Sexual Misconduct Policy (Title IX)

• Advisor means a person chosen by a party or appointed by the institution to accompany the party to meetings related to the Resolution Process, to advise the party on that process, and to conduct questioning for the party at the hearing, if any.
• Appeal Decision-maker means the person or panel who accepts or rejects a submitted appeal request, determines whether an error occurred that substantially affected the investigation or original determination, and directs corrective action, accordingly.
• Complainant means an individual who is alleged to be the victim of conduct that could constitute sexual harassment or retaliation for engaging in a protected activity.
• Confidential Resource means an employee who is not a Mandated Reporter of notice of harassment and/or retaliation (irrespective of Clery Act Campus Security Authority status).
• Day means a business day when EICCD is in normal operation.
• Decision-maker means the person or panel who hears evidence, determines relevance, and makes the Final Determination of whether this Policy has been violated and/or assigns sanctions.
• Directly Related Evidence is evidence connected to the complaint, but which is neither inculpatory (tending to prove a violation) nor exculpatory (tending to disprove a violation) and cannot be relied upon by the Decision-maker(s). Compare to Relevant Evidence, below.
• Education Program or Activity means locations, events, or circumstances where EICCD exercises substantial control over both the Respondent and the context in which the sexual harassment and/or retaliation occurs and also includes any building owned or controlled by a student organization that is officially recognized by the EICCD.
• Final Determination is a conclusion by the standard of proof that the alleged conduct did or did not violate policy.
• Finding is a conclusion by the standard of proof that the conduct did or did not occur as alleged (as in a “finding of fact”).
• Formal Complaint means a document submitted or signed by a Complainant or signed by the Title IX Coordinator alleging a Respondent engaged in sexual harassment or retaliation for engaging in a protected activity and requesting that EICCD investigate the allegation(s).
• Formal Grievance Process means “Process A,” a method of formal resolution designated by EICCD to address conduct that falls within the policies included below, and which complies with the requirements of the Title IX regulations (34 C.F.R. § 106.45) and the Violence Against Women Act § 304.
• Grievance Process Pool includes any Investigators, Hearing Decision-makers, Appeal Decision-makers, and Advisors who may perform any or all of these roles (though not at the same time or with respect to the same complaint).
• Informal Resolution means a complaint resolution agreed to by the Parties and approved by the Title IX Coordinator that occurs prior to a formal Final Determination being reached.
• Investigator means the person(s) authorized by EICCD to gather facts about an alleged violation of this Policy, assess relevance and credibility, synthesize the evidence, and compile this information into an investigation report of Relevant Evidence and a file of Directly Related Evidence.
• Mandated Reporter means an EICCD employee who is obligated by policy to share knowledge, notice, and/or reports of sexual harassment and/or retaliation with the Title IX Coordinator.
• Notice means that an employee, student, or third-party informs the Title IX Coordinator or other Official with Authority of the alleged occurrence of harassing, discriminatory, and/or retaliatory conduct.
• Official with Authority (OWA) means an EICCD employee who has responsibility to implement corrective measures for sexual harassment and/or retaliation on behalf of EICCD.
• Parties means the Complainant(s) and Respondent(s), collectively.
• Process A means the Formal Grievance Process detailed below and defined above.
• Process B means any process designated by EICCD that only applies when Process A does not, as determined by the Title IX Coordinator.
• EICCD means a postsecondary education program that receives federal funding.
• Relevant Evidence is evidence that tends to prove (inculpatory) or disprove (exculpatory) an issue in the complaint.
• Remedies are post-Final Determination actions directed to the Complainant and/or the community as mechanisms to address safety, prevent recurrence, and restore access to EICCD’s education program.
• Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment or retaliation for engaging in a protected activity under this Policy.
• Resolution means the result of an Informal Resolution or Formal Grievance Process.
• Sanction means a consequence imposed on a Respondent who is found to have violated this Policy.
• Sexual Harassment is an umbrella category including the offenses of sexual harassment, sexual assault, stalking, dating violence, and domestic violence. See Section 16 for greater detail.
• Student means any individual who has accepted an offer of admission, or who is registered or enrolled for credit or non-credit bearing coursework, and who maintains an ongoing educational relationship with EICCD.
• Title IX Coordinator is at least one official designated by EICCD to ensure compliance with Title IX and EICCD’s Title IX program. References to the Coordinator throughout this policy may also encompass a designee of the Coordinator for specific tasks.
• Title IX Team refers to the Title IX Coordinator, any deputy coordinators, and any member of the Grievance Process Pool.

[2] For the purpose of this Policy, privacy and confidentiality have distinct meanings. Privacy means that information related to a complaint will be shared with a limited number of Recipient employees who “need to know” in order to assist in the assessment, investigation, and resolution of the complaint. All employees who are involved in the Recipient’s response to notice under this Policy receive specific training and guidance about sharing and safeguarding private information in accordance with state and federal law. The privacy of student education records will be protected in accordance with the Family Educational Rights and Privacy Act (FERPA), as outlined in the Recipient’s Student Records Policy. The privacy of employee records will be protected in accordance with Human Resources policies. Confidentiality exists in the context of laws (including Title IX) that protect certain relationships, including those who provide services related to medical and clinical care, mental health providers, counselors, and ordained clergy. The law creates a privilege between certain health care providers, mental health care providers, attorneys, clergy, spouses, and others, with their patients, clients, parishioners, and spouses. EICCD has designated individuals who have the ability to have privileged communications as Confidential Resources. For more information about Confidential Resources, see page 28. When information is shared by a Complainant with a Confidential Resource, the Confidential Resource cannot reveal the information to any third party except when an applicable law or a court order requires or permits disclosure of such information. For example, information may be disclosed when: (1) the individual gives written consent for its disclosure; (2) there is a concern that the individual will likely cause serious physical harm to self or others; or (3) the information concerns conduct involving suspected abuse or neglect of a minor under the age of 18, elders, or individuals with disabilities. Non-identifiable information may be shared by Confidential Resources for statistical tracking purposes as required by the federal Clery Act. Other information may be shared as required by law.

³ 20 U.S.C. 1232g

⁴ 34 C.F.R. § 99

• an employee of EICCD,
• conditions⁶ the provision of an aid, benefit, or service of the EICCD,
• on an individual’s participation in unwelcome sexual conduct.

• unwelcome conduct,
• determined by a reasonable person,
• to be so severe, and
• pervasive, and,
• objectively offensive,
• that it effectively denies a Complainant equal access to the EICCD’s education program or activity.⁷

• Any sexual act⁸ directed against a Complainant,⁹
  • without their consent, or
  • instances in which the Complainant is incapable of giving consent.
• Incest:
  • Non-forcible sexual intercourse,
  • between persons who are related to each other,
  • within the degrees wherein marriage is prohibited by Iowa state law.
• Statutory Rape:
  • Non-forcible sexual intercourse,
  • with a person who is under the statutory age of consent of 16.

• violence,
• on the basis of sex,
• committed by a person,
• who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.
  • The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition—
    
    • Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
    • Dating violence does not include acts covered under the definition of domestic violence.

Domestic Violence¹⁰,  defined as:

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

• engaging in a course of conduct,
• on the basis of sex,
• directed at the Complainant, that
  • would cause a reasonable person to fear for the person’s safety, or
  • the safety of others; or
  • Suffer substantial emotional distress.

