Sexual Misconduct/Title IX Policy

AUDIENCE

All students, faculty and staff members of Thomas More University

PURPOSE STATEMENT

Thomas More University is committed to providing a working and learning environment that is free from sexual misconduct of any kind.  Pursuant to the provisions of the Higher Education Act and the Title IX prohibitions against sexual harassment and sexual violence on campus, the following policies and procedures have been adopted to comply with the University’s duty to its community and legal compliance. 

DEFINITIONS

Sexual Misconduct Definitions

Sexual Harrassment - Generally, sexual harassment can be defined as, but may not be limited to, any repeated, unwarranted or unwelcome offensive or objectionable verbal or physical sexual advances, requests for sexual favors, or expressive behavior where:

1. Submission to such conduct is made explicitly or implicitly a term of condition of an individual’s employment or education;
2. Submission to or rejection of such conduct by an individual is used as the basis for academic or employment decision affecting the individual;
3. Such conduct has the purpose or effect of substantially interfering with an individual’s academic or professional performance or creating an intimidating, hostile, or demeaning employment or educational environment;
4. Such conduct, actions, or statements are contrary to generally acceptable standards of behavior or professionalism.

Sexual Assault - Sexual assault is an extreme and criminal form of inappropriate sex-related behavior.  It includes any sex-related physical violence or sexual intimacy where one party is not a consenting participant. Sexual Assault includes both forcible and non-forcible sexual behavior.

Consent is clear, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual behavior. Consent to any one form of sexual behavior cannot automatically imply consent to any other forms of sexual behavior. Consent may be initially given but withdrawn at any time throughout the sexual encounter.  Previous relationships or prior consent cannot imply consent to future sexual behavior. Consent cannot be given by someone under the age of 16. Consent cannot be given by someone who is incapacitated.

A complainant of sexual assault or inappropriate sexual advances should do the following:

1. Get medical attention immediately to check for physical injury, the presence of sexually transmitted disease or pregnancy. This information may also be required in a subsequent investigation.
2. Preserve all evidence of the incident. Don’t bathe or douche, save your clothing.
3. Report the incident to campus authorities and/or the police. Call Campus Safety at (859) 341-4867 or the local police at 911. For additional resources on and off campus visit http://www.thomasmore.edu/studentlife/sa_resources.cfm.

Definitions

Complainant: another student or community member who has brought forth a complaint against another student.

Consent: is clear, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual behavior. Consent to any one form of sexual behavior cannot automatically imply consent to any other forms of sexual behavior. Consent may be initially given but withdrawn at any time throughout the sexual encounter.  Previous relationships or prior consent cannot imply consent to future sexual behavior. Consent cannot be given by someone under the age of 16. Consent cannot be given by someone who is incapacitated.

Dating Violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant. The existence of the relationship shall be determined based on a consideration of the following factors: the length of the relationship; the type of relationship; and the frequency of interaction between the persons involved in the relationship.

Domestic Violence: Felony or misdemeanor crimes of violence committed by a current or former spouse of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the complainant as a spouse, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of the jurisdiction receiving grant monies, 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 the jurisdiction. (42 U.S.C. 13925(a)). (For Kentucky see KRS 403.720)

Forcible Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person's will; or, not forcibly or against the person's will when the complainant is incapable of giving consent.

Forcible Rape: Sexual intercourse performed forcibly and/or against the person's will; or not forcibly or against the      person's will when the complainant is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity.(For Kentucky, see KRS 510.040-060)

Forcible Sodomy: Oral or anal sexual intercourse with another person, forcibly and/or against that person's will; or not forcibly against the person's will when the complainant is incapable of giving consent. (For Kentucky, see KRS 510.070-.100)

Incapacitated: An individual will be deemed incapacitated if they are mentally or physically unable to make rational, reasonable, or fully-conscious decisions at the time of an event.

Non-Forcible Sex Offenses: Unlawful, non-forcible sexual intercourse including Incest (sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law) and Statutory Rape (sexual intercourse with a person who is under the statutory age of consent.)

Preponderance of Evidence: The evidentiary standard used when determining a student (or students) responsibility. This standard requires that the evidence/information as a whole, shows that the facts support the conclusion that is “more likely than not” that the student engaged in the alleged behavior.  The evidence must equate to 50.1% or greater in favor of the conclusion.

