Regulation on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence - Interim
|Title||Regulation on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence|
Effective January 1, 2016, and as revised August 19, 2016, this Regulation replaces the following:
Interim Regulation on Responding to Complaints of Sexual Harassment, Sexual Misconduct and/or Discrimination on the Basis of Sex;
Sexual Harassment, Discrimination and Conflicts of Interest Policies and Procedures of East Carolina University; and
Regulation Addressing Sexual Assault, Domestic and Dating Violence and Stalking as required by the Violence Against Women Act Amendments to the Clery Act – Interim.
Revised August 18, 2017.
Office for Equity and Diversity: 328-6804;
Human Resources, Employee Relations: 328-9847;
ECU Police Department: 328-6787;
ECU Cares: 737-5555.
East Carolina University, a constituent institution of the University of North Carolina, strives to be a national model for student success, public service and regional transformation and is built upon tolerance, civility, and mutual respect. Consistent with these values, the University is committed to providing a safe and non-discriminatory learning, living, and working environment for all members of the University community. The University prohibits unlawful discrimination on the basis of sex or gender in any of its education or employment programs and activities. To that end, this Regulation prohibits specific forms of behavior that violate Title IX of the Education Amendments of 1972 (“Title IX”); Title VII of the Civil Rights Act of 1964 (“Title VII”). Such behavior also requires the University to fulfill certain obligations under the Violence Against Women Reauthorization Act of 2013 (“VAWA”) and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery Act”).
1.1. Prohibited Conduct. The University prohibits Sexual Assault, Offensive Touching, Sexual Exploitation, Dating and Domestic Violence, Stalking, Sexual or Gender-Based Harassment, Complicity in the commission of any act prohibited by this Regulation, and Retaliation against any person for reporting an allegation of prohibited conduct under this Regulation or participation in any investigation or proceeding under this Regulation (collectively, “Prohibited Conduct”). These forms of Prohibited Conduct may be unlawful, undermine the character and purpose of the University, and will not be tolerated.
1.2. Purpose. The University adopts this Regulation with a commitment to: (1) eliminating, preventing, and addressing the effects of Prohibited Conduct; (2) fostering the University’s community of trust, in which Prohibited Conduct is not tolerated; (3) cultivating a climate where all individuals are well-informed and supported in reporting Prohibited Conduct; (4) providing a fair and impartial process for all parties; and (5) identifying the standards by which violations of this Regulation will be evaluated and disciplinary action may be imposed. Employees or Students who violate this Regulation may face disciplinary action up to and including termination or expulsion. The University will take prompt and equitable action to eliminate Prohibited Conduct, prevent its recurrence, and remedy its effects. The University conducts ongoing prevention, awareness, and training programs for Employees and Students to facilitate the goals of this Regulation. Every member of the University community should foster an environment free of Prohibited Conduct. All members of the University community are encouraged to take reasonable and prudent actions to prevent or stop an act of Prohibited Conduct. The University will support and assist community members who take such actions.
1.3. Application. This Regulation applies to all reports of Prohibited Conduct occurring on or after the effective date of this Regulation. Where the date of the Prohibited Conduct precedes the effective date of this Regulation, the definitions of misconduct in existence at the time of the alleged incident(s) will be used. The procedures under this Regulation, however, will be used to investigate and resolve all reports made on or after the effective date of this Regulation, regardless of when the incident(s) occurred.
2. To Whom This Regulation Applies
This Regulation applies to Students who are registered or enrolled for credit- or non-credit-bearing coursework (“Students”); University employees, consisting of all faculty, and staff, (“Employees”); and contractors, vendors, visitors, volunteers, guests or other third parties (“Third Parties”) such as Student applicants.
2.1. Location of Prohibited Conduct. This Regulation pertains to acts of Prohibited Conduct committed by or against Students, Employees, and Third Parties when:
2.1.1. the conduct occurs on property owned or controlled by the University (“University property”);
2.1.2. the conduct occurs in the context of a University employment or education program or activity, including, but not limited to, University-sponsored study abroad, research, on-line, or internship programs; or
2.1.3. the conduct occurs outside the context of a University employment or education program or activity, but has continuing adverse effects on or creates a hostile environment for Students, Employees or Third Parties while on University property or in any University employment or education program or activity.
2.2. Conflicting Provisions: This regulation supersedes any conflicting provisions contained in previous regulations, including but not limited to the “Interim Regulation on Responding to Complaints of Sexual Harassment, Sexual Misconduct and/or Discrimination on the Basis of Sex”, the “Sexual Harassment, Discrimination and Conflicts of Interest Policies and Procedures of East Carolina University”, and the “Regulation Addressing Sexual Assault, Domestic and Dating Violence and Stalking as required by the Violence Against Women Act Amendments to the Clery Act – Interim”. Where Prohibited Conduct violates this Regulation and also violates another Regulation, the University’s response will be governed by the procedures referenced in this Regulation. Questions about which Regulation applies in a specific instance should be directed to the University’s Title IX Coordinator at (252) 328-6804. Note that the University’s Office for Equity and Diversity administers a separate regulation that addresses other forms of discrimination and harassment: “Resolving Allegations of Discrimination.”
