing or attempting to cause the incapacitation of another person for a sexual purpose; recording, photographing or transmitting sexual utterances, sounds or images of another person without that person’s consent; allowing a third party to observe sexual activity without the consent of the participants; knowingly transmitting sexually transmitted infections or other diseases without the knowledge of the person’s sexual partner; inducing another to expose his/her body for sexual purposes; and viewing another person’s sexual activity, intimate body parts or nakedness in a place where that person would have a reasonable expectation of privacy without that person’s consent. Sexual exploitation is a form of sexual misconduct.

Sexual Harassment
A form of sex discrimination consisting of unwelcome or offensive sexual advances, requests for sexual favors, or other conduct of a sexual nature including: verbal (e.g., specific demands for sexual favors, sexual innuendoes, sexually suggestive comments, jokes of a sexual nature, sexual propositions, or sexual threats); non-verbal (e.g., sexually suggestive emails, other writings, articles or documents, objects or pictures, graphic commentaries, suggestive or insulting sounds or gestures, leering, whistling, or obscene gestures); or physical (e.g., touching, pinching, brushing the body, any unwelcome or coerced sexual activity, including sexual assault). Sexual harassment, including sexual assault, can involve persons of the same or different sexes.  Sexual harassment may also include sex-based harassment directed toward stereotypical notions of what is female/feminine v. male/masculine, or a failure to conform to those gender stereotypes.  This policy prohibits the following types of sexual harassment: 

  • Term or condition of employment or education.  This type of sexual harassment (often referred to as "quid pro quo" harassment) occurs when the terms or conditions of employment, educational benefits, academic grades or opportunities, living environment or participation in a university activity are conditioned upon, either explicitly or implicitly, submission to or rejection of unwelcome sexual advances or requests for sexual favors, or such submission or rejection is a factor in decisions affecting that individual's employment, education, living environment, or participation in a university program or activity.
  • Hostile environment.  Acts that create a hostile environment, as defined herein.

Sexual Misconduct
Sexual misconduct includes sexual assault, sexual violence, sexual harassment, dating violence, domestic violence, relational violence, sexual exploitation, stalking, and all other forms of misconduct on the basis of or because of a reporter’s sex, sexual orientation, gender, or gender identity.

Sexual Violence
Physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the person’s age, mental state or use of drugs or alcohol, or because an intellectual or other disability prevents the person from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse and sexual coercion. Sexual violence is a form of sex discrimination and harassment, and is not limited by gender, gender identity or sexual orientation of the reporter or the respondent.

Sexual Violence Review Committee (SVRC)
A committee composed of a representative of the university’s Title IX administration, a member of the university’s police department and a member of the university’s student affairs administration. The SVRC reviews information related to acts of sexual violence, including information reported to the Title IX officers, to determine appropriate reports to be made to law enforcement units outside of the university.

Staff Member
For the purpose of this policy only, a full or part-time classified employee or wage employee of the university, or an administrative and professional (A&P) faculty member without tenure.

Stalking
Repeated conduct, which places a person or his/her family in reasonable fear of death, sexual assault or bodily injury. Stalking is a form of sexual misconduct.

Student
Any person enrolled in a class at the university, including undergraduate students, graduate students and those students enrolled in non-credit courses. This may also include an individual who is not currently enrolled, but is still regarded as a student by the institution, such as an individual on suspension, a student who has withdrawn from the institution, a student who has been accepted, but has not yet matriculated, or a student on breaks between academic years or semesters. It does not include individuals who are applicants who have not been accepted, or individuals who no longer attend the university (alumni).

Third Party Reporter
A person who makes a report or files a formal complaint on behalf of another individual he/she reasonably believes has been subjected to sexual misconduct by a student, employee, affiliate or visitor.

Title IX Coordinator
The individual designated by the university to coordinate the institution’s compliance with Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.). The Title IX Coordinator is the chief Title IX officer and oversees the university’s response to Title IX reports and formal complaints, and identifies and addresses any patterns or systemic problems revealed by such reports and formal complaints. The Title IX Coordinator has oversight of this policy, coordinates the actions of the various Title IX officers on campus and is responsible for tracking the university’s compliance with Title IX. Contact information for the Title IX Coordinator is available on the Title IX website.

Title IX Officers
The officials within the university charged with receiving, processing and collecting statements for reports and formal complaints under this policy. The names, addresses and phone numbers of the Title IX Officers are listed on the Title IX website.

There are multiple Title IX Officers who are assigned to handle complaints by or regarding students (including graduate students and student athletes), faculty members, staff members,affiliates of the university and visitors. They include individuals in multiple offices and divisions of the university.  

Any Title IX Officer may be assigned to respond to and collect statements for any report or formal complaint under this policy, and any Title IX Officer may be consulted by any member of the university community for assistance and information regarding a report or formal complaint under this policy. Any Title IX Officer who has a close personal relationship with, or a conflict of interest concerning the reporter and/or respondent, shall recuse himself/herself from the case and shall notify the Title IX Coordinator of such action. The Title IX Officer handling a Title IX report or formal complaint should not report to or be employed in the same department, office or unit, as either party to a complaint, or be directly associated with either party.

University Community Member
An individual employed or affiliated with the university in one or more of the following full or part-time capacities:

  • Employees
    • Staff members
      • Administrative and professional (A&P) faculty members without tenure
      • Classified employees
      • Wage employees
    • Faculty members
      • Instructional faculty members
      • Administrative and professional (A&P) faculty members with tenure
  • Affiliates
  • Students

Unwelcome Conduct
Conduct is considered unwelcome if the individual subjected to the conduct did not request, consent to, or invite it and reasonably considers the conduct to be undesirable or harmful.

Visitor
For the purposes of this policy, a person who is not enrolled in, compensated by, or an official affiliate of the university, but is engaged in a university-sponsored or contracted working or learning activity, or has some other formal or informal ongoing relationship with the university. Depending on the circumstances, a visitor may be a person who is or was merely present on campus or at a university sponsored event, but the university’s ability to take any action regarding such an individual will necessarily be limited.

4. APPLICABILITY

This policy applies when a member of the university community reasonably believes that he/she or another university community member has been subjected to sexual misconduct by a student, an employee, or an affiliate of the university, or by a visitor.

All acts of sexual misconduct are covered by the terms of this policy, provided that at least a substantial portion of the alleged wrongful behavior either occurred on university-controlled, university-leased or university-owned property, or otherwise had a significant connection to or effect on the activities of the university or the learning or working environment for the reporter. Off-campus incidents that cause continuing effects on campus are specifically covered by this policy.

