Relationship Violence, Sexual Misconduct, and Stalking Policy and Procedure (Interim Policy)
Janet Koski, Title IX Coordinator, 105 Cohodas Hall P: 906-227-2420
|Approved by:||Board of Trustees|
|Oversight unit:||EQUAL OPPORTUNITY|
|Attached form file:||AppendixA.pdf|
|This policy has a related procedure. Click to view the procedure below.|
This policy prohibits specific forms of relationship violence (dating violence/domestic violence), sexual misconduct (sexual assault, sexual exploitation, and sexual or gender-based harassment), and stalking, collectively referred to as “Prohibited Conduct.” Through this policy and supporting procedures, Northern Michigan University (“NMU”) addresses Prohibited Conduct pursuant to its obligations under state and federal law.
This policy applies to Prohibited Conduct by NMU Community Members, (students, faculty, and staff), and/or third parties against NMU Community Members. The rights, obligations and privileges included within this policy may not apply to all parties depending on the circumstances of each allegation.
NMU has expanded the scope and applicability of the policy beyond the requirements of the Title IX final regulations, issued on May 6, 2020. NMU reserves the right to interpret and apply these expanded protections in its sole discretion. This policy and related procedures are not intended to, and should not be construed to, establish a contract between NMU and any NMU Community Member or to increase NMU’s obligations or responsibilities beyond those required by federal or state law.
This policy applies when prohibited conduct occurs:
This policy also enables NMU to initiate measures to support current NMU Community Members regardless of where the Prohibited Conduct occurred.
Northern Michigan University is committed to fostering and maintaining a safe and healthy academic, work, and living environment, which safeguards the applicable due process rights of all NMU Community Members, including Complainants and Respondents. Prohibited Conduct is inconsistent with the standards and ideals of the NMU community. NMU will take prompt and suitable action to investigate and stop Prohibited Conduct; prevent its recurrence; and, as appropriate, remedy its effects.
Title IX Office of Northern Michigan University
Employees of NMU Counseling and Consultation Services and the NMU Health Center are designated as Confidential Resources. Confidential Resources will not typically be required to make a report to the OWA without the permission of the person reporting; specific exceptions are allowed by law and regulation, including but not limited to the protection of a minor child, protecting persons at high risk for violence, or to adhere to a court order.
A complainant or reporting person may make a confidential or anonymous report of Prohibited Conduct. However, depending on the circumstances, including the nature of the allegation and availability of evidence, NMU’s ability to investigate and respond to the complaint, or to provide an appropriate remedy, may be limited.
Standard of Evidence
Interim Relationship Violence, Sexual Misconduct and Stalking Guidelines and Procedures
NMU takes complaints of Prohibited Conduct seriously, follows the law and operates with the presumption that the Respondent is not responsible for the reported misconduct unless and until the Respondent is determined to be responsible for a policy violation by the applicable standard of proof.
Nothing in the Relationship Violence, Sexual Misconduct and Stalking Policy or Procedures is intended to limit constitutionally protected First Amendment rights, Due Process rights of the 5th and 14th Amendments, or restrict any other Constitutional rights.
First Amendment free speech rights protect speech on matters of public interest. They do not protect illegal activity, Prohibited Conduct, destruction of property, or material and substantial disruption of classes or campus activities.
This Amnesty for Good Faith reporting does not apply to a Respondent causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity.
Regardless of whether an NMU employee is currently employed, NMU will investigate to the best of their ability.
In evaluating whether consent has been freely given, NMU will consider the presence of any force, threat of force, or coercion; whether the Complainant had the capacity to give consent; and, whether the communication (through words and/or actions) between the Parties would be interpreted by a reasonable person as a willingness to engage in a particular sexual act.
Consent cannot be gained by force or coercion or by taking advantage of another person’s incapacitation. Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom of will to choose whether or not to participate in sexual activity. Coercion is conduct, including intimidation and/or expressed or implied threats of immediate or future physical or other harm to the Complainant or others, that would reasonably place an individual in fear and that is employed to compel someone to engage in sexual activity.
