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Title: Title IX Sexual Harassment/Sexual Assault Policy
Subject: Equity and Diversity
Policy No: SL:2020:01
Issuing Authority: President
Responsible Officer: Associate Vice President and Title IX Coordinator of the Division of Diversity, Equity and Inclusion, Office of Student Equity and Compliance
Date Adopted: 8/13/2020
Last Revision: 0308/3125/2021
Last Reviewed: 0308/3125/2021
Students/Employees of the Rowan University community have the right to access and benefit from the University’s Education Programs or Activities, free from any form of Sexual Harassment/Sexual Assault. The University does not tolerate Sexual Harassment/Sexual Assault of any kind. This policy has been developed to reaffirm these principles and to provide recourse for those individuals whose rights have been violated.
Title IX of the Education Amendments of 1972 is a federal law that prohibits sex discrimination (which throughout this policy includes discrimination based on sex, sexual orientation and gender identity) in the University's programs and activities. It reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” As a recipient of Federal financial assistance, Rowan University has jurisdiction over complaints alleging sex discrimination, including Sexual Harassment/Sexual Assault.
This policy addresses allegations of sexual misconduct that meet the definition of Title IX Sexual Harassment/Sexual Assault, which encompasses all of the prohibited conduct defined below that occurs on the basis of sex, sexual orientation and/or gender identity, and meets the following requirements: (i) occurs within the United States; (ii) occurs within the University’s Education Program or Activity; and (iii) at the time of the filing of the Formal Complaint, the Complainant was participating in, or attempting to participate in, the Education Program or Activity.
- Dismissal of a Formal Complaint
- The Title IX Coordinator must dismiss the Formal Complaint, or allegations therein, at any time, if it is determined that the conduct alleged: (i) would not constitute Sexual Harassment/Sexual Assault, even if proved; (ii) did not occur while the Complainant was participating in, or attempting to participate in, the University’s Education Program or Activity; or (iii) did not occur against a person in the United States. Such a dismissal does not preclude the University from taking action under another provision of the University’s policies.
- The Title IX Coordinator, in his/her discretion, may also dismiss the Formal Complaint, or allegations therein, if at any time during the Grievance Process, the following occurs: (1) the Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint, or any allegations therein; (ii) the Respondent is no longer enrolled or employed by the University; or (iii) specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.
- Written notice of any required or permitted dismissal, including any reason(s) therefore, shall be promptly sent to the parties simultaneously. This notice will also advise the parties of their appeal rights in accordance with this policy.
- Consolidation of Formal Complaints – Formal Complaints as to allegations of Sexual Harassment/Sexual Assault against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, may be consolidated where the allegations of Sexual Harassment/Sexual Assault arise out of the same facts or circumstances.
- Notice of Allegations – Upon receipt of a Formal Complaint, the Title IX Coordinator, or Designee, will provide written notice to the known parties, which includes:
- A link to the University’s Title IX Sexual Harassment/Sexual Assault Policy, so the parties can review the University’s Grievance Process, including the Informal Resolution Process;
- Sufficient detail, of what is known at the time, related to the allegations of Sexual Harassment/Sexual Assault, including details such as the identities of the parties involved, the conduct allegedly constituting Sexual Harassment/Sexual Assault, and the date(s) and location(s) of the alleged incident(s);
- A statement that the Respondent is presumed not responsible for the alleged conduct, and that a determination regarding responsibility will be made at the conclusion of the Grievance Process;
- Information that the parties may have an Advisor of their choice, who may be, but is not required to be, an attorney;
- A statement that the parties and their Advisors will have the right to inspect and review evidence during the investigation of a Formal Complaint; and
- Reference to the provisions within the Title IX Sexual Harassment/Sexual Assault Policy that prohibits knowingly making False Reports or False Statements.
Such notice will be provided to the parties within a reasonable period of time prior to conducting any investigatory interview, so that the parties have time to prepare and meaningfully respond.
If, in the course of an investigation, the University decides to investigate allegations about the Complainant or Respondent that were not included in the initial notice, the University will provide notice of the additional allegations to be investigated, to the known parties.
- Formal Resolution Process
- Written Notice of Meetings, Interviews, Hearings – Written notice of the date, time, location, participants, and purpose of all investigative interviews, hearings, or any other meetings, will be provided to any party whose participation is invited or expected, with sufficient time for the party to prepare to participate.
