REG 04.25.05 – Student Sexual Misconduct Regulation
•First Issued: December 1, 2015
Contact Information: Director, Title IX and Clery Compliance, 910.521.6281, firstname.lastname@example.org
1.1 Non-Discrimination Statement: The university prohibits discrimination based on a person's status as a veteran or an individual with a disability, and prohibits discrimination against all individuals based on their age, race, color, religion, sex, sexual orientation, gender identity, genetic information, or national origin.
1.2 The University of North Carolina at Pembroke has zero-tolerance for sexual misconduct in all of its forms, including but not limited to: sex/gender-based discrimination and harassment and sexual violence committed against students, employees, visitors to the campus, and other persons who use university facilities or participate in university programs or activities. The University of North Carolina at Pembroke is committed to the prevention of sex/gender-based discrimination and harassment, sexual misconduct, sexual assault, domestic violence, dating violence, and stalking.
2. Title IX and Clery Act (Sexual Harassment and Misconduct Offenses)
2.1 Title IX of the Education Amendments of 1972, as amended, prohibits discrimination on the basis of sex in any federally funded education program or activity. Sex/gender-based discrimination and sexual violence are forms of sexual harassment prohibited under state and federal laws including Title IX. Sexual harassment may be verbal, non-verbal or physical in nature, such as persistent unwanted sexual advances or request for sexual favors. Sexual harassment also includes acts of sexual violence. The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) also prohibits sexual violence on university and college campuses.
2.2 Mission Statement: The University of North Carolina at Pembroke is committed to providing an inclusive and welcoming environment for all students, faculty, staff, and visitors. All members of the university community are expected to engage in conduct that contributes to its culture of integrity and honor. The university prohibits its faculty, staff, and students from engaging in any form of discrimination, protected-status harassment, sexual harassment, sexual violence, and retaliation and expects these individuals to refrain from committing acts of discrimination, bias, or sexual violence as these policy violations jeopardize the health and welfare of our campus community. In compliance with applicable federal and state legislation and university policy, the university maintains processes to provide redress and remediation to individuals or groups who believe they have been the victim of these offenses.
2.3 The purpose of this regulation is to provide students with a process and procedure for filing a complaint of sexual misconduct when they feel they have been the victim of another student. If a student feels he/she has been the victim of sexual misconduct by university faculty or staff or any visitor to the university, the student should notify the Title IX coordinator or a deputy Title IX coordinator immediately.
3. RIGHTS OF RESPONDING PARTY(ies)
3.1 Any student enrolled at UNCP who is accused of sexual misconduct, will be afforded full procedural due process in the investigation and adjudication of his/her case.
4. SEXUAL MISCONDUCT INVESTIGATION
4.1 A sexual misconduct investigation is used to ensure safety in our campus community and equity in educational programs and processes. Any student who has experienced sexual misconduct or any student, faculty, staff, parent, or community member who knows of a student who may have experienced sexual misconduct may initiate a sexual misconduct investigation. Students who have experienced an alleged sexual misconduct violation will be given information and empowerment to make informed decisions throughout the investigatory process and will be the driving force behind the sexual misconduct investigation. During the investigation and possible adjudication, both the Reporting Party and the Responding Party will be accorded due process, equity, and fairness.
4.2 Filing a Complaint: Anyone who would like to make a complaint based on a violation of our sexual misconduct policy by a UNCP student may contact the university Title IX coordinator, Deputy Title IX coordinators, the CARE Team, CAPS, Health Services, campus law enforcement, and/or the office of the director of student conduct. Reports may also be made online via the Sexual Misconduct Reporting form.
4.3 Any university employee, with a duty to report (see “Responsible Employee” herein), who receives notice of sexual misconduct is required to file a complaint as soon as possible, unless that notice is given to an employee who provides professional confidentiality (see Counseling and Advocacy herein). Clery Act crime statistic and timely warning reporting duties must also be observed.
4.4 Although not a process in this policy, allegations of sexual misconduct made by a student against a university employee or any other person (non-student) should be reported to the Title IX coordinator, a deputy Title IX coordinator, campus law enforcement, CAPS, student health services, or the office of human resources in accordance with the university’s Employee Sexual Misconduct policy.
