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University Policy


Sexual Misconduct Policy

[27 April 2015]

I.  GENERAL POLICY STATEMENT

Brigham Young University – Hawaii is committed to promoting and maintaining a safe and respectful environment for the campus community. The university will not tolerate sexual harassment, sexual violence, domestic violence, dating violence, or stalking (collectively “Sexual Misconduct”) perpetrated by or against any university students, university employees, participants in university programs and activities, or visitors to its campus. This policy prohibits Sexual Misconduct by university employees (which include all faculty, staff, and administrative employees) and students, whether the behavior occurs on or off campus. This policy also prohibits Sexual Misconduct by or against visitors to the university (such as independent contractors, vendors, visiting lecturers, and visiting student-athletes).

The university will take immediate and appropriate steps to stop Sexual Misconduct, prevent its recurrence, and address its effects. Any person who violates this policy may be subject to discipline up to and including termination of employment, suspension, dismissal, and a ban from campus, depending on the circumstances and the severity of the violation and the violator’s status as an employee, student, or visitor.

The university will work to prevent Sexual Misconduct and address reports of Sexual Misconduct by

               educating members of the campus community about this policy and applicable laws;

               promptly addressing and resolving reports of Sexual Misconduct in accordance with this policy;

               protecting the rights of all parties involved in a complaint; and

               Imposing appropriate discipline against those who have engaged in Sexual Misconduct.

Individuals should seek to resolve incidents of Sexual Misconduct by following the procedures set forth in the procedural flowchart accompanying the policy.

II. PROHIBITED CONDUCT

As required by Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964, the university prohibits sex discrimination in its educational programs or activities, admission, and employment. See Nondiscrimination and Equal Opportunity Policy. Under certain circumstances, Sexual Misconduct may constitute sex discrimination.

Sexual Misconduct prohibited under this policy includes a range of unwelcome sexual conduct, including verbal and physical sexual harassment, sexual assault, and other forms of sexual violence, each of which is a form of prohibited sex discrimination. Other criminal behavior, such as domestic violence, dating violence, and stalking, that is generally (though not exclusively) sex-based is also considered Sexual Misconduct under this policy. Sex discrimination of a non-sexual or non-criminal nature prohibited under the Nondiscrimination and Equal Opportunity Policy.

A.  SEXUAL HARASSMENT

Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature whether verbal, nonverbal, or physical. Conduct is unwelcome if the individual toward whom it is directed did not request or invite it and regarded the conduct as undesirable or offensive. A wide variety of sexual conduct may constitute sexual harassment. Examples of sexual harassment include, but are not limited to, the following:

               Sexually suggestive or offensive joking, flirting, or comments

               Unwelcome and intentional touching

               Sexually oriented verbal abuse

               Sexually oriented comments about an individual's body

               Displaying objects or pictures that are sexual in nature

               Sending sexually explicit or offensive text messages or other communications

Sexual harassment of any kind is contrary to the teachings of The Church of Jesus Christ of Latter-day Saints and the Brigham Young University – Hawaii Honor Code, and is considered to be Sexual Misconduct prohibited under this policy.

Sexual harassment directed at employees or students of the university is also a form of sex discrimination which may be prohibited by Title VII of the Civil Rights Act of 1964 (prohibiting unlawful discrimination, including sex discrimination, in employment) and Title IX of the Educational Amendments of 1972 (prohibiting sex discrimination in federally-funded education programs and activities). Sexual harassment prohibited by these laws generally falls within one of two categories:

1.              Quid pro quo sexual harassment—when submission to or rejection of the unwelcome sexual conduct is used as a basis for employment decisions affecting an employee, or when a teacher or other employee conditions an educational decision or benefit on a student’s submission to unwelcome sexual conduct.

2.              Hostile environment sexual harassment—when the unwelcome sexual conduct is so severe or pervasive that it alters the conditions of an employee’s employment and creates a hostile, intimidating, or abusive working environment or it denies or limits a student’s or employee’s ability to participate in or benefit from the university’s programs or activities.

To avoid the possibility or appearance of quid pro quo sexual harassment, employees and students should avoid dating, romantic, or amorous relationships where a power differential exists. Examples of such relationships include, but are not limited to, a professor or teaching assistant involved in a relationship with his or her student, or a supervisor involved in a relationship with a subordinate employee. If such a relationship exists, it must be approved by both parties with the appropriate supervisor(s), who should document the disclosure of the relationship and confirm with the parties that the relationship is voluntary and not unwelcome to either party. As a general rule, dating, romantic, or amorous relationships should not be entered into or continued while one individual in the relationship has the power to either reward or penalize the other in work or in school.

