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Executive Policy 1.204 Executive Policy 1.204 abolished on 2015-09

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Title

Sexual Harassment, Sexual Assault

Header

Executive Policy Chapter 1, General Provisions
Executive Policy EP 1.204 – Policy and Procedural Guidelines on Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, and Stalking
Effective Date:  February 2015
Prior Dates Amended:  January 2006
Responsible Office:  Office of the President
Governing Board of Regents Policy 1-5
Review Date:  August 2017

I. Purpose

The purpose of this policy is to prohibit sexual harassment, sexual assault, domestic violence, dating violence, and stalking and to provide guidance to Chancellors and other administrators who are responsible for developing and implementing accessible campus procedures and prevention programs for students and employees.  This policy is intended to assist campus administrators in complying with the complex and interrelated requirements of sex discrimination and sexual violence laws that cover students, employees, and third parties, involving both on- and off-campus situations.  These laws include but are not limited to the Jeanne Clery Disclosure of Campus Security Policy & Campus Crime Statistics Act, as amended (“Clery Act”); the Violence Against Women Act, as amended (“VAWA”); Title IX of the Education Amendments of 1972 (“Title IX”); Title VII of the Civil Rights Act of 1964, as amended (“Title VII”); Hawaiʻi Revised Statutes (“HRS”) Title 21, Chapter 378 (employment practices); HRS Title 31, Chapter 586-1 (domestic abuse) HRS Title 37, Chapter 707 §§ 707-730 to 707-759 (sexual offenses).  Adding to this complexity is the manner in which employment laws, collective bargaining agreements, Chapter 92F HRS, and other employment matters intersect with Title IX & VAWA.  Campus administrators are advised to consult with their lead Human Resources (HR) specialist or other employee relations experts in cases involving employees, for example, when implementing interim measures, disclosing investigation results (including sanctions), offering confidential reporting, investigating anonymous complaints, or other situations, as appropriate.

Specifically, each campus is required to implement:

A.    comprehensive education and prevention programs that inform the University
community about the policies, resources, complaint options, remedies, and the risks and myths that contribute to sexual harassment, sexual assault, domestic violence, dating violence, and stalking

B.    information and assistance for those who report alleged sexual harassment and
sexual violence, including informing individuals about their right to file criminal charges as well as the availability of on- and off-campus resources (e.g., medical, counseling, advocacy, legal, and other support services, including confidential options) and alternative remedies such as housing, academic, or workplace accommodations, if appropriate and reasonably available, regardless of whether the individual chooses to file a complaint or report a crime to campus security or local law enforcement

C.    prompt and equitable complaint procedures for students and employees that are
accessible and widely publicized on a regular basis

D.    information for both respondents and complainants that they have the same
rights during a student disciplinary hearing or investigation, including the right to a fair and impartial process, to be accompanied by an advisor, to give their side of the story and present all relevant evidence, to receive simultaneous updates on the status of the investigation and written notice of the outcome (including relevant sanctions imposed on student respondents1), and the opportunity to appeal

E.    corrective actions the campus will take (including remedies and
disciplinary sanctions) to end incidents of harassment or sexual violence and to prevent their recurrence




1 Disclosure of student information must comply with FERPA.  Employee sanctions must follow confidentiality requirements of collective bargaining procedures and Chapter 92F HRS.

II. Definitions

    
The definitions below are based on state and federal laws, regulations, and case law.  Campuses may abbreviate the definitions and include examples and scenarios in order to offer student-oriented, effective, and readily accessible training and outreach materials.  VAWA also requires educational programs to inform students and employees of State of Hawaiʻi definitions of criminal sexual offenses. The relevant sections of the laws are summarized in Appendix A to provide technical references for campus educational programs, websites, and complaint procedures.  However, it should be noted that EP 1.204 is a civil rights policy that prohibits hostile environment harassment including sexual violence, and that the standard of proof is the preponderance of the evidence, and not a criminal standard of evidence.

