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University Policy


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Sexual Misconduct


Policy #:

Date Approved by President's Council:
9/4/2018

Policy Owner:
Deputy Title IX Coordinator

Executive Sponsor:
Vice President of Student Development and Services

     
  1. Purpose

Brigham Young University–Hawaii ("BYU–Hawaii" or "university) is committed to fostering an environment in which all members of the campus community are safe, secure, and free from sexual misconduct in any form.  To this end, this policy helps the university ensure the safety of our campus community as well as comply with federal law (e.g., Title IX of the Education Amendments of 1972 and the Violence Against Women Act.

  1. Policy

BYU–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") regardless of sex or marital status of the parties involved.  This policy prohibits Sexual Misconduct perpetrated by or against university employees (including all faculty, staff, administrative employees and student employees) university students, visitors to the university ()such as independent contractors, vendors, visiting lecturers, camp participants, and visiting students), and other participants in university programs and activities on campus and in off-campus areas controlled by the university.

This policy establishes an administrative process whereby an individual who believes he or she has been subjected to Sexual Misconduct (“Reporting Party”) may report to the university. The university will take prompt and appropriate steps to stop Sexual Misconduct, prevent its recurrence, and address its effects 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,
  • providing support and assistance to the parties involved in a report of Sexual Misconduct, and
  • imposing appropriate discipline against those who have engaged in Sexual Misconduct.

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, stud

  1. Implementation

3    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 unlawful sex discrimination (including Sexual Misconduct) in its educational programs or activities, admission, and employment. (See Nondiscrimination and Equal Opportunity Policy.)

Sexual Misconduct includes a range of unwelcome and unwanted sexual conduct, including verbal and physical sexual harassment, sexual assault (non-consensual physical contact, nonconsensual intercourse), sexual exploitation, and other forms of sexual violence, each of which is a form of prohibited sex discrimination. Domestic violence, dating violence, and stalking are also considered Sexual Misconduct under this policy. This policy does not address other kinds of sex discrimination of a non-sexual or non-criminal nature prohibited under the Nondiscrimination and Equal Opportunity Policy, or consensual sexual activity prohibited under the Church Educational System Honor Code.

3.1  Consent

Consent is respect for the agency of another. It is respecting their autonomy to make choices about their own behavior, boundaries, and their body. This respect is best shown by obtaining clear, affirmative consent before engaging in any sexual interaction with another.

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 lacks the capacity to consent (e.g., because of age, disability, unconsciousness, or use of drugs or alcohol). Consent is invalid where it is given under coercion, force, or threats. Consent should not simply be assumed from 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. 

3.2  Sexual Harassment

Sexual harassment is unwelcome and unwanted conduct of a sexual nature, whether verbal, nonverbal, or physical, and can include unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature. Conduct is unwelcome and unwanted if the individual towards 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 including but not limited to, the following:

  • Sexually suggestive or sexually offensive joking, flirting, or comments;
  • Sexually oriented verbal abuse or threats;
  • Sexually oriented comments about an individual's body;
  • Displaying objects or pictures that are sexual in nature;
  • Sending sexually explicit or offensive communications (e.g., text message, emails, social media messages or posts); and
  • Voyeurism.

Sexual harassment of any kind is contrary to the teachings of The Church of Jesus Christ of Latter-day Saints and the Church Educational System Honor Code. It is also prohibited by Title VII of the Civil Rights Act of 1964 (prohibiting unlawful discrimination, including sex discrimination, in employment) when it affects the conditions of employment, and Title IX of the Educational Amendments of 1972 (prohibiting sex discrimination in federally-funded education programs and activities) when it affects the educational environment. Sexual harassment generally falls within one of the three following categories:

3.2.1  Quid pro quo sexual harassment exists 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. This form of sex or gender harassment relies heavily on a power and authority imbalance between those involved, such as an intimate relationship between a supervisor and supervisee or a faculty member and a student. Quid pro quo means “something for something.” It occurs when sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature occurs by a person having power or authority over another. Also, when submission to or rejection of the unwelcome sexual conduct is used as a basis for rating, evaluation, or providing a benefit to an individual’s education, employment, or performance.

