Sexual Misconduct

Sexual Misconduct

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. Durham Tech 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 Tech is further committed to ensuring all parties are afforded the protections of due process in reviewing complaints of sexual misconduct.

Contact Information

Office of Equity and Inclusion
Main Campus, Phillips Building (Building 3), Suite 3-103
919-536-7200, ext. 5108
title9coordinator@durhamtech.edu

Introduction

What is the purpose of the Sexual Misconduct policy?

Title IX of the Educational Amendments of 1972 prohibits any person in the United States from being discriminated against on the basis of sex in seeking access to any educational program or activity receiving federal financial assistance. The U.S. Department of Education, which enforces Title IX, has long defined the meaning of Title IX’s prohibition on sex discrimination broadly to include various forms of sexual harassment and sexual violence that interfere with a student’s ability to equally access educational programs and opportunities.

On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX of the Education Amendments of 1972 that accomplishes the following:

• Defines the meaning of “sexual harassment” (including forms of sex-based violence)
   
• Addresses how Durham Tech must respond to reports of misconduct falling within that definition of sexual harassment; and
   
• Mandates a grievance process that Durham Tech must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment.

Based on the Final Rule, Durham Tech will implement a revised Sexual Misconduct policy, effective August 14, 2020.

How does the Sexual Misconduct policy impact other College disciplinary policies?

In recent years, Title IX cases have become a short-hand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault. But under the Final Rule, Durham Tech must narrow both the geographic scope of its authority to act under Title IX and the types of sexual harassment that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing.

Durham Tech remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule. Specifically, the College’s Student Code of Conduct defines certain behaviors as violations of College policy, and an earlier version of its Sexual Misconduct policy (4.7) addresses the types of sex-based offenses constituting a violation of College policy and the procedures for investigating and adjudicating those sex-based offenses.

To the extent that alleged misconduct falls outside the Sexual Misconduct policy, or misconduct falling outside the Sexual Misconduct policy is discovered in the course of investigating covered Title IX misconduct, Durham Tech retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Student Code of Conduct through a separate grievance proceeding.

The elements established in the Sexual Misconduct policy under the Final Rule have no effect and are not transferable to any other College policy for any violation of the Student Code of Conduct, employment policies, or any civil rights violation except as narrowly defined in this policy. This policy does not set a precedent for other College policies or procedures and may not be cited for or against any right or aspect of any other policy or procedure.

How does the Sexual Misconduct policy impact the handling of complaints?

The Office of Equity and Inclusion serves as the College’s Title IX office, and its reporting structure remains in place. What has changed is the way the Office will handle different types of reports arising from sexual misconduct, as detailed in full in the procedure below.

Procedure

Note: For reports of Sexual Misconduct that reportedly occurred prior to August 14, 2020, please refer to Sexual Misconduct policy 4.7.

General Rules of Application

Effective Date

This Sexual Misconduct policy will become effective on August 14, 2020, and will only apply to formal complaints of sexual harassment brought on or after August 14, 2020. Complaints brought prior to August 14, 2020 will be investigated and adjudicated according to the College’s Sexual Misconduct policy 4.7 if a case is not complete by that date.

Revocation by Operation of Law

Should any portion of the Title IX Final Rule be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified to not require the elements of this policy, this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication date of the opinion or order and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by that date of opinion or order publication. Should this Sexual Misconduct policy be revoked in this manner, any conduct covered under the policy shall be investigated and adjudicated under Sexual Misconduct policy 4.7.

Non-Discrimination in Application

The requirements and protections of this policy apply equally regardless of sex, sexual orientation, gender identity, gender expression, or other protected classes covered by federal or state law. All requirements and protections are equitably provided to individuals regardless of such status or status as a complainant, respondent, or witness. Individuals who wish to file a complaint about Durham Tech’s policy or process may contact the Department of Education’s Office for Civil Rights.

Definitions

(Please see also the Additional Definitions section.)

Advisor – A person chosen by a party or appointed by the institution to accompany the party to meetings related to the resolution process, to advise the party on that process, and to conduct cross-examination for the party at the hearing, if any.

Covered Sexual Harassment – For the purposes of this policy, “covered sexual harassment” includes any conduct on the basis of sex that satisfies one or more of the following:

1. An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);
    
2. Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the education program or activity;
    
3. Sexual assault (as defined in the Clery Act), which includes any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent;
    
4. Dating violence (as defined in the Violence Against Women Act (VAWA) amendments to the Clery Act), which includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) The type of relationship; (iii) The frequency of interaction between the persons involved in the relationship.
    
5. Domestic violence (as defined in the VAWA amendments to the Clery Act), which includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under North Carolina’s domestic or family violence laws 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 North Carolina.
    
6. Stalking (as defined in the VAWA amendments to the Clery Act), meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.

Please Note: Conduct that does not meet one or more of these criteria may still be prohibited under the Student Code of Conduct.

Consent – For the purposes of this policy, “consent” means 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.

Education Program or Activity – For the purposes of this policy, “education program or activity” includes:

1. Any College program or activity that occurs on-campus premises
    
2. Any College program or activity that occurs on off-campus premises that Durham Tech has substantial control over. This includes buildings or property owned or controlled by a recognized student organization.
    
3. Activity occurring within computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of Durham Tech’s programs and activities over which Durham Tech has substantial control.

Formal Complaint – For the purposes of this policy, “formal complaint” means a document, including electronic submissions, filed by a complainant with a signature or other indication that the complainant is the person filing the formal complaint, or signed by the Title IX Coordinator, alleging sexual harassment against a respondent about conduct within a Durham Tech education program or activity and requesting initiation of the procedures consistent with the Sexual Misconduct policy to investigate the allegation of sexual harassment.

