Title IX

The trainings listed below have been attended by Title IX Coordinators, investigators, campus administrators, faculty, and staff.

1. Title IX and Sexual Harassment Response [Husch Blackwell]
2. Clery, Title IX and VAWA
3. Title IX Final Regulations [Husch Blackwell]
4. Title IX Advisor Training
5. Title/VAWA Investigator Training
6. Title IX and Governance [Husch Blackwell]

Scope 

Sexual Harassment, whether verbal, physical, or visual, that is based on sex is a form of prohibited conduct. For purposes of this policy, Sexual Harassment includes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, and Stalking. The specific definitions including examples of such conduct, are listed below.

This policy applies to all members of the College community (employees, students, applicants for employment, customers, third-party contractors, and all other persons) that participate in the College’s Education Programs or Activities, including third-party visitors  on campus.

Mercy College’s prohibition on Sexual Harassment extends to all aspects of its educational programs, activities and operations, including, but not limited to, admissions, employment, academics, and student services.

This policy does not apply to Sexual Harassment that occurs off-campus, in a private setting, and outside the scope of the College’s Education Programs or Activities; such sexual misconduct may be addressed in the employee and student conduct policies

Consistent with the U.S. Department of Education’s implementing regulations for Title IX, this policy does not apply to Sexual Harassment that occurs outside the geographic boundaries of the United States, even if the Sexual Harassment occurs in Mercy College’s Education Programs or Activities.

Members of the College community who commit Sexual Harassment  are subject to the full range of discipline including verbal reprimand; written reprimand; mandatory training, or counseling; mandatory monitoring; partial or full probation; partial or full suspension; fines; permanent separation from the institution (that is, termination or  expulsion); physical restriction from Mercy College property; cancellation of contracts; and any combination of the same.

Definitions

Complainant is an individual who is alleged to be the victim of conduct that may constitute Sexual Harassment.  The Complainant must be, at the time of filing the Formal Complaint, participating in or attempting to participate in the College’s Education Programs or Activities.

Respondent is an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment. The Respondent must be participating in or attempting to participate in the College’s Education Programs or Activities.

Formal Complaint is a document filed by a Complainant and/or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and specifically requesting the College investigate the allegation of Sexual Harassment in accordance with this policy. A “document filed by a Complainant” means a document or electronic submission (such as an email) that contains the Complainant’s physical or electronic signature or otherwise indicates that the Complainant is the person filing the Complaint.  A parent, friend, or other third party cannot file a Formal Complaint on behalf of a Complainant.  However, the Title IX Coordinator may sign a Formal Complaint as long as the decision to do so is clear and not unreasonable.

Title IX Team

Members of Mercy College who participate in the investigation of a Formal Complaint.

Hearing Panel

A panel of individuals, free of a conflict of interest or bias, responsible for issuing a written determination of responsibility after a live hearing.

Administrative Resolution

Investigation of a policy violation and recommended finding by an administrator with an opportunity to appeal.

Administrative Officer

The individual who will conduct the Administrative Resolution process and determine the resolution.  This individual will not be the Title IX Coordinator or Investigating Officer.

Investigating Officer

Individual, free of a conflict of interest or bias, assigned by the Title IX Coordinator with gathering facts about an alleged Sexual Harassment, assessing the relevance and credibility and preparing a written report.

Advisor

An individual chosen by the Complainant and Respondent or appointed by Mercy College to accompany the party to meetings, provide advice to the party, and conduct cross-examination for the party at the hearing.

Preponderance Standard

The standard of “more likely than not” used to determine if the allegation occurred.

Sexual Harassment

Sexual Harassment is conduct on the basis of sex that constitutes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, or Stalking.

Quid Pro Quo

Quid Pro Quo Sexual Harassment is when an employee of Mercy College conditions an aid, benefit, or service of the College to an individual who participates in unwelcome sexual contact.

Hostile Environment

Hostile Environment Sexual Harassment is unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person access to Mercy College Education Programs or Activities.

In determining whether a hostile environment exists, Mercy College will consider the circumstances, including factors such as the actual impact the conduct has had on the Complainant; the nature and severity of the conduct at issue; the frequency and duration of the conduct; the relationship between the parties (including whether one individual has power or authority over the other); the context in which the conduct occurred; and the number of persons affected.  The College will evaluate the circumstances from the perspective of a reasonable person in the Complainant’s position.  A person’s adverse subjective reaction to conduct is not sufficient, in and of itself, to establish the existence of a hostile environment.

Some specific examples of conduct that may constitute Sexual Harassment if unwelcome include, but are not limited to:

• Unreasonable pressure for a dating, romantic, or intimate relationship or sexual contact.
• Unwelcome kissing, hugging, or massaging.
• Sexual innuendos, jokes, or humor.
• Displaying sexual graffiti, pictures, videos, or posters.
• Using sexually explicit profanity.
• Asking about, or telling about, sexual fantasies, sexual preferences, or sexual activities.
• E-mail, internet, or other electronic use that violates this policy.
• Leering or staring at someone in a sexual way, such as staring at a person’s breasts or groin.
• Sending sexually explicit emails, text messages, or social media posts.
• Commenting on a person’s dress in a sexual manner.
• Giving unwelcome personal gifts such as lingerie that suggest the desire for a romantic relationship.
• Insulting, demeaning, or degrading another person based on gender or gender stereotypes.

Sexual Assault

“Sexual Assault” includes the sex offenses of Rape, Sodomy, Sexual Assault with an Object, Fondling, Incest, and Statutory Rape.

“Rape” is the carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.  There is “carnal knowledge” if there is the slightest penetration of the vagina or penis by the sexual organ of the other person.  Attempted Rape is included.

“Sodomy” is oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

“Sexual Assault with an Object” is using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.  An “object” or “instrument” is anything used by the offender other than the offender’s genitalia.