To avoid the possibility or appearance of quid pro quo sexual harassment, employees and students should avoid dating, romantic, or sexual 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, and both parties want to continue the relationship, the supervisor(s) of both parties must be informed of the relationship, must document the disclosure of the relationship and must confirm with each of the parties independently that the relationship is voluntary and not unwelcome to either party. However, as a general rule, dating, romantic, or sexual 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.

3.2.2  Hostile environment sexual harassment exists when the unwelcome and unwanted sexual conduct is so severe, persistent, or pervasive, and objectively offensive that it alters the conditions of an employee’s employment and creates a hostile, intimidating, or abusive working or educational 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.

Sexual harassment that creates a hostile environment is more common than quid pro quo harassment, but it is more difficult to define. In order for harassment to create a hostile environment, the unwelcome sexual conduct must be sufficiently severe or pervasive to alter the conditions of employment or education, both subjectively (as considered by the employee or student who experiences the conduct) and objectively (as considered by a reasonable person in the same or similar circumstances).

The fact that someone did not intend to sexually harass an individual is 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 Reporting Party (such as the 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 parties and the location and context of the incidents). Unwelcome sexual conduct that is mildly offensive and isolated, or incidental does not rise to the level of unlawful sexual harassment under Title VII or Title IX, even though it may still be considered sexual harassment in violation of this policy and the Church Educational System Honor Code.

3.2.3  Sexual exploitation is taking sexual advantage of another person without their consent for personal or financial gain.  Sexual exploitation includes but is not limited to the following:

  • Recording, photographing, transmitting, or allowing another to view images of a private sexual activity and/or the intimate parts of another person;
  • Allowing third parties to observe private sexual acts;
  • Voyeurism (spying or peeping on a person engaged in an intimate behavior such as undressing);
  • Indecent exposure (exposing one’s genitals in non-consensual circumstances);
  • Knowingly or recklessly exposing another person to a significant risk of sexually transmitted disease without their knowledge; and
  • Prostituting another individual.

3.3  Non-consensual Sexual Contact/Intercourse

All non-consensual sexual contact and/or intercourse is considered sexual assault and is a violation of university policy. Non-consensual sexual contact is any intentional sexual touching, however slight, with any object or body part, by a person upon another person who has not consented or who is incapable of giving consent. Sexual contact includes the following:

  • Intentional contact with the breast, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; or
  • Any other intentional bodily contact in a sexual manner.

Non-consensual sexual intercourse includes non-consensual vaginal or anal penetration by a penis, object, tongue, or finger; or, mouth to genital contact, no matter how slight the penetration or contact.

3.4  Domestic Violence, Dating Violence, and Stalking

Domestic violence, dating violence, and stalking are criminal offenses under the Hawaii Criminal Code and constitute 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, 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. This policy prohibits stalking that occurs both in-person or electronically.

3.5  Pregnancy and Parenting

Discrimination involving pregnancy, postpartum recovery, and breastfeeding is also prohibited under Title IX and this policy.

4     REPORTING

4.1   Confidentiality, Amnesty, and Leniency for Victims and Witnesses

Brigham Young University—Hawaii exists to provide an educational environment consistent with the ideals and principles of the restored gospel of Jesus Christ. The Church Educational System Honor Code and its observance by the campus community are essential components of BYU–Hawaii’s mission. The university will not tolerate Sexual Misconduct (defined in this policy as sexual harassment, sexual violence, domestic violence, dating violence, and stalking). Anyone found to have committed Sexual Misconduct as defined in this policy is not entitled to confidentiality or amnesty. 

Being a victim of Sexual Misconduct is never a violation of the Church Educational System Honor Code.  The university strongly encourages the reporting of all incidents of Sexual Misconduct so that support services can be offered to victims and Sexual Misconduct can be prevented and stopped.

