91ɬ�� Policy 5.60 - Sexual Misconduct

POLICY #5.60
SUBJECT: Sexual Misconduct

I. PURPOSE

This Policy defines and prohibits Sexual Harassment in education programs and activities; details how to report a violation of this Policy; describes Southern Utah University resources and Supportive Measures to protect those involved in the process; and outlines investigation, disciplinary, and due process procedures for addressing reported violations of this Policy. This Policy applies to all persons who are (1) employed by, attending, or affiliated with the University; (2) participating in any University program or activity, including but not limited to trustees, administrators, faculty, staff, students, independent contractors, volunteers, and guests; and/or (3) visiting campus or any property owned or leased by the University. The provisions of this Policy implement federal requirements created by 34 C.F.R. §§ 106.44 and 106.45.

Discrimination on the basis of sex/gender, gender identity, sexual orientation, and pregnancy or a pregnancy-related condition is addressed under 91ɬ�� Policy 5.27. That Policy constitutes the University’s grievance procedures expected and explained by 34 C.F.R. § 106.8(c).

II. REFERENCES

Americans with Disabilities Act (ADA) (as amended)
Campus Sexual Violence Elimination Act (SaVE)—Reauthorization of the Violence against Women Act of 2013 (VAWA)
Family Educational Rights and Privacy Act (FERPA)
Heath Insurance Portability and Accountability Act (HIPAA)
Jeanne Clery Disclosure of Campus Security Police and Campus Crime Statistics Act (Clery Act)
Southern Utah University Policy 5.0 Threat Management and Safety Intervention
Southern Utah University Policy 5.27 Non-Discrimination / Anti-Harassment
Southern Utah University Policy 11.2 Student Conduct Code
Title VII of the Civil Rights Act of 1964 (Title VII)
Title IX of the Higher Education Amendments Act of 1972 ()
Utah Code
Utah Code
Utah Code
Utah Code
Utah Code
Utah Code
Utah Code
Utah Code
Utah Code
Utah System of Higher Education
Utah System of Higher Education

III. DEFINITIONS

Actual Knowledge: Notice of Sexual Harassment or allegations of Sexual Harassment to the Title IX Coordinator or any official of the University who has authority to institute corrective measures on behalf of the University. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute Actual Knowledge. This standard is not met when the only official of the University with Actual Knowledge is the Respondent. The mere ability or obligation to report Sexual Harassment or to inform a student about how to report Sexual Harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the University.
Complainant, Victim, or Alleged Victim: An individual who is alleged to be the Victim of conduct that could constitute Sexual Harassment.
Conflict of Interest: Any circumstance in which an individual’s financial, professional, or other personal considerations may directly or indirectly affect, or reasonably appear to affect, an individual’s professional judgment in exercising any University duty or responsibility. Independent knowledge of an incident through other means generally is not a Conflict of Interest.
Consent: Consent to engage in a sexual encounter must be given by all participating Parties; must be clear, knowing, and voluntary; and may be given only by someone who is 18 years of age or older and is not mentally and/or physically incapacitated. Consent is active, not passive. Consent requires an affirmatively communicated willingness through words and/or actions to participate in sexual activity. Silence, in and of itself, may not be interpreted as Consent.
Dating Violence: As defined at 34 U.S.C. 12291(a)(10), Dating Violence means violence committed by a person (A) who is or has been in a social relationship of a romantic or intimate nature with the Victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors:
1. The length of the relationship.
2. The type of the relationship.
3. The frequency of interaction between the persons involved in the relationship.
Day(s): Dates and times when the University conducts its regular business. Most often that is Monday through Friday between the hours of 8:00 AM and 5:00 PM Mountain Daylight/Standard Time. Dates and times when the University is closed for breaks between academic terms, federal and state holidays, or for emergency declarations by government officials, are not counted in the timelines established by this Policy. University officials participating in investigations or proceedings established by this Policy do not count the day official correspondence/notice is sent/transmitted. Rather, the first day of the relevant time interval is the day immediately after correspondence/notice/decision is sent. The last day of a relevant time interval will conclude at 5:00 PM.
Domestic Violence: As defined in the Violence Against Women Act Reauthorization Act of 2022, Domestic Violence includes felony or misdemeanor crimes committed by a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction receiving grant funding by a person who:
1. is a current or former spouse or intimate partner of the victim, or person similarly situated to a spouse of the victim;
2. is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner;
3. shares a child in common with the victim; or
4. commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction.
Education Program or Activity: Includes location, events, or circumstances over which the University exercises substantial control over both the respondent and the context in which the harassment occurs. Substantial control is likely to exist when the program or activity is University-authorized and substantially organized and/or supervised by a University faculty/staff member(s) within the context of that faculty/staff member’s University employment.
Formal Complaint: A document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that the University investigate the allegation of Sexual Harassment. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the Education Program or Activity of the University with which the Formal Complaint is filed. A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator, and by any additional method designated by the University. As used in this paragraph, the phrase “document filed by a Complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the University) that contains the Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the person filing the Formal Complaint.
Incapacitation: An individual who is incapacitated cannot give Consent to engage in a sexual encounter. Incapacitation is defined as the physical and/or mental inability to make informed, rational judgments. Factors that could be indications of Incapacitation include but are not limited to mental or physical disability; lack of sleep; alcohol; illegal, date-Rape, or prescription drug use; unconsciousness; blackout; or involuntary physical restraint. Being intoxicated by drugs or alcohol does not diminish one’s responsibility to obtain Consent. The factors to be considered when determining whether Consent was given include whether the accused knew, or whether a reasonable person should have known, that the Complainant was incapacitated.
Party(ies): Complainant(s) or Respondent(s).
Preponderance of Evidence: The evidentiary standard used during a sexual misconduct investigation/review to determine if the allegations occurred and if a University Policy violation has occurred. Preponderance of Evidence means it is more likely than not, or more than 50 percent in favor, that the misconduct occurred as alleged.
Respondent: Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment.
Retaliation: An action, performed directly or through others, that is aimed to dissuade a reasonable person from engaging in a protected activity or is done in retribution for engaging in a protected activity. Action in response to a protected activity is not retaliatory unless (i) it has a materially adverse effect on the working, academic, or other University-related environment of an individual and (ii) it would not have occurred in the absence of (but for) the protected activity. Examples of protected activities include reporting (internally or externally) a complaint of Sexual Harassment in good faith, assisting others in making such a report, or honestly participating as an investigator, witness, decision maker, or otherwise assisting, in an investigation or proceeding related to suspected Sexual Harassment.
Sexual Assault: As defined at 20 U.S.C. 1092(f)(6)(A)(v) and the uniform crime reporting system of the Federal Bureau of Investigation, Sexual Assault means any sexual act directed against another person, without the Consent of the Victim, including instances where the Victim is incapable of giving Consent; also unlawful sexual intercourse, including the following:
1. Rape: Any 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 person, without the Consent.
2. Sodomy: 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 their age or because of their temporary or permanent mental or physical incapacity.
3. Sexual Assault with an Object: To use 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 their age or because of their temporary or permanent mental or physical incapacity.
4. Fondling: 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 their age or because of their temporary or permanent mental or physical incapacity.
5. Incest: Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by Utah law. See Utah Code § 76-7-102.
6. Statutory Rape: Nonforcible sexual intercourse with a person who is under Utah’s statutory age of Consent. See Utah Code § 76-5-401 et seq.
Sexual Harassment: Conduct on the basis of sex that satisfies one or more of the following: (1) An employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct; (2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to University Education Program or Activity; or (3) “Sexual Assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “Dating Violence” as defined in 34 U.S.C. 12291(a)(10), “Domestic Violence” as defined in 34 U.S.C. 12291(a)(8), or “Stalking” as defined in 34 U.S.C. 12291(a)(30).
Stalking: As defined at 34 U.S.C. 12291(a)(30), Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.
1. Course of conduct means two or more acts, including, but not limited to acts in which the Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
2. Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
3. Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.
4. In analyzing causation, the extent to which the course of conduct could be expected to cause fear for safety or substantial emotional distress, investigators and hearing officers/panels consider contextual indicators of the Respondent’s awareness and understanding that their conduct could have the effect of causing fear or substantial emotional distress, such that it may be fairly asserted the Respondent was menacing the Complainant.
Subordinate Employee: See 91ɬ�� Policy 5.63.
Subordinate Students: See 91ɬ�� Policy 5.63.
Supervisors: All University employees with authority in a particular context to enforce rule, law, or policy.
Supportive Measures: Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to the University’s Education Program or Activity without unreasonably burdening the other Party, including measures designed to protect the safety of all Parties or the University’s educational environment, or deter Sexual Harassment. Supportive Measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the Parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The University must maintain as confidential any Supportive Measures provided to the Complainant or Respondent, to the extent that maintaining such confidentiality would not impair the ability of the University to provide the Supportive Measures. The Title IX Coordinator is responsible for coordinating the effective implementation of Supportive Measures.
Title IX Coordinator: The University must designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under Title 34 of the Code of Federal Regulations, part 106, which employee must be referred to as the “Title IX Coordinator.”
University Community Members: All persons employed by or affiliated with the University in any way and persons participating in any University program or activity, including but not limited to trustees, advisory board members, administrators, faculty, staff, students, independent contractors, volunteers, and guests or visitors to any University campus or any property owned or leased by the University.

