Relationship Violence and Sexual Misconduct Policy

Eastern Mennonite University (EMU) is committed to establishing and maintaining a community rich in equality and free from all forms of discrimination and harassment. As an institution rooted in the values of Christian discipleship, community, service, and peacebuilding; EMU commits itself to the highest standards of personal and professional conduct. Relationship violence and sexual misconduct are prohibited at EMU. Relationship violence and sexual misconduct are community issues and can only be prevented through active community participation.

As a Christian institution of higher education, EMU affirms that relationship violence and sexual misconduct is harmful to the individuals involved as well as to the campus community. Furthermore, instances of relationship violence and sexual misconduct are often experienced as trauma and can thus have lasting impacts even many years after the originating event/incident. EMU recognizes that healing from sexual violence is a process that often takes time, resources, and empathic support. Many individuals in the university community are survivors of multiple forms of trauma, including: historical trauma, repeated victimization, marginalization, discrimination, and other forms of violence. EMU seeks to ground this policy and procedures within this awareness and understanding.

The university will take prompt and equitable action to eliminate relationship violence and sexual misconduct, prevent its recurrence, and repair the harm that has been caused. When the conduct has a propensity to create a hostile, manipulative, or coercive environment on campus, the university obligates itself to respond in support of victims/survivors, the campus community, and others who have been impacted. EMU commits itself to proactively build a campus community that prioritizes health and safety. The university strives to achieve this by ensuring the safety of those who have been harmed, holding accountable those who have done harm, and addressing the root causes of relationship violence and sexual misconduct.

EMU commits itself to the prevention of relationship violence and sexual misconduct, and commits itself to response efforts that are focused in the following ways: through policies that reflect EMU values and meet federal and state guidelines, a response procedure that is clear and supportive, ongoing sexual violence prevention and healthy relationship education, and establishing and maintaining a community that is survivor-supportive.

The purpose of the Relationship Violence and Sexual Misconduct Policy is to define relationship violence and sexual misconduct, describe the process for reporting violations of the policy, outline the procedure used to investigate and resolve alleged violations of policy, and identify resources available to members of the EMU community who are involved in an incident of relationship violence and/or sexual misconduct.

In order to establish and maintain a campus community that values the dignity of all, this policy and resolution procedure commits the university to:

  1. identify the forms of relationship violence and sexual misconduct that violate this policy;
  2. disseminate clear policies and procedures for responding to relationship violence and sexual misconduct or other forms of prohibited conduct reported to the university;
  3. develop an ongoing coordinated effort for delivering prevention and awareness programs and ongoing training and education programs to students, faculty, and staff so they
    • may identify what behavior constitutes relationship violence and sexual misconduct and other misconduct described in the policy;
    • understand how to report such misconduct;
    • recognize warning signs of potentially abusive behavior and ways to reduce risks; and
    • learn about 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 relationship violence and sexual misconduct or other forms of prohibited conduct against a person other than such individual;
  4. engage in investigative inquiry and resolution of reports that are adequate, reliable, impartial, prompt, fair, and equitable;
  5. support those who have been harmed and holding persons accountable for established violations of this policy; and
  6. provide a written explanation of the rights and options available to every student or employee that has been the victim of relationship violence and sexual misconduct, both complainant and respondent, regardless of when or where the conduct occurred.

In addition, this policy identifies the university’s Title IX coordinator, deputy Title IX coordinators, and Title IX investigators and describes their roles; identifies how students, faculty, and staff can report relationship violence and sexual misconduct or other forms of prohibited conduct to the university, confidentially, and what resources are available on- and off-campus to aid them including the right to notify local law enforcement, be assisted in that notification, and their right to decline to notify such authorities.; provides information about how reports are assessed, investigated, and resolved; and provides the university with a means to take all reasonable steps to identify relationship violence and sexual misconduct, support prevention of its recurrence and the repair of harmful effects on the complainant and others, as appropriate.

Eastern Mennonite University prohibits harassment of, and discrimination against, any and all community members. This policy applies to students who are registered or enrolled for credit- or non-credit-bearing coursework (students); all university employees, consisting of full-time and part-time faculty and staff—including temporary(employees); and contractors, vendors, visitors, volunteers, guests, or other third parties (third parties).

This policy pertains to acts of relationship violence and sexual misconduct or other forms of prohibited conduct that may be based on sex or gender committed by or against students, employees and third parties when:

  1. the conduct occurs on university property or other property owned or controlled by the university;
  2. the conduct occurs in the context of a university employment or education program or activity including, but not limited to, university sponsored cross-culturals, # research, online, or internship programs;
  3. the conduct occurs off-campus but is likely to have a substantial adverse effect on any member of the EMU community; or
  4. the conduct occurs outside the context of a university employment or education program or activity but has continuing adverse effects on, or has the propensity to create a hostile environment for students, employees, or third parties while on university property, other property owned or controlled by the university, or in any university employment or education program/activity.

The university is committed to maintaining an environment free from harassment and discrimination for everyone and does not discriminate on the basis of race, sex, national origin, religion, sexual orientation, gender identity or expression, or any other protected status in any of its education or employment programs and activities. This policy prohibits specific forms of behavior that may violate Title IX of the Education Amendments of 1972 (Title IX); relevant provisions of the Violence Against Women Reauthorization Act of 2013 (VAWA); Title VII of the Civil Rights Act of 1964 (Title VII); the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act); and the Virginia Human Rights Act.