Confidentiality: The university recognizes that victims or witnesses of Sexual Misconduct might be hesitant to report an incident to university officials if they fear the discovery of honor code violations, such as alcohol use, drug use, or consensual sexual activity outside of marriage. To help address this concern and to encourage the reporting of Sexual Misconduct, the Title IX Office will not share the identity of a victim or witness with the Honor Code Office unless requested by such person or a person’s health or safety is at risk.

Amnesty: Anyone, including a victim, who reports an incident of Sexual Misconduct will not be disciplined by the university for any related honor code violation occurring at or near the time of the reported Sexual Misconduct unless a person’s health or safety is at risk. However, with victims or witnesses who have violated the honor code, the university may offer and encourage support, counseling, or education efforts to help students and benefit the campus community.

Leniency: To encourage the reporting of Sexual Misconduct, the university will also offer leniency to victims and witnesses for other honor code violations that are not related to the incident but which may be discovered as a result of the investigatory process. Such violations will generally be handled so that the student can remain in school while appropriately addressing these concerns.

In applying these principles, the university may consider any applicable facts and circumstances of each case, including the rights, responsibilities, and needs of each of the involved individuals.

4.2   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 or other forms of abuse or neglect of a child. Victims of Sexual Misconduct are strongly encouraged to report incidents of Sexual Misconduct so that support services can be offered to them and Sexual Misconduct can be prevented and stopped.

4.2.1  Mandatory Reporters (Responsible Employees)

A professor, dean, director, security officer, or any other university employee in a managerial or supervisory role, including Residential Advisors, are Mandatory Reporters of incidents of Sexual Misconduct. A Mandatory Reporter who becomes aware of or reasonably suspects any incident of Sexual Misconduct which has occurred while the individual is a student or employee must promptly report all relevant information to the Title IX Coordinator and should inform the Reporting Party that as a Mandatory Reporter they must report the incident. Mandatory Reporters 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.

While the university will make every reasonable effort to maintain the privacy of the Reporting Party, such privacy cannot be guaranteed.

Mandatory Reporters who receive the information as part of a confidential communication in the context of a professional or otherwise privileged relationship (e.g., the Mandatory Reporter was the reporting person’s physician, therapist, lawyer, ecclesiastical leader, or spouse) do not have a reporting obligation. Note that this exception to mandatory reporting for these privileged communications is different from the confidentiality given to university-designated confidential sources of support, described below.

4.2.2  Child Abuse Reporters

All university employees and officer who have 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 state law and the university’s Protection of Minors Policy.

4.2.3  Campus Security Authorities

A university employee who has been designated as a Campus Security Authority (“CSA”) and who receives a report of sexual assault, dating violence, domestic violence, or stalking occurring on the university campus or any property controlled by the university must inform the Department of Public Safety of that report so the university may issue timely warnings about crimes that pose a threat to students and employees and so the incident can be accounted for in the university’s annual security report, as required by federal law. CSAs are persons who have responsibility for campus security or who have significant responsibility for student and campus activities. CSAs include, but are not limited to, security staff, deans, directors, managers, Office of Honor staff, and Residence Life hale coordinators and advisors. A complete list of the BYU-Hawaii employees designated as CSAs can be found in the university’s annual security report.

4.2.4  Public Awareness Events

Public awareness events or other forums in which campus community members may disclose incidents of Sexual Misconduct do not initiate the university’s Title IX response, including investigating reports of sexual harassment or sexual violence. These events may, however, inform the need for campus-wide educational and prevention efforts, and the university may implement campus initiatives in response to such events, as appropriate.

4.3   Where to Report

4.3.1  Timing

Reports of Sexual Misconduct should be made to the Title IX Coordinator as soon as possible. If Sexual Misconduct occurred more than four years before the report is made, the university may decline to investigate the report. However, counseling, advocacy, and support are available to the Reporting Party regardless of when they make a report. (See Section 4.4 below.)

