A. INTRODUCTION
Jefferson State Community College is
committed to providing a workplace and campus community free of sexual
misconduct and harassment. As required
by Title IX of the Education Amendments of 1972, the College does not
discriminate on the basis of sex in its education programs and activities. This
includes discrimination affecting employees of the college and applicants for
employment, students and applicants for admission, or members of the public.
All members of the College community are expected to conduct themselves in a
manner that does not infringe upon the rights of others, whether on college
premises or at any College owned off campus location and while participating in
any educational program or activity of the College.
Sexual harassment, which includes sexual
misconduct and sexual assault, is a form of
sex discrimination which is prohibited under Title IX of the Education
Amendments of 1972 and the Violence Against Women Act. This policy is intended
to reaffirm the College’s commitment to address sexual harassment and take steps
to prevent its reoccurrence and preserve or restore equal access to the
College’s education programs and activities.
Dating violence, domestic violence, and stalking may also be considered
forms of sexual discrimination. Due to the seriousness of these offenses, the College
has adopted specific policies and procedures, outlined in the Student Handbook,
employment policies, and https://www.jeffersonstate.edu/titleix/ to
address alleged instances of sexual harassment, sexual misconduct, sexual
assault, dating violence, domestic violence, and stalking. The College believes
that no person should bear the effects of sexual harassment alone. When such
conduct occurs, the College’s paramount concern is for the safety and
well-being of those impacted. To support and assist students, the College provides
a range of resources that include a trained counselor.
Under Title IX, individuals reporting
allegations related to sexual harassment and/or sexual violence, have the right
to a resolution of their complaint, to have the college conduct a prompt,
thorough and impartial investigation, and to receive supportive measures to
ensure the safety and wellbeing of the individuals involved and the college
community.
When allegations of sexual harassment and/or
sexual violence in any form are brought to the attention of the Title IX
Coordinator, and if a responding party is found to have violated this policy,
serious sanctions will be used to prevent its reoccurrence. Jefferson State
Community College does not tolerate or condone retaliation. Individuals wishing
to report reporting sexual harassment and/or sexual violence and/or to make
inquiries concerning the application of Title IX at the College may contact:
Dr.
Mike Hobbs, PhD
Vice
President for Student Affairs
Title
IX Coordinator
207
Allen Library
2601
Carson Road
Birmingham,
Alabama 35215
Phone:
(205) 856-8543
Email:
[email protected]
Mr.
Shain Wilson
Director
of Human Resources
111
George Wallace Hall
2601
Carson Road
Birmingham,
Alabama 35215
Phone:
(205)856-8598
Email: [email protected]
and/or
Assistant
Secretary
U.S.
Department of Education
Office
for Civil Rights
Lyndon
Baines Johnson Department of Education Building
400
Maryland Avenue, SW
Washington,
DC 20202-1100
Telephone: 800-421-3481
Fax: 202-453-6012; TDD: 800-877-8339
Email: [email protected] (mailto: [email protected])
Information regarding the Title IX
Coordinator and their role will be provided to all faculty, staff, students,
applicants for admissions, and applicants for employment. Also, this
information is available on the College website https://www.jeffersonstate.edu/titleix/ under
the Title IX webpage.
POLICY
The
U.S. Department of Education’s Office for Civil Rights (OCR) enforces,
among other statutes, Title IX of the Education Amendments of 1972. Title IX protects
people from discrimination based on sex in education programs or activities
that receive Federal financial assistance. Title IX states that:
“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.”
B. DEFINITIONS
RELATING TO SEXUAL HARASSMENT
Many terms are used in the context of sexual harassment.
The following will provide some common definitions and examples.
Actual knowledge: The
notice of sexual harassment or allegations of sexual harassment to the Title IX
Coordinator or any official of the College who has authority to institute
corrective measures of behalf of the College shall be deemed actual knowledge
on the part of the College.
Complainant: is an individual who
is alleged to be the victim of conduct that could constitute sexual harassment.
For the purposes of this procedure a
Complainant may be an individual applying for admission or employment, an
employee, a student or an individual otherwise participating in or attempting
to participate in the College’s education programs and activities.
Respondent: is an individual who
has been reported to be the perpetrator of conduct that could constitute sexual
harassment.
Formal complaint: is a
document filed by the complainant or signed by the Title IX Coordinator
alleging sexual harassment against a respondent and requesting that the College
investigate the allegation of sexual harassment. Note: At the time of filing a
formal complaint, a complainant must be participating in or attempting to
participate in an educational program or activity of the College at which the
formal complaint is filed.
Consent: “Consent” must be informed,
voluntary, and mutual and can be withdrawn at any time. There is no consent
when there is force, expressed or implied, or when coercion, intimidation,
threats, or duress is used. Whether or not a person has taken advantage of a position
of influence over another person may be a factor in determining consent.
Silence or absence of resistance does not imply consent. Past consent to sexual
activity with another person does not imply ongoing future consent with that
person or consent to that same sexual activity with another person.
Incapacitation: An
individual who is incapacitated is unable to give consent to sexual contact.