Complainant – For the purposes of this policy, “complainant” means any individual who has reported being or is alleged to be the victim of conduct that could constitute covered sexual harassment as defined under this policy.

Relevant Evidence and Questions – “Relevant evidence and questions” refers to any questions and evidence that tend to make an allegation of sexual harassment more or less likely to be true.

“Relevant” evidence and questions do not include the following types of evidence and questions, which are deemed “irrelevant” at all stages of the sexual misconduct grievance process:

1. Evidence and questions about the complainant’s sexual predisposition or prior sexual behavior unless:
    
   1. They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant; or
       
   2. They concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
       
2. Evidence and questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege.
    
3. Any party’s medical, psychological, and similar records unless the party has given voluntary, written consent.

Respondent – For the purposes of this policy, “respondent” means any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment as defined under this policy.

Privacy vs. Confidentiality – References made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or College officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean Durham Tech offices and employees who cannot guarantee confidentiality will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. Durham Tech will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.

Disability Accommodations – This policy does not alter any Durham Tech obligations under federal disability laws including the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the sexual misconduct grievance process that do not fundamentally alter the process. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the parties, even where the parties may be receiving accommodations in other Durham Tech programs and activities.

Making a Report Regarding Covered Sexual Harassment to Durham Tech

Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, telephone, or electronic mail, using the contact information listed below, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by sending mail to the office address listed.

Title IX Coordinator Contact Information:
Victoria Deaton
Equity Compliance Officer
1637 Lawson Street Durham, North Carolina 27703
Phillips Building (Building 3), suite 3-103, Main Campus 
919-536-7200, ext. 6013 
deatonv@durhamtech.edu

Confidential Reporting

The College will make every reasonable effort possible to preserve an individual’s privacy and protect the confidentiality of information that it receives in connection with a report of sexual misconduct. All individuals receiving a report understand the desire to keep the information confidential. In particular situations where privacy cannot be strictly kept, it will still be tightly controlled on a need-to-know basis. Dissemination of information and/or written materials to persons not involved in the complaint procedure is not permitted. The College will treat information that it receives in a manner that respects both the sensitivities and rights of the complainant and the respondent.

State and federal regulations may dictate a course of action that will require making portions or all of the report known to others, including possibly the alleged offender, during the course of the investigation. Additionally, recognizing that sexual misconduct undermines the safety and freedom of an educational environment and could be criminal behavior, depending on the nature of the incident, there may be instances where it is the College’s ethical and legal responsibility to disclose information regarding the circumstances related to a specific incident. Should this be the case, the victim will be notified prior to the information being released. If the complainant is a minor (under 18 years old), or the alleged incident took place while the complainant was a minor, the law requires disclosure to law enforcement authorities.

The following officials will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited under this policy:

• Title IX Coordinator or designee
   
• Campus Police and Public Safety – Durham Tech’s Campus Police and Public Safety officers are available on each campus and may be reached by phone at 919-536-7255 or ext. 5555. Campus Security officers are available 24 hours a day, seven days a week.
   
• If an employee of Campus Police and Public Safety, Human Resources, or the College at large receives a report of alleged sexual misconduct, they must notify the Title IX Coordinator.

If a student wishes to speak confidentially about sexual misconduct, they may report to a counselor in Counseling Services. Information that a student discusses confidentially with a licensed counselor will not be reported to the Title IX Coordinator or other College officials without the expressed consent of the student.

Non-Investigatory Measures Available Under the Sexual Misconduct Policy

Supportive Measures

Complainants (as defined above) who report allegations that could constitute covered sexual harassment under this policy have the right to receive supportive measures from regardless of whether they desire to file a complaint. Supportive measures are non-disciplinary and non-punitive.

As appropriate, supportive measures may include, but are not limited to, the following:

• Counseling;
• Extensions of deadlines or other course-related adjustments;
• Modifications of work or class schedules;
• Campus escort services;
• Restrictions on contact between the parties (no contact orders);
• Changes in work or class locations;
• Leaves of absence; and
• Increased security and monitoring of certain areas of the campus.

Emergency Removal

Durham Tech retains the authority to remove a respondent from programs and activities on an emergency basis, where Durham Tech (1) undertakes an individualized safety and threat analysis and (2) determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of covered sexual harassment justifies a removal.

If Durham Tech determines such removal is necessary, the respondent will be provided notice and an opportunity to challenge the decision immediately following the removal. The individual who hears the challenge to the removal determination shall not be an individual involved in any decision regarding responsibility or appeal of that decision regarding responsibility.

Threat Assessment Team

A Threat Assessment Team is called together whenever a member of the College community reports a potential threat to the safety of members of the College community. The team’s ideal composition should be limited to a few individuals to protect confidential information yet ensure a diverse and informed assessment. The Threat Assessment Team typically consists of three or four individuals, depending on the nature of the perceived threat, with one representative from each of the following areas:

• Student Conduct: This representative is normally the Dean, Student Services. In their absence, another student services employee (e.g., Dean, Student Development and Support) may serve.
• Public Safety: This representative is normally the Director/Chief, Campus Police and Public Safety. In their absence, another public safety employee (e.g., Sergeant, Security Supervisor, or Police Officer) may serve.
   
• Division Head(s): This representative is normally the appropriate division head (e.g., Vice President, Chief Academic Officer) related to the academic area(s) for the student(s) involved.
   
• Title IX Coordinator: If the perceived threat is related to sexual misconduct or a Title IX-related concern, the Title IX Coordinator should be involved.

The Threat Assessment Team’s charge is to consult, as needed, to review student behavior perceived to be potentially dangerous to self or others or that poses a safety concern within the campus community and recommend appropriate action.

