Title IX Investigation and Adjudication Process and Procedures

All formal complaints received by Elon university that allege conduct that falls within the scope of sexual harassment as defined under Title IX will be addressed through the following process and procedures.

Roles, Concepts and Definitions

Roles:

Complainant– The individual who is the alleged victim of sexual misconduct, sexual harassment, gender-based violence, and/or sex and gender-based discrimination. The complainant does not have to be the party making a report.

Respondent – The individual alleged to have committed sexual harassment, interpersonal violence, sexual misconduct, and sex and/or gender-based discrimination.

Title IX Coordinator – The Title IX Coordinator is a full-time staff member trained in all aspects of Title IX and this policy and process. The Coordinator is responsible for overseeing the university’s education, prevention, and response to sexual harassment, interpersonal violence, sexual misconduct, and sex and/or gender-based discrimination. The Title IX Coordinator receives reports, assigns investigators, reviews investigative reports, coordinates and facilitates the hearing process and serves as the primary point of contact regarding Title IX at the university. The Title IX Coordinator (or designee) also facilitates alternative resolution of complaints. The Associate Vice President for Human Resources may appoint an Interim Title IX Coordinator as needed.

Deputy Title IX Coordinator – Deputy Title IX Coordinators are trained on Title IX and all aspects of this policy, and primarily fulfill other full-time roles within the university. Deputy Coordinators are responsible for providing education, training, and handling intake of reports. Additionally, they serve in an advisory capacity to the Title IX Coordinator and Title IX Investigator(s) on prevention, education, and policy development given their expertise from their primary full-time roles. Deputy Coordinators may serve as the Title IX Coordinator on an interim basis when circumstances dictate.

Investigator(s) – The Investigator is a full-time staff member trained in the investigation of Sexual Misconduct and Title IX cases, including all aspects of this policy and process. They serve as the primary investigator and/or team lead for all investigations under this policy. The Investigator can provide the following functions:

Receive reports;
Investigate reports of prohibited conduct under this policy; and
Write investigative reports.

Hearing Officer – The Hearing Officer is appointed by the Associate Vice President for Human Resources to facilitate and adjudicate outcome hearings for Sexual Misconduct cases when the prohibited conduct meets the definition of sexual harassment under Title IX.

Concepts:

Consent – Consent is clear, knowing, and voluntary words or actions that give permission for specific sexual activity. 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 permission regarding willingness to engage in (and the conditions of) sexual activity. There is no consent when force, coercion, intimidation, or threats are used. There also cannot be consent when an individual is incapacitated. Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity, nor can previous relationships or previous consent imply consent to any future sexual acts. Consent can be withdrawn once it is given, as long as that withdrawal is clearly communicated. Lastly, one must be of legal age to grant consent. Legal age in North Carolina is 16 years of age.

Coercion – Coercion is unreasonable pressure for sexual activity. When someone makes clear to you that they do not want sexual contact, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. If coercion is used, there is no consent.

Force – Force is the use of physical violence, and/or imposing on someone physically, to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcome resistance to produce consent. If force is used, there is no consent.

Incapacitation - Incapacitation is defined as a state in which a person cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, where, why or how” of their sexual interaction). Incapacitation can occur from many things, including mental disability, sleep, involuntary physical restraint, from the use of alcohol and/or drugs, or blackout. If a person is incapacitated, there is no consent. Sexual activity with someone known to be or whom an individual should reasonably know to be incapacitated constitutes a violation of this policy.

Note: The use of alcohol or other drugs will never function as a defense for any behavior that violates this policy.

Definitions:

Sexual Harassment – Conduct on the basis of sex that satisfies one or more of the following:

A university employee conditions the provision of an aid, benefit, or service of the university on an individual’s participation in unwelcome sexual conduct (quid pro quo sexual harassment);
Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the university’s education program or activity; or
Sexual Assault (as defined in the Clery Act), or Dating Violence, Domestic Violence, and Stalking (as defined in the Violence Against Women Act (VAWA), as defined below.