This policy applies in the employment relationship, including job application procedures, hiring, advancement, discharge, compensation, job training, or other terms and conditions of employment. It applies in the educational relationship with students, including application procedures, admissions, grades, discipline, dismissal, or other terms and conditions of matriculation. It applies in services that are provided by the university to students, employees, affiliates or other individuals, including visitors.

5. POLICY

5.1 Title IX
The university does not discriminate on the basis of sex in its education programs and activities, and it is required by Title IX not to discriminate in such a manner. Questions regarding Title IX may be referred to the university’s Title IX Coordinator or to the United States Department of Education’s Office for Civil Rights.

5.2 Sexual Misconduct
The university will not tolerate sexual misconduct against any member of the university community by a university employee, student, affiliate or visitor. Conduct by any member of the university community or visitor that constitutes sexual misconduct is a violation of university policy and is sanctionable.

5.3 Retaliation
The university will not tolerate retaliation against or harassment of an individual who makes a report, files a formal complaint, or participates in proceedings under this policy in good faith.

5.4 Good Faith
Failure to act in good faith in bringing an allegation under this policy, failure to act in good faith in cooperating during the proceedings (i.e. providing false or misleading evidence), or in any other capacity concerning this policy shall constitute a form of misconduct and may result in sanctions separate from, and not dependent on, the outcome of any report or formal complaint filed under this policy.

5.5 Responsible Employees
All responsible employees must disclose any reports of sexual misconduct, including reports that they receive within the course of their employment, to a Title IX Officer. See 6.2.3. Employees who are identified as confidential resources and who receive information in the course of their employment about sexual misconduct covered under this policy are not required to make such disclosures to Title IX Officers.

5.6 Non-Consensual Relationships
Genuinely consensual relationships which are not coerced, influenced by an unfair power differential or the subject of any type of inappropriate or undue pressure or force between adult members of the university community are not prohibited. A sexual relationship between members of the university community to which one party does not or cannot consent is a form of sexual misconduct. A sexual relationship between members of the university community is prohibited if it is influenced by any form of fear or coercion, such that it causes one party to believe that he/she must submit to unwelcome sexual conduct in order to accept or continue employment, achieve an employment or educational benefit, or participate in a program or activity or to remain safe and secure. In a sexual relationship between individuals where a power differential would imply or raise the inference of exploitation or raise the inference that an educational or employment decision will be based on whether or not there is submission to coerced sexual conduct, the relationship is prohibited. Examples would include an instructional faculty member and a student enrolled in his/her class or under his/her supervision; employees who are a supervisor and a subordinate; a coach and a member of the team he/she coaches; or any other relationship where one party has the opportunity to pressure or force the relationship on the other. Any sexual relationship between an adult and a minor or where one party is unable to give effective and informed consent is presumed to be coerced and not consensual, and is prohibited.

5.7 Interim Measures
When sexual misconduct is reported to the university, the university will offer and/or take appropriate interim measures to assist and protect the reporter, the respondent and other members of the university community.

5.8 Actions on Findings
Upon a finding of sexual misconduct, the university will take prompt and effective steps reasonably calculated to end the misconduct, eliminate any hostile environment, prevent its recurrence and, as appropriate, take remedial actions to remedy its effects.

5.9 Academic Freedom
This policy does not restrict or impair the exercise of rights protected under the United States Constitution or the rights of faculty members and students of the institution to academic freedom. See Faculty Handbook, Section III.A.1. Academic freedom carries with it responsibilities, including the responsibility to refrain from harassment, discrimination and misconduct. See Faculty Handbook, Section III.A.8; and Academic Affairs Policy 12, Disruption of Class.

6. PROCEDURES

6.1 Eligibility to Report or File Complaint

  • Any member of the university community who reasonably believes he/she has been subjected to sexual misconduct by a student, employee, affiliate or visitor may make a report or file a formal complaint in good faith under this policy to address the situation.
  • Any member of the university community who reasonably believes that another university community member has been subjected to sexual misconduct by a student, employee, affiliate or visitor may make a third-party report or file a formal complaint in good faith on behalf of the affected individual.
  • A person who has no affiliation with or membership in the university community is eligible to make a report or file a formal complaint in good faith on behalf of himself or herself, a member of the university community or a visitor concerning sexual misconduct by an employee, student or affiliate of the university.
  • A person who has no affiliation with or membership in the university community is not eligible to make a report or file a formal complaint against another person who has no affiliation with or membership in the university community under this policy.

6.2 Reports, Resolution Attempts and Determination of Applicability

6.2.1. Resolution of Sexual Misconduct Charges
In reported cases covered by this policy, the university will not advise or encourage the reporter to initiate an informal direct discussion of the allegations with the respondent. The university will also not  encourage mediation between the parties concerning reports or formal complaints of sexual misconduct. However, if the reporter and respondent resolve a report or a formal complaint of sexual misconduct through either discussions or mediation, the case may be closed, at the option of the university. In this case, the parties will be requested to sign a statement declaring that the case has been resolved, and with or without a signed agreement, no further action by the university will be required. The university may, however, decide to proceed with collecting statements or proceedings even if the parties have resolved the matter, if it is determined to be necessary to protect the university community.

6.2.2. Report of Sexual Misconduct
A reporter is encouraged to discuss any charges of sexual misconduct promptly with any of the following university resources, as appropriate under the circumstances:

  • The Title IX Coordinator
  • A Title IX Officer
  • A confidential resource
  • Another university employee who the reporter believes to be an appropriate adviser, given the nature of the situation (e.g., the human resources office, a supervisor, a coach, a faculty member, a residence hall adviser, the dean of students, an ombudsperson, etc.)