Sexual harassment that creates a hostile environment is more common than quid pro quo harassment, but it is more difficult to identify. In order for harassment to be sufficiently severe or pervasive to create a hostile environment, the employee or student must subjectively consider the environment to be hostile or abusive and the conduct would also have to be objectively offensive, that is, reasonable people in the employee or student’s position would also find the conduct to be offensive, considering all the circumstances.

The fact that someone did not intend to sexually harass an individual is generally not a defense to a complaint of sexual harassment. In most cases, determining whether the behavior has created a hostile environment depends on the effect the behavior has on the victim (including its effect on an employee’s job performance or a student’s education) and the surrounding circumstances (such as the type, frequency, and duration of the conduct; the relationship between the alleged perpetrator and victim; the number of people involved in the conduct; and the location and context of the incidents). Unwelcome sexual conduct that is mildly offensive and isolated, incidental, or sporadic does not rise to the level of unlawful sexual harassment under Title IX or Title VII, even though it may still be considered sexual harassment in violation of this policy and the Brigham Young University – Hawaii Honor Code.

B.  SEXUAL VIOLENCE, DOMESTIC VIOLENCE, DATING VIOLENCE, AND STALKING

Sexual violence is a form of sexual harassment and refers to physical sexual acts perpetrated against a person who has not consented or who is incapable of giving consent. Consent is a voluntary agreement to engage in sexual activity and is determined by all the relevant facts and circumstances. Consent cannot be given by someone who is incapacitated for any reason (i.e., because of the victim’s age, disability, unconsciousness, or use of drugs or alcohol). Additionally, consent cannot be implied by silence, the absence of resistance, or past consent with the same or another person. Even if a person has given his or her consent to engage in sexual activity, consent to engage in further sexual activity can be withdrawn at any time. Consent is invalid where it is given under coercion, force, or threats.

Examples of sexual violence include, but are not limited to, rape, sexual assault, sexual battery, and sexual abuse. Such acts of sexual violence, in addition to being criminal offenses prohibited under the Hawaii Penal Code, also constitute Sexual Misconduct prohibited under this policy. A single act of sexual violence (e.g., rape) may be sufficiently severe to create a hostile environment.

Domestic violence, dating violence, and stalking are likewise criminal offenses under the Hawaii Penal Code and are also considered Sexual Misconduct prohibited under this policy, even when the criminal behavior is not specifically sexual in nature.

Domestic violence is a violent crime committed by a current or former spouse or intimate partner (or someone similarly situated) or any other person against a victim who is protected from that person’s acts under state domestic or family violence laws. Dating violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or to suffer substantial emotional distress.

III. REPORTING INCIDENTS

A.  DUTY TO REPORT

Some university employees have a duty under this policy to report Sexual Misconduct. Even so, all persons are encouraged to and may voluntarily report incidents of Sexual Misconduct to the Title IX Coordinator. State law imposes additional reporting obligations related to sexual abuse of a child. Victims of Sexual Misconduct are strongly encouraged to report incidents of Sexual Misconduct.

1.  Responsible Employees

A dean, director, department chair, professor, coach, University Security officer, or any other university employee in a managerial or supervisory role (“Responsible Employee”) who becomes aware of or reasonably suspects any incidents of Sexual Misconduct must promptly report all relevant information to the Title IX Coordinator. A Responsible Employee who receives a report of Sexual Misconduct should inform the reporting individual that the employee must report the incident, and the employee should then promptly make the report to the Title IX Coordinator. Responsible Employees with information regarding an incident of Sexual Misconduct who fail to report relevant information or to cooperate in an investigation may be subject to disciplinary action.

The only exceptions to the reporting obligation for Responsible Employees are those situations in which the Responsible Employee received the information as part of a confidential communication in the context of a professional or otherwise privileged relationship (i.e., the Responsible Employee was the reporting person’s doctor, therapist, lawyer, ecclesiastical leader, or spouse).

2. Child Abuse Reporters

Any employee, officer, or volunteer of BYU Hawaii who has reason to believe that a child (anyone under 18 years old) has been subjected to sexual violence or other forms of abuse or neglect, or that there exists a substantial risk that child abuse or neglect may occur in the reasonably foreseeable future, must immediately report the matter orally to the police department or to Child Welfare Services within the State of Hawaii Department of Human Services at 808 832 5300, as required by the state and the University’s  Youth Protection Policy.

3. Campus Security Authorities

A university employee who has been designated as a Campus Security Authority (“CSA”) and who receives a report of Sexual Misconduct must relay statistical information about incidents of sexual assault, dating violence, domestic violence, and stalking to University Police. CSAs are persons who have responsibility for campus security or who have significant responsibility for student and campus activities. Such persons include, but are not limited to, security staff, vice presidents, athletic directors, coaches, deans, directors, managers, Office of Honor staff, and Residence Life hall advisors. Federal law requires that the university prepare and distribute an annual security report containing statistics for certain crimes that were reported to CSAs. The university must also issue timely warnings about crimes that pose a threat to students and employees.