IV. POLICY

Scope

This Policy applies to all employees of the University and any persons participating, or attempting to participate, in any University program or activity. This Policy also covers conduct that occurs on University property, in University-sponsored programs regardless of location, in the context of University employment, and conduct regardless of location when it is directly related to (e.g., part of the same sequence of events) conduct that falls under one of the other categories listed in this paragraph.

Additionally, this Policy applies to employees regardless of location when the reported Prohibited Conduct is directed by a University employee-Respondent towards a Subordinate Employee or Subordinate Student or such other employee or student whom the Respondent has the ability to affect salary, benefits, and/or working conditions. An employee is acting within the context of University employment when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the University.

The University may address sexual misconduct that occurs outside of the University’s educational program and activity or during University-sponsored travel abroad if doing so would be consistent with the off-campus jurisdiction established by 91ɬ�� Policy 11.2 Code of Conduct when the Respondent is a student.

If jurisdictional factors specified in the Student Code of Conduct indicate University response is warranted and feasible and the Complainant has filed a formal complaint, the University will use the grievance procedures outlined in this Policy to resolve the complaint even though the complaint must be dismissed under Title IX. A dismissal under Title IX does not mean the University cannot act on a complaint of sexual misconduct.

To the extent that any other University policies address Sexual Harassment or Retaliation, as defined in this Policy, this Policy and its procedures govern.
Prohibited Conduct
1. Sexual Harassment and Retaliation Prohibited
  
  The University does not discriminate on the basis of sex in the education programs or activities that it operates, as required by Title IX and 34 C.F.R. § 106. The requirement not to discriminate in education programs or activities extends to admission and employment. Inquiries about the application of Title IX and its regulations to University programs or activities may be referred to the Title IX Coordinator.
  
