3.02 Title IX/Sexual Misconduct Policy

Last Revised: 27 August 2018

Refer Questions to: Title IX Coordinator

Scope

This policy applies to all members of the Gallaudet University community - students, employees and individuals having any official capacity at Gallaudet - as well as third parties (volunteers, independent contractors, vendors, alumni, interns, and visitors), and any individuals studying, living, or conducting business at Gallaudet.  KDES and MSSD students are excluded from the scope of this policy.

Introduction

Gallaudet University is committed to and seeks to maintain an equitable and inclusive campus free from all forms of harassment, exploitation, intimidation, and/or violence based on protected characteristics, including all forms of sexual misconduct.  The University will not tolerate any type of sexual and/or gender-based harassment, discrimination and violence, and will be prompt, fair, and impartial in its investigation and resolution of sexual misconduct reports. The University also strictly prohibits retaliatory discrimination or harassment against any person(s) for reporting an incident of sexual misconduct or for participating, in any manner, in procedures to redress complaints related to a report of sexual misconduct. All members of the University community are expected to conduct themselves in a manner that demonstrates respect for the rights of others.      Creating a safe and non-discriminatory educational environment is the responsibility of all members of the University community. The University is committed to addressing sexual misconduct, fostering an environment that promotes prompt reporting of all types of sexual misconduct, and ensuring the prompt, equitable and impartial resolution of all complaints from the initial assessment and investigation to the final outcome. Every member of the University community has a responsibility to become familiar with the Gallaudet University Sexual Misconduct Policy and Procedures. 

Policy

This policy is intended to guide University community members that may have observed, become aware of, or experienced sexual misconduct.  This policy pertains to acts of Prohibited Conduct committed by or against Gallaudet community members on University property (i.e., on campus) or other property owned by the University, or at University sanctioned events or programs that take place off campus or occurring in the context of a University employment or education program or activity, including, but not limited to, University-sponsored study abroad, research, or internship programs; and/or online and social media conduct that may affect the educational experience. The University may concern itself with conduct off University property (i.e., off campus) or outside the University's educational programs and activities when such conduct may have a substantial and/or continuing adverse effect or could create a hostile environment for any member of the Gallaudet community or the University.   All actions by a member of the University community that involve the use of the University computing and network resources from a remote location, including but not limited to accessing email accounts, are under the scope of this policy.

Gallaudet has an obligation to maintain a safe and non-discriminatory educational environment and may also address the behavior of non-members of the University community who have been accused of violation(s) of this policy.  The University typically will not conduct an investigation for non-members of the University community (including where the respondent has graduated or left the University) but may address the situation and provide appropriate resources to impacted individuals and, where appropriate, the broader University community.    A non-member of the University community's role in the University's investigatory and disciplinary procedures may be limited.  The University may also take appropriate action against non-members of the University community that may include, but is not limited to, barring the non-community member from University property or other property owned by the University, or at University sanctioned events or programs that take place off campus, and reporting the incident to another school or community law enforcement agency that has jurisdiction over the individual's behavior.   

Notice of Non-Discrimination

It is the policy of Gallaudet University to provide an educational and working environment that provides equal opportunity to all members of the University community. Any Gallaudet employee, student, applicant for admission or employment, or other participant in Gallaudet University programs or activities, who believes that they have been[CP1]  discriminated against on the basis of race, color, sex (including sexual harassment), religion, national origin, sexual orientation, gender identity and/or gender expression, age, disability, veteran status or other items listed in the D.C. Human Rights Act may direct complaints of discrimination and harassment to the Director of the Office of Equal Opportunity Programs (EOP).  

Prohibited Conduct

Gallaudet University prohibits all forms of sexual and/or gender-based discrimination, including but not limited to, sexual harassment, sexual assault and sexual violence, which are referred to as sexual misconduct in this policy. It is a violation of this policy to commit these acts or attempt to commit them; attempts to commit acts prohibited by the Sexual Misconduct Policy may be disciplined to the same extent as completed violations. Prohibited conduct may be committed by individuals of any sex or gender, including same sex/gender individuals.  It can occur between strangers or acquaintances as well as individuals involved in intimate or sexual relationships. In determining whether the alleged conduct violates University policy, the University will consider the totality of the facts and circumstances involved in the incident, including the nature of the alleged conduct and the context in which it occurred.  