4.3.2  Where

Sexual Misconduct should be reported to the Title IX Coordinator by selecting Report A Concern from the link on the university’s Homepage (https://www.byuh.edu) and filing an associated report; by calling the Title IX Officer at 808-675-4819; by sending an email to the Title IX Officer at titleIX@byuh.edu; or in person at 207 Lorenzo Snow Administration Building. The names, office addresses, and telephone numbers of the Title IX Coordinator and the deputy coordinator are also posted on the university’s Title IX website at

 titleix.byuh.edu. In addition, individuals may submit reports, including anonymous reports, through EthicsPoint, 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. Mandatory Reporters may not make anonymous reports. 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 university’s Title IX Coordinator will also work with the Deputy Title IX Coordinator and the Human Resources EEO/Title IX investigator.

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 BYU-Hawaii Department of Public Safety at 808-675-3911 or directly to the local police by calling 9-1-1. Alleged victims also have the option to decline to notify law enforcement authorities.  Additionally, the university will assist alleged victims in notifying local police, if requested.  BYU-Hawaii Department of Public Safety will notify the Title IX Coordinator of all such reports received.

The Office for Civil Rights within the U.S. Department of Education (OCR) also 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.

Students in the United States on a J-1 visa may report abuse or exploitation to the U.S. Department of State. A Department of State representative is available 24 hours a day for emergencies and can be contacted by calling 1-866-283-9090. Non-emergency issues, questions, and concerns can be addressed by sending an email to jvisas@state.gov

4.4   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 their rights and options as follows:

  • Procedures victims should follow, including information about preserving evidence, reporting the offense, and obtaining protective orders;
  • Information about how confidentiality will be protected;
  • Existing counseling, health, mental health, and other services available for the Reporting Party, both within the university and in the community;
  • Information about interim measures available, such as how to request changes to academic, living, transportation, and working situations or other protective measures;
  • Procedures for institutional disciplinary action in cases of alleged sexual harassment, dating violence, domestic violence, sexual assault, or stalking; and
  • Possible sanctions or protective measures the university may impose following a final determination of an institutional disciplinary procedure.

Victims of Sexual Misconduct should preserve evidence as necessary to substantiate the crime or secure a protective order through the court system. They 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 Kapi’olani Medical Center.  Ongoing 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 all parties whether or not they request to proceed with an official investigation. Confidential disclosures can be made 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 support, and other services available for victims, both within the institution and in the community. Such information will be made available through the university’s Title IX website at https://titleix.byuh.edu.

4.5   Report Log

The university’s Title IX Coordinator will maintain a confidential log of Title IX complaints. When reported, information will be added to the log. 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 so that the Title IX log can be updated.

4.6   Retaliation

The university prohibits retaliation against any person for raising good faith concerns about conduct that violates this policy. Retaliation is any adverse action taken against a person because he or she made a Report; testified, assisted, or participated in any manner in an investigation or proceeding under Title IX; or opposed any conduct prohibited by this Sexual Misconduct Policy.  Retaliation can take many forms, including but are not limited to the following:

  • Adverse employment action (e.g., termination, demotion, reduction in pay, adverse change in schedule, adverse change in work location, etc.);
  • Adverse action related to participation in any educational program offered by the university (e.g., adverse change to grades, class schedule, research opportunities, etc.);
  • Stalking, harassment, bullying, intimidation, threats, or engaging in physical violence;
  • Adverse social actions such as exclusion or removal from a living group, student organization, or committee, or publishing personally identifiable information about an individual, including on websites or social media sites; or
  • Encouraging or asking others to engage in retaliatory behavior on one’s behalf.

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 Human Resources Equal Opportunity/Title IX investigator.

5     COMPLAINT RESOLUTION PROCEDURES

The following procedures are designed to provide for the prompt and equitable investigation and resolution of allegations of Sexual Misconduct perpetrated by or against university employees, students, or campus visitors. 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 sexual harassment, domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation that protects the parties involved and promotes accountability.

5.1   Informal Resolution

Although not required, whenever it is reasonably possible and safe to do so, and all parties voluntarily agree, an individual who believes he or she has been subjected to Sexual Misconduct (“Reporting Party”) and the person alleged to be responsible for the misconduct (“Respondent”) may attempt to resolve the issue privately.  An informal resolution is not appropriate, even on a voluntary basis, in instances of sexual violence or other criminal behavior, or when sexual harassment is severe and affects the working and learning environment of others.