  The University prohibits Sexual Harassment and Retaliation as defined in this Policy. Violations of this Policy include but are not limited to acts or attempts of dating and relationship violence; Domestic Violence; Sexual Harassment; Sexual Assault (including nonconsensual sexual contact or nonconsensual sexual intercourse); sexual exploitation (including engaging in sexual trafficking); and Stalking.
2. Consent: All participants in the sexual activity are responsible for ensuring that they have the Consent of all involved to engage in sexual activity. Any individual who engages in sexual activity without receiving clear, knowing, and voluntary Consent, or in which one of the Parties withdraws Consent at any point but is forced to participate, has violated this Policy. Sexual activity with someone deemed unable to grant clear, knowing, and voluntary Consent constitutes a violation of this Policy. This includes, but is not limited to, individuals who are:
  1. Mentally and/or physically incapacitated for any reason (such as by mental or physical disability; lack of sleep; alcohol; illegal, date-Rape, or prescription drug use; unconsciousness; blackout; or involuntary physical restraint);
  2. Under the age of 18; or
  3. Forced to give Consent in any way, including but not limited to by coercion,
  4. intimidation, duress, deception, threats, implied threats, and/or physical force.
  5. Consent to any one form of sexual activity does not automatically imply Consent to any other forms of sexual activity. Past Consent to sexual activity does not imply ongoing future Consent. The current or past existence of a relationship does not imply Consent. Whether an individual has taken advantage of a position of authority over an Alleged Victim may be a factor in determining Consent or coercion.
3. Retaliation Prohibited: Neither the University nor any member of the University community may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this Policy, or because the 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.
  1. Intimidation, threats, coercion, or Discrimination, including charges against an individual for Policy violations that do not involve sex Discrimination or Sexual Harassment, but arise out of the same facts or circumstances as a report or Formal Complaint of Sexual Harassment, for the purpose of interfering with any right or privilege secured by Title IX or this part, constitutes Retaliation.
  2. Any retaliatory threat or act of violence against Victims or witnesses of sexual violence, moreover, is a third-degree felony under Utah Code § 53B-28-304 and may be subject to criminal prosecution.
  3. Complaints alleging Retaliation may be filed according to the grievance procedures for sex Discrimination under this Policy.
4. Nothing in this Policy shall be interpreted as diminishing any Party’s rights protected under the United States Constitution or employee rights under Title VII of the Civil Rights Act of 1964 to be free from Discrimination on the basis of race, color, religion, sex, and national origin.
Notification
1. The University must notify applicants for admission or employment, students, employees, of:
  1. The name or title, office address, electronic mail address, and telephone number of the employee designated as the Title IX Coordinator.
  2. The nondiscrimination policy statement contained in Section IV of this Policy, the University’s grievance procedures and grievance process, including how to report or file a complaint of sex Discrimination, how to report or file a Formal Complaint of Sexual Harassment, and how the University will respond.
  3. The University must prominently display the contact information and Policy statement described in Section IV.B.2. on its website and in each handbook or catalog that it makes available to applicants for admission and employment, students, employees, or all unions or professional organizations holding collective bargaining or professional agreements with the University.
Reporting
1. Any person may report Sexual Harassment (whether or not the person reporting is the person alleged to be the Victim of conduct that could constitute sex Discrimination or Sexual Harassment), to the Title IX Coordinator using any of the following methods:
  1. In person at University Campus Services Building, Room 101, Cedar City, UT 84720 (8:00 AM – 5:00 PM business hours only)
  2. By mail at 351 W. University Boulevard, Cedar City, UT 84720 (anytime);
  3. By telephone at 435-586-5419 (anytime);
  4. By electronic mail: Title9@suu.edu (anytime);
  5. Via the reporting link at www.suu.edu/titleix; or
  6. By any other means that results in the Title IX Coordinator receiving the person’s oral or written report.
2. Who Must Report and When: Employees whose knowledge is imputed to the University must report alleged Sexual Harassment that they observe, learn about, or reasonably suspect has occurred. This includes 91ɬ�� employees who are Administrators and/or Supervisors, as further described:
  1. For this purposes of this Policy, Supervisors are all employees with authority in a particular context to enforce law, rule, or policy. Supervisors must report only if the alleged conduct occurs in the context over which they supervise or if the alleged conduct occurs or is reported within the context in which they have authority to enforce laws, rules, or policy.
  2. Administrators must report alleged Sexual Harassment regardless of the context of the conduct, so long as the conduct is within the Jurisdiction set out in this Policy.
  3. Other Regular staff employees who have authority over or within a particular office or area that is intended to directly serve students (such as those in Student Affairs, International Affairs, and similar offices) also must report alleged Sexual Harassment that students (or others on behalf of students) share with the regular staff employee when such alleged conduct is within the Jurisdiction set out in this Policy.
  4. Report obligations apply even if the allegations are about the conduct, decisions, or the like of the employee who is required to report.
3. Who May Report: All other faculty, staff, and students who become aware of Sexual Harassment are encouraged to report such issues, with the Consent of the Alleged Victim, to the Title IX Coordinator.
4. Who May Not Report: Licensed mental health counselors and medical professionals working within the scope of their license, or designated advocates authorized by the Title IX Coordinator, generally may not report incidents of Sexual Harassment except with written Consent or in instances of imminent danger or when the Victim is a minor or vulnerable adult.
5. The University provides options for a person to provide a report anonymously using an online report form. Individuals who have already identified themselves to the Title IX Coordinator will not generally be able to proceed with anonymity if they are Complainant or Witness. Due process and fairness usually limit the ability of the University to allow for anonymous participation in the resolution process.
Confidentiality
1. The University must maintain as confidential any Supportive Measures provided to the Complainant or Respondent, to the extent that maintaining such confidentiality would not impair the University’s ability to provide the Supportive Measures.
2. The University must keep confidential the identity of any individual who has made a report or complaint of Sexual Harassment, any Complainant, any individual who has been reported to be the perpetrator of Sexual Harassment, any Respondent, and any witness, except as may be permitted by the federal Family Educational Rights and Privacy Act, its regulations, or as required by Utah Government Records and Management Act (GRAMA), the federal Health Information Portability and Accountability Act (HIPAA) or other law, or to carry out the purposes of Title IX, including the conduct of any investigation, hearing, or judicial proceeding arising under Title IX.
3. The University will protect confidential communications to designated University advocates authorized by the Title IX Coordinator, protected under the Utah Campus Advocate Confidentiality Amendments (Utah Code § 53B-28-101 et seq.), where disclosure is not required by applicable federal law, including Title IX, Title VII, or the Clery Act, or consented in writing.
Training

