Sexual Misconduct

Number:

4.7 

Policy/Operational Procedure Name:

Sexual Misconduct

Sponsor:

Angela Davis

Special Assistant, Equity and Inclusion/Title IX Coordinator

Custodian:

Office of Equity & Inclusion

Effective Date:

June 5, 2018

Next Review Date:

2023-2024

Location:

durhamtech.edu/policies-and-procedures/sexual-misconduct

 

Citation:

Title IX of the Education Amendments of 1972

 

Policy Statement

Durham Technical Community College does not discriminate on the basis of sex, gender, or sexual orientation in its education programs, services, or activities. The institution is committed to maintaining and strengthening an environment founded on civility and respect, and providing a learning, working, and living environment that is free from harassment, discrimination, or other forms of sexual misconduct. Durham Technical Community College is further committed to ensuring all parties are afforded the protections of due process in reviewing complaints of sexual misconduct.

Procedure

Title IX of the Education Amendments of 1972 states: “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.” In accordance with Title IX, and consistent with Durham Technical Community College’s (Durham Tech’s) commitment to upholding the highest standards of human respect and dignity, any form of Sexual Misconduct is taken seriously and will be investigated.

The College’s Sexual Misconduct Procedures provide instructions and related information for the reporting of Sexual Misconduct, definitions of prohibited conduct, and information regarding resources available to victims of Sexual Misconduct. The Procedures also include processes for the investigation and resolution of Sexual Misconduct allegations and address disciplinary actions perpetrators may face.

Durham Tech’s Sexual Misconduct policy and accompanying Procedures apply to any allegation of Sexual Misconduct made by or against a student, employee, or third party, regardless of where the alleged Sexual Misconduct occurred, if the conduct giving rise to the Complaint is related to the College’s academic, educational, or extracurricular programs or activities. (The College’s disciplinary authority, however, may not extend to third parties who are not students or employees of the College.) In the case of allegations of Sexual Misconduct, these Procedures supersede all Procedures and policies set forth in other College documents or policies.

Reporting

Parties who believe they have been or are being sexually discriminated against are encouraged to formally report occurrences of Sexual Misconduct to the College’s Title IX officials. Alternatively, reporting parties may make reports to other College officials (trusted faculty or staff members, campus police or safety officers, Human Resources personnel, etc.). Disclosure of information regarding an allegation of sexual discrimination to any College employee is official notice to the institution and should be submitted to the Title IX Coordinator.

Requests Not to Investigate and Refusals to File a Complaint or to Cooperate

Alleged victims may request that the College not investigate the information or allegation(s) reported, refuse to file a complaint, and/or refuse to cooperate in the investigation and/or resolution of an allegation(s). Such requests and decisions may limit the College’s ability to investigate and take reasonable action in response to a complaint. The College will evaluate such requests and decisions in the context of the College’s commitment to provide a reasonably safe and non-discriminatory environment.

To make such an evaluation, the Title IX Coordinator may conduct a preliminary investigation into the allegation(s) and may weigh such requests and decisions against the following factors:

  • The seriousness of the alleged Sexual Misconduct;

  • The alleged victim’s age;

  • Whether there have been other complaints of Sexual Misconduct against the Respondent;

  • The Respondent’s right to receive information about the allegation(s) if the information is maintained by the College as an "education record" under FERPA; and

  • The applicability of any laws mandating disclosure.

The Title IX Coordinator will inform the requester if the College intends to conduct further investigation and/or seek resolution in spite of the person’s request or refusal.

Regardless of an individual’s request, Title IX requires the College to take reasonable action in response to the information known to it. Thus, the College may take such measures as are deemed necessary by the Title IX Coordinator. Additionally, even if the College cannot take disciplinary action against the Respondent because of a refusal to file a complaint or participate in the investigation and/or resolution of allegations, to the extent practicable and appropriate, the College will take prompt action to limit the effects of the alleged Sexual Misconduct and prevent its recurrence. For instance, the College may issue a no-contact order or take other appropriate non punitive interim measures to ensure an individual’s safety even in the absence of a formal proceeding.

The complaint and other information regarding the alleged Sexual Misconduct may also be used as an anonymous report for data collection purposes under the Clery Act.

Reporting to Local Law Enforcement

Individuals may report Sexual Misconduct directly to local law enforcement agencies by dialing 911. Individuals who make a criminal complaint may also choose to simultaneously pursue a College complaint. A criminal investigation into the matter does not release the College from its obligation to conduct its own investigation (nor is a criminal investigation determinative of whether actionable Sexual Misconduct has occurred). However, the College’s investigation may be delayed temporarily while criminal investigators are gathering evidence. In the event of such a delay, the College may enforce non punitive interim measures when necessary to protect the alleged victim and/or the College community.

Individuals may choose not to report alleged Sexual Misconduct to law enforcement authorities. The College respects and supports individuals’ decisions with respect to reporting; nevertheless, the College may notify appropriate law enforcement authorities if required or warranted by the nature of the allegations at issue.