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 a Deputy Title IX Coordinator in this effort. If a satisfactory resolution is not reached after such informal efforts either party may forego the informal resolution process or discontinue it at any time and address the concern using the formal resolution process described below. Additionally, if the Title IX Coordinator believes informal resolution is not appropriate or potentially unsafe, he or she may require formal resolution.

5.2   Formal Resolution

A 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 Reporting Party from subsequently pursuing informal resolution with the Respondent in appropriate circumstances.

5.2.1 Preliminary Assessment

Upon receiving a Report, the Title IX Coordinator or university designee will promptly perform a preliminary assessment based on the allegations to determine whether the Report reasonably alleges violations of the Sexual Misconduct Policy. If the Report contains allegations for which the Title IX Office has authority, the Title IX Coordinator will seek the Reporting Party’s consent to conduct an investigation. Note that if the Reporting Party asks the university not to pursue an investigation, the university may not be able to honor this request if doing so would prevent the university from meeting its obligations and responsibilities as indicated throughout this policy.  If the Report does not contain allegations of Sexual Misconduct for which the Title IX Office has authority, the Title IX Coordinator will inform the Reporting Party that no investigation of the Report will be conducted.

5.2.2  Selection of the Investigator

Upon receiving a Report, the Title IX Coordinator or Deputy Title IX Coordinator will record the incident in the confidential Title IX log.  The Title IX Coordinator will select a qualified employee to promptly investigate the allegations in the Report (“Investigator”). Generally, a deputy Title IX coordinator will serve as the Investigator. The Title IX Coordinator will consider conflicts of interest, time constraints, and other relevant factors in selecting an Investigator. The Reporting Party 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.

5.2.3  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 is reasonably possible. All participants in the investigation—including the Reporting Party, 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 government 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 parties will be excluded, to the extent permissible by law, to protect the parties’ confidentiality. Federal law requires the university to publicly disclose statistics about reported incidents of sexual assault, domestic violence, dating violence, and stalking; however, no individual information is maintained or published for purposes of such reporting.

Notwithstanding the foregoing confidentiality provisions, parties and 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 Reporting Party requests that his or her identity be kept confidential or asks the university not to pursue an investigation, the Reporting Party 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 Reporting Party’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 Sexual Misconduct and prevent its recurrence, such as training or surveys in the affected area or department. Reporting Parties 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. If the university ultimately decides not to pursue an investigation, the report along with the reasoning behind the decision will be documented.

The Reporting Party should also be advised that the university may not be able to honor a request for confidentiality or to forgo an investigation if such a request would prevent the university from meeting its responsibility to provide students and employees with an environment free from Sexual Misconduct 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 forgo an investigation.

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

  • The seriousness of the alleged Sexual Misconduct,
  • The age or maturity of the Reporting Party ,
  • The existence of any previous accusations against the alleged violator,
  • The existence of independent evidence to substantiate the allegations, and
  • In the case of accusations against a student, the rights of the student under the Access to Student Records Policy and Procedures and corresponding federal and state privacy laws or laws mandating disclosure.

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

5.2.4  Interim Measures

Based on information acquired in the course of a preliminary assessment or investigation, the Title IX Coordinator or Investigator may recommend that interim measures be offered to the Reporting Party, Respondent or others before or during the investigation. This recommendation should be submitted to an office or individual within the university administration authorized to implement the recommendation.

If requested and reasonably available, interim measures will be provided whether or not a Reporting Party chooses to report to the Department of Public Safety or local law enforcement. The university will provide written notification to the parties about options for, available assistance in, and how to request changes to academic, living, transportation, and working situations and other protective measures. 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 party will be kept confidential to the extent reasonably possible.

In situations deemed to be extreme or dangerous, an 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.

5.2.5 Delivery of Documents and Extensions of Time

Delivery occurs when the university provides documents to a party in person or by electronic delivery mechanisms. If neither option is available, the university will mail documents to the residential address of the party that is on file with the university. If delivery is by mail, the deadline for a response or reply permitted in this policy is extended by five days.