The university recognizes that it is important to coordinate this policy with other existing policies related to harassment and discrimination knowing that harassment related to an individual’s sex, sexual orientation, gender identity or gender expression can occur in conjunction with misconduct and harassment related to a person’s race, ethnicity, national origin, religion, age, pregnancy or parenting status, disability, and/or other protected status. Therefore, when a report is made of harassment or discrimination based on sex as well as harassment or discrimination based on some other protected status, the university’s response will be governed by the procedures referenced in this policy. Questions about which policy applies in a specific instance should be directed to the Title IX coordinator.
This policy covers relationship violence and sexual misconduct. This policy does not specifically cover items under Title VII. Employees should seek further information regarding equal opportunity, disability, harassment, discrimination and retaliation that is not based on sex or gender with the director of human resources, Marcy Engle, at (540) 432-4148 or marcy.engle@emu.edu.

Bias

Bias is prejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair. Due to the identity of EMU as a small, historically denominationally affiliated university, as well as human nature, the university recognizes that biases exist. EMU makes every effort to recognize and mitigate the impacts of bias. The university strongly encourages all parties involved to identify, name, and work to address the various forms of bias that may impact the campus community.

Conflict of Interest

Conflict of interest means that a person may have the potential to undermine the impartiality of a process due to the possibility of a conflict between the person’s self-interest and professional interest or public interest. The university makes every effort to identify and prevent conflicts of interest at any and every level. Should a conflict of interest be identified, the university will identify and utilize alternative (up to and including external) resources.

The university is committed to protecting the privacy of all individuals involved in the investigation and resolution of a report under this policy. The university will provide assistance to help students, employees and third parties make informed choices. With respect to any report under this policy, the university will make reasonable efforts to protect the privacy of participants, in accordance with applicable state and federal law, while balancing the need to gather information to assess the report and to take steps to eliminate relationship violence and sexual misconduct and associated conduct, prevent its recurrence, and remedy its effects.

Privacy and confidentiality have distinct meanings under this policy.

Privacy: Privacy means that information related to a report of relationship violence and sexual misconduct or other forms of prohibited conduct will be shared with a limited circle of university employees who have legitimate interests to assist in the assessment, investigation, and resolution of the report. All employees who are involved in the university’s response to reports of relationship violence and sexual misconduct or other forms of prohibited conduct receive specific training and guidance about sharing and safeguarding private information in accordance with federal and state law.

Further, the university will privately maintain any accommodations or protective measures provided to the complainant or respondent to the extent that maintaining such privacy would not impair the university’s ability to provide the accommodations or protective measures.

The privacy of student education records will be protected in accordance with the Family Educational Rights and Privacy Act (FERPA). All documentation related to a student’s report, investigation, and resolution are protected by FERPA and will not be released, except as required by law. Non-identifying information about a report may be shared with Campus Safety and Security to comply with the Clery Act. A complainant’s name will never be published in connection with the university’s obligations under the Clery Act. In addition, any person involved in relationship violence and/or sexual misconduct may request that their directory information on file be removed from public sources by contacting the Title IX coordinator at titleixcoordinator@emu.edu or by calling 540-432-4302.

The privacy of an individual’s medical and related records is generally protected by the Health Insurance Portability and Accountability Act (HIPAA), except health records protected by FERPA and by Virginia’s Health Records Privacy Act, Va. Code § 32.1-127.1:03. Access to an employee’s personnel records may be restricted in accordance with the Virginia Freedom of Information Act (FOIA).

Confidentiality: Confidentiality means that information shared by an individual with designated confidential campus or community professionals cannot be revealed to any other individual without expressed permission of the individual. These campus and community professionals include medical and clinical care providers (and those who provide administrative services related to the provision of medical and clinical care), mental health providers, counselors, and licensed and/or credentialed pastors acting in that capacity, all of whom may engage in confidential communications under Virginia law. The university has designated individuals who can have privileged communications as confidential employees. Confidential employees are prohibited from breaching confidentiality unless there is an imminent threat of harm to self or others or the disclosure is otherwise legally permitted or required. Mental health service providers are required to hold a state license in order to qualify as a confidential employee at EMU. Non-identifying, aggregate data may be shared for statistical purposes consistent with the Clery Act.

The following classifications of individuals are confidential employees under university policy:

Licensed mental health clinicians with the Commonwealth of Virginia and those clinicians in training whose official university responsibilities include providing mental health counseling to members of the campus community are not required by Title IX to report any information regarding an incident of relationship violence, sexual misconduct or other forms of prohibited conduct to the Title IX coordinator or other university officials.

Medical health professionals who are registered with the Commonwealth of Virginia and whose official university responsibilities include providing health services to members of the campus community are not required by Title IX to report any information regarding an incident of relationship violence and sexual misconduct or other forms of prohibited conduct to the Title IX coordinator or other university officials.

Pastors who are licensed and/or credentialed and whose official university responsibilities are to provide pastoral counseling to members of the university community are not required by title in the official capacity of pastoral counseling. For example, students may disclose sexual abuse to a pastor who is their faculty member for purposes of getting help, receiving an academic extension or accommodation or the like. If this disclosure is received in the context of the pastor’s role as a faculty member, the information is required to be reported to the Title IX coordinator.