States of incapacitation include sleep, unconsciousness, intermittent
consciousness, intoxication, or any other state where the individual is unaware
that sexual contact is occurring or is otherwise unable to give informed and
voluntarily consent. Incapacitation may also exist because of a mental or
developmental disability that impairs the ability to consent to sexual contact.
Example: A person who is taking pain medication and falls asleep under the
influence of the medication can be incapacitated and not be able to give
consent to sexual contact.
Sexual Misconduct:
Committing sexual abuse, sexual assault, sexual harassment, sexual
exploitation, or statutory rape, as defined below or under Alabama state law.
Harassment: The striking, shoving,
kicking, or otherwise touching or making physical contact in regard to another
for the purpose of harassing, annoying or alarming; and/or directing abusive or
obscene language or making an obscene gesture toward someone for the purpose of
harassing, annoying, or alarming. Example: Making or using persistent
derogatory comments, epithets, or slurs that place a person in a hostile or
fearful environment or where the person’s safety is in jeopardy.
Sexual
harassment:
Conduct on the basis of sex that satisfies one or more of the following:
·
A school employee conditioning education benefits on
participating in unwelcome sexual conduct (i.e. quid pro quo);
·
Unwelcomed conduct that a reasonable person would determine is
so severe, pervasive, and objectively offensive that it effectively denies a
person equal access to the school’s education program or activity; or
·
Stalking, dating violence, or domestic violence.
Definitions
of Sexually Based Offenses
Sexual abuse in the first
degree:
(a)
A person commits
the crime of sexual abuse in the
first degree if:
(1) He subjects another person
to sexual contact by
forcible compulsion; or
(2)
He subjects another person to sexual
contact
who is incapable of consent
by reason of being physically helpless or mentally incapacitated.
(b) Sexual abuse in
the first degree is a Class C
felony (Alabama Code 13A-6-66).
Sexual abuse in the second
degree:
(a) A person commits the crime of sexual abuse in the second
degree if:
(1)
He subjects another person to sexual
contact
who is incapable of consent
by reason of some factor other than being less than 16 years
old; or
(2) He, being
19 years old or older, subjects another
person to sexual contact who is less than 16 years old, but more
than 12 years old.
(b) Sexual abuse
in second degree is a Class
A misdemeanor, except that if a person commits
a second or subsequent offense of
sexual abuse in the second
degree within one year of another sexual offense, the offense
is a Class C felony (Alabama Code 13A-6-67).
Rape in the first degree:
(a)
A person commits
the crime of rape in the first degree
if:
(1) He or she engages in sexual intercourse with a member of the
opposite sex by forcible compulsion; or
(2) He or she engages in sexual intercourse with a member of the
opposite sex who is incapable
of consent by reason of being
physically helpless
or mentally
incapacitated; or
(3) He or she, being
16 years or older, engages in sexual intercourse
with a member
of the opposite sex who is less than 12 years
old.
(b) Rape in the
first degree is a Class A felony (Alabama Code 13A-6-61).
Rape in the second degree:
(a) A person commits the crime of rape in the second degree if:
(1) Being 16 years
old or older, he or she
engages in sexual intercourse with a member of the opposite sex less than
16 and more than
12 years old; provided,
however, the actor is
at least
two years older than the member
of the opposite sex.
(2)
He or she engages in sexual
intercourse with a member
of the opposite sex who is incapable of consent by reason
of being mentally defective.
(b) Rape in the
second degree is a Class
B felony (Alabama Code 13A-6-62).
Sodomy in the first degree:
(a) A person commits the crime of sodomy in the
first degree if:
(1) He engages in
deviate sexual intercourse with another person
by forcible compulsion; or
(2) He engages
in deviate sexual intercourse with a person
who is incapable of consent by reason
of being physically helpless
or mentally
incapacitated; or
(3)
He, being 16 years old
or older, engages in deviate sexual intercourse
with a person who is less than 12 years old.
(b) Sodomy in
the first degree is a Class A felony
(Alabama Code 13A-6-63).
Sodomy in the second degree:
(a) A person commits the crime of sodomy in the
second degree if:
(1)
He, being 16 years old
or older, engages in deviate sexual intercourse
with another person less than 16 and more than 12 years old.
(2) He engages
in deviate sexual intercourse with a person
who is incapable of consent
by reason of being mentally defective.
(b) Sodomy in
the second degree
is a Class B felony
(Alabama Code 13A-6-64).
Domestic Violence:
Includes felony or misdemeanor crimes
of violence committed
by a current or former spouse of the victim,
by a person with whom the
victim shares a child in common, by a person cohabitating
with or has cohabitated with the
victim as a spouse, or by any
other person against an adult or youth victim who is protected from that person's acts under
the
domestic or family
violence laws of the jurisdiction (34 U.S.C.12291(a)(8).
In
Alabama, domestic
violence includes
felony and misdemeanor crimes of violence committed
by a current or former spouse, parent, child, any person
with
whom the defendant has a child in common,
a present or former household member, or a person who has or had a dating or
engagement relationship with the defendant (Alabama Code
Section 13A, Article 7 Domestic Violence
in 1st, 2nd, and 3rd Degrees).