The University shall train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process on the definition of Sexual Harassment, the scope of the University’s Education Program or Activity, how to conduct an investigation and grievance process including live hearings, appeals, informal resolution processes, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
1. Training materials must not rely on sex stereotypes and must promote impartial investigations and adjudications of Formal Complaints of Sexual Harassment.
2. The University will train decision-makers how to determine issues of relevance of questions and evidence, including when questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, on evidentiary standards, and on live hearing procedures.
3. The University also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.
4. The University will provide training to the Title IX Coordinator(s), hearing officer(s), and other necessary Parties on all technology to be used in Live Hearings.
5. All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process must be made publicly available on the University’s website.
Recordkeeping
1. The Title IX Office must maintain the following records for a period of seven (7) years:
  1. Each Sexual Harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required by this policy, any disciplinary sanctions imposed on the Respondent, and any remedies provided to the Complainant designed to restore or preserve equal access to the University’s Education Program or Activity;
  2. Any appeal and the result;
  3. Any informal resolution and the result; and
  4. All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.
2. For each report to the Title IX Coordinator of Sexual Harassment in a University Education Program or Activity against a person in the United States, the University must create, and maintain for a period of seven (7) years, records of any actions, including any Supportive Measures, taken in response to a report or Formal Complaint of Sexual Harassment. In each instance, the University must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to the University’s Education Program or Activity. If the University does not provide a Complainant with Supportive Measures, then the Title IX Office must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the University in the future from providing additional explanations or detailing additional measures taken.
Preliminary Review of Reports and Formal Complaints
1. Scope and Applicability of These Procedures: All reports and Formal Complaints of Sexual Harassment or Retaliation, as defined in this Policy, are subject to the procedures set forth in this section.
2. Preliminary Review of Reports of Sexual Harassment:
  1. General Response: Upon receiving a report of Sexual Harassment, the Title IX Coordinator shall promptly contact the Complainant to (1) discuss the availability of Supportive Measures, (2) consider the Complainant’s wishes with respect to Supportive Measures, (3) inform the Complainant of the availability of Supportive Measures with or without the filing of a Formal Complaint, and (4) explain the process for initiating a Formal Complaint through the use of an Intake Form.
    1. The University distinguishes between the terms Disclosure, Report, and Complaint.
      1. Disclosures are communications directly from a person who has allegedly experienced or has been subjected to prohibited conduct under this policy (i.e., a Complainant).
      2. Reports are communications from a person that is knowledgeable about allegations of sexual misconduct but has not experienced or been subjected to it. (i.e., a Reporter).
      3. Complaints are written descriptions of alleged misconduct that are prepared by the Title IX Coordinator, or designee, based on information that a Complainant shares through an intake form. Complainants confirm and approve the content of complaints but do not prepare them.
      4. Title IX Office operates with the presumption that individuals that share information with it will not be permitted to participate anonymously. Before information is shared, a person may request anonymity but the presumption is against it. Once information is shared by an identifiable person, anonymity will not be allowed. The Title IX Coordinator and Title IX staff members will maintain confidentiality of individuals sharing information. Confidentiality means only those individuals that need to know the identity of a Reporter or Complainant will receive that information. Generally, a person accused of misconduct (i.e., the Respondent) may know the identity of the Complainant or Reporter to the extent it is relevant to the allegations against the Respondent.
      5. The University maintains online reporting forms that allow an individual to withhold their identity thereby establishing anonymity. Individuals who do so limit the ability of the University to reply or follow up with such individuals. Anonymous reports are reviewed for actionability described in the next section, and may be addressed in a reasonable manner by the Director in their sole discretion and professional judgment.
    2. Submission of Information/Allegations and Review for Actionability
      1. When the person who shares information with the Title IX Office is the same person who has been subjected to alleged prohibited conduct, and this Disclosure potentially constitutes sexual misconduct, they are provided an intake form to complete. Not all reported misconduct is actionable under this Policy as sexual misconduct.
      2. When the person who shares information with the Title IX Office is not the same person(s) who has been subjected to alleged prohibited conduct, and the reported misconduct potentially constitutes sexual misconduct, the Title IX Coordinator will send an outreach letter to the person who has been subjected to alleged prohibited conduct as identified by the reporter. The outreach letter will include an Intake Form with instructions to complete and return it to the Title IX Office.
      3. If the Title IX Coordinator determines the shared information does not violate this Policy, even if the reported conduct were deemed true, the Director will provide an explanation to include in the file and the person who shared the information may be notified no further action will be taken on the report. If the nature of the information warrants a response by another University department or external agency, the report or disclosure will be referred to the appropriate department or agency. Referrals may include reference to other University policies that pertain to the subject matter of the disclosure or report. If the person(s) reportedly subjected to the conduct is unaware of a report that names them but does not describe misconduct that violates this Policy, the Title IX Coordinator generally will note the rationale in the case file without notifying the Respondent.
    3. Evaluation of Intake Forms and Consultation with Complainants
      1. If the Complainant provides a completed intake form, a consultation meeting will be scheduled to evaluate the thoroughness and clarity of the information contained in the form. During the meeting the Title IX Coordinator, or designee, will also discuss preferred options for resolving the allegations and the availability of supportive measures.
      2. If a Complainant does not provide a completed intake form, the matter will be closed with the disclosure or report recorded in the Title IX case management database UNLESS the Title IX Coordinator decides to bypass the intake form and initiate a Complaint on behalf of the University.
      3. If needed as part of the intake form evaluation, as determined by the Title IX Coordinator, or designee, the Title IX Coordinator may review any documents or records that are provided by the Complainant or that may be accessible. Similarly, the Title IX Coordinator, or designee, may speak to University employees that may be custodians of records, or individuals that possess contextual information about facts or conditions that are presented or implicated in the intake form.
      4. When there are multiple Complainants that have completed intake forms and the allegations arise out of the same facts or circumstances the Title IX Coordinator may consolidate the allegations into a single case file and prepare a single Complaint.
    4. Preparation of Complaints and Corresponding Notices
      1. After the Complainant has participated in a consultation meeting, the Title IX Coordinator, or designee, will draft a proposed Complaint and Notices of Allegations. The draft complaint and draft notices will be shared with the Complainant for their review and confirmation that the complaint and notices are accurate and consistent with the information they supplied on the Intake Form and during the consultation.
      2. Once the Complainant has approved the Complaint and Notice of Allegations or has been given adequate time to review and approve but did not respond, the Complaint and Notices will be sent to the Complainant and Respondent.
      3. Some information in the Complaint may be redacted for an articulable purpose that will be included in the Notice of Allegations.
      4. Notices that identify informal resolution as the preferred method will also include a statement that makes clear the Respondent must voluntarily elect to pursue informal resolution, and that without mutual, ongoing agreement informal resolution will be terminated and formal review will commence or resume.
      5. A formal complaint will comport with all the requirements specified in Section IV.H.4 below.
  2. Emergency Removal: The University may remove a Respondent from the University’s education programs or activities on an emergency basis, provided that the appropriate officials undertake an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student, employee, or other individual arising from the allegations of Sexual Harassment justifies removal, and provides the Respondent with notice and an opportunity to challenge the decision immediately following the removal.
    1. See 91ɬ�� Policy 5.0.
  3. Non-student Employee Leave: A non-student employee Respondent may be placed on administrative leave.
  4. The Title IX Coordinator must further assess the reported conduct for any Clery obligations, including issuance of a timely warning, and report to campus or local law enforcement when necessary.
3. Grievance Process General Principles:
  1. Complainants, Respondents, and witnesses shall be treated equitably and with respect throughout the grievance proceedings.
    1. The University will evaluate all relevant evidence—both inculpatory and exculpatory—objectively and determine credibility without respect to a person’s status as Complainant, Respondent, or witness.
  2. The University seeks to resolve complaints that are investigated and submitted
    for hearing within 150 days, and whenever possible, to complete them in less
    time. Deadlines and timeframes provided in this Policy may be extended for good cause with written notice to the Parties and the reasons for the extension. Good cause may include considerations such as the absence of a Party, a Party’s advisor, or witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