Employee reporting responsibilities: Title IX uses the concept of notice, and imposes obligations for a “prompt and effective remedy” on colleges and universities when notice of a sex and/or gender discrimination or harassment is given to a responsible employee. A school has notice if a responsible employee knew, or in the exercise of reasonable care should have known, about the harassment. A responsible employee is every faculty, staff, and volunteer on campus who works with students or minors, (with the exception of the confidential employees named above), and every person identified as a campus security authority (CSA) under the Clery Act must immediately report to the Title IX coordinator any relationship violence, sexual misconduct or other forms of prohibited conduct reported to them or observed by them, including the name of the complainant and respondent, if known, and all known details. This reporting can be done by emailing titleixcoordinator@emu.edu, calling (540)432-4302, or completing a campus safety form found at https://emu.edu/safecampus/. The university requires everyone in the campus community, including confidential employees, to report the suspected abuse of children (those under the age of 18).

Public awareness events or other open forums such as “Take Back the Night,” candlelight vigils, protests, “survivor speak outs,” in which students, staff, or faculty members disclose incidents of relationship violence and sexual misconduct, are not considered a report or notice to the university of relationship violence, sexual misconduct or other forms of prohibited conduct for purposes of initiating the university’s obligation to investigate any particular incident(s). Such events may, however, inform the need for campus-wide education and prevention efforts, and the university will provide information about Title IX, Clery Act, and Violence Against Women Act, rights at these events. Similarly, information disclosed during a student’s participation as a subject in an Institutional Review Board-approved human subjects research protocol (IRB Research) is not considered a report of relationship violence and/or sexual misconduct or other forms of prohibited conduct for purposes of initiating the university’s obligation to investigate any particular incident(s). Institutional Review Boards may, in appropriate cases, require researchers to provide such information to all student subjects of IRB Research.

Request for anonymity by a complainant: Victims of relationship violence or sexual misconduct may request anonymity, including that their name not be shared with the respondent, that the respondent not be notified of the report, or that no investigation occur. Where the complainant requests that their identity not be shared with the respondent or that the university not pursue an investigation, the university will balance this request with the university’s responsibility to provide a safe and non-discriminatory environment for all university community members. The university, through the Title IX coordinator, will take all reasonable steps to investigate and respond to the complaint consistent with the request not to share identifying information or pursue an investigation, but its ability to do so may be limited. If the victim wants to tell the responsible employee what happened, but also wants to maintain anonymity, the employee should tell the victim that the university will consider the request but cannot guarantee anonymity. Requests for anonymity are balanced against the following factors:

  1. the respective ages and roles of the complainant and respondent;
  2. whether there have been other reports of relationship violence, sexual misconduct or other forms of prohibited conduct under this policy involving the respondent;
  3. whether the circumstances suggest there is a risk of the respondent committing additional acts of relationship violence and sexual misconduct;
  4. whether the respondent has a history of arrests or records indicating a history of violence;
  5. whether the report indicates the respondent threatened further sexual violence or other violence against the complainant and other individuals involved;
  6. whether the reported conduct was committed by multiple individuals;
  7. whether the circumstances suggest there is a risk of future acts of relationship violence, sexual misconduct or other forms of prohibited conduct under similar circumstances;
  8. whether the reported conduct was perpetrated with a weapon;
  9. whether the university possesses other means to obtain relevant evidence (e.g., security cameras or personnel, physical evidence).

Where the university is unable to act consistent with the request of the complainant, the Title IX coordinator will inform the complainant about the chosen course of action, which may include the university seeking disciplinary action against a respondent. Alternatively, the course of action may also include steps to eliminate the effects of the relationship violence, sexual misconduct or other forms of prohibited conduct and prevent its recurrence that do not involve formal disciplinary action against a respondent or revealing the identity of the complainant.

Where the university determines that it must move forward with an investigation despite a complainant’s request for anonymity, the university will notify the complainant and will make reasonable efforts to protect the privacy of the complainant to the extent possible. However, certain actions that may be required as part of the university’s response, including an investigation and disciplinary resolution, will involve speaking with the respondent and others who may have relevant information, in which case the complainant’s identity may have to be disclosed. In such cases, the university will notify the complainant that it intends to move forward with an investigation, but in no event will the complainant be required to participate in any such actions undertaken by the university.

Conduct Prohibited Under this Policy

The University prohibits the following forms of conduct:

Relationship Violence

  • Domestic Violence
  • Dating Violence
  • Intimate Partner Violence
  • Stalking
  • Bullying and Intimidation
  • Hazing
  • Retaliation

Sexual Misconduct and Sexual Violence

  • Sexual Harassment
  • Gender-based harassment
  • Sexual Assault
  • Sexual Exploitation
  • Indecent Exposure

Conduct under this policy is prohibited regardless of the sex, sexual orientation and/or gender identity/expression of the complainant or respondent. Relationship violence, sexual misconduct or other forms of prohibited conduct includes the following specifically defined forms of behavior: domestic violence, dating violence, intimate partner violence, stalking, bullying and intimidation, hazing, retaliation, sexual harassment, gender-based harassment, sexual assault, sexual exploitation, and indecent exposure, and forms of complicity to any of these forms of behavior.

Relationship violence is a broad term that encompasses domestic violence, dating violence, intimate partner violence, and stalking (definitions provided below). Relationship violence often includes ongoing emotional, psychological, physical, and fiscal abuse. Though this policy addresses physical acts of relationship violence, individuals experiencing other facets of relationship violence should seek help from campus resources, regardless of whether the abuse is occurring on-campus.

An incident of relationship violence can consist of a single act of violence or a pattern of violent acts that includes, but is not limited to, sexual or physical abuse.

When analyzing allegations of relationship violence, the following factors are considered:

  1. the existence of any power differential between the parties;
  2. the existence of fear by either party, tied to verbal threats and/or specific behaviors that can determine abuse; and
  3. the context of behavior (e.g. a history of coercive controlling tactics by one party over the other; one party acting in self-defense or in response to recent violations, abuse, threats, or coercive tactics).