Dating Violence:
Means violence committed by a person –
(a) Who is or
has been in a social relationship of a romantic or intimate nature
with the victim; and
(b) Where the
existence of such a relationship
will be determined based on a consideration of the following factors:
·
The length of the relationship,
·
The type of relationship,
·
The frequency of interaction between the persons
involved in the relationship (34 U.S.C.12291(a) (10).
In Alabama, dating violence is covered under Alabama Code
Section 13A, Article 7 Domestic
Violence in 1st, 2nd, and 3rd Degrees.
Stalking:
Means engaging
in a course of conduct directed at
a specific
person that would cause a reasonable
person to a) fear for his or her safety or the safety of others; or b) suffer substantial
emotional
distress 34 U.S.C.12291(a)(30).
In
Alabama, stalking is when a person intentionally and repeatedly follows
or harasses another person and who
makes a threat, either
expressed or implied, with
the intent to place that person in reasonable fear of death
or serious bodily harm (13A-6-90
Stalking in the
first degree) or a person who, acting with
an improper purpose,
intentionally and repeatedly
follows, harasses, telephones, or
initiates communication, verbally, electronically,
or otherwise, with another person, any member of the other person's immediate
family,
or any third party with whom the other
person is acquainted, and causes material
harm
to the mental or
emotional
health of the other person, or causes such person to reasonably
fear that his or her employment,
business, or career is threatened, and the perpetrator was previously informed to cease that
conduct (Section 13A-6-91
Stalking in the
second degree).
Sexual
assault:
Means
an offense classified as a forcible or nonforcible sex offense under the
uniform crime reporting systems of the Federal Bureau of Investigation 20 U.S.C.1092
(f)(6)(A)(v).
Victims Option to Report
Students and
employees who are victims of
crime
including rape, acquaintance rape, domestic
violence, dating violence,
sexual assault, or stalking, are encouraged
by the College to report
but do have the option not
to report the incident to campus
law enforcement, or local law
enforcement. In those cases, the
victim may still seek assistance confidentially
from:
Resources for Sexual Assault Victims in
Jefferson County and St. Clair County
Birmingham Crisis Center (Rape Response) is available for
victims of sexual abuse 24 hours a day, 7 days a week. Services provided by
Rape Response include mental health counseling and evidence collection. Services are available to victims whether or
not the victim decides to contact law enforcement. All services are free and
confidential.
Phone
number: 205-323-7777
Address: 3600 8th Avenue
South
Birmingham,
Alabama 35222
Resources for Sexual Assault Victims in Shelby
County and Chilton County
Safe Shelby (Rape Response) is available for victims of
sexual abuse 24 hours a day, 7 days a week. Services provided by Rape Response
include mental health counseling and evidence collection. Services are available to victims whether or
not the victim decides to contact law enforcement. All services are free and
confidential.
Phone
number: 205-669-7233
Address: P.O.
Box 620
Columbiana,
Alabama 35051
Formal Complaint
Process
A. INITIAL
STEPS
Any student or employee of the College or
applicant for employment or admission who has a complaint against a student or
a member of the College faculty, staff, or administration concerning sexual
harassment (Title IX of the Educational Amendments of 1972) or has knowledge of
any conduct constituting sexual harassment in an educational program or
activity of the College or which occurred on property owned by the College or
controlled by the College should report the complaint to the campus Title IX
Coordinator [link to Title IX webpage]. An educational program or activity of the
College includes, but is not limited to locations, events or circumstances over
which the College exercised substantial control over both the respondent and
the context in which the sexual harassment occurs, and also includes buildings
owned or controlled by a student organization that is officially recognized by
the College.
B. REPORTING
A COMPLAINT
Any individual may report sexual harassment
incident to Title IX Coordinator in person, by email, by telephone, or in
writing. The report must include the names of the Complainant(s) and
Respondent(s), approximate date of incident, facts of the incident, and contact
information for the person submitting the complaint.
The Title IX Coordinator will respond in
writing to the person submitting the complaint as soon as practicable, but not
exceeding five (5) business days. If the person submitting the complaint is not
the Complainant, the Title IX Coordinator will also contact the Complainant
within five (5) business days.
If after a discussion with the
Complainant, the Title IX Coordinator determines that the complaint does not
qualify as a Title IX Complaint, the Title IX Coordinator will notify the
Complainant in writing and may redirect the Complaint to the appropriate
committee.
If after a discussion between the
Complainant and the Title IX Coordinator, the Title IX Coordinator determines
that the complaint meets the criteria of a Title IX Complaint and the
Complainant requests to file a formal complaint, the Title IX Coordinator will
initiate the formal complaint process.
C. SUPPORTIVE
MEASURES
Supportive measures means
non-disciplinary, non-punitive individualized services offered as appropriate,
as reasonably available, and without fee or charge to the complainant or the
respondent before or after the filing of a formal complaint or where no formal
complaint has been filed. Such measures are designed to restore or preserve
equal access to the College’s education program or activity without
unreasonably burdening the other party, including measures designed to protect
the safety of all parties or the College’s educational environment, or deter
sexual harassment. Supportive measures may include counseling, extensions of
deadlines or other course-related adjustments, modifications of work or class
schedules, campus escort services, mutual restrictions on contact between the
parties, changes in work or housing locations, leaves of absence, increased
security and monitoring of certain areas of the campus, and other similar
measures. The College 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 College to provide the
supportive measures. The Title IX Coordinator is responsible for coordinating
the effective implementation of supportive measures.
