Anti-Harassment Policy (Including Discriminatory and Sexual Harassment, Sexual Misconduct, Assault, Stalking and Relationship Violence)

Policy 412
Responsible Department:
Human Resources & Student Life
Responsible Administrator: Chief Human Resources Officer & Vice President for Student Life
Effective Date: May 1, 2012
Revised: August 15, 2014
Date of Scheduled Review: August 17, 2018

I. PURPOSE

In order to comply with all applicable legal requirements prohibiting harassment against any member of the Abilene Christian University community. the purpose of this policy is to maintain a work and academic environment that is free of unlawful harassment. Finally, if such behavior occurs, this policy establishes a prompt and equitable procedure to resolve such complaints. See Sections V-XI or Standard Timeframes and Summary of Harassment Process for more information.

II. SCOPE

This policy applies to all members of the ACU community, including trustees, faculty, staff, students, volunteers, vendors, and visitors and serves to protect those community members from unlawful harassment regardless of where the alleged misconduct occurred. Although there is no geographical limitation, misconduct that is alleged to have occurred at a significant distance from the University or that is committed by a person outside the ACU community may be more difficult to investigate and remedy. Still, where the University’s response is so limited, it will advise the complainant regarding their right to file a complaint with the alleged perpetrator’s school or local law enforcement within the jurisdiction where the harassment occurred. 

III. POLICY

A. Prohibition Against Harassment. Harassment, as defined in Section IV, will not be tolerated at Abilene Christian University. Harassment is unchristian and uncivil behavior. It is a breach of community, which expresses disrespect, exploits and undermines relationships based on trust, and interferes with learning and productive work.

B. Responding and Reporting (Including False Reports). Any person who experiences Harassment or who otherwise becomes aware of such an incident may object to this behavior by telling the perpetrator to stop and should promptly report the incident pursuant to this policy (see Section V). Such harassment allegations must be made in good faith. The University will not tolerate intentional false reporting of incidents. It is a violation of the Student Code of Conduct and the Employee Standards of Conduct to make an intentionally false report of any policy violation, and it may also violate state criminal statutes and civil defamation laws. However, filing a complaint or providing information which a party or witness genuinely believes is accurate, but which is ultimately dismissed due to insufficient evidence or found to be untrue, does not constitute intentional false reporting.

C. No Retaliation. No member of the ACU community may be subject to further harassment, bullying, or retaliation by any employee or student for actions taken in good faith to file or encourage one to file a complaint, participate in an investigation, or oppose unlawful harassment. Retaliation includes things like intimidation, threats, or hostile actions based on someone’s complaint or participation in this process. A party may also be responsible for retaliation by someone affiliated with them (i.e., friend or family member). Any such behavior should be reported to the Title IX Coordinator or designee immediately. For more information regarding protections against retaliation, see Policy No. 421, Whistleblower Policy.

D. Impact of Complaint. Because a claim is not proof of prohibited conduct, a claim shall not be taken into account during performance review, promotion, reappointment, or other evaluation unless a final determination has been made that this policy has been violated. If necessary and appropriate, such decisions shall be deferred until the claim is resolved.

E. Notification and Training. In an attempt to prevent harassment, ACU will provide all employees and students with annual notification regarding this policy, where to file a complaint, and offer periodic training for faculty, staff members, and students, who will be required to participate in such training.

IV. DEFINITIONS AND EXAMPLES  

A. “Harassment” - includes Discriminatory Harassment or Sexual Harassment, as defined below.

B. “Discriminatory Harassment” - any detrimental action based on an individual’s sex, religion, race, age, color, national origin, veteran's status, disability, or any other characteristic protected by applicable law when such conduct:

  1. is so severe, persistent or pervasive that it unreasonably interferes with or limits the individual’s work or educational performance or one’s ability to participate in or benefit from the University’s educational program or activity; or
  2. creates a working, learning, or living environment that a reasonable person would find intimidating, hostile, or offensive. 