4.5 If a criminal complaint is filed in addition to a complaint with the university, the Title IX coordinator will coordinate with law enforcement so that the university process does not interfere with the integrity or the timing of the law enforcement investigation. The university, however, will not wait for the conclusion of any criminal investigation or proceedings before continuing with its own investigation. The university may agree to temporarily delay its investigation while law enforcement gathers evidence. In the event of such a delay, the university will take interim measures as needed to protect all parties and the university community. The university will promptly resume and complete its investigation once it learns it will no longer interfere with law enforcement’s criminal investigation or the Title IX coordinator deems it appropriate to do so.
4.6 The Investigative Process
4.6.1 In accordance with state and federal laws, both the Reporting Party and the Responding Party are permitted to have a support person (not an active participant in the process but present for emotional support) and a licensed attorney or non-attorney advocate accompany them through the sexual misconduct investigation and the university student conduct adjudication process. The advisor may be a licensed attorney, non-attorney advocate, or other advisor selected by the student. Students are permitted these options at any point through the initial intake process, formal investigation, and/or hearing process. Students who wish to use a licensed attorney or non-attorney advocate must do so in compliance with procedures established by the director of student conduct and stated in the Student Disciplinary Process section of the Student Handbook.
4.6.2 Complaints of sexual misconduct will be investigated in a thorough and timely manner as follows.
4.7 Initial Investigation (Intake of formal complaint by notice)
4.7.1 Upon receipt of notice of any allegation of sexual misconduct, the Title IX coordinator will send a letter via email (or other means) to the Reporting Party verifying receipt of the complaint and informing the student of various support services and the investigatory process.
4.7.2 The Reporting Party will be invited to meet with the Title IX coordinator and/or a deputy Title IX coordinator so they can be informed of the investigatory and adjudicatory process and their options under this policy. This meeting may also involve a discussion of any accommodations that may be appropriate concerning academic, university housing and/or university employment arrangements (see Accommodations Options herein). The Title IX coordinator will gather initial information and determine whether the information, if true, would constitute a violation of this policy. At the conclusion of the intake process, the Title IX coordinator will:
4.7.2.a. Determine there is sufficient information to continue an investigation, and convey this recommendation to the director of student conduct and the office of the general counsel; or
4.7.2.b. Determine there is insufficient information to continue an investigation, and convey this recommendation to the director of student conduct and the office of the general counsel.
4.7.3 The Title IX coordinator and director of student conduct, in consultation with the office of the general counsel, will jointly decide whether to continue the formal Title IX investigation as described below.
4.8 Formal Investigation
4.8.1 If the decision is made to proceed with a formal investigation, the Title IX coordinator will prepare a formal complaint, which will include the name of the Responding Party, the date, location and nature of the alleged misconduct, and a list of any potential witnesses that may need to be interviewed.
4.8.2 The Title IX coordinator will provide written notification to the Reporting Party and the Responding Party(ies) via email (or other means) and invite the Responding Party to meet to discuss the complaint. Both the Reporting Party and Responding Party may provide, but is not required, a thorough written narrative of the incident to aid in the investigation. These statements may be used in the adjudication process.
4.8.3 If the Reporting Party does not wish to participate in the formal investigation, actions will be taken as outlined in the “Confidentiality and Privacy” section of the Sexual Misconduct policy. The university may issue an administrative order of no contact or take other reasonably necessary interim measures as described in the “Accommodation Options” section of the Sexual Misconduct policy in order to provide a safe and nondiscriminatory environment for all students. The university may also elect to proceed with a formal investigation in the absence of participation from the Reporting Party.
4.8.4 At any time, especially in regards to a sexual violence offense, the Reporting Party may file a criminal complaint with campus law enforcement and/or local police, which may result in a criminal investigation. Victims of sexual misconduct have the right to file or not file a criminal complaint.
4.8.5 Based on the issues identified in the investigation and in consultation with the director of student conduct and the office of the general counsel, the Title IX coordinator may request a campus law enforcement investigation.