“Fondling” is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.

“Incest” is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by Iowa law.

“Statutory Rape” is sexual intercourse with a person who is under the statutory age of consent as defined by Iowa law.

Domestic Violence

Domestic Violence is felony or misdemeanor crime of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of Iowa, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of Iowa.

Dating Violence

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 and where

the existence of such a relationship shall be determined based on a consideration of the length of the relationship, the type of relationship and the frequency of interaction between the persons involved in the relationship.

Stalking

Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others or suffer substantial emotional distress.

The conduct would include two or more acts, including but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device or means follows, monitors, observes, surveils, threaten or communicates to or about, a person, or interferes with a person’s property.

Consent

Consent refers to words or actions that a reasonable person from the perspective of the Respondent would understand as agreement to engage in sexual activity. Consent is a voluntary and knowing act. A person who is incapacitated is not capable of giving consent. Lack of consent is critical in determining whether Sexual Harassment has occurred. Consent must be given for each form of sexual contact and with each sexual partner. Consent requires affirmative, clear, unambiguous acts or statements by each person involved. Consent is not passive.

• If coercion, intimidation, threats, and/or physical force are used, there is no consent. If a person is mentally or physically incapacitated or impaired by alcohol or drugs such that the person cannot understand the fact, nature, or extent of the sexual situation, there is no  consent.
• If a person is asleep or unconscious, there is no consent.
• Consent to one form of sexual activity does not imply consent to other forms of sexual activity.
• Previous consent for sexual activity does not give consent for future sexual activity.
• Consent can be withdrawn at any time. A person who initially consents to sexual activity is deemed not to have consented to any sexual activity that occurs after he or she withdraws consent.
• Within the state of Iowa consent cannot be given by a minor under the age of 16.

Incapacitation

Incapacitation refers to the state where a person does not appreciate the nature or fact of sexual activity due to the effect of drugs or alcohol consumption, medical condition or disability, or due to a state of unconsciousness or sleep.

Incapacitation is a state where an individual cannot make an informed and rational decision to consent to engage in sexual contact because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the “who, what, where, when, why or how” of the sexual interaction) and/or is physically or mentally helpless. An individual is also considered incapacitated, when asleep, unconscious, or otherwise unaware that sexual contact is occurring.

Incapacitation can only be found when the Respondent knew or should have known that the Complainant was incapacitated when viewed from the position of a sober, reasonable person. One’s own intoxication is not an excuse for failure to recognize another person’s incapacitation.

Incapacitation may result from the use of alcohol and/or other drugs; however, consumption of alcohol of other drugs, inebriation, or intoxication alone are insufficient to establish incapacitation. Incapacitation is beyond mere drunkenness or intoxication. The impact of alcohol or drugs varies from person to person, and evaluating incapacitation requires an assessment of how consumption of alcohol and/or drugs impacts an individual’s:

•  Decision-making ability
• Awareness of consequences
•  Ability to make informed judgments
• Capacity to appreciate the nature of circumstances of the act.

No single factor determines incapacitation.  Some common signs that someone may be incapacitated include slurred speech, confusion, shaky balance, stumbling or falling down, vomiting, and unconsciousness.

Supportive Measures

Supportive measures are non-disciplinary, non-punitive individualized services offered, as appropriate, and reasonably available, and without fee or charge, that are designed to restore or preserve equal access to  Mercy College’s Education Programs or Activities without unreasonably burdening another party.  These measures include measures designed to protect the safety of all parties implicated by a report or Mercy College’s education environment, or to deter Sexual Harassment.  Supportive measures may include contact information for counseling, community resources for Sexual Harassment and law enforcement. They may also include mutual restrictions on contact between the parties implicated by a report.

Retaliation

Retaliation is intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by Title IX and its implementing regulations or because an individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy.

Education Programs or Activities

Education Programs or Activities refers to all the operations of the College, including, in-person and online educational instruction, employment, research activities, extracurricular activities, and community engagement and outreach programs.  The term applies to all activity that occurs on campus or on other property owned or occupied by Mercy College.  It also includes off-campus locations, events, or circumstances over which Mercy College exercises substantial control over the Respondent and the context in which the Sexual Harassment occurs.

No Retaliation

It is a violation of this policy to engage in Retaliation against any member of the Mercy College community who reports or assists in making a report or Formal Complaint of Sexual Harassment, participated in an investigation, testified at a hearing, filed an appeal, tries to interfere with an individual’s Title IX rights, refuses to participate in an investigation of a Formal Complaint, or who assisted in the process.

Persons who believe they have been retaliated against in violation of the policy should file a complaint with the Title IX Coordinator.  Complaints of retaliation may be subject to the same procedures as Formal Complaints of Sexual Harassment.

Academic Freedom

The College will construe and apply this policy consistent with the principles of academic freedom.  In no case will a Respondent be found to have committed Sexual Harassment based on expressive conduct that is protected the principles of academic freedom.

The exercise of the principles of academic freedom does not constitute retaliation.

Confidentiality

Every effort will be made to preserve the confidentiality of the identity of any individual who has made a report or Formal complaint; the parties involved and witnesses, except as required by this policy, permitted by FERPA or as required by law.  The College will also maintain the confidentiality of its various records generated in response to reports and Formal Complaints, including, information concerning Supportive Measures, notices, investigation materials, adjudication records, and appeal records.  However, the identity of any person or the contents of any record, if permitted by FERPA, may be revealed, if necessary to carry out the College’s obligations under Title IX and its implementing regulations including the conduct of any investigation, resolution, or appeal under this policy or any subsequent proceeding, or as otherwise required by law.  The parties to a report or Formal Complaint will be given access to investigation and resolution materials in the circumstances specified in this policy.

