Mar 28, 2024  
Policies and Procedures Manual 
    
Policies and Procedures Manual

09:03:00 Sexual Misconduct


 

Revision Responsibility: Executive Director of Human Resources
Responsible Executive Officer: Vice President for Student Services

Purpose

This policy is intended to provide a single, easily accessible, and user-friendly document for students, employees, and others affected by sexual misconduct to find information regarding Walters State’s rules and procedures related to the offenses defined herein.


Policy

I. General Procedures

This policy is adopted by Walters State Community College specifically to address the offenses defined herein as “Sexual Misconduct”. “Sexual Misconduct” is a subset of a broader category of sexual harassment. All other forms of sex discrimination including sexual harassment are also strictly prohibited. Allegations that are not within the scope of this policy are subject to the procedures described in TBR Guideline P-080 as adopted and implemented by Walters State Policy 06:34:00 Harassment - Sexual, Racial and Other.

II. Scope: These Procedures Shall Be Utilized By:

  1. Any employee or student who has been a victim of sexual misconduct, regardless of sexual orientation or gender identity/expression;
     
  2. Former employees or students if the conduct took place during the time of employment or enrollment at Walters State and the conduct has a reasonable connection to the institution;
     
  3. All third parties with whom Walters State has an educational or business relationship and the conduct has a reasonable connection to the institution;
     
  4. Unless a policy indicates that it does not apply outside the U.S., institutional policies regarding student conduct apply to students registered for credit regardless of their attendance at one of the campuses in Tennessee or while participating in international opportunities.

III. Definitions

  1. Consent-an informed decision, freely given, made through mutually understandable words or actions that indicate a willingness to participate in mutually agreed upon sexual activity. Consent cannot be given by an individual who is asleep; unconscious; or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason; or, is under duress, threat, coercion, or force. Past consent does not imply future consent. Silence or an absence of resistance does not imply consent. Consent can be withdrawn at any time.
     
  2. Dating Violence-violence against a person when the accuser and accused are dating, or who have dated, or who have or had a sexual relationship. “Dating” and “dated” do not include fraternization between two (2) individuals solely in a business or non-romantic social context. Violence includes, but is not necessarily limited to:
    1. Inflicting, or attempting to inflict, physical injury on the accuser by other than accidental means;
       
    2. Placing the accuser in fear of physical harm;
       
    3. Physical restraint;
       
    4. Malicious damage to the personal property of the accuser, including inflicting, or attempting to inflict, physical injury on any animal owned, possessed, leased, kept, or held by the accuser; or,
       
    5. Placing a victim in fear of physical harm to any animal owned, possessed, leased, kept, or held by the accuser - TCA § 36-3-601(5)(c)
  3. Domestic Violence-violence against a person when the accuser and accused:
    1. Are current or former spouses;
       
    2. Live together or have lived together;
       
    3. Are related by blood or adoption;
       
    4. Are related or were formally related by marriage; or,
       
    5. Are adult or minor children of a person in a relationship described above.

D. Domestic Violence - includes, but is not necessarily limited to:
     a. Inflicting, or attempting to inflict, physical injury on the accuser by other than accidental means;

     b.  Placing the accuser in fear of physical harm;

     c.   Physical restraint;

     d.   Malicious damage to the personal property of the accuser, including inflicting, or attempting to inflict, physical injury on any animal owned, possessed, leased, kept, or held by the accuser; or,

     e.   Placing the accuser in fear of physical harm to any animal owned, possessed, leased, kept, or held by the accuser - TCA § 36-3-601

E. Sexual Assault-the nonconsensual sexual contact with the accuser by the accused, or the accused by the accuser when force or coercion is used to accomplish the act, the sexual contact is accomplished without consent of the accuser, and the accused knows or has reason to know at the time of the contact that the accuser did not or could not consent. Sexual contact includes, but is not limited to, the intentional touching of the accuser’s, the accused’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of the accuser’s, the accused’s, or any other person’s intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.

F. Title IX Sexual Harassment – conduct on the basis of sex that satisfies either of the following:  (1) an employee of an institution conditioning provision of an aid, benefit, or service of an institution on an individual’s participation in unwelcome sexual conduct (quid pro quo); (2) unwelcome conduct of a sexual nature determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the institution’s education program or activity. “Reasonable person” means a reasonable person under similar circumstances as and with similar identities to the Complainant. TBR institutions will consider the totality of the circumstances, including without limitation, the context in which the conduct and/or words occurred, and the frequency, nature, and severity of the words and/or conduct. In no event shall Title IX sexual harassment be construed to prohibit speech protected by the First Amendment to the United States Constitution (e.g., merely offensive or insulting speech).

G. Stalking-a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the accuser to feel terrorized, frightened, intimidated, threatened, harassed, or molested. Harassment - means conduct directed toward the accuser that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the accuser to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose- TCA § 39-17-315.

IV. Prohibition Of Sexual Misconduct

Sexual misconduct is a form of sex discrimination prohibited by Title IX. Walters State is committed to eliminating any and all acts of sexual misconduct and discrimination on its campuses. As set forth in this policy, sexual misconduct includes Title IX Sexual Harassment, dating violence, domestic violence, stalking, and sexual assault. Walters State strictly prohibits these offenses. Any allegation of sexual misconduct as defined herein will be investigated and adjudicated according to this policy.