Reporting to the College

Individuals may choose not to report alleged Sexual Misconduct to campus officials. The College respects and supports the individual’s decision with respect to reporting; however, if information about Sexual Misconduct comes to the College’s attention the College may (1) start an investigation even in the absence of a filed complaint and/or (2) notify appropriate law enforcement authorities if required or warranted by the nature of the information of which it becomes aware.

Anyone wishing to report Sexual Misconduct should consult any one of the following College resources:

If an employee of Campus Police and Public Safety, the Office of Human Resources, or the College at large receives a report of alleged Sexual Misconduct, he or she must notify the College’s Title IX Coordinator.

If a student wishes to speak confidentially to a campus official about alleged Sexual Misconduct, the student can report to a counselor at Durham Tech by contacting counseling services. Information that a student discusses confidentially with a licensed counselor will not be reported to the Title IX Coordinator or other campus officials without the expressed consent of the student.

Individuals may also file anonymous reports by calling the Title IX Complaint Line at 919-536-7244, ext. 5108. It may be very difficult for the College to follow up or take action on anonymous reports where corroborating information is limited. Anonymous reports may be used for Clery Act data collection purposes.

No member of the College community may discourage an individual from reporting alleged incidents of Sexual Misconduct. As such, an individual may report alleged Sexual Misconduct to a faculty or staff member other than those referenced above. With the exception of counselors in counseling services who receive confidential information, a faculty or staff member with any knowledge about a known or suspected incident of Sexual Misconduct must report the incident to the College’s Title IX Coordinator. Excluded from this requirement are student employees and employees who are statutorily barred from reporting. No employee is authorized to investigate or resolve complaints without the involvement of the College’s Title IX Coordinator. The Title IX Coordinator will appoint Title IX Investigators who will be required to attend quarterly training on issues related to Sexual Misconduct, how to properly conduct an investigation, and the adjudication process that protects the safety of all parties and promotes overall accountability.

Confidentiality

The College will make every reasonable effort to properly preserve the Reporting Party’s and Respondent’s privacy and protect the confidentiality of information received and identities shared in connection with a report of alleged Sexual Misconduct and any related investigation. All individuals receiving a report understand the desire to keep the information confidential. In particular situations where privacy cannot be strictly kept, the information will only be shared on a need-to-know basis. College administrators will, however, share information regarding alleged sexual misconduct, as appropriate and necessary, in order to address and resolve the complaint at issue, prevent the recurrence of similar sexual misconduct, and address the effects of the sexual misconduct. Dissemination of information and/or written materials to persons not involved in the complaint procedure is strictly prohibited. The College will treat information that it receives in a manner that respects both the sensitivities and rights of both the Reporting Party and the Respondent. State and federal regulations may dictate a course of action that will require making portions or all of a report known to others, possibly including the Respondent, during the course of the investigation. Additionally, there may be instances where it is the College’s ethical and legal responsibility to disclose information regarding the circumstances related to a specific complaint, depending on the nature of the allegation. Should this be the case, the Reporting Party will be notified prior to the information being released. If the Reporting Party is a minor (under 18 years old) or the alleged incident took place while the Reporting Party was a minor, the law requires disclosure to law enforcement authorities.

In keeping with this respect for confidentiality, information regarding alleged sexual misconduct will generally only be disclosed by College personnel as follows:

  1. The College’s Responsible Employees are obligated to report information regarding alleged Sexual Misconduct to the Title IX Coordinator.

  2. College staff are obligated to handle information regarding alleged Sexual Misconduct in accordance with applicable local, state, and federal laws. For example, the College may be required by federal law to inform the community of the occurrence of the alleged incident(s) of Sexual Misconduct. Information regarding the alleged Sexual Misconduct may be used as an anonymous report for data collection purposes under the Clery Act.

  3. College staff may be obligated to report alleged Sexual Misconduct to local law enforcement.

  4. College administrators will share information regarding alleged Sexual Misconduct, as appropriate and necessary, in order to address and resolve the complaint at issue, prevent the recurrence of similar Sexual Misconduct, and address the effects of the Sexual Misconduct.

Please note that the College cannot control disclosures by students or third parties.

Strict Confidentiality

Individuals may discuss alleged Sexual Misconduct in strict confidence with College employees who are licensed counselors working in the offices of counseling services located on all campuses (“Strictly Confidential Resources”). This means that Personally Identifiable Information shared with Strictly Confidential Resources is not part of students’ or employees’ College records and will not be reported to other College personnel, the Respondent, or others unless the disclosing individual gives his or her consent to the disclosure or the law requires it (as may be the case with alleged Sexual Misconduct involving a minor or under conditions of imminent physical harm, for example).

Strictly Confidential Resources are not Responsible Employees and therefore are not required to, and will not, absent direction from the disclosing individual to do so, report incidents of alleged Sexual Misconduct to the Title IX Coordinator. For purposes of clarity, please understand that non student College employees who are not Strictly Confidential Resources are Responsible Employees. Communications made to Responsible Employees (and others) are not entitled to the same confidentiality protections as those made to Strictly Confidential Resources.

Individuals with Disabilities

The College will provide appropriate accommodations to individuals with disabilities as outlined in the Accommodations for Students with Disabilities and the Accommodations for Employees with Disabilities policies.

