Sexual Misconduct Procedure | KCTCS

Administrative Policies

Sexual Misconduct Procedure

Policy Number: 3.3.1A-P

Current Effective Date: 11/14/2019

Original Effective Date: 02/16/2015

Revision Dates: 08/01/2017, 07/18/2018, 02/17/2019; 07/01/2019; 09/06/2019; 11/14/2019

Revision Number: 7

Revision Summary: update of contact information for Title IX Coordinators

Responsible Official: General Counsel

References: Administrative Policy 3.3.1

1. Purpose

This procedure implements the aspects of KCTCS policy and state and federal law that prohibit unlawful discrimination based on sex and gender in employment and educational programs or activities. Title IX prohibits KCTCS from discriminating on the basis of sex in the education programs or activities it operates, including employment.

2. Scope

This Procedure applies to all KCTCS employees, students, colleges, offices, and workplaces, regardless of location and to all KCTCS-related conduct, policies, decisions, and actions.

The use of the term “KCTCS” throughout this policy shall mean all sixteen colleges, the System Office, KBEMS, the Kentucky Fire Commission, and any affiliated organizations directly controlled through KCTCS.

3. Definitions

  1. Complainant is a person who alleges that he or she is the subject of sexual misconduct, or of retaliation related to the complaint, investigation thereof, or any circumstance surrounding the complaint. For purposes of this procedure, the Complainant can be a KCTCS employee, student, volunteer, guest, or visitor.

  2. Respondent is a person whose alleged conduct is the subject of a complaint. For purposes of this procedure, the Respondent can be a KCTCS employee, student, volunteer, guest, or visitor.

  3. Sexual Misconduct Offenses include, but are not limited to:
    1. Sexual Harassment is behavior that can be characterized by a reasonable persons
      1. Unwelcome, gender-based verbal or physical conduct;
      2. Sufficiently severe, pervasive, or persistent;
      3. Unreasonably interfering with, denying, or limiting someone’s ability to participate in or benefit from KCTCS’ educational program and/or activities; and
      4. Based on power differentials, creation of a hostile environment, or retaliation.
        Examples include but are not limited to:
        • attempting to coerce an unwilling person into a sexual relationship
        • repeatedly subjecting a person to egregious, unwelcome sexual attention
        • punishing refusal to comply with a sexually-based request
        • conditioning a benefit on submitting to sexual advances
        • sexual violence
        • domestic/dating/intimate partner violence
        • stalking
        • gender-based bullying

    2. Non-consensual Sexual Contact or attempts to commit same is behavior that can be characterized by a reasonable person as consisting of 
      1. Any intentional sexual touching, however slight, 
      2. That is without consent and/or by force, 
      3. With any object, including body parts such as hand or genitals,
      4. By any individual upon any individual.

    3. Non-consensual Sexual Intercourse or attempts to commit same is behavior that can be characterized by a reasonable person as consisting of
      1. Any sexual penetration, however slight, 
      2. That is without consent and/or by force, 
      3. With any object, including body parts such as hand or genitals,
      4. By any individual upon any individual.

    4. Sexual Exploitation occurs when an individual takes non-consensual or abusive sexual advantage of another for his or her own gain, advantage, or benefit or for the gain, advantage, or benefit of anyone other than the individual who is being exploited, and that behavior does not constitute an otherwise-defined sexual misconduct offense.
      Examples of sexual exploitation include, but are not limited to:
      • Invasion of sexual privacy
      • Prostituting another person
      • Non-consensual video or audio recording of sexual activity
      • Going beyond the boundaries of consent (such as permitting a hidden audience when engaging in consensual sex)
      • Voyeurism
      • Knowingly exposing another person to a sexually transmitted infection, virus or disease
      • Exposing one’s genitals or inducing another to expose his/her genitals in nonconsensual circumstances
      • Sexually based stalking and/or bullying 
      • Viewing or possessing child or adult pornography at work or on college-owned property and/or equipment

  4. Consent to sexual activity is a factual determination that varies by circumstance. However, in all cases, consent must be clear, knowing, and voluntary. Consent is active, not passive. Consent can be given by words or actions. The words or actions must be sufficient to create mutually understandable clear permission regarding willingness to engage in, and the conditions of engaging in, sexual activity. Silence, in and of itself, is not consent, cannot be interpreted as consent, and, standing alone, cannot be relied upon as a defense. Consent to one form of sexual activity does not imply consent to any other forms of sexual activity. Any person may withdraw consent at any point involved in sexual contact. Previous relationships or prior consent does not imply consent to future sexual acts.

    Pursuant to KRS 510.020, a person is legally deemed incapable of consent when he or she is any of the following:
    • Less than sixteen years old
    • An individual with an intellectual disability or an individual that suffers from a mental illness
    • Mentally incapacitated
    • Physically helpless

      An individual engaging in sexual activity with another individual who is reasonably known to be mentally incapacitated or physically helpless constitutes a violation of this procedure. Mental incapacity or physical helplessness may be due to any of a variety of factors, including but not limited to, use of alcohol, drugs, sleep, involuntary physical restraint, unconsciousness, or other inability to make rational, reasonable decisions.

      In general, sexual contact while under the influence of drugs or alcohol creates risk for all parties. Alcohol and drugs impair an individual’s 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.

  5. Force is the use of physical violence and/or a physical imposition on someone to gain sexual contact, access, or other sexual gratification. Force also includes threats, intimidation (implied threats) and coercion that overcome another person’s resistance or produce consent that would not have been granted but for the force.

  6. Coercion is the exertion of unreasonable pressure to obtain sexual conduct, activity, or gratification. Once an individual makes it clear that he/she does not want to have sex, wants to stop, or does not want to go past a certain point of sexual activity, continued pressure intended to obtain sex, the continuation of sex, or the movement beyond a certain point of sexual behavior may be coercive.