4. Victims of Sexual Misconduct

In order to protect their own and others’ safety, individuals who believe they have been subjected to Sexual Misconduct should make a report even if they have simultaneously been involved in other violations of university policy, such as use of alcohol or drugs. Violations of university policy or the Brigham Young University – Hawaii Honor Code do not make a victim at fault for sexual violence or other forms of Sexual Misconduct and will be addressed separately from the Sexual Misconduct allegation.

Individuals who believe they have been victims of sexual harassment may seek to resolve the issue privately under the informal resolution provisions of this policy or may report the issue under the formal resolution provisions provided herein. Individuals who believe they have been victims of sexual violence, or those who have suffered severe or pervasive sexual harassment creating a hostile environment, should always come forward and make a report under the formal resolution provisions.

B.  WHERE TO REPORT

Sexual Misconduct should be reported to the Title IX Coordinator,808-675-4819 titleIX@byuh.edu. The names, office addresses, and telephone numbers of the Title IX Coordinator and the deputy coordinators are also posted on the university’s Title IX website attitleix.byuh.edu. In addition, individuals may submit reports, including anonymous reports, through Ethics Point, the university’s 24-hour hotline provider, by telephone at 888-238-1062, or by submitting information online at https://secure.ethicspoint.com/domain/en/default_reporter.asp. A report of Sexual Misconduct (“Report”) can be made verbally or in writing.

The Title IX Coordinator oversees all Title IX complaints and investigations and coordinates the university’s response to sex discrimination. The remainder of this policy outlines various responsibilities of the Title IX Coordinator.

If a Report involves potentially criminal acts (i.e., rape, acquaintance rape, domestic violence, dating violence, sexual assault, or stalking), the alleged victim should be informed in writing that he or she also has the option to make a formal criminal complaint by reporting the incident to the University Security 675-3911 or local police by calling 9-1-1. Alleged victims also have the option to decline to notify law enforcement authorities or to be assisted by Responsible Employees in notifying such authorities. The University Police will notify the Title IX Coordinator of all such reports received.

Inquiries concerning Title IX and unlawful sex discrimination may be referred to the university’s Title IX Coordinator or the Equal Opportunity Manager. The Office for Civil Rights within the U.S. Department of Education (OCR) investigates claims of unlawful sex discrimination, including sexual harassment and sexual violence, in the university’s educational programs and activities. The OCR may be contacted by email at ocr@ed.gov or through its website at https://www2.ed.gov/about/offices/list/ocr/index.html. The U.S. Equal Employment Opportunity Commission (EEOC) investigates claims of unlawful employment discrimination, including sexual harassment and sexual violence, in the workplace. The EEOC may be contacted by telephone at 800-669-4000 or through its website at https://eeoc.gov/employees/charge.cfm.

C.  OTHER PROCEDURES AND SERVICES FOR VICTIMS

A student or employee who reports to the university that he or she has been a victim of dating violence, domestic violence, sexual assault, or stalking—even if the offense occurred off campus—will be provided with a written explanation of victims’ rights and options as follows:

1.              Procedures victims should follow, including information about preserving evidence, reporting the offense, and obtaining protective orders

2.              Information about how confidentiality will be protected

3.              Existing counseling, health, mental health, victim advocacy, legal assistance, student financial aid, and other services available for victims, both within the university and in the community

4.              Options for, available assistance in, and how to request changes to academic, living, transportation, and working situations or protective measures

5.              Procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking

6.              Possible sanctions or protective measures the university may impose following a final determination of an institutional disciplinary procedure

In situations where criminal conduct is involved or personal safety is a concern, it is important that victims of Sexual Misconduct preserve evidence as necessary to prove the crime or secure a protective order through the court system. Victims may choose to seek medical treatment in order to preserve evidence, treat injuries, or prevent sexually transmitted diseases. It is also possible to get a rape kit or find a Sexual Assault Nurse Examiner (SANE) through law enforcement or local hospitals. Health care services are available at local hospitals as well as the on-campus Health Center, 55-220 Kulanui Street #1728, Laie, Hawaii, 808-675-3510.

Counseling support is available to victims whether or not they choose to make an official Report. Victims can make confidential disclosures to BYU Hawaii Counseling Services, McKay Building 181, 808-675-3518. 

The university will provide written notification to students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, student financial aid, and other services available for victims, both within the institution and in the community. Such information will be made available through various university communications and on the University’s Title IX website at https://titleix.byuh.edu/ .

