Anti-Harassment Policy (Including Sexual Assault and Misconduct)
Policy No. 412
Responsible Department: Human Resources
Responsible Administrator: Title IX Coordinator (Director of Human Resources)
Effective Date: June 1, 2012
Date of Scheduled Review: June 1, 2016
ANTI-HARASSMENT POLICY (INCLUDING SEXUAL ASSAULT AND MISCONDUCT)
To comply with all applicable legal requirements prohibiting harassment against any member of the Abilene Christian University community. Moreover, as a Christian community, ACU has committed itself, unequivocally, to ensuring a working and learning environment in which the dignity of every individual is respected. Therefore, it is the purpose of this policy to maintain a work and academic environment that is free of unlawful harassment, which includes sexual assault or misconduct.
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. However, 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.
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. 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.
C. Interim Measures. The University reserves the right to take whatever measures it deems necessary in response to an allegation of harassment in order to protect the related individuals’ rights and personal safety. Such measures include, but are not limited to, interim suspension or leave from campus pending an investigation; modification of class, work schedules, or living arrangement; and no contact orders.
D. No Retaliation. No member of the ACU community may be subject to restraint, interference, 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. Moreover, 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. For more information regarding protections against retaliation, see Policy No. 421, Whistleblower Policy.
E. Notification and Training. In an attempt to prevent harassment, ACU will provide all employees and students with annual notification regarding this policy 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 both Discriminatory and Sexual Harassment as defined below.
B. “Discriminatory Harassment”- verbal or physical conduct or other detrimental action based on sex, religion, race, age, color, national origin, veteran's status, disability, or other characteristic protected by applicable law when such conduct:
- 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
- creates a working or learning 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 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.
- Stalking, defined as repetitive and/or menacing pursuit, following, harassment and/or interference with the peace and/or safety of a member of the ACU community; or the safety of any of the immediate family members of the ACU community.
C. “Sexual Harassment”- unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal, or physical conduct of a sexual nature, including Sexual Misconduct or Exploitation when:
- submission 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;
- submission to or rejection of such conduct by an individual is used as the basis for employment or educational decision affecting the individual; or
- such conduct 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.
Sexual harassment can occur regardless of the relationship, position and respective sex of the parties. Same-gender harassment violates this policy as does harassment by a subordinate employee of his/her supervisor.
Examples of Sexual Harassment may include, but are not limited to the following:
- Unwelcomed sexual propositions, 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 generated from Internet or email sources.
- 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:
- 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, or on, any of these body parts.
- 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).
- Sexual Exploitation - when an individual takes non-consensual, unjust or abusive sexual advantage of another for his/her own pleasure, advantage or benefit, or to pleasure, benefit or advantage anyone other than the one being exploited, and that does not otherwise constitute one of the other sexual misconduct offenses. 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; intentional transmission of HIV or another STD; or aiding in the commission of sexual misconduct as an accomplice
- “Consent” - clear, knowing, and voluntary words or actions given by a person indicating a willingness to engage in mutually agreed-upon sexual activity. Consent is active, and not passive. Silence, in and of itself, cannot be interpreted as consent. Mutually understandable Consent must be obtained 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. Previous sexual relationships and/or a current relationship may not be taken to imply Consent. In addition, 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 who, what, when, where, or how of their sexual interaction. 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.
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), and/or coercion (unreasonable pressure applied after someone make clear they do not want to stop or go past a certain point).
V. REPORTING PROCEDURES AND CONFIDENTIALITY
ACU encourages those who have experienced any form of Harassment to immediately seek available assistance and report the incident promptly to the Title IX Coordinator, who is Wendy Jones, Director of Human Resources. She can be reached at (325) 674-2903 or firstname.lastname@example.org or in Hardin Administration Building Room 213, ACU Box 29106, Abilene, TX 79699-9106. Before you do so, it is important to know that different people on campus have different reporting responsibilities and different abilities to maintain confidentiality, depending on their roles.
A. Reporting to Responsible Employees- The Title IX Coordinator, members of the ACU Police Department, and all employees with supervisory responsibilities of other faculty or staff are designated as Responsible Employees to handle inquiries and reports of Harassment. This means that once these employees receive a report about Harassment, it is considered official notice to the University, which must be reported to the Title IX Coordinator. When reporting to these individuals, it can be expected that reports will be taken seriously and that they will be investigated and properly resolved as outlined in Section VI. Unreasonable delay in reporting may impede the University’s ability to conduct an investigation and/or effect appropriate remedial action. Formal reporting means that only people who need to know will be told, and information will be shared only as necessary with investigators, witnesses, and the accused individuals.
While ACUPD is required to forward reports of harassment including sexual assault to the Title IX Coordinator, the University and ACUPD operate independently from one another in regard to investigations. The complainant may pursue any appropriate internal complaints (with the University) and/or external charges (with ACU Police Department) against the offender.