  7. Stalking means engaging in an intentional course of conduct, which would cause a reasonable person in similar circumstances to suffer substantial mental distress:
    1. Directed at a specific person or persons;
    2. Which seriously alarms, annoys, intimidates, or harasses the person or persons; and 
    3. Which serves no legitimate purpose. (See KRS 508.130-508.155)
      Examples include, but are not limited to:
      1. Following a person
      2. Appearing at their home, place of business, or classrooms
      3. Making harassing phone calls
      4. Making/sending written messages, or sending electronic messages
      5. Leaving messages or objects at their home, place of business, vehicle, or classroom
      6. Vandalizing personal property

  8. Domestic Violence and Dating/Intimate Partner Violence 
    1. Domestic violence means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple. Family members include a spouse, former spouse, a grandparent, a parent, a child, a stepchild, or any other person living in the same household as a child if the child is the alleged victim. (See KRS 403.715-403.785)

    2. Dating/intimate partner violence means violence committed by a person–
      1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
      2. Where the existence of such a relationship shall be determined based on a consideration of the following factors:
        1. The length of the relationship.
        2. The type of relationship.
        3. The frequency of interaction between the persons involved in the relationship.

          KCTCS will not tolerate intimate partner violence in any form. KCTCS will evaluate and process allegations of sexual misconduct arising from instances of domestic violence or dating/intimate partner violence under the terms of this procedure.

  9. Responsible Employee A responsible employee includes any employee who:
    • Has the authority to take action to redress the harassment;
    • Has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees; or
    • A student could reasonably believe has the authority or responsibility to take action.

  10. Privacy generally means that information related to a report of a violation of this policy will only be shared among KCTCS employees who “need to know” in order to assist in review, investigation, or resolution of the report of violation. These employees are not bound by confidentiality, but will be discreet and respectful of the privacy all individuals involved. 

  11. Confidentiality means that information that an individual shares with designated professionals cannot be revealed to any other individual without the express permission of the individual. Employees of KCTCS do not have this legally protected confidentiality, so any report of a policy violation to a KCTCS employee requires that employee to take appropriate action.

4. Procedure

4.1. Title IX Requirements

Under Title IX, KCTCS is required to take immediate and corrective action if a Responsible Employee knew, or in the exercise of reasonable care, should have known about sexual or gender-based harassment that creates a hostile environment.

Under this analysis, employees with supervisory and leadership responsibilities are considered Responsible Employees, including division chairs, deans, provosts, administrators, faculty, and other employees in managerial positions. KCTCS requires that all Responsible Employees share a report of sexual misconduct with the Title IX Coordinator or security personnel for the school, KCTCS Office of General Counsel, or KCTCS Human Resources.

If a Complainant has any concerns about a KCTCS representative’s ability to maintain confidentiality or privacy, the Complainant is encouraged to ask the representative about their reporting obligations before speaking with that person.

4.2. Privacy and Confidentiality

The terms “Privacy” and “Confidentiality” have distinct meanings under this procedure.

  1. Privacy
    KCTCS is committed to protecting the privacy of all individuals involved in a report of any violation of the Sexual Misconduct Policy and Procedure. Individuals involved in the response, including Title IX coordinators, investigators, and hearing panel members, shall receive instruction about safeguarding private information. Throughout the process KCTCS will make every effort to protect the privacy interests of all individuals involved in a manner consistent with the institution’s duty to respond appropriately. When the need for privacy and confidentiality conflict with obligations imposed by state and federal laws (Clery and Minger reporting, open records, FERPA and duty to warn/duty to report) those laws shall control.

    All KCTCS proceedings are conducted in compliance with FERPA, Title IX, Title VII, the Clery Act, and state and federal law. No information shall be released from such proceedings except as required or permitted by law and KCTCS policy and procedure.

  2. Confidentiality
    Certain mental health providers, ordained clergy, rape crisis counselors and attorneys have legally protected confidentiality. KCTCS does not provide these services, but the Title IX Coordinator at each college maintains a list of local services for referral. Please note that when a report involves suspected abuse of a minor under the age of 18, state law requires both KCTCS as well as entities who are entitled to maintain confidentiality to notify child protective services and/or local law enforcement.

    The following websites list resources available to victims of sexual assault and domestic violence in Kentucky and nationally:

        Kentucky Association of Sexual Assault Programs https://www.kasap.org/
        Kentucky Coalition Against Domestic Violence https://kcadv.org/
        Womenshealth.gov Resources by state on violence against women | womenshealth.gov
        RAINN https://centers.rainn.org/
        KCTCS employees may access confidential assistance through the Employee Assistance                Program by calling 888-293-6948 or visiting the website at www.eapbda.com. College              Human Resources Directors have login information for the website.

    College Title IX Coordinators will maintain a list that includes local resources for each college community.

    When a Complainant requests that his/her identifiable information not be shared with the Respondent or that no formal action be taken, KCTCS will balance this request with its obligations to provide a safe and non-discriminatory environment for its members and its responsibility to provide proper due process rights to the Respondent. KCTCS may consider the nature and seriousness of the conduct, the ages and roles of the Complainant and Respondent, whether or not other reports or complaints against the Respondent have been received, and the rights of the Respondent to receive notice and relevant information before disciplinary action is sought.

    KCTCS will take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or a request to not pursue an investigation. If KCTCS is unable to take action due to the Complainant’s request, or must take action despite the request, the Title IX Coordinator will inform the Complainant of KCTCS’ chosen course of action.

4.3 Reporting

KCTCS encourages any individual who has suffered an incident of sexual violence to seek immediate assistance from a medical provider and/or law enforcement. This is the best way to ensure that evidence is preserved and that a timely investigation and response are initiated.

An individual who is considering making a criminal complaint or taking other legal action should seek medical care as soon as possible after the assault. It is important for the individual to not bathe, douche, or change clothing prior to the medical examination in order to avoid inadvertently removing important evidence. The kind of evidence that supports a legal case against an accused should be collected within 72 hours of an assault.