A.    Affirmative Consent2
        
Consent in relationship to sexual activity is defined in accordance with its plain and common meaning.  With respect to sexual activity, “consent” means affirmative words or actions that show a knowing and voluntary agreement to engage in mutually agreed sexual activity (including pictures/video).  For the purposes of this section, “affirmative consent” means affirmative, conscious, and voluntary agreement by both parties to engage in sexual activity.  Mere assent (an affirmative statement or action) does not constitute consent if it is given by a person who is unable to make a reasonable judgment concerning the nature or harmfulness of the activity because of her or his incapacitating intoxication, unconsciousness, youth, language, intellectual or other disability, or other incapacity; or if the assent is the product of threat, coercion, or fraud.  Past consent does not imply future consent; silence or an absence of resistance does not imply consent.  Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another.  Consent must be ongoing throughout sexual activity and can be withdrawn at any time.

B.    Dating Violence

VAWA defines “dating violence”3 as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; and where the existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.  Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse (For the purpose of Clery reporting, dating violence does not include acts covered under the definition of domestic violence.)

C.    Domestic Violence

VAWA defines “domestic violence”4 as a felony or misdemeanor crime of violence committed by:  a current or former spouse or intimate partner of the victim, a person with whom the victim shares a child in common, a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, a person similarly situated to a spouse of the victim under the domestic or family violence laws of the local jurisdiction.  Hawaiʻi law on “domestic abuse” includes persons who have or have had a dating relationship.5

D.    Indecent Exposure6

Under Hawaiʻi law, “indecent exposure” involves a person intentionally exposing their genitals to another person under circumstances in which the conduct is likely to cause affront.

E.    Retaliation

Retaliation is defined as adverse actions taken against a person because of their participation in the following types of protected activities:
  1. seeking advice or assistance about a discrimination concern or possible incident of sexual violence;

  2. opposing or filing an informal or formal complaint against conduct reasonably believed to constitute discrimination or sexual violence; or

  3. testifying, assisting, or participating in an investigation or other proceeding related to a complaint of discrimination or sexual violence.
Adverse actions are actions that would dissuade a reasonable person from making or supporting a complaint of discrimination, sexual harassment, sexual assault, domestic violence, dating violence, or stalking.

Examples of adverse actions that might constitute retaliation include a significant change in one’s status, such as suspension, unsatisfactory or unfair evaluations, unfair grades, unfair assignments, firing, failing to promote, reassignment with significantly different responsibility or a decision causing a significant change in benefits, direct or implied threats, coercion, harassment, intimidation, or encouragement of others to retaliate.

F.    Sexual Assault7

Under Hawaiʻi sexual offense laws, a person commits sexual assault, including but not limited to, when the person knowingly or recklessly subjects another person to an act of nonconsensual sexual penetration or sexual contact.  This includes knowingly engaging in the behavior with a person who is unable to give consent due to incapacitation, intellectual disability, and age.  Sexual assault also includes statutory rape, indecent exposure, and voyeurism or trespassing on property to engage in surreptitious surveillance for sexual gratification.  Sexual assault can be committed by men or women and can occur between persons of the same or different sex.

Hawaiʻi law categorizes sexual offenses as first, second, third, or fourth degree sexual assault, which takes into account factors such as severity, context, age of the victim, capacity for giving consent, and whether the acts involved forcible compulsion, lack of consent, threats of property damage, etc.

For the purpose of this policy “incapacitation” means the person’s decision-making ability is impaired such that the person lacks the ability to make a rational, reasonable decision due to an intellectual or other disability, sleep, involuntary physical restraint, alcohol, drugs, or so-called “date-rape” drugs.

Examples of sexual assault include but are not limited to:
  • Acts of sexual intercourse where such an act is accomplished against a person’s consent by means of force or threat of harm.
  • Nonconsensual intercourse by a friend or acquaintance.
  • Sexual assault with an object.
  • Acts of sexual fondling or sexual intercourse where the person is prevented from resisting or is incapable of giving consent because of her or his youth, intellectual or other disability, or is unconscious at the time of the act, and this fact is known or reasonably should be known to the person committing the act.
  • Electronic surveillance, recording, photographing, or transmitting identifiable images of private sexual activity and/or intimate body parts without the knowledge and consent of the parties involved.