3. Applicable Procedures.
The specific procedures for reporting, investigating, and resolving Prohibited Conduct are based upon the nature of the Respondent’s relationship to the University (Student, Employee, or Third Party). Each set of procedures referenced below is guided by the same principles of fairness and respect for Complainants and Respondents. “Complainant” means the Student, Employee or Third Party who presents as a victim of any Prohibited Conduct under this Regulation, regardless of whether that person makes a report or seeks action under this Regulation. “Respondent” means the Student, Employee or Third Party who has been accused of violating this Regulation.
3.1. Disciplinary Action. A Student or Employee determined by the University to have committed an act of Prohibited Conduct is subject to disciplinary action, up to and including expulsion and separation from the University. Third Parties who commit Prohibited Conduct may have their relationships with the University terminated and/or their privileges of being on University premises withdrawn.
3.2. Procedures. The procedures referenced below provide for prompt and equitable response to reports of Prohibited Conduct. The procedures designate specific timeframes for major stages of the process and provide for thorough and impartial investigations that afford all parties notice and an opportunity to present witnesses and evidence, to view the information that will be used in determining whether a Regulation violation has occurred, and an opportunity to pose questions to be answered by parties and other witnesses. The University applies the Preponderance of the Evidence standard when determining whether this Regulation has been violated. Meeting the preponderance of evidence standard constitutes a conclusion it is more likely than not that the alleged conduct occurred. This standard will be used to evaluate the evidence for purposes of making findings and drawing conclusions for an investigation conducted under this regulation.
3.2.1. Where the Respondent is a Student. The procedures for responding to reports of Prohibited Conduct committed by Students are detailed in Appendix A: Investigating and Resolving Reports of Sexual and Gender- Based Harassment and Other Forms of Interpersonal Violence Committed by Students.
3.2.2. Where the Respondent is an Employee. The procedures for responding to reports of Prohibited Conduct committed by Employees, including faculty, are detailed in Appendix B: Investigating and Resolving Reports of Sexual and Gender- Based Harassment and Other Forms of Interpersonal Violence Committed by Employees.
3.2.3. Where the Respondent is Both a Student and an Employee.
220.127.116.11. Appendix A, the Student-Respondent procedures, will apply if the Respondent is a full-time Student but not a full-time Employee;
18.104.22.168. Appendix B, the Employee-Respondent procedures, will apply if the Respondent is a full-time Employee but not a full-time Student; or
22.214.171.124. If there is a question as to the predominant role of the Respondent, the University’s Title IX Coordinator will determine which of the procedures applies based on the facts and circumstances (such as which role predominates in the context of the Prohibited Conduct). Further, where a Respondent is both a Student and an Employee, the Respondent may be subject to any of the sanctions applicable to Students or Employees.
3.2.4. Where the Respondent is a Third Party. The University’s ability to take corrective action against a Third Party will be determined by the nature of the relationship of the Third Party to the University. The Title IX Coordinator will determine the appropriate manner of resolution consistent with the University’s commitment to a prompt and equitable process consistent with federal law, and this Regulation. Reports of Prohibited Conduct by student organizations will be handled according to the procedures outlined in Appendix A and when relevant, the Student Code of Conduct.
4. Title IX Coordinator.
Under Title IX:
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.
4.1. Role of the Title IX Coordinator. The Title IX Coordinator is charged with monitoring the University’s compliance with Title IX; ensuring appropriate education and training; coordinating the University’s investigation, response, and resolution of all reports under this Regulation; and ensuring appropriate actions to eliminate Prohibited Conduct, prevent its recurrence, and remedy its effects. The Title IX Coordinator has the authority to modify the timelines in any existing University process in order to ensure a prompt and equitable resolution to a complaint, in compliance with applicable law or regulations. The Title IX Coordinator is available to meet with any Student, Employee, or Third Party to discuss this Regulation or the accompanying procedures. The University has also designated Deputy Title IX Coordinators who may assist the Title IX Coordinator in the discharge of these responsibilities. The Title IX Coordinator and Deputy Title IX Coordinators receive appropriate training to discharge their responsibilities.
4.2. Clery Coordination. The East Carolina University Police Department (ECUPD) maintains the campus crime log and is responsible for collecting and analyzing the statistics that are reported in the Annual Security and Fire Safety Report. The ECU Police Department will record and report on the Annual Security and Fire Safety Report statistics related to reports of sex offenses, domestic violence, dating violence, and stalking. The definitions of these offenses for the purpose of reporting statistics are defined by the Uniform Crime Reporting National Incident-Based Reporting System, the Federal Bureau of Investigation definitions, and the Violence Against Women Act. The Title IX Coordinator coordinates with the ECU Police Department through multiple ways, including supplying relevant data for the publication of the Annual Security Report.