The Threat Assessment Team may decide to take any of the following actions:

• Refer the matter to the Care Team, if they determine such a referral is more appropriate;
   
• Monitor the student’s behavior;
   
• Direct the student to meet with the Dean, Student Services;
   
• Consult with the College's legal advisor, if necessary;
   
• Recommend to the Vice President that the student be required to obtain a current psychological assessment from a mental health provider;
   
• Recommend to the Director/Chief, Campus Police and Public Safety that criminal charges be considered; or
   
• Recommend a sanction listed in the Student Code of Conduct to the Dean, Student Services or Vice President, Chief Student Services Officer.

Administrative Leave

Durham Tech retains the authority to place a non-student employee respondent on administrative leave during the sexual misconduct grievance process, consistent with the Disciplinary Actions, Suspension, and Termination of Employment policy.

Sexual Misconduct Grievance Process

Filing a Formal Complaint

The timeframe for the sexual misconduct grievance process begins with the filing of a formal complaint. The grievance process will be concluded within a reasonably prompt manner, and no longer than ninety calendar days after the filing of the formal complaint, provided that the process may be extended for a good reason, including but not limited to the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. The procedure for applying for extensions is described below.

To file a formal complaint, a complainant must provide the Title IX Coordinator with a written, signed complaint describing the facts alleged. Complainants are only able to file a formal complaint under this policy if they are currently participating in, or attempting to participate in, College education programs or activities including as an employee. For complainants who do not meet this criterion, the College will utilize the Student Code of Conduct.

If a complainant does not wish to make a formal complaint, the Title IX Coordinator may determine whether a formal complaint is necessary. The Title IX Coordinator will inform the complainant of this decision in writing, and the complainant need not participate in the process further but will receive all notices issued under this policy and procedure.

Nothing in this policy prevents a complainant from seeking the assistance of state or local law enforcement alongside the appropriate College personnel.

Informal Resolution Statement

In appropriate cases, Durham Tech may choose to pursue informal resolution with the written consent of all parties at any point in the investigation process. Informal resolution options can include mediation, specific action plans, voluntary agreements, or agreed-upon sanctions. Under any informal resolution, the complainant will not be required to resolve the problem directly with the respondent, unless desired by the complainant.

All parties must be notified of the right to end the informal resolution process at any time and resume the formal process. Mediation shall not be used in cases involving sexual violence. The investigator will document the outcome of any informal resolution and share with the parties and the Title IX Coordinator.

In cases where the facts are generally not in dispute, and the respondent expresses a willingness to accept responsibility for all charges in a case, with the informed consent of the complainant and the College, the hearing procedure will be waived. The parties will be provided the opportunity to submit a written statement to the Title IX Coordinator, who will share this information with appropriate supervisory personnel for employee respondents or the Dean, Student Services for student respondents for consideration in determining appropriate sanctions.

The sanction decision will be made based on investigation information and the written statements, as well as any conduct history on the part of the respondent. Any appeal in an acceptance of responsibility resolution will be limited to the grounds that the sanction provided by the College is grossly inappropriate in light of the violations committed, or relevant aggravating and mitigating factors, and in consideration of applicable policy. Both the complainant and the respondent shall have the same right of appeal.

Multi-Party Situations

Durham Tech may consolidate formal complaints alleging covered sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of covered sexual harassment arise out of the same facts or circumstances.

Determining Jurisdiction

The Title IX Coordinator will determine whether Sexual Misconduct policy 4.7 or Sexual Misconduct policy 4.7a should apply to a formal complaint. The process will apply when all of the following elements are met, in the reasonable determination of the Title IX Coordinator:

1. The conduct is alleged to have occurred on or after August 14, 2020;
    
2. The conduct is alleged to have occurred in the United States;
    
3. The conduct is alleged to have occurred in a/during a Durham Tech education program or activity; and
    
4. The alleged conduct, if true, would constitute covered sexual harassment as defined in this policy.

If all of the elements are met, Durham Tech will investigate the allegations according to the grievance process.

Allegations Potentially Falling Under Two Policies

If the alleged conduct, if true, includes conduct that would constitute covered sexual harassment and conduct that would not constitute covered sexual harassment, the sexual misconduct grievance process will be applied to the investigation and adjudication of only the allegations that constitute covered sexual harassment.

Mandatory Dismissal

If any one of these elements are not met, the Title IX Coordinator will notify the parties that the formal complaint is being dismissed for the purposes of this policy. Each party may appeal this dismissal using the procedure outlined in the Appeals section below.

Discretionary Dismissal

The Title IX Coordinator may dismiss a formal complaint brought under this policy, or any specific allegations raised within that formal complaint, at any time during the investigation or hearing, if:

• A complainant notifies the Title IX Coordinator in writing that they would like to withdraw the formal complaint or any allegations raised in the formal complaint;
   
• The respondent is no longer enrolled or employed by Durham Tech; or
   
• If specific circumstances prevent Durham Tech from gathering evidence sufficient to reach a determination regarding the formal complaint or allegations within the formal complaint.

Any party may appeal a dismissal determination using the process set forth in the Appeals section below.

Notice of Dismissal

Upon reaching a decision that the formal complaint will be dismissed, Durham Tech will promptly send written notice of the dismissal of the formal complaint or any specific allegation within the formal complaint, and the reason for the dismissal, simultaneously to the parties through their Durham Tech email accounts. It is the responsibility of the parties to maintain and regularly check their email accounts.

Notice of Removal

Upon dismissal for the purposes of Title IX, Durham Tech retains discretion to utilize the Student Code of Conduct to determine if a violation of the Student Code of Conduct has occurred. If so, Durham Tech will promptly send written notice of the dismissal of the formal complaint under the sexual misconduct grievance process and transfer of the allegations to the conduct process.

