Midwestern State University (MSU)
Policy 4-161.B: Non-Title IX Sexual Misconduct

Approval Authority: Board of Regents
Policy Type: University Policy and Procedure
Policy Owner: Vice President for Student Affairs
Vice President for Administration and Finance
Responsible Office: Title IX Coordinator
Human Resources Director
Next Scheduled Review:

  1. Applicability
    1. This policy applies to all Sexual Misconduct (as defined in Section 4.n, below) except Title IX Sexual Misconduct, which is defined in and governed by MSU Policy 4-161.A.
    2. Attachment 1 to this regulation visually depicts and summarizes the applicability of MSU Policies 4-161.A and 4-161.B. In the event of any conflict between the attachment and these policies, the text of the policies shall control.
  2. Purpose
    1. This policy provides information regarding the Midwestern State University (referred to herein collectively as “University”) prevention and education efforts related to Sex Discrimination, Sexual Harassment, Nonconsensual Sexual Contact, Nonconsensual Sexual Intercourse, Sexual Assault, Sexual Exploitation, Public Indecency, Sexual Misconduct, Interpersonal Violence, Dating Violence, and Stalking. This policy provides students and employees with their rights and options and also explains how the University will proceed once it is made aware of allegations of prohibited conduct in keeping with the University’s values and in order to meet the legal obligations of Title VII, Title IX, the Violence Against Women Act (VAWA), the Campus Sexual Violence Elimination Act (SaVE), the Texas Education Code, and other applicable laws and regulations.
  3. Policy and Procedure
    1. The University is committed to providing and strengthening an educational, working, and living environment where students, faculty, staff, and visitors are free from sex discrimination of any kind. The University prohibits discrimination based on sex, which includes pregnancy, sexual orientation and gender identity, and other types of Sexual Misconduct. Sexual Misconduct is a broad term encompassing all forms of gender-based harassment or discrimination and unwelcome behavior of a sexual nature. The term includes Sexual Harassment, Sexual Assault, Sexual Exploitation, Stalking, Public Indecency, Interpersonal (Dating, Domestic, or Family) Violence, Dating Violence, Sexual Violence, and any other misconduct based on sex. Any acts that fall within the scope of this policy hereinafter are referred to as Sexual Misconduct. Discriminatory behavior is prohibited regardless of the manner in which it is exhibited, whether verbally, in writing, by actions, or electronically displayed or conveyed.
    2. This policy applies to all University students and University employees, visitors, as well as University affiliates and others conducting business on the University campus. This policy will apply to on-campus and off-campus conduct of which the University is made aware and which adversely impacts the educational and employment environments of the University. The University will take all reasonable steps to respond to and prevent recurrence of any Sexual Misconduct and remedy discriminatory effects on the Complaining Party and others, if appropriate.
    3. All investigations and procedures will be non-adversarial in nature and will be conducted in a prompt, equitable, and impartial manner. Investigations conducted under this policy are not criminal investigations. For all complaints under this policy, the burden of proof shall be a preponderance of the evidence, which means more likely than not.
    4. The University expects all members of the University Community to comply with applicable law and University policies. Members of the University Community who violate this policy and related laws may be subject to disciplinary action or sanctions, up to and including termination of employment, expulsion from the University, or being barred from University premises and events. To the extent there is no conflict with applicable federal or Texas law, termination of tenured faculty will be subject to the procedures outlined in the University’s polices regarding revocation of tenure.
    5. For complaints relating to Title IX Sexual Misconduct, please see MSU Policy 4-161.A. For complaints relating to any form of discrimination not covered by this MSU Policy 4-161.B or MSU Policy 4-161.A, or for acts of gender/sex discrimination, such as denial of employment, wages, or benefits based on gender/sex, that are not sexual in nature and do not constitute Sexual Misconduct as defined in this policy or Title IX Sexual Misconduct as defined in MSU Policy 4-161.A, please see MSU Policy 4.131 (Equal Opportunity and Affirmative Action Statement) and MSU Policy 4.171 (Racial Harassment Policy). Additionally, if at any time during a Sexual Misconduct grievance process under this policy it is determined that the alleged conduct constitutes Title IX Sexual Misconduct, the University shall proceed under MSU Policy 4.161.A or any other applicable policy and procedure.
  4. Definitions For purposes of this policy, the definitions below apply. However, some of these terms are also defined under state law. If an individual would like to file criminal charges for any alleged violations of criminal law, the definitions as set forth in state law may apply.
    1. Complaining Party. An individual who was allegedly subjected to a violation of this policy.
    2. Consent. Mutually understandable words or actions, actively communicated both knowingly and voluntarily, that clearly convey permission for a specific activity. Consent is not effective if it results from: (i) the use of physical force, (ii) a threat of physical force, (iii) intimidation, (iv) coercion, (v) incapacitation, or (vi) any other factor that would eliminate an individual’s ability to exercise their own free will to choose whether or not to engage in sexual activity.
    3. Employee. An individual who receives a W-2 or 1042-S from the University, including full- and part-time faculty, staff, and students. An Employee is working in the course and scope of their employment if the Employee is performing duties in the furtherance of the University’s interest.
    4. Incapacitation. A state of being that prevents an individual from having capacity to give consent. For example, incapacitation could result from the use of drugs or alcohol, an individual being asleep or unconscious, or because of an intellectual or other disability.
    5. Interpersonal Violence. For purposes of this policy, Interpersonal Violence is:
      1. Dating Violence. Physical, sexual, or verbal abuse or violence, or a threat of abuse or violence, committed by an individual who is or has been in a social relationship of a romantic or intimate nature with the Complaining Party. The existence of such a relationship will be determined based on the type and length of the relationship and the frequency of interaction between the individuals involved in the relationship. A casual acquaintanceship or ordinary socializing between two individuals does not constitute a romantic or intimate relationship. This definition does not include acts covered under Domestic or Family Violence.
      2. Domestic or Family Violence. Physical, sexual, or verbal abuse or violence committed by a current or former spouse or intimate partner of the Complaining Party, by an individual with whom the Complaining Party shares a child in common, by an individual with whom the Complaining Party is cohabiting (or has cohabited) with a spouse or intimate partner, by an individual similarly situated to a spouse of the Complaining Party under the Domestic or Family Violence laws of the state of Texas, or by any other individual against an adult or youth victim who is protected from that individual’s acts under the Domestic or Family Violence laws of the state of Texas.
    6. Public Indecency. Engaging in private or sexual acts in a publicly viewable location, such that it is offensive to accepted standards of decency including, but not limited to: (i) exposing one’s genitals or private areas; (ii) public urination; (iii) public defecation; and/or (iv) public sex acts.