6.2.3. University Employee Responsibilities on Receiving Report

  • Any responsible employee contacted by a reporter or a third-party reporter concerning a violation of this policy must communicate the information to a Title IX Officer as soon as practicable. No responsible employee is obligated to report any violations of this policy concerning himself/herself.
  • If the reporter or third-party reporter discloses information concerning sexual misconduct to a confidential resource as defined in this policy, the confidential resource has no obligation to report the information to a Title IX Officer.
  • The reporting requirement does not apply to information disclosed at public events such as “Take Back the Night” rallies, personal accounts included in class writing assignments, or other similar instances where circumstances of the responsible employee’s receipt of information would not be reasonably expected to trigger the employee’s disclosure responsibilities under this policy. It does not apply when the information is not disclosed to the responsible employee in the context of his/her employment, when neither party to the interaction has any association with the university, or when the responsible employee has no reason to believe this policy applies to the circumstances disclosed. It does not apply to information disclosed because of an intimate relationship between the reporter and the responsible employee. It does apply to information seen, heard, or overheard by the responsible employee in the performance of his/her job responsibilities, but does not oblige or entitle the responsible employee to investigate potential incidents. The responsible employee will not investigate allegations or pressure the reporter to disclose information not freely given to the responsible employee, but may report to the Title IX Officer any information received, even if reporting is not required.
  • If a report concerns sex discrimination (but not sexual misconduct), the responsible employee shall refer the report to the director of equal opportunity (DEO) in accordance with Policy 1324.
  • Any responsible employee receiving information concerning sexual misconduct under this policy must provide a Title IX Officer with all relevant information concerning the report as soon as practicable. If possible, the responsible employee is encouraged to take appropriate steps to address the immediate needs of the person making the report. Relevant information includes all details about the alleged incident that the reporter or third-party reporter has shared and that the Title IX Officer will need to determine what occurred and how to address the situation. This includes the names of the respondent, the reporter, other individuals who are potential witnesses, and all relevant facts, including the date, time, and location of any incidents that were disclosed to the responsible employee.
  • Generally, the transfer of information will fulfill the obligations of the responsible employee, and the responsible employee will have no further involvement in the statement collection process or any other procedures under this policy, unless the Title IX Officer needs clarification or more information from the responsible employee or the responsible employee has another role in the process (e.g., the supervisor of the reporter or respondent).
  • In no event will any university employee attempt to dissuade a reporter from filing a criminal complaint either before or after a formal complaint is filed and statements are collected.. It is appropriate for the responsible employee to assist the reporter with contacting university law enforcement or local law enforcement regarding criminal charges.

6.2.4. Requests for Confidentiality
All responsible employees must inform any individual who has disclosed information concerning sexual misconduct that they cannot keep such information confidential and are required to disclose the information to a Title IX Officer. The responsible employee should encourage the reporter to cooperate with the statement collection related to the matter. The responsible employee should tell the reporter that without his/her cooperation the university’s ability to respond to the information will be limited and give the reporter information about the application of this policy to acts of retaliation. The responsible employee will inform the reporter that the Title IX Officer will make a determination concerning the reporter’s request for confidentiality.

6.2.5. Decision on Request for Confidentiality

  • A request by the reporter for confidentiality regarding sexual misconduct that does not include sexual assault or sexual violence will be honored by the Title IX Officer, unless there is a valid reason for setting aside this request. A valid reason would include circumstances that suggest there is an increased risk to the safety of the university community or of the respondent committing future acts of sexual misconduct (e.g., where there have been other sexual misconduct complaints about the same respondent, where the respondent has a history of arrests or records from another institution indicating a history of violence, where the respondent has threatened violence against the reporter or others, or where the sexual misconduct was committed by multiple respondents). These factors also include circumstances that suggest there is an increased risk of future acts of sexual misconduct under similar circumstances (e.g., where the report reveals a pattern of sexual misconduct involving the use of drugs or alcohol at a given location or by a particular group). Other factors that will be considered in assessing a reporter’s request for confidentiality include whether the incident involved the presence or threat of a weapon, the age or vulnerability of the reporter, and whether the university possesses other means to obtain relevant evidence (e.g., security cameras or personnel, or physical evidence).
  • Except in cases involving sexual violence, if the Title IX Officer determines that he/she must disclose a reporter’s identity and circumstances surrounding the report contrary to a request for confidentiality, the Title IX Officer will first inform the reporter prior to making this disclosure, and will take appropriate interim measures that are reasonable and necessary to protect the reporter and ensure the safety of other members of the university community. For specific requirements regarding reports or formal complaints of sexual violence, see section 6.3.1.
  • If the Title IX Officer determines that he/she will honor the reporter’s request for confidentiality, he/she will notify the reporter of the decision, and will inform the reporter that the university may still collect statements related to the matter. The Title IX Officer will also notify and consult with the Title IX Coordinator, who will keep records of the report. The Title IX Officer may also provide for appropriate steps such as increased monitoring, supervision or security at locations or during activities where the alleged misconduct reportedly occurred or the provision of training and educational materials to appropriate university community members.
  • Even when the Title IX Officer has determined that he/she can respect a reporter’s request for confidentiality, and therefore may not be able to respond fully to a report, and the reporter has decided not to initiate a formal complaint against a respondent, the Title IX Officer will discuss with the reporter the need for any interim measures to protect the reporter and other members of the university community.

6.2.6. Initial Determination by Title IX Officer of Applicability of Policy

  • The reporter or a third-party reporter may directly contact a Title IX Officer to make a report. If the reporter or a third-party reporter instead contacts a responsible employee and the responsible employee contacts the Title IX Officer, the Title IX Officer will initiate contact with the reporter promptly (usually within five days) after receiving notice of a report from a responsible employee to discuss the report with the reporter.
  • The Title IX Officer will inform the reporter of available resources during the initial contact, as outlined in 6.6.5.
  • The reporter will not be forced to cooperate, and a request by the reporter to have no action taken by the university will be considered by the university, but will not bind the institution. A reporter’s failure to cooperate with the Title IX Officer may impede the university’s ability to effectively collect statements, but such failure will not prohibit the Title IX Officer from attempting to collect statements if sufficient information is available.
  • Upon receipt of a report, the Title IX Officer shall determine whether this policy applies and will inform the reporter or third-party reporter if the policy does not apply. A decision that the policy does not apply is final, and is not appealable. By way of example, the Title IX Officer may find that this policy does not apply upon determining any of the following:
    • That the respondent's alleged conduct as reported would not constitute sexual misconduct as defined in this policy.
    • That a substantial portion of the alleged conduct did not occur on university-owned, university-leased or university-controlled property, or did not otherwise have a significant connection to the activities of the university or effect on the reporter’s working or learning environment at the university.
    • That neither the reporter nor the respondent has any connection with the university or is a university community member.
  • This list is not exclusive, and other situations may result in the Title IX Officer determining that this policy does not apply.

6.3 Sexual Violence

6.3.1. Report or Formal Complaint
If the information given to the Title IX Officer by either the reporter or a responsible employee indicates that an act of sexual violence may have been committed as covered by this policy, the Title IX Officer shall promptly report the information, including any personally identifiable information, to the Sexual Violence Review Committee (SVRC).