Supportive measures will be offered to the
Complainant within five (5) business days of receipt of the complaint.
Supportive measures will be offered to the
Respondent simultaneously with the Notice of Allegations.
D. Standard
of Evidence for Determining Responsibility
For the purposes of College Title IX
procedures, the College will use a “preponderance of evidence” standard for
determining responsibility. Preponderance of the Evidence means evidence which
is of greater weight or more convincing than the evidence which is offered in
opposition to it; that is evidence which as a whole shows that the fact sought
to be proved is more probable than not.
E. FORMAL COMPLAINT PROCESS
A formal complaint must be
submitted in electronic (email) or written format to the Title IX Coordinator
and must be signed by the Complainant. In the event that under the
circumstances a formal complaint should be pursued notwithstanding a
Complainant’s desire not to file a formal complaint, the Title IX Coordinator
may sign the complaint. The complaint must include the following:
·
the date of the original complaint,
·
names of Complainant and Respondent,
·
facts and description of the complaint, and
·
the request to investigate complaint.
A Complainant must be
participating in or attempting to participate in a College sponsored program or
activity at the time the complaint is filed.
F. DIMISSAL
OF FORMAL COMPLAINT
The College may dismiss a formal complaint or allegations
therein if:
·
the
Complainant informs the Title IX Coordinator in writing that the Complainant
desires to withdraw the formal complaint or allegations therein,
·
the
Respondent is no longer enrolled or employed by the school, or
·
specific
circumstances prevent the school from gathering sufficient evidence to reach a
determination.
The
College must dismiss a formal complaint or allegations therein if:
· the allegations do not meet the
definitions of sexual harassment
· the alleged conduct did not occur
within the United States, or
· the alleged conduct did not occur
within a College sponsored program or activity.
If the College determines the formal complaint or
allegations therein will be dismissed, the Title IX Coordinator will provide
written notice to both parties of the dismissal of allegations, and the reason
for dismissal within five (5) business days of the decision to dismiss the
complaint.
G. NOTICE
OF ALLEGATIONS
The Title IX Coordinator will provide simultaneous
written notice of allegations, including sufficient details, and intent to
investigate to the Complainant and Respondent no later than ten (10) calendar
days after receipt of the formal complaint. The Title IX Coordinator will also
provide both parties with the formal complaint, grievance and appeal process,
possible sanctions and remedies, and availability of advisors. The written notice shall include a statement
that the respondent is presumed not responsible for the alleged conduct, that
the parties and their advisors may review and inspect evidence, and advise the
parties of the provisions of the College Code of Conduct relating to making
false statements or submitting false information during the grievance
process.
The Title IX Coordinator will additionally
notify the Title IX investigator of the pending investigation and provide a
copy of the formal complaint.
H. ADVISORS
In addition to providing the Complainant
and Respondent with written notice of allegations and intent to investigate,
the Title IX Coordinator will inform the parties of the availability of
advisors. Both parties shall have the right to retain, at the respective
party's own cost, the assistance of legal counsel or other personal
representative advisor. In the alternative, either or both parties may also request
an advisor provided by the College.
Only an advisor may conduct
cross-examination during the live hearing.
Neither party may dismiss a College
appointed advisor.
I. INVESTIGATION
PROCEDURE
The Title IX investigator is responsible
for conducting an investigation of the submitted formal complaint. The Title IX
investigator will have received Title IX investigator training within the
current academic year.
The burden of proof and the burden of
gathering evidence sufficient to reach a determination regarding responsibility
rest on the College and not on the parties.
The Title IX investigator will notify the
Complaint and Respondent in writing of the intent to investigate within five
(5) business days of receipt of the formal complaint and will commence
interviews within ten (10) business days or receipt of the formal complaint.
The Title IX investigator will notify the Complainant and Respondent and their
respective advisors in writing of all individuals the investigator intends to
interview.
Either party may identify other witnesses
with relevant information for interview or other evidence for review by the
investigator.
The Title IX investigator will conduct a
factual investigation of the formal complaint and shall research applicable
statutes, regulations, and/or policies, if any. The Title IX investigator will
notify any interviewees in writing of the intent to interview. Interviewees
will have at least five (5) business days’ notice of an interview. Notice will
include the participants, date, place, purpose, and time of the interview.
The College will provide an equal
opportunity for the parties to present witnesses, including fact and expert
witnesses, and other inculpatory (tending to establish fault or guilt) and
exculpatory (clearing or tending to clear from alleged fault or guilt) evidence.
Creditability determinations may not be based on a person’s status as a complainant,
respondent or witness.
The College will provide the parties with the
same opportunities to have others present during any grievance proceeding,
including the opportunity to be accompanied to any related meeting or
proceeding by the advisor of their choice, who may be, but is not required to
be, an attorney, and not limit the choice or presence of advisor for either the
complainant or respondent in any meeting or grievance proceeding; however, the
College may establish restrictions regarding the extent to which the advisor
may participate in proceedings, as long as the restrictions apply equally to
both parties.