D.  COMPLAINT AND ACTIVITY LOG

The University’s Title IX Coordinator will maintain a confidential log of Title IX complaints and activity. To the extent that other campus departments receive complaints of Sexual Misconduct, are involved with complaint investigations, or conduct any part of the resolution proceedings, they should promptly report this activity to the Title IX Coordinator for entry into the confidential log, even if the complaints are resolved without the involvement of the Title IX Coordinator.

E.  RETALIATION

Retaliation or intimidation against an individual who has made a Report or provided information in connection with an investigation of Sexual Misconduct is strictly prohibited. Retaliation is any adverse action taken against an individual because he or she has engaged in a legally protected action opposing Sexual Misconduct or participating in a Sexual Misconduct proceeding if the adverse action is reasonably likely to deter the person or others from pursuing their rights. Similarly, intimidation is any adverse action or threat of action reasonably likely to prevent or dissuade an individual from making a Report or providing information in connection with a Sexual Misconduct investigation. Individuals who participate in a Sexual Misconduct investigation should be advised that university policy and federal law prohibit retaliation against them or against individuals closely associated with them and should be assured that the university will take steps to prevent retaliation and will take strong responsive action to any act of retaliation of which it becomes aware. See Nondiscrimination and Equal Opportunity Policy. An individual who feels that he or she has been subjected to retaliation should report the incident to the Title IX Coordinator or the Equal Opportunity Manager.

IV. COMPLAINT RESOLUTION PROCEDURES

The following procedures are designed to provide for the prompt and equitable investigation and resolution of reports of Sexual Misconduct perpetrated by or against university employees, students, or campus visitors. These procedures will include a prompt, fair, and impartial process from the initial investigation to the final result. Additionally, these procedures will be conducted by officials who do not have a conflict of interest or bias for or against the parties and who receive annual training on the issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.

A.  INFORMAL RESOLUTION

Whenever it is reasonably possible and safe to do so, an individual who believes he or she has been subjected to Sexual Misconduct (“Complainant”) may attempt to resolve the issue privately and constructively with the person responsible for the alleged misconduct (“Respondent”).  However, an attempt at informal resolution is not required and is not appropriate, even on a voluntary basis, in instances of sexual violence or other criminal behavior, or when sexual harassment is severe or has become pervasive.

The goal of informal resolution is to conclude the matter to the satisfaction of both parties quickly and confidentially. Either party may enlist the assistance of the Title IX Coordinator or (when harassment is alleged to have taken place in the employment context) the Equal Opportunity Manager in this effort. If satisfactory resolution is not reached after such informal efforts, or if the Complainant believes informal resolution is not possible or may be unsafe, he or she may forego the informal resolution process or discontinue it at any time and address the concern using the formal resolution process described below.

B.  FORMAL RESOLUTION

The formal resolution process may be initiated by submitting a Report to the Title IX Coordinator. Anyone can submit a Report under this policy; however, the submission of such a Report does not prevent the Complainant from subsequently pursuing informal resolution with the Respondent in appropriate circumstances.

1.  Selection of the Investigator

Upon receiving a Report, the Title IX Coordinator will record the incident in the confidential log of Title IX complaints and activity and will select a qualified employee to promptly investigate the allegations in the Report (“Investigator”). The Title IX Coordinator will consider any conflicts of interest, time constraints, or other relevant factors in selecting an Investigator. The Complainant and the Respondent may each raise issues regarding bias or a potential conflict of interest of investigators or others involved in the resolution process by contacting the Title IX coordinator.

2.  Confidentiality

Given the sensitive nature of Sexual Misconduct allegations and the potential for damage to the parties’ personal reputations, all Reports will be investigated as confidentially as reasonably possible. All participants in the investigation—including the Complainant, the Respondent, the Investigator, and individuals interviewed by the Investigator—should keep the allegations and proceedings confidential, and should provide information only to those university and governmental employees who are authorized to investigate the Report or who otherwise have a legitimate need to know. Records kept by the university relating to Sexual Misconduct allegations are not publicly available, but in the event that the university is required to make any such records publicly available, any identifying information about the Complainant will be excluded, to the extent permissible by law, to protect the Complainant’s confidentiality. Federal law requires the university to publicly disclose statistics about reported incidents of sexual assault, domestic violence, dating violence, and stalking; however, no personally-identifiable information is maintained or published for purposes of such reporting.

Notwithstanding the foregoing confidentiality provisions, Complainants and any witnesses who participate in an investigation of Sexual Misconduct should be advised that their confidentiality will be preserved only to the extent it does not interfere with the university's ability to investigate the Report and take corrective action, and that if the investigation results in litigation, the university may be legally required to disclose any information it has received.

