Sexual Misconduct Investigation and Adjudication Process and Procedures

General

All formal complaints received by Elon University that allege prohibited sexual misconduct that does not fall within the scope of sexual harassment as defined by Title IX will be addressed through the following process and procedures.

Definitions of Policy Violations

Sex/Gender-Based Harassment – Sex/Gender-Based Harassment is unwelcome, sexual, sex-based and/or gender-based verbal, written, online and/or physical conduct.

Sexual harassment can take the form of quid pro quo harassment, retaliatory harassment and/or creates a hostile environment.

• A hostile environment is created when sexual harassment is sufficiently severe, persistent, or pervasive, or objectively offensive that it unreasonably interferes with, denies, or limits someone’s ability to participate in, or benefit from, the university’s educational and/or employment, social and/or residential program.
  • The determination of whether an environment is “hostile” must be based on the totality of the circumstances. These circumstances include, but are not limited to, the following:
    • The frequency of the conduct
    • The nature and severity of the conduct
    • Whether the conduct was physically threatening
    • Whether the conduct was humiliating
    • The effect of the conduct on the alleged complainant’s mental or emotional state
    • Whether the conduct was directed at more than one person
    • Whether the conduct arose in the context of other discriminatory conduct
    • Whether the conduct unreasonably interfered with the complainant’s educational or work performance
• Quid Pro Quo Harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by a person having power or authority over another or when submission to such sexual conduct is made either explicitly or implicitly a term or condition of rating or evaluating an individual’s educational or employment progress, development, or performance. This includes when submission to such conduct would be a condition for access to receiving the benefits of any educational or employment program.

Non-Consensual Sexual Contact – Non-Consensual Sexual Contact is any intentional sexual touching, however slight, with any object, by a person upon another person, that is without consent.

Sexual Contact 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 intercourse, 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), no matter how slight the penetration or contact.

Sexual Exploitation – Sexual Exploitation occurs when one person takes non- consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses. Examples include, but are not limited to:

• Invasion of sexual privacy;
• Prostituting another person;
• Non-consensual digital, video or audio recording of nudity or sexual activity;
• Unauthorized sharing or distribution of digital, video or audio recording of nudity or sexual activity;
• Engaging in voyeurism;
• Knowingly exposing someone to or transmitting an STI, STD, HIV, or other infectious disease or virus to another person through engaging in sexual activity;
• Intentionally or recklessly exposing one’s genitals in non-consensual circumstances or inducing another to expose their genitals in non-consensual circumstances;
• Sexually-based stalking and/or bullying may also be forms of sexual exploitation.

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 or gender that is unwelcome and would cause a reasonable person to feel fear. 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.

Note: Conduct which violates any other university policy may fall under this policy when it is allegedly motivated by actual or perceived sex or gender.

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 determined otherwise, and complainants are presumed to be reporting in good faith. False reports are a violation of the Code of Conduct and will be referred to the Office of Student Conduct.

Formal Complaint

When prohibited conduct within the scope of the Sexual Misconduct policy is alleged, the following 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 investigation is not pursued.

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

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 it is determined that a formal investigation is necessary, 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, including a determination on whether the prohibited conduct falls under Federal Title IX Regulations. If it does not, the case will be dismissed from Title IX procedures and be completed under the decision-making process for non-Title IX Sexual Misconduct Cases. If the prohibited conduct does fall within the scope of Federal Title IX regulations the investigation and decision-making process will proceed as outlined above in the Title IX Offenses and Procedures section.
• A Notice of Investigation and Potential Violation will be sent 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.

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 Title IX Coordinator 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 Title IX Coordinator.

Notice of Outcome

Decisions are typically rendered by the Title IX Coordinator within 15 calendar days from receipt of the full Investigative Report. The Title IX Coordinator will inform the complainant and respondent of the determination by issuing a Notice of Outcome to both parties concurrently. The Notice of Outcome will include the determination of responsibility for each potential policy violation, rationale, and outcomes (if applicable).

If a respondent is found responsible for violating this policy, the outcome will be sent to the appropriate university official(s) for action on the outcomes. Implementation of those outcomes by university officials will be communicated back to the Title IX Coordinator.

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.