B. Confidential Reporting- Some resources can offer you confidentiality, sharing options and advice without any obligation to indentify you unless you want them to.
- Counselors and Doctors- Texas law provides that communication between a patient and their mental health or medical provider or counselor is confidential. This includes confidential communication with an on and off campus mental health counselors or health service providers or off-campus rape crisis center.
- Clergy- Texas law provides that communications between the clergy and any individual consulting with him or her for the purpose of seeking spiritual advice in the clergy’s professional capacity is considered privileged, and the person making the communication has a privilege to refuse to disclose and prevent the clergy member from disclosing the confidential communication. Under the law, a “clergyman” is a minister, priest, rabbi, accredited Christian Science practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting him. At ACU, this definition would typically be limited to the Assistant Dean for Spiritual Life and Director of Student Ministries. Any other employee at ACU who may become engaged in a personal or spiritual discussion with a student should not assume that the conversation or information falls within this legal protection.
C. Non-Responsible Employees- Most of the employees on campus are not classified as Responsible Employees, Counselors, Doctors, or Clergy. Neither the university nor the law requires these Non-Responsible Employees to divulge private, personally identifiable information unless the complainant’s safety or the safety of others is at stake. These employees include those employees (faculty and staff) without supervisory responsibilities of other faculty or staff, such as Resident Assistants (RAs), non-supervisory staff or faculty members, academic advisors, and many others. If unsure about someone’s duties and ability to maintain privacy, a complainant should ask them before talking to them. The employee should be able to explain and help make a decision about who can best help. Pursuant to the Clery Act, as explained below, some employees, such as RAs, should be instructed to share incident reports with their supervisors, without sharing any personally identifiable information about the report unless they the complainant gives permission or there is cause for fear for the complainant’s safety or the safety of others.
D. Federal Reporting and Timely Warnings- Under the federal Clery Act, certain campus officials have a duty to report Non-Consensual Sexual Contact, Non-Consensual Sexual Intercourse, incest, or statutory rape regardless of whether they are a Responsible or Non-Responsible Employees.
While personally-identifiable information may be kept confidential, statistical information must be passed along to ACU Police Department regarding the date and time of the incident, the type of incident and its general location (on or off-campus, in the surrounding area, but no addresses are given) for publication in the annual Campus Security Report. This report helps to provide the community with a clear picture of the extent and nature of campus crime, to ensure greater community safety. Mandated federal reporters are any officials of an institution who has significant responsibility for student and campus activities. An official is defined as any person who has the authority and the duty to take action or respond to particular issues on behalf of the institution. This includes but is not limited to Deans and Directors in Student Life, Athletic Director and Coaches, and Title IX Coordinators. Anyone else, including Counselor, Doctors, or Clergy, may be but are not obligated to provide such information.
Additionally, the ACU Police Department must issue immediate timely warnings for incidents of Sexual Misconduct reported to them that are confirmed to pose a substantial threat of bodily harm or danger to members of the campus community. 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. The reporters for timely warning purposes are exactly the same as detailed above.
E. Immunity for Complainant and Other Reporters- The University encourages the reporting of Harassment. Sometimes, victims are hesitant to report to college officials because they fear that they may be charged with policy violations, such as underage drinking at the time of the incident. To encourage reporting of Harassment, the University, where possible, pursues a policy of offering victims of Harassment limited immunity from being charged with policy violations related to the particular incident. While violations to policy cannot be completely overlooked, the University may provide education options rather than other consequences, in such cases. This applies equally to other reporters, who witness and/or offer assistance to others in need. Moreover, any other rule violations will be addressed pursuant to the appropriate code of conduct.
A. Intake- A complaint alleging Harassment can be made to a Responsible Employee or directly to the Title IX Coordinator. Upon receipt of such notice, the Title IX Coordinator (or his/her designee) will first schedule an individual intake meeting with the complainant to provide complainant with a general understanding of this policy and to identify forms of support or immediate interventions available to the complainant (no contact orders, etc.).
During the intake meeting the Title IX Coordinator (or his/her designee) will determine how the complainant wishes to proceed (either with an informal resolution or with a formal investigation). It is important to note that the law may require the University to investigate even when a complainant does not wish to pursue informal resolution or formal investigation. The Coordinator (or his/her designee) will take care in these instances to protect the complainant’s personal information as far as possible, although he/she cannot guarantee confidentiality. Moreover, the ability of the University to investigate the complaint may be limited when the complainant refuses to participate in the investigation or wishes to remain anonymous. As necessary, the University reserves the right to initiate an investigation without a formal complaint by the victim or complainant.