    7. Reporting Party. An individual or entity (in the case of the University), other than the Complaining Party, who reports an alleged violation of this policy.
    8. Responding Party. Generally, the Responding Party is the individual or organization that is alleged to be responsible for the prohibited conduct alleged in a complaint.
    9. Responsible Employee. All Employees, except as provided in Section 6 below, are Responsible Employees who must report allegations of Sexual Misconduct, including all known information concerning the incident, to the Title IX Coordinator as provided in Section 6 below.
    10. Sex Discrimination. An act that deprives a member of the University Community of their right of access to campuses and facilities and/or of participation in education, services, programs, operations, employment, benefits, or opportunities with the University on the basis of the individual’s sex.
    11. Sexual Assault. Sexual contact or intercourse with an individual without that individual’s consent, including sexual contact or intercourse against an individual’s will or in a circumstance in which an individual is incapable of consenting to the contact or intercourse. Sexual Assault includes:
      1. Nonconsensual Sexual Contact. Intentional sexual touching, however slight, with any object or part of one’s body of another’s private areas without consent. Sexual Contact includes: (1) intentional contact with the breasts, buttock, groin, or genitals; (2) touching another with any of these body parts; (3) making another touch you or themselves with or on any of these body parts; or (4) any other intentional bodily contact in a sexual manner.
      2. Nonconsensual Sexual Intercourse. Sexual penetration or intercourse, however slight, with a penis, tongue, finger, or any object, and without consent. Penetration can be oral, anal, or vaginal.
      3. The following offenses are examples of Sexual Assault:
        1. Incest. Sexual intercourse between individuals who are related to each other within the degrees wherein marriage is prohibited by law;
        2. Fondling. The touching of the private body parts of another individual for the purpose of sexual gratification, without the consent of the Complaining Party, including instances where the Complaining Party is incapable of giving consent because of the Complaining Party’s age or because of the Complaining Party’s temporary or permanent mental incapacity;
        3. Rape. The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another individual, without the consent of the Complaining Party; and
        4. Statutory Rape. Sexual intercourse with an individual who is under the statutory age of consent.
    12. Sexual Exploitation. Taking nonconsensual or abusive sexual advantage of another for the benefit of oneself or a third party. Prohibited behavior includes, but is not limited to: (i) purposeful recording, distribution, or dissemination of sexual or intimate images or recordings of another individual without that individual’s full knowledge or consent; (ii) sexual voyeurism; (iii) inducing another to expose one’s genitals or private areas; (iv) prostituting another; and (v) knowingly exposing someone to or transmitting a sexually transmitted disease, without the individual’s full knowledge and consent.
    13. Sexual Harassment. Unwelcome, sex-based verbal or physical conduct that:
      1. In the employment context, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive work environment. To constitute an intimidating, hostile, or offensive working environment, the complained of conduct must be either severe, persistent, or pervasive; or
      2. In the education context, is sufficiently severe, persistent, or pervasive that the conduct unreasonably interferes with a student’s ability to participate in or benefit from educational programs or activities.
      3. Examples of inappropriate behavior that may constitute Sexual Harassment include, but are not limited to: (1) sexual teasing, jokes, remarks, or questions; (2) sexual looks and gestures; (3) sexual innuendoes or stories; (4) communicating in a manner with sexual overtones; (5) inappropriate comments about dress or physical appearance; (6) inappropriate discussion of private sexual behavior; (7) gifts, letters, calls, emails, online posts, or materials of a sexual nature; (8) sexually explicit visual material (calendars, posters, cards, software, internet, or other multimedia materials); (9) sexual favoritism; (10) pressure for dates or sexual favors; (11) unwelcome physical contact (touching, patting, stroking, rubbing); (12) nonconsensual video or audio-taping of sexual activity; (13) exposing one’s genitals or inducing another to expose their genitals; (14) Stalking; (15) domestic or Dating Violence; (16) Nonconsensual Sexual Intercourse, Sexual Assault, or rape; and (17) other gender- based threats, discrimination, intimidation, hazing, bullying, Stalking, or violence.
    14. Sexual Misconduct. A broad term encompassing all forms of gender-based harassment or discrimination and unwelcome behavior of a sexual nature. The term includes Sexual Harassment, Nonconsensual Sexual Contact, Nonconsensual Sexual Intercourse, Sexual Assault, Sexual Exploitation, Stalking, Public Indecency, Interpersonal Violence, sexual violence, and other misconduct based on sex.
    15. Stalking. A course of conduct directed at a specific individual that would cause a reasonable individual to fear for the individual’s safety or the safety of others or would cause that individual to suffer substantial emotional distress. A “course of conduct” means two or more acts in which an individual directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about an individual or interferes with an individual’s property. “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
    16. Student. All persons who have accepted admission to, enrolled at, are taking courses at, and/or have a continuing relationship with the university, including those who attend full- or part-time at the undergraduate, graduate, or non-matriculated level.
    17. Supportive Measures. Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complaining Party or the Responding Party before or after the filing of a complaint or where no complaint has been filed.
    18. Title IX Sexual Misconduct. Certain sexual misconduct as defined in and governed by MSU Policy 4.161.A.
    19. University Community. The University faculty, staff, and students of and visitors to any University premises or University-affiliated activity.
  5. University Title IX Coordinators and the Midwestern State University Office of Equal Opportunity (OEO)
    1. By or Between Students. Each University has a Title IX Coordinator who oversee the University’s compliance with Title IX, including investigating complaints of Sexual Misconduct by or between students:
      UNIVERSITY & CONTACT PHONE ADDRESS EMAIL & WEBSITE
      Midwestern State University:
      Laura Hetrick Director of Title IX Compliance/Title IX Coordinator
      940.397.4213
      Vinson Health Center
      Midwestern State University
      3410 Taft Blvd., Suite H136
      Wichita Falls, TX 76308
      titleix@msutexas.edu

