Title IX Investigation and Adjudication Process and Procedures

General

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.

Definitions of Policy Violations:

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 Contact – Non-Consensual Sexual Contact is any intentional sexual contact, 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 resolution 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.

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 anydismissal. For detailed information on the Appeal process, please see the Appeals section.

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.)

Investigation

When a formal complaint is filed, the Title IX Coordinator (or designee) will initiate the investigation and 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 Allegations to the respondent and complainant.
  • Note: Notices will be sent via e-mail to recipient’s university provided e-mail address. Per university policy, it is expected that e-mail is checked consistently and in a timely manner.
• Investigators will conduct separate 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, statements, letters or artifacts addressing character will not be included into the record for consideration.

Preliminary Reports

Prior to completing a Final Investigative Report, the complainant and respondent and their advisors will be provided with a Preliminary Report, which will summarize 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 calendar days to review and submit a written response to the Preliminary Report. If there is any need for further investigation based on the parties’ responses, the Investigators will continue to investigate and may provide a supplemental Preliminary Report to the parties with an additional opportunity to respond.

Final Reports

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

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 questions that challenge 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 calendar 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.