The prohibited conduct is as follows:  

Bullying - a pattern of repeated behavior that is sex and/or gender-based, or in the context of an intimate partner relationship, that a reasonable person would find hostile, offensive, and unrelated to the University's legitimate business interests.  

Cyberbullying - bullying that is sex and/or gender-based, or in the context of an intimate partner relationship, that takes place online or is perpetrated using electronic means of communication even when aimed indirectly at an individual or a group.  

Intimate Partner Violence - any instance of violence or abuse (verbal, physical, or psychological) that occurs between those who are in or have been in an intimate relationship with each other. To be considered intimate, a relationship must have (or have included) some romantic, sexual, and/or domestic element. Common intimate partner relationships are married partners, domestic partners, dating partners, and sexual partners.     

Non-Consensual Sexual Contact - any intentional sexual touching, however slight, by a person upon another person that occurs without consent and/or by force. Some examples of a policy violation involving non-consensual sexual contact would be the touching of a person's private parts (such as penis, vagina, groin, breast, buttocks, mouth, and/or clothing covering them); touching another person with one's own intimate parts; or forcing a person to touch another's intimate parts.  

Non-Consensual Sexual Intercourse - sexual intercourse, however slight, by a person upon another person that occurs without consent and/or by force. An example of a policy violation involving non-consensual sexual intercourse would include vaginal or anal penetration by a penis, object, tongue, or finger, and oral copulation (mouth to genital contact) no matter how slight the penetration or contact, without consent or through the use of coercion or by use of force, violence, threat, or intimidation.  

Sex Discrimination - actions that deprive other members of the community of educational or employment access, benefits, or opportunities on the basis of sex or gender. Sex discrimination includes discrimination based on pregnancy or discrimination in athletics.  

Sexual Exploitation - taking sexual advantage of another person without effective consent, and includes, without limitation, causing or attempting to cause the incapacitation of another person in order to gain a sexual advantage over the other person; causing the prostitution of another person; recording, photographing, or transmitting identifiable images of private sexual activity and/or the intimate parts (including penis, vagina, vulva, buttocks, anus, groin, and/or breasts) of another person; allowing third parties to observe private sexual acts; going beyond the boundaries of consent (such as letting others watch you have consensual sex or consensual sexual contact with another person); engaging in voyeurism; and/or knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection, including HIV; or exposing one's genitals in non-consensual circumstances or inducing another to expose their genitals.

Sexual Harassment - the unwelcome, sexual, sex-based or gender-based verbal, written, online and/ or physical conduct.  Three types of sexual harassment include 1) hostile environment harassment, 2) quid pro quo harassment, and 3) retaliatory harassment.  

Hostile Environment Harassment includes any situation in which there is harassing conduct that is severe, or pervasive or persistent, and objectively offensive unreasonably interferes with, denies, or limits someone's ability to participate in or benefit from the University's education or employment programs. The determination of whether an environment is "hostile" will consider factors such as those listed below:

  1. the frequency of the conduct;
  2. the nature and severity of the conduct;
  3. whether the conduct was physically threatening;
  4. whether the conduct was humiliating;
  5. the effect of the conduct on the reporting party's mental or emotional state;
  6. whether the conduct was directed at more than one person;
  7. whether the conduct arose in the context of other discriminatory conduct; and
  8. whether the conduct unreasonably interfered with the reporting party's educational or work performance or the educational/work experience of others.

Quid pro quo Harassment exists when there are:

1. unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature by a person having power or authority over another; and

2. submission to or rejection of such conduct results in adverse educational or employment action.  

Retaliatory Harassment includes any adverse action taken against any person(s) for reporting or participating, in any manner, in procedures to redress complaints related to a report of sexual misconduct.  

Sexual Intimidation - includes, but is not limited to, threatening another with a non-consensual sexual conduct, and stalking or cyber-stalking, which is the repetitive and menacing pursuit, following, harassing, and/or interfering with the peace and/or safety of another.  