      https://msutexas.edu/titleix/
      Kristi Schulte
      Deputy Title IX Coordinator for Students
      940.397.4217
      Sunwatcher Village 121
      Midwestern State University
      3410 Taft Blvd.
      Wichita Falls, TX 76308
      kristi.schulte@msutexas.ed u

      https://msutexas.edu/titleix/
    2. By or Between Employees. The University Title IX Coordinator will investigate complaints of Sexual Misconduct by or between Employees of the University (provided, in certain instances, such complaints may be investigated in coordination with the University Title IX and human resources offices):
      CONTACT PHONE ADDRESS EMAIL & WEBSITE
      Midwestern State University:
      Laura Hetrick Director of Title IX Compliance/Title IX Coordinator
      940.397.4213
      Vinson Health Center
      Midwestern State University
      3410 Taft Blvd., Suite H136
      Wichita Falls, TX 76308
      titleix@msutexas.edu

      https://msutexas.edu/titleix/
      Dawn Fisher
      Deputy Title IX Coordinator for Employees
      940.397.4221
      Hardin Administration Building 210
      Midwestern State University
      3410 Taft Blvd.
      Wichita Falls, TX 76308
      dawn.fisher@msutexas.ed u

      https://msutexas.edu/titleix/
  6. Reporting Sexual Misconduct
    1. Mandatory Reporting to University by Employees. Texas law requires Employees to report certain types of Sexual Misconduct to appropriate University personnel. All Employees, including student Employees, who in the course and scope of employment, witness or receive information regarding the occurrence of an incident that the Employee reasonably believes constitutes Sexual Misconduct and is alleged to have been committed by or against an individual who was a student enrolled at or an Employee of the University at the time of the incident shall promptly report the incident to the University Title IX Coordinator or a Title IX Deputy Coordinator. An Employee is required to report an incident regardless of where or when the incident occurred. Failure to report Sexual Harassment, Sexual Assault, Dating Violence, or Stalking under this policy is a violation of state law that shall result in termination of employment and may result in criminal penalties.
    2. Contents of Report. Except as provided by Section 6(c) below, the report must include all information concerning the incident known to the Reporting Party, including the involved parties’ names, regardless of whether the Complaining Party has expressed a desire for confidentiality; however, the Reporting Party may also state whether the Complaining Party has expressed a desire for confidentiality.
    3. Contents of Report by Employee with Confidential Relationship. An Employee designated by the University as an individual with whom University students may speak confidentially concerning Sexual Misconduct or who receives information regarding such an incident under circumstances that render the Employee's communications confidential or privileged under other law shall, in making a report under this policy, state only the type of incident reported and may not include any information that would violate a student's expectation of privacy. This Subsection does not affect the Employee's duty to report an incident under any other law. The following classifications of individuals are Confidential Employees under this University policy: (1) Licensed Professional Counselors who are licensed with the State of Texas whose official University responsibilities include providing mental health counseling to members of the campus community; (2) Registered Nurses/Doctors/Family Nurse Practitioners who are registered with the State of Texas and whose official University responsibilities include providing health services to members of the campus community; and (3) University employees who are also licensed or credentialed Pastors should take care to ensure students and others disclose to them while in their official church role, as disclosures outside of this would constitute notice to the institution (employees are not confidential). If the Pastor employee also advises a student organization, then that employee may have additional responsibilities to report non-identifying aggregate data to the MSU Police Department regarding numerous other types of misconduct, if such misconduct is reported to have occurred on campus owned or controlled by MSU. These definitions extend to teaching faculty when performing counseling, therapy, or health service roles in the Counseling Center, the Psychology Clinic, or the Vinson Health Center
    4. Reporting by Students and Third Parties Encouraged. All students and third parties are strongly encouraged to promptly report any incidents of Sexual Misconduct to the University Title IX Coordinator or Title IX Deputy Coordinator.
    5. Limited Exception to Mandatory Employee Reporting. Notwithstanding Section 6(a) above, an Employee is not required to make a report under this Section concerning: (i) an incident in which the Employee was a victim of Sexual Misconduct; or (ii) an incident of which the individual received information due to a disclosure made at a Sexual Misconduct public awareness event sponsored by or affiliated with the University.
    6. Reporting to Law Enforcement Agencies. All students, Employees, and third parties may also report incidents of Sexual Misconduct to law enforcement, including University and local police. Complaining Parties may choose to notify law enforcement and will be provided the assistance of a Title IX Coordinator or Title IX Deputy Coordinator in contacting these authorities if the individual wishes. Complaining Parties may also decline to notify law enforcement of incidents of Sexual Misconduct.
    7. Victims Encouraged to Seek Medical Care. An individual who experiences Sexual Misconduct is encouraged to seek medical care for treatment and preservation of evidence, if applicable, as soon as practicable after the incident. Preserving DNA evidence can be key to identifying the perpetrator in a sexual violence case. Victims can undergo a Sexual Assault Forensic Exam (SAFE) performed by a Sexual Assault Nurse Examiner (SANE) to preserve physical evidence with or without police involvement. If possible, this should be done immediately. If an immediate medical exam is not possible, a SANE may still collect evidence several days following a Sexual Assault. With the examinee’s consent, the physical evidence collected during this medical exam can be used in a criminal investigation. To undergo a SAFE, go directly to the nearest emergency department that provides SAFE services.
    8. Preservation of Evidence. An individual who experiences any form of Sexual Misconduct should also preserve other evidence relevant to the complained of activity, such as items of clothing, photographs, phone records, text messages, computer records, and other documents.
    9. Good Faith Actors. The University may not discipline or otherwise discriminate against an individual who in good faith: (i) makes a report as required under this policy or (ii) cooperates with an investigation, a disciplinary process, or a judicial proceeding relating to a report made by the individual as required under this regulation. This Subsection does not apply to an individual who perpetrates or assists in the perpetration of the incident reported under this regulation.
    10. Non-Disclosure of Private Information to Medical Providers. Absent consent from the Complaining Party, disclosures to a healthcare provider, mental health care provider, or other medical provider acting in the course and scope of their employment with the University shall only state the type of incident reported and may not include any information that would violate an expectation of privacy. These Employees are encouraged to provide Complaining Parties with information and guidance regarding University reporting options and available resources. This Subsection does not affect the Employee's duty to report an incident under any other law or regulation under which they maintain their licensure.
    11. Request of Complaining Party Not to Investigate. If the Complaining Party of an alleged incident of Sexual Harassment, Sexual Assault, Dating Violence, or Stalking reported to the University requests the University not to investigate the alleged incident, the University may investigate the alleged incident in the same manner that an anonymous complaint may be investigated. The University shall inform the Complaining Party whether the University will conduct an investigation. In determining whether to investigate the alleged incident, the University shall consider:
      1. The seriousness of the alleged incident;
      2. Whether the University has received other reports of Sexual Harassment, Sexual Assault, Dating Violence, or Stalking committed by the alleged perpetrator or perpetrators;
      3. Whether the alleged incident poses a risk of harm to others; and
      4. Any other factors the University determines relevant.
      If the University decides not to investigate an alleged incident of Sexual Harassment, Sexual Assault, Dating Violence, or Stalking based on the Complaining Party’s request not to investigate, the University shall take any steps it determines necessary to protect the health and safety of the University Community in relation to the alleged incident.