V. Immediate Actions A Victim Should Take

  1. In the immediate aftermath of a sexual assault, domestic violence, dating violence or similar event, the most important thing is for the victim to get to a safe place.
     
  2. When a feeling of safety has been achieved, the victim should seek medical attention, regardless of his or her decision to report the crime to the police. It is very important for the victim of sexual assault to seek medical attention immediately so that the victim can be screened for sexually transmitted diseases/pregnancy/date rape drugs, obtain emergency contraception, and receive treatment for any physical injuries.
     
  3. A victim has the right to accept or decline any or all parts of a medical exam. However, critical evidence may be lost or missed if not collected or analyzed.
     
  4. Valuable physical evidence can be obtained from the victim and the victim’s clothing. A victim should make every effort to save anything that might contain the offender’s DNA. Therefore, a victim should not:
     
    1. Bathe or shower;
       
    2. Wash his/her hands;
       
    3. Brush his/her teeth;
       
    4. Use the restroom;
       
    5. Change clothes;
       
    6. Comb hair;
       
    7. Clean up the crime scene; or
       
    8. Move anything the offender may have touched
       
  5. Even if the victim has not yet decided to report the crime, receiving a forensic medical exam and keeping the evidence safe from damage will improve the chances that the police can access and test the stored evidence at a later date.
     
  6. Victims of sexual misconduct are encouraged to preserve evidence by saving text messages, instant messages, social networking pages, other communications, and keeping pictures, logs or other copies of documents, if they have any, that would be useful to investigators.

VI. Reporting Sexual Misconduct

The College encourages victims of sexual violence to talk to somebody about what happened so they can get the support they need and so the College can respond appropriately. Though reports will be kept as confidential as possible, the College cannot guarantee the confidentiality of every report or complaint. The following provisions detail the confidentiality options available to individuals.

  1. Reporting Confidentially:
    If a victim choses to report an incident of sexual misconduct in a confidential manner, the victim can report the incident to the following person, a licensed counselor, who is required by Tennessee State law to maintain confidentiality of a victim:

Roxanne Bowen
Coordinator of Multicultural Engagement/Counselor
Walters State Community College
500 South Davy Crockett Parkway
Morristown, TN 37813
Student Services Building - Room U144
(423) 585-6806
roxanne.bowen@ws.edu

If the victim chooses to report in a confidential manner, the College may be unable to conduct an investigation into the matter or pursue disciplinary action against the alleged offender.

  1. Filing a Complaint at Walters State – Reports of acts of sexual misconduct to any other employee of the College must be reported to the Title IX Coordinator, and the College will take immediate and appropriate steps to investigate what happened and to resolve the matter promptly and equitably.
    1. The College shall not share information with law enforcement without the victim’s consent or unless the victim has also reported the incident to law enforcement.
       
    2. Before a complainant reveals any information to an employee, the employee must ensure that the complainant understands the employee’s reporting obligations.
       
    3. If the complainant wants to maintain confidentiality, the employee must direct the victim to confidential resources as detailed in VI.A.
       
    4. If the complainant wants to tell an employee what happened but also maintain confidentiality, the employee must advise the complainant that the College will consider the request, but cannot guarantee that it will be able to honor it. In reporting the details of the incident to the Title IX Coordinator, the employee will also inform the Coordinator of the complainant’s request for confidentiality.
       
    5. An institutional complaint should be filed with the Title IX coordinator, and if a student, copied to the Vice President for Student Services.
 

Title IX Coordinator

Mr. Jarvis Jennings

500 S. Davy Crockett Parkway
Morristown, TN 37813
Campbell College Center-Rm 109B
(423) 585-6845

jarvis.jennings@ws.edu

Vice President for Student Services

Dr. Angi Smith
500 S. Davy Crockett Parkway
Morristown, TN 37813
Campbell College Center-Rm 100
(423) 585-2681

angi.smith@ws.edu


 

 

A list of Title IX Coordinators by institution may be found at the following link: www.tbr.edu/oesi/title-ix-officers

VII. Role Of Title IX Coordinator

  1. The College’s Title IX Coordinator is responsible for overseeing all Title IX incidents reported to the College and for implementation of this policy, including but not limited to, identifying and addressing any systemic gender-based harassment, discrimination, and sexual misconduct. The Title IX Coordinator’s responsibilities include, but are not limited to, the following:
    1. Investigation or oversight of investigations of allegations related to Title IX;
       
    2. Coordination and oversight of educational programs including mandatory training for new students and employees and awareness campaigns for current students and employees;
       
    3. Coordination with local law enforcement on matters related to allegations related to sexual misconduct;
       
    4. Coordination and oversight of training for anyone involved in responding to, investigating, or adjudicating sexual misconduct;
       
    5. Coordination and oversight of training for employees related to their responsibility when they are aware of sexual misconduct;
       
    6. Coordination and oversight of annual training for investigators, decision makers, hearing officers and hearing committee members on the issues related to sexual misconduct and on how to conduct an investigation and hearing process that protects the safety of complainants and promotes accountability; and
       
    7. Attending appropriate training annually on topics related to responding to or investigating allegations of sexual misconduct.
       