The College will provide both parties an
equal opportunity to inspect and review any evidence obtained as part of the
investigation that is directly related to the allegations raised in a formal
complaint, including the evidence upon which the College does not intend to
rely in reaching a determination regarding responsibility and inculpatory or
exculpatory evidence whether obtained from a party or other source, so that
each party can meaningfully respond to the evidence prior to conclusion of the
investigation.
The College will make all such evidence
subject to the parties’ inspection and review available at any hearing to give
each party equal access opportunity to refer to such evidence during the
hearing, including for purposes of cross-examination.
Prior to the completion of the
investigative report, the Title IX investigator will submit all reviewed
evidence to the Title IX Coordinator.
The Title IX Coordinator will provide
copies of all evidence reviewed during the investigation to the Complainant,
Respondent, and their respective advisors. All parties will have ten (10)
business days to review the evidence and respond in writing to the Title IX
Coordinator.
Subsequent to the ten (10)
business day review period, the Title IX Coordinator will direct any responses
from the Complainant, Respondent, or their respective advisors to the Title IX
Investigator for additional review. The Title IX Investigator will submit a
final report and the reviewed evidence to the Title IX Coordinator. At least 10
days prior to the live hearing, the Title IX Coordinator will simultaneously
provide the Complainant, Respondent, their respective advisors, with the final
report and all reviewed evidence for their review and written response. The
President will select a Hearing Officer to conduct the live hearing. The
Hearing Officer shall be provided a copy of the investigative report and
reviewed evidence.
J. LIVE HEARING
PROCEDURE
Upon receipt of the final investigative
report, the Hearing Officer will convene a Decision Maker panel and schedule a
live hearing. The panel will consist of three (3) individuals selected by the Hearing
Officer who have completed Decision Maker training during the current academic
year. The Hearing Officer will designate one of the Decision Makers as Primary
Decision Maker. Hearing Officer will notify the Complainant, Respondent, their
respective advisors, Title IX Coordinator, Title IX Investigator, witnesses
named in the final report, and the Decision Makers of the live hearing date
within five (5) business days of receipt of the final investigative report. The
live hearing date must provide the Complainant, Respondent, and their
respective advisors with no less than ten (10) business days to review the
final investigative report and all supporting evidence.
The hearing must be a live, recorded
hearing with the opportunity for both advisors to conduct cross-examinations. The
hearing shall be recorded by either a court reporter or on audio or video tape
or by other electronic recording medium. In addition, all items offered into
evidence by the parties, whether admitted into evidence or not, shall be marked
and preserved as part of the hearing record.
Upon request, the Complainant
and Respondent may participate in the hearing via on-campus video conferencing provided that all parties, including the
Decision Making Panel, are able to see and hear the party or witness answering
questions in real-time.
The Hearing Officer, Decision
Makers, Complainant, Respondent, and their respective advisors will attend the
hearing. The Title IX investigator, Title IX Coordinator and witnesses will be
called to provide testimony if requested by the Decision Makers, parties or their
respective advisors.
If a party does not have an
advisor present at the live hearing, the College shall provide without fee or
charge to that party, an advisor of the College’s choice, who may be, but is
not required to be an attorney.
The hearing process will
consist of:
· Opening
statement by Hearing Officer
· Review
of hearing procedures, formal complaint and notice of allegations by Hearing
Officer
· Review
of potential hearing outcomes and sanctions by Hearing Officer
· Complainant
Testimony
· Cross-examination
of Complainant by Respondent advisor
· Testimony
of Witnesses of Complainant
· Cross-examination
of Complainant Witnesses by Respondent advisor
· Respondent
Testimony
· Cross-examination
of Respondent by Complainant advisor
· Witnesses
of Respondent Testimonies
· Cross-examination
of Respondent Witnesses by Complainant advisor
· Decision
Maker inquiries
· Review
of appeal process by Hearing Officer
· Closing
statement by Hearing Officer
· Dismissal
of parties
· Decision
Maker deliberations
At the hearing, the Hearing
Officer shall read the hearing procedures, notice of allegations, formal
complaint, potential hearing outcomes, and potential sanctions. After the Hearing
Officer concludes opening statements, the Complainant shall have the
opportunity to present such oral testimony and offer such other supporting
evidence as deemed relevant to the formal complaint. Subsequent to Complainant
testimony, the Respondent advisor may conduct cross-examination. The Decision Makers
may question the Complainant after the cross-examination.
The Complainant may call
witnesses to provide testimony as deemed appropriate to the formal complaint.
The Respondent advisor may conduct cross-examination of the witnesses. The
Decision Makers may question the witnesses after the cross-examination.
The Respondent shall then be
given the opportunity to present such testimony and offer such other evidence
as deemed relevant to the Respondent's defense against the formal complaint. Subsequent
to Respondent testimony, the Complainant advisor may conduct cross-examination.
The Decision Makers may question the Respondent after the cross-examination.
The Respondent may call
witnesses to provide testimony as deemed appropriate to the formal complaint.