Domestic violence is violence committed by a current or former spouse, or sexual or intimate partner of the alleged victim, a person who is living as a spouse or who lived as a spouse with the alleged victim, parents and children, other persons related by blood or marriage, or by a person with whom the alleged victim shares a child in common. Under the criminal laws of Virginia certain offenses, including but not limited to, rape, aggravated assault and stalking, can be deemed domestic violence depending on the relationship of the parties involved.

Dating violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the alleged victim. The existence of such a relationship will be determined based on the reporting party’s statement, taking into consideration the following factors: a) the length of the relationship, b) the type of relationship, and c) the frequency of interaction between the persons involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.

Intimate-partner violence includes dating violence, domestic violence, and relationship violence, includes any act of violence or threatened act of violence against a person who is, or has been involved in, a sexual, dating, domestic, and/or other intimate relationship with that person. It may involve one act or an ongoing pattern of behavior.

Stalking occurs when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear bodily injury or to experience substantial emotional distress.

Course of conduct means two or more acts, including but not limited to acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to, or about another person, or interferes with another person’s property.

A reasonable person means a person under similar circumstances and with similar identities to the victim.

Substantial emotional distress means significant mental suffering or anguish.

Stalking includes cyber-stalking, a particular form of stalking in which a person uses electronic media, such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact.

Bullying includes any intentional electronic, written, verbal, or physical act or a series of acts of physical, social, or emotional domination that cause physical or emotional harm to another student or group of students. Bullying conduct may not only cause a negative effect on individuals targeted but also others who observe the conduct. Bullying conduct is severe, persistent, or pervasive and has the effect of doing any of the following:

  1. substantially interfering with a community member’s education, employment, or full enjoyment of the university;
  2. creating a threatening or intimidating environment; or
  3. substantially disrupting the orderly operation of the university. Bullying is prohibited, and participating in such acts will result in disciplinary action.

Intimidation is any verbal, written, or electronic threats of violence or other threatening behavior directed toward another person or group that reasonably leads the person(s) in the group to fear for her/his physical well-being. Intimidation is prohibited and will result in disciplinary action.
Anyone who attempts to use bullying or intimidation to retaliate against someone who reports an incident, brings a complaint, or participates in an investigation in an attempt to influence the Title IX conduct process will 
be in violation of retaliation as described within this policy and will be subject to disciplinary action.
When acts of bullying and intimidation occur in the context of intimate partner violence or when the behavior is perpetrated on the basis of sex or gender, the conduct will be resolved under the Relationship Violence and Sexual Misconduct Policy.

Hazing is defined as actions which are initiated against someone’s will by harassing through force, banter, ridicule or criticism. In some cases conduct may implicate both the student disciplinary procedures and the Relationship Violence and Sexual Misconduct Policy. Hazing is an act that, as an explicit or implicit condition for initiation to, admission into, affiliation with, or continued membership in a group organization, could be seen by a reasonable person as endangering the physical health of an individual or as causing mental distress to an individual through, for example, humiliating, intimidating, or demeaning treatment; destroys or removes public or private property; involves the consumption of alcohol, other drugs, or other substances; or violates any of the policies of the university. Hazing that involves sexual misconduct will be resolved under the Relationship Violence and Sexual Misconduct Policy.

Retaliation is any act or attempt to retaliate against or seek retribution from any individual or group of individuals. Retaliation can take many forms, including continued abuse or violence, threats, and intimidation. Retaliation can occur in many venues, including face-to-face or group-to-group content on public bulletin boards, classroom discussions, or social media.

Sexual misconduct is a broad term that encompasses sexual harassment, sexual violence, and sexual exploitation, and sexual contact. Definitions of relevant terms are included below.

Sexual harassment is a form of unlawful gender discrimination. Sexual harassment means unwelcome sexual advances, unwelcome requests for sexual favors, or other unwelcome behavior of a sexual nature. Sexual harassment violates university policy when:

  1. submission to, or rejection of, such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any university programs and/or activities; or
  2. submission to or rejection of such conduct is used as the basis for university decisions affecting the individual (often referred to as “quid pro quo” harassment); or
  3. such conduct creates a hostile environment. A hostile environment exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits, or deprives an individual from participating in or benefitting from the university’s education or employment programs and/or activities.

Conduct must be deemed severe, persistent, or pervasive from both a subjective and an objective perspective. In evaluating whether a hostile environment exists, the university will consider the totality of known circumstances, including, but not limited to:

  1. the frequency, nature and severity of the conduct;
  2. whether the conduct was physically threatening;
  3. the effect of the conduct on the complainant’s mental or emotional state;
  4. whether the conduct was directed at more than one person;
  5. whether the conduct arose in the context of other discriminatory conduct;
  6. whether the conduct unreasonably interfered with the complainant’s educational or work performance and/or university programs or activities; and
  7. whether the conduct implicates concerns related to academic freedom or protected speech.

A hostile environment can be created by persistent or pervasive conduct or by a single or isolated incident, if sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. A single incident of sexual assault, for example, may be sufficiently severe to constitute a hostile environment. In contrast, the perceived offensiveness of a single verbal or written expression, standing alone, is typically not sufficient to constitute a hostile environment. The conduct does not have to be directed at a specific person or persons to constitute harassment.