While confidentiality will be maintained as specified in this section, the College will not limit the ability of the parties to discuss the allegations at issue in a particular case. Parties are advised, however, that the manner in which they communicate about, or discuss a particular case, may constitute Sexual Harassment or Retaliation in certain circumstances and be subject to discipline according to the processes specified in this policy.

Certain types of Sexual Harassment are considered crimes for which Mercy College must disclose crime statistics in its Annual Security Report that is provided to the campus community and available to the public. These disclosures will be made without including personally identifying information.

Mercy College reserves the right to designate which Mercy College individuals have legitimate educational interest in being informed about incidents that fall within this policy.

Education and Training

Mercy College offers educational programming and awareness programs for members of the College community. Educational topics include but are not limited to: relevant definitions, procedures, policies, safe and positive options for bystander intervention; and risk reduction information.

Training will be provided for members of the Title IX team, annually, on issues related to, Sexual Harassment. The training will include how to conduct investigations and complaint resolutions as well processes to protect the victim’s safety and promote accountability.  Training will also  include training on relevant technology to be used at any live hearing and the relevance and permissible use of sexual history, as well as any other requirements outlined in 34 C.F.R. § 106.45(b)(1)(iii) and any other applicable federal or state law.

Recordkeeping

Throughout all stages of the investigation, resolution, and appeal, the Investigating Officer, the Title IX Coordinator, and Appeal Chair are responsible for maintaining documentation of the case. This includes documentation of all proceedings conducted under these complaint resolution procedures which may include written findings of fact, transcripts, and audio recordings.  Mercy College will maintain all documentation pertaining to the case for a period of seven (7) years.

Intersection With Other Processes

These complaint resolution processes are the exclusive means of resolving complaints alleging violations of the Sexual Harassment Policy. To the extent there are any inconsistencies between this process and other Mercy College grievance, complaint, or discipline processes, this complaint resolution process will control the resolution of complaints alleging violations of this policy.

This policy applies only to Sexual Harassment.  Complaints of other forms of sex discrimination are governed by the Mercy College’s Employee and Student code of policies.

The College has designated the following Title IX Coordinator to coordinate its compliance with Title IX and its implementing regulations and to receive inquiries regarding Title IX, including reports of Sexual Harassment. Any person may report Sexual Harassment to the Title IX Coordinator.  Reports may be made in person, by regular mail, telephone, electronic mail, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.  In-person reports must be made during normal business hours, but reports can be made by regular mail, telephone, or electronic mail at any time, including outside normal business hours.

Deputy Title IX Coordinator-Students
Lyneene Richardson
Dean of Students
515.643.6659
ACE 181
928 6^th Avenue
Des Moines, IA  50309
Lyneene.Richardson@MCHS.edu

The Counselor at Mercy College is the only individual who is not required to report an issue of sexual harassment, discrimination or retaliation to the Title IX Coordinator.

Reports of Sexual Harassment may also be filed with the United States Department of Education’s Office for Civil Rights by calling 1-800-421-3481 or visiting http://www2.ed.gov/about/offices/list/ocr/complaintprocess.html.

Preliminary Assessment

After receiving a report, the Title IX Coordinator will conduct a preliminary assessment to determine:

• Whether the conduct, as reported, falls or could fall within the scope of this policy; and
• Whether the conduct, as reported, constitutes or could constitute Sexual Harassment.

If the Title IX Coordinator determines that the conduct reported could not fall within the scope of the policy, and/or could not constitute Sexual Harassment, even if investigated, the Title Coordinator will close the matter and may notify the reporting party if doing so is consistent with the Family Educational Rights and Privacy Act (“FERPA”).  The Title IX Coordinator may refer the report to other College offices, as appropriate.

If the Title IX Coordinator determines that the conduct reported could fall within the scope of the policy, and/or could constitute Sexual Harassment, if investigated, the Title IX Coordinator will proceed to contact the Complainant.

As part of the preliminary assessment, the Title IX Coordinator may take investigative steps to determine the identity of the Complainant, if it is not apparent from the report.

Contacting the Complainant and Respondent

If a report is not closed as a result of the preliminary assessment and the Complainant’s identity is known, the Title IX Coordinator will promptly contact the Complainant to discuss Supportive Measures available, to discuss and consider the Complainant’s wishes with respect to Supportive Measures, to inform the Complainant about the availability of such measures with or without filing a Formal Complaint, and to discuss the process of filing and pursing a Formal Complaint.

The Complainant will also be provided options for filing complaints with the local police and information about resources that are available on campus and in the community.

During this time, the Respondent will be notified of a Formal Complaint, by the Title IX Coordinator and will be notified of the availability of Supportive Measures for the Respondent. Mercy College will offer and make available Supportive Measures to the Respondent in the same manner in which it offers and makes them available to the Complainant.

The College will also offer and make available Supportive Measures to the Respondent prior to the Respondent being notified of a Formal Complaint, if the Respondent requests such measures.

Confidentiality of Supportive Measures provided to either a Complainant or Respondent will be maintained, to the extent that maintaining such confidentiality does not impair the College’s ability to provide the Supportive Measures in question.

Timing of Complaints

The College encourages timely reporting of Sexual Harassment. A delay in filing a report may limit the ability to investigate and respond to the conduct appropriately.

Bad Faith Complaints and False Information

While the Mercy College encourages all good faith complaints of sexual harassment, it has the responsibility to balance the rights of all parties.

It is a violation of this policy for any person to submit a report or Formal Complaint that the person knows, at the time of filing the complaint, to be false or frivolous.  It is also a violation of this policy for any person to knowingly make a materially false statement during the course of an investigation, resolution, or appeal under this policy.   Violations of bad faith complaints and/or false information are not subject to the investigation and resolution processes in this policy; instead, they will be addressed under other policies and standards.

Making a false statement in bad faith, even if made during an investigation, is not considered retaliation.

A Complainant may file a Formal Complaint with the Title IX Coordinator requesting that the College investigate and resolve a report of Sexual Harassment in person, by regular mail, or by email using the contact information specified above.