It should be noted that the University is exempted from certain legal prohibitions against religious and sex discrimination as set out in its Nondiscrimination Policy. Moreover, this definition (and policy) does not intend to give individuals any protection greater than that afforded by applicable law.

Examples of Discriminatory Harassment may include, but are not limited to the following:

  • Threats or insinuations that a person's status or other condition of employment or academic status may be adversely affected because of one's legally protected characteristic.
  • Unwelcome verbal or written expressions, derogatory comments, epithets, degrading jokes, or innuendos regarding one's legally protected characteristic.
  • Posting objects, pictures, videotapes, audio recordings or literature that may embarrass or offend an individual because of one’s legally protected characteristic. Such material, if used in an educational setting, should be clearly and significantly related to educational purposes.
  • Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally.

C. “Sexual Harassment” - unwelcome conduct of a sexual nature including unwelcomed sexual advances, requests for sexual favors, and other verbal, non-verbal, or physical conduct of a sexual nature, including Sexual Misconduct, Exploitation, Stalking, or Relationship Violence as defined below, when:

  1. sufficiently serious, pervasive, or persistent as to create an intimidating, hostile, humiliating, demeaning, or sexually offensive working, academic, residential, or social environment under both an objective (a reasonable person’s view) and subjective (the complainant’s view) standard
  2. refusing or submitting to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or status in a University course, program or activity.

Sexual harassment can occur regardless of the relationship, position and respective sex of the parties. Same-sex harassment violates this policy as does harassment by a student of a faculty member or a subordinate employee of his/her supervisor.

Examples of Sexual Harassment may include, but are not limited to the following:

  • Unwelcomed sexual invitations, solicitations and flirtations
  • Threats or insinuations that a person's status or other condition may be either adversely affected by not submitting to sexual advance or positively affected by submitting to sexual advance
  • Unwelcome verbal expressions of a sexual nature, including graphic sexual commentaries about a person's body, dress, appearance, or sexual activities; the unwelcome use of sexually degrading language, jokes or innuendos; unwelcome suggestive or insulting sounds or whistles; obscene phone calls
  • Sexually suggestive objects, pictures, videotapes, audio recordings or literature, placed in the work or study area, which may embarrass or offend individuals. Such material, if used in an educational setting, should be clearly and significantly related to educational purposes
  • Suggestive or sexually explicit posters, calendars, photographs, graffiti, or cartoons, including those distributed electronically
  • Offensive letters, email, text messages, posts on social networking sites, Internet images or transmissions or voicemail messages
  • Questions about one's sex life or experience

D. “Sexual Misconduct” - a broad term encompassing any non-consensual physical contact of a sexual nature that varies in severity and consists of a range of behaviors or attempted behaviors. Prohibited Sexual Misconduct includes:

  1. Non-Consensual Sexual Contact - any intentional sexual touching, however slight, with any object or body part, by one person upon another, without consent or by force. Sexual touching includes any contact of a sexual nature (as determined using a “reasonable-person” standard) with the breasts, buttocks, groin, genitals, mouth, or body part of another. Sexual touching also includes an individual making someone else touch him or her with, on, or in, any of these body parts.
  2. Non-Consensual Sexual Intercourse - any sexual intercourse (anal, oral or vaginal), including sexual intercourse with an object or body part, however slight, by one person upon another without consent or by force. Sexual intercourse includes vaginal and/or anal penetration by a penis, object, tongue or finger, and oral copulation (mouth to genital contact or genital to mouth contact).

E. Sexual Exploitation - when a person takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or the advantage or benefit of anyone other than the one being exploited, and that does not otherwise constitute one of the other sexual misconduct definitions. Examples include, but are not limited to: exposure of genitals or inducing another to expose their genitals; invasions of sexual privacy including non-consensual video or audio-taping of sexual activity or voyeurism; inducing intoxication/incapacitation for the purposes of sexual activity; or aiding in the commission of sexual misconduct.