Examples of behavior that may constitute sexual harassment, if sufficiently severe, persistent or pervasive, include the following:

  1. calling someone by a sexually-oriented or demeaning name;
  2. giving someone unwanted gifts of a sexual nature;
  3. displaying sexually-suggestive materials or sending notes, email, or jokes to a person that are sexually explicit;
  4. touching someone sexually without their consent;
  5. massaging someone without permission;
  6. brushing up against someone repeatedly;
  7. continuing to ask out a person who already has said he or she is not interested; or
  8. exposing your private parts to another person.

Gender-based harassment includes harassment based on gender, sexual orientation, gender identity, or gender expression which may include acts of aggression, intimidation, or hostility, whether verbal or non-verbal, graphic, physical, or otherwise even if the acts do not involve conduct of a sexual nature, when the conditions outlined below are present:

  1. submission to, or rejection of, such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any university programs and/or activities; or
  2. submission to or rejection of such conduct is used as the basis for university decisions affecting the individual (often referred to as quid pro quo harassment); or
  3. such conduct creates a hostile environment. A hostile environment exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits, or deprives an individual from participating in, or benefitting from, the university’s education or employment programs and/or activities.

Sexual assault consists of sexual contact and/or sexual intercourse that occurs without affirmative consent.

Sexual contact is any intentional sexual touching, however slight with any object or body part (as described below), performed by a person upon another person.
Sexual contact includes:

  1. intentional touching of the breasts, buttocks, groin or genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; and
    making another touch you or themselves with or on any of these body parts.

Sexual intercourse is any intentional penetration, however slight, with any object or body part (as described below), performed by a person upon another person, sexual intercourse includes:

  1. vaginal penetration by a penis, object, tongue, or finger;
  2. anal penetration by a penis, object, tongue, or finger; and
  3. any contact, no matter how slight, between the mouth of one person and the genitalia of another person.

Affirmative consent is:

  • informed (knowing)
  • voluntary (freely given)
  • active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity

Affirmative consent cannot be obtained by force.
Force includes

  • the use of physical violence,
  • threats,
  • intimidation, and/or
  • coercion, physical violence means that a person is exerting control over another person through the use of physical force. Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking, and brandishing or using any weapon.

Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples include threats to harm a person physically, to reveal private information to harm a person’s reputation, or to cause a person academic or economic harm.

Intimidation is an implied threat that menaces or causes reasonable fear in another person. A person’s size, alone, does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g., blocking access to an exit).

Coercion is the use of pressure to compel another individual to initiate or continue sexual activity against an individual’s will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity.
Examples of coercion include:

  • threatening to “out” someone based on sexual orientation, gender identity, or gender expression.
  • threatening to harm oneself if the other party does not engage in the sexual activity.
  • grooming an individual for the purposes of relationship violence and/or sexual misconduct.

In evaluating whether coercion was used, the university will consider: the frequency of the application of the pressure, the intensity of the pressure, the degree of isolation of the person being pressured, the duration of the pressure and the power differential between parties.

Affirmative consent and incapacitation

Affirmative consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated. Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity.

A person who is incapacitated is unable, temporarily or permanently, to give affirmative consent because of mental or physical helplessness, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. A person may be incapacitated as a result of the consumption of alcohol or other drugs, or due to a temporary or permanent physical or mental health condition.

Incapacitation describes an individual who lacks the ability
 to make informed, rational judgments and cannot consent to sexual activity. Incapacitation is defined as the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring.

The university offers the following guidance on affirmative consent and assessing incapacitation:

A person who wants to engage in a specific sexual activity is responsible for obtaining affirmative consent for that activity. Lack of protest does not constitute affirmative consent. Lack of resistance does not constitute affirmative consent. Silence and/or passivity also do not constitute affirmative consent. Relying solely on non-verbal communication before or during sexual activity can lead to misunderstanding and may result in a violation of this Policy. It is important not to make assumptions about whether a potential partner is consenting. In order to avoid confusion or ambiguity, participants are encouraged to talk with one another before engaging in sexual activity. If confusion or ambiguity (including emotional and/or physical freezing) arises during sexual activity, participants are encouraged to stop and clarify a mutual willingness to continue that activity.

affirmative consent to one form of sexual activity does not, by itself, constitute affirmative consent to another form of sexual activity. For example, one should not presume that affirmative consent to oral-genital contact constitutes affirmative consent to vaginal or anal penetration. Affirmative consent to sexual activity on a prior occasion does not, by itself, constitute affirmative consent to future sexual activity. In cases of prior relationships, the manner and nature of prior communications between the parties and the context of the relationship may have a bearing on the presence of affirmative consent.

affirmative consent may be withdrawn at any time. An individual who seeks to withdraw affirmative consent must communicate, through clear words or actions, a decision to cease the sexual activity. Once affirmative consent is withdrawn, the sexual activity must cease immediately.

Incapacitation and alcohol/drugs

Incapacitation may result from the use of alcohol and/or drugs. Incapacitation is a state beyond drunkenness or intoxication. The impact of alcohol and other drugs varies from person-to-person.

Warning signs that a person may be approaching incapacitation may include:

  • slurred speech
  • vomiting
  • unsteady gait
  • odor of alcohol
  • combativeness
  • emotional volatility

Guidance for evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects an individual, with respect to:

  • decision-making ability
  • awareness of consequences
  • ability to make informed judgments
  • capacity to understand the implications and consequences of the act

In general, the university considers sexual contact
 while under the influence of alcohol or other drugs to be risky behavior. Alcohol and drugs impair a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.