If a Complainant requests that his or her identity be kept confidential or asks the university not to pursue an investigation, the Complainant should be notified that (1) the university’s ability to investigate and respond to the Report may be limited by such a request, and (2) under some circumstances the university may not be able to honor such a request. The university will take all reasonable steps to investigate and respond to a Report consistent with the Complainant’s request for confidentiality. However, without conducting a full investigation or disclosing the full nature of the Report (including its source) to the Respondent, the university may be unable to impose any discipline, and its corrective actions might be limited to informing the Respondent that allegations of discriminatory behavior have been made against him or her, preserving a record of the discrimination allegation in the Respondent’s employment or student disciplinary file, and pursuing other steps to limit the effects of the alleged harassment and prevent its recurrence, such as training or surveys in the affected area or department. Complainants who desire complete confidentiality may be advised that they can address their confidential concerns to ecclesiastical leaders, mental or physical health providers, or their own legal counsel.

The Complainant should also be advised that the university may not be able to honor a request for confidentiality or to forego an investigation if such a request would prevent the university from meeting its responsibility to provide students and employees with a safe and nondiscriminatory environment and its corresponding obligations to provide a thorough and impartial investigation and a prompt and equitable resolution of the Report. The Investigator, in consultation with the Title IX Coordinator, is responsible for evaluating requests for confidentiality or to forego an investigation.

The Investigator will consider the following factors in determining whether to disclose the identity of a Complainant or pursue an investigation contrary to the Complainant’s request:

               the seriousness of the alleged Sexual Misconduct

               the age or maturity of the Complainant

               the existence of any previous accusations against the alleged violator

               the existence of independent evidence to substantiate the allegations

               in the case of accusations against a student, the rights of the student under the Access to Student Records (FERPA) policy and procedures and corresponding federal and state privacy laws or laws mandating disclosure

If the Investigator determines he or she cannot honor a Complainant’s request for confidentiality or a Complainant’s request to forego an investigation, the Investigator will inform the Complainant prior to commencing an investigation.

3.  Preliminary Assessment

Upon receiving a Report of Sexual Misconduct, the Title IX Coordinator and the Investigator will promptly perform a preliminary assessment based on the facts reported to determine whether they provide reasonable cause to believe a violation of this policy may have occurred. If there is no reasonable cause to believe a violation occurred, no further action will be taken and the Complainant will be informed that his or her Report has been considered and will not be investigated. If reasonable cause is found, an investigation will proceed as provided below.

4.  Interim Measures

Based on any information acquired in the course of the preliminary assessment or investigation, the Title IX Coordinator or Investigator may recommend that interim measures be taken to protect the Complainant or others from further acts of Sexual Misconduct or retaliation while the investigation is still pending. This recommendation should be submitted to the office or individual within the university administration authorized to implement the recommendation. If requested and available, interim measures will be provided whether or not a victim of Sexual Misconduct chooses to report the crime to campus police or local law enforcement. The university will provide written notification to victims about options for, available assistance in, and how to request changes to academic, living, transportation, and working situations or other protective measures. In situations deemed to be extreme or dangerous, the office or individual within the university administration authorized to impose discipline on the Respondent (the “Responsible Administrator”) may take interim disciplinary action against the Respondent, up to and including a temporary suspension and ban from campus; in such cases both parties will receive simultaneous written notification. Other remedial interim measures may also be appropriate, such as special training in the affected department or area, or the dissemination of information about how to report Sexual Misconduct. The nature of any interim measures granted to a victim will be kept confidential to the extent reasonably possible.

5.  The Complainant’s Written Complaint, Supporting Documentation, and
      Evidence

If a Complainant has not already submitted a sufficient written statement in connection with the initial Report, the Investigator will invite the Complainant to prepare and sign a written statement of the facts involved (“Complaint”). The Complaint should clearly and concisely describe the incident(s), including when and where the alleged Sexual Misconduct occurred. The Complaint may also include an explanation as to why the Complainant believes the Respondent’s behavior was unlawful or in violation of university policy, corroborating facts and evidence, the names of other individuals who may have information relevant to the Complaint, other materials or evidence in support of the Complaint, and a proposal for an appropriate resolution. The Complaint may not exceed ten pages in length, exclusive of attached documents and supporting materials, and must be submitted within five business days of the Investigator’s request. Based on the Complainant’s written and oral statements, the Investigator will prepare a written summary of the allegations (“Summary”).

The Investigator will ask the Complainant to review the Summary, make any necessary corrections, and affirm it with a signature. If the Complainant refuses to sign the Summary of the allegations, the Investigator may either (a) note that the allegations have been withdrawn and terminate the investigation, or (b) note that the Complainant has refused to sign the Summary of the allegations, but that the investigation will nevertheless proceed to determine what occurred and to protect the university’s interest in maintaining an environment free from sex discrimination.