4.3. Contact for Concerns. Concerns about the University’s application of Title IX, VAWA, and the Clery Act, may be addressed to the Title IX Coordinator; the United States Department of Education, Clery Act Compliance Division (at firstname.lastname@example.org); the United States Department of Education, Office for Civil Rights (at OCR@ed.gov or (800) 421-3481); and/or the Equal Employment Opportunity Commission (at email@example.com or (800) 669-4000).
4.3.1. The Title IX Coordinator can be contacted by telephone, email, or in person during regular office hours: LaKesha Alston Forbes, Title IX Coordinator. Old Cafeteria Building, Suite G-406. firstname.lastname@example.org. (252) 328-6804 (office). http://www.ecu.edu/cs-acad/titleix/
5. Resources and Reporting Options.
The University offers a wide range of resources for all Students and Employees to provide support and guidance in response to any incident of Prohibited Conduct. For comprehensive information on accessing University and community resources, including emergency and ongoing assistance; health, mental health, and victim-advocacy services; options for reporting Prohibited Conduct to the University and/or law enforcement; and available support with academics, housing, and employment:
5.3. Third Parties should contact the Title IX Coordinator to discuss available University and/or community resources and reasonably available assistance.
6. Remedial and Protective Measures.
The University offers a wide range of resources for Students and Employees, whether as Complainants or Respondents, to provide support and guidance throughout the initiation, investigation, and resolution of a report of Prohibited Conduct. The University will offer reasonable and appropriate accommodations and protective measures if requested and reasonably available, regardless of whether or not the event is reported to ECU Police or other law enforcement agencies and regardless of whether a complaining party desires to participate in University disciplinary proceedings or seek criminal charges. The goal of such measures is to facilitate the Complainant’s continued access to University employment or education programs and activities. These measures may be both remedial (designed to address a Complainant’s safety and well-being and continued access to educational opportunities) or protective (involving action involving a Respondent). Accommodations and protective measures, which may be temporary or permanent, may include but are not limited to: no-contact directives, campus living modifications, transportation and parking modifications, academic modifications and support, work schedule modifications, investigatory placement, administrative suspension, and suspension from employment (with or without pay).
6.1. The University will maintain the privacy of any accommodations and protective measures provided under this Regulation to the extent practicable and will promptly address any violation of such measures. The Dean of Students Office and/or the Vice Chancellor with supervisory responsibilities has the discretion to impose and/or modify any accommodation or protective measure based on all available information and in consultation with the Title IX Coordinator. The Title IX Coordinator is available to meet with a Complainant or Respondent to address any concerns about the provision of interim measures.
6.2. The University will provide reasonable accommodations or protective measures to Third Parties as appropriate and available, taking into account the role of the Third Party and the nature of any contractual relationship with the University.
7. Privacy and Confidentiality.
The University is committed to protecting the privacy of all individuals involved in the investigation and resolution of a report under this Regulation to the extent allowed by law. The University also is committed to providing assistance to help Students, Employees and Third Parties make informed choices. With respect to any report under this Regulation, the University will make reasonable efforts to protect the privacy of participants, in accordance with applicable state and federal law, while balancing the need to gather information to assess the report and to take steps to eliminate Prohibited Conduct, prevent its recurrence, and remedy its effects. Privacy and confidentiality have distinct meanings under this Regulation.
7.1. Privacy. Privacy means that personally identifiable information related to a report of Prohibited Conduct will be shared with a limited circle of University Employees who “need to know” in order to assist in the assessment, investigation, and resolution of the report. All Employees who are involved in the University’s response to reports of Prohibited Conduct receive specific training and guidance about sharing and safeguarding private information in accordance with state and federal law.
7.1.1. The privacy of Student education records will be protected in accordance with the Family Educational Rights and Privacy Act (“FERPA”), as outlined in the University’s FERPA policy. The privacy of an individual’s medical and related records generally is protected by the Health Insurance Portability and Accountability Act (“HIPAA”), excepting health records protected by FERPA. Access to an Employee’s personnel records may be restricted in accordance with the North Carolina Human Resources Act, N.C. Gen. Stat. section 126-22 et seq. and the North Carolina Public Records Act, N.C. Gen. Stat. section 132-1 et seq. and the University’s record retention policy.