In any case, including a case where the Complainant does not want the investigation to take place or does not want to file a Formal Complaint, the Title IX Coordinator may file a Formal Complaint on behalf of the College if doing so is not clearly unreasonable. The Title IX Coordinator will evaluate the allegation to ensure the safety of the campus and to comply with federal or state law.

The Title IX Coordinator has discretion to determine if an investigation should be initiated and may sign a Formal Complaint to initiate the investigation after completing a violence risk assessment.  Such action normally will be taken in limited circumstances involving serious or repeated conduct or where the alleged perpetrator may pose a continuing threat to the College community.

If the Complainant or the Title IX Coordinator files a Formal Complaint, the College will begin an investigation and proceed to resolve the matter.  In all cases where a Formal Complaint is filed, the Complainant will be treated as a party, regardless of the party’s level of participation.

In a case where the Title IX Coordinator files a Formal Complaint, the Title IX Coordinator will not act as a Complainant or otherwise as a party for purposes of the investigation and resolution.

Mercy College may consolidate Formal Complaints against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the allegations of Sexual Harassment arise out of the same facts or circumstances.  Where the investigation and resolution  involve more than one Complainant or more than one Respondent, references in this policy to the singular “party,” “Complainant,” or “Respondent” include the plural, as applicable.  A Formal Complaint of Retaliation may be consolidated with a Formal Complaint of Sexual Harassment.

Conduct that Constitutes a Crime

Any person who wishes to make a complaint of Sexual Harassment that also constitutes a crime—including Sexual Assault, Domestic Violence, Dating Violence, or Stalking—is encouraged to make a complaint to local law enforcement. If requested, the College will assist the Complainant in notifying the appropriate law enforcement authorities. An alleged victim may refuse to notify such authorities. In the event of an emergency, contact 911.

Parties who have obtained a legal temporary restraining order or no contact order against the Respondent should provide the information to the Title IX Coordinator. The College will take all reasonable and legal action to implement the order.

Special Guidance Concerning Complaints of Sexual Assault, Domestic Violence, Dating Violence, or Stalking

A victim of Sexual Assault, Domestic Violence, Dating Violence, or Stalking, should do everything possible to preserve evidence by making certain the crime scene is not disturbed.

Victims of Sexual Assault, Domestic Violence, or Dating Violence should not bathe, urinate, douche, brush teeth, or drink liquids until after they are examined and, if necessary, a rape examination is completed. Clothes should not be changed. When necessary, victims should seek immediate medical attention at an area hospital and take a full change of clothing, including shoes, for use after a medical examination. Preservation of evidence may be necessary for proof of the crime or in obtaining a protection order.

For cases of stalking, it is important to take steps to preserve evidence to the extent that such evidence exists. This evidence may be in the form of letters, emails, or text messages rather than evidence of physical contact or assault. This type of non-physical evidence will also be useful in all types of Sexual Harassment investigations.

Once a report of Sexual Assault, Domestic Violence, Dating Violence, or Stalking is made, the victim has several options such as, but not limited to:

• Obtaining Supportive Measures.
• Contacting parents or a relative.
• Seeking legal advice.
• Seeking personal counseling.
• Pursuing legal action against the perpetrator.
• Filing a Formal Complaint.
• Requesting that no further action be taken.

Interim Measures

At any time after receiving a report of Sexual Harassment, the Title IX Coordinator may determine that interim remedies or protections for the parties involved or witnesses are appropriate. These interim remedies may include separating the Complainant and Respondent, placing limitations on contact between the Complainant and Respondent, suspension, or making alternative class-placement or workplace arrangements.

After conducting an individualized safety and risk analysis, the College may remove a Respondent from campus when there is an immediate threat to the physical health or safety of any individuals stemming from the allegations of Sexual Harassment.  The College will notify the Respondent of the decision and will allow an opportunity to challenge the decision within 24 hours the after removal.

In the case of a Respondent who is a non-student employee, and in its discretion, the College may place the Respondent on administrative leave at any time after receiving a report of Sexual Harassment, for a period leading up to the investigation and resolution process.

For all other Respondents, including independent contractors and visitors, the College retains broad discretion to prohibit such persons from entering onto its campus and other properties at any time, and for any reason, after receiving a report of Sexual Harassment or otherwise.

Failure to comply with the terms of the interim remedies or protections may constitute a separate violation of this policy or other Mercy College policies.

Investigation and Resolution of the Formal Complaint

Members of the Title IX team participating in the investigation shall be relieved of his or her obligations under these complaint resolution processes within a reasonable timeframe fairly and impartially. If a member of the team determines that he or she cannot apply these processes fairly and impartially because of the identity of a Complainant, Respondent, or witness, or due to any other conflict of interest, the Title IX Coordinator will designate another appropriate individual to participate in the processes.

Mercy College reserves the right to utilize external resources to assist in the investigation and resolution of the formal complaint.

The purpose of the investigation is to determinate whether it is more likely than not that the alleged behavior occurred and, if so, whether it constitutes Sexual Harassment in violation of this policy.

In a case where the Complainant files a Formal Complaint, the Title IX Coordinator will evaluate the Formal Complaint and must dismiss it if the Title IX Coordinator determines:

• The conduct alleged in the Formal Complaint would not constitute Sexual Harassment, even if proved; or
• The conduct alleged in the Formal Complaint falls outside the scope of the policy.

In the event the Title IX Coordinator determines the Formal Complaint should be dismissed, the Title IX Coordinator will provide written notice of dismissal to the parties and advise them of their right to appeal. The Title IX Coordinator may refer the subject matter of the Formal Complaint to other College offices, as appropriate.