  2. The Title IX Coordinator may designate deputies and investigators (“designees”) to assist in carrying out any of the responsibilities related to implementing this policy

    The Title IX Coordinator shall report at the beginning of each new school year to TBR’s Office of General Counsel the name of and contact information for the College’s Title IX Coordinator.

VIII. Investigation Requirements and Procedures

  1. All proceedings will include a prompt, fair, and impartial investigation and result. The College will provide the respondent and complainant equitable rights during the investigative process.
     
  2. All complaints of sexual misconduct shall be presented to the Title IX Coordinator for investigation and appropriate disposition.
     
  3. Formal Complaint
    1. Any person who has been a victim of Sexual Misconduct that took place within an education program or activity of a TBR institution in the United States may file a Formal Complaint under this policy.
       
    2. A Complainant who wants Walters State Community College to conduct an investigation and take action in accordance with this policy must file a Formal Complaint alleging Sexual Misconduct. 
       
    3. A Complainant must submit a written Formal Complaint in person, by mail, or via electronic mail to the Title IX Coordinator. The document must contain the Complainant’s physical signature or a “digital signature.” (A digital signature is information transmitted electronically that enables the Title IX Coordinator to determine that the Complainant is the person submitting the complaint, including, but not limited to, an email from a WSCC institutional account or a typed version of the Complainant’s name. A digital signature need not reproduce a written signature.) A Formal Complaint cannot be submitted anonymously. Only the Title IX Coordinator can submit a Formal Complaint on behalf of another person.
       
    4. Although Walters State will attempt to consider the wishes of Complainants, including that no investigation be conducted, Walters State will also consider their obligations under both TBR policy and applicable law, including Title VII of the Civil Rights Act of 1964. Thus, when the Title IX Coordinator receives a report of Sexual Misconduct, and especially when the complaint involves an employee, the Title IX Coordinator may decide to investigate the matter pursuant to Guideline P-080 and institutional policy, even if the Complainant does not want the report investigated. If the Title IX Coordinator decides to file a Formal Complaint, the Title IX Coordinator is not a “Party” to any investigation, Determination or hearing process.
       
    5. Complainants should provide as much of the following information as possible: what happened, where, and when; names of all people involved, including witnesses (if any); supporting documentation (if any); and contact information. Walters State encourages reporting of Sexual Misconduct even if some or all information is unavailable or cannot be provided. The Title IX Coordinator will explain their role, the options for reporting an incident, potential available Interim/Supportive Measures, and the available resources for assistance.
  4. Reporting by Employees

    Institutional policy shall provide that:
    1. All employees who learn of Sexual Misconduct (or any form of sexual harassment or sex discrimination, or retaliation) are encouraged to report such matters to the Title IX Coordinator.
       
    2. Supervisors and managers who learn of Sexual Misconduct (or any form of sexual harassment or sex discrimination, or retaliation must immediately report such concerns to the Title IX Coordinator.
  5. Anonymous and Third-Party/Bystander Reporting
    1. Institutional policy shall encourage third parties to report incidents of Sexual Misconduct to the Title IX Coordinator. The institution may not be able to move forward with third-party reports if the Complainant does not wish to file a Formal Complaint or cooperate with an investigation.
       
    2. After providing a report, third parties are not entitled to information about the institution’s investigation and response due to privacy concerns and applicable federal and state laws.
  6. Abuse of Minors
    1. Institutional policy shall include a statement that Tennessee law mandates reporting by any person who has knowledge of physical or mental harm to a child if: (1) the nature of the harm reasonably indicates it was caused by brutality, abuse, or neglect; or (2) on the basis of available information, the harm reasonably appears to have been caused by brutality, abuse, or neglect.  Tennessee law also mandates reporting by any person who knows or has reasonable cause to suspect that a child has been sexually abused, regardless of whether the child has sustained any apparent injury as a result of the abuse. 
       
    2. In the event of a life-threatening emergency, a report of child abuse or child sexual abuse should be made by calling 911. In other cases, a report of child abuse or child sexual abuse must be made immediately to one of the following authorities:
      1. The Tennessee Department of Children’s Services (the Central Intake Child Abuse Hotline is 1-877-237-0004);
      2. The sheriff of the county where the child resides;
      3. The chief law enforcement official of the city where the child resides; or
      4. A judge having juvenile jurisdiction over the child.
    3. In addition, institutional employees shall make a report of child abuse or child sexual abuse in connection with an institutional program or activity to the Title IX Coordinator. Note that a report to an institutional law enforcement or security agency is not sufficient to comply with state law.
  7. Law Enforcement
    1. The following law enforcement agencies listed in this policy are available for emergency response, facilitating medical transport, investigating incidents of a criminal nature, referrals, and preserving evidence. Law enforcement may be required to report potential violations of this policy to the Title IX Coordinator and to report incidents of sexual assault and other criminal acts of a serious nature to other law enforcement authorities.
       