For the purposes of this definition—

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

EICCD reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any offense under this Policy. The most serious offenses are likely to result in suspension/expulsion/termination.

A. Force, Coercion, Consent, and Incapacitation

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

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

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

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

Consent is:

• knowing, and
• voluntary, and
• clear permission
• by word or action
• to engage in sexual activity.

Individuals may perceive and experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity.

If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.

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

Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, that sexual activity should cease within a reasonably immediate time.

Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent. If an individual expresses conditions on their willingness to consent (e.g., use of a condom) or limitations on the scope of their consent, those conditions and limitations must be respected.

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

Consent in relationships must also be considered in context. When parties consent to BDSM¹¹ or other forms of kink, non-consent may be shown by the use of a safe word. Resistance, force, violence, or even saying “no” may be part of the kink and thus consensual, thus EICCD’s evaluation of communication in kink situations should be guided by reasonableness, rather than strict adherence to policy that assumes non-kink relationships as a default.

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

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

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

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

⁵ Including gender identity, gender expression, sexual orientation, and sex stereotypes.

⁶ Implicitly or explicitly.

⁷ Unwelcomeness is subjective and determined by the Complainant (except when the Complainant is younger than the age of consent). Severity, pervasiveness, and objective offensiveness are evaluated based on the totality of the circumstances from the perspective of a reasonable person in the same or similar circumstances (“in the shoes of the Complainant”), including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced. This definition is broad enough to potentially encompass forms of sex-based disparate treatment, even if not harassing in nature.

⁸ A ‘sexual act” is specifically defined by federal regulations to include one or more of the following:

Rape:

• The carnal knowledge of a Complainant OR Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, 
• without their consent, 
• including instances where they are incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.”

Sodomy:

• Oral or anal sexual intercourse with a Complainant, 
• forcibly, and/or
• against their will (non-consensually), or 
• not forcibly or against their will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. 

Sexual Assault with an Object:

• The use of an object or instrument to penetrate, 
• however slightly, 
• the genital or anal opening of the body of the Complainant, 
• forcibly, and/or
• against their will (non-consensually), or
• not forcibly or against their will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. 

Fondling:

• The touching of the private body parts of the Complainant (buttocks, groin, breasts), 
• for the purpose of sexual gratification, 
• forcibly, and/or
• against their will (non-consensually), or
• not forcibly or against their will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

⁹ This would include having another person touch you sexually, forcibly, and/or without their consent.

¹⁰ To categorize an incident as Domestic Violence under this Policy, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.

¹¹ Bondage, discipline/dominance, submission/sadism, and masochism.

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

• On-campus licensed professional counselors
• Community-based (non-employees):
  • Licensed professional counselors and other medical providers
  • Local rape crisis counselors
  • Domestic violence resources
  • Local or state assistance agencies
  • Clergy/Chaplains
  • Attorneys

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

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

Employees who have confidentiality as described above, and who receive reports within the scope of their confidential roles will timely submit anonymous statistical information for Clery Act purposes unless they believe it would be harmful to their client,

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

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

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

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

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

All EICCD employees (including student employees), with the exception of those who are designated as Confidential Resources, are Mandated Reporters and must promptly share with the Title IX Coordinator all known details of a report made to them in the course of their employment.

Employees must also promptly share all details of behaviors under this Policy that they observe or have knowledge of, even if not reported to them by a Complainant or third party.

Complainants may want to carefully consider whether they share personally identifiable details with non-confidential Mandated Reporters, as those details must be shared with the Title IX Coordinator.

Generally, disclosures in climate surveys, classroom writing assignments or discussions, human subjects research, or at events such as “Take Back the Night” marches or speak-outs do not provide notice that must be reported to the Title IX Coordinator by employees, unless the Complainant clearly indicates that they desire a report to be made or a seek a specific response from EICCD.

Supportive measures may be offered as the result of such disclosures without formal EICCD action.

Failure of a Mandated Reporter, as described above in this section, to report an incident of sexual harassment or retaliation of which they become aware is a violation of EICCD Policy and can be subject to disciplinary action for failure to comply/failure to report.

Though this may seem obvious, when a Mandated Reporter is engaged in sexual harassment and/or retaliation in violation of this Policy, they still have a duty to report their own misconduct, though EICCD is technically not on notice simply because a harasser is also a Mandated Reporter unless the harasser does in fact report themselves.

Finally, it is important to clarify that a Mandated Reporter who is themselves a target of sexual harassment and/or retaliation under this Policy is not required to report their own experience, though they are, of course, encouraged to do so.

• Seek forensic medical assistance at the local hospital, ideally within 120 hours of the incident (sooner is better).
• Avoid urinating, showering, bathing, washing hands or face, or douching, if possible, but evidence may still be collected even if you do.
• If oral sexual contact took place, refrain from smoking, eating, drinking, or brushing teeth.
• If clothes are changed, place soiled clothes in a paper bag (plastic destroys evidence) or secure evidence container.
• Seeking medical treatment can be essential even if it is not for the purposes of collecting forensic evidence.

• Evidence in the form of text and voice messages will be lost in most cases if the Complainant changes their phone number.
  • Make a secondary recording of any voice messages and/or save the audio files to a cloud server.
  • Take screenshots and/or a video recording of any text messages or other electronic messages (e.g., Instagram, Snapchat, Facebook).
• Save copies of e-mail and social media correspondence, including notifications related to account access alerts.
• Take timestamped photographs of any physical evidence including notes, gifts, etc. in place when possible.
• Save copies of any messages, to include those showing any request for no further contact.
• Obtain copies of call logs showing the specific phone number being used rather than a saved contact name if possible.

During the initial meeting between the Complainant and the Title IX Coordinator, the importance of taking these actions will be discussed, if timely.

In some cases, the Title IX Coordinator may determine that a Violence Risk Assessment (VRA) should be conducted by the Behavior Intervention Team as part of the initial assessment. A VRA can aid in ten critical and/or required determinations, including:

• Emergency removal of a Respondent on the basis of immediate threat to an individual or the community’s physical health/safety
• Whether the Title IX Coordinator should pursue/sign a Formal Complaint absent a willing/able Complainant
• Whether the scope of the investigation should include an incident, and/or pattern of misconduct and/or climate of hostility/harassment
• To help identify potential predatory conduct
• To help assess/identify grooming behaviors
• Whether it is reasonable to try to resolve a complaint through Informal Resolution, and if so, what approach may be most successful
• Whether to permit a voluntary withdrawal by the Respondent
• Whether to impose transcript notation or communicate with a transfer institution about a Respondent
• Assessment of appropriate sanctions/remedies (to be applied post-hearing)
• Whether a Clery Act Timely Warning/Trespass order/Persona-non-grata is needed

Threat assessment is the process of evaluating the actionability of violence by an individual against another person or group following the issuance of a direct or conditional threat. A VRA is a broader term used to assess any potential violence or danger, regardless of the presence of a vague, conditional, or direct threat.

VRAs require specific training and are typically conducted by psychologists, clinical counselors, social workers, case managers, law enforcement officers, student conduct officers, or other Behavioral Intervention Team (BIT)/CARE team members.

A VRA authorized by the Title IX Coordinator should occur in collaboration with the BIT/CARE or threat assessment team. Where a VRA is required by the Title IX Coordinator, a Respondent refusing to cooperate may result in a charge of failure to comply within the appropriate student or employee conduct process.