Respondent: The individual who as allegedly committed behaviors that betray a Community Commitment.

Sexual Assault/Sexual Misconduct With An Object: The use of an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person's will; or not forcibly or against the person's will when the complainant is incapable of giving consent.

Stalking:  To “stalk” means to engage in an intentional course of conduct:

Directed at a specific person or persons; which seriously alarms, annoys, intimidates, or harasses the person(s).  The course of conduct shall be that which would cause a reasonable person or persons to suffer substantial mental distress.   (For Kentucky, see KRS 508.130.)

THE POLICY

Thomas More University is committed to providing a working and learning environment that is free from sexual misconduct of any kind, including but not limited to, sexual harassment, sexual assault, and sexual exploitation, domestic violence, dating violence and stalking. The University will not tolerate sexual misconduct in any form; any employee or student found in violation of this policy will be subject to disciplinary action by the University. This policy applies to all university-related activities both on and off campus. Thomas More University is committed to the respect of every individual and any student, faculty or staff member that has been subjected to sexual misconduct will be provided with support, both internal and external of the institution. 

All students, faculty and staff members of Thomas More University are subject to the provisions of the Sexual Misconduct Policy, as well as, compliance with all federal, state and local laws regarding sexual misconduct, sexual harassment, sexual assault and non-consensual sexual contact. Pursuant to the provisions of the Higher Education Act and the Title IX prohibitions against sexual harassment and sexual violence on campus, the following policies and procedures have been adopted to comply with the University’s duty to its community and legal compliance. 

The University is committed to maintaining a safe environment and responding to reports of sexual misconduct: 1. in a timely manner; 2. in a supportive manner; 3. with discretion and empathy protecting the privacy of those involved to the greatest extent possible; 4. in a manner that supports the complainant while maintaining the rights of the respondent; 5. imposing appropriate sanctions to offenders; 6. to ensure the safety of the community.

RELATED POLICIES AND APPLICABLE LEGAL OR ACCREDITATION STANDARDS

Higher Education Opportunity Act

Title IX

PROCEDURES

REPORTING INSTANCE OF SEXUAL MISCONDUCT/ CAMPUS PROCEDURES

Reporting Sexual Misconduct

Thomas More University encourages any complainant of sexual misconduct to report the incident immediately. Complainants of sexual assault may feel uncomfortable in reporting the incident.  The University offers support to any person in reporting such an incident and dealing with emotional and physical trauma, which may result from the assault.

Reporting incidents of Sexual Misconduct involving students should be reported to the:

1. Office of the Dean of Student Affairs; or
2. Department of Campus Safety; or
3. Title IX Coordinator (Director of Human Resources)
4. In incidents involving sexual assault, the complainant is encouraged to immediately contact one of these offices after contacting local law enforcement, and getting medical attention as needed.

All faculty, staff and student employees at Thomas More University, except where protected by privilege, are required to notify the Dean of Student Affairs, Campus Safety or the Title IX Coordinator if an instance of sexual misconduct is reported to them.

University Response

1. Both parties involved in the sexual misconduct case will be offered an advisor who will advise them of the following:
   1. Their rights within the University
   2. The requirement to investigate the allegation and duty of the University to respond to on-going threats
   3. The internal and external support systems available (required in writing)
   4. The right to remain anonymous whenever possible
   5. The right to notify law enforcement (and assist if requested)/ process to obtain protective orders and the right to have current orders enforced on campus (required in writing)
   6. The process and importance of preserving evidence
   7. The right to change living conditions and academic classes (required in writing)
   8. The right to obtain a no-contact order and the process to obtain such order
   9. The right to alter on campus work conditions.
2. The advisor will assist throughout the investigation, completion of the University’s response and the University discipline process (if initiated) to assist both parties, advise of the process and serve as a source of support.
3. The University, consistent with federal regulations and best interests of the students, will make available to the student complainant the ability to change residence hall rooms and course schedules when deemed necessary to protect the complainant or allow for the student to fully participate as a member of the community.
4. In collaboration with the Dean of Student Affairs, the Title IX Coordinator will initiate an investigation to determine whether sufficient evidence of an on-going threat exists to the complainant or the community and to determine whether to initiate discipline proceedings if requested. Upon determination of an on-going threat to the community or complainant, the Dean of Student Affairs will initiate an action plan to address the threat/ notify the community implemented. Upon determination that there is probable cause of a Saints Community Standards violation, discipline proceedings are initiated at the request of the complainant pursuant to the Thomas More University Saints Community Standards or the matter referred to the executive officer responsible for the division which employs the respondent in situations involving a member of the faculty or staff.
5. Appropriate sanctions will be administered where appropriate as a result of the student discipline process for complaints against students.
6. Appropriate action will be taken against a member of the faculty or staff, consistent with faculty/staff manual for complaints against members of the faculty and staff.
7. Notification will be made to the Office of Civil Rights, Department of Education whenever an investigation provides probable cause that a violation of the sexual misconduct policy occurs. 