Important points regarding consent include:
Incapacitation can be voluntary or involuntary. Signs of incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances. Alcohol and drugs may be causes of incapacitation.
In evaluating consent where the question of incapacitation is at issue, NMU considers two questions: (1) did the person initiating sexual activity know that the other Party was incapacitated, and if not, (2) should a reasonable person, in the same situation, have known that the other Party was incapacitated? If the answer to either question is yes, then there has not been consent.
One should be cautious before engaging in sexual activity when either Party has been drinking alcohol or using other drugs. The use of alcohol or other drugs can lower inhibitions and create an atmosphere of confusion about whether consent is effectively sought and freely given. If there is any doubt as to the level or extent of one’s own or the other individual’s intoxication or incapacitation, the safest course of action is to forgo or cease any sexual contact.
In evaluating whether coercion was used, NMU will consider: (i) the frequency of the application of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the duration of the pressure.
NMU Police Department (Open 24 hours a day)
Women’s Center (note: Women’s Center provides services to all people of all genders and gender identities)
NMU encourages all individuals who experienced sexual misconduct and/or relationship violence to seek immediate assistance from a medical provider for emergency services, including treatment of any injury, and to collect and preserve physical and other forms of evidence.
Seeking medical attention helps preserve the full range of options, including the options of working through NMU’s Complaint/Grievance Process and/or filing criminal complaints.
Regardless of whether an incident of relationship violence, sexual misconduct, and/or stalking is reported to the police or NMU, it is important for an individual who has experienced relationship violence, sexual misconduct, and/or stalking to preserve evidence to the greatest extent possible to preserve all legal options. This may include other kinds of evidence, such as text messages, e-mail, social media postings, pictures and video.
NMU encourages victims of relationship violence and/or sexual misconduct to have a medical examination. NMU Police Department may provide transportation to the examination if requested. Even if an individual has not been physically hurt, a timely medical examination is recommended so that forensic evidence can be collected and preserved. An individual may choose to allow the collection of evidence by medical personnel even if they choose not to make a report to the police.
A sexual assault medical forensic examination typically includes a medical history, a physical examination, treatment for injury, and prophylactic treatment for pregnancy or sexually transmitted infections (STIs). In Marquette, sexual assault forensic exams can be coordinated through UP Health Systems - Marquette, (906) 228-9440; Women’s Center/Harbor House (906) 225-1346; Hotline: (800) 455-6611; http://www.wcmqt.org/ or by calling the National Sexual Assault Hotline at (800) 656-4673.
In order to best preserve forensic evidence, it is suggested that an individual not shower, bathe, douche, smoke, or change clothes or bedding before seeking medical attention, and that medical attention be sought as soon as possible. If the individual decides to change clothes, they can bring them unwashed to the hospital or medical facility in a paper bag.
In Michigan, sexual assault victims have the right to receive a no-cost medical forensic examination and have evidence collected, even if they do not want to participate in the criminal justice process. Health facilities must offer the examination and evidence collection to any person who states they have been assaulted within the previous 120 hours (5 days). If an individual chooses, forensic evidence is also collected through the use of a sexual assault evidence kit. Sexual assault medical forensic examinations are typically performed by a Sexual Assault Nurse Examiner. Patients cannot be billed for evidence collection and the accompanying medical forensic examination.
NMU recognizes that deciding among these options can be difficult and is an intensely personal decision. A Complainant has many options to make a report under the Relationship Violence, Sexual Misconduct, and Stalking Policy, including seeking counseling or assistance from a confidential resource and/or making a report to law enforcement.
To File a University Complaint
A Campus Reporter includes any employee, including student employees, who have a duty to report to an Official with Authority (OWA) Prohibited Conduct covered by NMU Policy.