4.8.6 At the conclusion of the interviews, the Title IX coordinator will complete both a draft and final Investigation Report, which will include but not be limited to, summaries of all interviews and any relevant evidence (photographs, electronic, and forensic evidence, etc.). The draft investigation report will be distributed to the director of student conduct (and director of human resources, as necessary). The office of the general counsel will be consulted.
4.8.7 The investigation and adjudication will be completed within sixty (60) calendar days from receipt of a complaint (or notice of an alleged sexual misconduct offense). An investigation typically takes 21 to 45 business days to complete. Generally within 14 business days after completion of an investigation a hearing, if applicable, is scheduled. During this time, the investigator may seek clarifying information and/or meet with the Reporting Party, Responding Party(ies), witnesses, and/or others. Circumstances may require the university to extend this overall time-frame or any individual time frame discussed in this regulation. Examples of reasons why time-frames may need to be extended include the complexity of the case, delays due to fall/spring/summer/holiday breaks, inclement weather, and other extenuating circumstances. Exceptions to these time-frames will be communicated to both the Reporting Party and Responding Party in writing.
4.8.8 At the conclusion of the investigation, the Title IX coordinator will provide the Reporting Party and Responding Party, respectively and individually, an opportunity to review the draft Investigation Report, which will not include the investigative finding(s), and, for privacy concerns, may be presented in redacted format. The parties will not receive an electronic or written copy, nor may they photograph or copy the draft Investigation Report, but they will be permitted to take notes on its content.
4.8.9 A Reporting Party and Responding Party may submit additional comments or information to the investigator within five (5) business days of the date of the notice of the opportunity to review the draft Investigation Report. This is the final opportunity for the parties to identify any additional relevant information and/or witnesses.
4.8.10 Any subsequent relevant information and/or witnesses provided by the Reporting Party and/or Responding Party in response to their review of the draft Investigation Report, to include any additional information from further witness interviews, will be included in the final Investigation Report.
4.8.11 After reviewing the final Investigation Report, the Title IX coordinator, director of student conduct, and the office of the general counsel will determine if there is cause under the Student Code of Conduct to schedule a hearing.
4.8.12 Should a determination be made not to proceed with the disciplinary process, the interviewer will meet with the Reporting Party to discuss the decision.
4.8.13 If a hearing is granted, written notice will be provided to the Reporting Party and the Responding Party by the director of student conduct (or the director of human resources, if necessary). The Reporting Party will be offered the choice of having the matter heard by either the Campus Hearing Board (CHB) or an Administrative Hearing conducted by the director of student conduct.
4.8.14 Both parties will receive a copy of the final Investigation Report (possibly redacted).
4.8.15 If a hearing is conducted, the Title IX coordinator can attend the hearing, if requested, to provide testimony regarding the investigation and the final Investigation Report.
5. UNIVERSITY STUDENT CONDUCT ADJUDICATION SYSTEM AND CODE OF CONDUCT
5.1 During the student conduct adjudication system, the parties involved in a sexual misconduct case are identified as either “Complainant” or “Respondent.”
5.2 The university student conduct adjudication system provides a just and equitable process for dealing with alleged violations by students of university rules, regulations, or laws. The system is informal and is intended to educate students, to help them make responsible decisions, and to be accountable for their actions.
5.3 The respondent(s) and the complainant(s) may, in accordance with UNC Policy Manual 700.4.1.1[R], have an attorney/non-attorney advocate present with them throughout the hearing process and may present witnesses on their behalf and do so to the same extent as the student. For further information regarding attorney/non-attorney advocate please refer to the Student Disciplinary Process section of the Student Handbook.
5.4 sanction for a student found responsible for a sexual misconduct offense will at a minimum be conduct probation, with the maximum penalty being suspension, dismissal, or expulsion from the institution. In severe cases involving forced rape and/or physical injury involving a weapon, the penalty is expulsion. The severity of the offense and the potential for subsequent harm to the complainant/survivor or the community at large weigh heavily in the determination of what sanctions are imposed in such cases. The complainant's identity and all information concerning the offense are held in strict confidence by hearing authorities under the guidelines of FERPA (The Family Educational Rights and Privacy Act). However, the university cannot guarantee confidentiality. Both the Complainant and the respondent shall be informed in writing of the outcome of any campus judicial proceeding or grievance procedure in which sexual misconduct is alleged.