Notice of Allegations

The Title IX Coordinator will draft and provide the Notice of Allegations to any party to the allegations of sexual harassment. Such notice will occur as soon as practicable, but no more than five working days after Durham Tech receives a formal complaint of the allegations, and the complaint has been assigned to an investigator(s) if there are no extenuating circumstances.

The parties will be notified via their Durham Tech email accounts if they are a student or employee, and by other reasonable means if they are neither.

Durham Tech will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview.

The Title IX Coordinator may determine that the formal complaint must be dismissed on the mandatory grounds identified above, and will issue a Notice of Dismissal. If such a determination is made, any party to the allegations of sexual harassment identified in the formal complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations.

Contents of Notice

The Notice of Allegations will include the following information:

• Notice of Durham Tech’s sexual misconduct process, including the College’s informal resolution process, and a hyperlink to a copy of the process.
   
• Notice of the allegations potentially constituting covered sexual harassment and sufficient details known at the time the notice is issued, such as the identities of the parties involved in the incident, if known, including the complainant; the conduct allegedly constituting covered sexual harassment; and the date and location of the alleged incident, if known.
   
• A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
   
• A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, as required under 34 C.F.R. § 106.45(b)(5)(iv);
   
• A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint, including the evidence upon which Durham Tech does not intend to rely in reaching a determination regarding responsibility, and evidence that both tends to prove or disprove the allegations, whether obtained from a party or other source, as required under 34 C.F.R. § 106.45(b)(5)(vi);
   
• Prohibition on Providing False Information: Durham Tech places great importance on the integrity of its policies and procedures. False complaints can cause irreparable harm to the College community, regardless of the outcome of an investigation. Accordingly, any individual who knowingly files a false report or complaint, knowingly provides false information, or intentionally misleads College officials will be subject to disciplinary action.

Ongoing Notice

If, in the course of an investigation, Durham Tech decides to investigate allegations about the complainant or respondent that are not included in the Notice of Allegations and are otherwise covered sexual harassment falling within this policy, the College will notify the parties whose identities are known of the additional allegations via their Durham Tech email accounts or other reasonable means.

The parties will be provided sufficient time to review the additional allegations to prepare a response before any initial interview regarding those additional charges.

Advisor of Choice and Participation of Advisor of Choice

Durham Tech will provide the parties equal access to advisors and support persons; any restrictions on advisor participation will be applied equally.

Durham Tech has a long-standing practice of requiring students to participate in the process directly and not through an advocate or representative. Students participating as complainant or respondent in this process may be accompanied by an Advisor of Choice to any meeting or hearing to which they are required or are eligible to attend. The Advisor of Choice is not an advocate. Except where explicitly stated in this policy, as consistent with the Final Rule, Advisors of Choice shall not participate directly in the process as per standard College policy and practice.

Durham Tech will not intentionally schedule meetings or hearings on dates when the Advisors of Choice for all parties are not available, provided that the Advisors act reasonably in providing available dates and work collegially to find dates and times that meet all schedules.

Durham Tech’s obligations to investigate and adjudicate in a prompt timeframe under Title IX and other College policies apply to matters governed under this policy, and Durham Tech cannot agree to extensive delays solely to accommodate the schedule of an Advisor of Choice. The determination of what is reasonable shall be made by the Title IX Coordinator or designee. Durham Tech will not be obligated to delay a meeting or hearing under this process more than five days due to the unavailability of an Advisor of Choice, and may offer the party the opportunity to obtain a different Advisor of Choice or utilize one provided by the College.

Notice of Meetings and Interviews

Durham Tech will provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate.

Delays

Each party may request a one-time delay in the grievance process of up to five days for good cause (granted or denied in the sole judgment of the Title IX Coordinator, Dean, Student Services, or designee) provided that the requestor provides reasonable notice, and the delay does not overly inconvenience other parties. For example, a request to take a five-day pause made an hour before a hearing for which multiple parties and their advisors have traveled to and prepared for shall generally not be granted, while a request for a five-day pause in the middle of investigation interviews to allow a party to obtain certain documentary evidence shall generally be granted. The Title IX Coordinator or designee shall have sole judgment to grant further pauses in the process.

Investigations

General Rules of Investigations

The Title IX Coordinator and/or an investigator designated by the Title IX Coordinator will conduct an investigation under a reasonably prompt timeframe of the conduct alleged to constitute covered sexual harassment after issuing the Notice of Allegations.

Durham Tech, and not the parties, has the burden of proof and the burden of gathering evidence (i.e., the responsibility of showing a violation of this policy has occurred). This burden does not rest with either party, and either party may decide not to share their account of what occurred or may decide not to participate in an investigation or hearing. This does not shift the burden of proof away from Durham Tech and does not indicate responsibility.

Durham Tech cannot access, consider, or disclose medical records without a waiver from the party (or parent, if applicable) to whom the records belong or of whom the records include information. Durham Tech will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence, as described below.

Inspection and Review of Evidence

Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review the evidence obtained through the investigation. The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to the conclusion of the investigation.

Evidence that will be available for inspection and review by the parties will be any evidence that is directly related to the allegations raised in the formal complaint. It will include any of the following:

1. Evidence that is relevant, even if that evidence does not end up being relied upon by Durham Tech in making a determination regarding responsibility; and
    
2. Inculpatory or exculpatory evidence (i.e., evidence that tends to prove or disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source.

All parties must submit any evidence they would like the investigator to consider prior to when the parties’ time to inspect and review evidence begins.