A party may ask the Title IX Office for an extension of any deadline imposed by this policy. The Title IX Office will grant the extension only when the request is reasonable under the circumstances.

5.2.6  The Reporting Party’s Written Complaint, Supporting Documentation, and Evidence

If a Reporting Party has not already submitted a sufficient written statement in connection with the initial Report, the Investigator will invite the Reporting Party 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 of why the Reporting Party believes the Respondent’s behavior was 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 days of the Investigator’s request. Based on the Reporting Party’s written and oral statements, the Investigator will prepare a written statement of the allegations (“Allegation Sheet”).

The Investigator will ask the Reporting Party to review the Allegation Sheet, make any necessary corrections, and affirm it with a signature. If the Reporting Party refuses to sign the Allegation Sheet, the Investigator may either (a) note that the allegations have been withdrawn and terminate the investigation, or (b) note that the Reporting Party has refused to sign the Allegation Sheet, but that the investigation will nevertheless proceed to determine what occurred.

The Investigator will provide the Reporting Party with a description of their rights and responsibilities under this policy, including a statement of the sanctions that may be imposed against the Respondent.

5.2.7 The Respondent’s Written Response, Supporting Documentation, and Evidence

The Title IX Office will make a reasonable effort to provide a Respondent with a copy of the Allegation Sheet in person. The Investigator will not interview or take any evidence from the Respondent at this time. The Title IX Office will provide Respondent with a description of their rights and responsibilities under this policy, including a statement of the sanctions that may be imposed against them. The Title IX Office will also provide the Respondent with a list of available university resources. If the Title IX Office is unable to meet in person with the Respondent, this information and a copy of the Allegation Sheet will be delivered to the Respondent as set forth in Section 6 above. In either event, a copy of the Allegation Sheet will be provided to the Respondent fourteen days before the Respondent’s response is due.

The Respondent may prepare and submit a signed written statement in response to the Allegation Sheet (“Response”). The Response should indicate whether the Respondent admits or denies the allegations in the Allegation Sheet and should provide any relevant facts or evidence, including the names of other individuals who may have information relevant to the allegations and other materials in response to the Allegation Sheet. The Response may also include an explanation as to why the Respondent believes any admitted conduct was not in violation of university policy and whether any resolution proposed by the Reporting Party 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 fourteen days of delivery of the Allegation Sheet to the Respondent. While reasonable efforts will be made to communicate with the Respondent, delivery occurs when the university sends the Allegation Sheet to the email or residential address of the Respondent that is on file with the university.

Like the Reporting Party, the Respondent may choose to answer the Allegation Sheet orally rather than in writing. At the Respondent’s request, and no later than fourteen days after the Allegation Sheet’s delivery, the Investigator will meet with the Respondent so that the Investigator can document the Respondent’s answer. The Investigator will ask the Respondent to review the Investigator’s written record of the Respondent’s oral answer, make any necessary corrections, and affirm it with a signature. The Investigator’s written answer then becomes the Response.

The Title IX office will promptly provide a copy of the Response to the Reporting Party.

5.2.8  Concurrent Investigations or Processes

An investigation conducted under this policy 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.

An investigation under these procedures will not be suspended pending the conclusion of a criminal investigation or any other investigation. However, the fact-finding portion of the investigation may be delayed temporarily to comply with a law enforcement request for cooperation (e.g., to allow for criminal evidence collection) when the criminal charges are based on the same allegations that are being investigated under this policy.

Although 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.

5.2.9 Cooperation with University Investigations

BYU-Hawaii will not tolerate intentional false reporting of incidents.  It is a violation of the Honor Code to make an intentionally false report, and amnesty and confidentiality do not extend to such conduct.

Employees or students who fail to cooperate in an 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. A visitor who fails to cooperate may be banned from campus. It is not deemed a failure to cooperate for a Reporting Party to ask for confidentiality or request that the Title IX Office not investigate a Report.  Any witness who declines to participate in an investigation may not be permitted to offer evidence or testimony later in the process, and failure to offer evidence during the investigative process does not constitute grounds for a review/appeal on the basis of new evidence. The university prefers to interview witnesses in person. However, if a witness cannot appear in person for an interview, the investigator may, in his or her discretion, interview a witness telephonically or allow a witness to provide a written statement.