    2. A list of local law enforcement agencies is available in Section XVII of this policy.
  8. Reporting Pursuant to the Nottingham Act.
    1. Unless the victim of a rape does not consent to the reporting of an offense, the director of campus police shall immediately notify the local law enforcement agency with territorial jurisdiction over the institution if the officer is in receipt of a report from the victim alleging that any degree of rape has occurred on the property of the institution. The director of campus police shall designate one (1) or more persons who shall have the authority and duty to notify the appropriate law enforcement agency in the absence of the director of campus police. In the case of an alleged rape, WSCC’s law enforcement agency shall lead the investigation. After notifying the local law enforcement agency, WSCC shall cooperate in every respect with the investigation conducted by the law enforcement agency. T.C.A. § 49-7-129.
       
    2. If the victim does not consent to the reporting, the director of campus police shall not report the offense to the local law enforcement agency. T.C.A. § 49-7-2207; T.C.A. § 49-7-129.
  9. Initiating an investigation
    1. Immediately upon receipt of a complaint, the Title IX Coordinator shall communicate with the complainant to determine and implement any reasonable interim measures. Absent good cause, within three (3) business days of receipt of a report of sexual misconduct the Title IX Coordinator or designee shall attempt to get a written statement from the complainant that includes information related to the circumstances giving rise to the complaint, the dates of the alleged occurrences, and names of witnesses, if any. The complainant should be encouraged to complete a complaint form and submit a detailed written report of the alleged incident.
       
    2. When the complainant chooses not to provide a written complaint, the Title IX Coordinator or designee will still investigate and take appropriate action.
       
    3. In addition to any immediate interim measures, the Title IX Coordinator shall consult with the complainant and consider what, if any, interim measures may be necessary.
       
    4. Complaints made anonymously or by a third party will be investigated to the extent possible.
       
    5. After consultation with TBR General Counsel, if the Title IX Coordinator determines that the complaint contains an allegation of sexual misconduct, the Title IX Coordinator shall follow the procedures set forth in this policy to investigate and adjudicate the complaint.
       
    6. The Title IX Coordinator may appoint a qualified, sufficiently trained person to investigate the allegations made in the complaint.
       
    7. Only one person shall be identified as the investigator for a complaint.
       
    8. Investigations shall be conducted by officials who do not have a conflict of interest or bias for or against the complainant or respondent.
       
    9. If the complainant or respondent believes the assigned investigator has a conflict of interest, that party must submit a written explanation of the reason for that belief to the College President. The explanation must be submitted within three (3) business days, absent good cause, of the time when the party knew or should have known the facts that would give rise to the alleged conflict of interest. The President will determine if the facts warrant the appointment of a different investigator and respond to the party in writing within three (3) business days, absent good cause. The decision of the President shall be final.
  10. What the investigation should and should not entail:
    1. Once the investigator receives the complaint, the investigator shall notify the complainant in writing of his/her rights and request a meeting.
       
    2. The investigator shall also notify the respondent in writing of the complaint and his/her rights and request a meeting with the respondent.
       
    3. The investigator shall notify the complainant, respondent and all individuals interviewed during the investigation that retaliation is strictly prohibited and may be grounds for disciplinary action. In addition, the investigator shall advise all interviewees that they should contact the investigator immediately if they believe they are being retaliated against.
       
    4. The investigation shall include interviews with both the complainant and respondent, unless either declines an in-person interview.
       
    5. The complainant and respondent shall be provided with the same opportunities to have others present during an interview, including the opportunity to be accompanied by the advisor of their choice to any related meeting or proceeding.
       
    6. The College will not limit the choice of advisor for either the complainant or respondent; however, the investigator may limit the participation of advisors during the investigation.
       
    7. The investigation shall include interviews with relevant witnesses identified by the complainant and respondent or any other potential, relevant witness made known to the investigator via other means.
       
    8. The investigation shall include the gathering and reviewing of any documentary, electronic, physical, or other type of relevant evidence.
       
    9. The investigator is expected to request a list of relevant witnesses and evidence from complainant and respondent and take such into consideration.
       
    10. The investigator shall not consider any evidence about the complainant’s prior sexual conduct with anyone other than the respondent. Evidence of a prior consensual dating or sexual relationship between the parties by itself does not imply consent or preclude a finding of sexual misconduct.

IX. Timeframe For Conducting The Investigation

  1. Formal Complaints typically will be resolved (exclusive of any appeals) within 90 calendar days of filing.
     
  2. Appeals will be resolved within fifteen (15) calendar days of the filing of an appeal.
     
  3. Given the many variables and factors that may arise in such cases, additional time may be needed in some cases. Any departure from these frames will be for good cause and communicated in writing or by email to both the Complainant and the Respondent simultaneously, along with a new timeline and explanation of the reasons.  Good cause to extent the deadlines includes, but is not limited to, the absence of a Party, a Party’s advisor, or witness; concurrent law enforcement activity; or the need for language assistance or the accommodation of disabilities.
     
  4. Incompletion of the process within such time frames is not cause for dismissal of a Formal Complaint.

X. Live Institutional Hearings

  1. The institution will conduct a live hearing of Formal Complaints not dismissed pursuant to this policy in order to make a Determination whether this policy has been violated. The decision-maker appointed by the Title IX Coordinator has the authority to maintain order at the hearing and make all decisions necessary for the fair, orderly, and expeditious conduct of the hearing. The decision-maker shall be the final decider concerning all aspects of the hearing, including prehearing matters and at the hearing, how evidence is examined and the order of witnesses.
     