Oversight

The Title IX Coordinator is responsible for overseeing the prompt, fair, and impartial investigation and resolution of reports of Sexual Misconduct to the College, from the initial investigation to the final result.

Conflicts

If any administrator designated by these Procedures to participate in the investigation or resolution of a complaint is the Respondent (including, but not limited to, the Title IX Coordinator), then the Executive Vice President/Chief of Staff will appoint another College administrator to perform such person’s duties under these Procedures. (If the Executive Vice President/Chief of Staff is the Respondent, then the Title IX Coordinator will appoint another College administrator to perform the duties of the Executive Vice President/Chief of Staff under these Procedures.)

Support Persons

Both the Reporting Party and the Respondent may have one support person present to support and assist them throughout the complaint, investigative and adjudicatory processes (including, but not limited to, during related meetings, during investigative interviews, and during the adjudicatory and, if applicable, appeal meetings and proceedings). The Reporting Party and the Respondent are not limited in their choice of support person. Support persons may be friends, victim advocates, lawyers, or others. The Reporting Party and the Respondent may consult with their respective support persons during meetings, interviews, and proceedings, provided that such consultation is not disruptive. Support persons may not, however, have a speaking role during any meeting, interview, or proceeding. In addition, the support person’s attendance may be disallowed if such support person’s presence would be obstructive or would otherwise warrant his or her removal. Absent accommodation for disability, the Reporting Party and the Respondent may not be accompanied by more than one support person or by other individuals during meetings, interviews, and/or proceedings.

Time Frame

The College will make every reasonable effort to ensure that the investigation and resolution of a complaint occurs in as timely and efficient a manner as possible. The College’s investigation and resolution of a complaint (excluding appeal) will be completed within sixty (60) calendar days of the receipt of the complaint, whether informal or formal, absent unforeseen extenuating circumstances.

Any party may request an extension of any deadline by providing the Title IX Coordinator with a written request that includes the duration of the proposed extension and the justification for the request. The Title IX Coordinator or Investigator may also modify any deadline contained in these Procedures for good cause, if necessary. The Title IX Coordinator or Investigator will concurrently inform the Reporting Party and the Respondent of any deadline that has been extended and the reason(s) for the extension.

Due Process Rights

The following due process rights apply to all involved parties in any case:

  • Each party has a right to have legal counsel and/or an advocate present during any interview with investigators or the Title IX Coordinator. The role of the legal counsel or advocate is solely to advise the individual. The legal counsel or advocate shall not have the right to address the investigator or coordinator.

  • Each party has the right to produce witnesses on his or her behalf.

  • Each party has the right to present evidence.

  • Each party has the right to actively participate in the investigation, or to refuse to participate, without such refusal being detrimental.

Should either party believe exceptional circumstances exist that require an attorney or advocate to be given the opportunity to address the investigator or coordinator or participate in a more substantial role during the course of the investigation, such request must be made in writing to the Title IX Coordinator. If the Title IX Coordinator approves the request based on exceptional circumstances, an attorney or advocate may be given the right to address the investigators or coordinator or to conduct such additional work as is approved by the Title IX Coordinator. At no time may an attorney or advocate cross examine the other party. The attorney or advocate may request, and the Title IX Coordinator will consider, any additional due process or procedure requests prior to concluding the investigation.

Non Punitive Interim Measures

At any point during the complaint, investigative or adjudicatory processes, when warranted to ensure the safety and wellbeing of the Reporting Party, the Title IX Coordinator and/or the director of Human Resources and the vice president of Student Engagement, Development, and Support may implement one or more interim measures; if appropriate and/or reasonably available, including, but not limited to, those listed below. When determining appropriate non punitive interim measures, the Title IX Coordinator and/or director of Human Resources and the vice president of Student Engagement, Development, and Support will consider input from the Reporting Party if he or she wishes to provide such input. The Title IX Coordinator will notify the Reporting Party and the Respondent, respectively, of the imposition of non-punitive interim measure(s) that are applicable to him or her. These measures include:

  • Issuing no-contact orders to prevent any contact between the Reporting Party, the Respondent, witnesses, and/or third parties;

  • Changing a Reporting Party’s or a Respondent’s work arrangements or schedules;

  • Changing a Reporting Party’s or a Respondent’s academic schedules (including, but not limited to, moving the Reporting Party or the Respondent from one class section to another or, when feasible, permitting the Reporting Party or the Respondent to complete coursework online or through independent study);

  • Taking such steps as are reasonable, appropriate, and necessary to restrict the party’s movement on College property and/or use of College facilities (including areas controlled, leased, or used by the College);

  • Taking such steps as are reasonable, appropriate, and necessary to adjust the job duties of such party or place him or her on administrative leave; and

  • Suspending the Respondent (where the decision to suspend a Respondent will be made on an individualized basis and with due consideration given to other available interim measures).