5.2.10  Support Person

Each individual participating in the formal process may be accompanied by a support person.  The support person may be a friend, mentor, family member, attorney, or any other person selected by the individual to provide support. The support person cannot be someone who may be otherwise involved in the investigation. The university will not typically change scheduled meetings to accommodate a support person’s inability to attend. Individuals may elect to change their support person during the investigative process and are not required to use the same support person throughout the process.

A 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. All support persons are subject to campus rules and are expected to refrain from interference with the university investigation and resolution. Any support person, including an attorney, may be immediately excluded from the proceedings if he or she attempts to intervene or participate in any way. If a support person is excluded from a proceeding, the meeting will typically continue without the support person present. Subsequently, the Title IX Coordinator or Investigator will determine whether this particular support person may continue to be involved, whether another support person may attend, or whether the individual has forfeited the right to a support person for the remainder of the process.

Support persons are expected to maintain the privacy of information shared with them during the proceedings, and the university may seek appropriate action against a support person who does not respect the sensitive nature of the process or who fails to abide by the university’s privacy expectations.

The university cannot guarantee equal advisory rights when it comes to support persons (e.g., if one party selects a support person who is an attorney, but the other party does not have or cannot afford an attorney, the university is not obligated to provide one).

5.2.11  The Investigation

An investigation should be prompt and equitable. The university will, in good faith, attempt to conclude the investigation and resolution within sixty 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 Reporting Party 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 the 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. Both the Reporting Party and the Respondent are entitled to have the same opportunity to present evidence.

At any time during the investigation, either of the parties or the Investigator may propose a resolution of the matter, or an Informal Resolution (section IV A.). If both the Reporting Party and the Respondent are satisfied with this proposed resolution, and if the Investigator, and the Title IX Coordinator are also satisfied that the university’s interests are protected, the matter may be resolved as proposed.

5.2.12  Investigation Outcome and Finding(s)

Prior to the conclusion of an investigation, the Investigator will inform the parties that the investigation is concluding and ask them to submit any final information not already included in the investigation. The parties will have five days to submit additional information.

At the conclusion of the investigation, the Investigator will make findings regarding the misconduct alleged in the Allegation Sheet, and will determine, based on the preponderance of the evidence (i.e., whether it is more likely than not), whether the Respondent has violated the sexual misconduct policy. The Investigator will provide a written investigatory report of the findings of the investigation (“Investigatory Report”) to the Title IX Coordinator for review. The Investigatory Report shall not contain any proposed sanctions. Sanctions will be considered separately.

The Title IX Coordinator will promptly and simultaneously send a copy of the Investigatory Report to the Reporting Party and the Respondent to their email or residential addresses on file with the university.

5.2.13  Resolution and Sanctions

Upon receiving the Investigatory Report a committee comprised of two or more Responsible Administrators or trained designees will determine the imposition of any disciplinary sanctions, as provided in the applicable policy for faculty, staff, and students. The Title IX Coordinator is responsible to ensure the committee is trained the resolution and sanctions process. 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.

Responsible Administrators and the applicable disciplinary policy will be determined as follows:

  • The Responsible Administrators for allegations of Sexual Misconduct against a faculty member are the Associate Academic Vice President of Faculty and a representative from Human Resources. The Responsible Administrators may consult with the faculty member’s dean and the Title IX Coordinator to administer any discipline. Possible sanctions include verbal counseling, written warning, probation, reassignment, demotion, reduction in pay, suspension, termination of faculty employment, and a ban from campus. If it is determined there may be adequate cause for involuntary termination of the faculty member’s employment, the Academic Vice President will be consulted and must give final approval for the termination.
  • The Responsible Administrators for allegations of Sexual Misconduct against a non-faculty (non-student) employee are the director or managing director over the employee’s area and a representative from Human Resources. 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 Administrators for allegations of Sexual Misconduct against a student are two or more representatives from the following areas: Counseling Services, the Department of Public Safety, a full-time faculty member, Human Resources, and when applicable Polynesian Cultural Center Human Resources. Possible sanctions include counsel and education, loss of privileges, nonacademic probation for a specified period of time, suspension (involuntary withdrawal for a specified period of time), suspension withheld, short suspension, restriction on officially representing the university, or dismissal (permanent, involuntary withdrawal), and a ban from campus.
  • The Responsible Administrators for allegations of Sexual Misconduct against an individual who is neither a student nor an employee of the university, is the Behavior Intervention Team.  Possible sanctions include banning the visitor from all or a part of the university campus for a designated period of time or indefinitely.