B. Initial Assessment- After receiving a complaint, the Title IX Coordinator (individually or in consultation with his/her designee) will make an initial assessment to determine if there is reasonable cause to believe the harassment policy has been violated. If so, the Coordinator (individually or through his/her designee) will initiate a prompt, thorough, and impartial resolution or investigation. There may be no need for an initial assessment when a situation is clearly Harassment.
C. Informal Complaint and Resolution- Before pursuing a formal complaint, a complainant may wish to informally resolve the issue. An informal resolution might take the form of the Title IX Coordinator, appropriate supervisor/administrator, or complainant discussing the issues with the responding party 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 valid 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 parties involved do 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 by the Title IX Coordinator within two weeks of the determined outcomes.
D. Formal Complaint- The person who wishes to file a formal Harassment complaint is encouraged to submit a brief written statement of facts to the Title IX Coordinator or the assigned Deputy Coordinator. If the complainant does not submit a written statement, the Title IX Coordinator or the Deputy Coordinators will prepare a statement that is approved by the complainant, which may address 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;
- The impact of the respondent’s actions on the complainant;
- Any steps complainant has taken to try to stop the harassment;
- Any other information that complainant believes to be relevant including supporting documents or other evidence.
E. Investigation- Upon receipt of the statement, the Title IX Coordinator will open a formal case file and begin the investigation his/herself or assign the investigation to a Deputy Coordinator or an independent outside investigator, who will conduct the investigations under supervision of the Coordinator. The investigator will begin by providing the respondent notice of the complaint.
As permitted, an investigation shall include, but is not limited to, allowing the respondent to respond in writing and/or orally in order to state his/her position, interviewing complainant, respondent, and key witnesses in order to gather relevant information; maintain appropriate documentation; provide status updates; and disclose appropriate information to others only on a need-to-know basis consistent with applicable law. While the amount of time needed to conduct the investigation will vary on the nature of allegations and the evidence to be investigated, the investigation will normally be concluded within 60 days of the receipt of the formal complaint.
F. Cooperation with Law Enforcement- The University will comply with law enforcement request for cooperation and such cooperation may require the University to temporarily suspend the fact-finding aspect of the investigation while the law enforcement agency is in the process of gathering evidence. The University will promptly resume its investigation two weeks after receiving the request from law enforcement or as soon as notified that law enforcement has completed the evidence gathering process, whichever is earlier.
G. Findings and Decision- Upon conclusion of the investigation, the investigator will make written findings regarding whether a violation occurred, based on a preponderance of the evidence (whether a policy violation is more likely than not). The investigator and/or Title IX Coordinator will present those findings to the accused and complainant. If both parties accept the findings, the appropriate administrator will impose sanctions for the violation, after consultation with the Title IX Coordinator. For accused students, the Vice President of Student Life and Dean of Students will impose the sanctions; for accused staff, the Senior Advisor to the President will impose sanctions; and for accused faculty, the Provost will impose sanctions. If either party rejects the findings, the appropriate administrators identified above will determine whether it is more likely than not that the accused individual violated the policy. If it is, he/she will impose sanctions for the violations, after consultation with the Title IX Coordinator. The findings of the investigation will be considered and given great deference by the administrator, but are not binding on the administrator’s decision.
H. 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 ACU deems appropriate under the circumstance.
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 Title IX.
H. Notifications- When a determination is reached regarding findings and sanctions, the appropriate administrator identified above will provide both complainant and respondent with written notice of the same within five (5) business days. The notice will also include information regarding the parties’ right to appeal.
Either party may appeal the findings or sanctions imposed by filing a written appeal to the Office of Legal Services (Hardin Administration Building, Rm 111) within three (3) working days of the above notification. (However, the parties cannot appeal finding that he/she previously 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 affected the outcome of the investigation (e.g. established bias or material deviation from established procedure);
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;
C. The sanctions imposed are substantially outside the parameters of guidelines set by the institution.
After receiving an appeal, Legal Services will share the appeal with the Title IX Coordinator, who will determine if there are sufficient grounds for appeal. If there are, the opposing party will be notified of the appeal and have an opportunity to file a response. They will have three (3) business days to do so. Additionally, the deciding administrator will also be notified of the appeal.
The original findings, appeal, and any responses will be considered jointly by the two administrators mentioned above that did not render the initial decision. If they cannot agree on a decision or need to recuse themselves for any reasons, the University's Executive Vice President will also consider the appeal unless he/she conducted the underlying investigation. For example, if a student appeals a decision of the Vice President of Student Life and Dean of Students, the Senior Advisor to the President and the Provost, will consider the appeal (along with the EVP if necessary). Their finding, which will be in writing and provided to both parties, will be final and cannot be appealed.
The procedure governing the consideration of appeals include the following:
- 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.
- 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.
- 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;
- Sanctions imposed are implemented immediately unless the original administrator stays their implementation in extraordinary circumstances, pending the outcome of appeal.