Campus Reporters are required by NMU Policy to immediately disclose all reported details of the incident (date, time, and location), the names of the Parties involved, and a brief description of the incident to the Title IX Coordinator or Deputy Title IX Coordinator. Campus Reporters will safeguard an individual’s privacy and only share information with a small circle of individuals who are directly involved in the resolution of a report under the Relationship Violence, Sexual Misconduct and Dating Violence Policy. This connects a Complainant to information and resources and enables NMU to take appropriate action to eliminate, prevent and address any Prohibited Conduct that may exist.
Official with Authority (OWA) is an employee of NMU explicitly vested with the responsibility to implement corrective measures for Prohibited Conduct on behalf of NMU. The designated Officials with Authority are the Title IX Coordinator and Deputy Title IX Coordinator.
NMU Police Department
If notice of a complaint is submitted in a form that does not meet the standard of a Formal Complaint, the Title IX Coordinator or Deputy Title IX Coordinator will contact the Complainant to ensure that it is filed correctly. A Formal Complaint means a document filed/signed (physical or digital signature or otherwise indicates that the Complainant is the person filing the complaint) by the Complainant.
The Complainant may initiate a Formal Complaint at any time during or after an initial Report by contacting the Title IX Coordinator and submitting the Complaint in writing. A parent or legal guardian may file a Formal Complaint on behalf of their minor dependent with a disability.
A Formal Complaint may also be signed by the Title IX Coordinator alleging a policy violation by a Respondent and requesting that NMU investigate the allegation(s). In doing so, the Title IX Coordinator does not become a Complainant or a Party for the case.
If a Complainant chooses not to file a Formal Complaint at the time of the Report, they may file a Formal Complaint at a later date.
If a Complainant decides to withdraw a Formal Complaint, they may later request to reinstate it or refile it.
Complainant Requests for Confidentiality/No Investigation
In assessing threats, NMU may consult with appropriate offices, which may include the Campus Assessment Team, and may consider the following in evaluating a Complainant’s request for confidentiality, that no investigation occur, or that no formal action be taken:
Where NMU determines that action should be taken that is inconsistent with a Complainant’s request not to proceed, the Title IX Coordinator, Deputy Title IX Coordinator or their designee will inform the Complainant about NMU’s chosen course of action. As part of providing Supportive Measures, NMU may pursue steps to limit the effects of the alleged Prohibited Conduct and prevent its recurrence in ways that do not involve disciplinary action against a Respondent or disclosing the identity of the Complainant. NMU may be compelled to act on alleged employee misconduct irrespective of a Complainant’s wishes.
If the Complainant elects to take no action, they can change that decision if they decide to pursue a Formal Complaint at a later date. Upon making a Formal Complaint, a Complainant has the right, and can expect, to have allegations taken seriously by NMU, and to have the incidents investigated and resolved through these procedures.
Supportive measures may include referral to other departments such as Counseling and Consultation Services or the Health Center, or referral to the Employee Assistance Program, modifications of work, Safe Walk Program, mutual restrictions on contact between the Complainant and Respondent, changes in work or housing locations, work leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The Title IX Coordinator or Deputy Title IX Coordinator may also assist, in coordination with faculty, in other supportive measures that may include adjustment to class schedules, extensions of deadlines or other course-related adjustments, and student leave of absence.
NMU will maintain the privacy of the supportive measures, provided that privacy does not impair NMU’s ability to provide the supportive measures. NMU will act to ensure as minimal of an academic impact on the Parties as possible. NMU will implement measures in a way that does not unreasonably burden the other Party.
The Title IX Coordinator and/or Deputy Title IX Coordinator promptly makes supportive measures available to the Complainant and/or Respondent, when appropriate, upon receiving notice of Prohibited Conduct. Supportive measures may be offered as the result of such disclosures without formal NMU action. At the time that supportive measures are offered, NMU will inform the Complainant, in writing (via email), that they may file a Formal Complaint with NMU either at that time or in the future, if they have not done so already. The Title IX Coordinator or Deputy Title IX Coordinator is responsible for coordinating the implementation of supportive measures.
Violations of no contact orders will be referred to appropriate student or employee conduct processes for enforcement.