Procedural Steps

  1. Individual Files Complaint (“Reporting Party”). Reporting parties are encouraged to report allegations of sexual discrimination to the Title IX Coordinator in writing as soon as possible following the incident(s). This expediency will help preserve evidence for potential legal and/or disciplinary proceedings. Reporting parties should recognize that delays in reporting may significantly impair the ability of College Title IX officials to investigate and respond to such complaints. The Title IX Coordinator or Investigator may, in his or her discretion, involve other College administrators in the investigation as necessary to conduct and finalize the investigation and/or to make a final determination regarding responsibility and/or assigned sanctions. Upon making the complaint, Reporting parties alleging sexual harassment and sexual-based violence will be immediately notified that they have the right to seek additional assistance from law enforcement and have the right to seek, among other things, judicial no-contact, restraining, and protective orders. Reporting parties will also be notified of available counseling services and their options for changing academic situations.

  2. Initial Assessment. The Title IX Coordinator will complete an initial fact-finding assessment within five (5) working days of the original complaint to determine whether or not a formal Title IX investigation will be conducted under this procedure. If not, the Title IX Coordinator will make a determination about the complaint and notify the Reporting Party of the decision in writing within ten (10) working days of original receipt of the complaint.

  3. Assigning an Investigator. When a determination is made to proceed with a formal Title IX investigation, the Title IX Coordinator will assign the complaint to a Title IX Investigator(s) within five (5) working days of the determination to proceed with a formal investigation.

  4. Notice of Allegation. At the onset of an investigation and within five (5) working days of the complaint being assigned to an Investigator(s), the Title IX Coordinator will advise the Respondent of the allegations against him or her in writing, and a copy of the Notice of Allegation will be provided to the Reporting Party.

  5. Commence Investigation. The Title IX Investigation will serve the purpose of determining the following:

    • Whether sexual or sex-/gender-based discrimination has occurred;

    • Whether there is an ongoing risk of harm resulting from or related to the sexual or sex-/gender-based discrimination (and if so, what steps should be taken to prevent its recurrence);

    • Whether accommodations for the Reporting Party need to be put in place to redress the effects of the sexual or sex-/gender-based discrimination; and

    • Whether accommodations or safety measures should be put in place to ensure the safety of members of the Durham Tech community.

  6. The standard of review for determining findings of fact will be the “preponderance of evidence” standard (i.e., it is more likely than not that the Title IX violation occurred).

  7. Conduct Interviews and Gather Evidence. During the investigation, the respective Investigator(s) shall interview the Reporting Party and the Respondent and give each party an equal opportunity to provide evidence, including informing the Investigator(s) of any potential witnesses. Both parties will be provided access to any information provided by the other in accordance with any federal and/or state confidentiality laws. If potential witnesses are identified, they will be interviewed by the Investigator(s) and invited to provide any supporting evidence.

  8. Determination of Non Punitive Interim Measures. During the investigation process, the Title IX Coordinator may put temporary measures in place in order to facilitate an efficient and thorough investigation process, as well as to protect the rights of all parties involved. The temporary measures may include, but are not limited to, reassignment of class schedules, temporary suspension from campus (but be allowed to complete coursework), or directives that include no contact between the involved parties.

  9. Conclusion of Investigation. Investigator(s) shall make every effort to conclude the investigation as soon as possible, but no later than thirty-five (35) calendar days from receipt of the original complaint. If the nature of the investigation requires additional time, Investigators may have an additional ten (10) calendar days to complete the investigation. The Title IX Coordinator shall notify the parties of this extension. The Investigator(s) will provide a written report to the Title IX Coordinator, along with any supporting evidence, that includes recommendations for the final decision and any accompanying sanctions.

  10. Title IX Coordinator Review. The Title IX Coordinator will review the report from the Investigator(s) and assemble a review committee of two additional Investigators not involved in the original investigation. The original Investigator(s) will attend the review committee meeting to answer any questions from the review committee. The Title IX Coordinator may request further review from the Investigator(s) or may ask for additional information directly from the involved parties or witnesses.

  11. Final Decision. Upon completion of the investigation and review of all materials, the Title IX Coordinator is responsible for determining whether evidence establishes that it is more likely than not (i.e., a preponderance of the evidence) that the Respondent engaged in sexually discriminatory conduct. The Title IX Coordinator will prepare written findings of fact in support of his or her decision and will render a finding of “Responsible” or “Not Responsible” for Title IX violations. If a Respondent is found “Responsible”, the Title IX Coordinator will specify the type(s), if any, of sexual discrimination for which the Respondent is being held responsible. If the Title IX Coordinator determines the Respondent is “Not Responsible”, the Title IX Coordinator will close the complaint and document such closure. The Title IX Coordinator shall make every effort to conclude the investigation as soon as possible, but no later than sixty (60) calendar days from receipt of the original complaint.

  12. Sanctions. The Title IX Coordinator and the director of Human Resources are responsible for recommending to the President appropriate sanctions to be enforced if the Respondent is an employee.

The Disciplinary Actions, Suspension, and Termination of Employment policy describes sanctions available to designated College Officials in response to employees violating Durham Tech policies and procedures in regard to dating violence, domestic violence, sexual assault, and/or stalking. The listing is not inclusive of all options Officials may choose to exercise and more than one sanction may be imposed for a single act of misconduct. The director of Human Resources and the Title IX Coordinator will maintain records regarding any sanctions imposed.