Consent

Consent represents the basis of respectful and healthy intimate relationships.  Consent is effective when it is clear, knowing, and voluntary by using mutually understandable words or actions that give permission for specific sexual activity or contact. Consent cannot be gained by force, by ignoring or acting in spite of the objections of another, or by taking advantage of the incapacitation of another, where the accused individual knows or reasonably should have known of such incapacitation. Passivity is not permission; consent is not the absence of resistance, and silence, in and of itself, cannot be interpreted as consent. Consent to one form of sexual contact or activity does not imply consent to another form of sexual activity. Consent also has time boundaries; consent given at one time does not imply future consent or consent at any other time. The existence of a prior or current relationship does not, in itself, constitute consent. Consent can be withdrawn once given, as long as the withdrawal is clearly communicated.  Once consent is withdrawn, sexual activity must stop immediately.  In order to give consent, one must be of legal age (16 or older in D.C.).

Standard of Proof

The standard of proof used to make an outcome determination about facts that are in dispute in all cases and appeals under the purview of this policy is a preponderance of the evidence, which is based upon whether it is more likely than not a violation occurred.  

Consensual Relationships

The University's educational mission is promoted by professionalism in University employee relationships with other employees and students. University employees may be in positions of authority; trust and respect are diminished when those in positions of authority abuse or appear to abuse their power.   There are special risks in any sexual or romantic relationship between individuals of inherently unequal power. Such relationships have the potential for conflict of interest, favoritism, exploitation, and bias, and may undermine the real or perceived integrity of the supervision and evaluation provided. There is the potential for sexual harassment when inappropriate personal attention occurs between individuals of inherently unequal power. Such relationships seriously undermine the atmosphere of professionalism, trust and respect essential to the University and hinder fulfillment of the University's educational mission.   For these reasons, sexual or romantic relationships or encounters - whether regarded as consensual or otherwise - between individuals of inherently unequal power are strongly discouraged, and in some circumstances, are strictly prohibited by this policy. The fact that a relationship was initially consensual does not insulate the person with greater power from a sexual harassment or sexual misconduct complaint.  

Consensual Relationships between Faculty and Undergraduate Students*

No Gallaudet University faculty member shall initiate or accept offers for sexual or romantic encounters or relationships with any undergraduate student.  

Consensual Relationships between Faculty and Graduate Students*

Sexual or romantic encounters or relationships between faculty and graduate students in the instructional context, or under their academic supervision is prohibited. Sexual encounters or romantic relationships outside of the instructional context or academic supervision can lead to difficulties.  Instructors or other officers should be sensitive to the possibility that he or she may unexpectedly be placed in a position of responsibility for a graduate student's instruction or evaluation, including mentoring, advising, serving on an admissions or selection committee or being called upon to write a letter of recommendation.  Even in consensual relationships there are certain conditions where a faculty member, by virtue of their special responsibilities and the core educational mission of the University, could be held accountable should a problem arise.  

*The Handbook of the University Faculty, #3.2, contains a more detailed policy governing faculty/student relationships.  

Consensual Relationships in Other Contexts between Staff and Students

Relationships between staff with direct or indirect authority over the other (deans and directors of any rank, coaches, academic advisors, residence hall professional staff, security personnel, and other similar employees who advise, mentor or evaluate students) and students can be potentially problematic and is prohibited. Other consensual sexual or romantic relationships between staff and students is not prohibited and should generally be avoided; one needs to be mindful that one may unexpectedly be placed in a position of power over the student in the future.  

Consensual Relationships between Student Paraprofessionals and Students

Sexual or romantic encounters or relationships between students and student paraprofessionals in a teaching, evaluating, advising, mentoring, disciplinary or other position of inherently unequal power is prohibited. Existing relationships that existed prior to obtaining such paraprofessional relationships must be disclosed.

Consensual Relationships between Employees

Consensual relationships between employees is not prohibited by this policy. However, relationships between employees who have direct or indirect authority over the other are potentially problematic and must be disclosed. This includes relationships between supervisors and their employees.  