6.3.2. Sexual Violence Review Committee

  • Upon receipt of information of an alleged act of sexual violence reported by a Title IX Officer under 6.3.1, the SVRC shall meet (either in person or through electronic means) within 72 hours to review the information, and shall have other meetings as necessary as new information is obtained.
  • If, based on consideration of all relevant factors, the SVRC determines that the disclosure of the information, including personally identifiable information, is necessary to protect the health or safety of the reporter or other individuals, the representative of the university police department on the SVRC shall immediately disclose such information to the law enforcement agency responsible for investigating the alleged act of sexual violence, so that the law enforcement agency may investigate and take other appropriate actions. The representative of the Title IX administration on the committee shall notify the reporter that such a disclosure is being made. A disclosure to a law enforcement agency need not be made if the law enforcement agency is located outside of the United States.
  • If the alleged act of sexual violence would constitute a felony which could be prosecuted under Virginia criminal law, the representative of the university police department on the SVRC shall inform the other members of the SVRC and shall, within 24 hours of such determination, consult with the prosecutor responsible for prosecuting the alleged act of sexual violence, and provide to that prosecutor the information received by the SVRC, without disclosing personally identifiable information, unless such information was originally disclosed to the law enforcement agency responsible for investigating the alleged act of sexual violence as described above.

6.4. Filing a Formal Complaint
If the Title IX Officer determines that the policy applies, the reporter will be informed by the Title IX Officer of the options for filing a formal complaint. The reporter will be asked to sign a form provided by the Title IX Officer concerning his/her options for proceedings under this policy.

6.4.1 Complaints Filed Against a Student
A formal complaint against a student will be investigated under this procedure and, if appropriate, referred to be heard under the Office of Student Accountability and Restorative Practices Sexual Misconduct Accountability Process. The reporter may always file criminal charges with law enforcement for criminal behavior, whether or not a formal complaint is filed.

6.4.1.a. If the complaint alleges a violation of this policy by a student, the Title IX Officer will give the reporter the option to file a formal complaint under this policy, or to take no action. The decision to file a formal complaint under this policy will mean that the Title IX Officer will, if possible, collect statements related to  the complaint and provide OSARP a copy of the statements  for a hearing under the OSARP Sexual Misconduct Accountability Process. A copy of the collected statements will be supplied to the reporter and the respondent during the conduct process.

6.4.1.b. If the report alleges conduct that would constitute criminal activity, the reporter will also be informed of his/her option to file criminal charges with the appropriate law enforcement authority.

6.4.2 Complaints Filed Against an Employees
A formal complaint against an employee will be heard by the university under this policy. Specifically, a formal complaint against a faculty member will be heard under this policy, and not under the general misconduct procedures found in the Faculty Handbook, section III.A.25.

6.4.2.a. If the complaint alleges a violation of this policy by an employee, the Title IX Officer will give the reporter the option to file a formal complaint under this policy, or to take no action. The decision to file a formal complaint under this policy will mean that the Title IX Officer will, if possible, collect statements related to the complaint and provide a copy of the statements to the Title IX Coordinator. The Title IX Coordinator will convene a hearing panel for a determination on the formal complaint for faculty members. The employee’s supervisor (or in cases where the supervisor is the responding party, the person in the appropriate supervisory level) will make a determination on the formal complaint for staff members. A copy of the collected statements will be supplied to the reporter and the respondent during the conduct process.  See “Complaint Process” sections for various community member types in sections 6.4.1, 6.4.2, 6.4.3, 6.4.4, 6.6.8, 6.6.9, 6.6.10, 6.6.11.

6.4.2.b. If the report alleges conduct that would constitute criminal activity, the reporter will also be informed of his/her option to file criminal charges.

6.4.3 Complaints Filed Against an Affiliate
A formal complaint against an affiliate will be heard by the university under this policy.

6.4.3.a. If the complaint alleges a violation of this policy by an affiliate, the Title IX Officer will give the reporter the option to file a formal complaint under this policy, or to take no action. The decision to file a formal complaint under this policy will mean that the Title IX Officer will, if possible, collect statements related to the complaint and provide  a copy of the collected statements to the Title IX Coordinator.  The Title IX Coordinator will send the copy of the collected statements to the affiliate’s sponsoring department for a determination. A copy of the collected statements will be supplied to the reporter and the respondent. No hearing will be required for a complaint against an affiliate.

6.4.3.b. If the report alleges conduct that would constitute criminal activity, the reporter will also be informed of his/her option to file criminal charges.

6.4.4 Complaints Filed Against a Visitor
A formal complaint against a visitor will be heard by the university under this policy.

6.4.4.a. If the report alleges a violation of this policy by a visitor, the Title IX Officer will give the reporter the option to file a formal complaint under this policy, or to take no action. The decision to file a formal complaint under this policy will mean that the Title IX Officer will, if possible, collect statements related to  the complaint and provide a copy of the collected statements to the Title IX Coordinator. A copy of the collected statements will be supplied to the reporter and the appropriate vice president.  The appropriate vice president will make a determination and take appropriate action.  No hearing will be required for a complaint against a visitor.

6.4.4.b. If the report alleges conduct that would constitute criminal activity, the reporter will also be informed of his/her option to file criminal charges.

6.4.5 Filing Criminal Charges
Exercising an option to utilize a university procedure or opting to take no action will not in any way affect the reporter’s ability to file criminal charges with any appropriate law enforcement entity, which may be pursued at any time without regard to any formal complaint filed with the university.

6.5. Decision Not to File Complaint
If the reporter decides not to file a formal complaint, the Title IX Officer will, even without the cooperation of the reporter, collect statements related to the allegations to the extent possible under the circumstances. The Title IX Officer will provide a copy of the collected statements to the Title IX Coordinator. The Title IX Coordinator will deliver the statements to OSARP (for a student respondent), a Hearing Panel (for a faculty member), the appropriate sponsoring office (for an affiliate respondent), and the supervisor (for a staff member) or will make a determination in the case of a visitor respondent.

6.6 Formal Complaint Process

6.6.1. Where to File a Formal Complaint
A formal complaint may be filed by the reporter by providing the Title IX Officer with a signed, written document detailing the allegations, naming the respondent and providing as much detail as possible about the charges.