A resolution may include, in addition to any discipline imposed, reasonable steps designed to correct any discriminatory effects on the Reporting Party 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 Reporting Party, implementing changes in programs or activities, or providing training for the campus community or specific groups or individuals.

The Title IX Coordinator 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 Reporting Party and the Respondent simultaneously (“Outcome Notice”).

5.2.14  Review of Outcome

A party who remains unsatisfied with the outcome may request an administrative review of the investigation outcome and resolution (“Review”). The Reporting Party or Respondent must request a Review within five 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 Reporting Party and on others who may have been affected or to prevent the recurrence of further discriminatory or otherwise inappropriate actions.

The petition for Review should be submitted to the Review Committee which is comprised of the Title IX Coordinator and (a) the Vice President for Academics when the Respondent is a faculty member, (b) the Administrative Vice President when the Respondent is a staff or administrative employee, (c) or an authorized university designee who may stand in for any reviewing party if there is a conflict of interest or unavailability.  The Title IX Coordinator will provide a copy of the Review petition to the other party to the case and invite him or her to submit, within five days, a written response not to exceed five pages. The Review Committee will meet with the parties and with the Investigator and will review the petition, any response submitted, and the documentary record of the investigation and resolution process.

In a request for a Review, the Review Committee will presume that the outcome of the investigation was reasonable and appropriate, and the party filing the Review bears the burden of establishing that the outcome was reached in clear error. In other words, the Review Committee must be presented with information that the findings in the Investigatory Report were unquestionably erroneous. The Review Committee can affirm the decision reached in the Investigatory Report, overturn the decision, or remand the matter back to the Title IX Office for further investigation. The Review Committee will issue its decision within thirty days of receiving the request. The Title IX Coordinator will provide the parties with copies.

The decision of the Review Committee is final and is not subject to further review.

6     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 domestic violence, dating violence, sexual assault, stalking, sexual harassment, and sexual violence, including rape. Deputy Title IX coordinators 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. The training and education should consist of at least the following:

  • Primary prevention and awareness programs for all incoming students and new employees, and ongoing prevention and awareness campaigns for continuing students and employees
  • 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 the parties and promotes accountability.

BYU-Hawaii’s Title IX Office will sponsor and conduct events and campaigns that effectively promote the awareness and prevention of rape, acquaintance rape, domestic violence, dating violence, sexual assault, stalking, and sexual harassment. Additionally, the university will work to make the campus community aware of risk reduction methods and positive options for bystander intervention where any of these behaviors occur.

The Title IX Office events, campaigns, and trainings at BYU-Hawaii should include in-person trainings, such as trainings during New Student Orientation, and passive poster and banner campaigns, such as during Domestic Violence Awareness Month and at prevention and awareness events that call for active participation by students and the members of the campus community. The events, campaigns, and trainings should be tasteful, sensitive, and consistent with the university’s values and in keeping with legal guidance to be “culturally relevant, inclusive of diverse communities and identities, sustainable, responsive to community needs, and informed by research or assessed for value, effectiveness, or outcome” (34 C.F.R. § 668.46(a)(i)(A)(2018)).

A calendar of events can be found at https://events.byuh.edu/MasterCalendar.aspx.  Additionally, online training modules for students are available at titleix.byuh.edu.

 

7     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 students).

  1. Related Policies and Procedures

8         RELATED POLICIES AND PROCEDURES

Honor Code Policy

Nondiscrimination and Equal Opportunity Policy

Protection of Minors Policy