A copy of the Summary will be provided to the Respondent at a point in the investigation when the Investigator deems it advisable. The Investigator, in consultation with the Title IX Coordinator, may redact the Summary copy before providing it to the Respondent to protect the identity or safety of the Complainant or any witnesses or for any other reason as the Investigator deems advisable.

6.  The Respondent’s Written Response, Supporting Documentation, and Evidence

The Respondent may prepare and submit a signed written statement in response to the Summary of allegations (“Response”). The Response should indicate whether the Respondent admits or denies the allegations in the Summary and should provide any exculpatory facts or evidence, including the names of other individuals who may have information relevant to the allegations and other materials in response to the Summary. The Response may also include an explanation as to why the Respondent believes any admitted conduct was lawful or was not in violation of university policy and whether any resolution proposed by the Complainant is or is not appropriate. The Response may not exceed ten pages in length, exclusive of attached documents and supporting materials, and must be submitted within five business days of delivery of the Summary to the Respondent. While reasonable efforts will be made to communicate with the Respondent, delivery occurs when the university sends the Summary to the email and residential address of the Respondent that is on file with the university.

If the Respondent submits a Response, a copy of the Response will be provided to the Complainant at a point in the investigation when the Investigator deems it advisable. The Investigator may redact the Response copy before providing it to the Complainant to protect the identity or safety of any witnesses or for any other reason as the Investigator deems advisable.

7.  Concurrent Investigations or Processes

An investigation conducted under these procedures will be conducted independent of any associated criminal investigation or any other university investigation or procedures. If the university determines the issues raised in this investigation may be relevant to its determination in another non-criminal investigation or another process that is simultaneously pending at the university, it may direct that the other investigation or process be suspended until this investigation and any appeals or administrative reviews are concluded. However, an investigation under these procedures will not be suspended pending the conclusion of a criminal investigation or any other investigation, though the fact-finding portion of the investigation may be delayed temporarily while the police are gathering evidence. While the findings and conclusions of one investigation will not determine the outcome of any other, any evidence or findings developed in any university or non-university investigation may be shared with and considered in any other university investigation.

8.  Cooperation with University Investigations

Employees or students who fail to cooperate in the investigation, including those who knowingly or recklessly misrepresent any facts or who withhold pertinent information, may be subject to disciplinary action up to and including suspension or dismissal from the university or termination of university employment. The knowing or reckless reporting of false charges of Sexual Misconduct will be treated as a material breach of the Brigham Young University – Hawaii Honor Code, subjecting the individual making the false accusations to similar disciplinary action.

9.  Support Person

Only the Complainant and Respondent are permitted to participate in the formal resolution process; however, each party may be accompanied by one support person.  Legal advisors for the parties may not attend proceedings as the support person unless the Summary includes allegations of dating violence, domestic violence, sexual assault, or stalking. A party’s support person may attend for purposes of observation but will not be permitted to participate in any employee or student interview, meeting, or other proceeding that may take place under these procedures. A support person may be immediately excluded from the proceedings if he or she attempts to intervene or participate in any way.

10.  The Investigation

The investigation should be thorough, prompt, adequate, reliable, and impartial. The university will, in good faith, attempt to conclude the investigation and resolution within sixty calendar days of the Title IX Coordinator receiving the Report. If, as a result of the complexity of the case, unavailability of witnesses, or other extenuating facts and circumstances, the investigation cannot reasonably be concluded within the sixty-day period, the Complainant and the Respondent will be provided with written notice of the delay and the reason for the delay.

During the investigation, the Investigator will consider the Complaint and Response, conduct interviews, and review any other documents or evidence submitted by the parties or discovered during the investigation. An investigation under these procedures is an internal university employment or student disciplinary matter.

At any time during the investigation, either of the parties or the Investigator may propose a resolution of the matter. If both the Complainant and the Respondent are satisfied with this proposed resolution, and if the Investigator, the Title IX Coordinator, and the Responsible Administrator are also satisfied that the university’s interests are protected, the matter may be resolved as proposed.

At the conclusion of the investigation, the Investigator will determine, based on the preponderance of the evidence (i.e., whether it is more likely than not), whether the Respondent has in fact engaged in Sexual Misconduct or other behavior in violation of university policy. The Investigator will promptly communicate findings and a recommendation of appropriate resolution, including any disciplinary sanctions, to the Responsible Administrator, and may provide the Responsible Administrator with a report of findings describing the evidence and reasoning supporting the Investigator’s findings and recommendation.