6.6.2. Anonymous and Third-Party Complaints 

  • A formal complaint may be filed anonymously through the university’s silent witness program. An anonymous complaint may prove difficult or impossible for university police to investigate, unless sufficient information is provided. The university police will, given sufficient information in an anonymous complaint, refer the matter to the Title IX Coordinator, who will assign it to a Title IX Officer.
  • Any third-party complaint must provide sufficient information to determine if the policy applies. If there is insufficient information provided to determine if the policy applies, and/or the identity of the reporter or the respondent cannot be ascertained, the formal complaint may be dismissed as insufficient. If an anonymous formal complaint does not provide sufficient information for the university to collect statements related to the complaint, the formal complaint may be dismissed as insufficient. A dismissal of a third-party formal complaint as insufficient is final, and is not appealable. A dismissal will not prohibit a reporter from bringing a complaint based on the same facts.
  • If a third-party complaint is timely and sufficient, the Title IX Officer will confirm the complaint commencement date with the third-party reporter in writing.

6.6.3. Timing of a Formal Complaint
The formal complaint should be filed as soon as possible after the last date of discriminatory or harassing behavior. There is no time limit for filing a formal complaint under this policy, but the university must be able to collect statements and address the allegations. The Title IX Officer will determine whether the formal complaint is filed within a reasonable amount of time from the date of the last date of discriminatory or harassing behavior. A complaint filed in time to allow statements to be collected related to the allegations will be considered timely, but a formal complaint filed after so much time has elapsed that  statement collection  is not feasible will be considered untimely and will be dismissed. A dismissal of a formal complaint as untimely is final, and is not appealable.

6.6.4. Formal Complaint Statement Collection

  • If the Title IX Officer determines that this policy applies, and the reporter opts to file a formal complaint under this policy, the Title IX Officer will determine if there is sufficient information to collect statements. If there is not sufficient information to collect statements, the Title IX Officer will inform the reporter or third-party reporter that statements will not be collected at that time. A reporter may supplement or provide more information in the future, at which time the Title IX Officer will make a new determination on the feasibility of collecting statements.
  • Title IX has the option of collecting statements related to a formal complaint against a respondent who has no further connection with the university to determine if the university has any means to take appropriate steps to eliminate the misconduct, prevent its recurrence or address its effects. If the university has no means to take appropriate steps to eliminate the misconduct, prevent its recurrence or address its effects, the Title IX Officer will inform the reporter or third-party reporter that statements will not be collected at that time. A reporter may supplement or provide more information in the future, at which time the Title IX Officer will make a new determination on the feasibility of taking appropriate steps.
  • The role of the Title IX Officer is to collect statements in an impartial manner, to treat both the reporter and respondent fairly, and to compile the statements presented by both sides or found during the collection process to the appropriate office for a determination. The statement collection process by the Title IX Officer shall be prompt, adequate, reliable and impartial, and it shall include equal opportunity for both the reporter and the respondent to present appropriate information for the statement collection process. The parties will be notified that any written statements and other documents produced by either party will be shared with the other party. All members of the university community are required to cooperate in the statement collection process. The statement collection process by the Title IX Officer should be concluded in a timely manner, based on receipt of the formal complaint, but for good cause timing may be extended, with notification to both the reporter and the respondent.

6.6.5. Discussion of Formal Procedures with Reporter

  • If the reporter decides to file a formal complaint under these procedures and the Title IX office determines that there is sufficient information to collect statements, the Title IX Officer will discuss with the reporter the procedures that will be followed with respect to any ensuing statement collection, resolution attempts and referral for a potential hearing. The Title IX Officer will also notify the Title IX Coordinator, who will advise the appropriate vice president (organizationally over the respondent) of the existence of the formal complaint. The vice president will determine which other appropriate individuals at the university should be notified of the formal complaint.
  • A Title IX Officer will work with the Title IX Coordinator and other appropriate offices within the university to provide appropriate interim measures to assist and protect the reporter and other members of the university community. The reporter will be made aware of available resources, such as:
    • victim advocacy services,
    • housing assistance,
    • academic support,
    • counseling,
    • disability services,
    • health and mental health services, 
    • the right to report retaliation violations to the Title IX Coordinator for statement collection and determination under this policy,
    • the available options for a protective order, and
    • the right to report any crime to campus or appropriate law enforcement for investigation and prosecution.

6.6.6. Notice to Respondent of Formal Complaint
If the Title IX Officer determines that the policy does not apply, that the formal complaint is untimely or that the information is insufficient to collect statements, notice to the respondent about the existence of the formal complaint is at the discretion of the Title IX Officer. If the formal complaint is the subject of a criminal investigation, the Title IX Officer will be guided by the appropriate law-enforcement officials concerning notification of the respondent. If a formal complaint is filed, but no criminal charge is pursued by the reporter, the Title IX Officer will contact the respondent to give the respondent notice of the allegations, and to allow him/her to respond to the complaint.

6.6.7. Discussion of Formal Complaint Procedures with Respondent
When the Title IX Officer notifies the respondent of the formal complaint, he/she will discuss with the respondent the procedures that will be followed with respect to any ensuing statement collection and potential referral for a hearing and determination. The Title IX Officer will refer the reporter to the Title IX Coordinator to provide appropriate interim measures to assist and protect the respondent. These may include ordering the reporter and the respondent to have no contact with each other (either directly, through electronic means or third parties), or arranging for the respondent to change working assignments or academic and extracurricular activities, living arrangements, transportation and/or dining situations. The respondent will be made aware of available resources, such as advocacy services, housing assistance, academic support, counseling, disability services, health and mental health services.

6.6.8. Complaint Process against a Faculty member

6.6.8.1. Upon receipt of a Title IX Officer’s preliminary finding concerning a violation of this policy by a faculty member or tenured A&P faculty member, the Title IX Coordinator will within 10 days assemble a hearing panel and refer the case to that hearing panel. The hearing panel will normally convene to hear a case within 5 days after the incident has been referred for a hearing. This timeframe will be extended during periods when the university is officially closed, or for good cause shown by a party for an extension.

6.6.8.2. The Title IX Coordinator will select from the hearing and appeals pool three individuals to hear the case. An alternate will be named at the time the hearing panel is composed and will review all evidence made available to the hearing panel and will be called upon to sit on the hearing panel in the event that one of the members is unable to participate in the hearing for family, medical, or other unforeseen circumstances. The reporter and respondent will be notified of the members of the hearing panel and the alternate, and may for good cause request the removal of any member. The decision on removal rests with the Title IX Coordinator. All members of the hearing panel and the alternate are required to be present during all deliberations and testimony. Once deliberation begins, the alternate will be excused if all three hearing panel members are present and available to deliberate.

6.6.8.3 The hearing panel member designated as the chair will run the hearing. The chair will schedule and convene the hearing; explain the procedures to the reporter and respondent and any witnesses; receive, maintain and ensure security of all evidence presented during the hearing; determine whether a witness called by either party is appropriate and will be heard; assure that the procedures are followed; maintain the record of the proceedings; coordinate the drafting of the report of the decision of the hearing panel, and deliver the report to the Title IX Coordinator.