E. “Consent” - an informed, knowing, and voluntary decision to engage in mutually acceptable sexual activity. Consent is active, and not passive. Silence, in and of itself, should not be interpreted as consent. Consent must be part of a mutual and ongoing process by both parties throughout the sexual interaction. In other words, Consent to any one form of sexual activity cannot automatically imply consent to any other form of sexual activity. Consent may be given by words or actions as long as they create mutually understandable permission.

It is important to remember:

  • Previous sexual relationships and/or a current relationship may not be taken to imply consent.
  • Consent cannot be implied or inferred by attire, time or place (e.g., being invited to a person’s residence at a certain time of night).
  • Consent to sexual activity may be revoked at any time, as long as the revocation is communicated clearly, at which point sexual activity must cease immediately.
  • Consent cannot be given by minors, mentally disabled individuals or Incapacitated persons. Because Consent may never be provided by an Incapacitated person, one must assume Consent has been withdrawn should an individual become Incapacitated at any point during a sexual act or encounter.
  • Consent cannot be obtained through the use of fraud or Force (actual or implied).

F. “Incapacitated” - any state where one cannot make a rational, reasonable decision because they lack the ability to understand the consequences of their actions. It literally means the inability to fully understand what is happening. First responders will assess someone’s capacity through the use of common questions to determine if a person is oriented to the person, place, time, and event. In other words, someone that does not know the who, what, when, where, or how of their sexual interaction lack capacity. This includes but is not limited to persons incapacitated based on their voluntary or involuntary use of drugs or alcohol, unconsciousness, blackout or sleep.

Evidence of incapacity can also be detected by a reasonable person from one or an accumulation of context clues, which can include but are not limited to the following: knowledge regarding how much alcohol another person has consumed or whether some other drug has been ingested; slurred speech; bloodshot eyes; shaky equilibrium or inability to walk; vomiting; outrageous or unusual behavior; or unawareness of surroundings. If there is any question regarding incapacity, it is best not to engage in sexual activity with that person. When in doubt, don’t. 

G. “Force” - use of physical violence (such as pushing, hitting, pinning down), threats (direct or indirect expressions of harm to self or others), intimidation (implied or indirect threats or abuse of power), and/or coercion (unreasonable pressure applied after someone makes clear they want to stop or not go past a certain point). 

H. “Stalking” - unwanted and repeated course of conduct or behavior directed at a specific person that would causes a reasonable person to fear for his, her, or others’ safety or suffer substantial emotional distress.

I. “Relationship Violence” - includes both Domestic and Dating Violence. Domestic Violence includes violent misdemeanor and felony offenses committed by the victim's current or former spouse or intimate partner, a person with whom the victim shares a child in common, a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, or person similarly situated to a spouse of the victim under domestic or family violence law, or any adult or youth protected under domestic or family violence law. Dating Violence means sexual or physical abuse or threats of such abuse by a person who has been in a romantic or intimate relationship with the victim. Whether there was such relationship will be gauged by its length, type, and frequency of interaction.

J. “Reporter” or “Complainant” - the person filing a report or complaint that the policy was violated.

K. “Accused” or “Respondent” - the person accused of violating the policy or responding to a complaint related to a violation.

V. EMERGENCY ASSISTANCE                   

If a person has concerns for their safety, they should contact ACU Police Department (ACUPD) (325-674-2911) or the Abilene Police Department (APD) (911). If on campus, ACUPD can also be contacted by activating one of the blue safety phones located throughout campus. Police can help with transportation to the hospital for sexual assault exams, safe housing on campus, connecting a person to other resources, and help in obtaining a restraining order. For more information, see Anti-Harassment Resources.