  1. Reporting Options
    1. Sexual assault, stalking and relationship violence may be reported to any office responsible for Student Affairs, Campus Safety/Security, Academic Affairs, or any other official or staff member that is designated a Campus Security Authority. If a faculty or staff member is not designated a Campus Security Authority, and receives a complaint about sexual assault/dating violence/domestic violence/stalking, that faculty and/or staff member is obligated to assist that student in contacting the Campus Title IX Coordinator or a Campus Security Authority, or to notify those persons of the report of sexual misconduct. 
    2. KCTCS strongly encourages the reporting of all incidents of sexual assault, stalking, and relationship violence to the appropriate KCTCS officials. Making a report means telling someone in authority what happened. This can be in person, in writing (including email), or by telephone. At the time of the report, the Complainant does not have to decide on or request a course of action. Choosing to report and then deciding what to do after making the report may be a process that takes time. The Campus Title IX Coordinator and Clery Compliance Officer at each college are trained to assist individuals through the process. In this process the College will balanced the individual’s interest with its obligation to provide a safe and nondiscriminatory environment for all members of the KCTCS community.
    3. All KCTCS personnel who receive a report or complaint of sexual assault, stalking, and/or relationship violence should immediately refer the complainant to the Title IX Coordinator where the complainant will be counseled about available options.
    4. Once a KCTCS College receives a report, that College is required to contact the KCTCS Crisis Management Coordinator and Office of General Counsel. KCTCS Office of General Counsel will provide guidance and coordination to the College through the assessment, investigation and disciplinary proceedings as applicable. Office of General Counsel staff will act as primary investigators and may conduct the investigation personally or seek assistance from College personnel in investigating reports of violation of this Procedure.

  2. Reporting Considerations
    Anonymous reports will be taken seriously and reviewed thoroughly by KCTCS, but the ability to respond to such a report may be limited depending on the information provided. Anonymous reports can be made through the KCTCS ethics hotline using the website, https://secure.ethicspoint.com/domain/media/en/gui/28458/index.html, or by calling 1-866-594-3115. If there is immediate danger, call 911 or local emergency services. EthicsPoint is for anonymous on-campus reporting of non-emergency situations.

    Off-campus conduct that is likely to have a substantial impact on the Complainant’s on-campus activities or that poses a threat or danger to the campus community may also be addressed under this policy.

    If the Respondent is not a member of the KCTCS community, KCTCS will seek to meet Title IX obligations by taking immediate steps to end the harassment, prevent its recurrence, and address its effects, but the ability to take disciplinary action against the Respondent may be limited.

  3. False Reports
    KCTCS will not tolerate intentional false reporting of incidents. KCTCS takes all allegations of sexual misconduct seriously. A good-faith complaint that results in no finding of a violation is NOT considered a false report. However, if any party is found to have made false allegations or given false or untruthful information with malicious intent or in bad faith, that party may subject to disciplinary action under KCTCS policies and procedures and/or the Code of Student Conduct. False reports may also constitute violations of state criminal statutes and civil defamation laws.

4.4 Timely Warning

Should the reported misconduct represent an ongoing threat to the safety of members of the campus community, the college may be required to issue a crime bulletin. At no time will KCTCS release the name of the Complainant to the general public without the express consent of the Complainant.

The Safety Department at each KCTCS College is responsible for issuing Crime Bulletins. When a crime is reported to or brought to the attention of a College’s Safety Department and when the crime is one that represents an ongoing threat to the safety of members of the campus community, the Safety Department must determine whether a Crime Bulletin should be issued. The procedure for making that determination requires the College Safety Department to contact the KCTCS System Office Crisis Management Coordinator and KCTCS Office of General Counsel. These parties will review all related information and determine whether a Crime Bulletin shall be distributed to the affected campus community. Crime Bulletins will be distributed as soon as possible after the incident is reported; however, the release is subject to the availability of accurate facts concerning the incident. Crime Bulletins may be distributed using a variety of methods, the most common being mass email distribution. Depending on the nature of the crime a Crime Bulletin banner may be added to the front page of the KCTCS College webpage, and/or printed and distributed to any number of areas on campus. These may include the library, bookstore, student centers, and any additional areas that may assist in alerting the campus community.

4.5 Assessment, Investigation and Resolution

Upon receipt of a report of violation of the Sexual Misconduct Procedure, the college Title IX Coordinator must immediately notify the System Office Title IX Committee. The SO Title IX Committee will assist in the review, investigation and resolution of reports. Following the initial assessment, the Committee will recommend further action for resolution of the report. Appendix A fully describes the Complaint and Investigation Process.

The initial steps for resolution of a complaint are the same whether the Respondent is a student, employee, or guest. Employee and guest Respondents will be processed in accordance with KCTCS employment policies and procedures. Student Respondents will be processed in accordance with the KCTCS Code of Student Conduct and student policies and Appendix B, Hearing Process for Student Respondents.

4.6 Interim Remedies and Sanctions

  1. Interim Remedies Upon receipt of a report of a violation of this procedure, KCTCS reserves the right to enact the interim remedies it deems necessary to protect the rights, well-being, and personal safety of KCTCS employees, students, guests or visitors. Interim remedies may be imposed regardless of whether formal disciplinary action is sought or pursued against the Respondent. Both Complainant and Respondent may be subject to applicable Interim Remedies. Such measures may include, but are not limited to:
    • referral to counseling services and other resources
    • rescheduling of exams or assignments (in conjunction with appropriate faculty)
    • no-contact letter
    • limited access to college facilities or organizations pending resolution of the report 
    • provision of an escort on campus property
    • temporary work reassignment
    • temporary class schedule reassignment
    • administrative leave during the investigation and resolution
    • immediate temporary suspension from the college during the investigation and hearing process 
    • interim volunteer duty reassignment
    • suspension of volunteer duty during the investigation; report of the matter to local law enforcement in the jurisdiction in which the college is located
    • ban from college location(s)
    • report of the matter to local law enforcement in the jurisdiction in which the college is located
    • KCTCS further reserves the right to apply any other remedy that can be tailored to the involved individuals to achieve the goals of this policy

  2. Sanctions
    Not all forms of sexual misconduct will be deemed to be equally serious offenses. KCTCS reserves the right to impose different sanctions depending on the severity of the offense. KCTCS will consider the rights of both the Complainant and the Respondent when contemplating sanctions.