  2. At the request of either party, the institution will provide for the live hearing to be conducted with the parties located in separate rooms with technology enabling the decision-maker and parties to simultaneously see and hear the party or the witness answering questions.
     
  3. In cases involving more than one respondent, any party may request separate hearings by submitting a request at least five (5) business days before the hearing.  The Title IX Coordinator will decide whether to grant the request.
     
  4. Live hearings may be conducted with all parties physically present in the same geographic location or, at the institution’s discretion, 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.
     
  5. At least ten (10) business days prior to a live hearing, the institution will provide both parties with written notice of the following: 
    1. The time, place, date of the hearing, and electronic access information, if applicable;
       
    2. The name of each witness the institution expects to present or be present at the hearing and those the institution may present if the need arises;
       
    3. The right to request a copy of the investigative file (other than portions that are protected by law or privilege), which includes all of the evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint;
       
    4. The right to request copies of all documents, copies of electronically stored information, and access to tangible evidence that the institution has in its possession, custody, or control and may use to support claims or defenses;
       
    5. The right to have an advisor of the Party’s choice, who may be, but is not required to be an attorney, and that if the party does not have an advisor present at the hearing, the institution will provide an advisor of the institutions’ choice, without fee or charge, to ask the other party and any witnesses all relevant questions and follow-up questions on behalf of that party;
       
    6. Any party in need of an institution-provided advisor must inform the Title IX Coordinator at least five (5) business days before the hearing;
       
    7. Any cross-examination of any other party or witness must be conducted by the advisor; and
       
    8. Other information may be included in the notice of hearing.
  6. When notice is sent by U.S. mail or courier service, the notice is effective on the date the notice is mailed or delivered to the courier service.  When notice is hand delivered by the institution, notice is effective on the date that the notice is delivered to the parties. When notice is sent by email, the notice is effective on the date that the email is sent to the parties’ institution-provided email account.
     
  7. The decision-maker may conduct a pre-hearing meeting or conference with the parties and their advisors to discuss pre-hearing issues, including any technology to be used at the hearing and the general rules governing the hearing.
     
  8. The decision-maker may allow a temporary delay of the process or the limited extension of time frames for good cause with written notice to the parties of the delay or extension and the reasons for the action. Good cause may include, but is not limited to, considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
     
  9. If a party fails to attend a hearing, the decision-maker may proceed without that party’s participation.
     
  10. During the hearing, the decision-maker will make evidence subject to review and inspection during the investigation phase available to give each party equal opportunity to refer to that evidence, including for purposes of cross-examination.
     
  11. Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to provide that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
     
  12. Only relevant cross-examination questions may be asked of a party or witness. Before a Complainant, Respondent, or witness answers a cross-examination or question from someone other than the decision-maker, the decision-maker will first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
     
  13. The decision-maker will not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding the privilege has waived the privilege.
     
  14. The decision-maker will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing will be conducted directly, orally, and in real time by the party’s advisor and never by a party personally.  Conducting cross-examination will be the advisor’s only opportunity to speak. Advisors will not engage in other presentation of arguments or evidence, including opening statements, closing arguments, or direct examinations.
     
  15. If a party does not have an advisor at the live hearing, the institution will provide without fee or charge to that party an advisor. The institution will choose the advisor.
     
  16. If a Party or witness does not submit to cross-examination at the live hearing, the decision-maker will not rely on any statement of that party or witness in reaching a Determination regarding responsibility; provided however, that the decision-maker 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.
     
  17. For good cause shown, a decision-maker may permit the participation of witnesses who were not identified by the party to the investigator, or the inclusion of evidence not provided by the party to the investigator.
     
  18. The institution will create an audio or audiovisual recording, or transcript, of a live hearing and make it available to the parties for inspection and review.
     
  19. The decision-maker may dismiss the Formal Complaint or any allegations therein, if at any time during the hearing a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw a Formal Complaint or any allegations therein, the Respondent is no longer enrolled or employed by the institution, or specific circumstances prevent the institution from gathering evidence sufficient to reach a Determination as to the Formal Complaint or allegations therein.
     
  20. If the decision maker dismisses the Formal Complaint during the grievance process, the decision-maker will promptly notify the Title IX Coordinator, who will promptly send written notice of the dismissal and reasons therefor simultaneously to the Parties.

XI. Written Determination

  1. Within fifteen (15) business days of the hearing, the decision-maker will issue a written Determination, based on a preponderance of the evidence standard, which will be provided to the parties simultaneously.
     
  2. The Determination becomes final either on the date that the institution provides the Parties with a written result of an appeal, or if an appeal is available but not filed, the day after the deadline to appeal.
     