G.    Sexual Harassment

Sexual harassment is a form of sex discrimination that is strictly prohibited by this policy, as well as by UH Executive Policy EP 1.202 which prohibits discrimination and harassment based on protected categories, including sex, gender identity or expression, and sexual orientation.

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when
  1. submission to or rejection of the conduct is either an explicit or implicit term or condition of an individual’s employment, education, or participation in a University program, activity, or service;

  2. submission to or rejection of the conduct by an individual is used as a basis in decisions affecting that individual’s employment, education, or participation in a University program, activity, or service; or

  3. when such conduct is unwelcome to the person to whom it is directed or to others directly aware of it, and when such conduct is:
a.  severe or pervasive; and
b.  has the purpose or effect of either:
(1)  unreasonably interfering with the employee’s work
performance or student’s academic performance, or
(2)  creating an intimidating, hostile, or offensive work or
educational environment.

The conduct must be both objectively and subjectively perceived as offensive.  That is, the reporting party must view the conduct as offensive, and a reasonable person with the same fundamental characteristics as the reporting party (e.g., age, race, gender) must also view the conduct as offensive.

The following are examples of behavior that can constitute hostile environment sexual harassment if unwelcome and persistent, pervasive, or severe:
  • sexually offensive jokes or ridicule of a person’s sexuality, sexual orientation or gender identity
  • remarks of a sexual nature about a person’s clothing or body
  • remarks about sexual activity or speculations about previous sexual experiences
  • unnecessary and unwanted touching, patting, hugging, or brushing  against a person’s clothing or body
  • pressure for sexual activity, an element of which may be nonverbal conduct, such as repeated and unwanted staring or sexually suggestive gestures
  • displays of offensive objects or pictures, including  the use of electronic technology to send derogatory, demeaning, threatening, or hostile materials based on sex
  • requests for sexual favors accompanied by direct or implied rewards or threats
  • taking, sending, or sharing photos, videos, or audio recordings of sexual activity without the person’s consent, regardless of whether the sexual activity itself was consensual
  • intimidation, threats of harm, or actual assaults against a person based on their sex, sexual orientation, or gender identity
  • sexual assault, domestic violence, dating violence, stalking
The above list of examples is not all-inclusive; in addition, each situation must be considered in light of the specific facts and circumstances to determine if there has been a violation of this policy.  The determination as to whether behavior is sexual harassment will take into account the totality of the circumstances, including the nature of the behavior and the context in which it occurred.  Harassing conduct often involves a pattern of offensive behavior.  However, a serious incident, such as sexual assault, even if isolated, can be sufficient to establish a hostile environment and a violation of this policy.  Factors considered include the severity or pervasiveness of the conduct; the degree to which the conduct affected the student’s education or the employee’s work environment; the type and duration of the conduct; and the identity of and relationship between the respondent and the student or employee.

H.    Sexual Violence

The U.S. Department of Education Office for Civil Rights (OCR) considers sexual violence to be a form of sex discrimination and a violation of Title IX of the Education Amendments of 1972.  The term “sexual violence”8 refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the student from having the capacity to give consent).  A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual violence can be carried out by school employees, other students, or third parties.  All such acts of sexual violence are forms of sex discrimination prohibited by Title IX.

I.    Stalking

VAWA defines “stalking”9 as 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 suffer substantial emotional distress.

“Course of conduct” means two or more acts, including, but not limited to, unwelcome acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means (including cyberstalking) follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person’s property.

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

“Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.