A VRA is not an evaluation for an involuntary behavioral health hospitalization (e.g., 5150 in California, Section XII in Massachusetts, Baker Act in Florida), nor is it a psychological or mental health assessment. A VRA assesses the risk of actionable violence, often with a focus on targeted/predatory escalations, and is supported by research from the fields of law enforcement, criminology, human resources, and psychology.

More about the EICCD’s process for VRA can be found in Appendix E.

Dismissal (Mandatory and Discretionary) ¹⁶

EICCD must dismiss a Formal Complaint or any allegations therein if, at any time during the investigation or hearing, it is determined that:

• The conduct alleged in the Formal Complaint would not constitute Title IX Sexual Harassment as defined above, even if proved
• The conduct did not occur in an education program or activity controlled by EICCD (including buildings or property controlled by recognized student organizations), and/or EICCD does not have control of the Respondent
• The conduct did not occur against a person in the United States
• At the time of filing a Formal Complaint, a Complainant is not participating in or attempting to participate in EICCD’s education program or activity, and based on the available information, the Title IX Coordinator has determined that they do not need to sign a Formal Complaint on behalf of EICCD ¹⁷

EICCD may dismiss a Formal Complaint or any allegations therein if, at any time during the investigation or hearing:

• A Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein
• The Respondent is no longer enrolled in or employed by EICCD
• Specific circumstances prevent EICCD from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein

A Complainant who decides to withdraw a complaint may later request to reinstate it or refile it. Upon any dismissal, EICCD will promptly send written notice of the dismissal and the rationale for doing so simultaneously to the parties.

This dismissal decision is appealable by any party under the procedures for appeal (See Section 37). [The decision not to dismiss is also appealable by any party claiming that a dismissal is required or appropriate.]

¹⁶ These dismissal requirements are mandated by the 2020 Title IX Regulations, 34 CFR §106.45.

¹⁷ Such a Complainant is still entitled to supportive measures, but the formal grievance process is not applicable unless the Title IX Coordinator signs the complaint in the event the Complainant cannot/will not do so.

The Advisor may be a friend, mentor, family member, attorney, or any other individual a party chooses to advise, support, and/or consult with them throughout the Resolution Process. The parties may choose Advisors from inside or outside of the EICCD community.

Parties also have the right to choose not to have an Advisor in the initial stages of the Resolution Process, prior to a hearing.

The parties may be accompanied by their Advisor in all meetings and interviews at which the party is entitled to be present, including intake and interviews. Advisors should help the parties prepare for each meeting and are expected to advise ethically, with integrity, and in good faith.

EICCD cannot guarantee equal Advisory rights, meaning that if one party selects an Advisor who is an attorney, but the other party does not or cannot afford an attorney, EICCD is not obligated to provide an attorney.

Under the Title IX Regulations, a form of indirect questioning is required during the hearing but must be conducted by the parties’ Advisors. The parties are not permitted to directly question each other or any witnesses. If a party does not have an Advisor for a hearing, EICCD will appoint a trained Advisor, if possible, for the limited purpose of conducting any questioning of the parties and witnesses.

Advisors and their advisees may request to meet with the Investigator(s) conducting interviews/meetings in advance of these interviews or meetings. This pre-meeting allows Advisors to clarify and understand their role and EICCD’s policies and procedures.

All Advisors are subject to the same EICCD policies and procedures, whether they are attorneys or not, and whether they are selected by a party or assigned by EICCD. Advisors are expected to advise their advisees without disrupting proceedings. Advisors should not address EICCD officials or Investigators in a meeting or interview unless invited to do so (e.g., asking procedural questions). The Advisor may not make a presentation or represent their advisee during any meeting or proceeding and may not speak on behalf of the advisee to the Investigator(s) or other Decision-maker(s) except during a hearing proceeding during questioning.

The parties are expected to ask and respond to questions on their own behalf throughout the investigation phase of the Resolution Process. Although the Advisor generally may not speak on behalf of their advisee, the Advisor may consult with their advisee, either privately as needed, or by conferring or passing notes during any Resolution Process meeting or interview. For longer or more involved discussions, the parties and their Advisors should ask for breaks to allow for private consultation.

Any Advisor who oversteps their role as defined by this Policy, or who refuses to comply with EICCD’s established rules of decorum for the hearing, will be warned. If the Advisor continues to disrupt or otherwise fails to respect the limits of the Advisor role, the meeting/interview/hearing may be ended, or other appropriate measures implemented, including EICCD requiring the party to use a different Advisor or providing a different EICCD-appointed Advisor. Subsequently, the Title IX Coordinator will determine how to address the Advisor’s non-compliance and future role.

EICCD expects that the parties may wish to have EICCD share documentation and evidence related to the allegations with their Advisors.

EICCD provides a consent form that authorizes EICCD to share such information directly with a party’s Advisor. The parties must either complete and submit this form to the Title IX Coordinator or provide similar documentation demonstrating consent to a release of information to the Advisor before EICCD is able to share records with an Advisor.

If a party requests that all communication be made through their attorney Advisor, EICCD will comply with that request.

Advisors appointed by the institution will not be asked to disclose details of their interactions with their advisees to institutional officials or Decision-makers.

Advisors are expected to maintain the privacy of the records shared with them. [These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by EICCD. [Advisors will be asked to sign Non-Disclosure Agreements (NDAs).] EICCD may restrict the role of any Advisor who does not respect the sensitive nature of the process or who fails to abide by EICCD’s privacy expectations.]

EICCD generally expects an Advisor to adjust their schedule to allow them to attend EICCD meetings/interviews/hearings when planned, but EICCD may change scheduled meetings/interviews/hearings to accommodate an Advisor’s inability to attend, if doing so does not cause an unreasonable delay.

EICCD may also make reasonable provisions to allow an Advisor who cannot be present in person to attend a meeting/interview/hearing by telephone, video conferencing, or other similar technologies as may be convenient and available.

A party may elect to change Advisors during the process and is not obligated to use the same Advisor throughout. The parties are expected to inform the Investigator(s) of the identity of their Advisor at least two (2) business days before the date of their first meeting with Investigators (or as soon as possible if a more expeditious meeting is necessary or desired).

The parties are expected to provide timely notice to the Title IX Coordinator if they change Advisors at any time. It is assumed that if a party changes Advisors, consent to share information with the previous Advisor is terminated, and a release for the new Advisor should be secured. Parties are expected to inform the Title IX Coordinator of the identity of their hearing Advisor at least two (2) business days before the hearing.

Assistance in Securing an Advisor¹⁹

For representation, Respondents may wish to contact organizations such as:

• Families Advocating for Campus Equality (http://www.facecampusequality.org)
• Stop Abusive and Violent Environments (http://www.saveservices.org)

Complainants may wish to contact organizations such as:

• The Victim Rights Law Center (http://www.victimrights.org)
• The National Center for Victims of Crime (http://www.victimsofcrime.org), which maintains the Crime Victim’s Bar Association
• The Time’s Up Legal Defense Fund (https://nwlc.org/times-up-legal-defense-fund/)

¹⁹ This is being provided for informational purposes and does not constitute the EICCD’s endorsement of any of the external individuals/organizations listed.

Three options for Informal Resolution are detailed in this section.

