WIXLIB

Example of fondlingLaw Student and Music Student are“making out” for the first time. LawStudent begins to “feel up” MusicStudent’s chest from outside theclothing. Music Student pushes LawStudent’s hands away. After morekissing, Law Student places their handsup Music Student’s shirt and touchesMusic Student’s bare chest. MusicStudent responds: “I said no. Stop.” 2022 Husch Blackwell LLP

What is incest?Sexual intercourse between persons who arerelated to each other within the degreeswherein marriage is prohibited by law. 2022 Husch Blackwell LLP

What is domestic violence?Felony or misdemeanor crimes of violence committed bya current or former spouse or intimate partner of thevictim, by a person with whom the victim shares a childin common, by a person who is cohabitating with or hascohabitated with the victim as a spouse or intimatepartner, by a person similarly situated to a spouse of thevictim under the domestic or family violence laws of thestate, or by any other person against an adult or youthvictim who is protected from that person’s acts under thedomestic or family violence laws of the state. 2022 Husch Blackwell LLP

What is dating violence?“Dating Violence” is violence committed by a person: Who is or has been in a social relationship of a romanticor intimate nature with the victim; andWhere the existence of such a relationship will bedetermined based on consideration of the followingfactors: The length of the relationship; The type of relationship; and The frequency of interaction between the personsinvolved in the relationship. 2022 Husch Blackwell LLP

Example of dating violenceTwo graduate students have been datingfor several months. One walks in on theother making out with a coworker on thesofa in the coworker’s on-campus office.The student who walked in loudly shoutsderogatory expletives at the other,threatens to “kill you both,” andforces/yanks the other graduate studentby the arm and off the sofa. 2022 Husch Blackwell LLP

What is stalking?Engaging in a course ofconduct directed at a specificperson that would cause areasonable person to: Fear for their safety orthe safety of others; or Suffer substantialemotional distress. 2022 Husch Blackwell LLP

Example of stalkingHousing employee breaks up with Facilitiesemployee. Facilities employee repeatedlyshows up at the Housing office crying andasking for Housing employee. Facilitiesemployee repeatedly instant messagesHousing employee during work to talk abouttheir relationship. Housing employee rebuffsFacilities employee. One night, Facilitiesemployee follows Housing employee home bycar from the institution’s parking lot,prompting Housing employee to call police. 2022 Husch Blackwell LLP

Does Title IX also prohibitretaliation?Yes – Title IX prohibits intimidation, threats, coercion,or discrimination against any individual for thepurpose of interfering with any right or privilegesecured by Title IX and its implementing regulations orbecause an individual has made a report or complaint,testified, assisted, participated in or refused toparticipate in any manner in an investigation,proceeding, or hearing under the institution’s policy. 2022 Husch Blackwell LLP

Example of retaliationA student reports that anothercommitted sexual assault.Believing that the reporter hasfiled false accusations, a thirdstudent—the roommate of therespondent—spray paintsderogatory terms on the reporter’scar. 2022 Husch Blackwell LLP

Example of Retaliation?A student reports that anothercommitted sexual assault.Respondent’s lawyer sends thecomplainant a letter stating thatthe report is false and that thecomplainant is committingdefamation. The letter demandsthe complainant retract the reportor respondent will sue. 2022 Husch Blackwell LLP

GroupScenarioOn-Campus Student and Online Student connect on Tinder. They meet in acampus parking lot where they take several shots of hard alcohol and antidepressants that On-Campus brought. The two students kiss in the car for30 minutes before driving to a local hotel where they have oral sex andintercourse without incident. The two students connect again a week laterand meet in On-Campus’s dorm room. At Online’s request, On-Campussupplies alcohol and anti-depressants. The two engage in mutual oral sexand mutual digital penetration. Online then gets on top of On-Campus andinitiates intercourse. However, before the act is complete, Online passesout and slumps over. After some time, On-Campus carries Online to OnCampus’s car in order to drive Online back to Online’s off-campusapartment. Online comes-to in the car and becomes violent, striking OnCampus, throwing items at On-Campus, and demanding to know what OnCampus did “while I was out.” The next day, Online files a formalcomplaint, accusing On-Campus of sexual assault by incapacitation withrespect to both encounters. On-Campus files a counter-complaint allegingsexual assault and dating violence with respect to the second encounter.Online then files a counter-counter complaint accusing On-Campus ofretaliation by having brought a frivolous counter-complaint. 2022 Husch Blackwell LLP