2 The term “consent” with respect to sexual activity is not specifically defined by Hawai‘i Revised Statutes.
3 42 USC § 13925(a)(10)[40002(a) of VAWA] and 34 CFR Part 668 § 668.46 Oct. 20, 2014 Final Rule
4 42 USC § 13925(a)(10)[40002(a) of VAWA] and 34 CFR Part 668 § 668.46 Oct. 20, 2014 Final Rule
5 See Appendix A - HRS § 586-1.  Hawai‘i domestic violence law covers other household members such as roommates, relatives, and children. However, for the purpose of EP 1.204, which is a gender nondiscrimination and sexual violence policy, the applicable definition of domestic violence focuses on people cohabitating who are spouses or who have or have had a romantic or intimate relationship.  See 34 CFR Part 668 § 668.46 comments on the definition of “Domestic Violence” and the issue of roommates. (Federal Register, Vol. 79, No 202, October 20, 2014, p. 62757)
6 See Appendix A - HRS § 707-734.
7 See Appendix A - HRS §§ 707-730 to 733.
8 OCR Questions and Answers on Title IX and Sexual Violence, April 29, 2014
9 VAWA and 34 CFR Part 668 § 668.46 Oct. 20, 2014 Final Rule

III. Executive Policy

A.    Statement on equal opportunity and prohibition against sex discrimination and
sexual violence

The University of Hawai‘i (“University”) is committed to maintaining and promoting safe, respectful campus environments that are free from discrimination, harassment, and sexual violence.  The University prohibits and does not tolerate sexual harassment, sexual assault, domestic violence, dating violence, and stalking.  These forms of sex discrimination and sexual misconduct10 are prohibited by law and are serious offenses that violate the basic standards of behavior expected of members of the University community.  Such conduct substantially interferes with a person’s civil rights to equal opportunity in employment, education, and/or access to University programs, activities and services, whether on- or off-campus.  The University will take appropriate action to prevent sexual harassment, sexual assault, domestic violence, dating violence, and stalking.  Each campus will implement prevention and response procedures that include providing information on Title IX Coordinators and other designated personnel, law enforcement options, safety, interim measures, education and prevention services, and on- and off-campus resources.  Each campus will investigate complaints in a manner that is equitable and reasonably prompt.  Where appropriate, the campus will take prompt and effective steps (including disciplinary sanctions) reasonably calculated to end the sexual misconduct, eliminate the hostile environment, prevent its recurrence, and remedy its effects.

B.    Retaliation prohibited

The University prohibits and will not tolerate retaliation.  Persons who commit retaliation in violation of this policy are subject to appropriate disciplinary action.  Retaliation includes adverse actions against a person because they have filed a complaint, participated in an investigation, or otherwise opposed discrimination, including sexual harassment and sexual violence.  Retaliation involves adverse actions that would dissuade a reasonable person from opposing prohibited conduct.

C.    Scope

EP 1.204 prohibits sexual harassment, sexual assault, domestic violence, dating violence, and stalking in any University workplace, educational program, activity, or service, which includes all academic, extracurricular, student housing, athletics, and other programs. The policy covers sexual harassment and sexual violence based on gender identity and gender expression. The policy applies to all members of the University community (students, faculty, and staff).  The prohibition against sexual misconduct also applies to third parties, such as volunteers, visiting interns, guests, patrons, independent contractors, or clients of the University.  The policy applies to persons regardless of their sex, sexual orientation, gender identity, or gender expression.

This policy applies to sexual misconduct:
  1. on University premises, in any University facility, or at any University sponsored, recognized or approved program, regardless of location; and
  2. that impedes equal access to any University education program or activity or that adversely impacts the education or employment of a member of the University community; or
  3. otherwise threatens the health or safety of a member of the University community.
A member of the University community who reports to the University that they believe they have experienced or observed sexual harassment or sexual violence, whether the offense occurred on- or off-campus, should be offered appropriate assistance, including referral to the campus Title IX Coordinator or other designated offices, and be provided with a written explanation of rights and options under campus procedures.  Complaints by or against third parties should also be reported to the Title IX Coordinator or designee who will initiate appropriate follow up depending on the circumstances.  Similarly, if an incident occurs off-campus, the Title IX Coordinator or designee should be consulted in determining whether the conduct occurred in the context of a University education program or activity or had continuing effects on campus or in an off-campus education program or activity.11

D.    Guidelines for campus programs and procedures

Chancellors or their designees must implement educational programs, provide Title IX & VAWA notice to students and employees, provide written information on resources and complaint options, and implement a protocol for responding to reports of sexual harassment and sexual violence.  Campuses must also implement student conduct procedures and administrative complaint investigations (e.g., AP 9.920 – Discrimination Complaint Procedure for Students, Employees, and Applicants for Employment or Admission) in an equitable and reasonably prompt manner, and in compliance with these guidelines.  Information on campus resources, protocol, and complaint options should be presented in a manner that is easily understood, easily located, and widely distributed.