    Employees or volunteers found in violation of the Sexual Misconduct Procedure are subject to appropriate disciplinary action, up to and including termination of employment or volunteer assignment or other actions in accordance with KCTCS policies and procedures.

    Students found in violation of Sexual Misconduct Procedure are subject to appropriate disciplinary action, up to and including expulsion in accordance with the KCTCS Code of Student Conduct and student policies.

    Employees or volunteers who are found to have actual knowledge of violation of the Sexual Misconduct Procedure and fail to report that knowledge are subject to appropriate disciplinary action, up to and including termination of employment or voluntary assignment or other actions in accordance with KCTCS policies and procedures .

    Guests or visitors found in violation of the Sexual Misconduct Procedure may be immediately removed and be issued a no-trespass order banning him/her from KCTCS property.

    Employees or students who are found in violation and are subject to disciplinary action have the right to appeal the action pursuant to KCTCS policies and procedures and/or the KCTCS Code of Student Conduct.

4.7 Retaliation

Retaliation of any sort is against the law; therefore, KCTCS will not tolerate retaliation related to a sexual misconduct complaint. Retaliation may include unlawful adverse employment action (such as a demotion, change in working hours/schedule or working conditions, etc.), unlawful adverse action in the academic setting, offensive behavior on and off the job/KCTCS premises, and third-party retaliation (e.g., against victim’s close associate or relative if also employed at or attending a KCTCS institution). Use of social media to harass or retaliate against individuals involved in a sexual misconduct complaint shall be subject to disciplinary action.

No unlawful adverse employment action or other retaliation shall be taken against any individual who resists or rejects sexual misconduct, who makes a good faith report or allegation of sexual misconduct, or who participates in a sexual misconduct investigation or proceeding. An individual who believes he/she has been retaliated against shall report it using the same procedures as allegations of harassment, discrimination or sexual misconduct. KCTCS shall investigate any allegations of retaliation and take appropriate action if retaliation did occur.

4.8 Revisions

This procedure is written to be in compliance with federal and state law as interpreted by the courts. If this policy in any way becomes in conflict with new or existing statutes, regulations, or judicial opinions, KCTCS’ procedure can be deemed amended as of the time of the decision, ruling, or legislative action to assure continued compliance.

KCTCS reserves the right to change any provision of this procedure at any time and the change shall become effective immediately.

5. Legal Notices

NOTICE OF NONDISCRMINATION

The Kentucky Community and Technical College System is an equal educational and employment opportunity institution and does not discriminate on the basis of; gender, race, color, religion (or lack thereof), national origin, age, disability, marital status, sexual orientation, gender identity, genetic information, pregnancy, veteran or social status, social origin, indigenous status, or any other characteristic, trait, or identification protected by law. The following people have been designated to handle inquiries regarding the nondiscrimination policies:

College Title IX Coordinator Campus Address Office Phone / Email Address
 Ashland Steven Woodburn 1400 College Drive Room 213C      Ashland, KY 41101  606-326-2077 steve.woodburn@kctcs.edu
 Big Sandy Jimmy Wright  One Bert T. Combs Drive Room 100F Prestonsburg, KY 41653  606-886-3863 ext 67347 jimmy.wright@kctcs.edu
 Bluegrass (students) Taran McZee 470 Cooper Drive, 206 Oswald Building Lexington, KY 40506-0235  859-246-6937   taran.mczee@kctcs.edu
 Bluegrass (employees) Jane Goatley 500 Newtown Pike, Admin. Building 207 Lexington, KY 40508  859-246-6704 jane.goatley@kctcs.edu
 Elizabethtown Dale Buckles 600 College Street Road RPC 1st Floor, Room 100-A Elizabethtown, KY 42701  270-706-8431 dale.buckles@kctcs.edu
 Gateway (students) Mallis Graves 516 Madison Avenue Covington, KY 41011  859-442-1608 mallis.graves@kctcs.edu
 Gateway (employees) Amy Hatfield 790 Thomas More Pkwy                  Edgewood, KY 41017  859-442-1701 amy.hatfield@kctcs.edu
 Hazard Germaine Shaffer One Community College Drive First Federal Center – 119N Hazard, KY 41701  606-487-3409 ext 73409 germaine.shaffer@kctcs.edu
 Henderson  Reneau Waggoner 2660 South Green St. Henderson, KY 42420  270-831-9625 reneau.waggoner@kctcs.edu
 Hopkinsville Angel Prescott 720 North Drive Admin Building 211 Hopkinsville, KY 42240

 270-707-3801 

angel.prescott@kctcs.edu

 Jefferson  Laura Smith 200 W. Broadway, Room 205            Louisville, KY 40202  502-213-2136 laura.smith@kctcs.edu
 Owensboro Barbara Tipmore 4800 New Hartford Rd Owensboro, KY 42303  270-686-4530 barb.tipmore@kctcs.edu
 Madisonville Jay Parrent  200 College Dr. Madisonville, KY 42431 270-824-8571 jay.parrent@kctcs.edu
 Maysville  Jessica Kern 1775 U.S. 68  Maysville, KY 41056 606-759-7141 ext 66271 jessica.kern@kctcs.edu
 Somerset (students)  Tracy Casada 808 Monticello Street Somerset, KY 42501 606-451-6631 tracy.casada@kctcs.edu
 Somerset (employees)  Kathy Patscheck 808 Monticello Street Somerset, KY 42501 606-451-6621 kathy.patscheck@kctcs.edu
 Southcentral (students)  David Travis 1845 Loop Drive Bowling Green, KY 42101

270-901-4348    david.travis@kctcs.edu 

 Southcentral (employees) Sherri Forester  1845 Loop Drive Bowling Green, KY 42101  270-901-1115 sherri.forester@kctcs.edu
 Southeast  Mike Ingram

164 Ball Park Rd.  Harlan, KY 40831

606-589-3214  gingram0006@kctcs.edu
 West KY Octavia Lawrence 4810 Alben Barkley  Drive                          Paducah, KY 42001 270-534-3479 octavia.lawrence@kctcs.edu
System Office Valerie Parks

300 North Main St.   Versailles, KY 40383

859-256-3466    val.parks@kctcs.edu

EXTERNAL ASSISTANCE

External remedies are available for students through the United States Department of Education Office for Civil Rights. For more information, you may contact the Philadelphia Office:

U.S. Department of Education Office for Civil Rights
Wanamaker Building, Suite 515
100 Penn Square East
Philadelphia, PA 19107
Telephone: 215-656-8541
FAX: 215-656-8605;
TDD: 215-656-8604
Email: OCR_Philadelphia@ed.gov


Note: KCTCS credits the National Center for Higher Education Risk Management and the Association of Title IX Administrators for their model policy, which provides the basis for this procedure. KCTCS also credits Arapahoe Community College’s Sexual Misconduct Procedure and Occidental College’s Sexual Misconduct Policy as resources.