While evaluating the need for Supportive Measures, the University may consider whether Emergency Removal of the Respondent is necessary. After conducting an individualized safety and risk analysis, the University may remove a Respondent from a University program or activity on an emergency basis, if it is determined that a Respondent poses an immediate threat to the physical health or safety of any individual arising from the allegations of Prohibited Conduct that justifies removal.
The emergency removal will remain in place pending the results of an investigation or until the threat to health or safety has passed.
If the University institutes an emergency removal (temporary suspension), the Respondent will receive notice and an opportunity to challenge the decision. For students, emergency removal follows the provisions and process set forth in the NMU Student Code of Conduct (see NMU Student Code, Temporary Suspension).
The University may place an employee on Administrative Leave when circumstances suggest the presence of the Respondent would significantly hinder the investigation.
During investigative meetings, the Adviser and/or Support Person are both silent and non-participating entities who are there solely to observe and provide support. The Parties are expected to ask and respond to questions on their own behalf throughout the investigation phase of the resolution process. Either Party or their Adviser and/or Support Person may request a short break during the investigative meetings to confer privately.
If the case proceeds to a hearing, the Adviser is then responsible for asking cross examination questions on behalf of their Party. The Adviser cannot make opening or closing statements, object to questions, ask questions of their own, or engage in advocacy other than to ask questions on behalf of their Party. An Adviser is required at a hearing; if a Party does not have an Adviser at the hearing, the University will provide one at no charge.
An Adviser may be an attorney. Advisers should make themselves available for meetings throughout the process when requested by their Party to attend. NMU will communicate directly with the Party. If the Party requests communication directly with the adviser, the determination will be made at the discretion of the Title IX Coordinator.
The Adviser and/or Support Person will be required to abide by the University’s policies and procedures, privacy protections and expected rules of participation. Neither the Adviser nor the Support Person may be a fact witness or otherwise have any conflicting role in the Complaint/Grievance Process. The University shall determine what constitutes appropriate behavior on the part of a support person and Adviser.
Any Adviser who oversteps their role as defined will be warned. If the Adviser continues to disrupt or otherwise fails to respect the limits of the Adviser role, the meeting will be ended, or other appropriate measures implemented. Subsequently, the Title IX Coordinator or designee will determine how to address the Adviser’s non-compliance and future role.
Advisers are expected to maintain the privacy of the records shared with them. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by NMU. NMU may seek to restrict the role of any Adviser who does not respect the sensitive nature of the process or who fails to abide by NMU’s privacy expectations.
The Parties are expected to provide immediate notice to the Title IX Coordinator or designee if they change Advisers at any time.
The Complaint/Grievance Process will ensure the following basic rights for all participants:
NMU will support and assist any Complainant or Respondent in understanding how to navigate the Grievance Process and Procedures. Upon receipt of a Formal Complaint, NMU will conduct a Title IX Assessment to determine the applicable process for review and investigation.
Complaint/Grievance Process A / Appendix A applies to qualifying allegations of both Title IX involving employees or students. Complaint/Grievance Process A / Appendix A also applies to any Prohibited Conduct involving students.
Complaint/Grievance Process B /Appendix B applies to employees of the University with qualifying allegations of only non-Title IX Prohibited Conduct.
Unionized/other categorized employees are subject to the terms of their agreements/employees’ rights to the extent those agreements do not conflict with federal or state compliance obligations.
NMU will determine responsibility for violation of this Policy by using the preponderance of evidence standard.
Where the Respondent is a third party, defined as any Party who is not a current NMU employee. NMU’s ability to take action may be limited. Appendix C: Third Parties.
For Title IX to apply, the incident must be reported while the Parties are all associated with the University (as current students or employees) and must have occurred on property owned or operated by the University, in the United States. Individuals who were subjected to Sexual Harassment that meets this definition and criteria under Title IX, and who believe the University’s response was deliberately indifferent and/or failed to meet procedural requirements, have a right to contact the ED Office for Civil Rights (OCR). Additionally, Employees have a right to contact the Equal Employment Opportunity Commission (EEOC) regarding their rights under Title VII. See below, “ADDITIONAL INFORMATION, Contact Information for External Agencies.”