Within five (5) business days of the Title IX Coordinator receiving a Formal Complaint, the Title IX Coordinator will send a written notice to the Complainant and Respondent that includes:

• A physical copy of this policy or a hyperlink to this policy;
• Sufficient details, including (if known) the identities of the parties, the conduct at issue and the date and location of the alleged incident.;
• A statement indicating the respondent is presumed not responsible for the alleged Sexual Harassment and that a determination of responsibility will not be made until the conclusion of the resolution process and any appeal;
• The requirement that all statements must be accurate.
  • The parties right to an advisor of their choice.  Should a party not have an advisor, one will be provided, free of charge, for the purpose of conducting the cross examination.
  • Information for the Complainant and Respondent of their right to inspect and review evidence and information about resources available on campus and in the community.

Should Mercy College elect, at any point, to investigate allegations that are materially beyond the scope of the initial written notice an additional written notice will be provided describing the additional allegations to be investigated.

After the written notice of Formal Complaint is sent to the parties, an Investigating Officer will be selected by the Title IX Coordinator, who will undertake an investigation to gather evidence relevant to the alleged misconduct, including inculpatory and exculpatory evidence.

The Investigating Officer will begin the investigation as soon as practical. During the course of the investigation, the Investigating Officer may receive counsel from College administrators, College’s attorneys, or other parties as needed.

The burden of gathering evidence sufficient to reach a determination in the resolution lies with Mercy College and not with the parties.

Parties of the investigation and any witnesses will receive a written notice of any interview, meeting or hearing they are expected to attend with sufficient notice to prepare.  The notice will include dates, time and location, the participants and the purpose.

During the investigation, both parties will have equal opportunity to present witnesses including both fact and expert witnesses, along with relevant evidence and to present other inculpatory and exculpatory evidence.   The investigator retains discretion to limit the number of witness interviews the investigator conducts if the investigator finds that testimony would be unreasonably cumulative, if the witnesses are offered solely as character references and do not have information relevant to the allegations, or if the witnesses are offered to provide information that is categorically inadmissible, such as information concerning sexual history of the Complainant.  The investigator will not restrict the ability of the parties to gather and present relevant evidence on their own.

A party that is aware of and has a reasonable opportunity to present particular evidence and/or identify particular witnesses during the investigation, and elects not to, will be prohibited from introducing any such evidence during the resolution absent a showing of mistake, inadvertence, surprise, or excusable neglect.

All parties and witnesses involved in the investigation are expected to cooperate and provide complete and truthful information.

The investigator will take reasonable steps to ensure the investigation is documented.  Interviews of the parties and witnesses may be documented by the investigator’s notes, audio recorded, video recorded, or transcribed.  The particular method utilized to record the interviews of the Complainant, Respondent, and witnesses will be determined by the investigator in the investigator’s sole discretion, although whatever method is chosen shall be used consistently throughout a particular investigation.

The Complainant and the Respondent have the right to be accompanied by an advisor of their choice during interviews and meeting.

The Complainant and the Respondent have equal opportunity to inspect and review any evidence gathered during the investigation directly related to the allegations in the formal complaint, including any evidence the College does not intend to rely upon in a hearing.  Each party and the advisors will be sent, electronically, the evidence and will have ten (10) business days to submit a written response.  The Complainant and Respondent and their advisors are permitted to review the evidence solely for the purposes of this process and may not duplicate or disseminate the evidence.

The Investigating Officer will review the statements and evidence presented, review documentary materials, and take any other appropriate action to gather and consider information relevant to the Formal Complaint.  The investigation will end in a written report that will be submitted to the Hearing Panel.

After the period for the Complainant and Respondent and their advisors to provide a written response as has expired, the investigator will complete another written investigation report that fairly summarizes the various steps taken during the investigation, summarizes the relevant evidence collected, lists material facts on which the parties agree, and lists material facts on which the parties do not agree.  When the investigation report is complete, the investigator will send a copy to the Title IX Coordinator.  The investigator will also send the investigation report to each party and their advisor, in either electronic or hard copy form.

Although the length of each investigation may vary depending on the circumstances, the College strives to complete each investigation within thirty (30) to forty-five (45) business days of sending the written notice of Formal Complaint.

Administrative Resolution

After the Investigating Officer has sent the report to the parties, the Title IX Coordinator will send to each party a notice advising them of two different resolution processes:  a live hearing, which is the default process, and an Administrative Resolution process.  Administrative Resolution is in lieu of a live hearing.  The Complainant and Respondent must consent to utilizing the Administrative Resolution process.  A written consent form will be sent to all the Complainant and Respondent who will have three (3) business days, from the date of the consent form, to return the signed form.  If either the Complainant, Respondent or both do not return the signed consent form within the timeframe, it will be determined that the Administrative Resolution process is not desired and a live hearing will be used.  The Complainant and Respondent are encouraged to seek advice from their advisor or others prior to consenting to an Administrative Resolution process.

The Title IX Coordinator will appoint an Administrative Officer.  The Administrative Officer will send written notice to the Complainant and Respondent of his/her appointment; a deadline for the Complainant and Respondent to submit any written response to the investigation report, date and time to meet with the Administrative Officer, separately.  The meetings will not be held any earlier than ten (10) days from the date of the written notice.

The written response must include the extent the Complainant or Respondent disagrees with the report; if any evidence should be excluded from consideration; whether any allegations are supported by a preponderance of the evidence; and whether the allegations constitute Sexual Harassment.

After reviewing the written responses, the Administrative Officer will meet separately with each party to provide an opportunity to make any statements or ask questions.  After reviewing the information, The Administrative Officer will determine the resolution.

Informal Resolution

At any time after the Complainant and Respondent are provided written notice of the Formal Complaint and before the completion of any appeal, the parties may voluntarily consent, with the Title IX Coordinator’s approval, to engage in mediation, facilitated resolution, or other form of dispute resolution with the goal of determining a final resolution of the allegations raised in the Formal Complaint and agreed upon by the Complainant and Respondent in writing.