Procedure 3.3.1A-P Sexual Misconduct Procedure
Appendix A: Assessment and Investigation Process

  1. Overview

    Upon receipt of a report of violation of the Sexual Misconduct Procedure, the college Title IX Coordinator must immediately notify the System Office Title IX Committee. The SO Title IX Committee will assist in the review, investigation and resolution of reports. Following the initial assessment, the Committee will recommend further action for resolution of the report.

    The initial steps for resolution of a complaint are the same whether the Respondent is a student, employee, or guest. Employee and guest Respondents will be processed in accordance with KCTCS employment policies and procedures. Student Respondents will be processed in accordance with the KCTCS Student Code of Conduct and student policies and the Hearing Procedures for Student Respondents (see Appendix B).

  2. Initial Assessment

    In every report of sexual harassment or misconduct, KCTCS will make an immediate assessment of any risk of harm to individuals or to the campus community and will take steps necessary to address those risks. These steps may include interim protective measures to provide for the safety of the individual and the campus community.

    The SO Title IX Committee assists in the review, investigation and resolution of reports. Members of this interdepartmental team may include, but are not limited to, representatives from Legal Services, Crisis Management, Student Affairs, Human Resources, and/or Academic Affairs. Composition of the team will be limited to a small circle of individuals who “need to know” in order to implement procedures under this policy.

    In consultation with the college Title IX Coordinator, the System Office Title IX Committee will conduct an initial Title IX Assessment in order to provide an integrated and coordinated response to reports of sexual harassment and sexual misconduct. The assessment will consider the nature of the report, the safety of the individual and of the campus community, and when, possible, the Complainant’s expressed preference for resolution.

    After consideration of the above factors, KCTCS may choose to pursue an informal resolution, which may include a remedies-based approach (reserved for less egregious violations). If the violation warrants, the SO Title IX Committee will refer the matter for investigation.

    Upon completion of the investigation, the SO Title IX Committee reviews the investigative report to assess the strength of evidence and options for resolution. The SO Title IX Committee will discuss its recommendations with the college Title IX.

  3. Investigation

    When the Initial Title IX Assessment concludes that an investigation is required, KCTCS will designate an investigator(s) from System Office with specific training and experience investigating allegations of sexual harassment and sexual misconduct. KCTCS may use a team of two investigators, which may include the College Human Resources Director with a System Office investigator, or two System Office investigators.

    The investigation will be a fair and reliable fact-gathering process. The investigation will be conducted thoroughly, impartially, and fairly. The investigation will be respectful of individual privacy concerns, but must be performed in a manner that will ensure KCTCS’s compliance with all state and federal laws, including provision of due process to the Respondent.

    An investigation will normally include interviews with the Complainant and with the Respondent. Pertinent witnesses may be interviewed. Interviews may be supplemented by the gathering of any physical, documentary or other evidence, if applicable. Both Complainant and Respondent will be given the opportunity to present witnesses or other evidence.

    At the request of law enforcement, KCTCS may agree to defer its Title IX fact gathering until after the initial stages of a criminal investigation. KCTCS will nevertheless communicate with the Complainant regarding Title IX rights, procedural options and the implementation of interim measures to assure safety and well-being. KCTCS will promptly resume its Title IX fact gathering as soon as law enforcement permits.

    KCTCS will seek to complete the investigation within 20 (twenty) business days of receiving the complaint. This time frame may be extended depending on the circumstances of each case. At the conclusion of the investigation, the investigators will forward the report to the System Office Title IX Committee for review and evaluation.

    Information gathered during the review or investigation will be used to evaluate the responsibility of the Respondent, provide for the safety of the Complainant and the campus community, and impose remedies as necessary to address the effects of the conduct cited in the report. Where there is sufficient information set forth that, if proven, would constitute a violation of policy, KCTCS will have the discretion to institute Formal Resolution proceedings against the Respondent. At the conclusion of the investigation, KCTCS will notify the Complainant and the Respondent in writing that the investigation is complete. Notifications will include information about next steps in the process.

    The college Title IX Coordinator will document each report or request for assistance in resolving a case involving charges of sexual misconduct, whether formal or informal, and will review and retain copies of all reports generated as a result of investigations. These records will be kept confidential to the extent permitted by law.

  4. Investigation of Complaints involving Students

    1. Notice of Charges
      If the Initial Assessment contains sufficient information to suggest a violation of the Sexual Misconduct Procedure, and the Complainant wishes to pursue disciplinary action, KCTCS will send a written Notification Letter to both the Complainant and the Respondent. The Notification Letter provides each party with a brief summary of the conduct at issue, the specific provision of the policy violations that are alleged to have taken place, and details about the process moving forward. The Notification Letter will also disclose the right of both the Complainant and Respondent to have advisors or support persons throughout the investigatory and disciplinary process. If either the Complainant or the Respondent elects to have advisors, the advisor is encouraged to accompany the Complainant/Respondent to all interviews.

    2. Investigation
      An investigation will be conducted as described in Section D above.

    3. Advisors
      The Complainant and the Respondent may choose to be assisted by an advisor of their choice during the process. The advisor may accompany the student to any investigative or administrative meeting that is part of this process.