Confidentiality/ Duty to Notify/ Notification of Parents

Thomas More University encourages every complainant to report instances of sexual misconduct and to utilize the resources available to provide support. Complainants have the right to request that they remain anonymous and the University will make every effort to honor this request. It is a requirement of the institution that an investigation be conducted, even when anonymity is requested, to ensure that an on-going threat does not exist to the community. When the result of the investigation finds that there is indeed an on-going threat, the University is obligated to issue a timely warning to the University community. However, every effort will be made to honor the confidentiality of the complainant when requested. Thomas More University does reserve the right to notify parents when there exists a substantial concern for the student’s safety and well-being, pursuant to the provisions of the Federal Education Right to Privacy Act.

Private Reporting

Students have the opportunity to seek the assistance of the University’s counselor and to seek the assistance of other faculty and staff members on campus. When engaging in a counseling relationship with the University’s licensed therapists, or seeing the University nurse for a medical issue, your personal information is protected, with the EXCEPTION, that the counselor must make notification of non-personalized information regarding the incident when a threat exists to others.

All faculty, staff and student employees at Thomas More University, except where protected by privilege, are required to notify the Dean of Student Affairs, Campus Safety or the Title IX Coordinator if an instance of sexual misconduct is reported to them.

Retaliation

Thomas More University does not tolerate conduct that discourages students, staff, and faculty to express their concerns regarding sexual harassment or sexual assault. Any act of retaliation by a University employee, student, or representative of the University which interferes with or penalizes an individual for exercising his/her rights to file a complaint, will result in appropriate and prompt disciplinary action, including possible termination or expulsion.

DISCIPLINARY PROCEDURES

Allegations Against Students

Sexual assault is a serious charge and could result in suspension or dismissal from the University.  Charges of sexual assault are adjudicated through the campus judicial system.  When the initial investigation of sexual harassment or sexual misconduct is concluded, the Dean of Student Affairs Office will determine whether probable cause exists to file charges under the Saints Community Standards. Charges are filed when probable cause exists.

The purpose of the Thomas More University Judicial Process is to determine the level to which a student (or students) is responsible for actions that violate the University’s Community Commitments which includes the Sexual Misconduct Policy.

TERMS:

1. Chief Conduct Officer – This refers to the staff member in the Department of Student Affairs who oversees the Saints Community Standards and Judicial Process directly.
2. Chief Appellate Officer – The Chief Appellate Officer in the Judicial Process is the Dean of Student Affairs.
3. Hearing Officer – The Hearing Officer is a trained member of the Faculty or Staff at Thomas More University who is appointed by the Dean of Student Affairs to determine a student (or students) responsibility for an alleged violation of the Community Standards. The Chief Conduct Officer may serve as a Hearing Officer.
4. Respondent - The individual who as allegedly committed behaviors that betray a Community Commitment.
5. Active Complainant – another student or community member who has brought forth a complaint against another student. Many cases will not have an Active Complainant, as a many complaints come in the form of an Incident Report through residence life or the Campus Safety Office (for example). In those cases, the report (itself) exists as the complainant, though individuals named in the report may be asked to provide more information during the investigation or to be present for a hearing.
6. Judicial Board – A Judicial Board may be appointed by the Chief Conduct Officer to hear a case. Judicial Board consists of one student and two members of the faculty or staff.
7. Preponderance of Evidence – The evidentiary standard used when determining a student (or students) responsibility. “Preponderance of Evidence” means that the information as a whole, shows that the fact(s) supports the conclusion that is “more likely than not” that the student engaged in the alleged behavior.
8. Responsible and Not Responsible – A student is asked to make a declaration of “Responsible” or “Not Responsible” during their Preliminary Conference. When a student declares that he or she is “Not Responsible” for an alleged violation – a Hearing Officer(s) is appointed to decide whether or not the student is responsible by the preponderance of evidence in a hearing. 
9. Hearing – A hearing is the opportunity for the University to determine the level to which a student is responsible/not-responsible for an alleged violation of the Community Commitments.
   1. Administrative Hearing – An Administrative hearing will be conducted by the Chief Conduct Officer and/or an appointed Hearing Officer.
   2. Judicial Board Hearing - The Judicial Board may consists of up to two faculty or staff members.  If a Judicial Board cannot be established (i.e. summer); violations of University policy will be resolved through an Administrative Hearing.
   3. Informal Hearing - During an Informal Hearing, the student responsible for the behavior will be provided a document describing the charges against them and a list of sanctions, determined by the Chief Conduct Officer. The student will have the opportunity to sign the document, accepting responsibility for the charges, or to choose to schedule a formal hearing.

The Department of Student Affairs will consider severity and frequency of the charge(s) and will decision for the appropriate hearing format. During the Preliminary Conference, the student(s) in question will have the opportunity to submit a written request for their preferred hearing format. The Chief Student Affairs Officer, or his/her designee will make the ultimate decision who will hear the case. This determination is made on a case-by-case basis.

PRELIMINARY CONFERENCE

The purpose of the preliminary conference is to provide guidance to the accused in the disposition of the charges, to answer questions regarding the procedures and format of the campus judicial system, and to make arrangements for the hearing. The accused student will be given 3 business days to schedule a preliminary conference once notification of an alleged violation has been received.

During the Preliminary Conference, the accused will be given the opportunity to accept responsibility for all charges against them. If an individual accepts responsibility for all charges, the Chief Conduct Officer will conduct an Informal Hearing.

If a student is not present for their Preliminary Conference, their case will automatically be scheduled for a hearing. Hearings may be scheduled at the convenience of the appointed Hearing Officer (s) with consideration of the students’ class schedule(s). The student(s) in question will be given notice of the date, time, and location for their hearing via their Thomas More email account. Hearings will be scheduled a minimum of 24 hours after the preliminary conference.

HEARING PROCEDURES 

1. Hearing Procedures will be conducted in private. Judicial Board and Administrative Hearings will be recorded for University records. Students will receive notice of the date, time, and location of their hearing via their Thomas More email account. Hearings will take place with or without the presence of the accused.
2. Admission of any person to the hearing shall be at the discretion of the Chief Conduct Officer. As conduct hearings are designed to ensure accountability for the Thomas More Community, individuals who are not a part of this community are not normally permitted to be in attendance during university proceedings (parents, legal counsel…etc.). Students may petition to allow advisors to be present for the hearing to the Chief Conduct Officer. These petitions must be submitted in writing 48 hours prior to the scheduled hearing. Permission for outside individuals does not equate participation. Outside guests are not permitted to speak or participate in judicial proceedings but will be asked to state their name and relationship to the student for the record. The Hearing Officer reserves the right to dismiss any individual from conduct proceedings based on an individual’s failure to comply with direction.
3. In cases involving more than one accused student, the Hearing Officer may choose to conduct hearing proceedings together or individually.
4. During a hearing, the student will have the opportunity to present information, to challenge or clarify information, and to submit questions for anyone involved in the proceedings who appears in person to provide information.