VI. COMPLAINT PROCEDURES (ADMINISTRATIVE AND LAW ENFORCEMENT)

A. Immunity for Complainant and Other Reporters - Sometimes, students are hesitant to report to university officials because they fear that they may be charged with policy violations, such as underage drinking, curfew violations, or other conduct violations at the time of the incident. To encourage reporting of Harassment, the university pursues a policy of offering complainants of Harassment limited immunity from being charged with policy violations related to the particular incident. This means that while violations to university policy cannot be completely overlooked, the university may provide education options rather than punishment, in such cases. This applies equally to other reporters, who witness and/or offer assistance to complainants. 

B.Timing of Complaints - There is no time limit for the submission of a complaint under this policy. A complaint received near the end of or between semesters may result in delay in the adjudication of the complaint until the beginning of the next semester. While the amount of time needed to respond to the complaint will vary on the nature of allegations and the evidence, any related investigation and outcomes will normally be concluded within 60 days of the receipt of the complaint (not including any appeals). For more detailed information regarding typical timeframes, see the Standard Timeframes and Summary of Harassment Process.

C. Reporting Options - While it may be difficult, the university encourages those who have experienced any form of Harassment to immediately seek available assistance and report the incident promptly not only to protect your own physical/emotions well-being but to protect others as well. Before reporting, it is important to understand that different people on campus have varying responsibilities regarding what they have to do once they receive a report. 

1. Direct Reporting to Anti-Harassment Co-Coordinators - Reports can be made directly to one of the two Anti-Harassment Co-Coordinator, whose information is listed below, or a Deputy Coordinator. For compliance purposes, these Co-Coordinators are the Title IX Coordinators for staff/faculty and students respectively.

Wendy Jones
Director of Human Resources
Hardin Administration Building, Rm. 213
325-674-2359
jonesw@acu.edu
Chris Riley, J.D.
Vice President for Student Life
McKenzie Hall, Rm. 135
325-674-6802
chris.riley@acu.edu

2. Anonymous Reporting - Anonymous reports can be submitted online or by calling the anonymous hotline: 325-674-2594. This information goes to the ACU Office of General Counsel, who oversees the hotline, and will then be provided to one of the Co-Coordinators.

3. Confidential Reporting - If a person desires to identify themselves butdesires that the details of the incident not be reported to the Co-Coordinator, they are encouraged to speak with one of the following: one of the two on-campus Student Advocates; on or off-campus mental health professional or health care service provider; off-campus rape crisis resources; or off-campus clergy. See Anti-Harassment Resources for contact information about making a confidential reporting. 

4. Reporting to Responsible Employee - The university considers all other university employees (besides the Student Advocates and health care professionals mentioned above) and Student Organization Sponsors to be “Responsible Employees.” This means that if they receive reports about Harassment, they must promptly share that information with the appropriate Co-Coordinator, who can consider requests that the school maintain the reporter’s confidentiality. 

In other words, notification to the Responsible Employees is official notice to the University but does not necessarily mean information will be shared with the accused individual. This information should include all relevant details needed to determine what occurred and address the situation including: name of the parties or witnesses and any relevant facts including date, time and location. To the extent possible, the Responsible Employee should explain this obligation to the reporter before the report is made, identify reporting options (i.e., confidential, direct, and law enforcement) and clarify that the student has an option to ask that the Title IX Coordinator maintain his or her confidentiality.

5. Reporting to Law Enforcement - Separate and apart from violations of this policy, the University also encourages any related criminal violations be reported to campus or local police. While employees of ACUPD, as Responsible Employees, are required to forward reports of harassment including sexual assault to the appropriate Co-Coordinator, the University and ACUPD operate independently from one another. While the Coordinators are concerned with violations of policy, law enforcements role is limited only to violation of the law, not policy. In other words, the complainant may pursue an internal complaint (with the University) and/or external criminal charges (with ACUPD or local police). ACUPD can be contracted at:

ACU Police Department
325-674-2305 (non-emergency)
325-674-2911 (emergency)
acupolice@acu.edu
ACU Box 28010
Abilene, Texas 79699

It is important to note that reporting to ACUPD or any other law enforcement does not require filing criminal charges. However, making such a report allows ACUPD to obtain physical evidence should a complainant wish to pursue criminal charges. Additionally, ACUPD has officers specifically trained to work with complainants and can explain their rights and options and provide relevant resources.