• Supportive Resolution. When the Title IX Coordinator can resolve the matter informally by providing supportive measures (only) to remedy the situation
• Alternative Resolution. When the parties agree to resolve the matter through an alternative resolution mechanism [including mediation, restorative practices, facilitated dialogue, etc.], as described below, often before a formal investigation takes place (See Section B)
• Accepted Responsibility. When the Respondent accepts responsibility for violating policy, and desires to accept the recommended sanction(s) and end the Resolution Process (See Section C)

To initiate Informal Resolution, a Complainant must submit a Formal Complaint, as defined above. A Respondent who wishes to initiate Informal Resolution should contact the Title IX Coordinator. The parties may agree, as a condition of engaging in Informal Resolution, that statements made, or evidence shared, during the Informal Resolution process will not be considered in the Formal Grievance Process unless all parties consent.

It is not necessary to pursue Informal Resolution first in order to pursue a Formal Grievance Process, and any party participating in Informal Resolution can stop the process at any time and begin or resume the Formal Grievance Process. [The parties may not enter into an agreement that requires EICCD to impose specific sanctions, though the parties can agree to certain restrictions or other courses of action. For example, the parties cannot require a student be suspended, but the parties can agree that the Respondent will temporarily or permanently withdraw. The only Informal Resolution Process that can result in sanctions levied by the institution is “Accepted Responsibility.”] The Title IX Coordinator has discretion to determine if an investigation will be paused during Informal Resolution, or if it will be limited, or will continue during the Informal Resolution process.

Prior to implementing Informal Resolution, EICCD will provide the parties with written notice of the reported misconduct and any sanctions (only in the case of Accepted Responsibility) or measures that may result from participating in such a process, including information regarding any records that will be maintained or shared by EICCD.

EICCD will obtain voluntary, written confirmation that all parties wish to resolve the matter through Informal Resolution before proceeding and will not pressure the parties to participate in Informal Resolution.

Alternative Resolution is an informal approach, including mediation, restorative practices, facilitated dialogue, etc. by which the parties reach a mutually agreed upon resolution of a complaint. All parties must consent to the use of an Alternative Resolution approach.

The Title IX Coordinator may consider the following factors to assess whether Alternative Resolution is appropriate, or which form of Alternative Resolution may be most successful for the parties:

• The parties’ amenability to Alternative Resolution
• Likelihood of potential resolution, considering any power dynamics between the parties
• The nature and severity of the alleged misconduct
• The parties’ motivation to participate
• Civility of the parties
• Results of a violence risk assessment/ongoing risk analysis
• Disciplinary history of the Respondent
• Whether an emergency removal is needed
• Skill of the Alternative Resolution facilitator with this type of complaint
• Complaint complexity
• Emotional investment/capability of the parties
• Rationality of the parties
• Goals of the parties
• Adequate resources to invest in Alternative Resolution (time, staff, etc.)

The ultimate determination of whether Alternative Resolution is available or successful is made by the Title IX Coordinator. The Title IX Coordinator is authorized to facilitate a resolution that is acceptable to all parties, and/or to accept a resolution that is proposed by the parties, usually through their Advisors, including terms of confidentiality, release, and non-disparagement.

The Title IX Coordinator maintains records of any resolution that is reached, and failure to abide by the resolution agreement may result in appropriate responsive/disciplinary actions (e.g., referral for formal resolution, referral to the conduct process for failure to comply). Results of complaints resolved by Alternative Resolution are not appealable.

The Respondent may accept responsibility for all or part of the alleged policy violations at any point during the Resolution Process. If the Respondent indicates an intent to accept responsibility for all of the alleged misconduct, the formal process will be paused, and the Title IX Coordinator will determine whether Informal Resolution can be used according to the criteria above.

If Informal Resolution is applicable, the Title IX Coordinator will determine whether all parties and EICCD are able to agree on responsibility, restrictions, and/or remedies. If so, the Title IX Coordinator implements the accepted finding that the Respondent is in violation of EICCD policy and implements agreed-upon restrictions and remedies and determines the appropriate sanction(s) in coordination with other appropriate administrator(s), as necessary.

This result is not subject to appeal once all parties indicate their written assent to all agreed upon resolution terms. When the parties cannot agree on all terms of resolution, the Formal Grievance Process will resume at the same point where it was paused.²⁰

When a resolution is accomplished, the appropriate sanction(s) or responsive actions are promptly implemented to effectively stop the sexual harassment or retaliation, prevent its recurrence, and remedy the effects of the discriminatory conduct, both on the Complainant and the community.

²⁰ The parties may not want discussions that take place within Informal Resolution to be admissible in a later Formal Grievance Process, but essential facts must and do transfer from the informal process to the formal. Disclosing something in an informal setting to shield it from formal admissibility is a cynical strategy, so administrators should take care in determining the terms of any assurances of the confidentiality of the Informal Resolution.

Members of the Pool are trained annually, and can serve in the following roles, at the discretion of the Title IX Coordinator:

• To provide appropriate intake of and initial guidance pertaining to complaints
• To act as an Advisor to the parties
• To serve in a facilitation role in Informal Resolution or Alternative Resolution if appropriately trained in appropriate resolution approaches (e.g., mediation, restorative practices, facilitated dialogue)
• To perform or assist with initial assessment
• To investigate complaints
• To serve as a hearing facilitator (process administrator, no decision-making role)
• To serve as a Decision-maker regarding the complaint
• To serve as an Appeal Decision-maker

The Title IX Coordinator, in consultation with the Vice-Chancellor of Student Development, appoints the Pool, which acts with independence and impartiality. Although members of the Pool are typically trained in a variety of skill sets and can rotate amongst the different roles listed above in different complaints, EICCD can also designate permanent roles for individuals in the Pool, using others as substitutes or to provide greater depth of experience when necessary. This process of role assignment may be the result of particular skills, aptitudes, or talents identified in members of the Pool that make them best suited to particular roles.

Pool members receive annual training [jointly OR based on their respective roles]. This training includes, but is not limited to:

• The scope of EICCD’s Sexual Harassment Policy and Procedures
• How to conduct investigations and hearings that protect the safety of Complainants and Respondents, and promote accountability
• Implicit bias
• Disparate treatment
• Reporting, confidentiality, and privacy requirements
• Applicable laws, regulations, and federal regulatory guidance
• How to implement appropriate and situation-specific remedies
• How to investigate in a thorough, reliable, timely, and impartial manner
• How to conduct a sexual harassment investigation
• Trauma-informed practices pertaining to investigations and resolution processes
• How to uphold fairness, equity, and due process
• How to weigh evidence
• How to conduct questioning
• How to assess credibility
• Impartiality and objectivity
• How to render findings and generate clear, concise, evidence-based rationales
• The definitions of all offenses
• How to apply definitions used by EICCD with respect to consent (or the absence or negation of consent) consistently, impartially, and in accordance with policy
• How to conduct an investigation and grievance process including hearings, appeals, and Informal Resolution Processes
• How to serve impartially by avoiding prejudgment of the facts at issue, conflicts of interest, and bias for or against Respondents and/or Complainants, and on the basis of sex, race, religion, and other protected characteristics
• Any technology to be used at a live hearing
• Issues of relevance of questions and evidence
• Issues of relevance to create an investigation report that fairly summarizes relevant evidence
• How to determine appropriate sanctions in reference to all forms of sexual harassment and/or retaliation allegations
• Recordkeeping

The materials used to train all members of the Pool are publicly posted here.