The Complainant advisor may conduct cross-examination of the witnesses. The
Decision Makers may question the witnesses after the cross-examination.
Only relevant
cross-examination and other questions may be asked of a party or witness.
During cross-examination, the
advisor will pose each question orally to the Primary Decision Maker. The
Primary Decision Maker will determine if the Complainant, Respondent, or
witnesses may respond to the question. If the Primary Decision Maker chair
determines that the question is not relevant, the Primary Decision Maker will
explain the rationale for dismissing the question. Rape shield protection is
provided for Complainants which deems irrelevant questions and evidence about a
Complainant’s prior sexual behavior unless offered to prove that someone other
than the Respondent committed the alleged misconduct or if the questions and
evidence concern specific incidents of Complainant’s prior sexual behavior with
respect to the Respondent and offered to prove consent.
If a witness or party is not
available or declines cross-examination, the decision makers must not rely on
any statement of that witness in reaching a determination regarding
responsibility; provided, however, that the decision makers cannot draw an
inference about the determination regarding responsibility based solely on a
party or witness’s absence from the live hearing or refusal to answer
cross-examination or other questions.
Upon conclusion of the presentation
of the evidence and cross-examinations, the Hearing Officer shall read the
appeal process and closing statements. The Complainant, Respondent, their
respective advisors and all witnesses shall be dismissed.
The Decision Makers will
deliberate to determine if the Respondent is deemed responsible and submit a
written hearing report which contains:
· identification
of the allegations potentially constituting sexual harassment;
· a description
of the procedural steps taken from the receipt of the formal complaint through
determination, including any notifications to the parties, interviews with
parties and witnesses, site visits, methods used to gather other evidence, and
hearings held;
· findings
of fact supporting the determination;
· conclusions
regarding the application of the College’s code of conduct to the facts;
· a statement
of, and rationale for, the result as to each allegation, including a
determination regarding responsibility, any disciplinary sanctions the College imposes
on the respondent, and whether remedies designed to restore or preserve equal
access to the College’s education program or activity will be provided by the College
to the complainant; and
· the College’s
procedures and permissible bases for the complainant and respondent to appeal.
The Primary Decision Maker will
submit the hearing report to the Hearing Officer within ten (10) business days
of the live hearing.
The
Hearing Officer will submit the hearing report simultaneously to the Title
IX Coordinator, Complainant, Respondent, and their respective advisors within three
(3) business days of receipt of the hearing report.
The College must provide the
written determination to the parties simultaneously. The determination regarding responsibility
becomes final either on the date that the College provides the parties with the
written determination of the result of the appeal, if an appeal is filed, or if
an appeal is not filed, the date on which an appeal would no longer be
considered timely.
The Title IX Coordinator will
retain the recording of the hearing, the hearing report, the investigative
report, and all evidence obtained during the investigation and all evidence
offered at the hearing.
K. APPEAL
PROCEDURE
Appeals
of a determination regarding responsibility and from the College’s dismissal of
a formal complaint or any allegations therein are available to both parties on
the following grounds: (1) procedural irregularity that affected the outcome of
the matter; (2) new evidence that was not reasonably available at the time the
decision regarding responsibility or dismissal was made, that could affect the
outcome; and/or (3) the Title IX Coordinator, Investigator, or a Decision Maker
had a conflict of interest or bias that affected the outcome.
The President of Jefferson State Community
College or his/her designee shall be the appeal authority in upholding,
rejecting, or modifying the recommendations of the Decision Maker Panel. The
President or his/her designee shall not be bound in any manner by the
recommendation(s) of the Decision Maker Panel, but shall take it (them) into
consideration in rendering his/her decision.
Either party may file a written request
with President requesting that the President review the decision of the Decision
Maker Panel. The written request must be filed within ten (10) business days
following the party's receipt of the hearing report. If the appeal is not filed
by the close of business on the tenth (10th) business day following
the party's receipt of the report, the party's opportunity to appeal shall have
been waived.
As to all appeals, the College will:
· notify
the other party in writing when an appeal is filed and implement appeal
procedures equally for both parties;
· ensure
that the decision-maker(s) for the appeal is not the same person as the
decision-maker(s) that reached the determination regarding responsibility or
dismissal, the investigator(s), or the Title IX Coordinator.
· ensure
the decision-maker(s) for the appeal complies with the standards set for in 34
C.F.R. § 160.45(b)(iii);
· give both
parties a reasonable, equal opportunity to submit a written statement in
support of, or challenging, the outcome;
· issue
a written decision describing the result of the appeal and the rationale for
the result; and
· provide
the written decision simultaneously to both parties.
A decision on a party’s appeal shall be
rendered within 30 calendar days of the initiation of the appeals process. The
time for decision may be extended for exigent circumstance or as may be
otherwise agreed by the parties.
If the Respondent is also an employee of
the College, the individual may also file a claim with the Equal Employment
Opportunity Commission within 180 days of the alleged discriminatory act.