Campuses should use this executive policy and procedural guidelines to develop a protocol tailored to their respective campus.  University campuses have significant differences in student populations, programs, and missions, and corresponding differences in staffing, organizational structures, and campus resources.  The following guidelines are intended to assist campuses in meeting the requirements of Title IX, VAWA, Clery Act, and Title VII while allowing the necessary flexibility to tailor their procedures or protocol to their specific campus communities.

1.    Prevention and awareness education

It is the collective responsibility of all members of the University community to foster a safe and secure campus environment.  In an effort to promote this environment and to prevent acts of sexual misconduct from occurring, Chancellors or their designees are charged with implementing educational programs to raise awareness about the myths and risks that contribute to sexual harassment, sexual assault, domestic violence, dating violence, and stalking, as well as risk prevention, campus resources, reporting options, and campus procedures.  Education and information should be available through multiple sources.  Examples include:  websites, new student and new employee orientations, campus women’s centers, residential life programs, campus health and counseling services, campus security.  Specialized training should also be provided to Title IX Coordinators, investigators, student conduct panels, and others as appropriate.

a.  Primary prevention and ongoing awareness education

Prevention programs should include:12

(1)  primary prevention and awareness programs that all incoming
students and new employees are expected to participate in; and

(2)  ongoing prevention and awareness programs that all members of
the University community are encouraged or requested to participate in.

b.  Topics for prevention and awareness programs

See Appendix B for the recommended topics.

2.    Designate a lead Title IX Coordinator

Campuses should identify one individual who serves as the lead Title IX Coordinator to oversee the institution’s efforts and results in complying with Title IX regulations.  Depending on the campus size and organizational structure, a Title IX Coordinator’s duties may be full-time or part-time, and there could be one or numerous Title IX Coordinators.  However, one individual must be assigned ultimate oversight responsibility as the lead Title IX Coordinator, and the titles or descriptions of the other coordinators should show that they serve in a deputy or supporting role and their area of responsibility.

The lead Title IX Coordinator’s core responsibilities are as follows: 
  • oversee the campus’s response to Title IX reports/complaints and identify and address any patterns or systemic problems
  • ensure that reports and complaints are handled through consistent practices that are equitable and reasonably prompt
  • coordinate with other complaint offices so as to be informed of all complaints that raise Title IX issues throughout the campus
  • maintain current knowledge and expertise on Title IX and related sex discrimination statutes and regulations
In addition to the above core responsibilities, Title IX Coordinators or deputies may have additional responsibilities such as:
  • meet with complainants or persons who request information
  • investigate Title IX complaints
  • evaluate student requests for confidentiality in the context of the campus responsibility to provide a safe and nondiscriminatory environment for all students
  • provide training to students, faculty, and staff
  • coordinate services with local advocacy and service providers
  • coordinate with campus security and local law enforcement
Based on these duties, Title IX Coordinators and deputies can include Student Affairs professionals, Human Resources (HR) officers, Administrative Officers, Equal Employment Opportunity and Affirmative Action (EEO/AA) coordinators, or other personnel who are knowledgeable about and/or receive training on Title IX, sexual harassment, sexual violence, investigating misconduct, and/or resolving disputes, as appropriate.  Campuses should avoid appointing persons who have other duties that would create a conflict of interest such as serving as a victim advocate, confidential counselor, student conduct decision maker, or University general counsel.