6. CONDUCT HEARING BOARD (CHB) AND ADMINISTRATIVE HEARINGS
6.1 The Conduct Hearing Board and administrative hearings will follow the procedures outlined in the Student Handbook, Chapter IV., Rights and Responsibilities. The following additional procedures and rights will be afforded students for cases involving charges of sexual misconduct.
6.1.1 The respondent will have a pre-hearing interview with the director of student conduct or designee and the complainant will be offered the opportunity to have a pre-hearing meeting with the director of student conduct or designee.
6.1.2 Both the complainant and the respondent will have the opportunity to review all evidence submitted for consideration by the Conduct Hearing Board.
6.1.3 If the complainant has requested to have his/her identity remain confidential and the university has decided to proceed with the complaint, any documents provided to the respondent will not have any identifying information to the extent possible and consistent with providing the respondent with sufficient information to respond.
6.1.4 Complainants who wish to have their identity remain confidential will be notified that the university may have a limited ability to respond to the alleged charges.
6.1.5 After an appropriate review of the case, the university will inform the student whether it is possible to ensure confidentiality.
6.1.6 The Conduct Hearing Board will adhere to preponderance of evidence as its standard of proof.
6.1.7 During a Conduct Hearing Board hearing, both the complainant and the respondent will be permitted to question the testimony of the other party and all witnesses. All questions will be posed to the chair of the Conduct Hearing Board and if the question is deemed relevant and proper the chair will echo the question to be answered.
6.1.8 The complainant may request that a screen, or similar device, be used in the hearing room to visually separate him/her from the respondent.
6.1.9 Both the complainant and the respondent will be simultaneously notified in writing of the outcome of the hearing and any subsequent appeal hearings.
6.1.10 Both the complainant and the respondent will have the right to appeal cases involving sexual misconduct.
6.2 The complainant and respondent will follow the established policy for appeals of a Conduct Hearing Board or administrative hearing case. In addition, the grounds for appeal in cases involving sexual misconduct are as follows:
6.2.1.a. An alleged violation of the respondent’s right to due process that could affect the outcome;
6.2.1.b. The sanctions and/or conditions of sanctions are extraordinarily disproportionate to the violation(s); or
6.2.1.c. Discovery of new and significant information that could have affected the outcome of the hearing and that was not known, or could not reasonably have been discovered and/or presented at the time of the hearing.
6.2.2.a. An alleged violation of the complainant’s rights to due process that could affect the outcome;
6.2.2.b. The sanction did not represent the severity of the violation committed; or
6.2.2.c. Discovery of new and significant information that could have affected the outcome of the hearing and that was not known, or could not reasonably have been discovered and/or presented at the time of the hearing.
6.3 The complainant and/or respondent may appeal a decision by the Conduct Hearing Board to the Conduct Appeals Board (CAB) using the grounds for appeal listed above. Following any appeal by the complainant and/or respondent to the CAB, the complainant and/or respondent may appeal to the chancellor or his/her designee using the grounds listed above. Except for sanctions of suspension or expulsion, the decision of the chancellor or his/her designee will be final and no additional appeals may be filed.
6.4 Where the sanction is suspension or expulsion, an appeal may be made to the Board of Trustees. When the sanction is expulsion, the final campus decision is appealable to the Board of Governors. No appeal to the president is permitted.
6.5 Prior to, during or following the Conduct Hearing Board hearing or administrative hearing, interim measures may be initiated by the university to minimize the impact on the complainant. These interim measures may include, but are not limited to: no contact order, housing relocation, reassignment of academic schedule, and interim suspension. When an interim suspension is imposed, a hearing of the charges against the suspended person(s) shall be held as expeditiously as possible.
6.6 The university prohibits any form of retaliation by any party to a Title IX investigation and/or adjudication process. Should any party feel they are being retaliated against by a university student or employee, they should immediately inform the Title IX coordinator, deputy Title IX coordinators, or the director of student conduct.