The Pool includes:

• 2 or more Chairs: one representative from Human Resources and one from Student Affairs, administration, or designated legal team.
  • who respectively chair hearings for allegations involving student and employee Respondents
• 2 or more members of the administration/staff
• 1 representative from Human Resources
• Members of designated legal team

The following are the common sanctions that may be imposed upon students singly or in combination:²⁷

• Warning: A formal statement that the conduct was unacceptable and a warning that further violation of any EICCD policy, procedure, or directive will result in more severe sanctions/responsive actions.
• Required Counseling: A mandate to meet with and engage in either EICCD-sponsored or external counseling to better comprehend the misconduct and its effects.
• Probation: A written reprimand for violation of institutional policy, providing for more severe disciplinary sanctions in the event that the student or organization is found in violation of any institutional policy, procedure, or directive within a specified period of time. Terms of the probation will be articulated and may include denial of specified social privileges, exclusion from co-curricular activities, exclusion from designated areas of campus, no-contact orders, and/or other measures deemed appropriate.
• Suspension: Termination of student status for a definite period of time not to exceed two years and/or until specific criteria are met. Students who return from suspension are automatically placed on probation through the remainder of their tenure as a student at EICCD.
• Expulsion: Permanent termination of student status and revocation of rights to be on campus for any reason or to attend EICCD-sponsored events. [This sanction will be noted permanently as a Conduct Expulsion on the student’s official transcript,
• Withholding Diploma: EICCD may withhold a student’s diploma for a specified period of time and/or deny a student participation in commencement activities as a sanction if the student is found responsible for violating policy.
• Revocation of Degree: EICCD reserves the right to revoke a degree previously awarded from EICCD for fraud, misrepresentation, and/or other violation of EICCD policies, procedures, or directives in obtaining the degree, or for other serious violations committed by a student prior to graduation.
• Other Actions: In addition to or in place of the above sanctions, EICCD may assign any other sanctions as deemed appropriate.

²⁷ EICCD policies on transcript notation will apply to these proceedings.

The following are the common sanctions that may be imposed upon student organizations singly or in combination:²⁸

• Warning: A formal statement that the conduct was unacceptable and a warning that further violation of any EICCD policy, procedure, or directive will result in more severe sanctions/responsive actions.
• Probation: A written reprimand for violation of institutional policy, providing for more severe disciplinary sanctions in the event that the organization is found in violation of any institutional policy, procedure, or directive within a specified period of time. Terms of the probation will be articulated and may include denial of specified social and event privileges, denial of EICCD funds, ineligibility for honors and awards, restrictions on new member recruitment, no-contact orders, and/or other measures deemed appropriate.
• Suspension: Termination of student organization recognition for a definite period of time not to exceed two years and/or until specific criteria are met. During the suspension period, a student organization may not conduct any formal or informal business or participate in EICCD-related activities, whether they occur on or off campus. Re-recognition is possible but not guaranteed and will only be considered after the end of the suspension period and based on meeting all re-recognition criteria and obtaining clearance from the EICCD.
• Expulsion: Permanent termination of student organization recognition and revocation of the privilege to congregate and conduct business on campus as an organization for any reason.
• Loss of Privileges: Restricted from accessing specific EICCD privileges for a specified period of time.
• Other Actions: In addition to or in place of the above sanctions, EICCD may assign any other sanctions as deemed appropriate.

²⁸ Subject to EICCD’s Code of Conduct.

Responsive actions for an employee who has engaged in sexual harassment and/or retaliation include:

• Verbal or Written Warning
• Performance Improvement Plan/Management Process
• Enhanced Supervision, Observation, or Review
• Required Counseling
• Required Training or Education
• Probation
• Denial of Pay Increase/Pay Grade
• Loss of Oversight or Supervisory Responsibility
• Demotion
• Transfer
• Reassignment
• Delay of (or referral for delay of) Distinguished Faculty process
• Assignment to New Supervisor
• Restriction of Stipends, Research, and/or Professional Development Resources
• Suspension/Administrative Leave with Pay
• Suspension/Administrative Leave without Pay
• Termination
• Other Actions: In addition to or in place of the above sanctions/responsive actions EICCD may assign any other responsive actions as deemed appropriate.

Should a Respondent decide not to participate in the Resolution Process, the process proceeds absent their participation to a reasonable resolution. Should a student Respondent permanently withdraw from EICCD, the Resolution Process typically ends with dismissal, as EICCD has lost primary disciplinary jurisdiction over the withdrawn student. However, EICCD may continue the Resolution Process when, at the discretion of the Title IX Coordinator, doing so may be necessary to address safety and/or remedy any ongoing effects of the alleged sexual harassment and/or retaliation.

Regardless of whether the complaint is dismissed or pursued to completion of the Resolution Process, EICCD will continue to address and remedy any systemic issues or concerns that may have contributed to the alleged violation(s), and any ongoing effects of the alleged sexual harassment and/or retaliation.

If the student Respondent only withdraws or takes a leave for a specified period of time (e.g., one semester or term), the Resolution Process may continue remotely and, if found in violation, that student is not permitted to return to EICCD unless and until all sanctions, if any, have been satisfied.

Should an employee Respondent resign with unresolved allegations pending, the Resolution Process typically ends with dismissal, as EICCD has lost primary disciplinary jurisdiction over the resigned employee. However, EICCD may continue the Resolution Process when, at the discretion of the Title IX Coordinator, doing so may be necessary to address safety and/or remedy any ongoing effects of the alleged sexual harassment and/or retaliation.

Regardless of whether the complaint matter is dismissed or pursued to completion of the Resolution Process, EICCD will continue to address and remedy any systemic issues or concerns that contributed to the alleged violation(s), and any ongoing effects of the alleged sexual harassment and/or retaliation.

The employee who resigns with unresolved allegations pending is not eligible for academic admission or rehire with EICCD or any EICCD location, and the records retained by the Title IX Coordinator will reflect that status.

All EICCD responses to future inquiries regarding employment references for that individual will include that the former employee resigned during a pending disciplinary matter.

Appeals are limited to the following grounds:

• A procedural irregularity affected the outcome of the matter
• New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter
• The Title IX Coordinator, Investigator(s), or Decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the specific Complainant or Respondent that affected the outcome of the matter

If any of the grounds in the Request for Appeal do not meet the grounds in this Policy, that request will be denied by the Appeal Chair and the parties and their Advisors will be notified in writing of the denial and the rationale.

If any of the grounds in the Request for Appeal meet the grounds in this Policy, then the Appeal Chair will notify all parties and their Advisors, the Title IX Coordinator, and, when appropriate, the Investigator(s) and/or the original Decision-maker(s).

All other parties and their Advisors, the Title IX Coordinator, and, when appropriate, the Investigator(s) and/or the original Decision-maker(s) will be mailed, emailed, and/or provided a hard copy of the Request for Appeal with the approved grounds and then be given 5 business days to submit a response to the portion of the appeal that was approved and involves them. All responses, if any, will be forwarded by the Appeal Chair to all parties for review and comment.