7.2. Confidentiality: Confidentiality exists in the context of laws that protect certain relationships, including with medical and clinical care providers (and those who provide administrative services related to the provision of medical and clinical care), mental health providers, counselors, and ordained clergy, all of whom may engage in confidential communications under the law. The University has designated individuals who have the ability to have privileged communications as “Confidential Employees”, as defined below. These resources adhere to strict standards of confidentiality, without sharing what an individual has told them other than in limited circumstances. Victim Advocates are considered confidential employees for purposes of confidentiality. These resources can provide information and other wellness services. When information is shared by an individual with a Confidential Employee or a community professional with the same legal protections, the Confidential Employee cannot reveal the information to any third party except when an applicable law or a court order requires or permits disclosure of such information. For example, information may be disclosed when: (i) the individual gives written consent for its disclosure; (ii) there is a concern that the individual will likely cause serious physical harm to self or others; or (iii) there is a legally mandated reporting requirement, regarding information concerning conduct involving suspected abuse, neglect or dependency of a juvenile (one who has not reached their eighteenth birthday and is not married, emancipated, or a member of the Armed Forces of the United States).
7.2.1. A “Confidential Employee” is (1) any Employee who is a licensed medical, clinical or mental-health professional when acting in that professional role in the provision of services to a patient (“health care providers”); and (2) any Employee providing administrative, operational and/or related support for such health care providers in their performance of such services.
126.96.36.199. Duty to Report: A Confidential Employee will not disclose information about Prohibited Conduct to the University’s Title IX Coordinator without the individual’s permission (subject to the exceptions set forth in section 7.2 of this Regulation).
7.3. A “Responsible Employee” is (1) a person designated as a supervisor of any University employee; (2) any person who is designated as a Campus Security Authority; or (3) any ECU employee responsible for coordinating or supervising clinical education experiences, practicum and/or internships. Responsible Employees must report incidents of Prohibited Conduct to the Title IX coordinator and must not attempt mediation with the Complainant and Respondent. Faculty and other ECU employees who are responsible for coordinating or supervising clinical education experiences, practicum and/or internships are considered to be Responsible Employees with respect to the students participating in those experiences, and are required to report any allegations of Prohibited Conduct that they receive relating to those students to the Title IX coordinator. The University reserves the right to take disciplinary action against a Responsible Employee, up to and including discharge from employment, who fails to report Prohibited Conduct to the Title IX Coordinator.
7.3.1. Duty to Report: A Responsible Employee is required to report to the University’s Title IX Coordinator all relevant details (obtained directly or indirectly) about an incident of Prohibited Conduct that involves a campus community member as a Complainant, Respondent, and/or witness, including dates, times, locations, and names of parties and witnesses. Responsible Employees include Resident Assistants, and Graduate Teaching Assistants, when disclosures are made to any of them in their capacities as employees. Responsible Employees are not required to report information disclosed (1) at public awareness events (e.g., “Take Back the Night,” candlelight vigils, protests, “survivor speak-outs”, or other public forums in which students may disclose incidents of Prohibited Conduct; collectively, “Public Awareness Events”), or (2) during a student’s participation as a subject in an Institutional Review Board-approved human subjects research protocol (“IRB Research”). The University may provide information about Students’ Title IX rights and about available University and community resources and support at Public Awareness Events, however, and Institutional Review Boards may, in appropriate cases, require researchers to provide such information to all Student subjects of IRB Research.
188.8.131.52. Responsibility to Report Prohibited Conduct Where Either the Complainant or the Respondent Is an Employee: Under this Regulation, supervisors, management and human resources professionals are required to report to the University’s Title IX Coordinator all relevant details about an incident of Prohibited Conduct where either the Complainant or the Respondent is an Employee. Reporting is required when such supervisors, management and human resource professionals know (by reason of a direct or indirect disclosure) or should have known of such Prohibited Conduct. For academic faculty, supervisors include department chairs, deans, and other unit administrators.
7.3.2. Training: New supervisors (including those recently promoted to supervisor status) will be required to complete responsible employee training within 90 days of their status change. All current responsible employees will be required to complete training by July 31, 2018, and every three calendar years thereafter.
7.3.3. Campus Security Authority (CSA)
184.108.40.206. Who are CSAs? ECU officials who have significant responsibility for student and campus activities are designated as Campus Security Authorities. ECU CSAs are listed in the annual security report that is published on October 1 each year on the ECU Police website. These individuals include but are not limited to officials in the Office for Equity and Diversity, the ECUPD, Office of Student Rights and Responsibilities, the Campus Living Conduct Office, any Campus Living coordinator or resident advisor, and coaches for athletic teams (excluding volunteer coaches and/or advisors for club sports). Any CSA who learns of an allegation of Prohibited Conduct must ensure that the Anonymous Crime Reporting Form is completed and submitted to the ECU Police Department.
220.127.116.11. Who are not CSAs? Faculty members who do not have any responsibility for student and campus activity beyond the classroom and clerical staff are not considered CSAs, and, therefore, are not required to complete the Anonymous Crime Reporting Form. All individuals receiving reports of crimes, are encouraged to offer to assist the reporter in completing an anonymous crime report for inclusion in the annual security report statistics. Counselors in the Center for Counseling and Student Development and medical providers in Student Health Services, are not required to report information received when they are functioning within the scope of their license, certification or religious training, and performing their official duties providing mental health counseling, medical care or religious counseling.