NMU’s Relationship Violence, Sexual Misconduct, and Stalking Policy, Procedures, definitions and burden of proof may differ from Michigan or federal criminal law. Neither law enforcement’s determination of whether to prosecute a Respondent, nor the outcome of any criminal prosecution, determine whether a violation of this Policy has occurred. Proceedings under this Policy may be carried out prior to, simultaneously with, or following civil or criminal proceedings off campus.
At the request of law enforcement, NMU may defer its Complaint/Grievance Process until after the initial stages of a criminal investigation. If NMU delays for this reason, it will communicate with both Parties regarding Supportive Measures, rights, and procedural options under this Policy to assure safety and well-being during the criminal investigation. NMU will promptly resume the Complaint/Grievance Process under this Policy as soon as it is informed that law enforcement has completed its initial investigation.
New employees and students are provided with the opportunity for relationship violence, sexual misconduct, and/or stalking prevention and awareness information. NMU also uses internal and external resources to educate students and employees about harassment, sexual misconduct, relationship violence, safe and positive options for bystander intervention, as well as alcohol and drug awareness.
In addition, NMU offices, such as the NMU Police Department, Intercollegiate Athletics and Recreational Services, and Housing and Residence Life, coordinate to offer programming to address important topics such as relationship violence, sexual misconduct, bystander intervention, and substance abuse awareness education.
In addition, NMU follows all federal and state training requirements for all sexual misconduct, relationship violence and/or stalking for reporting, investigations, resolutions, and appeals.
At Northern, employees of Counseling and Consultation Services and the NMU Health Center are designated as Confidential Resources. Confidential Resources will not typically be required to make a report to the OWA without the permission of the person reporting; specific exceptions are allowed by law and regulation, including but not limited to the protection of a minor child, protecting persons at high risk for violence, or to adhere to a court order.
Incapacitation can be voluntary or involuntary. Signs of Incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances. Alcohol and drugs may be causes of Incapacitation.
Non-Consensual Sexual Contact
Non-Consensual Sexual Penetration
The determination of whether any conduct constitutes relationship violence is whether the conduct is so severe, pervasive or persistent as to significantly interfere with an individual’s ability to learn and/or work or cause substantial emotional distress, when judged both objectively (meaning that a “reasonable person” would find the behavior to be emotionally abusive) and subjectively (meaning the impacted individual felt the behavior was emotionally abusive.)
Sexual or Gender-Based Harassment
Gender-based harassment is harassment based on gender, gender identity, or gender expression, which may include acts of aggression, intimidation, or hostility, whether verbal, non-verbal, graphic, or physical, even if the acts do not involve conduct of a sexual nature, when the conditions outlined in (1), (2), or (3), below, are present.
Whether sexual harassment is sufficiently severe, persistent or pervasive to violate this Policy may depend on multiple factors. In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances. Not all inappropriate or unwanted sexual conduct is sexual harassment. Whether the unwanted sexual conduct rises to the level of creating a hostile environment will be determined using both a subjective and objective standard. However, the person should not be discouraged from reporting unwelcomed sexual conduct simply because they are not certain whether it is severe, persistent or pervasive, or objectively offensive enough to constitute a policy violation.
Some examples of prohibited sexual harassment include:
Supportive measures may include counseling, modifications of work, Safe Work Program, mutual restrictions on contact between the Parties, changes in work or housing locations, work leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The Title IX Coordinator and/or Deputy Title IX Coordinator may also assist, in coordination with faculty, in other supportive measures that may include adjustment to class schedules, extensions of deadlines or other course-related adjustments, and student leave of absence.
The institution must maintain as confidential any supportive measures provided to the Complainant or Respondent, to the extent that maintaining such confidentiality would not impair the ability of the institution to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.
Procedures were approved by President Erickson on 8/14/2020.
ATIXA 2020 ONE POLICY, TWO PROCEDURES MODEL