The Title IX Coordinator will partner with the vice president of Student Engagement, Development, and Support regarding appropriate sanctions to be enforced if the Respondent is a student. The Student Code of Conduct policy lists sanctions available to designated College Officials in response to violations of the Student Code of Conduct. The listing is not inclusive of all options Officials may choose to exercise, and more than one sanction may be imposed for a single act of misconduct. The vice president of Student Engagement, Development, and Support will maintain the record regarding any sanctions imposed.

12. Reporting. Following the determination of sanctions, the Title IX Coordinator will issue each party a written Decision Letter including findings(s) of fact, and if applicable, any actions the College will take to provide accommodations to the Reporting Party and/or any sanctions to the Respondent to ensure the safety of the College community.

13. Record Maintenance. A confidential file regarding the complaint shall be maintained by the Title IX Coordinator. To the extent possible, the College will keep all information related to the complaint and investigations confidential; however, to maintain compliance with the Clery Act, both parties will be informed of the outcome of any institutional proceeding alleging sexual harassment or sex-based violence.

Voluntary Resolution

At any point in time, the parties involved may elect to resolve the dispute through voluntary resolution, subject to approval by the Title IX Coordinator. Certain types of offenses may not be resolved voluntarily, in particular, instances of Sexual Assault and/or instances where the Reporting Party is a student and the Respondent is a faculty member.

The College will not require any party to seek or undergo voluntary resolution. If one party requests voluntary resolution, the other party will be notified of the request. If both parties agree to a voluntary resolution, the Title IX Coordinator will consider whether the matter is appropriate for a voluntary resolution. Should both parties agree to voluntary resolution and the Title IX Coordinator agrees that voluntary resolution is appropriate, the parties can elect to attempt to voluntarily resolve the dispute. Any voluntary resolution reached by the parties will terminate the process and forfeit any consideration for appeal.

Appeals

If a student or employee believes that exceptional circumstances justify reconsideration of a decision related to a complaint in which they were the Reporting Party or Respondent, the individual may request an appeal. The appeal must be requested in writing to the Appeal Officer (Title IX Coordinator) within seven (7) calendar days of receipt of the Decision Letter. The written request must state the grounds for the appeal and must include supporting evidence.

Grounds for an Appeal

An appeal will not be considered if an involved party simply disagrees with the final decision. The grounds for an appeal will be limited to the following:

  1. Introduction of new, compelling evidence that was not available at the time of the initial assessment or during the investigation, which may have impacted the final decision.

  2. False, misleading, or extraneous facts or criteria brought to bear that substantially affected the final decision to the detriment of the Reporting Party or Respondent.

  3. Lack of adherence to established procedures or procedural irregularities that substantially affected the outcome of the matter to the detriment of the Reporting Party or Respondent.

  4. The final decision included a sanction that was especially egregious, arbitrary, and/or capricious.

  5. The Reporting Party or Respondent believes that his or her due process rights were violated at some point during the process.

  6. The Title IX Investigator(s) failed to follow the established Title IX procedures.

The Appeal Officer (Title IX Coordinator) will acknowledge receipt of the appeal request within two (2) working days. If the request does not effectively articulate/demonstrate appropriate grounds for appeal, the letter of acknowledgement will indicate that the request for appeal will receive no further consideration, as it does not meet the criteria.

If the request does effectively articulate/demonstrate appropriate grounds for appeal, the Appeal Officer (Title IX Coordinator) will then review all documentation, which may include a request for additional information from the Investigator(s), and make a decision regarding the appeal request. The Appeals Officer (Title IX Coordinator) will render a finding of “Approved” or “Denied”. The Appeal Officer (Title IX Coordinator) will select Title IX Investigators who were not part of the original investigation to serve on an Appeal Committee to review all documentation, which may include a request for additional information from the Investigator(s). The Appeal Committee will make a recommendation regarding the finding. The Appeal Officer (Title IX Coordinator) will then issue each party a written Appeal Decision Letter, conveying the finding. The Appeal Officer (Title IX Coordinator) shall make every effort to conclude the review as soon as possible, but no later than fourteen (14) calendar days from receipt of the original appeal request.

Purpose/Definitions

Durham Tech is committed to fostering a community that promotes prompt reporting of all types of Sexual Misconduct and timely and fair resolution of reports of Sexual Misconduct. This policy refers to all forms of sexual discrimination, including discrimination against pregnant and parenting students, Sexual Misconduct, sexual harassment, sexual assault, and sexual violence by employees, students, or third parties. The College has appointed a Title IX Coordinator, established grievance Procedures (the College’s Sexual Misconduct Procedures) for the handling of allegations of Sexual Misconduct, and developed Sexual Misconduct-related education and training programs.

Sexual Misconduct is any unwelcome conduct of a sexual nature, including any conduct or act of a sexual nature perpetrated against an individual without Consent. Sexual Misconduct can occur between strangers or acquaintances, including people involved in an intimate or sexual relationship. Sexual Misconduct can be committed by men or by women, and it can occur between people of the same or different sex. Sexual Misconduct also includes complicity in Sexual Misconduct. The College encourages reporting of all Sexual Misconduct. Sexual Misconduct includes, but is not limited to, Dating Violence, Domestic Violence, Non Forcible Sex Acts, Sexual Assault, Sexual Exploitation, Sexual Harassment, Sexual Discrimination, and Stalking.