3.    Publicize Title IX & VAWA Notice to all students and employees

See Appendix C for details on the topics to be included.  Campuses can use a variety of methods for providing Title IX & VAWA notice to students and employees.  For example, comprehensive notice covering the topics in Appendix C can be included on campus websites, in new student orientation, new employee orientation, new hire packets, and ongoing training sessions.  A briefer notice with contact information for Title IX Coordinators and campus resources can be included in websites and print information such as school catalogs, college and department websites, with links to the main Title IX & VAWA websites.  The UH System website also publicizes contact information for Title IX Coordinators, links to relevant policies and procedures, Clery Act captions on job announcements, and an EEO/AA caption on UH System web pages that contains a link to EEO policies and Title IX Coordinators.

Include the following items in the Title IX & VAWA notice:

a.  Policy statement

The policy is provided in section III (above), parts A, B, and C.

b.  Availability of immediate assistance and reporting options

See Appendix C, part B for details.  All members of the University community are urged to seek assistance and report conduct of concern before it becomes severe, pervasive, or persistent.  The Title IX Coordinator and other designated campus offices will provide information to the reporting party on available resources and will seek to prevent harassment from continuing and perhaps escalating and to otherwise assist the person harassed, including implementing accommodations or interim measures, if appropriate and reasonably available (e.g., no-contact orders, campus security escort services, counseling, changes in class schedules, changes in living arrangements, etc.).

On- and off-campus resources, including confidential options
The Title IX & VAWA notice should list the names and contact information for relevant resources, including designated campus reporting options as well as confidential options both on- campus and off-campus. For example:

Designated reporting options:
    • Title IX Coordinator
    • Complaint offices that receive or investigate complaints or handle student judicial affairs
    • Campus security and local law enforcement
Confidential options:
    • Confidential professionals – licensed counselors, physicians, and other professionals legally obligated to maintain confidentiality
    • Advocates, victim services, non-licensed counselors designated by the campus to provide services to students in a private, anonymous setting
    • Community based resources for domestic violence, sexual abuse treatment centers, legal services
c.  Interim measures

See Appendix C, part C for details and examples.  The Title IX & VAWA notice should include information for students and employees about options for, and available assistance in changing academic, living, transportation, and working situations, if requested by the student or employee and if such accommodations are reasonably available, regardless of whether the person chooses to report the crime to campus security or local law enforcement.

d.  Confidential offices and resources

See Appendix C, part D for details and examples.  Any person who has experienced sexual harassment or sexual violence is strongly urged to contact their campus Title IX Coordinator or campus security, as needed in an emergency.  However, if a person desires to keep the details of an incident confidential, she or he can speak with individuals who have professional or legal obligations to maintain confidentiality.  Students may also speak privately with designated campus student services such as advocacy offices and sexual assault services.  When seeking advice and support, students who are concerned about confidentiality and privacy should discuss their concerns with the person with whom they are speaking.  To the extent feasible, the campus Title IX & VAWA notice will indicate which offices listed in the notice are confidential and whether the student can remain anonymous.

e.  Filing complaints

See Appendix C, part E for sample language.  The Title IX & VAWA notice should include contact information for informal and formal complaint options.

(1)  Where to file an administrative or student conduct complaint
Students and employees are strongly encouraged to report incidents of harassment and sexual misconduct as soon as possible to prevent escalation, preserve evidence, and to give campus administrators an opportunity to intervene.  The Title IX & VAWA notice should list the designated complaint officers and offices.

(2)  Where to file a criminal complaint

Complainants can file criminal complaints with local law enforcement, in addition to pursuing administrative remedies through campus student conduct procedures or discrimination complaint procedures.
University proceedings need not await the disposition of any related criminal investigation or prosecution.  The University has the right to proceed with an administrative investigation at any time.