(a) Timely Public Warning - Under the Clery Act, the ACUPD must issue immediate timely warnings for certain types and circumstances of Sexual Misconduct reported to them if they believe they pose a substantial threat of bodily harm or danger to members of the campus community. If that is necessary, the University will make every effort to ensure that a victim’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the danger.

(b) Cooperation with Law Enforcement Requests - The University will comply with a law enforcement request for cooperation and such cooperation may require the University to temporarily suspend any fact-finding aspect of the investigation while the law enforcement agency is in the process of gathering evidence. The University will promptly resume its resolution/investigation of the complaint after receiving the request from law enforcement or as soon as notified that law enforcement has completed the evidence gathering process, whichever is earlier. This length of time will vary depending on the specific circumstances of each case but in no case will the university suspend any investigation for an ongoing or indefinite period.

VII. INTAKE, INTERIM MEASURES, AND PRELIMINARY ASSESSMENT

A. Intake - Upon receiving the report, the Co-Coordinator or designee will provide complainant with a general understanding of this process including confidentiality, prohibitions against retaliation, and determine if interim measures are requested/necessary to protect the complainant’s or university community’s rights or safety. 

B. Interim Measures and Other Resources - Interim remedial measures typically help the complainant avoid contact with the potential respondent. These can include but are not limited to interim suspension, restrictions regarding movement on campus, removal from university housing, modification of classes or work schedules, and no contact orders. The complainant will also be informed regarding relevant resources, which include the assignment of an advocate, academic or counseling services, and the right to report a crime to or seek a protective order from campus or local law enforcement. The Co-Coordinator or designee will also discuss confidentiality requests and determine how the complainant wishes to proceed: no action; proceed with informal resolution (if applicable); or proceed with formal resolution, which are each discussed below.

C. Preliminary Assessment - As soon as possible after receiving the report or complaint, the Co-Coordinator will make an initial assessment to determine if there is reasonable cause to believe the policy has been violated. If no reasonable cause exists, the case will be closed and that conclusion reported in writing to complainant and responded, if applicable. If there is reasonable cause, the complaint will proceed.

VIII. REQUESTS FOR CONFIDENTIALTY AND/OR NO ACTION

If the complainant refuses to participate, requests confidentiality and/or asks that the university not take action, the university’s ability to adequately respond to the complaint or report may be limited. Still, the Co-Coordinator or designee will evaluate such requests by balancing the complainant’s desire with the university’s responsibility to provide a safe and nondiscriminatory environment. In other words, while the university wants to respect the complaintant’s request, it is important to note the law may require the university to override the request especially in cases of Sexual Misconduct. In making this decision, the Co-Coordinator or designee will consider several factors including but not limited to:

  • Do circumstances suggest there is an increased risk of the alleged respondent committing additional acts (e.g., other complaints against the respondent or threats of addition action by respondent,)?
  • Do circumstances suggest there is an increased risk of someone else committing additional acts under similar circumstances (e.g., pattern of acting or certain location)?
  • The seriousness of the allegations (e.g., weapon involved, multiple respondents)?
  • Whether the university possesses other means to obtain relevant evidence to proceed (e.g., security cameras or physical evidence)?

If the university determines that it can honor the complainant’s request, it will ask the complainant to sign a case drop form and the case will be closed with the understanding that the complainant can later change his or her mind. The university will still take all reasonable and necessary steps to respond to the complaint consistent with the complaint’s requests and determine whether interim measures are appropriate or necessary.