The College’s Sexual Misconduct policy and procedures apply to any incidences of sexual discrimination made by or against a student or an employee of the College. If the conduct giving rise to the complaint is related to the College’s academic, educational, or extracurricular programs or activities, it will also apply to a third party, regardless of where the alleged sexual discrimination occurred. The procedures provide information and guidance related to steps for the investigation and resolution of sexual discrimination allegations and includes possible sanctions that may be assigned when the findings involve a Title IX violation and/or a false report.

The following definitions shall apply to these procedures:

Reporting Party – An individual who reports alleged discriminatory conduct that is sexual or sex/gender based. An alleged victim of Sexual Misconduct who files a complaint, or on whose behalf a complaint is filed or initiated.

Discrimination – Any act or failure to act that unreasonably and unfavorably differentiates treatment of others based solely on their race, religion, ethnicity, national origin, gender, sex, age, disability, genetic information, and veteran status. Discrimination may be intentional or unintentional.

Respondent – An individual alleged to have engaged in discriminatory conduct that is sexual or sex/gender based. An individual who has been accused in a complaint of committing Sexual Misconduct.

Safe Colleges – Durham Tech’s provider of online student and employee Title IX training.

Sexual Discrimination – Includes, but is not limited to, gender inequity, sexual assault, and other acts of sexual violence, such as sexual harassment.

Sexual Harassment – Any unwelcome and/or uninvited verbal or physical conduct directed towards a person because of his or her sex. Physical contact and/or conduct that creates an unwelcome or hostile environment, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, written, electronic, or physical contact of a sexual nature when submission to the conduct is made a term or condition of an individual’s employment or academic performance (either implicitly or explicitly), when submission to or rejection of the conduct is used as the basis for employment or educational decisions affecting the individual, or when the conduct is sufficiently severe, persistent, or pervasive to interfere with an individual’s work or academic performance, or to create an intimidating, hostile, or offensive working or learning environment. Sexual harassment also includes acts of intimidation, bullying, aggression, or hostility based on gender or gender-stereotyping, even if the acts do not involve conduct of a sexual nature. Occasional compliments of a socially acceptable nature do not constitute sexual harassment.

Sexual harassment may include, but is not limited to:

  • Physical assault, including rape, or any coerced sexual relations.

  • Subtle pressure for sexual activity or for a relationship that takes on a sexual or romantic coloring, thereby exceeding the limits of healthy relation.

  • Any demeaning sexual propositions.

  • Unnecessary touching in any form.

  • Sexually explicit or suggestive remarks about a person’s physical attributes, clothing, or behavior.

  • Sexually stereotyped or sexually charged insults, humor, verbal abuse, or graffiti.

  • One or more instances of Sexual Assault.

  • Persistent unwelcome efforts to develop a romantic or sexual relationship.

  • Unwelcome sexual advances or requests for sexual favors.

  • Unwelcome commentary about an individual's body or sexual activities.

  • Repeated and unwelcome sexually-oriented teasing, joking, or flirting.

  • Verbal abuse of a sexual nature.

  • Any sexually inappropriate behavior that prevents an individual from participating in their employment, academic performance, or in any functions of the College.

  • Pressuring an individual to engage in sexual behavior for some educational or employment benefit.

  • Making a real or perceived threat that rejecting sexual behavior will carry a negative educational or employment consequence for the individual.

Title IX Coordinator – The employee responsible for coordinating the College’s efforts to comply with and carry out its responsibilities under Title IX, which prohibits sexual discrimination in all operations, as well as prohibiting retaliation for the purpose of interfering with any right or privilege secured by Title IX. The Title IX Coordinator oversees the College’s response to reports and complaints that involve possible sexual discrimination to monitor outcomes, identify and address any patterns, and assess effects on the campus climate so the College can address issues that affect the wider community; and develops Sexual Misconduct-related education and training programs.

Additional Definitions for Reference

Actionable Sexual Misconduct – Sexual Misconduct that, taking into account the totality of the circumstances, is sufficiently serious that it interferes with or limits an individual’s ability to participate in or benefit from the College’s programs and therefore warrants adjudication under, and discipline pursuant to, these Procedures. Specifically, to determine whether Sexual Misconduct rises to the level of Actionable Sexual Misconduct, consideration will be given to the following criteria:

  1. The type, frequency, and duration of the conduct (the more severe the conduct, the less the need to show a repetitive series of incidents, particularly if the harassment is physical);

  2. The identity of, and relationship between, the alleged harasser and the alleged victim;

  3. The number of individuals involved;

  4. The age and sex of the alleged harasser and the alleged victim;

  5. The location of the incidents and the context in which they occurred; and

  6. Whether there have been similar incidents.

Campus and Community Resources – Please see the appendix.

Clery Act – The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (the “Clery Act”) is a federal statute codified at 20 U.S.C. § 1092(f), with implementing regulations in the U.S. Code of Federal Regulations at 34 C.F.R. 668.46. The Clery Act requires all colleges and universities that participate in federal financial aid programs to keep and disclose information about crime on and near their respective campuses.