Informal resolution may be used in lieu of the formal investigation and determination procedure.

The Title IX Coordinator will consider the following factors to assess whether an informal resolution is appropriate:

• The amenability to the informal resolution by the Complainant and Respondent;
• The likelihood of a resolution, taking into account the dynamics between the Complainant and Respondent;
• Cleared violence risk assessment/ongoing risk analysis;
• Disciplinary history;
• Complaint complexity;
• Rationality of the Complainant and Respondent; and
• Goals of the Complainant and Respondent.

Prior to initiating an informal resolution process, the Complainant and Respondent will be given a written notice of the allegations, a description of the informal resolution process, information regarding the individual responsible for facilitating the informal resolution (Title IX Coordinator or designee), explanation of the effect of participating in informal resolution and/or reaching a final resolution will have  his/her ability to resume the investigation and resolution of the allegations at issue in the Formal Complaint, and description of any other consequence resulting from participation in the informal resolution process, including a description of records that will be generated, maintained, and/or shared.

During the informal resolution process, the investigation and resolution processes that would otherwise occur are halted and all related deadlines are suspended.

The Complainant will not be required to resolve the issue directly with the Respondent.

If the Complainant and Respondent reach a resolution through the informal resolution process, and the Title IX Coordinator agrees that the resolution is not clearly unreasonable, the Title IX Coordinator will provide a written document with the terms of the agreed resolution and present the resolution to the Complainant and Respondent for their written signature.  Upon their signatures and the Title IX Coordinator’s signature, the resolution is considered final, and the allegations addressed by the resolution are considered resolved and will not be subject to further investigation,  remediation, or discipline by the College, except as otherwise provided in the resolution itself, absent a showing that the Complainant or Respondent induced the resolution by fraud, misrepresentation, or other misconduct or where required to avoid an injustice to either or to Mercy College.

The Complainant or Respondent may withdraw their consent to participate in informal resolution at any time before a resolution has been finalized.

Absent an extension by the Title IX Coordinator, any informal resolution process must be completed within twenty-one (21) business days.  If an informal resolution process does not result in a resolution within twenty-one (21) business days, and there has been no further extension, temporary suspension, or other contrary ruling by the Title IX Coordinator, the informal resolution process will be deemed terminated, and the Formal Complaint will be resolved using the investigation and resolution processes.  The Title IX Coordinator may adjust any time periods or deadlines in the investigation and/or resolution process that were suspended due to the informal resolution.

Informal resolution cannot be used in situations in which an employee is accused of Sexual Harassment against a student.

Hearing

The investigation will be followed by a live hearing in which the hearing panel, Complainant, Respondent, advisors and witnesses attend.  Hearings will be recorded and available to the parties of the investigation for inspection and review on reasonable notice, including for use in preparing any subsequent appeal. The Title IX Coordinator provide the Hearing Panel a copy of the investigation report and a copy of all evidence sent to the parties by the investigator.

The Title IX Coordinator will select the appropriate Hearing Panel depending on whether or not the Respondent is an employee or a student.  One of the panelists will be appointed as Hearing Panel Chair.

After the Hearing Panel is appointed, the Chair will promptly send a written notice to the parties notifying them of:

·The Hearing Panel appointments;

·Deadline for to submit any written response to the investigation report;

·Date for the pre-hearing conference;

·Date and time for the hearing.
Neither the pre-hearing conference, nor the hearing itself, may be held any earlier than ten (10) business days from the date this written notice was sent.

The Complainant’s or Respondent’s written response to the investigation report must include:

• The extent he/she disagrees with the investigation report, any argument or commentary regarding the disagreement;
•  Any argument that evidence should be categorically excluded from consideration at the hearing based on privilege, relevancy, the prohibition on the use of sexual history, or for any other reason;
• A list of any witnesses that the Complainant and Respondent wants to be sent an attendance notice to attend the hearing;
•  A list of any witnesses attending the hearing without an attendance notice issued by the Hearing Panel Chair;
• Any objection to the policy or procedures;
• Any request that the Complainant and Respondent be separated, physically, during the pre-hearing conference and/or hearing;
• Any other accommodations with respect to the pre-hearing conference and/or hearing;
• The name and contact information of the advisor who will accompany the Complainant and Respondent at the pre-hearing conference and hearing;
•  If an advisor is not available, a request that the College provide an advisor for purposes of conducting questioning.

A written response to the investigation report may also include:

•           Information regarding whether any of the allegations in the Formal Complaint are supported by a preponderance of the evidence; and

•           Information regarding whether any of the allegations in the Formal Complaint constitute Sexual Harassment.

Prior to the hearing, the Hearing Panel Chair will conduct a pre-hearing conference with the Complainant, Respondent and their advisors.  The pre-hearing conference will be conducted live, with simultaneous participation by the Complainant and Respondent their advisors.    However, upon request of the Complainant or the Respondent, separate rooms can be used to separate them.  Technology will be used to enable them to participate simultaneously by video and audio.

In the Hearing Panel Chair’s discretion, the pre-hearing conference may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously.

During the pre-hearing conference, the Hearing Panel Chair will discuss the hearing procedures; address matters raised in the written responses to the investigation report, as the Hearing Panel Chair deems appropriate; whether any stipulations may be made to expedite the hearing; the witnesses requested be served with notices of attendance and/or witnesses the parties plan to bring to the hearing without a notice of attendance; and resolve any other matters that the Chair determines, in his/her discretion, should be resolved before the hearing.

After the pre-hearing conference, the Hearing Panel Chair will send notices of attendance to the witnesses.  The notice will advise the individual of the date and time of the hearing and to contact the Hearing Chair immediately if there is a material and unavoidable conflict.

The individual who is requested to attend should notify his/her manager or instructor, if attendance at the hearing will conflict with job duties, classes, or other obligations.  Managers and instructors are required to excuse the individual of the obligation, or provide some other accommodation, so that the individual may attend the hearing.