Informal Resolution. The College may not
require as a condition of enrollment or continuing enrollment, or employment or
continuing employment, or enjoyment of any other right, waiver of the right to
an investigation and adjudication of formal complaints of sexual harassment
consistent with this section. Similarly, the College may not require the
parties to participate in an informal resolution process under this section and
may not offer an informal resolution process unless a formal complaint is
filed. However, at any time prior to reaching a determination regarding
responsibility the College may facilitate an informal resolution process, such
as mediation, that does not involve a full investigation and adjudication,
provided that the College does the following:
(i) provides
to the parties a written notice disclosing: the allegations, the requirements
of the informal resolution process including the circumstances under which it
precludes the parties from resuming a formal complaint arising from the same
allegations, provided, however, that at any time prior to agreeing to a
resolution, any party has the right to withdraw from the informal resolution
process and resume the grievance process with respect to the formal complaint, and
any consequences resulting from participating in the informal resolution
process, including the records that will be maintained or could be shared;
(ii) obtains
the parties’ voluntary, written consent to the informal resolution process; and
(iii) does not
offer or facilitate an informal resolution process to resolve allegations that
an employee sexually harassed a student.
L. RETALIATION PROHIBITED. Neither the College nor other person may
intimidate, threaten, coerce, or discriminate against any individual for the purpose
interfering with any right or privilege secured by Title IX, or because the
individual has made a report or complaint, testified, assisted, or participated
in any manner an investigation, proceeding, or hearing conducted under this
policy. Complaints alleging retaliation may be filed according to the grievance
procedures included in the formal complaint process. The College shall keep
confidential the identity of any individual who has made a report or filed a
formal complaint of sexual harassment, any complainant, any individual who has
been reported to be the perpetrator of sex discrimination, any respondent, and any
witness except as may be permitted by FERPA statute, 20 U.S.C. 1232g or FERPA
regulations, 34 CFR part 99, or as required by law, or to carry out the
purposes of 34 CFR part 106, including the conduct of any investigation,
hearing, or judicial proceeding arising thereunder.
Range of Possible
Sanctions – On final determination of responsibility the following sanctions may be imposed against a
respondent:
State
of Alabama Title 13a
Laws
and Penalties for Title IX related crimes
|
Crime |
Criminal Penalties |
Employee Penalties |
College Penalties for
Students |
College Penalties for
person(s) other than students and employees
|
|
Harassment (13A11-8) |
Fines Not more than
$500 Jail -not more than
three months in city or county jail |
Training Referral to
Counseling Reprimand Loss of Privileges Suspension Expulsion Other penalties set
forth by the College |
Training Referral to
Counseling Reprimand Loss of Privileges Suspension Expulsion Other penalties set
forth by the College |
Trespass from Campus Termination of
contractual agreements |
|
Assault 1st
degree (13a-6-20) |
Class B Felony: not
more than 20 years in prison, or less than 2 years; Not more than $30,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Assault 2nd
(13a-6-21) |
Class C Felony: not
more than 10 years or less than 1 year and 1 day (366 days); not more than
$15,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Assault 3rd
(13a-6-22) |
Class A misdemeanor:
not more than 1 year in the county jail; not less than $6,000 |
Termination of
employment |
Suspension 1-2 Semesters Mental Health Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Menacing (13a-6-23) |
Class B misdemeanor:
not more than 6 months; not less than $3,000 |
Termination of
employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Reckless Endangerment
(13a-6-24) |
Class A misdemeanor:
not more than 1 year in the county jail; not less than $6,000 |
Termination of
employment |
Suspension 1-2 Semesters Mental Health Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Criminal Coercion
(13a-6-25) |
Class A misdemeanor:
not more than 1 year in the county jail; not less than $6,000 |
Termination of
employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Unlawful Imprisonment
1st (13a-6-41) |
Class A misdemeanor:
not more than 1 year in the county jail; not more than $6,000. |
Termination of
employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Unlawful Imprisonment
2nd (13a-6-42) |
Class C misdemeanor:
not more than 6 months in county jail; not less than $500 |
Termination of employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Kidnapping 1st
(13a-6-43) |
Class A felony: life
or not more than 99 years or less than 10 years; not more than $60,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Kidnapping 2nd
(13a-6-44) |
Class B Felony: not
more than 20 years or less than 2 years; not more than $30,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Interference with
Custody (13a-6-45) |
Class C Felony: not
more than 10 years or less than 1 year and 1 day (366 days); not more than
$15,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Rape 1st
(13a-6-61) |
Class A Felony: life
or not more than 99 years or less than 10 years; not more than $60,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of contractual
agreements |
|
Rape 2nd
(13a-6-62) |
Class B Felony: Not
more than 20 years or less than 2 years; not more than $30,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of contractual
agreements |
|
Sodomy 1st
(13a-6-63) |
Class A Felony: life
or not more than 99 years or less than 10 years; not more than $60,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Sodomy 2nd
(13a-6-64) |
Class B Felony: Not
more than 20 years or less than 2 years; not more than $30,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Sexual Misconduct
(13a-6-65) |
Class A misdemeanor:
not more than 1 year in the county jail; not less than $6,000 |
Termination of
employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all school