6.6.8.4. In the hearing, neither party is required to be present. If a party is not present, he/she may submit a written statement. If the parties are present and testify, neither the reporter nor the respondent shall be allowed to cross-examine the other party directly, but shall propose questions through the chair of the hearing panel. Either party may opt to participate via remote access to the hearing, through audio or video conferencing options. Such remote access must be requested far enough in advance to allow the hearing panel chair to make arrangements for the appropriate equipment.

6.6.8.5. The hearing will be closed to all but the parties, each party’s adviser, the hearing panel members, and witnesses. Witnesses will only attend the portion of the hearing in which they testify, and will not be present for other witnesses’ testimony. The hearing panel may call the Title IX Officer or any other appropriate member of the university community as a witness, but may not compel participation by any person.

6.6.8.6. Equal opportunity shall be given to the reporter and the respondent to present testimony, witnesses and evidence. Both the reporter and respondent shall have timely access to documents and information considered by the hearing panel.

6.6.8.7. Both parties may have access to advice of legal counsel and may have legal counsel or other advisor present during the hearing. The hearing panel will communicate with the parties directly, not through legal counsel or another advisor. Legal counsel or other advisors may not address the hearing panel directly or on behalf of the parties. The hearing panel may request that a representative from the Office of Legal Services be available to advise the committee if either or both parties are accompanied by legal counsel at the hearing.

6.6.8.8. Each party is responsible for requesting any witnesses to be present to testify on behalf of that party. Failure of a witness to appear as requested by a party is not grounds for postponement of the hearing. Whether or not to allow the testimony of any witnesses is to be determined by the hearing panel chair on a case-by-case basis. Either party intending to call witnesses shall notify the hearing panel chair in writing at least two days in advance of the hearing by giving the name and title of each witness and the subject matter of the testimony of each witness. The hearing panel may call additional witnesses, as it deems appropriate. If a person is not available to testify, the hearing panel may request or allow written testimony or take testimony by telephone, telepresence, or other digital transmission during the hearing.

6.6.8.9. In the hearing, information concerning the reporter’s or respondent’s prior or subsequent sexual history shall not be relevant, unless it is the subject of a prior civil, criminal or administrative determination.

6.6.8.10. All testimony given before the hearing panel will be audio-recorded. At the conclusion of the hearing, these recordings will be placed on file in the office of the Title IX Coordinator. Upon request, copies of the recordings will be made available for review by either party, the hearing panel, and, if relevant, the appeals panel.

6.6.8.11. All persons performing responsibilities under this policy will respect and maintain the strict confidentiality of all relevant documents and deliberations. The privacy of all parties involved will be protected within the context of all state and federal laws, and university policies.

6.6.8.12. The evidentiary standard for hearing is preponderance of evidence. The respondent is presumed to be not responsible unless sufficient evidence is presented to prove a violation of the policy has occurred.

6.6.8.13. The deliberations of the hearing panel will not be recorded, and the hearing panel members shall keep the deliberations confidential. The decision of the hearing panel shall be by majority vote, but the vote of individual members and the number of votes for each side shall not be reported, and no minority or dissenting report will be issued.

6.6.8.14. Only if the hearing panel finds that the respondent has violated the policy will the panel consider potential sanctions against the respondent.

6.6.8.15. Within five days of the conclusion of the hearing, the chair of the hearing panel will communicate its decision and recommendations in writing to the Title IX Coordinator. This report will include a recommendation on appropriate sanctions only if the respondent is found responsible for violation of the policy. Both parties, the Title IX Officer, and the appropriate associate or assistant vice president or dean over the respondent shall receive written notice of the outcome of the process, including whether the respondent was found responsible for violating the policy, any recommended sanction, any appeal procedures, and the date the decision becomes final. The Title IX Coordinator will send a copy of the report to the appropriate vice president.

6.6.8.16. Within ten days of receipt of the panel’s recommendations, the respondent’s associate or assistant vice president or dean will send a written decision in the case to the reporter and respondent, with copies to the Title IX Officer, the Title IX Coordinator, and the hearing panel chair. The respondent’s associate or assistant vice president or dean may adopt the recommendations of the hearing panel, reject them and make a different decision on the case, or modify them as he/she deems appropriate.

6.6.8.17. Either party may appeal the decision of the respondent’s associate or assistant vice president or dean by submitting a written appeal to the vice president over the associate or assistant vice president or dean within five days of the decision. The written appeal shall set forth the grounds for the appeal and a summary of the arguments and documentary evidence the party intends to present at an appeals hearing. If the appeal is by the reporter, the grounds are limited to a violation of due process, newly discovered evidence, and the leniency of the sanctions. If the appeal is by the respondent, the grounds are limited to a violation of due process, newly discovered evidence, and the harshness of the sanctions.

6.6.8.18. In the absence of a timely written appeal, the decision of the respondent’s associate or assistant vice president or dean is final. If either party appeals, the associate or assistant vice president or dean will notify both the Title IX Coordinator and the other party of the appeal, and the other party will have an additional five days to respond and/or file a counter-appeal. If a counter-appeal is filed, the appealing party will have another five days to respond to the counter-appeal. All appeals will be considered together by the vice president.

6.6.8.19. If an appeal is filed, the vice president will make a decision on the appeal within 5 days of the final submission, based on the written record and a preponderance of the evidence.  If either party indicates that new evidence is the basis for the appeal, the vice president may decide to allow the parties to be present for a hearing. Otherwise, the appeal shall be on the record, and no hearing will take place. If a hearing is held, the procedures will be the same as for the original hearing as indicated above.

6.6.8.20. The vice president shall make a final decision within 5 days after any hearing, or if no hearing is granted, within 5 days after the review of the case on the record. The vice president may uphold the decision below, reject it, or modify it. The vice president will send the determination to both parties, the respondent’s associate or assistant vice president or dean, and the Title IX Coordinator. The decision of the vice president is final, and may not be appealed.

6.6.8.21. If the respondent is a faculty member, an appeal to the Faculty Appeals Committee may only be filed under the terms of the Faculty Handbook if the sanction imposed is dismissal, nonrenewal or denial of tenure or promotion.

6.6.9. Complaint Process against a Staff Member

6.6.9.1. When a report against a staff member is received by a Title IX Officer or HR consultant, the Title IX Officers for staff shall be notified.  The Title IX Coordinator may substitute another Title IX officer in appropriate circumstances.

