1 Wilkes University Title IX and Sexual Misconduct presented by James P. Valentine, Esquire Rosenn, Jenkins & Greenwald, LLP 15 S. Franklin Street, Wilkes-Barre, PA Phone:

2 Objectives Title IX Dear Colleague Letter Sexual Misconduct University Policies

3 Title IX “No person in the United States shall, on the basis of sex, be excluded from participation and be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” 20 USC § 1681

4 Title IX “No person in the United States shall, on the basis of sex, be excluded from participation and be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” 20 USC § 1681

5 Title IX Applicable to: – Academic Programs – Extracurricular Programs – Sports – On Campus – Off Campus – Field Trips

6 April 4, 2011 U. S. Department of Education, Office for Civil Rights issued 19 page letter on – Title IX – Sexual Violence – Sexual Harassment

7 Dear Colleague Letter Focused on student on student conduct Focused on complaints Best practice to apply to all complaints of sexual misconduct in the campus community

8 In a Nutshell: Sexual misconduct is sex based discrimination

9 Sexual Misconduct What is Sexual Misconduct that is violative of Title IX and prohibited by University policies? – Conduct that occurs between people of the opposite or same sex, including, but not limited to: Non-consensual sexual intercourse (rape) Non-consensual sexual contact (sexual assault, sexual battery) Any visual or auditory recording of sexual activity that is made without explicit consent or sharing such without explicit consent is also sexual misconduct

10 Sexual Misconduct What is Sexual Misconduct that is violative of Title IX and prohibited by University policies? – Conduct that occurs between people of the opposite or same sex, including, but not limited to: Committing a physical sexual act against another person’s will or where a person is incapable of giving consent Stalking Partner violence

11 Sexual Misconduct What is Sexual Misconduct that is violative of Title IX and prohibited by University policies? – Conduct that occurs between people of the opposite or same sex, including, but not limited to: Requests for sexual favors Any other behavior of a sexual nature that is non- consensual and used for the purpose of coercing, intimidating, or threatening another person

12 Sexual Misconduct Sexual misconduct also refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability.

13 Sexual Misconduct Sexual Harassment is also a form of Sexual Misconduct

14 What is Sexual Harassment? Unwelcome conduct of a sexual nature Unwelcome sexual advances Requests for sexual favors Other verbal, nonverbal, or physical conduct of a sexual nature

15 What is Sexual Harassment? Sexually suggestive physical contact, including, but not limited to, sexual assault and sexual violence Touching in any welcome fashion Requests for sexual favors Offers of employment benefits or academic benefits in exchange for sexual favors Direct or indirect threats of retaliation for refusal to comply with a sexually oriented request

16 What is Sexual Harassment? Sexual gestures or indecent exposure Displaying, storing, or transmitting pornographic or sexually suggestive material on University equipment Displaying sexually suggestive objects, pictures, cartoons or posters Verbal or written sexual comments, suggestions or propositions

17 What is Sexual Harassment? Sexually degrading remarks or comments about another’s body Suggestive or obscene letters, notes, invitations, e- mails, and/or text messages Any other verbal or physical conduct of a sexual nature

18 What is Sexual Harassment? Two forms – Quid Pro Quo Sleep with me or I’ll give you an F Sleep with me or I’ll recommend against your promotion – Hostile Environment The conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment

19 University’s Obligations 1.If the University knows or reasonably should know about sexual misconduct, the University must take immediate and appropriate action to investigate and determine what occurred.

20 University’s Obligations 2.If sexual misconduct has occurred, the University must take prompt and effective steps to: a. End it, b. Prevent its recurrence, and c. Address its effects.

21 University’s Obligations 3.The University must protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation.

22 University’s Obligations Designated and Reasonably Prompt Timeframe for Investigation – OCR – Typical full investigation takes approximately 60 days

23 Investigation Process Equal Treatment of Both Parties – Intake – Notices – Access to information – Same pre-hearing meeting rights – Presentation of witnesses – Notice of outcome – Appeal rights

24 Investigation Process Burden of Proof Preponderance of Evidence “More Likely Than Not”

25 Confidentiality If complainant requests confidentiality, take all reasonable steps to investigate and respond consistent with the request for confidentiality. At same time, must evaluate request in light of responsibility to provide a safe and non- discriminatory environment for all members of the campus community.

26 Confidentiality Factors to consider – Seriousness of conduct – Complainant’s age – Are there other complaints about the same individual? – The alleged harasser’s right to obtain information about the claims against him/her Should tell Complainant that confidentiality cannot be assured

27 No Retaliation No retaliation is allowed against individuals filing a complaint – Prohibited by University policy, and by state and federal law

28 Off Campus Conduct Where conduct occurs off campus, but has effects on campus, Title IX obligations apply

29 Law Enforcement Title IX obligations are independent from law enforcement obligations Different roles – Law Enforcement: Investigates criminal acts for prosecution – University: Investigate, stop, and remedy discrimination

30 Law Enforcement Complainant should be notified of right to file a criminal complaint Cooperation with law enforcement Some actions may not be a crime, but can be discrimination Police reports may be useful for fact gathering, but may not be relied upon for conclusions or analysis

31 Title IX Officers For Employees: Joseph Housenick, Coordinator Human Resources Director 84 West South Street Wilkes-Barre, PA Phone: (570) For Students: Philip Ruthkosky, Deputy Coordinator Associate Dean, Student Development 84 West South Street Wilkes-Barre, PA Phone: (570)