Sexual Assault – Sexual Assault is sexual contact with another individual without consent or where the individual cannot consent because of age or temporary or permanent incapacity. Sexual contact includes:

Non-Consensual Sexual Touching – Non-Consensual Sexual Touching is any intentional sexual touching, however slight, with any object, by a person upon another person, for the purpose of sexual gratification, that is without consent. This includes intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; or any other intentional bodily contact in a sexual manner.

Non-Consensual Sexual Intercourse – Non-Consensual Sexual Intercourse is any sexual penetration, however slight, with any body part or object, by a person upon another person, that is without consent and/or by force. This includes vaginal or anal penetration by a penis, object, tongue, or finger, and oral copulation (mouth to genital contact).

Dating Violence –Dating Violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the reporting party’s statement with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship

Domestic Violence – Domestic Violence is violence committed by a person committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or who has cohabitated with the complainant as a spouse or intimate partner, or by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of North Carolina, 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 North Carolina.

Stalking – Stalking is a course of conduct directed at a specific person on the basis of sex that is unwelcome and would cause a reasonable person to feel fear for their own safety or the safety of others or suffer substantial emotional distress. Stalking can also be repetitive and menacing conduct, purposely or knowingly causing emotional distress, or pursuing, following, harassing, and/or interfering with the peace and/or the safety of another.

Standard of Evidence

Preponderance of Evidence is the standard of proof in which decisions will be made regarding violations of this policy. The standard of preponderance of evidence is defined as being more likely than not that a policy violation occurred. Respondents are presumed not responsible until a determination has been made, and complainants are presumed to be reporting in good faith. False reports made by students are a violation of the Code of Conduct and will be referred to the Office of Student Conduct. False reports made by employees will be handled pursuant to the appropriate disciplinary process.

Formal Complaint

When prohibited conduct within the scope of the Title IX policy is alleged, the Title IX procedures can only be taken when a formal complaint is submitted in writing (in hard copy or electronic form) by the complainant denoting the submission is in fact a formal complaint and the complainant wishes formal or alternative action be pursued, or by the Title IX Coordinator, who can submit a formal complaint without the complainant when there is reason to believe the respondent is an imminent threat to the health and safety of the complainant and/or the university community.

Regardless of a request that an investigation not be pursued, the university may still provide supportive measures and resources to a complainant and respondent. The university will not only take steps to prevent retaliation but will take a strong responsive action if retaliation occurs, even if a formal complaint is not pursued.

Complainants can withdraw their formal complaint at any time in the process up until the final decision.

Alternative Resolution

The Alternative Resolution (AR) process is a voluntary process that is separate and distinct from the university’s formal investigation processes under the Title IX and Sexual Misconduct Policy. Under this AR process, there will be no disciplinary action taken against a respondent, and the resolution will not appear on either parties’ disciplinary record. The parties may be accompanied by an advisor of choice to any meeting related to the AR process.

A complainant or respondent may request an AR process by informing the Title IX Coordinator for the university (or designee) in writing. The Title IX Coordinator (or designee) may offer the AR process to the parties. The AR process of a complaint is only available in appropriate cases and is never appropriate in cases involving:

allegations of nonconsensual sexual intercourse; or
allegations that an employee sexually harassed a student

The Title IX Coordinator has final discretion to determine if it would be appropriate to use an AR process to resolve a sexual misconduct complaint. A formal complaint through the Title IX office must be filed in order to pursue an AR process.

In making a determination as to whether the Alternative Resolution is appropriate, the Title IX Coordinator will consider factors, including, but not limited to, the following:

The outcome of an individualized safety and risk analysis of the respondent relating to sexual misconduct, physical violence, failure to comply with a cease contact directive, and/or other relevant conduct
The nature of the alleged conduct, whether allegations involve multiple complainants and/or a pattern of conduct, or other evidence-informed factors indicative of increased risk to campus safety
Whether the circumstances warrant the Title IX Coordinator filing a complaint. The Title IX Coordinator will provide this determination in writing to the parties. This determination is not appealable.