7.1 The university will not tolerate retaliation in any form against any faculty, staff, student, or third-party (visitor) who files a complaint, serves as a witness, assists the Reporting Party or Responding Party, or participates in an investigation of discrimination or harassment. University policy and state and federal law prohibit retaliation against an individual for reporting discrimination, sexual violence or harassment, or for participating in an investigation. Retaliation is a serious violation that can subject the offender to sanctions independent of the merits of the original complaint. Allegations of, or questions about, retaliation should be directed to the Title IX coordinator, a deputy Title IX coordinator, the director of student conduct, or the director of human resources.
8. DISCIPLINARY SANCTIONS FOR INDIVIDUAL STUDENTS
8.1 The aim of all discipline is two-fold: first, to develop self-control in the individual, and second, to protect the welfare of the campus community. The emphasis is on rehabilitation and re-education.
8.2 Official Warning. A written reprimand for violation of specified regulations, including a warning that continuation or repetition of prohibited conduct may be cause for additional disciplinary action.
8.3 Restitution. Appropriate reimbursement for a wrongful act which resulted in loss, damage, or actual expenses incurred by the university.
8.4 Educational Assignments. This sanction requires that the student complete an assigned task with the purpose of educating the student about the implications, effects, or dangers of their behavior. These assignments can include, but are not limited to, work assignments, mandatory mentoring, restorative justice mediations, or other related discretionary assignments as provided by the hearing officer or hearing board.
8.5 Area Restrictions. Exclusion of a student for a designated time period from a facility, such as the gym, the University Center, the residence halls, or other areas on campus.
8.6 Loss of Privileges. Denial of specified privileges for a designated period of time. This includes, but is not limited to, loss of position in club(s) or student organization(s), suspension from athletic team or performing group, prohibition from participation in co-curricular activities, or loss of privilege to park or drive on campus.
8.7 Exclusion from On-Campus Residency. Defined as removing the student's privilege to apply for and/or live in a residential facility for a specified period of time. This sanction should be imposed if the offense(s) for which the student was found responsible merits the student's exclusion from on-campus residency. This decision would be based on evidence that the student's continued presence would interfere with the living/learning atmosphere within the residential community.
8.8 Residence Facility Relocation. Removal of a student from his/her present room or from that residence facility and assigning that student to another room or another residence facility. This would include considerations relative to housing options.
8.9 Eviction from an On-Campus Residential Facility. Removal of a resident from an on-campus residence for a specified period of time. Students who are evicted from an on-campus residential facility are prohibited from returning to or visiting in any on-campus residential facility. Students evicted will not be eligible for refund of unused room or board.
8.10 No-Contact Directive. A no-contact directive may be assigned in order to facilitate any university inquiry into an incident and/or be assigned as a sanction. Generally, no-contact is defined as having no direct or indirect contact between two or more students at any time. This includes, but is not limited to, communication that is considered written, electronic, verbal, or physical. Written and electronic communication is understood to include all electronic means of communication, including but not limited to, e-mail, instant messaging, social networking sites, text messaging, etc. Verbal communication is understood to include phone calls, voicemails, etc. A no-contact directive may include additional restrictions and terms.
8.11 Conduct Probation. The student continues in attendance; however, (s)he is in danger of suspension for any breach of good conduct during the period of conduct probation. Further (s)he may not hold any general elective office while on conduct probation. A copy of the probation letter is placed in his/her file in the office of the vice chancellor for student affairs.
8.12 Community Work/Service. Community work/service assigned to a student shall commence within one week and shall be completed within 40 days of the penalty. The maximum number of voluntary work hours that may be assigned is 75. The community work/service must be supervised by a UNCP employee, and may be case or offense related.
8.13 Suspension. The student is excluded from the university, both academically and socially, for a stated period. The student may request to be readmitted at the end of this period of suspension; however, readmission is never automatic. A copy of the suspension letter is placed in his/her file in the Student Affairs Office.
8.14 Interim Suspension. Whenever there is evidence to suspect that a student's behavior on or off campus is a clear and present threat to the health, safety and welfare of the faculty, staff, students or guests, or himself/herself, the student may be suspended on an interim basis until a campus hearing can be arranged. A student on an interim suspension may be restricted from the campus in its entirety or from a particular program, activity, or building.