property Termination of
contractual agreements |
|
Sexual torture
(13a-6-65.1) |
Class A Felony: life
or not more than 99 years or less than 10 years; not more than $60,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Sexual abuse 1st
(13a-6-66) |
Class C Felony: not
more than 10 years or less than 1 year and 1 day (366 days); not more than
$15,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Sexual abuse 2nd
(13a-6-67) |
Class A Misdemeanor:
not more than 1 year in the county jail; not less than $6,000 (2nd
offense within 1 year=class c felony; not more than 10 years not less than 1
year; not less than $15,000) |
Termination of
employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Indecent Exposure (13a-6-68) |
Class A misdemeanor:
not more than 1 year in the county jail; not more than $6,000. (3rd or
subsequent conviction is Class C Felony; not more than 10 years or less than
1 year; not less than $15,000) |
Termination of
employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
School employee
engaging in sex act with student under 19 years (13a-6-81) |
Class B Felony: Not
more than 20 years or less than 2 years; not more than $30,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
School employee
having sexual contact with a student under 19 (13a-6-82(a)) |
Class C Felony: not more
than 10 years or less than 1 year and 1 day (366 days); not more than
$15,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
School employee soliciting
sex act with student under 19 (13a-6-82(b)) |
Class A misdemeanor:
not more than 1 year in the county jail; not more than $6,000. |
Termination of
employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
School employee
distributing obscene material to a student (13a-6-82.1) |
Class A misdemeanor:
not more than 1 year in the county jail; not more than $6,000. |
Termination of
employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Stalking 1st
(13a-6-90) |
Class C Felony: not
more than 10 years or less than 1 year and 1 day (366 days); not more than
$15,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Stalking 2nd
(13a-6-90.1) |
Class B Misdemeanor:
not more than 6 months; not more than $3,000. |
Termination of
employment |
Suspension 1-2 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Aggravated stalking 1st(13a-6-91) |
Class B Felony: Not
more than 20 years or less than 2 years; not more than $30,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Aggravated Stalking 2nd
(13a-6-91.1) |
Class C Felony: not
more than 10 years or less than 1 year and 1 day (366 days); not more than $15,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Domestic Violence 1st
(13a-61-130) |
Class A Felony: life
or not more than 99 years or less than 10 years; not more than $60,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Domestic Violence 2nd
(13a-6-131) |
Class B Felony: Not
more than 20 years or less than 2 years; not more than $30,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Domestic Violence 3rd
(13a-6-132) |
Class A misdemeanor: not
more than 1 year in the county jail; not more than $6,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Interference with a
domestic violence emergency call (13a-6-137) |
Class B Misdemeanor:
not more than 6 months; not more than $3,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Violation of a
Domestic Violence Protection order (13a-6-142) |
Class A misdemeanor:
not more than 1 year in the county jail; not more than $6,000. (Min sentence: 30
days imprisonment (may not be suspended).
3rd or subsequent conviction in addition to any other
penalty or fine shall be punishable by min sentence of 120 days (may not be
suspended)) |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Human Trafficking 1st
(13a-6-152) |
Class A felony: life
or not more than 99 years or less than 10 years; not more than $60,000 |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Human Trafficking 2nd
(13a-6-153) |
Class B Felony: Not
more than 20 years or less than 2 years; not more than $30,000. |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Distributing a
Private Image (13a-6-240) |
Class A misdemeanor:
not more than 1 year in the county jail; not more than $6,000. (subsequent
adjudication or conviction is a class C Felony: not more than 10 years or
less than 1 year and 1 day (366 days); not more than $15,000 in fines.) |
Termination of
employment |
Suspension 1-3 Semesters Mental Health
Counseling |
Trespass from all
school property Termination of
contractual agreements |
|
Sexual Extortion
(13a-6-241) |
Class B Felony: Not
more than 20 years or less than 2 years; not more than $30,000 |
Termination of
employment |
Suspension 1 to 3
semesters |
Trespass from all
school property Termination of
contractual agreements |
|
Directing a child to
engage in sexual intercourse (13a-6-243) |
Class A Felony: life
or not more than 99 years or less than 10 years; not more than $60,000 Class C Felony: not
more than 10 years or less than 1 year and 1 day (366 days); not more than
$15,000. |
Termination of
employment |
Suspension 1 to 3
semesters |
Trespass from all
school property Termination of
contractual agreements |
At any time in the grievance process the College may impose
a temporary delay or limited extension of time frames for good cause with
written notice to the complainant and the respondent of the delay or extension
and the reasons for the action. Good cause may include considerations such as
the absence of a party, a party’s advisor, or a witness, concurrent law
enforcement activity, or the need for language assistance or accommodation of
disabilities.
Neither the College assigned Investigator or Decision Makers
and any person who facilitates an
informal resolution process shall require, rely upon, or otherwise use
questions or evidence that constitute or seek disclosure of information
protected under a legally recognized privilege, unless the person holding such
privilege has waived the privilege.
The College’s Title IX Coordinators, Investigators,
Decision Makers shall all have received training for their respective roles
prior to participating in a Title IX Complaint or grievance process. All materials used to train the Title IX
Coordinators, Investigators, Decision Makers and any person who facilitates an
informal resolution process may be found on the College’s website at https://www.jeffersonstate.edu/titleix/.