      The inability to accommodate the advisor’s schedules shall not cause undue delay to the process. If a meeting cannot be scheduled with the advisor in a reasonable amount of time, the student may have to choose a different advisor for that meeting. The advisor cannot be a witness in the proceedings.

      The advisor is a silent and nonparticipating presence who is there solely to observe and provide moral support during the interviews. The advisor is not to address the interviewers, except to request a short recess if one of the parties requires a break.

      Absent extenuating circumstances, witnesses and others involved in an investigation are not entitled to have an advisor present.

      Attorney Advisors/Outside Agreements: The Complainant and the Respondent both have the right to have an attorney present during the investigatory process as the advisor. A Complainant or Respondent may choose to seek the advice and assistance of an attorney at his/her own expense, but the attorney may not actively participate in investigatory interviews, informal or formal resolution proceedings, or the appeals process. Attorneys, including family members acting as attorneys, may be present during this process, but they are not permitted to address, question or cross-examine the investigators.

      Additionally, KCTCS will not recognize or enforce agreements between the parties outside of these procedures.

    4. Witnesses
      The Complainant and the Respondent have the right to present witnesses to be interviewed by the investigator(s). Witnesses must have observed the conduct in question or have information relevant to the incident and cannot be called solely to speak about an individual’s character. During the investigatory process, the investigators will determine if the proffered witness can provide relevant information and if there is sufficient justification for including witness statements in the report.

    5. Respondent Pleading the Fifth
      If a Respondent refuses to participate in the investigation to prevent the possibility of incriminating herself/himself during the process due to pending legal action, KCTCS will proceed, but will not infer an admission of guilt from that action.

  5. Informal Resolution

    Informal resolution is a remedies-based, non-judicial approach designed to eliminate a hostile environment without taking disciplinary action against a Respondent. Where theTitle IX assessment concludes that informal resolution may be appropriate, KCTCS will take immediate action to protect the rights of the Complainantand remediate and correct the policy violations leading to the complaint. Examples of protective remedies may include but are not limited to: 
    • referral to counseling services and other resources
    • rescheduling of exams or assignments (in conjunction with appropriate faculty)
    • no-contact letter
    • limited access to college facilities or organizations pending resolution of the report
    • provision of an escort on campus property
    • temporary work reassignment
    • temporary class schedule reassignment
    • administrative leave during the investigation and resolution
    • immediate temporary suspension from the college during the investigation and hearing process
    • interim volunteer duty reassignment
    • suspension of volunteer duty during the investigation; report of the matter to local law enforcement in the jurisdiction in which the college is located
    • ban from college location(s)
    • report of the matter to local law enforcement in the jurisdiction in which the college is located
    • KCTCS further reserves the right to apply any other remedy that can be tailored to the involved individuals to achieve the goals of this policy

      Other potential remedies include targeted or broad-based educational programming or training, direct confrontation of the Respondent and/or indirect action by the Title IX Coordinator or KCTCS. Depending on the form of informal resolution used, it may be possible to maintain the Complainant’s anonymity.

      KCTCS will not compel a Complainant to engage in mediation, to directly confront the Respondent, or to participate in any particular form of informal resolution. Mediation, even if voluntary, may not be used in cases involving sexual violence or assault. The decision to pursue informal resolution will be made when KCTCS has sufficient information about the nature and scope of the conduct, which may occur at any time. Participation in informal resolution is voluntary, and a Complainant can request to end informal resolution in favor of a formal resolution at any time.

      The Title IX Coordinator will maintain records of all reports and conduct referred for informal resolution. Informal resolution will typically be completed within forty-four (44) business days of the initial report. This time frame may be extended depending on the circumstances of each case.

  6. Formal Resolution

    When an investigation demonstrates that sufficient evidence exists that a violation of policy and procedure has occurred, Respondents will be subject to disciplinary action based on their relationshipto KCTCS.
    • For a student Respondent, disciplinary action may be taken by the student’s home college following a finding of responsibility by the Responsibility Assessment Committee. (See Appendix B)
    • For an employee Respondent, disciplinary action may be taken by the supervisor in accordance with employment policies and procedures.
    • For a guest Respondent, KCTCS will take the necessary action to ensure the policy violation does not recur and, if appropriate, involve local law enforcement.

  7. Time Frame for Resolution

    KCTCS seeks to resolve all reports within 60 days of the initial report. All time frames expressed in this policy are meant to be guidelines rather than rigid requirements. Extenuating circumstances may arise that require the extension of time frames, including extension beyond 60 days. Extenuating circumstances may include the complexity and scope of the allegations, the number of witnesses involved, the availability of the parties or witnesses, the effect of a concurrent criminal investigation, any intervening school break or vacation, or other unforeseen circumstances.

    In general, a Complainant and Respondent can expect that the process will proceed according to the time frames provided in this policy. In the event that the investigation and resolution exceed this time frame, KCTCS will notify all parties of the reason(s) for the delay and the expected adjustment in time frames. Best efforts will be made to complete the process in a timely manner by balancing principles of thoroughness and fundamental fairness with promptness.

    At the conclusion of the Title IX assessment, the Title IX Committee and College Title IX Coordinator will determine the appropriate manner of resolution and, if appropriate, refer the report for further investigation, Informal Resolution or Formal Resolution.

  8. Records

    The College Title IX Coordinator will retain records of all reports and complaints, regardless of whether the matter is resolved by means of Title IX assessment, informal resolution or formal resolution. Complaints resolved by means of Title IX assessment or informal resolution are not part of a student’s conduct file or academic record or of an employee’s personnel record.

    Affirmative findings of responsibility in matters resolved through formal resolution are part of a student’s conduct record and an employee’s personnel record. Such records shall be used in reviewing any further conduct, or developing sanctions, and shall remain a part of a student’s conduct record or an employee’s personnel record.

    The conduct files of students who have been suspended or expelled from KCTCS are maintained by Student Affairs indefinitely. Conduct files of students who have not been suspended or expelled are maintained by Student Affairs until at least five years after the student’s last date of attendance. Further questions about record retention should be directed to the System Office Title IX Committee.