    1. Parties may submit a request for a temporary delay to the Title IX Coordinator. Any request for temporary delay or limited extension should include a good cause statement and the reason(s) for the request. If no good cause exists, Title IX Coordinator will deny the requesting Party’s request in writing.
  3. Any person designated as a Title IX Coordinator, investigator, or decision maker shall be free of conflict of interest or bias for or against Complainants or Respondents generally or individually.
  4. Respondents, Complainants, and witnesses shall not knowingly make materially false statements or knowingly submit materially false information during the grievance process. However, a determination regarding responsibility alone is not sufficient to conclude that any individual proffered a material falsehood.
  5. Complainants and Respondents shall have Supportive Measures made available and be given the opportunity to request modifications necessary for physical and/or emotional safety.
    1. Complainants, Respondents, and other participants in the Title IX process may request accommodations necessary under the Americans with Disabilities Act (ADA) through the Title IX Coordinator, who will refer the request to the appropriate ADA coordinator and then implement approved accommodations.
4. Formal Complaint: A Formal Complaint is a document approved by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment or Retaliation. A Formal Complaint may be approved by a Complainant who is participating in or attempting to participate in an Education Program or Activity of the University at the time of approving the Formal Complaint.
  1. A Formal Complaint may be initiated by a Complainant in person, by mail, by electronic mail, via the reporting link on the 91ɬ�� Title IX webpage, or by using the contact information posted for the Title IX Coordinator in Section IV.D.1. above. Complaints are prepared according to the process outlined in Section IV.H.2.a.
  2. The Formal Complaint shall contain written notice of the allegations of Sexual Harassment or Retaliation, including a concise statement describing the incident, when and where the misconduct occurred, why the Complainant believes it violates University policy, and a proposed resolution. The Complainant shall be instructed to provide and preserve all corroborating or potentially relevant evidence in any format, list potential witness names, and sign the statement. From this information, the Title IX Coordinator shall prepare a Notice of Investigation as defined in Section IV.J.1.b.
  3. By approving a Formal Complaint, the Complainant is giving Consent for the Title IX Coordinator, designated deputy coordinators, and/or investigators to discuss the information provided with other persons who may have relevant Factual Knowledge of the circumstances of the complaint, and is authorizing the collection and examination of all records and other documentation relevant to the complaint.
  4. The Title IX Coordinator may independently initiate a Formal Complaint and investigation if necessary to provide safe and nondiscriminatory educational programs and activities, unless doing so would be clearly unreasonable in light of the known circumstances, The Title IX Coordinator may consider a variety of factors, including a pattern of alleged misconduct by a particular Respondent, in deciding whether to sign a Formal Complaint. When the Title IX Coordinator signs a Formal Complaint, the Title IX Coordinator is not a Complainant or otherwise a Party under this policy and must remain free of bias or conflict of interest with respect to any Party. In this situation, the Complainant is treated as a Party, though their right to not participate is protected.
5. Consolidation of Formal Complaints: The University 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.
6. Dismissal of the Formal Complaint:
  1. The University must investigate all allegations in a Formal Complaint unless the conduct alleged in the Formal Complaint:
    1. Would not constitute Sexual Harassment as defined in this Policy even if proved;
    2. Did not occur in the University’s education programs or activities; or
    3. Did not occur against a person in the United States.
  2. If the conduct falls within the criteria outlined above, the University must dismiss the Formal Complaint with regard to that conduct for the purposes of Title IX; such dismissal does not preclude investigation or action under another provision of the University code of conduct or Policy.
  3. The University may dismiss the Formal Complaint or any allegations therein, if at any time during the investigation or hearing:
    1. A Complainant notifies the Title IX Coordinator in writing that the Complainant wants to withdraw the Formal Complaint or any allegations therein;
    2. The Respondent is no longer enrolled or employed by the University; or
    3. Specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint.
  4. Upon a required or permitted dismissal of the Formal Complaint, the Title IX Coordinator shall promptly send written notice of the dismissal and the reason(s) therefore simultaneously to the Parties.
  5. Any Party may appeal the dismissal of a Formal Complaint in accordance with Section IV.P. of this Policy.
Informal Resolutions
1. The University may offer an informal resolution process only after a Formal Complaint is filed. Informal resolution may include a limited inquiry into the facts, but typically does not include an investigation. Informal resolution should be flexible enough to meet the needs of each case, and may include mediating an agreement between the Parties, separating the Parties, referring the Parties to counseling programs, conducting targeted preventive educational and training programs, or providing remedies for the individual harmed by the offense.
2. Participation in the informal resolution process is voluntary; the University may not require either Party to engage in informal resolution as a condition of enrollment or employment or enjoyment of any other right, waiver of the right to investigation and adjudication of Formal Complaints of Sexual Harassment.
  1. The University is not obligated to offer or facilitate informal resolutions. Because each case is different, the Title IX Coordinator shall determine whether a Formal Complaint of Sexual Harassment, Discrimination, or Retaliation is appropriate for informal resolution.
  2. At any time before reaching a determination regarding responsibility the Title IX Office may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the Title IX Office:
    1. Provides to the Parties a written notice disclosing: the allegations, the requirements the informal resolution process including the circumstances under which it precludes the Parties from resuming a Formal Complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any Party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the Formal Complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;
    2. Obtains the Parties’ voluntary, written Consent to the informal resolution process; and
    3. Does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.
    4. The University endeavors to conclude informal resolution promptly and shall keep a written record of all informal resolution efforts in accordance with Section IV.G. of this Policy.
3. After concluding informal resolution of a complaint, the Title IX Coordinator shall notify the Complainant and Respondent of the resolution that was agreed upon. The parties’ agreement to a resolution at the conclusion of the informal resolution process precludes the parties from initiating or resuming an investigation and/or hearing arising from the same allegations that disposed of in the informal resolution agreement. The agreement cannot be rescinded, nullified, or cancelled without a determination deceit or fraud by an impartial Responsible University Administrator.
Formal Investigations
1. If a Complainant files a formal complaint or the Title IX Coordinator signs a formal complaint, the University shall conduct a thorough, impartial investigation by interviewing witnesses, collecting documentary evidence, and preparing a written report of findings. The purpose of the investigation is to establish whether there is a reasonable basis, based on a preponderance of the evidence, to conclude the respondent violated this Policy. The University reserves the right to engage an outside investigator to conduct the investigation. Investigations under this Policy shall incorporate the following standards:
  1. The burden of proof and the burden of gathering evidence sufficient to reach a determination rests on the University and not on the Parties.
    1. The 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 University obtains the Party’s voluntary, written Consent to do so for a grievance process under this Policy.
    2. The University shall presume the Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
    3. The University will not restrict the ability of either Party to discuss the allegations under investigation or to gather and present relevant evidence. This section notwithstanding,
      1. Retaliation is prohibited. Attempts to alter or prevent a witness’s or Party’s testimony are forms of prohibited Retaliation.
      2. Parties may be directed to cease communications with one another (i.e., a “no contact order”).
      3. Parties’ communications remain subject to state laws protecting against defamation and tortious invasions of privacy, such as intrusion upon seclusion, publication of private facts, and false light claims.
    4. The University shall provide an equal opportunity for the Parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
    5. Investigators or others shall not question the Complainant, or otherwise seek evidence, regarding the Complainant’s sexual predisposition or prior sexual conduct with anyone other than the Respondent(s).
    6. Parties may choose to be accompanied by an advisor of their choice, who may be, but is not required to be, an attorney, to any related meeting or proceeding. The advisor may not disrupt the meetings or other proceedings or speak on behalf of the Party. Generally, the advisor is limited to listening and quietly conferring with the Party. If an advisor is disruptive even after warning, the investigator may exclude them from meetings.
    7. At any time before or during the investigation, the investigator may recommend that the University provide support measures for the Parties or witnesses. Any individual’s intentional interference with support measures may be considered retaliatory and a separate violation of this Policy.
    8. If either Party fails to participate in the investigation, the investigator(s) may make findings without the response of that Party, potentially leading to an unfavorable outcome for that Party, or the Title IX Coordinator may dismiss the case according to Section IV.H.6. of this Policy.
    9. The University will provide to a Party whose participation is expected or invited, 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.
    10. The University will provide each Party with equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including all inculpatory or exculpatory evidence, whether relied upon or not in reaching findings, so that each Party can meaningfully respond to the evidence prior to the conclusion of the investigation.
      