Questions? 2022 Husch Blackwell LLP

Support Measuresand InterimRestrictions

How does an institution getnotice of sexual harassment?Sexual harassment responseis triggered when institutionhas “actual knowledge” ofpotential sexual harassment. 2022 Husch Blackwell LLP

What is “actual knowledge”? “Actual knowledge” occurs when An institutional official, with authority to takecorrective action Observes or receives a report Of sexual harassment occurring in theinstitution’s education programs and activities 2022 Husch Blackwell LLP

When do we reach out to thealleged victim? After institution has actual knowledge ofalleged sexual harassment, Title IXCoordinator must contact alleged victim Provide information about supportivemeasures, explain the grievance processand how to file a formal complaint, anddiscuss the alleged victim’s wishes 2022 Husch Blackwell LLP

What if we can’t identify thealleged victim from a report? Title IX Coordinator should oversee preliminaryinvestigation to determine identity of alleged victim If identity of alleged victim cannot be discernedafter reasonable inquiry, matter should bedocumented and consideration given as to whetherother policies (such as student code of conduct) areutilized 2022 Husch Blackwell LLP

Do we need a formalcomplaint? No. Not in order to contact the alleged victim andbegin support services The formal complaint is a specific written documentthat is required to commence the investigation andhearing process 2022 Husch Blackwell LLP

What are supportive measures? Non-disciplinary, non-punitivesupports and accommodationsdesigned to preserve access toeducation programs andactivities Reasonably available withoutfee or charge Without unreasonablyburdening the other party 2022 Husch Blackwell LLP

Examples ofsupportivemeasuresCounselingAcademic accommodationsHousing accommodationsSecurity escortsLeave of absenceIncreased security or monitoringModified work schedulesMutual no-contact order where implicated by facts 2022 Husch Blackwell LLP

Example of reasonablesupportive measureGrad Student reports that UndergradStudent sexually harassed Grad byrepeatedly propositioning Grad untilGrad’s brother intervened. Grad wouldlike to receive counseling but does notwish to file a formal complaint. Grad doesnot believe Undergrad poses a physicalthreat. 2022 Husch Blackwell LLP

Example of reasonablesupportive measureHistory student in History 101 reports thatanother student, also in History 101,sexually assaulted History student twoweeks ago. History student is uncertainwhether to file a formal complaint butwants assistance transferring to adifferent section of History 101. 2022 Husch Blackwell LLP

Example of reasonablesupportive measureGraduate student reports that supervisingfaculty member has propositioned thegraduate student for sex, multiple times.Graduate student wants assistance findinga different supervising faculty member.The department is large and has severalfaculty members with the competence tooversee graduate student. 2022 Husch Blackwell LLP

Example of unreasonablesupportive measureOne student reports another studentcommitted sexual assault three yearsago when they were first years. Thereporter has received strong academicmarks since then. The reporter requestsa refund of all tuition and housingcharges for the last three years and awaiver of tuition and charges until thereporter completes graduate school. 2022 Husch Blackwell LLP

Example of unreasonablesupportive measureEmployee in maintenance departmentaccuses supervisor of sexual harassmentby way of making sexualized jokes andremarks. Employee requests to be onindefinite paid leave for the remainingsix months of the academic year.Employee could easily be reassigned towork under a different supervisor in adifferent part of campus. 2022 Husch Blackwell LLP

Do students and employees haveother rights? Yes—other laws may triggeraccommodations when a medicalcondition or disability is present Americans with Disabilities Act Family and Medical Leave Act Section 504 of the RehabilitationAct 2022 Husch Blackwell LLP