If the university determines that it must proceed with a resolution or investigation despite the complainant’s request for confidentiality, the university will take care to protect the complainant’s information as far as possible. In other words, only the people who need to know will be told, and information will be shared only as necessary with investigators, witnesses, and the accused individuals. Moreover, in additional to interim measures, the complainant may request that the university inform the respondent that he or she asked the university not to investigate or seek discipline, and the university will honor that request. In this type of case, the Co- Coordinator will serve as the complainant using the process outlined below.

IX. INFORMAL RESOLUTION

In any cases that do not involve violence or Sexual Misconduct, a complainant may wish to informally resolve the complaint. An informal resolution might take the form of the Co-Coordinator, appropriate supervisor/administrator, or complainant discussing the issues with the respondent in order to establish the kind of behavior that may be deemed objectionable and securing the cessation of such behavior; it might also take the form of informal mediation between the parties.

When complaints are resolved informally, the offending party should be cautioned that repetition of such conduct could lead to formal complaint or investigation.

The use of an informal complaint and resolution procedure is optional. Nothing in this informal complaint process is meant to discourage an individual from filing a formal complaint. In instances where complainant does not wish to engage in the informal procedure, where informal resolution is not appropriate (e.g. violence or Sexual Misconduct), or in situations where attempts at the informal procedure are unsuccessful, the formal procedure may be followed. Written notice of the outcomes of any informal procedure will be given to complainant and responded by the Co-Coordinator within one week of the outcomes.

X. FORMAL RESOLUTION

If the complainant wishes to proceed with a formal resolution or the university determines that a formal resolution should proceed, the Co-Coordinator will begin an investigation or assign the investigation to a Deputy Coordinator or an independent outside investigator, who will conduct the investigations under supervision of the Co-Coordinator. The goal of the investigation is determine (1) if a preponderance of the evidence shows that the alleged violation occurred (i.e., its more likely than not) and (2) if so, what actions should the university take to respond to the violation and prevent reoccurrence. In so doing, the university strives for the investigation to be sufficient, reliable and impartial including the opportunity for both complainant and respondent to provide evidence and witnesses to the investigator, as applicable.

A. Initial Meetings, Parties Statements, and Pre-Finding Resolution

1) Complainant’s Statement and Complaint Form - To begin the investigation, the complaint will be encouraged to prepare and submit a personally written statement of facts to the Co-Coordinator or designee outlining his or her complaint. If the complainant does not submit a written statement, the Co-Coordinator or designee will prepare a statement based on the complainant’s verbal statements and ask the complainant to approve it. The statement typically includes the following

  • Identification of the respondent and relationship to the university;
  • Description of the incident(s), including dates, locations, and the presence (and identity) of any witnesses or other who might have been subject to the same or similar harassment;
  • A list of any other information that complainant believes to be relevant including supporting documents or other evidence including text messages or voicemails; and
  • Description of the impact of respondent’s actions on complainant.

The statement will not be provided to the respondent until after he/she has filed their statement in response. Once the respondent has submitted his/her statement to the Co-Coordinator or designee, both parties will be given a copy of the other party’s statement.

In addition to the statement, complainant will be asked to complete a less detailed Complaint Form containing basic information about the complaint made against the respondent, such as time, date, location, and a brief description of the allegations underlying the alleged violation.The Co-Coordinator or designee will provide this form to respondent via email or in person as written notice of the compliant and investigation and scheduled an appointment to discuss the complaint. 

2) Initial Meeting with the Respondent -At the meeting, the investigator will provide respondent with a general understanding of the policy including confidentiality, the prohibition against retaliation and explain any interim measures in place and consider respondent’s request for additional interim measures.The respondent will also be informed regarding relevant resources, which include the assignment of a Student Advocate and counseling services.

3) Pre-Findings Resolution of Complaint - After reviewing the complaint form and the meeting, the respondent has the right to end the investigation by accepting responsibility for the conduct alleged in the Complaint Form. If the respondent accepts responsibility, the complaint would be referred to the appropriate Decision Maker to decide the disciplinary action against respondent (See Sections IX. C and D).