      The Title IX Coordinator shall appoint the investigator(s), except in cases where the Title IX Coordinator or others involved in the investigation have a conflict of interest, in which case the Vice President for Finance and Administration shall select internal or external impartial investigator(s).
  2. Upon initiating an investigation, the University shall provide the Parties with a copy of the Formal Complaint, a notice of investigation, and a copy of this Policy. A notice of investigation shall include statements informing the Parties that the Respondent is presumed not responsible for the alleged conduct and that a determination of responsibility is made at the conclusion of the grievance process; that the Parties may have an advisor of their choice, who may be, but is not required to be, an attorney, and who may inspect and review evidence; and inform the Parties of any provision in the University’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during a grievance process.
  3. If, at any point during the investigation, the University determines a need to investigate allegations not included in the Formal Complaint, the University must provide notice of the additional allegations to the Parties, if known.
  4. Upon conclusion of the investigative fact-finding, approximately 45 days, the investigator(s) shall prepare a draft report that summarizes the Complainant’s allegations and Respondent’s responses, summarizes the relevant evidence and the material witnesses supporting or opposing the allegation(s), and includes preliminary findings.
  5. Before the report is finalized, investigators will give Complainant and Respondent and their advisors equal opportunity to review any evidence obtained as part of the investigation that is directly related to the allegations in the Formal Complaint, including evidence upon which the University does not intend to rely in reaching a determination of responsibility, whether inculpatory or exculpatory, in electronic or hard copy format.
  6. The Parties may submit a written response or information to the investigator within 10 business days of the date of the notice of the opportunity to review the draft report and evidence. This is the Parties’ final opportunity to submit any additional information or witnesses. In the absence of good cause, investigators shall not consider information discoverable through the exercise of due diligence that is not provided to the investigator(s) at this juncture.
    1. Investigator(s) shall consider any written response, information, or evidence provided by the Parties.
  7. The investigator(s) shall prepare a final investigation report that contains a statement of the allegations, the positions/responses of the Parties, a summary of relevant evidence and material witnesses the investigator(s) relied on, and any findings of fact.
  8. The Title IX Coordinator or designee will review each final investigation report or summary before it is finalized to ensure compliance with this Policy.
  9. The final report shall be provided to the Parties and their advisors, if any, in an electronic or hard copy format, at least 10 days prior to any hearing under this Policy, for their review and written response.
  10. Nothing in this procedure shall be interpreted to alter the status of otherwise at-will employees.
Live Hearings