Both the Complainant and the Respondent are entitled to have the same opportunity to present evidence and may have a support person in attendance.  However, the University has the right to establish restrictions on the support person’s participation in the proceedings as long as the restrictions apply equally to both parties.

11.  Resolution and Disciplinary Sanctions

Upon receiving the Investigator’s findings and recommendations, the Responsible Administrator will promptly determine the resolution of the allegations of Sexual Misconduct, including the imposition of any disciplinary sanctions, as provided in the applicable disciplinary policy. The Responsible Administrator may consult with the Investigator and Title IX Coordinator in making this determination. Any person found in violation of this policy may be subject to discipline as described below, depending on the circumstances and the severity of the violation.

The Responsible Administrator(s) and the applicable disciplinary policy will be determined as follows:

               The Responsible Administrators for allegations of Sexual Misconduct against a faculty member is the Associate Academic Vice President (AAVP). Possible sanctions include verbal counseling, written warning, probation, reassignment, demotion, reduction in pay, suspension, termination of faculty employment, and a ban from campus.

               The Responsible Administrator for allegations of Sexual Misconduct against a non-faculty employee is the director or managing director over the employee’s area, who shall administer any discipline in consultation with the Manager of Employee Relations and consistent with the Discipline and Discharge of Administrative/Staff Personnel Policy. Possible sanctions include verbal counseling, written warning, probation, reassignment, transfer, demotion, reduction in pay, suspension, termination of employment, and a ban from campus.

               The Responsible Administrator for allegations of Sexual Misconduct against a student is the Honor Council, which shall administer any discipline consistent with the Non-academic Discipline provisions of the Brigham Young University -- Hawaii Honor Code. Possible sanctions include fines, community service, loss of privileges, nonacademic probation for a specified period of time, being counseled out (voluntary withdrawal), suspension (involuntary withdrawal for a specified period of time), or dismissal (permanent, involuntary withdrawal), and a ban from campus. If the student is also an employee of the university, the Investigator will provide a copy of the findings and recommendation to the student employee’s manager, who will administer any discipline affecting the student’s employment status in consultation with the Manager of Employee Relations and consistent with the Discipline and Discharge of Administrative/Staff Personnel Policy. Possible sanctions include those identified above for other non-faculty employees.

               The Responsible Administrators for allegations of Sexual Misconduct against a visitor to campus who is neither a student nor an employee of the University are the vice president over the university unit that originally invited the visitor to campus, or the vice president’s designee, and, if a violation is found, the Threat Assessment Committee. If the visitor was not invited to campus, the Responsible Administrator is the Threat Assessment Committee. Possible sanctions include banning the visitor from all or a part of the university campus.

The resolution shall include, in addition to any discipline imposed, reasonable steps designed to correct any discriminatory effects on the Complainant and on others who may have been affected, and to prevent the recurrence of any discriminatory or otherwise inappropriate actions. Possible protective measures that may be imposed following the investigation include the following: making interim measures permanent, offering remedies and accommodations to the Complainant, implementing changes in programs or activities, or providing training for the campus community or specific groups or individuals.

The Responsible Administrator will communicate the outcome of the investigation and resolution, including any sanctions, and the university’s procedures to appeal the results in writing to both the Complainant and the Respondent simultaneously (“Outcome Notice”). However, the Responsible Administrator may choose not to disclose the discipline imposed by the resolution, and will not disclose the discipline imposed on a student except under one of the following circumstances:

               the discipline directly affects the other party—such as when the student is ordered to stay away from the other party, is transferred to another job, worksite, class, or residence hall, or is suspended or dismissed from the university;

               the Complainant alleged Sexual Misconduct involving a crime of violence or a non-forcible sex offense; or

               the student gives his or her written permission to disclose the discipline.

The university may also report findings of criminal misconduct to the police and may report criminal or other serious misconduct to an individual’s ecclesiastical leaders as it deems appropriate in its absolute discretion.

12.  Review of Outcome

A party who remains unsatisfied with the outcome may request an administrative review of the investigation outcome and resolution (“Review”). The Complainant or Respondent must request a Review within two business days of delivery of the Outcome Notice to the parties. The party requesting a Review must identify at least one of the following grounds in requesting the Review:

               The outcome of the investigation is clearly contrary to the preponderance of the evidence.

               A procedural error significantly impacted the outcome of the investigation (e.g., a substantiated bias or material deviation from these procedures).

               New evidence, unavailable to the party during the original investigation, has been discovered that could substantially impact the original outcome. This new evidence and an explanation of its potential impact must be included in the request for review.

               The discipline imposed is substantially disproportionate to the severity of the violation (i.e., too severe or not severe enough).

               The non-disciplinary aspects of the resolution are not reasonably designed to correct the discriminatory effects on the Complainant and on others who may have been affected or to prevent the recurrence of further discriminatory or otherwise inappropriate actions.