7.4. Confidential Resources. Consistent with the definition of Confidential Employees and licensed community professionals, there are a number of resources within the University and Greenville communities where Students and Employees can obtain confidential, trauma-informed counseling and support. These resources include the Victim Advocate (252-737-1466); and REAL Crisis Intervention (252-758-4357).
7.4.1. Students can also obtain such counseling at the Center for Counseling and Student Development. For a complete list of University and community-based confidential resources for Students, see the Resource and Reporting Guide for Students Reporting Incidents of Prohibited Conduct (A-1) and the Resource and Reporting Guide for Students Accused of Incidents of Prohibited Conduct (A-2).
7.4.2. Employees can also obtain such counseling through the Employee Assistance Program, either the Carolina Centre (252-757-0123) or the ECU Family Therapy Clinic (252-737-1415). For a complete list of University and community-based confidential resources for Employees, see the Resource and Reporting Guide for Employees Reporting Incidents of Prohibited Conduct (B-1) and the Resource and Reporting Guide for Employees Accused of Incidents of Prohibited Conduct (B-2).
There are multiple channels for reporting Prohibited Conduct. A Complainant may choose to report to the University, to law enforcement, to both, or to neither. These reporting options are not exclusive. Complainants may simultaneously pursue criminal and disciplinary action. The University will support Complainants in understanding assessing, and pursuing these options. There are certain persons on campus who must report a crime, but those reports need not identify the complainant. For instance, campus security authorities must complete an anonymous crime reporting form, which does not require the disclosure of any personally identifying information about a complaining party. Rather, it is collected so that the University can stay informed about trends, areas of particular concern and target educational needs.
8.1. Law Enforcement. Complainants have the right to notify or decline to notify law enforcement. In keeping with its commitment to taking all appropriate steps to eliminate, prevent, and remedy all Prohibited Conduct, the University urges Complainants to report Prohibited Conduct immediately to local law enforcement by contacting:
• 911 (for emergencies)
• Greenville Police Department (252) 329-4315 (for non-emergencies)
• Pitt County Sheriff’s Office (252) 902-2800 (for non-emergencies)
• ECU Police Department (252) 328-6787 (for non-emergencies)
8.1.1. Police have unique legal authority that the Title IX Coordinator lacks, including the power to seek and execute search warrants, collect forensic evidence, make arrests, and assist in seeking Emergency Protective Orders. The University will assist Complainants in notifying law enforcement if they choose to do so.
8.1.2. A University investigation with respect to Title IX is separate from a criminal investigation (into complaints alleging harassment or sexual violence that constitutes a criminal offense, such as assault, battery, rape or another form of violence or sexual violence). A Complainant can file a police report at any time, including during the duration of an investigation under this regulation. The University will assist in connecting the Complainant with the law enforcement agency of the applicable jurisdiction. The standard of evidence for conviction in criminal cases (“beyond a reasonable doubt”) is a higher standard than the University will use in a Title IX investigation (“preponderance of the evidence”). A University investigation will continue to go forward during a criminal investigation. Reporting to the police and/or the University does not end the investigatory responsibility for the University.
8.1.3. Clery Act Reporting: Pursuant to the Clery Act, the University includes statistics about certain offenses in its annual security report and provides those statistics to the United States Department of Education in a manner that does not include any personally identifying information about individuals involved in an incident. These statistics include the total number of crime reports that were “unfounded” and subsequently withheld from the crime statistics reported in the Annual Security and Fire Safety Report. Unfounded reports are those that have been fully investigated by sworn law enforcement personnel and, based on the results of this full investigation and evidence, have made formal determination that the crime report is false or baseless. Recovery of stolen property, stolen property that is of low value, the refusal of a complaining party to cooperate with law enforcement or the failure to make an arrest do not justify classifying a report as “unfounded.” The Clery Act also requires the University to issue timely warnings to the University community about certain crimes that have been reported and may continue to pose a serious or continuing threat to Students and Employees. Consistent with the Clery Act, the University withholds the names and other personally identifying information of Complainants when issuing timely warnings to the University community.
8.2. The University. The University also urges anyone who becomes aware of an incident of Prohibited Conduct to report the incident immediately to the University through the following reporting options:
8.2.1. By contacting the University’s Title IX Coordinator or any Deputy Title IX Coordinator by telephone, email, or in person during regular office hours at their respective locations, email addresses and/or phone numbers listed in Section IV, above; or
8.2.2. By contacting ECU CARES, where members of the campus community can make reports of concerning behavior on campus, including acts of Prohibited Conduct. It can be accessed online at www.ecu.edu/ecucares or by phone at (252) 737-5555.