In evaluating affirmative consent and in cases of alleged incapacitation, the university asks two questions: (1) did the person initiating sexual activity know that the other party was incapacitated? and if not, (2) should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “yes,” affirmative consent was absent, and the conduct is likely a violation of this policy.

Examples of sexual assault

Examples of behavior that may constitute sexual assault include, but are not limited to the following:

  • engaging in sexual activity with an unconscious or semi-conscious person;
  • engaging in sexual activity with someone who is asleep or passed out;
  • engaging in sexual activity with someone who has said “no” or has otherwise indicated through non-verbal communication that they do not consent to sexual activity;
  • engaging in sexual activity with someone who is vomiting, unable to stand without assistance, or has to be carried to bed;
  • allowing another person to engage in sexual activity with your sexual partner without his or her consent;
  • requiring any person to perform any sexual activity as a condition of acceptance into any organization affiliated with the university;
  • telling someone you will “out” them if they don’t engage in sexual activity (e.g., threatening to disclose the person’s sexual orientation without their consent);
  • telling someone you will fail them or give them a grade different from what they deserve if they don’t agree to engage in sexual activity; or
  • facilitating or assisting in a sexual assault including purchasing or providing alcohol or drugs to further a sexual assault.

Sexual exploitation is purposely or knowingly doing any of the following:

  • causing the impairment or incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give affirmative consent to sexual activity;
  • allowing third parties to observe sexual activity from a hidden location (e.g., closet) or through electronic means (e.g., Skype or live-streaming of images);
  • engaging in voyeurism (e.g., watching private sexual activity without the consent of the participants or viewing another person’s intimate parts (including genitalia, groin, breasts or buttocks) in a place where that person would have a reasonable expectation of privacy);
  • recording or photographing sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without affirmative consent;
    disseminating or posting images of private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without affirmative consent;
  • prostituting another person; or
  • exposing another person to a sexually transmitted infection or virus without the other’s knowledge.

A person commits indecent exposure if that person exposes their genitals, buttocks and breasts in any public place or in any place where there are other persons present and under circumstances in which one knows or should know that this conduct is likely to offend, affront, or alarm.

Complicity is any act taken with the purpose of aiding, facilitating, protecting, promoting or encouraging the commission of an act of relationship violence, sexual misconduct or other forms of prohibited conduct by another person.

Behavior that violates this policy may also constitute a crime under the laws of the jurisdiction in which the incident occurred. For example, the Commonwealth of Virginia criminalizes and punishes some forms of sexual assault, intimate partner violence, sexual exploitation, stalking, and physical assault. The criminal statutes that may apply in cases of physical assault and intimate partner violence are found in various sections of Chapter 4, Articles 1 (Homicide) and 4 (Assaults and Bodily Woundings), of Title 18.2 of the Code of Virginia. The criminal statutes relating to sexual assault are found in Sections 18.2-61 to 18.2-67.10 of the Code of Virginia. Section 18.2-60.3 of the Code of Virginia defines and identifies the penalty for criminal stalking. Finally, Sections 18.2-386.1 and 18.2-386.2 of the Code of Virginia provide for criminal penalties in some cases of sexual exploitation. This compilation of criminal statutes is not exhaustive, but is offered to notify the university community that, some forms of prohibited conduct may also constitute crimes under Virginia law, which may subject a person to criminal prosecution and punishment in addition to any sanctions under this policy.

Employee-to-employee

Eastern Mennonite University strongly discourages romantic or sexual relationships between an employee and his or her manager and between junior and senior faculty members. In these circumstances, even when both parties have consented, the relationship can give rise to problems that compromise the professional integrity of staff and faculty, and may generate charges of unfair treatment or of sexual harassment.

The university views romantic or sexual relationships between employees and their managers, between faculty members, and between administrators and students in the same light; these relationships are also characterized by significant power differentials and are subject to the same liabilities.

If you are engaged in a romantic or sexual relationship with another employee whom you instruct, supervise, evaluate, or advise, it is your professional responsibility to inform the director of human resources so that the director of human resources can discuss and assess the situation with you to determine whether it is appropriate to make changes to the instructional, advisory, evaluative, or supervisory relationship. Information disclosed in these discussions shall be treated as confidential, and disclosure to others shall be made only on a need-to-know basis.

Please note: In the event you are the subject of a report of sexual harassment and if the facts show that you were engaged in a romantic or sexual relationship with someone whom you instructed, supervised, evaluated or advised, and you did not advise your Provost or HR of the existence of that relationship so that steps could have been taken to change, if appropriate or necessary, the instructional, advisory, evaluative, or supervisory relationship, the University may decline to assist you in your legal defense against the allegation(s), and you, not the University , may bear any litigation costs or fees associated with your legal defense. In addition, you may face disciplinary action, up to and including termination, for any substantiated misconduct resulting from such relationship.

Employee-to-student

Sexual or romantic relationships between employees and students are prohibited at EMU and are particularly problematic. The university agrees with the American Association of University Professors statement:

“Sexual relations between students and faculty members with whom they also have an academic or evaluative relationship are fraught with the potential for exploitation. The respect and trust accorded a professor by a student, as well as the power exercised by the professor in an academic or evaluative role, make voluntary consent by the student suspect. Even when both parties initially have consented, the development of a sexual relationship renders both the faculty member and the institution vulnerable to possible later allegations of sexual harassment in light of the significant power differential that exists between faculty members and students.”

Employees are prohibited from engaging in romantic or sexual relationships with students. Consequently, should the university discover that an employee is engaged in this conduct, this will be deemed a policy violation and will be grounds for immediate dismissal from EMU.