6.6.9.2. The appropriate HR Consultant will discuss the incident with the Title IX Officer for communicating pertinent details and will inform the appropriate supervisor(s) of the reporter and respondent.

6.6.9.3. The reporter and respondent may be directed to avoid contact by the appropriate supervisor(s) in writing. Decisions and details associated with avoiding contact will be determined by the supervisor(s).  There may be other interim measures provided.

6.6.9.4. The Title IX Officer for staff shall review the information provided and shall determine if the policy applies.

6.6.9.5. If the policy applies, the Title IX Officer for staff shall alert the HR director of a report of violation of policy. If the policy does not apply, the respondent and the reporter will be notified and the Title IX file shall be closed.  If necessary, the Title IX Officer for staff shall provide a recommendation to the HR consultant regarding the behavior/incident. The Title IX Officer for staff shall document the consultation. The HR consultant must communicate with and collaborate with the respondent’s supervisor to address the behavior or incident through performance management or the disciplinary action process (as needed).  (The Title IX Coordinator reserves the right to assign any Title IX Officer).

6.6.9.6. Upon receipt of a Title IX Officer’s report concerning an alleged violation of this policy by an employee, the Title IX Coordinator must confirm assignment of a Title IX Officer and shall notify the respondent’s supervisor.  When appropriate, the Title IX Officer for staff shall coordinate appropriate interim measures and collect statements related to the matter.

6.6.9.7. Regular status reports on process must be provided to the appropriate supervisors to ensure smooth business operations and the Title IX Coordinator, reporter and respondent shall be kept informed throughout the process.  The Title IX Officer may confer with all resource people including the Title IX Office, Legal Services, the HR consultant, the HR director, the respondent’s supervisor, and the appropriate assistant or associate vice president.

6.6.9.8. Once appropriate information is gathered, the Title IX Officer for staff shall provide a report to the respondent’s supervisor(s).  In conference with the Title IX Officer and the HR Consultant, the respondent’s supervisor must make a determination of whether there was a violation of the policy.

6.6.9.9. If the employee is found in violation of the policy, potential sanctions will be considered and determined by the respondent’s supervisor in consultation with the HR consultant, HR director, and the appropriate associate or assistant vice president.  If, after gathering information, it is determined that the employee did not violate the policy, the respondent and the reporter are notified of the finding and the Title IX file shall be closed.  If necessary, the Title IX Officer for staff will provide a recommendation to the HR consultant regarding the behavior/incident. The Title IX Officer for staff shall document the consultation. The HR consultant must collaborate with the respondent’s supervisor to address the behavior or incident through performance management or the disciplinary action process (as needed).

6.6.9.10. The respondent will be notified of the finding by the respondent’s supervisor who administers any necessary disciplinary action.

6.6.9.11. If the respondent is a classified staff member with access to the state-grievance procedure, the normal rules concerning grievances as set forth by the Virginia Department of Human Resource Management will apply to any discipline pursuant to this policy.

6.6.10. Complaint Procedures against an Affiliate
The report of the Title IX Officer concerning the alleged responsibility of an affiliate for a violation of this policy will be provided by the Title IX Coordinator to the head of the affiliate’s sponsoring department. The head of the department will determine whether a policy violation occurred.  The department head’s decision is final and cannot be appealed.

6.6.11. Complaint Procedures against a Visitor
The report of the Title IX Officer concerning the alleged responsibility of a visitor for a violation of this policy will be given to the Title IX Coordinator. The Title IX Coordinator will refer the report to the appropriate associate or assistant vice president or dean, who will determine whether a policy violation occurred.  This decision is final and cannot be appealed.

6.6.12. Disciplinary Actions

6.6.12.1 A classified staff member who is found to have violated this policy may be disciplined or discharged under the terms of Policy 1317-Standards of Conduct and Performance for Classified Employees.

6.6.12.2 A wage employee who is found to have violated this policy may be disciplined or discharged under the terms of Policy 1325-Wage Employment.

6.6.12.3 An A&P faculty member who is found to have violated this policy may be disciplined or discharged under the terms of Policy 1335-Terms and Conditions of Employment for Administrative & Professional Faculty.

6.6.12.4 An affiliate who is found to have violated this policy may have his/her status as affiliate removed under the terms of Policy 1337-Affiliates.

6.6.12.5 An instructional faculty member who is found to have violated this policy may be disciplined or discharged under the terms of the Faculty Handbook, Section III.A.25.

6.6.12.6 A student who is found to have violated this policy may be disciplined, suspended or expelled under the terms of the Student Code of Conduct.

6.6.12.7 A visitor who is found to have violated this policy may be banned from campus.

6.6.13. Training for Hearing Panel Members
The individuals charged with hearing disciplinary matters under this policy shall be appropriately trained on issues relating to sexual misconduct, and they shall be ineligible to serve on a panel or in other capacities if they have conflicts of interest or bias against either the reporter or the respondent.

6.6.14. Role of Title IX Coordinator and Title IX Officer in Misconduct Hearing
The Title IX Coordinator will serve as a resource for any hearing officer or body who is charged with conducting a hearing or reaching a decision on the issue of the respondent’s misconduct under the terms of this policy. Upon request, the Title IX Coordinator may serve in an advisory capacity in any such hearing or meeting.

6.7 Other Provisions

6.7.1. Exceptions to Provisions
A formal complaint procedure should substantially comply with the provisions of this policy. The validity of a procedure shall not be affected by a technical procedural violation. A procedural flaw or variation that does not unduly prejudice the reporter or the respondent shall not be grounds for an appeal, or for overturning a decision. Therefore, the Title IX Officer, the Title IX Coordinator, the appropriate vice president organizationally over the respondent or the appropriate office to whom the case is referred may make exceptions to the provisions (including time deadlines) of this policy, provided that any exception is intended to bring about a just outcome and does not unreasonably adversely affect another participant in the process.

6.7.2. Multiple Parties
Should there be more than one reporter filing complaints against a respondent, or more than one respondent against whom a reporter files a complaint, the appropriate hearing panel, where applicable, may combine the matters into a single hearing. The decision to convene a single hearing for multiple complaints is at the discretion of the Title IX Coordinator or OSARP, depending on the procedure to be followed.

6.7.3. Confidentiality, Other Consequences
All participants in all proceedings under this policy will observe confidentiality to the extent reasonably possible. However, in the event of any final determination of a violation of this policy, the appropriate vice president organizationally over the respondent will provide information about the final determination to appropriate university officials and to the reporter and respondent. The university may also use any information obtained in the proceedings to defend itself against any claims, complaints or allegations brought against it.