(3)  Filing with a state or federal agency

Complainants can file charges with state and federal enforcement agencies at any time and do not need to wait for the conclusion of a campus student conduct hearing or campus investigation.

f.  Administrative responsibilities and confidentiality

See Appendix C, part F.  The Title IX Coordinator, complaint offices, executives, supervisors, and Campus Security Authorities have administrative or reporting responsibilities for incidents of sexual harassment and sexual violence.  In order to carry out their responsibilities, these offices and individuals may need to share information but will do so only on a need to know basis.  They will treat the complainant, respondent, and witness information in a confidential manner.

g.  Title IX & VAWA requirement to notify the Title IX Coordinator 13

See Appendix C, part G. The Title IX & VAWA notice should inform students that all University employees are subject to Title IX & VAWA.  In order for the University to comply with these laws, all employees are expected to notify the campus Title IX Coordinator if they observe or otherwise become aware of sexual harassment and sexual violence.  This gives the University the opportunity to prevent escalation, offer assistance and other remedial action, and to prevent future incidents. In most situations, employees can notify the Title IX Coordinator without disclosing the identities of the parties involved; however, executives, managers, and supervisors are expected to provide detailed information to the Title IX Coordinator.

Pursuant to Title IX, in situations where a student requests confidentiality and that the campus not investigate or seek disciplinary action against the respondent, the Title IX Coordinator or other designee must consider the request and assess whether the campus can honor the request while still providing a safe and nondiscriminatory environment for all students, including the student who reported the sexual misconduct.

By informing students of the campus obligations under Title IX & VAWA and the role of the Title IX Coordinator, students can make informed decisions about whether to disclose detailed information to staff members who are not covered by legal privilege14 or other designated resource persons or offices that can maintain confidentiality or privacy, e.g., a licensed counseling psychologist, physician, health care provider, clergy, domestic violence or rape crisis center.

h.  Confidentiality requests

See Appendix C, part H.  The notice should indicate the designated officer (usually the Title IX Coordinator) who can review requests for confidentiality.  If a student requests confidentiality (e.g., after having reported an incident to staff member or campus administrator), this request should be considered by the appropriate campus designee in an effort to respect the request in the context of the University’s responsibility to provide a safe, nondiscriminatory environment for all students and employees.

4.    Provide written procedural information to individuals who report
incidents or file complaints

Title IX & VAWA require the University to provide written procedural information to any person who reports an incident or files a complaint.  See instructions and procedural guidelines in Appendix D.

5.    Develop and disseminate a campus process for responding to
incidents and complaints

See Appendix D for key elements to include in the process.

E.    Evidentiary Standard

Determinations of whether or not a policy violation has occurred will be based on “the preponderance of the evidence” standard.  A preponderance of the evidence exists when a reasonable person, after a careful balancing of available information, would conclude that it is more likely than not that the policy has been violated.

F.    Corrective action, including sanctions and remedies

Campus procedures should contain a statement regarding corrective actions, including possible remedies and a list of all possible sanctions 15 that the campus may implement following a final determination of an investigation or student disciplinary procedure regarding sexual harassment or sexual violence.  See Appendix D, part B.4.h for details and examples.

G.    Confidentiality

Efforts to maintain confidentiality of victims will be exercised to the greatest extent possible.  EP1.204 requires each campus to provide information regarding on- and off-campus resources where students and employees may discuss their concerns in a confidential or private (anonymous) setting.

Pursuant to the Clery Act, when an incident of sexual assault has been reported, appropriate members of the University community will be informed, and public safety announcements, as required by law, and publicly-available recordkeeping will be accomplished without the inclusion of identifying information about the victim, to the extent permissible by law.

The University will do a preliminary investigation of any report of sexual harassment or sexual violence that is brought to the attention of the Title IX Coordinators or when the University otherwise has reason to believe that there has been a violation of EP 1.204.  Since all members of the University community are urged to report incidents before they become severe or pervasive, the Title IX Coordinators may receive information involving anonymous individuals. Title IX Coordinators may also receive requests for confidentiality which they will assess in the context of providing a safe, nondiscriminatory campus environment for all students and employees, including the student who reported the alleged sexual misconduct. Thus, not all reports result in formal complaints and investigations.  However, the Title IX Coordinator will provide the reporting parties with written information on the University’s policies and may implement other prevention or remediation efforts.

When an informal or formal complaint is filed, information will be handled in a confidential manner.  Certain information may need to be disclosed to appropriate administrators, the respondent, and witnesses in order to conduct the investigation.  Information may also be disclosed if required by law, rule, regulation, or by order of the court or arbitrator pursuant to the appropriate collective bargaining agreement.