Except as otherwise specified in the applicable university policy or procedure, the final resolution of the Responsible Administrator will be affirmed unless the party seeking Review demonstrates, by clear and convincing evidence, that one or more of these conditions has been met.

Any Review should be initiated and conducted pursuant to the applicable university policy or procedure, as follows:

               A faculty member who is dissatisfied with a final resolution may initiate a grievance or file an appeal pursuant to theFaculty Grievances policy.

               Administrative and staff employees who are dissatisfied with the final resolution that results in disciplinary sanctions against them may submit a grievance pursuant to the Grievance Policy. Full-time administrative and staff employees may seek an administrative review of a resolution resulting in the termination of their employment under the same policy.

               When the resolution includes disciplinary sanctions affecting a student’s Honor Code standing, the student may seek a review pursuant to the Requesting a Review provisions of the Brigham Young University -- Hawaii Honor Code.

In situations where there is no other university policy or procedure that applies, the Complainant may petition the immediate supervisor of the Responsible Administrator who determined the resolution for a Review.

The petition for review should be submitted to the Title IX Coordinator, who will conduct the Review together with (a) the Vice President for Academics when the Respondent is a faculty member or (b) the Administrative Vice President when the Respondent is a staff or administrative employee.  The Title IX Coordinator will provide a copy of the Review petition to the Respondent and invite him or her to submit a written response. The Title IX Coordinator and other responsible Vice President will meet with the parties and with the Investigator and will review the Complainant’s petition, any response submitted by the Respondent, and the documentary record of the investigation and resolution process. Within thirty calendar days, the Title IX Coordinator will provide the parties with a written determination as to whether the Complainant has met his or her burden of demonstrating, by clear and convincing evidence, that one or more of the grounds for Review identified above is present. 

C.  EXHAUSTION OF REMEDIES

A student or employee may not initiate civil litigation or civil administrative remedies against the university or its employees, agents, officers, or trustees until all the remedies provided by these procedures have been exhausted.

D.  WAIVER OF CLAIMS

Failure to submit a Complaint or to pursue a Review or other administrative review or appeal within the stated deadlines or to exhaust the remedies provided by these procedures within the time provided will constitute a waiver of the student’s or employee’s right to pursue any claim against the university in the matter, unless the right to pursue a statutory claim is preserved by law or the university waives this clause in writing.

V.  TRAINING

The university will seek to make all employees and students familiar with the contents of this policy. All administrators, deans, chairs, directors, managers, and supervisors are responsible to ensure that employees within their areas of stewardship are properly trained on their obligations under this policy and applicable laws.

The Title IX Coordinator will develop and oversee training and education programs to promote the awareness of rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking. The Equal Opportunity Manager may assist in fulfilling that responsibility. All training sessions and participants should be documented, and those records should be provided to the Title IX Coordinator. Such training and education shall consist of at least the following:

1.     Primary prevention and awareness programs for all incoming students and new employees, and ongoing prevention and awareness campaigns for continuing students and employees, including at least the following information:

a.    A clear statement that the university prohibits domestic violence, dating violence, sexual assault, and stalking, and definitions for these offenses under the Hawaii Penal Code.

b.    The definition of consent under the Hawaii Penal Code.

c.     Safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or intervene when there is a risk of one of the offenses listed in subsection (a) against another person.

d.    Information on risk reduction to recognize warning signs of abusive behavior and how to avoid potential attacks.

e.    Information about this policy, including

                                              i.     information about discipline the university may impose for Sexual Misconduct;

                                            ii.     procedures for victims of Sexual Misconduct to follow, including written information about the importance of preserving evidence and reporting offenses to the university and law enforcement authorities;

                                          iii.     procedures for institutional disciplinary actions; and

                                            iv.     information about preserving victim confidentiality.

f.      Written notification to students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, visa and immigration assistance, student financial aid, and other services available to victims of Sexual Misconduct both on campus and in the community.

g.     Written notification of victims about their options for, and available assistance in, changing academic, living, transportation, and working situations or protective measures.

2.     Annual training for the Title IX Coordinator, Deputy Title IX Coordinators, Investigators and Responsible Administrators on issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability.

Applicability: This policy applies to all university students, all university personnel (including faculty, administrative and staff employees, volunteers, and representatives), and all visitors to the university (including, but not limited to, independent contractors, vendors, visiting lecturers, and visiting student-athletes).

Responsible University OfficerS: Student Life Vice President; Administrative Vice President; Vice President of Academics

RESPONSIBLE UNIVERSITY OFFICES: Office of Honor; Human Resource Services; Office of Faculty Relations

PRIOR VERSION: 3 March 2014