Upon receipt of the Final Investigation Report, the Title IX Coordinator will have 10 business days to appoint a Hearing Officer or Hearing Panel.

Upon appointing a Hearing Officer or Hearing Panel (“hearing officer”), the Title IX Coordinator will issue to the Parties and the Parties’ advisors, in either an electronic or hard copy format, a Notice of Hearing containing dates, deadlines, and/or requirements appropriate for the orderly administration of the live hearing as determined by the hearing officer or panel assigned to the live hearing under this Policy. The Hearing Officer or Hearing Panel will be provided with at least 20 days to prepare and provide adequate time for the parties and advisors to prepare and adjust schedules.

The Notice of Hearing will contain a statement informing the Parties that the University must, upon either Party’s request, provide for a live hearing where the Parties are located in separate rooms with technology enabling the Hearing Officer and the Parties to simultaneously see and hear the Party or witnesses answering questions.
Required Disclosures

As outlined in Section IV.J.1.i., the Parties and the Parties’ advisors received in either an electronic or hardcopy format a copy of the Final Investigation Report and all evidence, exculpatory or inculpatory—whether or not the evidence was relied upon to reach the findings in the Final Investigation Report—related to the allegations in the Formal Complaint.
1. Disclosure of expert testimony. A Party shall disclose the identity of any person who may be used at hearing to present expert opinion evidence to the University and other Parties no later than five (5) days prior to the date of the Live Hearing.
  1. Unless otherwise stipulated, this disclosure shall be accompanied by a written report prepared and signed by the witness or Party. The report shall contain the subject matter on which the expert is expected to testify; the substance of the facts and opinions to which the expert is expected to testify; a summary of the grounds for each opinion; and the expert’s qualifications as an expert witness.
  2. A Party seeking to present the testimony of an expert witness at the Live Hearing shall certify that the individual providing the expert testimony is qualified to offer the opinions.
  3. The Hearing Officer may exclude expert testimony that is not relevant. At least seven (7) days before the hearing date, the University, Complainant, and Respondent must provide each other a list of witnesses and documents that they will be presenting to the hearing officer.
2. Parties may be accompanied to the Live Hearing by the advisor, who may be, but is not required to be, an attorney.
  1. The University will not limit the choice or presence of a Party’s advisor, but the Hearing Officer may limit an advisor’s participation if the advisor becomes unreasonably disruptive to the proceedings.
  2. If an attorney appears on behalf of a Party, notice served on the attorney is considered notice to the Party.
  3. Advisors may participate in the Live Hearing through asking the other Party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.
  4. Cross-examination at the live hearing must be conducted directly, orally, and in real time by a Party’s advisor and never by a Party personally.
  5. If a Party does not have an advisor present at the live hearing, the University must provide, without fee or charge to that Party, an advisor of the University’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that Party.
  6. The University is not a Party to the Live Hearing, but it shall be the University, not the Parties, that bears the burden of producing evidence through the investigative report to the Hearing Officer.
  7. The University must remain objective and impartial throughout the grievance process, including impartially presenting the investigative report to the Hearing Officer for determination.
  8. The standard of proof for determining responsibility is preponderance of the evidence.
Hearing Officer Responsibilities

The Hearing Officer cannot be the same person(s) as the Title IX Coordinator or the investigator(s). The Hearing Officer shall regulate the course of the live hearing to obtain full disclosure of relevant facts and to afford all Parties reasonable opportunity to present their positions.
1. On the Hearing Officer’s own motion or upon objection by a Party’s advisor, the Hearing officer:
  1. May exclude evidence that is irrelevant or unduly repetitious.
  2. Shall exclude irrelevant questions directed to a Party or witness. Before a Party or witness answers a cross-examination or other question, the Hearing Officer must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
  3. Shall exclude evidence privileged in the courts of Utah, unless the privilege at issues is specifically waived by the Parties.
  4. Shall exclude questions or evidence about the Complainant(s)’ sexual predisposition or prior sexual behavior as not relevant unless 1) questions or evidence of the Complainant(s)’ prior sexual behavior are offered to prove that someone other than Respondent(s) committed the conduct alleged by Complainant(s), or 2) questions or evidence concern specific incidents of the Complainant(s)’ prior sexual behavior with respect to Respondent(s) and are offered to prove Consent.
  5. May receive documentary evidence in the form of a copy or excerpt if the copy or excerpt contains all pertinent portions of the original document.
  6. The Hearing Officer may not exclude evidence solely because it is hearsay.
  7. The Hearing Officer shall afford the Parties’ advisors the opportunity to conduct cross examination.
    1. All relevant evidence, including statements made by a Party or witness subject to cross-examination, may be considered for the purpose of determining responsibility. The hearing panel, however, must not cannot draw an inference about the determination regarding responsibility based solely on a Party’s or witness’s absence from the Live Hearing or refusal to answer cross-examination or other questions. Moreover, the hearing panel may not render a determination of responsibility against the Respondent, when such adverse determination depends on a Complainant or witness credibility, without first providing the Respondent an opportunity at a Live Hearing to ask relevant questions (through their advisor) of the Complainant and any adverse witnesses.
  8. The University shall record the hearing and provide a copy or transcript of the hearing to the Parties for inspection and review.
  9. The hearing shall be conducted with all Parties physically present in the same geographical location or, upon request by either Party or the Hearing Officer, any or all Parties, witnesses, and other participants may appear at the Live Hearing virtually, with technology enabling participants simultaneously to see and hear each other.
    1. Nothing in this section precludes the Hearing Officer from taking appropriate measures necessary to preserve the integrity of the hearing.
    2. After the close of the Live Hearing, the Hearing Officer or Hearing Panel will issue a Written Determination regarding responsibility.
Written Determination

The Hearing Officer will provide the Written Determination to the Title IX Coordinator within 20 days after the Live Hearing concludes.
1. The written determination must include:
  1. Identification of the allegations potentially constituting Sexual Harassment or Retaliation as defined in this Policy.
  2. A description of the procedural steps taken from the receipt of the Formal Complaint through the determination including any notifications to the Parties, interviews with the Parties and witnesses, site visits, methods used to gather evidence, and hearings held.
  3. Findings of fact supporting the determination.
  4. Conclusions regarding the application of the University Policy to the facts.
  5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, and recommended disciplinary sanctions for the University to impose on the Respondent, if warranted, and a recommendation of whether the University will provide remedies designed to restore and preserve equal access to the University’s Education Program or Activity to the Complainant.
  6. The University’s procedures and permissible bases for the Complainant and Respondent to appeal.
2. The Hearing Officer shall provide the Written Determination to the Title IX Coordinator, the Title IX Coordinator shall then provide the Written Determination to the responsible University official for a decision regarding Sanctions, per Section IV.O.