8.2.3. There is no time limit for reporting Prohibited Conduct to the University under this Regulation; however, the University’s ability to respond may diminish over time, as evidence may erode, memories may fade, and Respondents may no longer be affiliated with the University. If the Respondent is no longer a Student or an Employee, the University will provide reasonably appropriate remedial measures, assist the Complainant in identifying external reporting options, and take reasonable steps to eliminate Prohibited Conduct, prevent its recurrence, and remedy its effects.
8.3. The Good Samaritan. The University’s “Good Samaritan” regulation is applicable to a student(s) who summon(s) medical attention for a person (including themselves) in need of medical assessment and/or treatment for a problem to which the student may have contributed or caused by participating in the use and abuse of alcohol and/or other drugs. While the University does not condone violations of the Student Code of Conduct or state and federal laws, the University may take into consideration potentially life-saving actions of students who act as “Good Samaritans” by reducing the disciplinary actions associated with alcohol and/or other drug use violations, including limited immunity to campus student conduct charges. More information about the Good Samaritan Regulation can be found on the University’s Policy Manual website.
9. Prohibited Conduct.
Conduct under this Regulation is prohibited regardless of the sex, sexual orientation and/or gender identity/expression of the Complainant or Respondent. Prohibited Conduct includes the following specifically defined forms of behavior: Sexual Assault, Offensive Touching, Sexual Exploitation, Dating and Domestic Violence, Stalking, Sexual or Gender-Based Harassment, Complicity, and Retaliation.
9.1. Sexual Violence consists of (1) Sexual Assault and/or (2) Offensive Touching.
9.1.1. Sexual Assault is the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by any sex organ (penis, vagina, or anus) of another person, without their consent.
9.1.2. Offensive Touching is the intentional sexual touching, without consent, of another person’s intimate parts (genitalia, groin, breast, buttocks, or mouth), whether clothed or unclothed, or the intentional sexual touching, without consent, of another person with one’s intimate parts, or, for purposes of sexual gratification, using force to cause another person to touch his/her own or another person’s intimate parts. Offensive touching may be committed using one’s own body, a part thereof, or an object.
9.1.3. Consent is
18.104.22.168. Informed (knowing),
22.214.171.124. Voluntary (freely given), and
126.96.36.199. Active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed- upon sexual activity.
188.8.131.52. Consent is explicit approval and permission to engage in sexual activity demonstrated by clear actions, words, or writing(s). Consent is informed, freely given, continuing, and mutually understood by all parties involved. If coercion, intimidation, threats, and/or physical force are used to obtain participation or continuing participation, then consent is not present. If the Complainant was mentally or physically incapacitated or impaired so that the Complainant could not understand the fact, nature, and/or extent of the sexual situation, there is no consent; this includes conditions due to alcohol or drug consumption, or being asleep or unconscious, or under the age of legal consent, or unable to give consent under current law. If a person becomes incapacitated after consent is given, but before the sexual act is initiated or completed, then consent is no longer valid. Silence does not necessarily constitute consent, and past consent of sexual activities does not imply ongoing future consent. Whether the Respondent has taken advantage of a position of influence over the Complainant may be a factor in determining whether consent was freely given. Consent to some form of sexual activity cannot be automatically taken as consent to any other form of sexual activity. Consent can be withdrawn at any time by either party.
184.108.40.206. Force includes (1) the use of physical violence, (2) threats, (3) intimidation, and/or (4) coercion. Consent cannot be obtained by Force.
220.127.116.11.1. Physical force means exerting physical control over another person. Examples of physical force include but are not limited to hitting, punching, slapping, kicking, restraining, choking, and brandishing or using any weapon.
18.104.22.168.2. Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples of threats include, but are not limited to, verbal statements reflecting intent to harm a person physically, to reveal private information to harm a person’s reputation, or to cause a person academic or economic harm.
22.214.171.124.3. Intimidation is an implied threat that causes reasonable fear in another person. Examples of intimidation include, but are not limited to: destroying property, brandishing a weapon, blocking an exit to cause fear. A person’s physical size, alone, may not constitute intimidation; however if the person’s size is used in a method to insight fear, it may constitute intimidation.
126.96.36.199.4. Coercion includes conduct, intimidation, and express or implied threats of physical or emotional harm, that would reasonably place an individual in fear of immediate or future harm and that is employed to persuade or compel someone to engage in sexual activity. Coercion is more than an effort to persuade, entice, or attract another person to have sex. When a person makes clear a decision not to participate in a particular form of sexual activity, a decision to stop, or a decision not to go beyond a certain sexual interaction, continued unreasonable pressure can be coercive. In evaluating whether coercion was used, the University will consider: (i) the frequency of the application of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the duration of the pressure.
188.8.131.52. Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity. A person who is incapacitated is unable, temporarily or permanently, to give Consent because of mental or physical helplessness, temporary or permanent physical or mental health condition, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. A person may be incapacitated as a result of the consumption of alcohol or other drugs. However, the consumption of alcohol and/or drugs does not automatically mean that a person is incapacitated. Consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated.