8.15 Summary Suspension. Please see section IV, Rights and Responsibilities, Initiation of Disciplinary Procedures, part 17. Committee on Extraordinary Disciplinary Emergencies and 17.5., Summary Suspension, for a detailed description of this disciplinary sanction.
8.16 Expulsion. The Conduct Hearing Board or administrative hearing officer will make a recommendation for expulsion, and the vice chancellor for student affairs will review the recommendation, and will provide a statement of assent or dissent to accompany the recommendation to the chancellor of the university to permanently separate the student from the university. The chancellor must review and make the final decision on any expulsion penalty for disciplinary reasons, in accordance with UNC Policy Manual 700.4.3[G]. When a recommendation of expulsion is made to the chancellor by the Conduct Hearing Board or the administrative hearing officer an additional sanction of immediate Interim Suspension will be imposed. A student who is expelled will be unable to graduate from The University of North Carolina at Pembroke. Please see the Expulsion Policy in Section IV - Rights and Responsibilities.
9. DISCIPLINARY SANCTIONS FOR STUDENT ORGANIZATIONS
9.1 The aim of all discipline in cases of student organizations is two-fold: first, to maintain accountability and efficacy, and second, to protect the welfare of individual students and the community. The emphasis is on rehabilitation and re-education. All sanctions provided to a student organization will be communicated to the appropriate National/International Office (if applicable).
9.2 Official Warning. A written reprimand for violation of specified regulations, including a warning that continuation or repetition of prohibited conduct may be cause for additional disciplinary action.
9.3 Educational Projects. This sanction requires that the student organization complete an assigned task with the purpose of educating the organization about the implications, effects, or dangers of their behavior. These assignments can include, but are not limited to, work assignments, mandatory mentoring, service projects, restorative justice mediations, or other related discretionary assignments as provided by the administrative hearing officer or Conduct Hearing Board.
9.4 Restitution. Appropriate reimbursement for a wrongful act, which resulted in loss, damage, or actual expenses incurred by the university or individuals.
9.5 Fines. An amount of money applied to a student organization for violation of a university or department policy.
9.6 Cease and Desist. When the Office of Student Conduct or designee has reasonable cause to believe that a student organization’s activity poses a significant risk of substantial harm to the safety or security of themselves, others, or property, the student organization may be placed on cease and desist. Cease and desist is defined as the temporary suspension of all or any specific organization operation or activity. This temporary suspension will be confirmed by a written statement and shall remain in effect until the conclusion of a full Conduct Hearing Board or administrative decision by the Office of Student Conduct and any appeals. All cease and desist notifications provided to a student organization will be communicated to the appropriate National/International Office (if applicable).
9.7 Conduct Probation. Probation for a designated period that includes the probability of more sever disciplinary sanctions if the student organization is found to violate any institutional regulation(s) or policies during the probationary period. A student organization placed on conduct probation must meet bi-weekly (2 times per month) with the Office of Fraternity and Sorority Life or the Office of Student Involvement and Leadership. All student organization events must be approved by the appropriate office.
9.8 Loss of Privileges. Denial of specified privileges for a designated period of time (e.g., inability to have guests/visitors, inability to hold social functions, etc.).
9.9 Loss of Recognized Student Organization Status. A loss of all privileges, including University of North Carolina at Pembroke recognition as a student organization, for a specified period.
10. TRAINING FOR CONDUCT HEARING BOARD (CHB) AND CAMPUS APPEALS BOARD (CAB)
10.1 All members of the CHB and CAB will receive annual training regarding sexual misconduct and policy violations related to gender and equity. The training can be provided by internal or external sources and will include, but not be limited to the following:
10.1.a. Review of student code of conduct;
10.1.b. Review of legal definitions of sexual misconduct offenses;
10.1.c. Information refuting myths about sexual misconduct;
10.1.d. Training on issues of consent and coercion;
10.1.e. Information about judging credibility and the use of drugs and alcohol in the commission of sexual misconduct;
10.1.f. Trauma-informed interviewing; and
10.1.g. Information about appropriate sanctions.