Consensual Relationships between Clerc Center Employees and Students

The Clerc Center prohibits relationships between all employees and Clerc Center students. Refer to Administrations and Operations Policy 1.13: Code of Conduct With Clerc Center Students.   

Notification and Recusal for Prior Relationships

The University is a small community, where there exist many opportunities for faculty, staff and students to form relationships prior to a situation that creates a potential power imbalance. In such instances, employees and student paraprofessionals are required to disclose to their supervisor(s) in writing of the relationship prior to or immediately when there will be inherently unequal power. It may require recusal from certain supervision, evaluation, or oversight over individuals with whom they have a prior relationship with. This ensures that alternate supervisory or evaluative arrangements are put in place. Such notification is always required where recusal is required. This obligation to notify and recuse is required, and the failure to disclose a prior relationship in a timely fashion will itself be considered a violation of the consensual relationship policy.


 

Approved by: Gallaudet University Administration

Procedures

The Title IX Coordinator provides overall oversight of Title IX compliance and works in partnership with the Deputy Title IX Coordinators and Investigators. All University personnel involved in the resolution of sexual misconduct complaints receive annual Title IX and other appropriate training, including but not limited to, training on the University Sexual Misconduct Policy and Procedures and how to handle and resolve allegations of sexual misconduct; training on the dynamics of sexual and/or gender-based harassment, discrimination and violence; and trauma-informed training. Consensual relationship policy violations are addressed by the employee or student paraprofessional's department or in accordance to procedures listed in other applicable University documents (such as the Handbook of the University Faculty), and are not subject to the following procedures.

Gallaudet community members who believe they are directly affected by conduct of students or employees in violation of the Sexual Misconduct Policy may request information or advice, including whether certain conduct may violate this policy, seek informal resolution (remedies-based resolution), or make a formal complaint (discipline-based resolution) as described in the Gallaudet University Sexual Misconduct Policy and Procedures. Gallaudet may implement interim remedies or measures that are designed to protect the parties involved and/or eliminate a hostile environment and will also provide the reporting and responding parties' information and additional resources and/or options when addressing conduct that falls within the purview of this policy.  

After the initial review of information pertaining to an alleged violation of this policy, the University will inform the reporting party whether the allegation(s), if true, would rise to the level of prohibited conduct and would constitute a violation and warrant an investigation, or whether the information warrants an administrative closure and/or referral for adjudication or resolution at a different department (in instances where the alleged violation (s) are not covered by this policy).  

Remedies-based resolution and discipline-based resolution are options available for reporting parties in the resolution of their complaint. The full description of the procedures for remedies- based and discipline-based resolution can be found in the Gallaudet University Sexual Misconduct Policy and Procedures. Remedies-based resolution is informal resolution of a complaint without taking disciplinary action against the responding party. Discipline-based resolution involves an investigation which results in a final investigation report that is reviewed by an appropriately trained panel comprised of appropriate faculty or staff representation, based on the responding party's role/relationship with the University.

The panel will make an outcome determination of whether the reporting party violated this policy and will share the outcome determination with the Title IX Coordinator. The Title IX Coordinator or a designee will determine the most appropriate sanction(s) if the responding party is responsible for violating this policy.  

Both parties have equal rights to an impartial appeal and may appeal the outcome determination and/or the sanctions imposed by the Title IX Coordinator or a designee on specific grounds of appeal. The administrative official selected to review the appeal will be dependent on the responding party's role/relationship with the University. The decision of the administrative official is final; no administrative process otherwise available to faculty, staff or students may be used to further appeal the appeal decision.  

Important Links

Gallaudet University Sexual Misconduct Policy and Procedures (full version)

Administrations and Operations Policy #1.13 (Clerc Center)

Administrations and Operations Policy #1.27:  Bullying in the Workplace

Administrations and Operations Policy #2.28:  Anti-Discrimination Policy and Complaint Procedure Title IX Office

Handbook of the University Faculty  

Appendix:

Terminology

On and Off Campus Resources

D.C. Code

D.C. Human Rights Act