    12. How to Submit a Report. Employees may fulfill their reporting obligations by submitting a report through the applicable University’s electronic reporting form. Reporting Employees should keep a receipt or proof of the submission of the report. Please see below for a link to each University’s electronic reporting form:
      UNIVERSITY ELECTRONIC REPORTING FORM
      Midwestern State University https://cm.maxient.com/reportingform.php?MSUTexas&layout_id=6
    13. False or Malicious Claims. An individual found to have knowingly submitted a false or malicious claim may be subject to disciplinary action.
  7. Complaints By or Against Students
    1. Types and Locations for Filing Complaints
      1. Student Complaint Against a Student. If a student wishes to file a Complaint of Sexual Misconduct by another student, the student should contact and file the Complaint with the University’s Title IX Coordinator or the Deputy Title IX Coordinator for Students (contact information set forth in Section 5.a of this policy).
      2. Student Complaint Against Employee. If a student wishes to file a Complaint of Sexual Misconduct by a University Employee, the student should contact and file a Complaint with the University’s Title IX Coordinator or a Deputy Title IX Coordinator (contact information set forth in Section 5.a and b of this policy). Student complaints of Sexual Misconduct by an Employee may be investigated jointly by the University’s Title IX Office and the Human Resources Office.
      3. Student Employee Complaint Against Employee. If a Student Employee has a complaint of Sexual Misconduct against an Employee that occurred during the course and scope of student’s employment with the University, the student should follow the procedure set forth for Employees in Section 8 of this policy.
      4. Employee Complaint Against Student. If an Employee has a complaint of Sexual Misconduct against a student, the Employee should contact and file a Formal Complaint with the University’s Title IX Office and/or file an incident report form, found at the University’s Title IX website (contact information and website are set forth in Section 5.a of this policy).
    2. Amnesty for Good Faith. If a student enrolled at the University makes a Complaint of Sexual Misconduct in good faith, the University may not take disciplinary action against that student for violation(s) of the University’s applicable student conduct policy in accordance with the amnesty provisions set forth in the University’s Student Handbook or similar policy.
    3. The Complainant or Respondent who is the subject of an alleged incident of Sexual Misconduct will be allowed to drop a course in which they are both enrolled without any academic penalty.
    4. If a student withdraws or graduates from the University pending a Complaint alleging the student violated this policy and the University’s code of conduct by committing Sexual Misconduct, the University:
      1. May not end the disciplinary process or issue a transcript to the student until the University makes a final determination regarding responsibility, pursuant to Texas law;
      2. Shall expedite the University’s disciplinary process as necessary to accommodate both the student’s and the alleged victim’s interest in a reasonably prompt resolution; and
      3. On request by another institution, the University shall provide to the requesting institution information relating to a determination that a student enrolled violated this regulation and the University’s code of conduct by committing Sexual Misconduct.
    5. In addition, in complaints of Sexual Misconduct, the following provisions shall control.
      1. While there is no deadline to file a complaint, to promote prompt and equitable review, the University encourages individuals who believe they have experienced Sexual Misconduct to come forward as soon as possible with their complaint and to seek assistance. Delays in reporting greatly limit the ability to stop the Sexual Misconduct, collect evidence, and/or take effective action against individuals or organizations accused of violating this policy.
      2. Individuals wishing to remain anonymous may file a complaint in any manner, including by telephone or written communication, with the University Title IX Coordinator or Title IX Deputy Coordinator. However, electing to remain anonymous may greatly limit the ability to investigate an alleged incident, collect evidence, and/or take effective action against individuals or organizations accused of violating this policy.
      3. Both the Complaining and Responding Parties have the right to be accompanied by an advisor of the individual’s choosing during all meetings, proceedings, and/or disciplinary hearings at which the individual is present. The role of the advisor will be limited to being present only; advisors are not allowed to actively participate in the process.
      4. Upon the agreement of all involved parties, voluntary or informal resolution may be used to resolve complaints as defined in this policy.
    6. Sanctions for violations of this policy or the Code of Student Conduct by students may be found in the Code of Student Conduct, Section 8: Conduct Procedures.
  8. Employee Complaint Procedures, Including Student Employees
    1. Purpose of Complaint. A Complaint is required to initiate a Sexual Misconduct Grievance Process. In addition to the requirements of this Section, see Section 10, Grievance Process.
    2. Type and Location for Filing a Complaint. If an Employee wishes to file a Complaint Sexual Misconduct against another Employee, the Employee should contact and file the Complaint with the Title IX Coordinator or Deputy Title IX Coordinator for Employees (contact information set forth in Section 5.b of this policy).
    3. In addition, in complaints of Sexual Misconduct, the following provisions shall control.
      1. While there is no deadline to file a complaint, to promote prompt and equitable review, the University encourages individuals who believe they have experienced Sexual Misconduct to come forward as soon as possible with their complaint and to seek assistance. Delays in reporting greatly limit the ability to stop the Sexual Misconduct, collect evidence, and/or take effective action against individuals or organizations accused of violating this policy.
      2. Individuals wishing to remain anonymous may file a complaint in any manner, including by telephone or written communication, with the University Title IX Coordinator or Title IX Deputy Coordinator. However, electing to remain anonymous may greatly limit the ability to investigate an alleged incident, collect evidence, and/or take effective action against individuals or organizations accused of violating this policy.
      3. Both the Complaining and Responding Parties have the right to be accompanied by an advisor of the individual’s choosing during all meetings, proceedings, and/or disciplinary hearings at which the individual is present. The role of the advisor will be limited to being present only; advisors are not allowed to actively participate in the process.
      4. Upon the agreement of all involved parties, voluntary or informal resolution may be used to resolve complaints as defined in this policy.
  9. Complaints Involving Non-University Individuals
    1. Complaints Against University Students or Employees. If a non-University individual has a complaint of Sexual Misconduct by a University student or a University Employee acting in the scope of their employment, the individual involved may file a report with the University’s Title IX Office, and the University may investigate and take steps to address the situation.
    2. Complaints By University Students or Employees. If a University Employee or a University student has a complaint of Sexual Misconduct by a non-University party that affects the Employee’s work environment or student’s educational program or activity, the Employee or student may make a report to the University Title IX Coordinator or Title IX Deputy Coordinator. The University may conduct an inquiry and take action, if possible, to prevent further misconduct. However, responses may differ for complaints regarding third parties based on the level of control the University has over the third party. Even though the ability to take direct action against a third party may be limited, the University may take steps to provide appropriate remedies for the Employee or student and, where appropriate, the broader University Community.