There may be instances when a victim of sexual violence declines to file a complaint but where the University must take action to prevent future incidents and to provide a safe and nondiscriminatory environment for all students and employees, including the reporting party.  In these instances, where the more limited remedial options are deemed to be insufficient, the University has a duty to investigate to the fullest extent possible in an effort to remedy the situation or stop the pattern of violence, despite the lack of information or cooperation by the victim.  The University may initiate an investigation of its own when the President or a Vice President, Chancellor, Vice Chancellor, Dean of Students, or designee receives a report (including third party) or otherwise and has reason to believe that a violation of EP 1.204 has occurred.  These executives have the authority to initiate an informal inquiry or formal investigation.

H.    Right to alternative procedures

It is the right of any individual to pursue other avenues of recourse which may include initiating civil action or seeking redress under state criminal statutes (e.g., the Hawai‘i Penal Code, Chapter 707, Part V. Sexual Offenses, §707-730 to 707-733) and/or federal law.  These avenues of complaint may be pursued concurrently without jeopardizing an individual’s right to use on-campus complaint procedures, including student disciplinary procedures.

Individuals may also pursue civil rights complaints through state and federal agencies, including OCR (students), EEOC (employment), and HCRC (employment).  Complainants should contact these agencies directly regarding agency procedures and deadlines for filing complaints.




10 "Sexual misconduct" as used in this policy refers specifically to "sexual harassment, sexual assault, domestic violence, dating violence, and stalking."
11 OCR Questions and Answers on Title IX and Sexual Violence, April 29, 2014
12 See 20 U.S.C. § 1092(f)(8)(B)(i).
13 OCR Questions and Answers on Title IX and Sexual Violence, April 29, 2014, parts D and E.
14 HRS §626, Article V (Privileges)
15 VAWA and 34 CFR Part 668 § 668.46 Oct. 20, 2014 Final Rule

IV. Delegation of Authority

Vice Presidents and Chancellors are hereby charged with the authority to implement this policy on Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, and Stalking.

V. Contact Information

Subject Matter Experts
 Office of Institutional Equity
 institutional.equity@hawaii.edu
 (808) 956-8629
 
For contact information, go to www.hawaii.edu/eeo.  This website contains contact information for campus Title IX Coordinators and copies of relevant policies.

VI. References

View version abolished on: 2015-09-01

A.    Relevant Federal and State Laws and Regulations

The relevant laws for this policy on sexual harassment and sexual assault include but are not limited to the following:  the Clery Act, as amended; VAWA; Title IX; Title VII; HRS Title 21, Chapter 378 (employment practices); HRS Title 31, Chapter 586-1 (domestic abuse); HRS Title 37, Chapter 707 §§ 707-730 to 707-759 (sexual offenses); other applicable laws and regulations.

B.    Related Executive Policies and Administrative Procedures
  1. UH Executive Policy EP 1.202, Nondiscrimination & Affirmative Action Policy.
  2. UH Executive Policy EP 9.210 – Workplace Non-violence:  Sexual assault, domestic violence, dating violence, and/or stalking are prohibited conduct under the workplace nonviolence policy.
  3. UH Executive Policy EP 7.208 – University of Hawai‘i Systemwide Student Conduct Code.
  4. UH Executive Policy EP 2.210 – Executive Policy on the Use and Management of Information Technology includes guidance on complying with University policies on sexual harassment, email harassment, and community standards regarding privacy.  The policy also references Hawaiʻi law prohibiting the use of computers to commit sexual assault and child abuse.
  5. UH Administrative Procedure AP 9.920 – Discrimination Complaint Procedures for Employees, Students, and Applicants for Employment or Admission
  6. UH Administrative Procedure AP 9.900 – Policy and Complaint Procedure for Members of the Public Who Have Discrimination Complaints Regarding Public Accommodations or ADA Complaints Regarding Disability Access to University Services, Programs, and Activities

VII. Exhibits and Appendices

No Exhibits and Appendices found

Approved

    Signed    
    David Lassner    
    02/07/2015    
    Date    
    President

Topics

No Topics found.


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