  3. The Determination will include:
    1. Identification of the allegations potentially constituting Sexual Misconduct, as well as identification of any additional allegations that are being resolved but which do not constitute Sexual Misconduct;
       
    2. A description of the procedural steps taken between receipt of the Formal Complaint and the Determination, including all notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and any hearings held;
       
    3. Findings of fact supporting the Determination;
       
    4. Conclusions regarding the application of this policy, as well as any other relevant policy, guidelines, or code, to the facts;
       
    5. A statement of, and rationale for, the result as to each allegation before the decision-maker, including a Determination regarding responsibility;
       
    6. Any disciplinary action that the decision-maker imposes on the Respondent, including referral to another process, such as tenure termination proceedings; 
       
    7. Any remedies that the institution will provide designed to restore or preserve equal access to the Complainant; and
       
    8. The permissible bases and procedures, including timelines, for appeals by the parties.
  4.  Remedies and Disciplinary Action Following Determinations of Violations
    1. The institution will provide remedies where a Determination of responsibility for Sexual Misconduct has been made. The institution will follow this policy before the imposition of any disciplinary sanctions for Sexual Misconduct that are not supportive/interim measures. 
       
    2. Remedies will be designed to restore or preserve equal access to education programs and activities and will include discipline under the applicable policies and procedures. Remedies may include verbal warnings, written warnings, final written warnings, suspension, termination of employment, non-renewal of appointment, or dismissal from the institution. Faculty may be subject to proceedings under TBR Policies 5.02.03.10 and 5.02.03.30.
       
    3. Remedies should also consider improvements to the campus-wide environment. It is the intent of TBR that institutions consider the impact of an incident of Sexual Misconduct on the campus as a whole or specific groups or areas of campus. For example, specific training may be needed for a student group.
       
    4. The Title IX Coordinator is responsible for ensuring effective implementation of the remedies.

XII.  Appeals/Post-Determination Procedures

  1. Parties are permitted to appeal to the President (or other person appointed by the Title IX Coordinator) from a Determination regarding responsibility (or no responsibility) and from a dismissal of a Formal Complaint or of any allegations in a Formal Complaint on the basis of

    1. procedural irregularity that affected the outcome of the matter;

    2. new evidence that was not reasonably available at the time the Determination or dismissal was made, but only if that new evidence could affect the outcome of the matter;

    3.  The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome.
     
  2. A party wishing to appeal a Determination regarding responsibility or the dismissal of a Formal Complaint or any allegations therein must file a written appeal with the Title IX Coordinator within seven (7) business days of the date of the Determination or the dismissal. The written appeal must identify the reasons for the appeal.
     
  3. As to all appeals, the Title IX Coordinator will:

    1. Notify the other party in writing when an appeal is filed;

    2. Implement appeal procedures equally for both parties;

    3. Ensure that the decision-maker(s) for the appeal is not the same person as the investigator, the decision-maker, or Title IX Coordinator;

    4. Provide each party five (5) business days to provide a written statement in support of, or challenging, the Determination.
     
  4. The decider of the appeal will issue a written decision describing the result of the appeal and the rationale for the result, and will provide the written decision simultaneously to the parties.

XIII. Interim Measures

  1. In situations that require immediate action because of safety or other concerns, the College will take any reasonable administrative action that is appropriate. Examples of such interim actions include, but are not limited to:
    1. Providing an escort to ensure that the complainant can move safely between classes and activities;
       
    2. Ensuring that the complainant and respondent do not attend the same classes;
       
    3. Providing access to counseling services;
       
    4. Providing or assisting in providing medical services;
       
    5. Providing academic support services, such as tutoring; and
       
    6. Arranging for the complainant to re-take a course or withdraw from a class without penalty, including ensuring that any changes do not adversely affect the complainant’s academic record.
  2. These remedies may be applied to one, both, or multiple parties involved.
     
  3. Student respondents may be placed on interim suspension under the appropriate circumstances pending the outcome of the investigation. The College shall follow TBR Policy 3:02:00:01 and Walters State Policy 04:18:02 before placing a student respondent on interim suspension.
     
  4. Employee respondents may be, consistent with Human Resource policies, placed on administrative leave pending the outcome of the matter.

XIV. Education and Prevention Programs

  1. The College will engage in comprehensive educational programming to prevent sexual misconduct. Educational programming consists of primary prevention and awareness programs for all incoming students and new employees and ongoing awareness and prevention campaigns for students, faculty, and staff that:
     
    1. Identifies domestic violence, dating violence, sexual assault and stalking as prohibited conduct;
       
    2. Defines what behavior constitutes domestic violence, dating violence, sexual assault and stalking;
       
    3. Defines what behavior and actions constitute consent to sexual activity in the State of Tennessee;
       
    4. Provides safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or intervene when there is a risk of domestic violence, dating violence, sexual assault and stalking against a person other than the bystander;

      and
       
    5. Provides information on risk reduction so that students and employees may recognize warning signs of abusive behavior and how to avoid potential attacks.

XV. Assistance For Victims Of Sexual Misconduct: Rights And Options

  1. Regardless of whether a victim elects to pursue a criminal complaint, the College will assist victims of sexual misconduct and will provide each victim with a written explanation of her/his rights as a member of the College.
     