  10. Grievance Process for Complaints of Sexual Misconduct
    1. Complaint Required to Initiate Grievance Process. The Grievance Process begins upon the filing of a Complaint (as described in Sections 7, 8, and 9 of this policy or as otherwise permitted by applicable law). The Complaint may be from a Complainant or may be from the University acting upon information from a Reporting Party. At the time of reporting a Complaint, the Complainant must be participating in or attempting to participate in the University’s Education Program or Activity.
      1. Assistance from Title IX Coordinator. When the University has Actual Knowledge of alleged Sexual Misconduct, the Title IX Coordinator shall promptly contact the Complainant to: (1) discuss the availability of Supportive Measures, (2) inform Complainant of the availability of Supportive Measures (with or without the filing of a Complaint), and (3) explain to the Complainant the process of filing a Complaint.
      2. University Response to Receipt of Formal Complaint. Upon receipt of a Complaint, University shall: (1) complete the actions required upon receiving notice, (3) assess appropriate Supportive Measures for both parties, (4) evaluate the need for Emergency Removal or administrative leave, and (5) initiate the Grievance Process.
      3. Initial Review of Formal Complaint
        1. Permissive Dismissal. The University may, but is not required to, dismiss a Formal Complaint in the following situations: (1) the Complainant notifies the Title IX Coordinator in writing that they wish to withdraw the Formal Complaint or some allegations in the Formal Complaint; (2) the Respondent is no longer enrolled in or employed by the University; or (3) circumstances exist that prevent the University from gathering sufficient evidence to reach a determination as to the Formal Complaint or allegations therein.
        2. Application of Other Policies Upon Dismissal of Formal Complaint. This policy applies exclusively to the various forms of Sexual Misconduct, as defined in Section 4 above. If the University dismisses a Complaint, or allegations therein, it must promptly send written notice of the dismissal and the reason(s) for the dismissal simultaneously to all parties. Dismissal of a Sexual Misconduct Complaint does not preclude action pursuant to other applicable disciplinary policies, including applicable Student Handbook or other faculty, staff, or employee policies.
        3. Appeal of Dismissal Decision. Any party can appeal the dismissal decision.
      4. Right to Consolidate Complaints. University may consolidate Formal Complaints as to allegations of Sexual Misconduct: (1) against more than one Respondent, (2) by more than one Complainant against one or more Respondents, or (3) by one party against the other party, where the allegations of Sexual Misconduct arise out of the same facts or circumstances.
    2. General Requirements of the Grievance Process
      1. Equitable Treatment of Parties. The University shall treat Complainants and Respondents equitably by: (1) offering Supportive Measures to a Complainant, (2) providing remedies to a Complaint where a determination of responsibility for Sexual Misconduct has been made against the Respondent, (3) executing the Grievance Process in compliance with this Section before the imposition of any disciplinary sanctions or other actions that are not Supportive Measures against the Respondent; and (4) providing the parties with the same opportunities to have advisors present during any proceeding under the Grievance Process, as described in 7.e.iii and 8.c.iii of this policy.
      2. No Conflicts of Interest. The Grievance Process requires the Title IX Coordinator, investigator, decision-maker, and facilitator of an Informal Resolution process be free of conflicts of interest or bias against a party.
      3. Presumption of Non-Responsibility; Standard of Evidence. There will be a presumption that the Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the Grievance Process. The standard of evidence under the Grievance Process shall be a preponderance of the evidence.
      4. Objectivity. Credibility determinations may not be based on a person’s status as a Complainant, Respondent, or witness. University shall require an objective evaluation of all relevant evidence, both inculpatory and exculpatory. University, Complainant, Respondent, Title IX Coordinator, investigator, decision-maker, or facilitator of an Informal Resolution process cannot require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege and the Recipient has obtained that party’s voluntary, written consent to do so for the Grievance Process under this policy.
    3. Timeframe. The process for addressing a Complaint under the Grievance Process will be concluded within the reasonably prompt timeframe of ninety (90) days. Notwithstanding the foregoing, there may be certain circumstances that allow for limited extensions of this timeframe for good cause. For such extensions of time or delays, there must be written notice to both the Complainant and Respondent of the delay or extension and the reasons for the action. A Grievance Process that exceeds ninety (90) days, shall be reviewed by University. Justification for the extended or delayed investigation must be documented. Complainant, Respondent, and other persons deemed appropriate by University will be provided an update on the progress of the Grievance Process after the review. The running of the ninety (90) day timeframe described in this subsection shall be tolled for any period in which the parties attempt to reach an agreement under the Informal Resolution Process under Section 10.h, below.
    4. Notices. University will provide notices as required, including but not limited to:
      1. Initial Notice to Respondent. University shall provide written notice to Respondent upon receipt of a Complaint with sufficient time for the Respondent to prepare a response before any initial interview. Such notice shall include notice of this Grievance Process, including University’s Information Resolution process, and the allegations, the conduct allegedly constituting Sexual Misconduct, and any sufficient details1 known at the time.
      2. Supplemental Notice to Respondent. If additional allegations are later included within the scope of the investigation under this Grievance Process, supplemental notice of such allegations shall be provided at that time.
      3. Notice to All Parties. University shall provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.
    5. Supportive Measures. University shall offer Supportive Measures as defined in Section 4.p. Supportive measures may include changes in class schedule, housing, work location, or transportation options if requested and reasonably available.
    6. Prehearing Investigation. University shall investigate allegations made in a Complaint in accordance with this Grievance Process.
      1. Gather Evidence
        1. The burden of proof and burden of gathering evidence sufficient to reach a determination regarding responsibility shall be on the University and not on the parties.
        2. University cannot obtain information that is protected by a legally recognized privilege without the party’s voluntary written waiver in the form of written consent.
        3. University shall not access, consider, disclose, 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’s 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, unless the recipient obtains that party’s voluntary, written consent.
        4. University shall provide an equal opportunity for the parties to present witnesses and evidence, including fact and expert witnesses, and other inculpatory and exculpatory evidence during the prehearing investigation.
      2. Inspection and Review of Relevant Evidence
        1. Prior to the completion of an Investigative Report, University shall provide both parties with an equal opportunity to inspect and review any evidence obtained as part of the prehearing investigation that is directly related to the allegations raised in a Complaint.
        2. University shall send to each party the evidence subject to inspection and review in an electronic format or a hard copy, and the parties shall have at least 10 days to submit a written response, which the investigator will consider prior to the completion of an Investigative Report.