9.1.4. University Guidance on Consent and Assessing Incapacitation: A person who wants to engage in a specific sexual activity is responsible for obtaining Consent for that activity. Lack of protest does not constitute Consent. Lack of resistance does not constitute Consent. Silence and/or passivity also do not constitute Consent. Relying solely on non-verbal communication before or during sexual activity may lead to misunderstanding and result in a violation of this Regulation.
It is important not to make assumptions about whether a potential partner is consenting. In order to avoid confusion or ambiguity, participants are encouraged to discuss with one another before engaging in sexual activity. If confusion or ambiguity arises during sexual activity, participants are encouraged to stop and clarify a mutual willingness to continue sexual activity.
Consent to one form of sexual activity does not, by itself, constitute Consent to another form of sexual activity. For example, one should not presume that Consent to oral-genital contact constitutes Consent to vaginal or anal penetration. Consent to sexual activity on a prior occasion does not, by itself, constitute Consent to future sexual activity. In cases of prior relationships, the manner and nature of prior communications between the parties and the context of the relationship may have a bearing on the presence of Consent.
Consent may be withdrawn at any time. An individual who seeks to withdraw Consent must communicate, through clear words or actions, a decision to cease the sexual activity and/or withdraw Consent. However, Consent is automatically withdrawn once an individual becomes incapacitated, if the person seeking to engage in sexual activity knew or should have known that the other person became incapacitated. Once Consent is withdrawn, the sexual activity must cease immediately. In evaluating Consent in cases of alleged incapacitation, the University asks two questions: (1) Did the person initiating sexual activity know that the other party was incapacitated? and if not, (2) Should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “YES,” Consent was absent and the conduct is a violation of this regulation.
Incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily incapacitated merely as a result of drinking or using drugs. The impact of alcohol and other drugs varies from person to person.
One is not expected to be a medical expert in assessing incapacitation. One must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?” “Do you know how you got here?” “Do you know what is happening?” “Do you know whom you are with?”
One should be cautious before engaging in sexual activity when either party has been drinking alcohol or using other drugs. The introduction of alcohol or other drugs creates ambiguity for either party as to whether Consent has been sought or given. If one has doubt about either party’s level of intoxication, the safe thing to do is to forego all sexual activity.
Being impaired by alcohol or other drugs is no defense to any violation of this regulation.
9.2. Sexual Exploitation occurs when an individual 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 Prohibited Conduct offenses in this Regulation. Examples of sexual exploitation include but are not limited to any of the following:
9.2.1. Causing the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give Consent to sexual activity;
9.2.2. Allowing third parties to observe private sexual activity from a hidden location (e.g., closet) or through electronic means (e.g., Skype or livestreaming of images);
9.2.3. Engaging in voyeurism (e.g., watching private sexual activity without the consent of the participants or viewing another person’s intimate parts (including, but not limited, to genitalia, groin, breasts or buttocks) in a place where that person would have a reasonable expectation of privacy);
9.2.4. Recording or photographing private sexual activity and/or a person’s intimate parts (including, but not limited, to genitalia, groin, breasts or buttocks) without consent;
9.2.5. Disseminating or posting images of private sexual activity and/or a person’s intimate parts (including, but not limited, to genitalia, groin, breasts or buttocks) without consent;
9.2.6. Prostituting another person; or
9.2.7. Knowingly exposing another person to a sexually transmitted infection or virus without the other’s consent.
9.3. Dating and Domestic Violence.
9.3.1. 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 Complainant. The existence of such a relationship shall be determined based on the party’s statements and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition, dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence. Any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.
184.108.40.206. A dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.
9.3.2. Domestic Violence is violence committed: (A) by a current or former spouse or intimate partner or family member (who resides within the same household) of the alleged victim; (B) by a person with whom the alleged victim shares a child in common; or (C) by a person who is cohabitating with, or has cohabitated with, the alleged victim as a spouse or intimate partner.
220.127.116.11. Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person as listed above. It does not include acts of self-defense. Domestic Violence includes, but is not limited to:
• Physical violence or attempted physical violence;
• Making one fear, or one’s household members fear serious bodily injury, or continued harassment; or
• Stalking an individual or family member that rises to such a level as to inflict substantial emotional distress.
9.4. Stalking. Stalking occurs when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear bodily injury or to experience substantial emotional distress.
9.4.1. Course of conduct means two or more acts, including but not limited to acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about another person, or interferes with another person’s property. Repeated, unwanted attention; physical, verbal, or electronic contact; or any other course of conduct directed at an individual that is sufficient to cause physical, emotional, or psychological fear or to create a hostile, intimidating or abusive environment for a reasonable person may constitute stalking. Stalking may involve individuals who are known to one another or who have a current or previous relationship or may involve individuals who are strangers.
9.4.2. Stalking includes “cyber-stalking,” a particular form of stalking in which a person uses electronic media, such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact.