Mercy College will not issue a notice of attendance to any witness who is not an employee or a student.

Participants at the hearing include the Hearing Panel Chair, the Hearing Panel, any additional panelists (if applicable), the hearing facilitator (if applicable), the Investigating Officer, the Complainant and Respondent, advisors, witnesses, the Title IX Coordinator and anyone providing authorized accommodation or assistive services as determined by the College. Except as otherwise permitted by the Hearing Panel Chair, the hearing will be closed to all persons except those identified above.  With the exception of the investigating Officer, the Complainant and the Respondent, witnesses will be sequestered until they have completed their testimony.

The Complainant and Respondent will be given the names of individuals participating in the hearing, all pertinent evidence and the final investigation report at least ten (10) business days prior to the hearing.  Names of the Hearing Panel will be given to them at least five (5) business days prior to the hearing.  Objections to the Hearing Panel must be submitted to the Title IX Coordinator no later than one (1) business day prior to the hearing.  The Title IX Coordinator will determine if the objection is one of bias or conflict and warrants removal from the hearing process.

The Hearing Panel will be given a list of the names of the Complainant and Respondent, witnesses and advisors at least five (5) business days in advance of the hearing.  Any panelist who cannot make an objective determination must recuse themselves from the hearing.

The hearing will be conducted live, with simultaneous participation by the Complainant and Respondent and their advisors.  By default, the hearing will be conducted with the participants together in the same physical location.  However, upon request of either party, the parties will be separated into different rooms with technology enabling them to participate simultaneously by video and audio.

In the Hearing Panel Chair’s discretion, the hearing may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously by use of technology.

Each Complainant and Respondent will have the opportunity to address the Hearing Panel directly and to respond to questions posed by the Hearing Panel.

Advisors will be permitted to cross examine the other party and any witnesses with relevant questions and follow-up questions, including those bearing on credibility.  The Complainant and Respondent are not allowed to cross examine.  Cross examination must occur in real time, directly and orally. The Complainant and the Respondent will have the opportunity to raise objections to testimonial or non-testimonial evidence and to have such objections ruled on by the Hearing Panel Chair and a reason for the ruling provided.

The Complainant and Respondent and their advisors will have access to the investigation report and evidence that was sent to them. While the Complainant and Respondent have the right to attend and participate in the hearing with an advisor, a Complainant, Respondent and/or advisor who materially and repeatedly violates the rules of the hearing in such a way as to be materially disruptive, may be barred from further participation and/or have their participation limited, as the case may be, in the discretion of the Hearing Panel Chair.

Subject to the minimum requirements specified in this section, the Hearing Panel Chair will have sole discretion to determine the manner and particulars of any given hearing, including the length of the hearing, the order of the hearing, and questions of admissibility.  The Hearing Panel Chair will independently screen questions for relevance in addition to resolving any objections raised by the parties and will explain the rational for any evidentiary rulings.

The hearing is not a formal judicial proceeding and strict rules of evidence do not apply. The Hearing Panel Chair will have discretion to modify the procedures when good cause exists to do so, provided the minimal requirements specified in this section are met.

The Complainant and Respondent will be have an opportunity to submit evidence that the party did not present during the investigation due to mistake, inadvertence, surprise, or excusable neglect.

If the Complainant, Respondent and/or witnesses prefer not to attend or cannot attend the hearing in person, he/she should request alternative arrangements from the Title IX Coordinator at least five (5) business days prior to the hearing.  The Title IX Coordinator will allow remote testimony without compromising the fairness of the hearing.

Should the Complainant, Respondent or witness refuse to submit to cross-examination, that individual’s statement will not be considered and a decision will be reached based on the remaining relevant evidence.  A conclusion will not be reached solely based on the fact that the individual refused to be cross examined.

The Complainant and Respondent will be given the opportunity to make a brief closing argument.  After the hearing is complete, the Hearing Panel will objectively evaluate all relevant evidence collected during the investigation, including both inculpatory and exculpatory evidence, together with testimony and non-testimony evidence received at the hearing, and ensure that any credibility determinations made are not based on a person’s status as a Complainant, Respondent, or witness.  The Hearing Panel Chair will take care to exclude from consideration any evidence that was ruled inadmissible at the pre-hearing conference, or during the hearing.  The Hearing Panel will resolve disputed facts using a preponderance of the evidence standard and reach a determination regarding whether the facts that are supported by a preponderance of the evidence constitute one or more violations of the policy as alleged in the Formal Complaint.

In the event the Hearing Panel determines the Respondent is responsible for violating this policy, the Hearing Panel Chair will, prior to issuing a written decision, consult with an appropriate College Cabinet member with disciplinary authority over the Respondent.  This individual will determine any discipline to be imposed.  The Hearing Panel Chair will also, prior to issuing a written decision, consult with the Title IX Coordinator who will determine whether and to what extent ongoing support measures or other remedies will be provided to the Complainant.

At the conclusion of the hearing, the Hearing Panel will issue a written determination of responsibility using preponderance of the evidence.  The determination will include identification of the allegations potentially constituting Sexual Harassment made in the Formal Complaint, description of the process taken upon receipt of the Formal Complaint, including notification to the parties, interviews with the parties and witnesses, site visits, methods used to gather non-testimonial evidence, and the date, location, and people who were present at or presented testimony at the hearing, findings of fact  made under a preponderance of the evidence standard that support the determination, a statement and rationale for each allegation that constitutes a separate potential incident of Sexual Harassment, including a determination regarding responsibility for each separate potential incident, a statement of any disciplinary actions taken , whether any ongoing support measures or other remedies will be provided to the Complainant, and a description of the appeal process and grounds for appeal.