- Investigation of a Formal Complaint – After notification of the allegations in the Formal Complaint has been sent, the DEI Investigator, or Designee, will promptly initiate an investigation within seven (7) calendar days. The investigation shall be completed in a reasonably prompt manner, and should be completed within ninety (90) calendar days from the time the Formal Complaint is filed.
- The investigation will include interviews of the Complainant(s), Respondent(s) and any witnesses/individuals believed to have information relevant to the allegations, as well as the collection of any relevant evidence.
- Each party is permitted to have their Advisor present during any investigatory interview, or other meeting. However, while the party has the right to communicate with their Advisor during any meeting, the Advisor does not have speaking privileges during the investigation/investigatory interviews.
- The investigator will not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional/paraprofessional acting in the professional/paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the investigator obtains that party’s voluntary, written consent to do so for a Grievance Process.
- The parties and their Advisors are not restricted from discussing the allegations under investigation for the purpose of gathering and presenting evidence to the investigator.
- During the investigation, the parties will be provided the opportunity to present witnesses, including fact and expert witnesses, and other inculpatory (evidence implying or imputing responsibility) and exculpatory (evidence exonerating responsibility) evidence.
- Investigation Report – The DEI Investigator or Designee will prepare an Investigation Report that fairly summarizes relevant evidence and preliminary findings of fact.
- Prior to an Investigation Report being prepared, all of the evidence gathered by the investigator (any evidence obtained as part of the investigation, that is related to the allegations in the Formal Complaint, including information that will not be relied upon in reaching a determination and without regard to the source of the information), will be shared with the parties and their Advisors (if any) simultaneously. Names and other identifying information of individuals may be redacted if required by the Family Educational Rights and Privacy Act ("FERPA"). The parties and their Advisors must keep the evidence confidential and not share it with anyone, except for the purpose of gathering and presenting relevant evidence to provide to the investigator within the 10-day period. Failure to abide by this confidentiality obligation may subject a party or Advisor to disciplinary action by the University.
- Each party may respond to the investigator in writing, within ten (10) calendar days of receipt of the evidence.
- After reviewing any timely submitted responses by the parties, the investigator will prepare an Investigation Report. The Investigation Report will fairly summarize the relevant evidence and findings of fact.
- The parties and their Advisors (if any) will be simultaneously provided with an electronic or hard copy of the final Investigation Report. The parties may choose to provide a written response to the Investigation Report, which must be submitted to the investigator within ten (10) calendar days of receipt. The parties and their Advisors (if any) will be provided with an electronic or hard copy of the other party's written response, if any, to the Investigation Report.
- A copy of the Investigation Report and any written response(es) will then be forwarded to the Office of Community Standards, for the scheduling of a Hearing.
- Hearing – A Hearing should be scheduled by the Office of Community Standards no later than thirty (30) calendar days after receipt of the final Investigation Report.
- Each party may have one Advisor attend the Hearing, who will be responsible for conducting cross-examination and questioning on behalf of the party. Prior to the scheduled Hearing, each party will be asked to identify their Advisor who will be present for the Hearing. If a party does not have an Advisor, the University will provide one to them.
- Prior to the scheduled Hearing, the parties will be provided an opportunity to make a request for witnesses to participate in the Hearing on their behalf. The parties must notify the AVP of Civic Involvement, or Designee, of any witnesses at least seven (7) calendar days prior to the Hearing. The parties will also be advised of potential Hearing panelists, and provided the opportunity to object to a panelist based on a conflict of interest.
- If the matter to be heard had originally attempted, but was unsuccessful at, the Informal Resolution Process, any information related to the Informal Resolution Process will not be admissible during the Hearing. In addition, the individual who facilitated the Informal Resolution Process may not be called as a witness at the Hearing.
- A matter will be heard by a Hearing Panel consisting of three (3) voting members, one of whom will be the Hearing Chair. The Hearing Chair will exercise control over the manner in which the Hearing is conducted, including being responsible for managing the cross-examination and questioning process in accordance with applicable law/policy. The decisions regarding responsibility and any Disciplinary Sanctions, if applicable, will be determined by a majority vote.
- Hearings may be conducted with all parties physically present in the same geographic location or, at the University’s discretion, any or all parties, witnesses, and other participants may appear at the Hearing virtually, with technology enabling participants simultaneously to see and hear each other. For Hearings occurring in-person, at the request of a party, the University will provide for the Hearing to occur with the parties located in separate rooms with technology enabling the Hearing Panel, parties and their Advisors to simultaneously see and hear the party or the witness answering questions.