Durham Tech will send the evidence made available for each party and each party’s Advisor of Choice, if any, to inspect and review through an electronic format or hard copy. Durham Tech is not under any obligation to use any specific process or technology to provide the evidence and shall have sole discretion in terms of determining format and any restrictions or limitations on access.

The parties will have ten calendar days to inspect and review the evidence and submit a written response by email to the investigator. The investigator will consider the parties’ written responses before completing the Investigative Report.

Any evidence subject to inspection and review will be available at any hearing, including for purposes of cross-examination.

The parties and their advisors must sign an agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the sexual misconduct grievance process. Once signed, this agreement may not be withdrawn. The parties and their advisors agree not to photograph or otherwise copy the evidence.

Inclusion of Evidence Not Directly Related to the Allegations

Evidence obtained in the investigation that is determined in the reasoned judgment of the investigator not to be directly related to the allegations in the formal complaint will not be disclosed or may be appropriately redacted before the parties’ inspection to avoid disclosure of a student’s personally identifiable information. Any evidence obtained in the investigation that is kept from disclosure or appropriately redacted will be documented in a privilege log that may be reviewed by the parties and their advisors, if any.

Investigative Report

The Title IX Coordinator and/or an investigator designated by the Title IX Coordinator will create an investigative report that fairly summarizes relevant evidence and will provide the report to the parties at least ten calendar days prior the hearing for each party’s review and written response.

The investigative report is not intended to catalog all evidence obtained by the investigator, but is meant only to provide a fair summary of the evidence. Only relevant evidence (including both inculpatory and exculpatory evidence) will be referenced in the investigative report. The investigator may redact irrelevant information when that information is contained in documents or evidence that are otherwise relevant.

Hearings

General Rules of Hearings

Durham Tech will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live hearing unless it is otherwise resolved through an informal resolution process.

The live hearing may be conducted with all parties physically present in the same geographic location, or, at Durham Tech’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through a remote video conferencing option. This technology will enable participants to simultaneously see and hear each other. At its discretion, Durham Tech may delay or adjourn a hearing based on technological errors not within a party’s control.

All proceedings will be captured via an audiovisual recording. The recording or transcript will be made available to the parties for inspection and review.

Prior to obtaining access to any evidence, the parties and their advisors must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the sexual misconduct grievance process. Once signed, this agreement may not be withdrawn.

Continuances or Granting Extensions

Durham Tech may determine that multiple sessions or a continuance (i.e., a pause on the proceedings until a later date or time) is needed to complete a hearing. If so, Durham Tech will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable.

Newly-Discovered Evidence

As a general rule, no new evidence or witnesses may be submitted during the live hearing. If a party identifies new evidence or witnesses that were not reasonably available prior to the live hearing and could affect the outcome of the matter, the party may request that such evidence or witnesses be considered at the live hearing.

The decision-maker will consider this request and make a determination regarding (1) whether such evidence or witness testimony was actually unavailable by reasonable effort prior to the hearing, and (2) whether such evidence or witness testimony could affect the outcome of the matter. The party offering the newly-discovered evidence or witness has the burden of establishing these questions by the preponderance of the evidence.

If the decision-maker answers in the affirmative to both questions, then the parties will be granted a reasonable pause in the hearing to review the evidence or prepare for questioning of the witness.

Participants in the Live Hearing

Live hearings are not public, and the only individuals permitted to participate in the hearing are as follows:

Complainant and Respondent (The Parties)

• The parties cannot waive the right to a live hearing.
   
• Durham Tech may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence, including through any evidence gathered that does not constitute a “statement” by that party.
  
  For example, a verbal or written statement constituting part or all of the sexual harassment itself is not a “prior statement” that must be excluded if the maker of the statement does not submit to cross-examination about that statement. In other words, a prior statement would not include a document, audio recording, audiovisual recording, and digital media, including but not limited to text messages, emails, and social media postings, that constitute the conduct alleged to have been the act of sexual harassment under the formal complaint. See OCR Blog (May 22, 2020).
   
• Durham Tech will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party’s participation.
   
• If a party does not submit to cross-examination, the decision-maker cannot rely on any prior statements made by that party in reaching a determination regarding responsibility, but may reach a determination regarding responsibility based on evidence that does not constitute a “statement” by that party.
   
• The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination or other questions.
   
• The parties shall be subject to Durham Tech’s Rules of Decorum (Appendix B).
   

The Decision-Maker

• The hearing body will consist of a panel of two decision-makers.
   
• No member of the hearing body will also have served as the Title IX Coordinator, Title IX investigator, or advisor to any party in the case, nor may any member of the hearing body serve on the appeals body in the case.
   
• No member of the hearing body will have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
   
• The hearing body will be trained on topics including how to serve impartially, issues of relevance, including how to apply the rape shield protections provided for complainants, and any technology to be used at the hearing.
   
• The parties will have an opportunity to raise any objections regarding a decision-maker’s actual or perceived conflicts of interest or bias at the commencement of the live hearing.

Advisor of Choice

• The parties have the right to select an advisor of their choice, who may be, but does not have to be, an attorney.
   
• The Advisor of Choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
   
• In addition to selecting an advisor to conduct cross-examination, the parties may select an advisor who may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party.
   
• The parties are not permitted to conduct cross-examination; it must be conducted by the Advisor of Choice. As a result, if a party does not select an advisor, Durham Tech will select an individual to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
   
• The advisor is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
   
• The advisor is not prohibited from being a witness in the matter.
   
• If a party does not attend the live hearing, the party’s advisor may appear and conduct cross-examination on their behalf.
   
• If neither a party nor their advisor appear at the hearing, Durham Tech will provide an advisor to appear on behalf of the non-appearing party.
   