Additional terms used in this policy are defined below.

ADVISOR: an employee of EMU who has received Title IX training, is familiar with EMU’s Relationship Violence and Sexual Misconduct Policy and Procedures and is approved by the Title IX coordinator to provide guidance for the complainant and/or the respondent through the Title IX process. All complainants and respondents will be offered an advisor at the initial meeting with the Title IX Coordinator.

ADVOCATE: a person chosen by the complainant or respondent to be an emotional support person through the Title IX process. The advocate cannot be a participant or witness in the investigation.

COMPLAINANT: Any member of the university community seeking a formal disciplinary process in response to relationship violence or sexual misconduct.

EMPLOYEE: Any individual who receives compensation for the performance of their duties.

FERPA: The Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g; 34 C.F.R. Part 99.

“FREEZING”: A known response to trauma, evidenced by emotional and/or physical immobility (not speaking, not participating, lack of eye contact, confusion).

GENDER: Used synonymously with sex to denote whether a person anatomically is male or female at birth, e.g., “he’s a boy” or “she’s a girl.”

GENDER BIAS: A preformed negative opinion or attitude toward a person or group of persons based on their actual or perceived gender, e.g., male or female.

GENDER IDENTITY: A person’s internal sense of being male, female, or a combination of both; that internal sense of a person’s gender may be different from the person’s gender at birth. Note: A transgender person may express their gender identity through gender characteristics, such as clothing, hair, voice, mannerisms, or behaviors that do not conform to the gender-based expectations of society.

GENDER IDENTITY BIAS: A preformed negative opinion or attitude toward a person or group of persons based on their actual or perceived gender identity, e.g., bias against transgender or gender nonconforming individuals.

GENDER NONCONFORMING: A person who does not conform to the gender-based expectations of society, e.g., a woman dressed in traditionally male clothing or a man wearing makeup.

PREPONDERANCE OF THE EVIDENCE: A standard of proof in which the totality of the evidence offered in support of a fact is greater or more convincing than the evidence which is offered in opposition to it, given the totality of information the version of events that is more likely than not. Preponderance of the evidence is understood to require more than 50 percent certainty to determine responsibility for violating university policy (51% or greater). Preponderance of the evidence is the standard of proof.

RELATIONSHIP VIOLENCE: Relationship violence is a broad term that encompasses domestic violence, dating violence, intimate partner violence, and stalking.

RESPONDENT: Any member of the University community who has been alleged to have violated the Relationship Violence and Sexual Misconduct Policy.

SEXUAL MISCONDUCT: A broad term that includes sexual or gender-based harassment, sexual assault, sexual exploitation, intimate partner violence, stalking, complicity and retaliation.

STUDENT:
A student will be considered enrolled if the following conditions are met:

  1. the student is pre-registered for courses in any term (fall, spring or summer); and
  2. the student’s attendance in at least one class has been verified.

After classes begin, students need to be attending classes to continue their enrollment status. Students are considered continuously enrolled when they are registered for consecutive fall and spring terms. Please note that those who arrive to campus prior the start of classes for official university functions including, but not limited to student employment, trainings, athletics, orientation staff, etc. are considered Eastern Mennonite University students.

THIRD PARTY:
A third party is any person on campus that is not directly employed by the university but is contracted to provide services to the university community.

TITLE IX:
Under Title IX, no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

TITLE IX COORDINATOR:
The Title IX coordinator is responsible for overseeing and resolving all Title IX complaints and identifying and addressing any patterns or systemic concerns that arise during the review of such reports. The coordinator’s responsibilities include oversight of a prompt, fair, equitable investigation and resolution process for reports of relationship violence, sexual misconduct or other forms of prohibited conduct at the university. The Title IX coordinator also evaluates trends on campus by using information reported to them and makes recommendations for campus wide training and education programs and other remedial actions designed to eliminate relationship violence and sexual misconduct, prevent its recurrence, and address its effects.

In addition to the Title IX coordinator’s core responsibilities, additional services to the university community will include working with campus resources to provide ongoing training to new/current students, faculty, and staff on Title IX issues and procedures. The university will ensure that responsible employees with the authority to address sexual violence, including sexual harassment, know how to respond appropriately to reports of prohibited conduct, that they are obligated to report relationship violence, sexual misconduct or other forms of prohibited conduct to the Title IX coordinator, and that all employees understand how to respond to such reports.

Title IX Coordinator: Irene Kniss; 540-432-4302; titleixcoordinator@emu.edu

TITLE IX INVESTIGATORS/DEPUTIES
The Title IX investigators/deputies serve as designees for the Title IX coordinator to carry out the investigation of the case and prepare a written preliminary investigation report and a final investigation report after the investigation is completed. The Title IX investigators/deputies conduct thorough and impartial investigations into the facts of a case including interviewing the complainant, respondent, witnesses or others who may have relevant information, and collecting any other evidence deemed relevant to a case.

TITLE IX ADVISORS
Title IX advisors are EMU faculty and staff members whose role is to be a process support person for any party involved in any part of a Title IX process (reporting, investigating, adjudicating, etc.). Title IX advisors are trained and are aware of the Relationship Violence and Sexual Misconduct Policy, including the procedures. The advisor cannot be a witness in the proceedings. At the discretion of the complainant or respondent, the advisor may accompany the complainant or respondent to any meeting/hearing related to these procedures.

The university encourages all community members to report relationship violence or sexual misconduct in order to obtain assistance and maintain a safe campus environment. The university encourages all individuals to immediately seek assistance from campus security, law enforcement, a medical provider, and/or a victim advocate. Though the university encourages immediate reporting, delayed reporting will not be considered as a factor when assessing the preponderance of the evidence.