Can supportive measuresaffect the respondent? Yes, but cannot create an unreasonable burden Cannot be a form of de facto discipline Supportive measures are not a substitute for theinvestigation and hearing process 2022 Husch Blackwell LLP

Example of unreasonableburdenStudent Worker accuses Colleague ofsexual harassment. Institution imposesproximity restriction that prohibits Workerand Colleague from being within 400meters of each other pendinginvestigation and hearing. 2022 Husch Blackwell LLP

Example of disciplinarysupportive measureIn-State Student accuses Out-of-StateStudent of sexual assault. In-Staterequests as a support measure that Outof-State be removed from all sharedclasses, removed from shared dormitoryand made to live off campus, andprohibited from being on campus after5:00 pm. 2022 Husch Blackwell LLP

Example of disciplinarysupportive measureSophomore accuses Freshman of sexualharassment. Sophomore requests as asupport measure that Freshman beprohibited from having any contact with,or being in proximity to, Sophomore forthe duration of Sophomore’s time at theCollege. 2022 Husch Blackwell LLP

Example scenarioTwo students are admitted to institutionas first years. Prior to arriving oncampus, one reports that the othersexually harassed the reporting studentwhen the two where sophomores inhigh school. The reporter wantscounseling; safety escorts; and access tothe respondent’s schedule so thereporter can avoid the respondent. 2022 Husch Blackwell LLP

What if the report falls outsideTitle IX jurisdiction? Title IX requires supportivemeasures for reported sexualharassment covered by TitleIX Institute may providesupportive measures forreported conduct that fallsoutside Title IX’s scope 2022 Husch Blackwell LLP

Are supportive measuresconfidential? Generally, yes Only shared to the extentnecessary to effectuate thepurpose of the supportivemeasure Only shared with institutionalemployees who have a legitimateneed to know 2022 Husch Blackwell LLP

Who is responsible for supportivemeasures? Title IX Coordinator is responsiblefor “coordinating the effectiveimplementation” May be delegated withappropriate oversight Typically, a collaborative effortinvolving more than oneinstitutional office or department 2022 Husch Blackwell LLP

Can we utilize interim removalsor suspensions for students? Students may be removed on emergency basis if: Individualized safety and risk analysis Determines an immediate threat to physical healthor safety of any student or other individual arisingfrom the alleged sexual harassment justifiesremoval Student is given immediate notice and opportunityto contest the removal 2022 Husch Blackwell LLP

Example of immediate threat tophysical health or safetyMechanic Student is reported to haveraped Tech Student after providingTech with a large quantity of heroin.Tech explains that Mechanic keepsheroin in Mechanic’s campus lockerand is known to sell it to others. Techexplains that at least one otherstudent has been sexually assaulted byMechanic using this method. 2022 Husch Blackwell LLP

Example of immediate threat tophysical health or safetyStudent reports that anotherslapped and beat the reporterwhen they broke up with the otherstudent. The reporter says therespondent has since threatened tokill the reporter and anyone thereporter might date. The breakupoccurred two days ago. Thereporter has visible injuries. 2022 Husch Blackwell LLP

Example of no immediate threatto physical health or safetyEngineering Student reports thatPhilosophy Student committed sexualassault by having sex with Engineer whileEngineer was incapacitated after the twowere drinking. The incident occurred twoyears ago. Philosopher has no disciplinaryrecord. Engineer reports minimal butpositive interactions with Philosophersince the incident. 2022 Husch Blackwell LLP

Can we utilize an already existingprocess for interim removals? Yes, if that process complies with the Title IX standard. Common institutional examples include: Threat assessment policy Critical Incident Response Team (“CIRT”) Interim suspension provisions of Student Handbook 2022 Husch Blackwell LLP