• Advisors shall be subject to Durham Tech’s Rules of Decorum (Appendix B) and may be removed upon violation of those rules.

Witnesses

• Witnesses cannot be compelled to participate in the live hearing, and have the right not to participate in the hearing free from retaliation. See, 85 Fed. Reg. 30026, 30360 (May 19, 2020).
   
• If a witness does not submit to cross-examination, as described below, the decision-maker cannot rely on any statements made by that witness in reaching a determination regarding responsibility, including any statement relayed by the absent witness to a witness or party who testifies at the live hearing. 85 Fed. Reg. 30026, 30347 (May 19, 2020).
   
• Witnesses shall be subject to Durham Tech’s Rules of Decorum (see Appendix B) and may be removed upon violation of those rules.

Hearing Procedures

The live hearing procedure will be as follows:

• A hearing panel will open and establish rules and expectations for the hearing;
   
• The parties will each be given the opportunity to provide opening statements;
   
• The hearing panel officers will ask questions of the parties and witnesses;
   
• Parties will be given the opportunity for live cross-examination after the hearing panel conducts its initial round of questioning;
   
• During the parties’ cross-examination, the hearing panel will have the authority to pause cross-examination at any time for the purposes of asking the hearing panel’s own follow-up questions and to take any time necessary in order to enforce the established rules of decorum.

Should a party or the party’s advisor choose not to cross-examine a party or witness, the party shall affirmatively waive cross-examination through a written or oral statement to the hearing panel. A party’s waiver of cross-examination does not eliminate the ability of the hearing panel to use statements made by the party.

Live Cross-Examination Procedure

Each party’s advisor will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination, the advisor will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility directly, orally, and in real time.

Before any cross-examination question is answered, the hearing panel will determine if the question is relevant. Cross-examination questions that are duplicative of those already asked, including by the hearing panel may be deemed irrelevant if they have been asked and answered.

Review of Recording

The recording of the hearing will be available for review by the parties within ten working days unless there are any extenuating circumstances. The recording of the hearing will not be provided to parties or advisors.

Determination Regarding Responsibility

Standard of Proof

Durham Tech uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of formal complaints covered under this policy. This means that the investigation and hearing determines whether it is more likely than not that a policy violation occurred.

General Considerations for Evaluating Testimony and Evidence

While the opportunity for cross-examination is required in all sexual misconduct hearings, determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the decision-maker.

Decision-makers shall not draw inferences regarding the credibility of a party or witness based on their status as a complainant, respondent, or witness, nor shall decision-makers base their judgments on stereotypes about how a party or witness would or should act under the circumstances.

Generally, credibility judgments should rest on the demeanor of the party or witness, the plausibility of their testimony, the consistency of their testimony and its reliability in light of corroborating or conflicting testimony or evidence.

Still, credibility judgments should not rest on whether testimony is non-linear or incomplete, or if the party or witness is displaying stress or anxiety.

Decision-makers will afford the highest weight relative to first-hand testimony by parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory evidence will be weighed in equal fashion.

Except where specifically barred by the Title IX Final Rule, a witness’s testimony regarding third-party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred.

The Final Rule requires that Durham Tech allow parties to call expert witnesses for direct and cross examination. Durham Tech does not provide for expert witnesses in other proceedings. While the expert witness will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses, regardless of whether the expert witness testimony is the subject of cross-examination and regardless of whether all parties present experts as witnesses.

The Final Rule requires that Durham Tech allow parties to call character witnesses to testify. Durham Tech does not provide for character witnesses in other proceedings. While the character witnesses will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford very low weight to any non-factual character testimony of any witness.

The Final Rule requires that Durham Tech admit and allow testimony regarding polygraph tests (i.e., lie detector tests) and other procedures that are outside of standard use in academic and non-academic conduct processes. While the processes and testimony about them will be allowed for testimonial purposes as required by the Final Rule, the decision-maker will be instructed to afford lower weight to such processes relative to the testimony of fact witnesses.

Where a party or witness’s conduct or statements demonstrate that the party or witness is engaging in retaliatory conduct, including but not limited to witness tampering and intimidation, the decision-maker may draw an adverse inference as to that party’s or witness’s credibility.

Components of the Determination Regarding Responsibility

The written Determination Regarding Responsibility will be issued simultaneously to all parties through their Durham Tech email accounts, or other reasonable means as necessary. The Determination will include the following:

1. Identification of the allegations potentially constituting covered sexual harassment;
    
2. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
    
3. Findings of fact supporting the determination;
    
4. Conclusions regarding which section of the Student Code of Conduct, if any, the respondent has or has not violated.
    
5. For each allegation:
    
   1. A statement of, and rationale for, a determination regarding responsibility;
       
   2. A statement of, and rationale for, any disciplinary sanctions the recipient imposes on the respondent; and
       
   3. A statement of, and rationale for, whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant; and
       
6. The recipient’s procedures and the permitted reasons for the complainant and respondent to appeal (described below in the Appeals section).

Timeline of Determination Regarding Responsibility

If there are no extenuating circumstances, the determination regarding responsibility will be issued by Durham Tech within ten calendar days of the completion of the hearing.

Finality

The determination regarding responsibility becomes final either on the date that Durham Tech provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in the Appeals section below, or if an appeal is not filed, the date on which the opportunity to appeal expires.

Appeals

Each party may appeal (1) the dismissal of a formal complaint or any included allegations and/or (2) a determination regarding responsibility. The appeal must be requested in writing to the Appeal Officer (Title IX Coordinator) within seven calendar days of receipt of the Decision Letter. The written request must state the grounds for the appeal and must include supporting evidence.