The non-appealing party (if any) may also choose to appeal at this time. If so, that will be reviewed to determine if it meets the grounds in this Policy by the Appeal Chair and either denied or approved. If approved, it will be forwarded to the party who initially requested an appeal, the Title IX Coordinator, and the Investigator(s) and/or original Decision-maker(s), as necessary, who will submit their responses, if any, within 5 business days. Any such responses will be circulated for review and comment by all parties. If not approved, the parties will be notified accordingly, in writing.

Neither party may submit any new requests for appeal after this time period. The Appeal Chair will collect any additional information needed and all documentation regarding the approved grounds for appeal, and the subsequent responses will be shared with the Chair, and the Chair will render a decision within no more than 5 business days, barring exigent circumstances. All decisions apply the preponderance of the evidence.

A Notice of Appeal Outcome will be sent to all parties simultaneously. The Notice of Appeal Outcome will specify the finding on each ground for appeal, any specific instructions for remand or reconsideration, any sanction(s) that may result which EICCD is permitted to share according to state or federal law, and the rationale supporting the essential findings to the extent EICCD is permitted to share under state or federal law.

Notification will be made in writing and may be delivered by one or more of the following methods: in person, mailed to the local or permanent address of the parties as indicated in official institutional records, or emailed to the parties’ EICCD-issued email or otherwise approved account. Once mailed, emailed and/or received in-person, notice will be presumptively delivered.

Any sanctions imposed as a result of the hearing are stayed (i.e.: not implemented) during the appeal process. Supportive measures may be reinstated, subject to the same supportive measure procedures above.

If any of the sanctions are to be implemented immediately post-hearing, but pre-appeal, then the emergency removal procedures (detailed above) for a show cause meeting on the justification for doing so must be permitted within 48 hours of implementation. If the original sanctions include separation in any form, EICCD may place a hold on official transcripts, diplomas, graduations, course registration, etc. pending the outcome of an appeal. The Respondent may request a stay of these holds from the Title IX Coordinator within two (2) business days of the notice of the sanctions. The request will be evaluated by the Title IX Coordinator or designee, whose determination is final.

• Appeals are not intended to provide for a full re-hearing (de novo) of the allegation(s). In most cases, appeals are confined to a review of the written documentation or record of the original hearing and pertinent documentation regarding the specific grounds for appeal.
• Decisions on appeal are to be deferential to the original determination, making changes to the finding only when there is clear error and to the sanction(s)/responsive action(s) only if there is a compelling justification to do so.
• An appeal is not an opportunity for Appeal Decision-makers to substitute their judgment for that of the original Decision-maker(s) merely because they disagree with the finding and/or sanction(s).
• The Appeal Chair/Decision-maker(s) may consult with the Title IX Coordinator and/or legal counsel on questions of procedure or rationale, for clarification, if needed. Documentation of all such consultation will be maintained.
• Appeals granted should normally be remanded (or partially remanded) to the original Investigator(s) and/or Decision-maker(s) for reconsideration.
• Once an appeal is decided, the outcome is final: further appeals are not permitted, even if a decision or sanction is changed on remand (except in the case of a new hearing).
• In rare cases where an error cannot be cured by the original Investigator(s) and/or Decision-maker(s) or the Title IX Coordinator (as in cases of bias), the Decision-maker(s) may order a new investigation and/or a new hearing with new Pool members serving in the Investigator and Decision-maker roles.
• [The results of a remand to a Decision-maker(s) cannot be appealed.] The results of a new hearing can be appealed, once, on any of the three available appeal grounds.
• In cases that result in reinstatement to EICCD or resumption of privileges, all reasonable attempts will be made to restore the Respondent to their prior status, recognizing that some opportunities lost may be irreparable in the short term.

Examples of possible Title IX Sexual Harassment:

• A professor offers for a student to have sex or go on a date with them in exchange for a good grade. This constitutes sexual harassment regardless of whether the student agrees to the request and irrespective of whether a good grade is promised or a bad grade is threatened.
• A student repeatedly sends graphic, sexually oriented jokes and pictures to hundreds of other students via social media. Many don’t find it funny and ask them to stop, but they do not. Because of these jokes, one student avoids the sender on campus and in the residence hall in which they both live, eventually asking to move to a different building and dropping a class they had together.
• A professor engages students in class in discussions about the students’ past sexual experiences, yet the conversations are not in any way germane to the subject matter of the class. The professor inquires about explicit details and demands that students answer them, though the students are clearly uncomfortable and hesitant.
• An ex-partner widely spreads false stories about their sex life with their former partner to the clear discomfort and frustration of the former partner, turning the former partner into a social pariah on campus.
• Chris has recently transitioned from male to nonbinary, but primarily expresses as a female. Since their transition, Chris has noticed that their African Studies professor, Dr. Mukembo, pays them a lot more attention. Chris is sexually attracted to Professor Mukembo and believes the attraction is mutual. Chris decides to act on the attraction. One day, Chris visits Dr. Mukembo during office hours, and after a long conversation about being nonbinary, Chris kisses Dr. Mukembo. Dr. Mukembo is taken aback, stops the kiss, and tells Chris not to do that. Dr. Mukembo explains to Chris that they are not sexually or romantically interested in Chris. Chris takes it hard, crying to Dr. Mukembo about how hard it is to find someone who is interested in them now based on their gender identity. Dr. Mukembo feels sorry for Chris and softens the blow by telling them that no matter whether they like Chris or not, faculty-student relationships are prohibited by the university. Chris takes this as encouragement.
  
  One night, Chris goes to a gay bar some distance from campus and sees Dr. Mukembo there. Chris tries to buy Dr. Mukembo a drink and, again, tries to kiss Dr. Mukembo. Dr. Mukembo leaves the bar abruptly. The next day, Chris makes several online posts that out Dr. Mukembo as gay and raise questions about whether they are sexually involved with students. Dr. Mukembo contacts the Title IX Office and alleges that Chris is sexually harassing him.

Examples of Stalking:

• Students A and B were “friends with benefits.” Student A wanted a more serious relationship, which caused student B to end the relationship. Student A could not let go and relentlessly pursued Student B. Student B obtained a campus no-contact order. Subsequently, Student B discovered their social media accounts were being accessed, and things were being posted and messaged as if they were from them, but they were not. Whoever accessed their account posted a picture of a penis, making it look as if Student B had sent out a picture of themselves, though it was not their penis. This caused them considerable embarrassment and social anxiety. They changed their passwords, only to have it happen again. Seeking help from the Title IX Coordinator, Student B met with the IT department, which discovered an app on their phone and a keystroke recorder on their laptop, both of which were being used to transmit their data to a third party.
• A graduate student working as an on-campus tutor received flowers and gifts delivered to their office. After learning the gifts were from a student they recently tutored, the graduate student thanked the student and stated that it was not necessary and they would appreciate it if the gift deliveries stopped. The student then started leaving notes of love and gratitude on the tutor’s car, both on-campus and at home. Asked again to stop, the student stated by email, “You can ask me to stop, but I’m not giving up. We are meant to be together, and I’ll do anything to make you have the feelings for me that I have for you.” When the tutor did not respond, the student emailed again, “You cannot escape me. I will track you to the ends of the earth. If I can’t have you, no one will.”