The Hearing Chair’s written determination will be sent to the Complainant and the Respondent which concludes the hearing process, subject to any right of appeal as specified below.

Although the length of each resolution by hearing will vary depending on the circumstances, the College strives to issue the Hearing Panel Chair’s written determination within fourteen (14) business days of the conclusion of the hearing.

The notice of outcome will be shared with the Complainant, Respondent and advisors within seven (7) business days of receiving the determination from the Hearing Panel Chair.  The notice will include the determination, rationale and any applicable sanction(s).

The written determination will be become final upon the earlier of when:  the parties are notified of the determination on appeal; or the time to file an appeal has passed with neither party appealing.

Sexual History

During the investigation and resolution processes, questioning regarding a Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence is offered to prove that someone other than the Respondent committed the conduct alleged, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.  A Complainant who uses information otherwise considered irrelevant by this section for the purpose of supporting the Complainant’s allegations, will be determined to have waived the protections of this section.

Treatment Records and Other Privileged Information

During the investigation and resolution processes, the investigating Officer and Hearing Panel, are not permitted to access, consider, disclose, permit questioning concerning, or otherwise use:

•A party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party; or

•Information or records protected from disclosure by any other legally-recognized privilege, such as the attorney client privilege unless the College has obtained the party’s voluntary, written consent to do so for the purposes of the investigation and resolution process.

The Investigating Officer and/or Hearing Panel may consider any such records or information otherwise covered by this section if the Complainant or Respondent holding the record consents to disclosing the records or information to support their allegation or defense.

Pending Criminal

Some instances of Sexual Harassment may also constitute criminal conduct. In such instances, the Complainant is also encouraged to file a report with the appropriate law enforcement authorities.  The pending criminal investigation, does not relieve the College of its responsibilities under the law. Therefore, to the extent doing so does not interfere with any criminal investigation, the College will proceed with its own investigation and resolution of the Formal Complaint.

Dismissal During Investigation or Resolution

Mercy College will dismiss a Formal Complaint at any point during the investigation or resolution process if the Title IX Coordinator determines that one or more of the following is true:

• The conduct alleged in the Formal Complaint would not constitute Sexual Harassment, even if proved; or
• The conduct alleged in the Formal Complaint falls outside the scope of the policy.
• A Formal Complaint may dismiss, at any point, during the investigation or resolution process if the Title IX Coordinator determines that any one or more of the following is true:
• The Complainant provides the Title IX Coordinator written notice that the Complainant wishes to withdraw the Formal Complaint or any discrete allegations therein (in which case those discrete allegations may be dismissed);
• The Respondent is no longer enrolled or employed by Mercy College,; or
• Specific circumstances prevent Mercy College from gathering evidence sufficient to reach a determination as to the Formal Complaint, or any discrete allegations therein (in which case those discrete allegations may be dismissed).

In the event the Title IX Coordinator dismisses a Formal Complaint pursuant to this Section, the Title IX Coordinator will provide written notice of dismissal to the parties and advise them of their right to appeal.  The Title IX Coordinator may refer the subject matter of the Formal Complaint to other College offices, as appropriate.  A dismissal pursuant to this Section is presumptively a final determination as it pertains to this policy, unless otherwise specified in writing by the Title IX Coordinator in the written notice of dismissal.

Sanctions and Remedies

The College will impose reasonable steps to correct the effects of such conduct on the Complainant and others and to prevent the recurrence of discrimination, harassment and retaliation. Those include no-contact orders, change in class schedule for students, the provision of counseling or other support services, training and discipline for appropriate parties, including up to termination for employees or dismissal from the College for students.

Appeals

The Complainant or Respondent may appeal the determination of an resolution or dismissal of a Formal Complaint on one or more of the following grounds:

• Procedural irregularity that affected the outcome;
• New evidence not reasonably available at the time responsibility was determined that could affect the outcome of the matter; and/or
• The Title IX Coordinator, the Investigating Officer or the Hearing Panel had a conflict of interest or bias for or against complainants or respondents generally, or against the individual Complainant or Respondent that affected the outcome of the matter.

No other grounds for appeal will be allowed.

Method of Appeal

An appeal must be filed with the Title IX Coordinator within seven (7) business days of receipt of the written report determining the outcome of the complaint. The appeal must be in writing and contain the following:

• Name of the Complainant.
• Name of the Respondent.
• A statement of the determination of the complaint, including corrective action, if applicable.
• A detailed statement of the basis for the appeal including the specific facts, circumstances, and argument in support of it.
• Requested action, if  applicable.

An Appeal Chair will be designated to determine if the request meets the grounds for appeal.  Upon receipt of an appeal, the Appeal Chair will conduct an initial evaluation to confirm the appeal is timely filed and falls under at least one of the permitted grounds for appeal.  If the Appeal Chair determines that the appeal is not timely, or that it does not fall under a permitted ground for appeal, the Appeal Chair will dismiss the appeal and provide written notice of the same to the Complainant and Respondent.

If the appeal meets the grounds for an appeal, the Appeal Chair will provide written notice to the Complainant and Respondent. The individual not appealing will have five (5) business days to respond to the appeal.  The Appeal Chair will obtain, from the Title IX Coordinator, any records from the investigation and resolution processes necessary to resolve the grounds raised in the appeal.

Upon receipt of any opposition, or after the time period for sending an opposition has passed without one being filed, the Appeal Chair will decide the appeal and send a written decision to the Complainant and Respondent which explains the outcome of the appeal and the rationale.

The determination of a Formal Complaint, including any discipline, becomes final when the time for appeal has passed with no party filing an appeal or, if any appeal is filed, at the point when the Appeal Chair has resolved the appeal, either by dismissal or by sending a written decision.

No further review beyond the appeal will be allowed.

Although the length of each appeal will vary depending on the circumstances, the College strives to issue the Appeal Chair’s written decision within fourteen (14) business days of an appeal being filed.