6.7.4. Education
The Title IX Coordinator will provide educational materials to appropriate university officials and community members to enable them to better fulfill their responsibilities under this policy.

6.7.5. Suspension Pending Outcome
Pending the outcome of any statement collection process and pending the completion of the procedures in this policy and in the policies concerning misconduct referenced herein, any member of the university community charged with sexual misconduct may be temporarily suspended from employment, suspended from attendance and enrollment, and/or issued a no-trespass notice banning the person from campus. Additionally, any person charged through a formal complaint or report under this policy will be notified that retaliation is prohibited and may result in a separate charge under the policy. Both the reporter and respondent will be ordered to have no contact with each other pending the outcome of any statment collection process and the completion of the procedures herein.

6.7.6. Attorneys and/or Support Persons in Procedures
The reporter and the respondent have the right to obtain advice of a support person or private counsel concerning this policy and the procedures in it. However, the role of the support person or private counsel is purely advisory in this procedure and attorneys and other support persons are not to be active participants in the process. The Title IX Coordinator, the administrators involved in the decisions and any committees operating under this policy and procedures shall have access to advice from the Legal Services Office for the university.

6.7.7. Criminal Proceedings
The existence of criminal proceedings will not unnecessarily delay or interrupt the procedures outlined in this policy, unless the law enforcement agency or prosecution advises that the university procedures be suspended, in which case the university will determine whether and for how long to suspend its procedures. During an active criminal investigation, the university will agree to suspend its procedures, but may take appropriate interim measures to protect the campus community. The university will comply with all law enforcement agency requests for cooperation, and reporters and respondents will be advised that the university may be required to temporarily suspend its statement collection process while a law enforcement agency gathers criminal evidence. The university will resume statement collection when it is notified by the law enforcement agency that it has completed its evidence gathering process. Evidence and information gathered during the University’s Title IX statement collection process may be shared with law enforcement agencies as requested.

6.7.8. Amnesty
The university will grant amnesty to students who report incidents of sexual misconduct from charges for drug and/or alcohol infractions as they relate to the University’s Student Code of Conduct. Such amnesty does not apply to employees, affiliates or visitors to the university.

6.7.9. Record Keeping
The Title IX Officer will maintain the evidence collected during the statement collection and the hearing process, and will turn the documents over to the Title IX Coordinator at the conclusion of any hearing and/or appeal. All evidence will be made available to the hearing panel, appeals panel, and supervisor as needed and if necessary, and shall be reviewed in a secure location to ensure the confidentiality of both parties and witnesses. Information (including file of statements collected by the Title IX officer) concerning reports and formal complaints under this policy shall be maintained by the Title IX Coordinator, and such information shall be maintained as confidential information not to be disclosed, except as required by law or as needed by law enforcement agencies, by appropriate institutional offices, or to defend the institution’s actions.

6.7.10. Legally Mandated Consequences for Students
If a student is suspended for, expelled for, or withdraws from the university during the process of being formally charged through the Office of Student Accountability and while under investigation for a violation of the Student Code of Conduct involving sexual violence, a notation will be placed on the student’s transcript. The university will notify the student of the transcript notation, and the student may request that the notation be removed when the suspension has expired, or if the student is subsequently found not responsible for the violation in a university procedure.

7. RESPONSIBILITIES

University community members and visitors are responsible for behaving in a nondiscriminatory and non-harassing manner toward other university community members and visitors, and are responsible for abiding by the terms of this policy.

Responsible employees are responsible for reporting information on conduct that would constitute sexual misconduct to a Title IX Officer.

The Title IX Coordinator is responsible for overseeing the Title IX compliance of the university, coordinating with the Title IX Officers on the processing of reports and formal complaints, notifying the appropriate vice president organizationally over the respondent of complaints, making recommendations and disseminating information as provided in this policy. The Title IX Coordinator is also responsible for identifying and addressing any patterns or systemic problems revealed by reports and formal complaints under this policy and for identifying and addressing any problems that arise during the review of formal complaints filed under this policy. The Title IX Coordinator is responsible for determining appropriate actions against a visitor who is found to have violated this policy, which may include a trespass notice issued against the visitor.

The Title IX Officers are responsible for accepting reports and formal complaints by members of the university community, collecting statements, determining the applicability of this policy to specific complaints and coordinating with the Title IX Coordinator on the processing of formal complaints. Title IX Officers will have adequate training on what constitutes sexual misconduct, and will be familiar with this policy and the university’s disciplinary procedures.

The appropriate dean over a faculty member is responsible for receiving the report from a hearing panel, determining whether a respondent has violated the policy, and if so, issuing an appropriate sanction for misconduct under this policy.

The appropriate associate or assistant vice president or dean over a staff member respondent is responsible for receiving the report from a supervisor, determining whether a respondent has violated the policy, and if so, issuing an appropriate sanction for misconduct under this policy.  This should be done in consultation with the appropriate Vice President.

The sponsoring department is responsible for determining whether an affiliate’s status should be revoked for violation of this policy. 

The vice presidents are responsible for hearing appeals concerning employee  respondents, and for making final decisions concerning responsibility and sanctions for employees violating this policy.

8. SANCTIONS

Sanctions will be commensurate with the severity and/or frequency of the offense and may include employee discipline up to and including termination of employment, student sanctions up to and including suspension or expulsion, affiliate sanctions up to and including removal of affiliate status, and visitor sanctions up to and including trespass notices for any individual found responsible for the violation of this policy. Additionally, civil sanctions may be filed by reporters against respondents regarding violations of this policy, and some violations may constitute criminal behavior.

9. EXCLUSIONS

9.1. This policy does not apply to sexual misconduct by individuals not associated in any formal or informal way with the university or to behavior that does not have an impact on the working or learning environment for a member of the university community. It does not apply to individuals who are allegedly subjected to sexual misconduct, but who are not members of the university community, unless the respondent is a member of the university community. It does not apply to alleged sex discrimination or to discrimination or harassment on the basis of other legally protected classifications, which are covered in Policy 1324. It does not apply to genuinely consensual relationships between adult members of the university community.

9.2. Even if an allegation of sexual misconduct is excluded from the scope of this policy, any affected person may discuss the allegation with the Title IX Coordinator.

10. INTERPRETATION

The authority to interpret this policy rests with the President and is generally delegated to the Title IX Coordinator.

Previous Version: September 2016
Approved by the President: August 2016

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