9.5. Sexual or Gender-Based Harassment.
9.5.1. Sexual Harassment is any unwelcome sexual conduct, request for sexual favors, or other unwanted conduct of a sexual nature, whether verbal, non-verbal, graphic, physical, or otherwise, when the conditions outlined in 18.104.22.168 and/or 22.214.171.124, below, are present.
9.5.2. Gender-Based Harassment includes harassment based on gender, sexual orientation, gender identity, or gender expression, which may include acts of aggression, intimidation, or hostility, whether verbal or non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature, when the conditions outlined in 126.96.36.199 and/or 188.8.131.52, below, are present.
9.5.3. For conduct to meet the definition of Sexual Harassment or Gender-Based Harassment, it must meet one of the following criteria, in addition to the definition stated in Section 9.5.1 or 9.5.2.:
184.108.40.206. Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any University programs and/or activities or is used as the basis for University decisions affecting the individual (often referred to as “quid pro quo” harassment); or
220.127.116.11. Such conduct creates a hostile environment. A “hostile environment” exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits, or deprives an individual from participating in or benefitting from the University’s education or employment programs and/or activities. Conduct must be deemed severe, persistent, or pervasive from both a subjective and an objective perspective. In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances including, but not limited to:
• The frequency, nature and severity of the conduct;
• Whether the conduct was physically threatening;
• The effect of the conduct on the 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 and/or University programs or activities; and
• Whether the conduct implicates concerns related to academic freedom or Constitutionally-protected speech.
A hostile environment can be created by persistent or pervasive conduct or by a single or isolated incident, if sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. A single incident of Sexual Assault, for example, may be sufficiently severe to constitute a hostile environment. In contrast, the perceived offensiveness of a single verbal or written expression, standing alone, is typically not sufficient to constitute a hostile environment.
9.4. Retaliation. Retaliation means any act of interference, restraint, penalty, discrimination, coercion, reprisal, intimidation, threats, or harassment against an individual for using applicable policies responsibly (including making a charge of discrimination protected by this Regulation; testifying, assisting, or participating in a hearing, proceeding, review process or investigation of discrimination; opposing an illegal act; requesting a reasonable disability or religious accommodation; or exercising any other right protected by this Regulation).
9.5. Complicity. Complicity is any act taken with the purpose of materially or substantively aiding, facilitating, promoting or encouraging the commission of an act of Prohibited Conduct by another person.
10. Violations of Law.
Behavior that violates this Regulation may also constitute a crime. For example, North Carolina criminalizes and punishes some forms of Sexual Assault, Dating and Domestic Violence, Sexual Exploitation, Stalking, and Assault. The criminal statutes that may apply in cases Sexual Assault may be found in N.C. General Statutes sections 14-27.20 through 14-27.36. The criminal statutes that relate to Stalking may be found in N.C. General Statutes sections 14-277.3A. The criminal statutes that relate to Domestic Violence may be found in N.C. General Statutes section 50B. This compilation of criminal statutes is not exhaustive, but is offered to notify the University community that, some forms of Prohibited Conduct may also constitute crimes under North Carolina law, which may subject a person to criminal prosecution and punishment in addition to any sanctions under this Regulation.
11. Prevention and Awareness Programs.
The University is committed to the prevention of Prohibited Conduct through regular and ongoing education and awareness programs. Incoming Students and new Employees receive primary prevention and awareness programming as part of their orientation, and returning Students and current Employees receive ongoing training and related education. For a description of the University’s Prohibited Conduct prevention and awareness programs, including programs on minimizing the risk of incidents of Prohibited Conduct and bystander intervention, see Appendix C.
The University provides training to Students and Employees to ensure they understand this Regulation and the topics and issues related to maintaining an education and employment environment free from harassment and discrimination. For a description of the University’s training related to this Regulation, see Appendix C.
13. Obligation to Provide Truthful Information.
All University community members are expected to provide truthful information in any report or proceeding under this Regulation. Submitting or providing false or misleading information in bad faith or with a view to personal gain or intentional harm to another in connection with an incident of Prohibited Conduct is prohibited and subject to disciplinary sanctions under the University’s Student Code of Conduct and disciplinary action under the appropriate Employee disciplinary policy. This provision does not apply to reports made or information provided in good faith, even when the alleged facts are later not substantiated.
14. Annual Review.
This Regulation is maintained by the Title IX Coordinator. The University will review and update this Regulation, as appropriate, by July 31 of each year. The University will evaluate, among other things, any changes in legal requirements, existing University resources, and the resolution of cases from the preceding year (including, but not limited to, timeframes for completion and sanctions and remedies imposed). The Title IX Coordinator shall certify to the Chancellor.
Appendix A - Procedures For Reports Against Students; Investigating and Resolving Reports of Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence Committed by Students Under the Regulation
Appendix B - Procedures for Reports Against Employees; Investigating and Resolving Reports of Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence Committed by Employees Under the Regulation