Participation in an AR process is voluntary, and the university will not require, encourage, or discourage the parties from participating in the AR process. The parties must consent in writing to participate in the AR process.

The Title IX Coordinator will hold an initial process meeting with each party to discuss the AR process and to communicate the parties their rights under the applicable university policies. The Title IX Coordinator will ask the parties to submit written requests that provide detail regarding the remedies that they are seeking. The Title IX Coordinator will share the written requests with the other party and will meet separately with both parties to identify and facilitate areas of agreement.

Any agreements reached as part of the AR process must be approved by the Title IX Coordinator. If the Title IX Coordinator determines at any time prior to the signing of the Alternative Resolution Agreement that the AR process is no longer appropriate, the Title IX Coordinator may terminate the process and refer the matter back to a formal resolution process.

Upon signing the Alternative Resolution Agreement, the complainant and respondent are bound by its terms and cannot elect for a formal resolution process based on the conduct alleged in the underlying complaint. Failure to comply with the signed agreement may result in disciplinary action for either party.

If the complainant’s or respondent’s circumstances change significantly, they may request a supplemental agreement. The Title IX Coordinator will determine whether it is appropriate to proceed.

Depending on the nature and circumstances of the particular situation, the following may be the result of an Alternative Resolution Agreement:

Voluntary restrictions from participation in particular registered student organizations or campus events;
Changes to on-campus housing, subject to availability;
Changes to patronage of specific dining facilities;
Participation in educational offerings on topics including but not limited to: consent and communication, the use of alcohol or other drugs, healthy interpersonal relationships, stress management and wellbeing;
Provision to the respondent to read an “impact statement” written by the complainant (describing the impact(s) that the respondent’s alleged conduct had on the complainant); or
Other measures deemed appropriate by the Title IX Coordinator.

The AR process may be discontinued at any time, prior to the signing of the agreement, by either the Title IX Coordinator (or designee) or either of the parties. If the AR process is discontinued for any reason or if the parties fail to reach a mutually agreeable outcome for the alleged conduct, the complainant or respondent may request to re-engage an investigation and formal process under the Title IX and Sexual Misconduct Policy, as applicable.

Because the university has an obligation to address reports of sexual assault, dating violence, domestic violence, and stalking, the university may use party admissions or other information learned during the AR process in any pending or subsequent formal resolution process.

Once both parties and the Title IX Coordinator sign an Alternative Resolution Agreement, the agreement is final, and the parties are bound by its terms. The allegations addressed by the agreement are considered resolved and will not be subject to further investigation, adjudication, remediation, or discipline by the university, except as otherwise provided in the agreement itself, absent a showing that a party induced the agreement by fraud, misrepresentation, or other misconduct or where required to avoid a manifest injustice to either party or to the university. A signed Alternative Resolution Agreement is not subject to appeal.

The university may also investigate and discipline a party alleged to have breached an Alternative Resolution Agreement. A breach of the agreement will result in a referral to the Office of Student Conduct for a violation of the Code of Conduct policy of "Failure to Comply with the Directive of a University Official" in addition to any other applicable university policies.

In most cases, the Alternative Resolution process will be completed within thirty (30) calendar days of receiving the written request. The university, at its discretion, may extend this timeframe for good cause.

Alleged violations of an Alternative Resolution Agreement, or allegations that the agreement was induced by fraud, misrepresentation, or any other misconduct, should be reported to the Title IX Coordinator, and may be subject to review, which may lead to disciplinary action.

The participation of a respondent in a prior AR process will generally not be considered relevant or taken into account in the resolution of a subsequent, unrelated complaint filed by a different complainant unless the allegations are indicative of pattern of behavior.