  2. Additionally, in the Tennessee court system, a victim of domestic violence, dating violence, sexual assault and stalking has the following rights: the right to confer with the prosecution, right to be free from intimidation, harassment and abuse throughout the criminal justice system, the right to be present at all proceedings where the defendant has the right to be present, the right to be heard, when relevant, at all critical stages of the criminal justice process as defined by the General Assembly, the right to be informed of all proceedings, and of the release, transfer or escape of the accused or convicted person, the right to a speedy trial or disposition and a prompt and final conclusion of the case after the conviction or sentence, the right to restitution from the offender and the right to be informed of each of the rights established for victims. Information related to these rights may be found at http://www.tndagc.com/vr.htm.
     
  3. Protection from abuse orders may be available through http://www.tncourts.gov/programs/self-help-center/forms/order-protection-forms and additional information related to such orders may be found at http://tncoalition.org/resources/legal-resources.html.
     
  4. The College does not publish the name of crime victims nor maintain identifiable information regarding victims in the Daily Crime Log or in the release of timely warnings.

XVI. Resources for Victims of Sexual Misconduct

The resources listed below are not exhaustive or limited to victims who wish to make an official report or participate in an institutional hearing, police investigation or criminal prosecution. However, in cases where a victim wishes to maintain complete confidentiality, the victim should review carefully Section IV above related to the limits on the College’s ability to maintain confidentiality.

  1. On Campus Resources
Office Location Telephone
Vice President for Student Services Jack E. Campbell College Center - Rm 100 423-585-2680
Campus Police Claiborne 423-851-4778
Greeneville 423-798-7961
Morristown 423-585-6752
Sevierville 865-774-5813
College Nurse Jack E. Campbell College Center - Rm 145 423-585-6820
Counseling Center Student Service Building - Rm-U139 423-585-6801
Title IX Coordinator Jack E. Campbell College Center - Rm 109B 423-585-6845
  1. Local Area Resources
CLAIBORNE/TAZEWELL
Agency
Telephone
CEASE 423-581-2220
Claiborne County Sheriff’s Department 423-526-2555
Statewide Domestic Violence Hot Line 1-800-356-6767
Tazewell Police Department 423-626-5104

 

CLAIBORNE/TAZEWELL
Agency
Telephone
CEASE 423-626-4446
Greene County Sheriff’s Department 423-639-7111
Greeneville City Police Department 423-798-1800
The Crisis Center 276-466-2312
Sexual Assault Center, East Tennessee 865-522-7273
Statewide Domestic Violence Hot Line 1-800-356-6767

 

MORRISTOWN
Agency
Telephone
CEASE 423-581-2220
Hamblen County Sheriff’s Department 423-586-3781
Morristown Police Department 423-585-2710
Statewide Domestic Violence Hot Line 1-800-356-6767

 

SEVIERVILLE
Agency
Telephone
Safe Space 1-800-244-5968
Sevier County Sheriff’s Department 865-453-4668
Sevierville Police Department 865-453-5506
Sexual Assault Center, East Tennessee 865-522-7273
Statewide Domestic Violence Hot Line 1-800-356-6767
  1. On-line Resources:
    http://tncoalition.org/ - State Coalition Against Rape
    http://tncoalition.org/ - State Coalition Against Domestic Violence
    http://www.thehotline.org/ - Website for LGBTQ survivors of sexual or domestic violence and minority women survivors of sexual or domestic violence
    http://www.pandys.org/malesurvivors.html -Website for male survivors
    http://www.rainn.org - Rape, Abuse and Incest National Network
    http://www.ovw.usdoj.gov/sexassault.html - Department of Justice
    http://www2.ed.gov/about/offices/list/ocr/index.html Department of Education, Office of Civil Rights

D. Retaliation
The College, its officers, employees, or agents are strictly prohibited from retaliating, intimidating, threatening, coercing, or otherwise discriminating against any individual for exercising their rights or responsibilities under any provision of this policy. Retaliation will result in disciplinary measures, up to and including termination or expulsion. 

E. Effective Date

1. This policy is effective August 14, 2020.

2. If any provision of the Title IX regulations on which this policy is based is enjoined or held invalid as it applies to the TBR institution or the Title IX regulations’ application to any person, act, or practice is enjoined or held invalid as it applies to the TBR institution, the remainder of this policy or the application of its provisions to any person, act, or practice shall not be affected thereb.y

3. For conduct that occurs across multiple versions of this policy, complaints of Sexual Misconduct will be addressed utilizing the procedures outlined in the version of this policy in effect as of the date of the Notice of Allegations. The “Definitions” and “Clarifications” sections of the policy in effect as of the date of the alleged incident will be used.  Complaints and reports of conduct spanning more than one version of the policy will be addressed using the “Definitions” and “Clarifications” sections in the version of the policy in effect at the time of the most recent alleged incident.