  1. Respondent’s Statement - If the respondent contests the complaint, the respondent will be encouraged but not required to submit a personally written response to the investigator. If the respondent does not plan on submitting a written statement, the investigator will ask the respondent for relevant information at the meeting, prepare a statement based on the information provided, and ask the complainant to approve it. The response may include the following:
  2. Identification of respondent’s relationship with complainant
  3. Response to the complaint including description of the incident(s), including dates, locations, and the presence (and identity) of any witnesses; and
  4. A list of any other information that respondent believes to be relevant including supporting documents or other evidence including text messages or voicemails.

Once respondent provides a response, the investigator will share each parties’ statements with the other party.

5) Respondent’s Refusal or Failure to Participate - Refusal or failure by the respondent to meet, cooperate regarding the complaint and notices provided, or submit a personal or approve a university drafted response may result in either (1) an automatic suspension of the respondent or (2) the adjudication of the complaint without input from the respondent. 

B. Fact-Finding Investigation- Once the statements have been submitted, the investigation will begin. It is the responsibility of the trained and neutral investigator, not the parties, to gather the evidence relevant to the complaint to the extent reasonably possible. During the course of the investigation, the investigator may utilize some or all of the following methods, in whatever order the investigator deems most appropriate:interviewing the partiers and key witnesses in order to gather relevant information; document or evidence gathering or review; consulting expert witnesses including local law enforcement or forensic experts (as necessary). Throughout the process, the investigator will maintain appropriate documentation; provide status updates to the parties; and disclose appropriate information to others only on a need-to-know basis consistent with applicable law. 

  1. Influencing Witnesses - In their statements, the parties have the right to identify any relevant witnesses. And the investigator will attempt to contact and interview any witnesses that he or she deems relevant to the resolution of the complaint. Witnesses should only be encouraged to cooperate and to speak the truth. If either party, individually or through others, attempts to threaten, intimidate, or otherwise improperly influence a witness, such action will result in a separate disciplinary action by the university.
  2. Sexual History - In a case of Sexual Misconduct, the past sexual history of the parties with others will not be used in determining whether a violation occurred. Moreover, the mere fact of a past or ongoing consensual dating or sexual relationship between the parties does not itself imply consent or preclude a finding of a violation.
  3. Disclosure of Evidence - The investigator will determine if the evidence presented, which may include written statements, electronic messages or social media posts, physical evidence, etc., are relevant and probative to whether the alleged conduct occurred. If so, in the interest of fairness and equity, such evidence maybe disclosed to both parties if relevant to further investigation or the outcome of the case. 
  4. Attorneys - The parties have the right to seek assistance of a private attorney, at their own expense, regarding the complaint and investigation and should consider how this process could impact any criminal case in which they are or may become involved. An attorney for a party may inquire with the university’s legal counsel regarding the pending complaint, but will not be permitted to be present at or to participate in the investigation or any other stage of the process. 
  5. Findings and Decision - Upon conclusion of the investigation, the investigator will make written findings report regarding whether a violation occurred, based on a preponderance of the evidence (whether a policy violation is more likely than not). The findings will include summary and analysis of the relevant evidence supporting the findings. The report will not be shared with the parties.

The investigator and Co-Coordinator will present the findings to the complainant and respondent separately either in person or via email. If both parties accept the findings, the appropriate Decision Maker, as set out below, will impose sanctions for the violation, after consultation with the Co- Coordinator. The appropriate Decision Maker depends on the primary status of the respondent: for accused students, its the Executive Vice President; for accused staff, its the Senior Advisor to the President; and for accused faculty, its the Provost.

If either party rejects the findings, the appropriate Decision Maker identified above will determine whether it is more likely than not that the accused individual violated the policy. In making this decision, the findings of the investigation will be considered and given great deference by the administrators, but are not binding on the administrators’ decision. The Decision Maker may ask the investigator to conduct additional investigation before making his or her decision or meet with both parties and the Co-Coordinator. 