Procedure 3.3.1A-P Sexual Misconduct Procedure
Appendix B: Student Responsibility Assessment and Resolution Process

  1. Overview

    Following the Initial Assessment and/or investigation of a complaint as described in Appendix A, complaints involving student Respondents may be referred to a Responsibility Assessment Committee (RAC) for a decision as to responsibility and sanctions.

  2. Establishing a Responsibility Assessment Committee

    The committee typically consists of three members drawn from the sixteen local Title IX Coordinators. All committee members will be assigned by the RAC Coordinator prior to the investigation process. The RAC Coordinator is an attorney in the Office of Legal Services and is prohibited from serving on the committee. The RAC Coordinator provides oversight of the entire process, to reduce the possibility of bias, and to ensure legal sufficiency of the process. 

  3. Notice of Final Determination Meeting

    Prior to submission to the RAC, the Complainant and the Respondent will each have the opportunity to review all investigative documents (the investigation report, any witness statements or interviews, statements or interviews by both parties, and any other documentary information that will be presented to the RAC), subject to the privacy limitations imposed by state and federal law, at least six (6) business days prior to the committee’s receipt of the investigative materials. The names of the committee members and the date of the Final Determination Meeting will be provided to the Complainant and Respondent at this time. 

  4. Request for Removal of Committee Member

    Either party may submit a written request to the RAC Coordinator that a member of the RAC be removed. The request must clearly state the grounds to support a claim of bias, conflict of interest, or inability to be fair and impartial. This request must be submitted to the KCTCS Office of Legal Services, 300 North Main Street, Versailles, KY 40383 within three (3) business days of receipt of the Notification Letter. The right of both parties to make this request will be included in the Notification Letter. Seeking removal of and/or being granted removal of a committee member may result in a delay of the date of the subsequent proceedings. If a delay is necessary, a new Notice of Final Determination Meeting will be issued to both parties.

  5. Review of the Report of Findings

    If neither Complainant nor Respondent request removal of a committee member, the investigator will forward all investigative documents to the RAC Coordinator and the RAC members.

    The RAC Coordinator will review the investigative report, any witness statements and any other documentary evidence to determine whether the proffered information contained therein is relevant and material to the determination of responsibility given the nature of the allegation. In general, the RAC Coordinator may redact information that is irrelevant, more prejudicial than probative, or immaterial. The RAC Coordinator may also redact statements of personal opinion, rather than direct observations or reasonable inferences from the facts, and statements as to general reputation for any character trait, including honesty.

    The RAC members will have five (5) business days to review the Report of Findings and investigative documents independently. Each RAC member must notify the Hearing Coordinator by the sixth business day as to whether or not he/she feels there is sufficient or insufficient information to form an opinion of responsibility. If two of the three panelists determine that there is insufficient information, the RAC Coordinator may take a vote to reopen the investigation until sufficient information has been gathered.

    All parties involved in a RAC are required to keep the information learned in preparation private. The investigative documents will be posted to a secure website for review by the committee members and RAC Coordinator. Any breach of this duty of confidentiality is subject to disciplinary action by KCTCS.

  6. Final Determination Meeting

    The Final Determination Meeting will be guided by the RAC Coordinator and will allow the panelists to state their opinion and take a final vote.

    The RAC must reach a decision of responsibility by majority vote. The RAC will determine a Respondent’s responsibility by a preponderance of the evidence. This means that the committee will decide whether it is “more likely than not,” based upon all relevant information, that the Respondent is responsible for the alleged violation(s).

    If a determination of responsibility is found, the RAC Coordinator will lead the panel through a discussion of recommended sanctions. A final vote on sanctions will be taken by the RAC Coordinator to include in the Final Determination Report.

  7. Final Determination Report and Notice

    At the conclusion of the final determination meeting, the RAC Coordinator will write a final determination report that will include a summary of the findings of fact, a finding of responsibility or no responsibility, and the basis/rationale for the decision of the hearing panel, making reference to the evidence that led to the finding. The report will include recommended sanctions based on the findings of fact and responsibility. The final determination report and recommended sanctions are directed to the local Title IX Coordinator for presentation to the College President/CEO.

    The local Title IX Coordinator will prepare the Final Determination Notice in conjunction with the College President/CEO. This written notice will be sent to both the Complainant and Respondent simultaneously via email or regular U.S. mail. The written Final Determination Notice will be provided to both parties within two (2) business days of the receipt of the Final Determination Report by the local Title IX Coordinator.

    Both parties have the right to be informed of the outcome and any sanctions attached to the outcome.

    KCTCS reserves the right to notify parents/guardians of dependent students regarding any health or safety risk, change in student status or conduct situation, particularly alcohol and other drug violations. KCTCS may also notify parents/guardians of non-dependent students who are under age 21 of alcohol and/or drug policy violations. Where a student is not dependent, KCTCS will not contact parents/guardians without the expressed permission of the student, unless where there are situations that may reflect a significant and articulable health and/or safety risk. KCTCS also reserves the right to designate which KCTCS officials have a need to know about individual conduct complaints pursuant to FERPA requirements.
     
  8. Sanctions

    A RAC that finds a Respondent responsible for a violation of this policy may impose sanctions. Sanctions may be issued individually, or a combination of sanctions may be imposed.

    TheRAC may deviate from the range of recommended sanctions, based upon a full consideration of the following factors:
    1. the Respondent’s prior discipline history; 
    2. how KCTCS has sanctioned similar incidents in the past; 
    3. the nature and violence of the conduct at issue; 
    4. the impact of the conduct on the Complainant;
    5. the impact of the conduct on the community, its members, or its property; 
    6. whether the Respondent has accepted responsibility for his/her actions;
    7. whether the Respondent is reasonably likely to engage in the conduct in the future; 
    8. the need to deter similar conduct by others;
    9. any other mitigating or aggravating circumstances, including institutional values.

      The RAC may also consider restorative justice outcomes that, taking into the account of the safety of the community as a whole, allows a Respondent to learn about the origins of his/her behavior, his/her responsibility for this behavior, and how s/he can change this behavior.