      3. Investigative Report. Upon completion of the investigation, University shall create an Investigative Report that fairly summarizes the relevant evidence. University shall send to each party the Investigative Report in an electronic format or hard copy, for their review and written response, at least 10 days prior to the hearing, if a hearing is required under this policy or otherwise provided.
    7. Emergency Removal
      1. The University shall conduct an individualized safety and risk analysis to determine if an individual poses an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Sexual Misconduct that justifies removal.
      2. Where the University finds that a Respondent poses an immediate threat to the physical health or safety of any student or individual, the University may remove the Respondent prior to the conclusion of the Grievance Process to protect the safety of the University Community where an immediate threat exists.2
      3. The University shall provide the Respondent with notice and an immediate opportunity to challenge the decision in writing to the Title IX Coordinator immediately following the emergency removal.
    8. Informal Resolution Process
      1. The Informal Resolution Process presents an alternative to the Grievance Process. After the parties have been provided written notice of a Complaint, the University may offer and facilitate the Informal Resolution Process, which may include, but is not limited to, arbitration, mediation, and restorative justice. At any time prior to reaching a determination regarding responsibility, the University may begin the Informal Resolution Process by obtaining the parties’ voluntary, written consent to use this Informal Resolution Process. Notwithstanding the foregoing, the Informal Resolution Process must never be offered to resolve allegations of Sexual Misconduct by a University Employee against a Student, or in cases alleging Sexual Assault.
      2. The University may never require any person to participate in the Informal Resolution Process and may never condition enrollment, employment, or enjoyment of any other right or privilege upon agreeing to the Informal Resolution Process. Any party may withdraw from the Informal Resolution Process at any time prior to agreeing to a resolution and resume the Grievance Process with respect to the Complaint.
    9. Live Hearing. If the Complaint is not dismissed or resolved by Informal Resolution, then the Complaint shall proceed to a live hearing. The live hearing will be conducted in accordance with the procedure set forth in Attachment 2.
    10. Written Determination Regarding Responsibility
      1. After a live hearing, the hearing panel, with assistance from the hearing officer, will issue a written determination regarding responsibility that will include: (1) identification of the allegations potentially constituting Sexual Misconduct; (2) a description of the procedural steps taken throughout the Grievance Process; (3) findings of fact supporting the determination of responsibility; (4) conclusions regarding the application of the University’s applicable conduct policy to the facts of the alleged conduct; (5) a statement of and rationale for the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions imposed on the Respondent, and whether remedies designed to restore or preserve equal access to the University’s Education Program or Activity will be provided by the University to the Complainant; (6) a statement that the University’s procedures are permissible bases for the Complainant and Respondent to appeal; and (7) a statement that the determination may be appealed by the parties pursuant to this policy and information on how to file such appeal.
      2. The written determination regarding responsibility becomes final when the time period to file an appeal has expired or when the written appeal decision has been sent to the parties.
    11. Appeals
      1. Grounds for Appeal. The parties can appeal a determination regarding responsibility or the University's dismissal of a Complaint or any allegations therein on the following grounds:
        1. A procedural irregularity that affected the outcome of the matter;
        2. New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; or
        3. The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.
      2. Appeal Process
        1. Filing by Appealing Party. The appeal process is initiated upon a party’s filing of a written appeal within three (3) University business days after University’s delivery of the written decision regarding responsibility. The written appeal must be filed with the University’s Title IX Coordinator, as directed in the written determination regarding responsibility, and the party’s written appeal must set forth the grounds for the appeal and any supporting information.
        2. Response of Non-Appealing Party. Upon the filing of a written appeal, University will give written notice of the filed appeal to the non-appealing party. The non-appealing party will have three (3) University business days after University’s delivery of the written notice to respond to the appeal.
        3. Appeal Officer. The appropriate Vice President or Provost will serve as the appeal officer, so long as they are not the same person as the decision- maker(s). The Vice President (or Provost) serving as the appeal officer will consult with the Vice President for Student Affairs throughout the process, who in their Title IX oversight role will be able to provide consistent guidance on the appeals process.
        4. Response of Original Decision-Maker. The appeal officer may submit the written appeal and non-appealing party’s response to the original decision- maker(s), and such original decision-maker(s) may submit its response in support of the appeal or original decision to the appeal officer.
        5. Review of Appeal. The appeal officer will first review the appeal to determine if the appeal is timely and properly sets forth the appropriate grounds for appeal, with adequate accompanying evidence. If any of these requirements are not met, the appeal will be dismissed, and the decision will be final. If these preliminary requirements are met, the appeal officer will then review the substance of the appeal and make a final determination.
    12. Written Decision and Notice. Within five (5) University business days of the non-appealing party’s deadline to submit a response to the filed appeal, the appeal officer will issue a written decision describing the result of the appeal and the rationale for the result. The appeal officer will provide the written decision simultaneously to both parties. The written decision of the appeal officer is final and may not be appealed.
  11. Sanctions
    1. The range of possible disciplinary sanctions and remedies following a determination of responsibility under the Grievance Process are set forth in this Section
    2. Sanctions for students: Students found responsible for non-consensual sexual intercourse face a recommended sanction of university suspension or university expulsion. Refer to the Code of Student Conduct, Section 8: Conduct Procedures, for a full list of conduct sanctions available at the University.
      1. Sanctions for Employees: Sexual misconduct is a serious offense and such violations are subject to any combination of sanctions, up to and including termination of employment. Refer to the following university polices governing faculty and staff disciplinary procedures:
        1. Faculty: University Policy 3.125, Faculty Due Process
        2. Staff: University Policy 3.228, Staff Employee Disciplinary Procedures
  12. Retaliation and False Information
    1. Retaliation. Retaliation against an individual who reports a potential violation in good faith under this policy, assists someone with a report of a violation, or participates or refuses to participate in any manner in an investigation or in the resolution of a complaint made under this policy is strictly prohibited and will not be tolerated. Retaliation includes, but is not limited to threats, intimidation, coercion, discrimination, reprisals, or adverse actions related to an individual’s employment or education. The University will take appropriate steps to ensure that an individual who, in good faith, reports, complains about, or participates or refuses to participate in an investigation, proceeding, hearing, or other resolution pursuant to this policy will not be subjected to retaliation. Individuals who believe they are experiencing retaliation are strongly encouraged to lodge a complaint with the University using the same procedure outlined in this policy.