Complaint – An allegation of Sexual Misconduct asserted against another party.

Consent – Informed, freely, and actively given and mutually understandable words or actions that indicate a willingness to participate in mutually agreed-upon activity. Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a clear and unambiguous agreement between them to engage in certain conduct with each other. Consent cannot be gained by ignoring or acting in spite of the objections of another. Consent cannot be inferred from:

  1. Silence, passivity, or lack of resistance alone;

  2. A current or previous dating or sexual relationship alone (or the existence of such a relationship with anyone else);

  3. Attire;

  4. The buying of dinner or the spending of money on a date; or

  5. Consent previously given (for example, Consenting to one sexual act does not imply Consent to another sexual act).

Consent is not effective if it is obtained through the use of physical force, violence, duress, intimidation, coercion or the threat, expressed or implied, of bodily injury. Whether a party used intimidation or coercion to obtain Consent will be determined by reference to the perception of a reasonable person found in the same or similar circumstances. Consent may never be given by:

  1. Minors, even if the other participant did not know the minor’s age;

  2. Mentally disabled persons, if their disability was reasonably knowable to a sexual partner who is not mentally disabled; or

  3. Persons who are Incapacitated.

The use of alcohol or drugs does not diminish one's responsibility to obtain Consent and does not excuse conduct that constitutes Sexual Misconduct under these Procedures.

If at any time during a sexual act any confusion or ambiguity is, or should reasonably be, apparent on the issue of Consent, it is incumbent upon each individual involved in the activity to stop and clarify the other's willingness to continue and capacity to Consent. Neither party should make assumptions about the other’s willingness to continue.

Dating Violence – 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 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. 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.

Day – A working day or calendar day, as specified in each instance by these Procedures. In the case of a calendar day specified by these Procedures that falls on a Saturday, Sunday, or other day on which the College is closed, then the calendar day specified will be interpreted to mean the immediately preceding working day (whether or not classes are in session).

Domestic Violence – Includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the State of North Carolina, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the State of North Carolina.

FERPA – The Family Educational Rights and Privacy Act (“FERPA”) is a federal statute codified at 20 U.S.C. § 1232g, with implementing regulations in the U.S. Code of Federal Regulations at 34 C.F.R. § 99. FERPA protects the privacy of student education records. FERPA grants to parents or eligible students the right to access, inspect, and review education records, the right to challenge the content of education records, and the right to consent to the disclosure of education records.

Incapacitated – Lacking the physical and/or mental ability to make informed, rational judgments. A person may be Incapacitated for a variety of reasons, including, but not limited to, being asleep or unconscious, having consumed alcohol or taken drugs, or experiencing blackouts or flashbacks.

Minors – The North Carolina General Assembly defines minors as persons who have not reached the age of 18 years.

Notice of Title IX Coordinator’s Determination – The Title IX Coordinator’s official written determination as to whether it is more likely than not that the evidence (i.e., facts, opinions, and circumstances) establishes a violation of the Title IX policy.

Office of Institutional Equity and Inclusion (OIE) – Durham Tech’s Office of Institutional Equity and Inclusion, Room 5-213, Educational Resources Center (Building 5), Main Campus. The OIE may be reached by phone (919-536-7200, ext. 5108) or email (title9coordinator@durhamtech.edu).

Personally Identifiable Information – As defined by FERPA, Personally Identifiable Information includes, but is not limited, to:

  1. A student's name;

  2. The name of a student's parent(s) or other family members;

  3. The address of a student or a student's family;

  4. A personal identifier, such as a student's social security number, student number, or biometric record;

  5. Other indirect identifiers, such as a student's date of birth, place of birth, or mother's maiden name;

  6. Other information that, alone or in combination, is linked or linkable to a specific student and that would allow a reasonable person in the College community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

  7. Information requested by a person whom the College reasonably believes knows the identity of the student to whom the education record relates.

Preponderance of the Evidence – More likely than not that the violation occurred.

Rape – The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the Consent of the victim.

Responsible Employee – An employee of the College who has an obligation to report to the Title IX Coordinator any complaints or allegations of Sexual Misconduct of which he or she becomes aware. The College’s Responsible Employees are all non-student College employees not designated as “Strictly Confidential Resources” in the Strict Confidentiality section of this policy.

Retaliation – Any adverse action threatened or taken against a person because he or she has filed, supported, or provided information in connection with a complaint of Sexual Misconduct, including, but not limited to, direct and indirect intimidation, threats, and harassment.