The limited grounds for appeal available are as follows:

• Procedural irregularities that affected the outcome of the matter (i.e., a failure to follow Durham Tech’s own procedures);
   
• New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;
   
• The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against an individual party, or for or against complainants or respondents in general, that affected the outcome of the matter.
   
• 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.

The submission of appeal stays any sanctions for the pendency of an appeal. Supportive measures and remote learning opportunities remain available during the pendency of the appeal.

If a party appeals, Durham Tech will as soon as is practicable notify the other party in writing of the appeal; however the time for appeal shall be offered equitably to all parties and shall not be extended for any party solely because the other party filed an appeal.

Appeals may be no longer than 2,000 characters or eight pages, including attachments. Appeals should be submitted in electronic form using 12-point Arial or Times New Roman and should be single-spaced. Appeals should use footnotes, not endnotes. Appeals that do not meet these standards may be returned to the party for correction, but the time for appeal will not be extended unless there is evidence that a technical malfunction caused the appeal document not to meet these standards.

Appeals will be decided by an appeals committee that will be free of conflict of interest and bias. The Title IX investigator, the Title IX Coordinator, and the hearing decision-maker may not serve as members of the appeals committee.

The outcome of the appeal will be provided in writing simultaneously to both parties and will include the rationale for the decision.

Retaliation

Durham Tech will maintain the confidentiality of any parties involved in, or subject to, a Title IX complaint.

No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations.

No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under this policy.

Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or formal complaint of sexual harassment.

Additional Definitions

Actual Knowledge – Notice of sexual harassment or allegations of sexual harassment to Durham Tech’s Title IX Coordinator or any official of Durham Tech who has authority to institute corrective measures on behalf of the College. Notice is not limited to a report of sexual harassment to the Title IX Coordinator. An individual is thought to have actual knowledge of a complaint upon receiving notice from the Title IX Coordinator.

Calendar Days – Durham Tech holidays (i.e., days when the College is officially closed) are excluded from the computation of time. If a duration of time ends on a Saturday or Sunday, the deadline is extended to the following College working day.

Campus and Community Resources – Please see Appendix A.

Clery Act – The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics 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.

Complainant – An individual who is alleged to be the victim of conduct that could constitute sexual harassment.

Complaint – An allegation of sexual misconduct asserted against another party.

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. 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.

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).

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.

Domestic Violence – Domestic violence is violence committed:

• By a current or former spouse or intimate partner of the victim;
• By a person with whom the victim shares a child in common;
• By a person who is cohabitating with, or has cohabitated 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 jurisdiction in which the crime of violence occurred; and/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 jurisdiction in which the crime of violence occurred.
• (To categorize an incident as domestic violence, the relationship between the perpetrator and the victim must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.)

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.

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 where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity.

Formal Complaint – A document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that Durham Tech investigate the allegation of sexual harassment. A compliant may be filed with the Title IX Coordinator in person, by mail, or by electronic mail.

• The Title IX coordinator will accept a document or electronic submission that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.
• Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party and must otherwise comply with their regulatory duties.
• 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.

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

Inculpatory and Exculpatory Evidence – Inculpatory evidence is evidence that shows, or tends to show, a person's involvement in an act, or evidence that can establish guilt. Evidence that tends to show a person's innocence is considered exculpatory evidence.

Informal Resolution Process – Informal resolution options can include mediation, specific action plans, voluntary agreements, or agreed-upon sanctions. Under any informal resolution, the complainant will not be required to resolve the problem directly with the respondent, unless desired by the complainant.

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

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. This offense includes the rape of both males and females.

Rape occurs regardless of the age of the victim, if the victim did not consent or if the victim was incapable of giving consent. If the victim consented, the offender did not force or threaten the victim, and the victim was under the statutory age of consent, define as statutory rape.

Relevant – The Department of Education encourages institutions to apply the “plain and ordinary meaning” of relevance in their determinations. Basically, a relevant question will ask whether the facts material to the allegations under investigation are more or less likely to be true. A question not directly related to the allegations will generally be irrelevant.

Respondent – An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

Retaliation – Any adverse action threatened or taken against a person because they have 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 attempted or actual sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent.

Sexual Harassment – Conduct on the basis of sex that satisfies one or more of the following:

• An employee of Durham Tech conditioning the provision of an aid, benefit, or service of Durham Tech on an individual’s participation in unwelcome sexual conduct.
• Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a Durham Tech education program or activity.

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

• Fear for the person’s safety or the safety of others; or
• Suffer substantial emotional distress which is defined as significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

For the 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.

“Reasonable person” means a reasonable person under similar circumstances and with similar identities to the victim.

Statutory Rape – Sexual intercourse with a person who is under the statutory age of consent

Supportive Measures – Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. These measures are designed to restore or preserve equal access to Durham Tech’s education programs or activities without unreasonably burdening the other party, including measures designed to protect the safety of all parties or Durham Tech’s educational environment, or deter sexual harassment.

Supportive measures may include:

• Counseling;
• Extensions of deadlines or other course-related adjustments;
• Modifications of work or class schedules;
• Campus escort services;
• Restrictions on contact between the parties (no contact orders);
• Changes in work or class locations;
• Leaves of absence; and
• Increased security and monitoring of certain areas of the campus.

Durham Tech will maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of Durham Tech to provide the supportive measures.

The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

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.

Title IX Investigator – The employee appointed by the Title IX Coordinator to conduct prompt, equitable, and impartial administrative investigations into complaints including identifying and interviewing parties; identifying, gathering, and assessing information relevant to the investigation; applying relevant policies; and making findings of fact in individual cases.