XVII. Clarifications

  1. Consent
    1. Consent means an active agreement to participate in sexual activity. An active agreement is words and/or conduct that communicate a person’s willingness to participate. The following individuals cannot give valid Consent:
       
    2. A person who is Incapacitated, if either the person claiming to have obtained Consent knows that the other person is Incapacitated or a reasonable person would know that the other person is Incapacitated;
       
    3. A person who is Forced; or
       
    4. A person who is under the age of eighteen (18), unless the person giving Consent is at least the age of thirteen (13) and the other person is less than four (4) years older than the person giving Consent.
  2. During a sexual encounter, each person has responsibility for obtaining Consent from the other person. During an investigation, the institution has the burden of obtaining evidence whether Sexual Misconduct occurred without Consent. During any hearing, the institution has the burden of proving that Sexual Misconduct occurred without Consent.  (In other words, it is not a Respondent’s burden to prove Consent during an investigation or hearing).  Whether a person has communicated Consent generally is evaluated from the perspective of what a reasonable person who perceived the individual’s words and/or nonverbal conduct would have understood; however, in the context of a relationship that has involved sexual activity and a pattern of communicating Consent, whether Consent has been communicated may be evaluated based on a subjective standard (i.e., what did the specific person who initiated the sexual activity conclude based on the pattern of communication?).
     
  3. A verbal “no” ( or words equivalent to “no”) or the nonverbal communication of “no,’ even if it sounds or appears insincere or indecisive, means that Consent has not been communicated, or if previously communicated, has been withdrawn.  The absence of a verbal “no” or the absence of a nonverbal communication of “no” does not necessarily mean that Consent has been communicated.
     
  4. Consent must exist from the beginning to the end of each sexual encounter and for each sexual act that occurs during a sexual encounter. A person has a right to change their mind; thus, Consent may be withdrawn at any time. A withdrawal of Consent is communicated through clear words and/or conduct that indicate that a person no longer agrees to participate in sexual activity. Once a person’s withdrawal of Consent has been communicated, the other person must cease the sexual act for which Consent was withdrawn and must obtain Consent before reinitiating that sexual act. Consent is automatically withdrawn when a person becomes incapacitated or is forced to participate in sexual activity.
     
  5. Consent to one type of sexual activity (e.g., oral sex) does not constitute or imply Consent for another type of sexual activity (e.g., vaginal intercourse), whether during a sexual encounter or based on a previous sexual encounter.
     
  6. The following do not communicate a person’s willingness to participate in sexual activity:
    1. Silence, unless accompanied by non-verbal conduct conveying a willingness to participate in sexual activity;
       
    2. Consent communicated by the person on a previous occasion;
       
    3. Consent communicated to a third person;
       
    4. The person’s failure to resist physical force (however, for purposes of the Policy, the person’s resistance to physical force will be viewed as a clear demonstration that the person has not communicated Consent);
       
    5. A current or previous dating, romantic, intimate, or sexual relationship with the other person;
       
    6. Currently or previously cohabitating with the other person;
       
    7. The person’s attire, reputation, giving or acceptance of gifts, sexual arousal, or extension or acceptance of an invitation to go to a private residence, room, or other location.
       
    8. One’s own use of alcohol, drugs, or other substances does not diminish one’s responsibility to obtain Consent from the other person. Another person’s use of alcohol, drugs, or other substances does not diminish one’s responsibility to obtain Consent from that person.
  7. Force
    1. Force includes physical force (such as pushing, hitting, pinning down), threats (direct or indirect expressions of intent to inflict harm to self or others), intimidation (implied or indirect threats), and/or other forms of coercion.To coerce is to attempt to cause another person to act or think in a certain way by use of force, pressure, threats, or intimidation; to compel is to coerce.

H. Incapacitation

  1. A person violates this policy when they engage in sexual activity with another person who is incapacitated under circumstances in which a reasonable person would have known the other person to be Incapacitated. For evaluating Incapacitation, a “reasonable person” means a sober, objectively reasonable person in the same situation, with ordinary sensitivities, and with similar identities as the Respondent.
     
  2. Incapacitation can be voluntary or involuntary. Signs of Incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness of circumstances or surroundings; emotional volatility; combativeness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances.
     
  3. Blacking out is an amnesia-like state that may be brought on by drugs, heavy drinking, or intoxication; blacking out is not necessarily incompatible with the ability to engage in simple or even complex behavior. After blacking out, a person has no recollection of all or part of the events that occurred during the blackout. There is a distinction between passing out (falling asleep or becoming unconscious) due to drug or alcohol use and blacking out in that a person in a blackout remains conscious and operative.
     
  4. Incapacitation or Incapacitated means a person’s inability, temporarily or permanently, to communicate a willingness to participate in an activity (e.g., sexual activity) because of mental or physical helplessness, sleep, unconsciousness, or other lack of awareness that the activity is taking place. Incapacitation can be voluntary or involuntary. Signs of Incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness of circumstances or surroundings; emotional volatility; combativeness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances. Alcohol and drugs (including “date rape” drugs) are common causes of Incapacitation. When alcohol or drugs are involved, Incapacitation is a state beyond mere drunkenness or intoxication.
     
  5. Severe and Pervasive. Severe means behavior that is more than antagonistic, non-consensual, and crass, even where the behavior is based on differences in sex or gender. Pervasive means systemic or widespread, and it necessarily involves more than one incident of sexual harassment.  Sources: Kollaritsch v. Michigan State Board of Trustees, 944 F.3d 613, 620-21 (6th Cir. 2019) (citing Davis v. Monroe County Board of Educ., 526 U.S. 629, 651-53 (1999)); Doe v. Univ. of Kentucky, 959 F.3d 246, 250 (6th Cir. 2020).

09/14; 01/15/ 05/16; 08/20