If the Decision Maker concludes that it is more likely than not that the policy was violated, they will also consider sanctions for the violations, after consultation with the Co-Coordinator. If the Decision Maker concludes that the preponderance of the evidence does not support a violation, the parties will be notified as set out below.

D. Remedies - Anyone who violates this policy will be subject to appropriate disciplinary action. Disciplinary measures available to remedy Harassment or retaliation include, but are not limited to, the following: verbal warning/reprimand; written warning/reprimand in employee or student files; requirement of verbal and/or written apology to victim; mandatory education and training on harassment by means of reading assignments, videos, classes or other presentations; referral for psychological assessment or treatment; alternate placement, suspension, probation or termination; or other action university deems appropriate under the circumstance Additionally, interim remedial measures may become permanent.

In determining what disciplinary or corrective action is appropriate, the university shall consider the totality of the circumstances, including but not limited to: number of victims and harassers involved; employment/student positions or status of the victims and harassers; relevant portions of prior disciplinary record of the harasser; threatened or actual harm caused by the harassment; frequency and/or severity of the harassment.

If a student or student groups are found to be in violation of this policy, any of the sanctions set forth in the ACU Student Code of Conduct may also be involved.

If a faculty member is found to have violated this policy and if the discipline is determined to include termination, this process will substitute for any other including Special Termination in the Faculty Handbook, as is required under the equity requirement under the law.

H. Notifications - When a determination is reached regarding findings and/or sanctions, the appropriate Decision Maker will provide both complainant and respondent with concurrent written notice of the same within seven (7) days of the decision through email.

The notice will inform both parties regarding the outcomes (where or not the university found the alleged violation occurred) and any sanctions that impact both parties (e.g., no contact orders, suspension). The complainant should also be informed of any other remedies offered to him or her individually or actions taken by the university to prevent recurrence. Finally, the notice will also include information regarding the parties’ right to appeal. Sanctions, especially those requiring separation from campus, are implemented immediately. The Decision Maker has discretion to allow a student respondent to complete any pending coursework remotely, if deemed appropriate by the relevant faculty member.

XI. APPEAL

Either party may appeal the findings or sanctions imposed by filing a written appeal to the Office of General Counsel (Hardin Administration Building, Rm 111) within three (3) working days of the above notification. (However, the respondent cannot appeal admissions of pre-finding responsibility or findings that he or she accepted). The ONLY grounds for appeals are as follows:

A. The investigatory process, as outlined in the policy was not followed, and the failure to do so significantly and adversely impacted the outcome of the investigation;

B. To consider new evidence unavailable during investigation that could substantially impact the original finding or sanction. A summary of the new evidence must be included along with a valid reason it was not available earlier and how it would have impacted the outcome. 

C. The sanctions imposed are substantially inconsistent with the type of discipline issued to others who were found to be responsible for substantially similar violations.

After receiving an appeal, the Office of General Counsel will share the appeal with the relevant Co- Coordinator, notify the opposing party of the appeal and allow him or her the opportunity to file a response. They will have three (3) business days to do so.

The original findings, appeal, and any responses will be considered jointly by one of the two administrators mentioned above that did not render the initial decision For example, if a student appeals a decision of the Executive Vice President, the Senior Advisor to the President or the Provost, will consider the appeal. Their finding, which will be in writing and provided to both parties concurrently through email, will be final and cannot be appealed.

The procedure governing the consideration of appeals include the following:

  1. If the committee determines that an appeal should be granted, it should make every effort to return the appeal to the original administrator for reconsideration (remand) where appropriate. In such cases, the decision made on remand by the original administrator is not appealable;
  2. Appeals are not intended to be full reinvestigation of the complaint. Instead, in most cases, they are confined to a review of the written documents; and
  3. Appeals are not an opportunity for the appeals committee to substitute their judgment for that of the original administrator merely because they disagree with his/her findings and/or sanctions. Instead, they are to be deferential making changes only where there is clear error or compelling justification.
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