HEARING ORDER OF EVENTS:

1. Introduction
2. Statement of Charges
3. Respondent will be asked to accept or deny responsibility all charges
   1. Respondent may accept responsibility for some but not all
4. Complainants information to support charges/Investigation Report
   1. If there is not an active complainant in a case, the investigation report may be read aloud.
5. Respondent Opening Statement
6. Respondent is questioned by Hearing Officer(s)
7. (If there is an active complainant, 5 and 6 will be repeated for complainant. Respondent will also have an opportunity to submit questions to the complainant)
8. Witness Statements
9. Hearing Officer(s) question witnesses.
10. Hearing Officer clarifying questions (may be asked of complainant, respondent, or witnesses)
11. Closing Statements
    1. Active Complainant
    2. Respondent
12. Dismissal for Deliberations
13. Written notification of hearing results within 5 business days

Discipline proceedings involving sexual misconduct shall specifically ensure the following:

1. The complainant and respondent shall have the opportunity to be present during the proceedings, produce witnesses and question witnesses except in extremely rare situation when a witness may not be available and may supply a statement notarized to its truthfulness.
2. Under no circumstances shall a complainant of sexual harassment or sexual assault be subjected to mediation with the alleged perpetrator.
3. Both parties shall be notified at the same time of the outcome of the hearing within one business day of the proceedings.
4. Discipline cases may involve the interim suspension of the accused when there is probable cause to believe that the safety and wellbeing of either party is in jeopardy.
5. Cases will be scheduled to begin promptly and will not be delayed for criminal proceedings. An exception to this timeline may occur in situations where the respondent is suspended on an interim basis and not permitted to return to campus until the case is completed. This may extend the time by no more than thirty days at which time a hearing is required to be scheduled.
6. In all cases involving sexual misconduct, the standard shall be “preponderance of the evidence,” and sanctions may include warning, probation, suspension or expulsion in addition to educational sanctions.
7. For sensitive complaints such as sexual misconduct, alternative testimony options will be available to all parties, such as placing a privacy screen between parties or use of technology such as skype/facetime to allow for testimony outside the physical presence of the other parties. These options are intended to make the parties more comfortable without working to the disadvantage of the other party.
8. The University will work to maintain the rights of both parties and no determination of being in violation shall be made until a hearing is completed. Filing a false report is a serious matter and will result in discipline charges being filed with the potential of suspension or expulsion from the institution.
9. Both parties have the right to appeal a hearing decision not in their favor by notifying the Dean of Student Affairs in writing of the grounds for appeal with a statement supporting their appeal within two (2) business days at 5pm. The Dean of Student Affairs will review: a. whether the rights affirmed by the Board of Trustees have been denied; b. whether the adjudication was supported by the preponderance of the evidence; c. whether the procedures for a campus judicial proceeding and the sexual misconduct policy were appropriately applied. The decision may be upheld or overturned on these criteria.

Appeal Process

Decisions or sanctions made as a part of an Informal Hearing, Administrative Hearing or Judicial Board Hearing can be appealed. The Chief Student Affairs Officer hears all appeals. In the event that the Chief Student Affairs Office is not able to hear an appeal, they will designate a Hearing Officer (who played no role in the case) to hear the appeal. All appellate responses are final.

Appeal Procedures:

1. Appeals must be submitted in writing in the form of an Appeal Letter to the Appellate Officer through the Department of Student Affairs within 48 hours of delivery of the Outcome Letter.
2. Appeal letters must be authored and signed by the student submitting the appeal.
3. The Appeal letter should state the reason(s) for the appeal and the supporting facts. In order for an appeal to be considered valid, the request and supporting facts must be directly connected with one or more of the Scope of Appeal Criteria.
   1. The Scope of Appeal Criteria lists the parameters within which a student may file an appeal. To be considered valid, any appeal must reference one of the following criteria:
      1. Procedural error, which had a bearing on the original decision.
      2. New information that was not available at the time of the inquiry which had a bearing on the original decision.
      3. Bias. Information demonstrating that there is no way a reasonable person could have arrived at decisions similar to the original decision absent of bias.
      4. Disproportionate Sanction – Whether the sanction imposed was in due proportion to the gravity and nature of the conduct.

Allegations Against Staff/ Faculty

Allegations against faculty/staff will be forwarded to the Director of Human Resources who will conduct an initial investigation. Upon a finding of probable cause that the sexual misconduct/sexual harassment policy has been violated, the matter will be referred to the department head employing the accused staff/faculty member. The department head shall follow the process outlined in the faculty/staff manual. Resources to support both parties will be provided. 

REFERENCING THE POLICY

Saints Community Standards

HISTORY

APPENDIX

None

APPROVALS

David A. Armstrong, President