Examples of Sexual Assault:

• Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00 p.m. until 3:00 a.m., Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. Despite her clear communications that she is not interested in doing anything sexual with him, Bill keeps at her, questions her religious convictions, and accuses her of being “a prude.” He brings up several rumors that he has heard about how she performed oral sex on a number of other guys. Finally, it seems to Bill that her resolve is weakening, and he convinces her to “jerk him off” (hand to genital contact). Amanda would have never done it but for Bill's incessant coercion.
• Jiang is a junior. Beth is a sophomore. Jiang comes to Beth’s residence hall room with some mutual friends to watch a movie. Jiang and Beth, who have never met before, are attracted to each other. After the movie, everyone leaves, and Jiang and Beth are alone. They hit it off, soon become more intimate, and start to make out. Jiang verbally expresses his desire to have sex with Beth. Beth, who was abused by a babysitter at the age of five and avoids sexual relations as a result, is shocked at how quickly things are progressing. As Jiang takes her by the wrist over to the bed, lays her down, undresses her, and begins to have intercourse with Beth. Beth has a severe flashback to her childhood trauma. She wants to tell Jiang to stop but cannot. Beth is stiff and unresponsive during the intercourse.
• Kevin and John are at a party. Kevin is not sure how much John has been drinking, but he is pretty sure it’s a lot. After the party, he walks John to his apartment, and John comes on to Kevin, initiating sexual activity. Kevin asks John if he is really up to this, and John says yes. They remove each other’s clothes, and they end up in John’s bed. Suddenly, John runs for the bathroom. When he returns, his face is pale, and Kevin thinks he may have thrown up. John gets back into bed, and they begin to have sexual intercourse. Kevin is having a good time, though he can’t help but notice that John seems pretty groggy and passive, and he thinks John may have even passed out briefly during sex, but he came to again. When Kevin runs into John the next day, he thanks him for the great night. John remembers nothing and decides to make a report to the Dean.

Examples of Retaliation:

• A student-athlete alleges sexual harassment by a coach; the coach subsequently cuts the student-athlete’s playing time without a legitimate justification.
• A faculty member alleges gender inequity in pay within her department; the Department Chair then revokes approval for the faculty member to attend a national conference, citing the faculty member’s tendency to “ruffle feathers.”
• A student from Organization A participates in a sexual harassment investigation as a witness whose testimony is damaging to the Respondent, who is also a member of Organization A; the student is subsequently removed as a member of Organization A because of their participation in the investigation.

ATIXA has framed a process for IR that includes three options:

• A response based on supportive measures
• A response based on a Respondent accepting responsibility
• A response based on alternative resolution, which could include various approaches and/or facilitation of dialogue

Alternative resolution approaches such as mediation, restorative practices, and transformative justice are likely to be used more and more often by colleges and universities. ATIXA does not endorse these approaches as better or worse than other formal or informal approaches.

ATIXA believes that if they are to be used in and are effective for sex offenses, they need to be carefully and thoughtfully designed and executed and be facilitated by well-trained personnel who take the necessary time to prepare and lay a foundation for success. Although no approach is a panacea, the framework below can help to lay that foundation, regardless of which approach(es) are used.

Here are the principles to be considered in supporting various approaches to Informal Resolution:

• IR can be applied in any sex/gender-based interpersonal conflict but may not be appropriate or advisable in cases involving violent incidents (sexual violence, stalking, domestic and dating violence, severe sexual harassment, sexual exploitation, etc.)
• Situations involving dangerous patterns or significant ongoing threat to the community should not be resolved by IR.
• The determination of whether to permit an IR-based resolution is entirely at the discretion of the Title IX Coordinator (TIXC) and in line with the requirements for IR laid out in the Title IX regulations.
• Any party can end IR early-, mid-, or late-process for any reason or no reason.
• IR can be attempted before and in lieu of formal resolution as a diversionary resolution (although a Formal Complaint must be filed if you are within 34 C.F.R. § 106.30, per OCR).
• Alternative approaches can inform formal resolution, as in a formal resolution model infused with restorative practices.
• IR-based processes could be deployed after formal resolution, as an adjunct healing/catharsis opportunity (that could potentially mitigate sanctions or be a form of sanction).
• Alternative Resolution approaches to IR must be facilitated by EICCD or a third party. There may be value in creating clearly agreed-upon ground rules, which the parties must sign in advance and agree to abide by, otherwise the Informal Resolution process may be deemed to have failed.
• Technology-facilitated IR can be made available, should the parties not be able or willing to meet in person.
• If IR fails, a formal resolution can take place thereafter. Evidence elicited within the “safe space” of the IR facilitation could be later admissible in the formal resolution unless all parties determine it should not be. This will be clearly spelled out as a term of the decision to engage in the IR process.
• With cases involving violence, the preferred alternative approach typically involves a minimal number of essential parties and is not a restorative circle approach with many constituents, in order to ensure confidentiality.
• Some approaches require a reasonable gesture toward accountability (this could be more than an acknowledgement of harm) and some acceptance, or at least recognition, by the Respondent that catharsis is of value and likely the primary goal of the Complainant. A full admission by the Respondent is not a prerequisite. This willingness needs to be vetted carefully in advance by the TIXC before determining that an incident is amenable/appropriate for resolution by IR.
• IR can result in an accord or agreement between the parties (Complainant, Respondent, EICCD), which is summarized in writing by and enforced by EICCD. This can be a primary goal of the process.
• IR can result in the voluntary imposition of safety measures, remedies, and/or agreed-upon resolutions by the parties, that are enforceable by EICCD. These can be part of the agreement.
• As a secondary goal, IR can result in the voluntary acceptance of “sanctions,” meaning that a Respondent could agree to withdraw, self-suspend (by taking a leave of absence), or undertake other restrictions/transfers/online course options that would help to ensure the safety/educational access of the Complainant, in lieu of formal sanctions that would create a formal record for the Respondent. These are enforceable by EICCD as part of the agreement, as may be terms of mutual release, non-disparagement, and/or non-disclosure.
• Although a non-disclosure agreement (NDA) could result from IR, it would have to be mutually agreed-upon by the parties in an environment of non-coercion verified by the TIXC.
• Institutions must develop clear rules for managing/facilitating the conference/meeting/dialogue of alternative resolution approaches to ensure they are civil, age-appropriate, culturally competent, reflective of power imbalances, and maximize the potential for the Resolution Process to result in catharsis, restoration, remedy, etc., for the Complainant(s).