    2. Subsection (a) does not apply to an Employee who:
      1. Reports an incident of Sexual Harassment, Sexual Assault, Dating Violence, and Stalking perpetrated by the Employee;
      2. Cooperates with an investigation, a disciplinary process, or a judicial proceeding relating to an allegation that the Employee perpetrated an incident of Sexual Harassment, Sexual Assault, Dating Violence, and Stalking; or
      3. Makes a report of Sexual Harassment, Sexual Assault, Dating Violence, and Stalking which after investigation is found not to have been made in good faith.
    3. Individuals who are found to have retaliated under this policy will be subject to disciplinary action, up to and including termination of employment, expulsion from the University, or being barred from the University premises and events.
    4. False Information. An individual found to have knowingly and in bad faith provided false or malicious information may be subject to disciplinary action up to an including dismissal or separation from the University. A determination that a Responding Party is not responsible for allegations of Sexual Misconduct does not imply information provided was false. Similarly, a determination that a Responding Party is responsible for a policy violation does not imply that a Responding Party’s statements disclaiming responsibility were false.
  13. Interim Measures
    1. The Complaining Parties may request and the University may implement interim measures, as may be necessary to assure the safety and well-being of the participants in the complaint process, to maintain an environment free from harassment, discrimination, or retaliation, and to protect the safety and well-being of the University Community. Appropriate University officials will decide if and what interim measures are necessary. Such interim measures may include, but are not limited to: (i) separating the Complaining Party’s and Responding Party’s academic or working situations; (ii) forbidding contact between parties involved in a complaint; and (iii) suspending the right of the Responding Party to be present on campus or otherwise altering the University status of the Responding Party.
    2. Other interim measures may be implemented depending upon the Responding Party’s relationship with the University. These interim measures may be kept in place through the conclusion of any review, investigation, or appeal process. Interim measures can be implemented regardless of whether or not the Complaining Party pursues a formal University action or criminal action.
  14. Confidentiality
    1. The protections provided by this Section apply to:
      1. Complaining Party;
      2. Reporting Party;
      3. An individual who sought guidance from the University concerning an incident;
      4. An individual who participated in the University’s investigation of an incident; or
      5. Responding Party, if after completing an investigation, the University determines the report to be unsubstantiated or without merit.
    2. Unless waived in writing by the individual, the identity of an individual described by Subsection (a):
      1. Is confidential and not subject to disclosure under Chapter 552, Government Code; and
      2. May be disclosed only to: (1) University Employees or individuals under contract with the University to which the report is made who are necessary for an investigation of the report or other related hearings; (2) a law enforcement officer as necessary to conduct a criminal investigation of the report by individuals described by Subsection (a); (3) a health care provider in an emergency, as determined necessary by the University; (4) the Responding Party, to the extent required by other law or regulation; and (5) potential witnesses to the incident as necessary to conduct an investigation of the report and to the extent required by other law or regulation.
    3. For the purposes of this Section, investigation includes the coordination of the incident response, implementation of interim measures, adjudication of the report, disciplinary action or administrative response to the report, and disclosure by the University as required under state or federal law or regulation.
    4. The willful and unnecessary disclosure of confidential information by anyone, including the Complaining Party or Responding Party, may affect the integrity of the investigation.
    5. e. Students may make confidential reports to the University Student Counseling Center or to other counselors identified by the University. All Complaining Parties may also make confidential reports to local rape crisis centers or to other licensed clinical and/or mental health professionals acting in their professional role of providing those services, including medical providers employed by the University. Information may be shared by the clinical and/or medical provider only with the Complaining Party's or Responding Party’s consent.
  15. Cooperation and Non-Interference with an Investigation or Grievance Process
    1. Cooperation by University Employees. All University Employees who are not a Complaining Party or Responding Party are required to comply with the Interim Measures, Supportive Measures or information requests, as directed or requested by the University Title IX Coordinator.
    2. Non-Interference. Any individual who knowingly and intentionally interferes with an investigation or grievance process conducted under this policy is subject to disciplinary action up to and including dismissal or separation from the University. Interference with an investigation or grievance process may include, but is not limited to: (i) attempting to coerce, compel, influence, or prevent an individual from providing testimony or relevant information; (ii) divulging confidential information; (iii) removing, destroying, or altering documentation relevant to the investigation; (iv) providing false or misleading information to the investigator, or encouraging others to do so; or (v) making a report under this policy that, after investigation, is found not to have been made in good faith.
  16. Training and Education
    1. The University’s commitment to preventing and raising awareness of the harm resulting from the conduct prohibited in this policy includes providing primary prevention and awareness programs for all incoming students and new Employees, ongoing education to both Employees and students, and emailing information regarding this policy to students at the beginning of each academic semester. This policy is published on the University’s website and information regarding this policy and related policies is required in orientation materials for new students, faculty, and staff. All Employees must attend equal employment opportunity non-discrimination and sex/gender discrimination training including Sexual Assault, Sexual Harassment, and campus crime mandated reporter training within the first thirty (30) days of employment and receive supplemental training every two (2) years. Other appropriate compliance training sessions will also be conducted on an ongoing basis. Training sessions will include information on how and where to report incidents of prohibited conduct, resources available, as well as risk reduction and safe and positive options for bystander intervention. In addition, the University Employees and administrators responsible for implementing this policy, including the University Title IX Coordinators, Title IX Deputy Coordinators, investigators, and hearing officers, receive annual training about offenses, investigatory procedures, due process requirements, and University policies related to or described in this policy.
  17. Free Expression
    1. This policy encourages and respects the right of free speech and expression guaranteed by the First Amendment of the Constitution and academic freedom. Constitutionally protected expression is not considered harassment under this policy; however, some offensive conduct, even though it contains elements of speech, may rise to the level of the type of conduct that creates a sexually hostile environment which is a violation of this policy.
  18. University Referencing Operating Policies
    See the following for University Operating Policies and Procedures (OP):
    UNIVERSITY OPERATING POLICY AND PROCEDURE
    Midwestern State University OP 16.03, Sexual Harassment, Sexual Assault, Sexual Misconduct, and Title IX Policy and Complaint Procedure
  19. Websites and Other Resources
    1. The University maintains websites that provide comprehensive information about this regulation, its procedures, Title IX, available resources, remedial support options, local support services, and illustrative examples of definitions contained herein.