In addition, an individual does not have to be a member of the university community to file a report under this policy. The university will also take action to respond to allegations of relationship violence, sexual misconduct or other forms of prohibited conduct when the university knows or reasonably should know based on any available information that relationship violence, sexual misconduct or other forms of prohibited conduct has occurred. To the best of its ability, the university will respond to every report it receives. Anonymous or third-party reports may limit the response the university can provide.
The Title IX coordinator is charged with responding to allegations of relationship violence or sexual misconduct to stop the behavior, prevent its recurrence, and remedy its effects. Specifically, the Title IX coordinator, or their deputy designee, will coordinate the initial assessment, offer resources and support, and initiate an investigation when appropriate and/or requested.

Employee reporting obligations

With the exception of those employees who have recognized confidentiality, called confidential employees (see “Privacy and Confidentiality” section above), all university employees, including faculty, staff, administrators, and student employees or volunteers who have responsibility for the welfare of other students, are required to share with the Title IX coordinator any report of relationship violence or sexual misconduct about which they become aware.
As outlined in the Privacy and Confidentiality section of this policy, the university respects the privacy interests of students, faculty, and staff. Information reported to the Title IX coordinator will only be shared with the university officials who will assist in responding, investigating, and/or resolving a complaint. The university will document non-identifying information in the campus incident log. Should the university determine there is a serious or imminent threat, a timely warning notice will be shared with the community.

The Title IX coordinator will ensure that the university responds to all reports in a timely, fair, effective, and consistent manner. To accomplish this, the Title IX coordinator may consult with members of the Title IX assessment team and others, as applicable.
The university will approach each report with the intent to understand the perspective and experiences of each individual involved to ensure fair and impartial evaluation and resolution. The university will also take every effort to ensure the safety of the campus community when evaluating and assessing any reported relationship violence or sexual misconduct.

Incident reports

A report is a notification of an incident of relationship violence or sexual misconduct to the Title IX coordinator by any reporting person. A report may be accompanied by a request for resources or information, no further action, or to initiate a relationship violence or sexual misconduct investigation.
To the extent of the complainant’s cooperation and consent, university offices will work cooperatively to ensure that the complainant’s health, physical safety, work and academic status are protected, including taking interim measures before the final outcome of an investigation.
The university will provide resources to any person who has experienced relationship violence and/or sexual misconduct no matter where that conduct is reported to have occurred, and will apply disciplinary procedures to those who violate this policy, if they have jurisdiction to do so. The procedures set forth below afford a prompt and equitable response to reports of relationship violence and/or sexual misconduct, maintain privacy and fairness consistent with applicable legal requirements, and impose appropriate sanctions on violators of this policy.

The university will complete an adequate, reliable, equitable, and impartial investigation of reports that are made in good faith and will uphold the rights of all parties.

Anonymous reports also are accepted and should be directed to the Title IX coordinator. The university will respond promptly and equitably to anonymous reports, but the response may be limited if the report does not include identifying information and/or a description of the facts and circumstances. Anonymous reports that provide enough information to constitute certain criminal offenses will be reported to Campus Safety and Security for purposes of inclusion in the university’s annual security report and to assess whether the university should send a timely warning notice as required by the Clery Act.

Campus reporting options

The university recognizes that any member of the community may choose to report relationship violence or sexual misconduct to any university employee (see definitions for responsible employee and confidential employee). Under this policy, any employee, other than those deemed confidential employee, who receives a report of relationship violence or sexual misconduct is required to share the report with the Title IX coordinator. All members of the university community are encouraged to go directly to the Title IX coordinator with reports of or concerns about relationship violence or sexual misconduct.

Campus Reporting Options:
Title IX Coordinator, Irene Kniss, 1200 Park Rd, 540-432-4302 titleixcoordinator@emu.edu
Campus Safety Incident Report https://emu.edu/safecampus/
Campus Security 540-432-4911
Title IX Investigator/Deputy:
Director of Human Resources: Marcy Engle, 540-432-4148 marcy.engle@emu.edu
Campus Safety and Security Coordinator: David Emswiler, 540-432-4396, emswildw@emu.edu

Reporting to law enforcement

In addition to a university response, EMU also encourages complainants to pursue criminal action for incidents of relationship violence or sexual misconduct that may also be crimes under Virginia criminal statutes.

Complainants may simultaneously pursue criminal and university disciplinary action. The university will support complainants in understanding and assessing their reporting options. Upon receipt of a report, the university will inform individuals of their right to file (or decline to file) criminal charges as well as the availability of medical, counseling and support services, and additional interim measures to prevent contact between a complainant and a respondent, such as housing, academic, transportation and working accommodations, if reasonably available. Making a report to the university does not require participation in any subsequent university proceedings, nor is a report required for a complainant to receive support or remedial measures.

Although the university strongly encourages all members of its community to report violations of this policy to law enforcement, it is the complainant’s choice whether to make such a report and victims have the right to decline involvement with the police. The university ’s Title IX coordinator will assist any victim with notifying local police if they so desire. Local and state law enforcement may be utilized (see Appendix D: Resources).

If the complainant would like to contact local law enforcement authorities, the following processes may be used:

  • A complainant may choose not to have law enforcement contacted and no report filed but still may have a Physical Evidence Resource Kit (PERK) collected. (Note: The complainant later may file a report and may pursue criminal charges.) Kits from victims who elect not to report are known as anon