Responsible Official Chart
Respondent's Affiliation with University	Responsible University Administrator
Student	Dean of Students or designee
Faculty member	Director of Human Resources (in consultation with the Provost or designee)
Executive employee or direct report of a Vice President	Vice President of the relevant department
Administration or staff member who is not an executive employee and does not report directly to a Vice President	The employee's director supervisor (in consultation with Human Resources)
Vice President or direct report of University President	University President
Contractor, vendor, or visitor	Vice President of Finance and Administration

1. The Responsible University Administrator shall have seven (7) days from the date of receipt of the Written Determination to provide the Title IX Coordinator with the Written Determination, a decision of the disciplinary sanctions the University will impose on the Respondent, and a decision of whether the University will provide remedies designed to restore and preserve equal access to the University’s Education Program or Activity to the Complainant.
2. Within 30 days of the Live Hearing, the Title IX Coordinator will provide the Written Determination with the decision of sanctions and remedies to the Parties and their advisors simultaneously.
3. The determination regarding responsibility and sanctions becomes final either on the date that the recipient provides the Parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
4. Nothing in this procedure shall be interpreted to alter the status of otherwise at-will employees.
Sanctions and Remedies

Upon receiving a determination of responsibility either in a Written Determination or as a result of an informal resolution, the responsible University administrator shall promptly determine the appropriate sanctions and remedies based on the information provided, including offering remedies to the Complainant and/or University community, implementing changes in programs and activities, providing training, and imposing any disciplinary sanctions. In consultation with the Title IX Coordinator and the Office of General Counsel, (and with Human Resources when the Respondent is an employee) the responsible University administrator shall ensure any proposed sanctions and remedies are appropriate to end the prohibited conduct, to prevent further violation of this policy, and remedy the effects of any violation. In determining the appropriate sanction(s), the responsible University administrator shall be guided by the following considerations:
- The severity, persistence, or pervasiveness of the misconduct;
- The nature of violence in the misconduct and/or use of weapons, drugs, or alcohol (if applicable);
- The impact of the misconduct on the Complainant;
- The impact or implications of the misconduct on the University community;
- Prior misconduct by the Respondent, including the Respondent’s relevant prior disciplinary history;
- Whether the Respondent has accepted responsibility for the misconduct;
- The maintenance of a safe, nondiscriminatory, and respectful working and learning environment; and
- Any other mitigating, aggravating, or compelling factors.
1. Respondents who are found to have violated this Policy may be subject to the following sanctions:
  1. Faculty/Staff: Possible sanctions against faculty and non-faculty employees for violations of this Policy include verbal counseling, written warning, probation, reassignment, transfer, demotion, reduction in pay, suspension, termination of employment, and an order of no trespassing on campus and/or in University programs, services, and activities.
  2. Students: Possible sanctions against students for violations of this Policy include fines, restitution, interim suspension, suspension, suspension withheld, warning, probation, expulsion, withholding diploma, revocation of certificate or degree, discretionary sanction, organizational sanction, and notation on the student’s transcript consistent with the Family Educational Rights and Privacy Act.
  3. Vendors/Contractors/Visitors: Possible sanctions against vendors, contractors or visitors to campus who are neither students nor employees of the University include banning the individuals from all or part(s) of the University and/or ending business relationships with the vendors and contractors.
2. Amnesty: Any student who makes a good faith report of Sexual Harassment or sexual violence, as defined at Utah Code § 53B-28-302, that was directed at them or another person will not be sanctioned by the University for a violation related to the use of drugs or alcohol that the University discovers because of the report.
3. The responsible University administrator shall send any proposed sanctions and remedies—subject to a final determination on the alleged violations--in writing to the Complainant, Respondent, Title IX Coordinator, and Hearing Officer. However, the responsible University administrator, in consultation with the Title IX Coordinator, may choose not to disclose to the Complainant the sanctions, and shall not disclose to the Complainant the discipline imposed on a Respondent student, except under the following circumstances:
  1. The discipline directly affects the other Party, such as when the Respondent student is ordered to stay away from the other Party, is transferred to another job site, worksite, class, or is suspended or dismissed from the University; or
  2. The Complainant alleged Sexual Harassment involving a crime of violence or a non-forcible sex offense; or
  3. The Respondent student gives their written permission to disclose the discipline.
4. The University complies with all applicable reporting requirements and reserves the right to report findings of criminal misconduct to the police.
Appeals

Any Party may appeal a decision regarding responsibility or from the dismissal of any portion of a Formal Complaint for any of the following reasons:
1. A procedural irregularity that affected the outcome of the hearing.
2. New evidence that was not reasonably available at the time of the decision or dismissal.
3. The Title IX Coordinator, the investigators, or the hearing officer had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome.
4. If the Respondent has been determined responsible for Sexual Harassment, any Party may simultaneously appeal the decision regarding sanctions for any the following reasons:
  1. The decision-maker has a conflict of interest or bias for or against Complainants or Respondents generally or the individual complaint or Respondent that affected the outcome.
  2. The sanction is clearly unreasonable in light of the known circumstances.
5. The Title IX Coordinator must receive written notice of a Party’s intent to appeal within 10 days after receipt of the Written Determination.
6. Upon receiving an appeal, the Title IX Coordinator must notify the other Party within five (5) days.
7. The Title IX Coordinator must notify both Parties of who will determine the appeal and that person’s contact information within five (5) days of receiving the appeal.
8. The person determining the appeal (“appeal officer”) is the cognizant Vice President or their designee. When the Vice President is the Deciding Administrator, the President will be the appeal officer. The appeal officer must be free of any bias or conflict of interest with respect to any Party.
9. The appeal officer must not be anyone involved in the grievance process before the appeal.
10. The Parties may submit a written statement to the appeal officer supporting or opposing the decision of the hearing officer.
  1. The appeal officer must receive any written statements within 10 days of the Title IX Coordinator sending the notice to the Parties.
11. The appeal officer may review all written statements, reports, evidence, and recordings and make a written decision.
12. The appeal officer’s written report, completed within 20 days, may affirm or modify the hearing officer’s decision, remand the decision to the hearing officer, order a new investigation or overturn the decision.
13. The appeal officer will simultaneously issue a report to both Parties detailing the decision and the rationale for the decision.
14. The appeal officer’s decision is final.

V. RELEVANT FORMS/LINKS

N/A

VI. QUESTIONS/RESPONSIBLE OFFICE

The responsible office for this Policy is the University President. Questions about this Policy should be directed to the Director of the Office of Equal Opportunity.

VII. POLICY ADOPTION AND AMENDMENT DATES

Date Approved: March 24, 2017

Amended: August 7, 2020; October 18, 2021 (temporary authorization); December 2, 2021 (permanent authorization); September 23, 2022; April 25, 2024

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POLICY #5.60 SUBJECT: Sexual Misconduct