• The right to an equitable investigation and resolution of all credible allegations of prohibited harassment or retaliation made in good faith to EICCD officials.
• The right to timely written notice of all alleged violations, including the identity of the parties involved (if known), the precise misconduct being alleged, the date and location of the alleged misconduct (if known), the implicated policies and procedures, and possible sanctions.
• The right to timely written notice of any material adjustments to the allegations (e.g., additional incidents or allegations, additional Complainants, unsubstantiated allegations) and any attendant adjustments needed to clarify potentially implicated policy violations.
• The right to be informed in advance of any public release of information by EICCD regarding the allegation(s) or underlying incident(s), whenever possible.
• The right not to have any personally identifiable information released by EICCD to the public without consent provided, except to the extent permitted by law.
• The right to be treated with respect by EICCD officials.
• The right to have EICCD policy and these procedures followed without material deviation.
• The right not to be pressured to mediate or otherwise informally resolve any reported misconduct involving violence, including sexual violence.
• The right not to be discouraged by EICCD officials from reporting sexual harassment or retaliation to both on-campus and off-campus authorities.
• The right to be informed by EICCD officials of options to notify proper law enforcement authorities, including on-campus and local police, and the option(s) to be assisted by EICCD in notifying such authorities, if the party so chooses. This also includes the right not to be pressured to report.
• The right to have allegations of violations of this Policy responded to promptly and with sensitivity by EICCD law enforcement and/or other EICCD officials.
• The right to be informed of available supportive measures, such as counseling; advocacy; health care; [legal,] student financial aid, visa, and immigration assistance; and/or other services, both on campus and in the community.
• The right to an EICCD-implemented no-contact order [or a no-trespass order against a non-affiliated third party] when a person has engaged in or threatens to engage in stalking, threatening, harassing, or other improper conduct.
• The right to be informed of available assistance in changing academic, living, and/or working situations after an alleged incident of sexual harassment and/or retaliation, if such changes are reasonably available. No formal report, or investigation, either institutional or criminal, needs to occur before this option is available. Such actions may include, but are not limited to:
  • Relocating an on-campus student’s housing to a different on-campus location
  • Assistance from EICCD staff in completing the relocation
  • Changing an employee’s work environment (e.g., reporting structure, office/workspace relocation)
  • Transportation assistance
  • Visa/immigration assistance
  • Arranging to dissolve a housing contract and provide a pro-rated refund
  • Exam, paper, and/or assignment rescheduling or adjustment
  • Receiving an incomplete in, or a withdrawal from, a class (may be retroactive)
  • Transferring class sections
  • Temporary withdrawal/leave of absence (may be retroactive)
  • Campus safety escorts
  • Alternative course completion options

• The right to have EICCD maintain such actions for as long as necessary and for supportive measures to remain confidential, provided confidentiality does not impair EICCD’s ability to provide the supportive measures.
• The right to receive sufficiently advanced, written notice of any EICCD meeting or interview involving another party, when possible.
• The right to identify and have the Investigator(s), Advisors, and/or Decision-maker(s) question relevant available witnesses, including expert witnesses.
• The right to provide the Investigator(s)/Decision-maker(s) with a list of questions that, if deemed relevant by the Investigator(s)/Decision-maker(s), may be asked of any party or witness.
• The right to have inadmissible sexual predisposition/prior sexual history or irrelevant character evidence excluded by the Decision-maker(s).
• The right to know the relevant and directly related evidence obtained and to respond to that evidence.
• The right to a fair opportunity to provide the Investigator(s) with their account of the alleged misconduct and have that account be on the record.
• The right to receive a copy of all relevant and directly related evidence obtained during the investigation, subject to privacy limitations imposed by state and federal law, and a ten (10)-business-day period to review and comment on the evidence.
• The right to receive a copy of the final investigation report, including all factual, policy, and/or credibility analyses performed, and to have at least ten (10) business days to review and comment on the report prior to the hearing.
• The right to be informed of the names of all witnesses whose information will be used to make a finding, in advance of that finding, when relevant.
• The right to regular updates on the status of the investigation and/or resolution.
• The right to have reports of alleged Policy violations addressed by Investigators, Title IX Coordinators, and Decision-maker(s) who have received relevant annual training.
• The right to preservation of confidentiality/privacy, to the extent possible and permitted by law.
• The right to meetings, interviews, and/or hearings that are closed to the public.
• The right to petition that any EICCD representative in the process be recused on the basis of disqualifying bias and/or conflict of interest.
• The right to have an Advisor of their choice to accompany and assist the party in all meetings and/or interviews associated with the Resolution Process.
• The right to the use of the appropriate standard of evidence, preponderance of the evidence, to make a Finding and Final Determination after an objective evaluation of all relevant evidence.
• The right to be present, including presence via remote technology, during all testimony given and evidence presented during any hearing.
• The right to have an impact and/or mitigation statement considered by the Decision-maker(s) following a determination of responsibility for any allegation, but prior to sanctioning.
• The right to be promptly informed of the finding(s) and sanction(s) (if any) of the Resolution Process and a detailed rationale of the decision (including an explanation of how credibility was assessed) in a written Notice of Outcome letter delivered simultaneously (without undue delay) to the parties.
• The right to be informed in writing of when a decision by EICCD is considered final and any changes to the Final Determination or sanction(s) that occur post Notification of Outcome.
• The right to be informed of the opportunity to appeal the finding(s) and sanction(s) of the Resolution Process, and the procedures for doing so in accordance with the standards for appeal established by EICCD.
• The right to a fundamentally fair resolution as defined in these procedures.

Threat assessment is the process of assessing the actionability of violence by an individual against another person or group following the issuance of a direct or conditional threat. A Violence Risk Assessment (VRA) is a broader term used to assess any potential violence or danger, regardless of the presence of a vague, conditional, or direct threat.

The implementation of VRAs require specific training and are typically conducted by psychologists, clinical counselors, social workers, case managers, law enforcement officers, student conduct officers, and/or other Behavioral Intervention Team (BIT) (sometimes also known as CARE teams) members.

A VRA occurs in collaboration with the BIT, CARE, and/or threat assessment team and must be understood as an ongoing process, rather than a singular evaluation or meeting. A VRA is not an evaluation for an involuntary behavioral health hospitalization (e.g., 5150 in California, Section XII in Massachusetts, Baker Act in Florida), nor is it a psychological or mental health assessment.

A VRA assesses the risk of actionable violence, often with a focus on targeted/predatory escalations, and is supported by research from the fields of law enforcement, criminology, human resources, and psychology.

When conducting a VRA, the assessor(s) use an evidence-based process consisting of:

• An appraisal of risk factors that escalate the potential for violence
• A determination of stabilizing influences that reduce the risk of violence
• A contextual analysis of violence risk by considering environmental circumstances, hopelessness, and suicidality; catalyst events; nature and actionability of threat; fixation and focus on target; grievance collection; and action and time imperative for violence
• The application of intervention and management approaches to reduce the risk of violence

To assess an individual’s level of violence risk, the Title IX Coordinator will initiate the violence risk assessment process through the BIT. The BIT will assign a trained individual(s) to perform the assessment, according to the specific nature of the Title IX case.

The assessor(s) will follow the process for conducting a violence risk assessment as outlined in the BIT manual and will rely on a consistent, research-based, reliable system that allows for the evaluation of the risk levels.

Some examples of formalized approaches to the VRA process include: The NABITA Risk Rubric,1  The Structured Interview for Violence Risk Assessment (SIVRA-35),² Violence Risk Assessment of the Written Word (VRAWW),³ Workplace Assessment of Violence Risk (WAVR-21),⁴ Historical Clinical Risk Management (HCR-20),⁵ and MOSAIC.⁶

The VRA is conducted independently from the Title IX process, informed by it, but free from pressure to produce a specific outcome. The individual(s) conducting the assessment will be trained to mitigate any bias and provide the analysis and findings in a fair and equitable manner.

The BIT/CARE or threat team’s member(s) conducts a VRA process and makes a recommendation to the Title IX Coordinator as to whether the VRA indicates there is a substantial, compelling, and/or immediate risk to the health and/or safety of an individual or the community.

¹ https://www.nabita.org/training/nabita-risk-rubric/

² https://www.nabita.org/training/sivra-35/

³ https://www.nabita.org/training/vraww/

⁴ www.wavr21.com

⁵ hcr-20.com

⁶ www.mosaicmethod.com