      In appropriate cases, the RAC may determine that the conduct was motivated by bias, insofar as a Complainant was selected on the basis of his or her race, color, ethnicity, national origin, religion, age, disability, or gender; however, the gender of the Complainant is insufficient to create the assumption of bias. Where the RAC determines that student misconduct was motivated by bias, the panel may elect to increase the sanction imposed as a result of this motivation.

      Sanctions that may be imposed under this policy include:
      1. Reprimand: Official written or oral statement to the student that he or she is guilty of violating a college regulation. A reprimand warns that any further such actions may result in a more severe sanction. 
      2. Restitution: Compensation to the college for damages to college property.
      3. Social Probation: Status given to less serious policy violations, and in some cases, a restriction of privileges for a specified time.
      4. College/Community Service: Service to the college or community of up to 16 hours be served within a specified time frame.
      5. Educational Sanction: An educational sanction requiring attendance or participation in a pre-arranged class, program, or activity designed to prevent or deal with high-risk behavior.
      6. Counseling: Student may be referred to counseling evaluation on appointment by Counseling Services.
      7. Eviction: Forced removal from a classroom or other college property.
      8. College Probation: Status that carries a severe warning that any further violation of college regulations that may result in the student going before the College Appeals Board for consideration of suspension or expulsion. This may include restrictions of privileges for a specified period of time. 
      9. Suspension: Forced withdrawal from the college for a specified period of time or until stated conditions have been met as determined by the College Appeals Board. College will place the Student Dean Hold service indicator for no future enrollments at the Home College or other KCTCS college during the specified period of time or until stated conditions had been met. 
      10. Immediate Suspension: A student may be suspended immediately when:
        1. In the judgment of the chief executive officer (upon consultation with the chief student affair’s officer), the presence of the student poses a serious threat to persons and/or property provided informal opportunity is first given to the student, except in the case of exigent circumstances, to discuss the matter and possible resolution.
        2. The student refuses to cease disruptive behavior or conduct in violation of this policy after direct orders from the chief executive officer (upon consultation with the chief student affairs officer).
        3. When such suspension is involved, the student must leave the campus immediately. Students refusing to do so will be removed by law enforcement authorities and charged with trespassing.

          When a student is placed on immediate suspension, a disciplinary hearing will be held at the earliest reasonable time (see Code of Student Conduct Section 4.C.3 Immediate Temporary Suspension).
      11. Expulsion: Permanent, forced withdrawal from the college as determined by the College Appeals Board.

        Other sanctions may be imposed instead of, or in addition to, those specified here. Service, education or research projects may also be assigned. More than one of the sanctions listed above may be imposed for any single violation.

  9. Appeals

    Either party may appeal the final outcome in writing to the college Title IX Coordinator. The appeal must be filed in writing within five (5) business days of receiving the written outcome. The appeal will be reviewed in an impartial manner by the System Office Title IX Committee, in consultation with the college Title IX Coordinator. The appeal shall consist of a plain, concise and complete written statement outlining the grounds for appeal and all relevant information to substantiate the basis for the appeal.

    The Complainant and/or Respondent may appeal only the parts of final outcome directly relating to him/her. Dissatisfaction with the outcome of the hearing is not grounds for appeal. The only grounds for appeal are:
    • A procedural or substantive error occurred that significantly affected the outcome of the hearing panel proceedings (e.g. substantiated bias, material deviation from established procedures, etc.)
    • Discovery of new evidence, unavailable during the original hearing or investigation, that could substantially impact the original finding or sanction (a summary of this new evidence and its potential impact must be included).

      The receipt of the appeal will be acknowledged in writing (which can include email) by the college Title IX Coordinator. Each party will be given the opportunity to respond in writing to the other party’s appeal. Any response by the opposing party must be submitted to the college Title IX Coordinator within three (3) business days from receipt of the appeal. The appeals documents from each party will be considered together in one appeal review process.

      In any request for an appeal, the burden of proof lies with the party requesting the appeal, as the original determination and sanction are presumed to have been decided reasonably and appropriately. The college Title IX Coordinator shall first consider whether the appeal is timely filed and if so, whether the appeal is properly framed based on the two grounds. If the college Title IX Coordinator, in consultation with the System Title IX Committee, determines that the appeal is not properly framed, the appeal will be denied.

      If the appeal is based on procedural or substantive error, the RAC Coordinator may return the complaint to the original RAC with instructions to reconvene to cure the error, or in rare cases where the error cannot be cured, the RAC Coordinator can ask that a new assessment be conducted by a newly constituted RAC. In the case of new and relevant information, the RAC Coordinator can recommend that the case be returned to the original RAC to assess the weight and effect of the new information and render a determination after considering the new facts.

      Appeals are not intended to be full rehearing of the complaint. In most cases, appeals are confined to a review of the written documentation or record of the original hearing, and pertinent documentation regarding the grounds for appeal. Appeal decisions are to be deferential to the original committee, making changes to the findings only where there is clear error.

      Sanctions imposed are implemented immediately unless the System Office Title IX Committee stays implementation in extraordinary circumstances, pending the outcome of the appeal. Pending graduation, study abroad, internships, or other events do not typically constitute extraordinary circumstances. In cases where the appeal results in reinstatement to the institution or of privileges, all reasonable attempts will be made to restore the student to their prior status, recognizing that some opportunities lost may be irretrievable in the short term.

      The college Title IX Coordinator will communicate a written appeal decision from the RAC to the Complainant and Respondent within fifteen (15) business days from the date of the submission of all appeal documents by both parties. Appeal decisions are final unless the sanction is expulsion. If the Respondent is appealing a sanction of expulsion, he/she may submit a subsequent appeal in accordance with Code of Student Conduct Section 4.E.ii. 

  10. Integrity of Proceedings

    These procedures are entirely administrative in nature and are not considered legal proceedings. Neither party may record the proceedings, neither audio nor video, nor is formal legal representation allowed. Attorneys may serve as advisors but may not take an active role in any proceedings.