Formal Investigation

Timing and Extensions

If the Title IX Coordinator (or designee) determines that a full investigation is necessary, the university will conduct a prompt, fair, and impartial investigation. Investigations regarding potential violations of this policy are expected to be completed in a timely fashion, however, investigations (or other processes under this policy) may take longer in some circumstances, including but not limited to the complexity of the case, the number of parties involved, the availability and cooperation of parties and witnesses, the university calendar, or instances where the university investigation may compromise a law enforcement investigation. complainants and respondents will be notified of any extensions of time or change in timelines throughout the processes in this policy. (Note: The university may delay its investigation to allow evidence collection by law enforcement, however, this policy and the procedures herein are separate and distinct from any criminal investigation or legal proceeding.)

Advisors

The complainant and respondent each may have an advisor or support person of their choosing present throughout the process. This person may be a friend, family member, faculty or staff member, or an attorney. The university has designated and trained individuals who may serve in this capacity and their information will be shared with both parties upon request.

The role of the advisor is limited in scope. Complainants and respondents are expected to ask and respond to questions each on their own. An advisor may not answer for, speak for, or represent the advisee. The advisor may consult with their advisee quietly or in writing during hearings and meetings, or outside during breaks.

If complainants and respondents will be accompanied by an adviser, they should inform the investigative team in advance so they may make accommodations for the meeting location. To ensure timely completion of investigations, these procedures and timeline will not be extended due to the unavailability of an advisor. The university reserves the right to proceed with any meetings regardless of the availability of an advisor.

There is one instance and one instance only, where an advisor will speak on behalf of their advisee. Should a formal proceeding continue to a hearing, advisors are required to conduct the cross-examination of the other party and witnesses on behalf of their advisee. A party cannot participate in a hearing without an advisor; if a party does not have an advisor the university will provide one for the party without fee or charge, for the sole purpose of conducting cross-examination during the hearing. Further, even if a party does not participate, a hearing advisor will be appointed on their behalf. Strict adherence to the hearing rules of decorum is required and failure to adhere will result in the removal of the advisor from the hearing process.

Investigation

When a formal complaint is filed, the Title IX Coordinator (or designee) will open a case file and the investigation will proceed as follows:

Determine the identity of the complainant (if not already known), the respondent (if not already known), any witnesses, and contact information for all involved.
Specify prohibited conduct within this policy to have allegedly occurred.
Send a Notice of Investigation and Potential Violation to the respondent and complainant.
- Note: Notices will be sent via e-mail to recipients university provided e-mail address. Per university policy, it is expected that e-mail is checked consistently and in a timely manner.
Investigators will review statements obtained from all parties, conduct interviews with both the complainant and respondent, conduct witness interviews, and identify, locate, and review other pertinent information.
The complainant and respondent will have the same opportunity to identify witnesses for the Investigators to interview. Investigators reserve the right to forgo interviewing a witness if it is determined that the person does not have information that is relevant to the investigation. Investigators will not interview character witnesses if they have no pertinent factual information about the incident. Additionally, letters or artifacts addressing character will not be included into the record for consideration.

Dismissal

The university, through the Title IX Coordinator, can dismiss the formal complaint for one of the following:

Mandatory Dismissal – The university shall dismiss a formal complaint, or any allegations therein, when the alleged conduct:
- Does not constitute sexual harassment under Title IX;
- Did not occur in the university’s education program or activity;
- Did not occur against a person in the United States; or
- The complainant was not participating in or attempting to participate in a university education program or activity at the time the formal complaint was filed.

Discretionary Dismissal – The university may dismiss the formal complaint, or any allegations therein, when:
- Complainant withdraws the formal complaint in writing to the Title IX Coordinator;
- Respondent is no longer enrolled or employed by Elon; or
- Circumstances prevent Elon from gathering sufficient evidence to reach a determination.