Sexual Assault – Any actual, attempted, or threatened sexual act with another person without that person’s Consent. Sexual Assault includes, but is not limited to:

  1. Fondling –- The touching of the private body parts of another person for the purpose of sexual gratification, without the Consent of the victim, including instances in which the victim is incapable of giving Consent because of his or her age or because he or she is temporarily or permanently Incapacitated;

  2. Rape and attempted Rape;

  3. Statutory Rape – Sexual intercourse with an individual under the statutory age of consent, as defined by North Carolina law;

  4. Incest – Sexual intercourse between persons who are related to each other within degrees wherein marriage is prohibited by North Carolina law;

  5. Intentional and unwelcome sexual touching (including disrobing or exposure), however slight, with any body part or any object, by a man or a woman upon a man or a woman, without effective Consent, of a person’s breasts, buttocks, groin, or genitals (or clothing covering such areas), or coercing, forcing, or attempting to coerce or force another to touch you, themselves, or a third party with any of these body parts or areas when such touching would be reasonably and objectively offensive; and

  6. Any sexual act in which there is force, violence, or use of duress or deception upon the victim.

Sexual Exploitation – Any act of taking non-Consensual, unjust, or abusive sexual advantage of another person for one’s own advantage or benefit or to benefit or advantage anyone other than the person being exploited. Sexual Exploitation includes, but is not limited to:

  1. Causing or attempting to cause another person to be Incapacitated in order to gain a sexual advantage over such person;

  2. Prostituting another person (i.e., personally gaining money, privilege, or power from the sexual activities of another);

  3. Non-Consensual videotaping, photographing, or audiotaping of sexual activity and/or distribution of these materials via media such as, but not limited to, the Internet;

  4. Exceeding the boundaries of Consent (e.g., allowing another person to observe Consensual sex without the knowledge of, or Consent from, all participants);

  5. Voyeurism; and

  6. Knowingly or recklessly transmitting a sexually transmitted disease (including HIV) to another individual.

Sexual Intimidation – Includes but is not limited to:

  1. Threatening, expressly or impliedly, to commit a sexual act upon another person without his or her Consent;

  2. Stalking or cyber-stalking; and

  3. Engaging in indecent exposure with the intention of alarming, distressing, and/or offending others.

Stalking – Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

  1. Fear for his or her safety or the safety of others; or

  2. Suffer substantial emotional distress.

For purposes of this definition, “course of conduct” means two or more acts including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property; “substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling; and “reasonable person” means a reasonable person under similar circumstances and with similar identities to the victim.

Strictly Confidential Resources – Durham Tech employees, such as counselors, who are not Responsible Employees and therefore are not required to, and will not, absent direction from the disclosing individual to do so, report incidents of alleged Sexual Misconduct to the Title IX Coordinator.

Title IX Coordinator – Durham Tech’s Title IX Coordinator is Angela Davis, located on the Main Campus in the Educational Resources Center (Building 5), room 5-213, and who may be contacted by phone at 919-536-7250, ext. 6002 or by email at davisa@durhamtech.edu. The Title IX Coordinator has ultimate oversight responsibility for handling Title IX–related complaints and for identifying and addressing any patterns or systemic problems involving Sexual Misconduct. The Title IX Coordinator is available to meet with individuals who are involved with, or concerned about, issues or College processes, incidents, patterns or problems related to Sexual Misconduct on campus or in College programs. All allegations involving Sexual Misconduct should be directed to the Title IX Coordinator or other designated College individuals or offices as outlined in this policy.

Title IX Investigator – The person appointed by the Title IX Coordinator to conduct a prompt, equitable, and impartial administrative investigation into complaints including identifying and interviewing parties and identifying, gathering, and assessing information relevant to the investigation; apply relevant policies and make finding of fact in individual cases.

Working Days – Days the College is open and operating under a normal schedule. This excludes weekends, closings due to adverse conditions, and holidays.

Appendix A – Campus and Community Resources

For emergency assistance:

Durham Tech Campus Police and Public Safety

919-536-7255, ext. 5555

Durham Police Department

911

 

Campus Resources

Sexual Misconduct Policy

Office of Institutional Equity and Inclusion (Main Campus, Educational Resources Center (Building 5), room 5-213)

Angela Davis, Special Assistant for Equity and Inclusion / Title IX Coordinator

919-536-7250, ext. 6002; title9coordinator@durhamtech.edu

Anonymous Complaint Line

919-536-7200, ext. 5108

Online Reporting Form

Campus Police and Public Safety (All Campuses, 24 hours a day, seven days a week)

919-536-7255 or ext. 5555

Counseling Services (Main Campus, Wynn Center (Building 10), room 10-209)

919-536-7207, ext. 1413

Karen Mosley-Lyon (room 10-209)

Coordinator, Counseling Services / Emergency Assistance Program and Single Parent Program Administrator

919-536-7200, ext. 1408; mosleylk@durhamtech.edu

Community Resources

National Domestic Violence Hotline: 1- 800-799-7233

National Suicide Prevention Lifeline: 1-800-273-TALK (8255)

Lifeline Crisis Chat (online live messaging)

Durham Crisis Response Center (Emergency Shelters): 919-403-6562

Durham City Police Department: 911 or 919-560-4322

Durham County Sheriff’s Office: 919-560-0897

Durham Crisis Response Center: 919-403-6562

North Carolina Victim’s Compensation Services: 1-800-826-6200

North Carolina Coalition Against Sexual Assault: 919-871-1015

Nursing Home Abuse Center

Orange County Rape Crisis Center: 1-866-WE-LISTEN (866-935-4783; 24-hour Help Line)

RAINN (Rape, Abuse, & Incest National Network): 1-800-656-HOPE (1-800-656-4673)

Rape Victim Assistance Program: 1-800-826-6200

SAVAN (Statewide Automated Victim Assistance & Notification): 1-877-627-2826