    2. Related Policies
      • 4.118: Consensual Relationships
      • 3.124: Dismissal of Tenured Faculty for Cause 3.125: Faculty Due Process
      • 3.126: Dismissal of Non-Tenured Faculty Without Notice 3.114: Faculty Performance Review
      • 3.214: Staff Performance Rating 3.216: Termination/Discharge (Staff)
      • 3.228: Staff Employee Disciplinary Procedures
      • MSU Code of Student Conduct – Sexual Misconduct Policy 2019-2020 western State University Student Handbook
    3. Related Forms:
      For a complete list of University and community resources, visit the Title IX website:
      titleix@msutexas.edu
  20. Authoritative References
    • Title VII of the Civil Rights Act of 1964
    • Title IX of the Education Amendments of 1972
    • Texas Labor Code Chapter 21
    • Violence Against Women Act (VAWA)
    • Campus Sexual Violence Elimination Act of 2013 (Campus SaVE)
    • Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act
    • Texas Education Code Sections 51.9363; 51.251 – 51.260; and 51.281 – 51.295
    • Texas Family Code Sections 71.004 and 71.0021
    • Texas Penal Code Section 42.072
  21. Right to Change Regulation
    1. Midwestern State University reserves the right to interpret, change, modify, amend, or rescind this policy, in whole or in part, at any time without notice to or consent of its Employee, or other members of the University Community.
  22. Responsible Office(s):
    Contact: Title IX Coordinator
    Phone: 940-397-4213
    E-mail: titleix@msutexas.edu
    Contact: Human Resources Director
    Phone: 940-397-4221
    E-mail: human.resources@msutexas.edu
    MSU Policy 3.347A (Sexual Harassment) is adopted by the Board of Regents.
    MSU Policy 3.347A (Sexual Harassment) is renumbered by the Board of Regents following a comprehensive review of the Policies and Procedures Manual; it is now Policy 4.161.
    Necessary changes are made only in wording according to the transition from divisions to colleges (division director changed to dean or chair, division changed to college or program, coordinator to chair, etc.).
    The policy is revised and renamed: MSU Policy 4.161 (Sex Discrimination and Sexual Harassment)
    • Edited for clarity
    • Added paragraph 1 to definition: 1. Sex discrimination is defined as conduct directed at a specific individual or group of identifiable individuals that subjects the individual or group to treatment that adversely affects their employment or education on account of sex
    • Added "Sexual harassment is a form of sex discrimination"
    • Paragraph D renamed paragraph C
    • Paragraph D renamed Informal Disposition of Complaint
      -added more paragraphs to this section labeled 2-7
    • added paragraph E. Formal Disposition of Complaint
    • added paragraph F. Right of Appeal
    • added paragraph G. Disposition of Hearing Committee's Decision
    • deleted previous paragraphs F. Acceptance of Hearing Committee's report and G. Right of Appeal
    • Added to beginning of paragraph on monitoring, "A copy of a sexual harassment/discrimination complaint and a report on the final disposition to remedy the complaint will be filed with the EEO coordinator"

Footnotes

  1. Details may include, for example, the identity of the parties involved in the incident (if known), and the date and location of the alleged incident (if known).
  2. Emergency Removal may also take place in the instance where no Grievance Process is pending.
  3. Items that are automatically considered to meet this standard include, but are not limited to, the following:
    1. Sexual assault, as defined by 20 U.S.C. 1092(f)(6)(A)(v) (Clery Act)
    2. Dating violence, domestic violence, or stalking as defined by 34 U.S. Code § 12291 (VAWA); and
    3. Quid pro quo, as described in 34 CFR 106.30.
  4. "Education program or activity" includes locations, events, or circumstances over which the University exercised substantial control over both the respondent and the context in which the alleged sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by the University. See 34 CFR 106.44.

Attachment 1


Attachment 2

Sexual Misconduct Live Hearing Procedures

  1. General Requirements
    1. Live Hearing. A live hearing may be conducted with all parties physically present in the same geographic location or, at the University’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously hear each other. The University, in its discretion, may choose to limit interaction between a Complainant and Respondent, including but not limited to using shielding devices or reviewing questions prior to being asked.
    2. Hearing Panel. The Title IX Coordinator will appoint a three-member Hearing Panel which will be the decision-maker that objectively evaluates all relevant evidence and renders a determination regarding responsibility after the live hearing. The determination regarding responsibility will be made by a majority vote of the Hearing Panel. The Hearing Panel will not include the University Title IX Coordinator or an investigator involved in the matters considered at the live hearing. The Hearing Panel has the right and responsibility to ask questions and elicit information from parties and witnesses on its own initiative to aid in obtaining relevant evidence both inculpatory and exculpatory.
    3. Hearing Officer. The University will appoint an independent Hearing Officer to oversee and conduct the live hearing. The Hearing Officer will not be a member of the Hearing Panel, though the Hearing Officer may be present for and answer questions from the Hearing Panel when deliberating the determination regarding responsibility, and the Hearing Officer may assist the Hearing Panel in drafting the written determination regarding responsibility.
    4. Parties and Witnesses at Hearing. All parties, witnesses, and other participants in a live hearing must be physically or virtually present at the live hearing in a manner where all participants can simultaneously hear each other.
    5. Advisors. Both the Complaining and Responding Parties have the right to be accompanied by an advisor of the individual’s choosing at a live hearing. The role of the advisor will be limited to being present and advising the relevant party; advisors are not allowed to actively participate in the process.
    6. Rules of Order and Decorum. The University will adopt rules of order and decorum provided for and enforced by the Hearing Officer. Such rules will include, without limitation, time limits, hearing order, and requirements that participants not badger a witness, and repetition of the same question may be deemed irrelevant by the hearing officer; no party be asked questions in an abusive or intimidating manner; and questioning shall be relevant, respectful, and non-abusive.
  2. Hearing Procedure
    1. Hearing Officer to Direct Hearing. The Hearing Officer will set the Rules of Order and Decorum and agenda for the live hearing and will direct and oversee the live hearing in accordance with this regulation and the Rules of Order and Decorum.
    2. Recording or Transcript. The University will create a recording, or transcript, of the live hearing and make it available to the parties for inspection and review.
    3. Opening and Closing Statements. At the direction of the Hearing Officer, Complainants and Respondents will have an opportunity to offer their own opening and closing statements.
    4. Presentation of Evidence. Each party will have an opportunity to introduce evidence to the Hearing Panel.
      1. Rules of Evidence; Relevance. The Hearing Officer will be responsible for making determinations regarding evidence, including relevance. Information that will be deemed not relevant includes, without limitation, information protected by a legal recognized privilege; questions or evidence about Complainant’s sexual predisposition or prior sexual behavior (unless offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant); any party’s medical, psychological, and similar records (unless the party has given voluntary written consent); and party or witness statements that have not been subjected to cross-examination at the live hearing.
    5. Examination of Witnesses
      1. Direct Examination. Direct examination may be conducted by the Hearing Officer or the Hearing Panel.