Working Days – Days when 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 Equity and Inclusion (Main Campus, Phillips Building (Building 3), suite 3-103)
Victoria Deaton, Equity Compliance Officer/Title IX Coordinator
919-536-7200, ext. 6013 or 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
919-536-7200, ext. 1408
counseling@durhamtech.edu

Community Resources

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

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

Lifeline 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
 

Appendix B – Rules of Decorum

Purpose of the Rules of Decorum

Title IX hearings are not civil or criminal proceedings, and are not designed to mimic formal trial proceedings. They are primarily educational in nature, and the U.S. Department of Education, writing about Title IX in the Final Rule “purposefully designed these final regulations to allow recipients to retain flexibility to adopt rules of decorum that prohibit any party advisor or decision-maker from questioning witnesses in an abusive, intimidating, or disrespectful manner.” 85 Fed. Reg. 30026, 30319 (May 19, 2020). The Department has determined that institutions “are in a better position than the Department to craft rules of decorum best suited to their educational environment” and build a hearing process that will reassure the parties that the institution “is not throwing a party to the proverbial wolves.” Id.

To achieve this purpose, institutions may provide for reasonable rules of order and decorum, which may be enforced through the removal of an advisor who refuses to comply with the rules. Id., at 30320. As the Department explains, the removal process “incentivizes a party to work with an advisor of choice in a manner that complies with a recipient’s rules that govern the conduct of a hearing, and incentivizes colleges and universities to appoint advisors who also will comply with such rules, so that hearings are conducted with respect for all participants.” Id.

At base, these Rules of Decorum require that all parties, advisors of choice, and institutional staff treat others who are engaged in the process with respect.

The rules and standards apply equally to all Parties and their Advisors regardless of sex, gender, or other protected class, and regardless of whether they are in the role of Complainant or Respondent.

Rules of Decorum

The following Rules of Decorum are to be observed in the hearing and applied equally to all parties (meaning the complainant and respondent) and advisors:

1. Questions must be conveyed in a neutral tone.
    
2. Parties and advisors will refer to other parties, witnesses, advisors, and institutional staff using the name and gender used by the person and shall not intentionally mis-name or mis-gender that person in communication or questioning.
    
3. No party may act abusively or disrespectfully during the hearing toward any other party or to witnesses, advisors, or decision-makers.
    
4. While an advisor may be an attorney, no duty of zealous advocacy should be inferred or enforced within this forum.
    
5. The advisor may not yell, scream, badger, or physically ‘‘lean in’’ to a party or witness’s personal space. Advisors may not approach the other party or witnesses without obtaining permission from the hearing panel.
    
6. The advisor may not use profanity or make irrelevant ad hominem attacks upon a party or witness. Questions are meant to be interrogative statements used to test knowledge or understand a fact; they may not include accusations within the text of the question.
    
7. The advisor may not ask repetitive questions. This includes questions that have already been asked by the hearing panel, the advisor in cross-examination, or the party or advisor in direct testimony. When the hearing panel determines a question has been “asked and answered” or is otherwise not relevant, the advisor must move on.
    
8. Parties and advisors may take no action at the hearing that a reasonable person in the shoes of the affected party would see as intended to intimidate that person (whether party, witness, or official) into not participating in the process or meaningfully modifying their participation in the process.

Warning and Removal Process

The hearing panel shall have sole discretion to determine if the Rules of Decorum have been violated. The hearing panel will notify the offending person of any violation of the Rules.

Upon a second or further violation of the Rules, the [decision-maker] shall have discretion to remove the offending person or allow them to continue participating in the hearing or other part of the process.

Where the hearing panel removes a party’s advisor, the party may select a different advisor of their choice, or accept an advisor provided by the institution for the limited purpose of cross-examination at the hearing. Reasonable delays, including the temporary adjournment of the hearing, may be anticipated should an advisor be removed. A party cannot serve as their own advisor in this circumstance.

The hearing panel shall document any decision to remove an advisor in the written determination regarding responsibility.

For flagrant, multiple, or continual violations of this Rule, in one or more proceedings, advisors may be prohibited from participating in future proceedings at the institution in the advisor role on a temporary or permanent basis. Evidence of violation(s) of this agreement will be gathered by the Title IX Coordinator and presented to the Dean, Student Services for cases involving students or the HR Director for cases involving employees. The Advisor accused may provide an explanation or alternative evidence in writing for consideration by the Dean, Student Services or HR Director. Such evidence or explanation is due within fifteen (15) calendar days of receipt of a notice of a charge of re-disclosure or improper access to records. There shall be no right to a live hearing, oral testimony, or cross-examination. The Dean, Student Services or HR Director will consider the evidence under a preponderance of the evidence standard and issue a finding in writing and, if the finding is Responsible, shall include a Sanction. The finding shall be issued in writing to all Parties and Advisors (if there is a current case pending) within thirty (30) days unless extended for good cause. There is no appeal of this finding. Sanctions shall be higher for intentional re-disclosure of records than for negligent re-discourse. In the event that an Advisor is barred permanently or for a term from serving in the role as Advisor in the future, they may request a review of that bar from the Dean, Student Services or the HR Director no earlier than three-hundred and sixty-five (365) days after the date of the findings letter.

Relevant Questions Asked in Violation of the Rules of Decorum

Where an advisor asks a relevant question in a manner that violates the Rules, such as yelling, screaming, badgering, or leaning-in to the witness or party’s personal space, the question may not be deemed irrelevant by the decision-maker simply because of the manner it was delivered. Under that circumstance, the decision-maker will notify the advisor of the violation of the Rules, and, if the question is relevant, will allow the question to be re-asked in a respectful, non-abusive manner by the advisor (or a replacement advisor, should the advisor be removed for violation of the Rules). See, 85 Fed. Reg. 30331.

Durham Tech uses Title IX training materials provided by SUNY, which are available for review.