Can we place employees onadministrative leave? Yes – employee respondents may be placedon administrative leave without requisiteshowing of threat to physical health or safety Whether an opportunity to challengeadministrative leave must be given dependson employee status and other policies (e.g.,Faculty Handbook) 2022 Husch Blackwell LLP

Example of administrative leaveFaculty member is accused of having sexin on-campus office with UndergraduateStudent currently in the faculty member’sclass. Undergraduate alleges theencounter was non-consensual. Facultymember admits to sex but denies it wascoerced or otherwise non-consensual.Institution temporarily suspends facultymember from teaching but continues payand administrative duties. 2022 Husch Blackwell LLP

Example of administrative leaveAthletics department trainer isaccused by multiple student athletesof unwelcome and unnecessarytouching of genitals. Institutionremoves trainer from having anycontact with student athletes pendinginvestigation. 2022 Husch Blackwell LLP

GroupScenarioFuture Oncologist and Future Psychiatrist are both in their third year ofmedical school. Oncologist reports that Psychiatrist sexually harassedOncologist by repeatedly propositioning Oncologist at a schoolsponsored happy hour. Oncologist has not decided whether to file aformal complaint. Oncologist requests several supportive measures,including free counseling; the ability to complete the semesterremotely; never to be in the same class or clinical rotation withPsychiatrist; and for Psychiatrist to participate in supplemental sexualharassment training and a substance abuse prevention program.Oncologist submits a doctor’s note indicating Oncologist suffers fromanxiety and PTSD when in Psychiatrist’s presence. Unbeknownst toOncologist, another student accused Psychiatrist of similar sexualharassment a year prior but did not make a formal complaint. The Deanreports that the school has never allowed a student in their third year tostudy remotely and that required in-person experiences cannot bereplicated remotely. The Dean also reports that, due to the small size ofthe class, it would be impossible to guaranty Oncologist and Psychiatristwould never be in the same class or clinical rotation. 2022 Husch Blackwell LLP

Questions? 2022 Husch Blackwell LLP

The InvestigationProcess

What is the purpose of TitleIX investigation? For the institution To collect relevant inculpatory andexculpatory evidence Sufficient to permit an impartial decisionmaker to determine through a live hearing Whether or not the reported sexualharassment occurred 2022 Husch Blackwell LLP

What are the generalprinciples of an investigation? Parties must have sufficient notice to prepare andmeaningfully participate Investigator has an independent duty to collectrelevant inculpatory and exculpatory evidence Parties have an equal opportunity to present theirstatements, evidence, and to identify witnesses Parties have equal opportunity to review andcomment on evidence developed Investigation is evidence-gathering; not fact-finding 2022 Husch Blackwell LLP

What is a formal complaint? Signed writingFrom the alleged victim or the Title IX Coordinator;Alleging sexual harassment;Indicating desire to initiate the grievance process(i.e., investigation and hearing). 2022 Husch Blackwell LLP

How do we tell the partiesabout an investigation? Institution must providethe parties written noticeof a formal complaint thatincludes sufficient detailsabout the “who, what,when, where, and how”before investigating 2022 Husch Blackwell LLP

What else does the noticeneed to say? Written notice must also include: Statement of presumption respondent is notresponsible unless and until a determination is madeat the end of the process That parties have the right to an advisor of theirchoice That parties have the right to inspect and reviewevidence Any prohibition on providing knowingly falsestatements or information 2022 Husch Blackwell LLP

Example (incorrect)Student accuses Employee of quid proquo harassment. Prior to sendingwritten notice, Title IX Coordinatorappoints investigator who schedulesinterviews with Employee’s coworkers. Only after these interviewsare complete, does the investigatorsend a written notice to Employee. 2022 Husch Blackwell LLP

Can we gather any information prior to thewritten notice? Yes, but only to the extent necessary

Medical Student and Nursing Student discuss and agree to vaginal intercourse. The room is dark. After making out, and without discussion, Medical Student insert's Medical Student's penis into Nursing Student's mouth. Nursing Student reacts negatively and says: "No, I don't do that. Get out." Medical Student has always