Once the university has determined that the complaint should be dismissed, a written notice of dismissal is sent to the complainant, respondent, and their advisors, detailing the reason for dismissal, and if applicable, any other policies that may be pursued. If a formal complaint is dismissed pursuant to the Title IX Process and Procedures, it may still be pursued through the Sexual Misconduct Policy or any other university policy, if applicable. The complainant and respondent have the right to appeal any dismissal. For detailed information on the Appeal process, please see the Appeals section.

Reports

Prior to completing an Investigative Report, the complainant and respondent and their advisors will be provided with all information and evidence gathered during the investigation, including the evidence upon which the university does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source. The complainant and respondent will be given 10 days to review and submit a written response to the Investigators for consideration prior to compiling the final Investigative Report.

The Investigators will compile an Investigative Report that fairly summarizes relevant evidence and distribute to the parties and their advisors in electronic format or hard copy. The complainant and respondent will be given 10 days to review and submit a written response to the Investigative Report.

Hearing

A Hearing Officer will conduct a live, recorded hearing utilizing video conferencing for each party. No party or their advisor will be in-person in front of the Hearing Officer. Any party participating in the hearing are required to be present on the video conference via video and audio.

Prior to the hearing, the Hearing Officer will review the Investigative Report. During the hearing, the Hearing Officer may ask questions of the parties and witnesses. The Hearing Officer will then permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including question that challenging credibility. The Hearing Officer may have additional questions for each party prior to deliberation.

Only relevant questions may be asked to a party or witness. Before a party or witness answers a question, the Hearing Officer will determine if the question is relevant and explain the decision to exclude any irrelevant question. The following questions are not relevant:

Questions about a complainant’s sexual predisposition or prior sexual behavior, unless they are offered to prove that someone other than the respondent committed the alleged conduct or concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent; and

Questions that seek the disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.

Parties and witnesses are strongly encouraged to participate in the hearing in order to allow the Hearing Officer the opportunity to fully evaluate and weigh all relevant evidence. If a party or witnesses chooses not to participate in the hearing or answer relevant questions during cross-examination, the Hearing Officer may still consider statements and evidence provided by that party or witness during the investigation and/or hearing that the Hearing Officer deems relevant and reliable. The Hearing Officer may not draw any inference about the determination of responsibility solely from a party’s or witness’s absence from the hearing or refusal to answer cross-examination or other questions.

After questioning is complete, each party will then be given an opportunity to provide a closing statement. Upon completion of closing statements, the hearing will conclude for deliberation by the Hearing Officer.

Notice of Outcome

The Hearing Officer will render a decision and concurrently send the parties a written Notice of Outcome within 15 days of the hearing’s conclusion. The Hearing Officer may extend this timeframe for good cause.

The Notice of Outcome will include the allegations, the procedural steps taken in the matter, the determination of responsibility for each potential policy violation, rationale, and findings of fact to support the determination, outcomes including any disciplinary sanctions (if applicable), and procedures for appeal.

If a respondent is found responsible for violating this policy the outcome will be sent to the appropriate university official(s) for action.

Implementation of those outcomes by university officials will be communicated back to the Title IX Coordinator.

Note – Sanctions for faculty will be determined through the process outlined within section A22h (Implementation of Sanctions) of the Faculty Handbook. Sanctions for staff will be determined through processes outlined with 8-2 and 10-11 within the Staff Manual.

The complainant and respondent have the right to appeal both the findings and outcomes (when applicable). For detailed information on the Appeal process, please see the Appeals section.

Other

Individuals experiencing harassment or discrimination as defined under federal Title IX regulations also always have the right to file a formal grievance with government authorities:

Office for Civil Rights (OCR)

U.S. Department of Education

400 Maryland Avenue, SW Washington, DC 20202-1475

Telephone: (202) 453 6020

Email: OCR.DC@ed.gov Web: http://www.ed.gov/ocr

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Title IX and Sexual Misconduct Policy