- Both/all parties shall be permitted to be present during testimony of all witnesses and presentation of the evidence throughout the Hearing.
- Hearing Panel members will be provided access to the final Investigation Report and evidence at least twenty-four (24) hours prior to the Hearing. However, while the Hearing Panel members may consider the final Investigation Report as evidence, the Hearing Panel will function as an independent adjudicating body and will not be bound by any findings made by the investigator.
- At the beginning of the Hearing, the Hearing Chair, along with the other members of the Hearing Panel, will enter their names into the recording. The parties and their Advisors will also enter their names into the recording.
- The Hearing Chair will ask if the Respondent has received the original notice of allegation(s) letter, and understands the nature of the charges.
- The Hearing Chair will then confirm that the Hearing Panel members and the parties have received copies of the Formal Complaint, notice of allegation(s) letter, list of witnesses, along with the final Investigation Report.
- The remainder of the Hearing will customarily proceed in the following order:
- Opening statement from the Complainant;
- Opening statement from the Respondent;
- Questioning of the investigator – the Hearing Panel and parties’ Advisors will have the opportunity to question the investigator;
- Questioning of Complainant by Hearing Panel;
- Cross-examination of Complainant by Respondent’s Advisor;
- Questioning of Respondent by Hearing Panel;
- Cross-examination of Respondent by Complainant’s Advisor;
- Questioning of witnesses – each witness will be called one at a time, questioned separately, and dismissed at the conclusion of their testimony. Each witness may be questioned by the Hearing Panel, as well as the parties’ Advisors;
- Final questions of the Complainant(s)/Respondent(s) from the Hearing Panel;
- Respondent’s final statement; and
- Complainant's final statement.
- Each party’s Advisor will be permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Cross-examination conducted by the Advisors must be done directly, orally and in real time.
- Only relevant cross-examination and other questions may be asked of a party or witness. Before a Complainant, Respondent, or witness answers a cross-examination or other question, the Hearing Chair will first determine whether the question is relevant, and explain any decision to exclude a question as not relevant.
- Questions and evidence about the Complainant's sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence: (1) are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or (2) concern specific incidents of the Complainant's prior sexual behavior with respect to the Respondent, and are offered to prove Consent.
- The presentation of evidence by a party (including opening statements), questions directed to participants, and final statements may be constrained to specified time periods when cumulative or as otherwise deemed appropriate by the Hearing Chair.
- If a party or witness does not submit to cross-examination at the Hearing, the Hearing Panel may not rely on any statement of that party or witness in reaching a determination regarding responsibility. In addition, the The Hearing Panel may not draw an inference about the determination regarding responsibility based solely on a party or witness's absence from the Hearing, or refusal to answer cross-examination or other questions.
- Formal rules of evidence that are applicable to civil and criminal trials are not applicable to the Hearing.
- All Hearings will be closed to the public, and the only individuals who are permitted to attend are the Complainant(s), Respondent(s), their Advisors, the Hearing Panel, and any witnesses called to provide testimony. In addition, University administrators (i.e., legal counsel) may also attend the Hearing with prior approval from the Hearing Chair.
- All Hearings will be audio and/or video recorded. Upon request, a digital file will be made available to the parties for inspection and review.
- Written Determination Regarding Responsibility/Disciplinary Sanctions – Within fourteen (14) calendar days following the Hearing, the decision-maker(s) will issue a written determination regarding responsibility, and Disciplinary Sanctions and/or Remedies (if applicable).
- If a Respondent has a record of prior disciplinary violations by the University, unless otherwise permissible, this information will not be considered by the Hearing Panel until after a determination of responsibility has been made, to assist the Hearing Panel in determining appropriate Disciplinary Sanctions.
- The written determination will include:
- A summary of the allegations of Sexual Harassment/Sexual Assault;
- A description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notices to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, evidence considered, and hearings held;
- Findings of fact supporting the determination;
- Conclusions regarding the application of the University’s Title IX Sexual Harassment/Sexual Assault Policy to the facts;
- A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any Disciplinary Sanction(s) the University will impose on the Respondent, and whether Remedies designed to restore or preserve equal access to the University’s Education Program or Activity will be provided by the University to the Complainant; and
- Information regarding the University’s process and permissible bases for the Complainant and Respondent to appeal.
- The University will provide the written determination to the parties simultaneously.
- The determination regarding responsibility becomes final either on the date that the University provides the parties with the written determination of the result of an appeal, if any appeal is filed; or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
- Informal Resolution Process