Sexual Harassment/Sexual Assault Complaint Procedures Involving Students

Objective

To provide students with guidelines on how to file sexual harassment/sexual assault complaints and obtain interim measures or support.

Authority

Title IX of the Educational Amendment Act of 1972; Violence Against Women Reauthorization Act (VAWA); and Board of Trustees Policy 1.1.96, Delegation of Authority to the President of the University

Compliance with these guidelines does not constitute a violation of the Family Educational Rights and Privacy Act of 1974 (FERPA) 

Responsibility for Implementation

Deputy Title IX Coordinator
Title IX Coordinator
Vice President for Student Development and Campus Life
Dean of Students
Director of the Women’s Center
Director, University Health Center

Effective Date

September 24, 1998, as amended
Approved by: President’s Executive Council
Date Approved: September 23, 1998
Amended Date: September 2015


Contents

  1. Introduction
    1. Definition
      1. Consent
      2. Dating Violence
      3. Domestic Violence
      4. Sexual Harassment (including Quid Pro Quo Harassment & Hostile Environment Harassment)
      5. Sexual Assault 
      6. Stalking
      7. Proceeding
      8. Result
    2. Consensual Relationships
    3. Confidentiality
    4. Retaliation
    5. Interim Measures
    6. Groundless or Malicious Allegations
  2. How to File a Complaint
    1. Complaints
    2. Record of Complaint and Decision
  3. Conduct Process
  4. External Complaint Process
  5. Other Resources

I. Introduction

Montclair State University is committed to the principles of academic and professional excellence and to fostering a positive learning and working environment for its students and employees. The civil and respectful treatment of one another is a foundation of this principle, and antisocial behavior such as sexual harassment and sexual assault, dating violence, domestic violence, and stalking is prohibited and will not be tolerated by the University.  This policy does not impair the exercise of rights protected under the First Amendment. The University applies and enforces this policy in a manner that respects First Amendment rights of students, faculty, staff, and others.

The University seeks to eliminate sexual harassment and sexual assault through education and by encouraging students to report concerns or complaints. Prompt corrective measures will be taken to stop sexual harassment and sexual assault whenever it occurs. Students or employees who violate the University's policy against sexual harassment and sexual assault are subject to disciplinary measures, up to and including dismissal or termination.

Sexual harassment, which includes sexual assault (an interchangeable term in this document), is a violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. that prohibits discrimination on the basis of sex/gender for educational institutions receiving federal funds. Title IX protects all students, regardless of sexual orientation, gender, gender identity or expression, immigration status, or disability.  As a recipient of federal funds, Montclair State University must comply with Title IX and VAWA regulations. 

The University will fully comply with all relevant civil laws prohibiting sexual harassment and all criminal laws concerning sexual assault. 

Any student who believes that she/he has been sexually harassed or sexually assaulted should follow the University's reporting procedures. Complaints should be filed as soon as possible after the alleged harassment. Late reporting may impede the University's ability to investigate effectively.

Because of the University's legal and moral obligation to address sexual harassment and sexual assault when it occurs, under certain circumstances the University may exercise its right to initiate an investigation even though the alleged victim is unwilling to pursue a complaint.

These procedures can be found online at: http://www.montclair.edu/sexual-harrassment/, and
http://www.montclair.edu/sexual-harassment/sexual-harassment-complaint-procedures-students/

Print copies of these procedures are available in the Office of the Dean of Students, Office of Equal Opportunity/Affirmative Action & Diversity, Women's Center, Counseling and Psychological Services, University Police Department, and the University Health Center.

A.  Definitions

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.  Consent to a sexual act is based upon active, informed, freely decided choice to participate in sexual contact/intercourse, and consent cannot be assumed or implied by silence or the absence of physical or verbal resistance.  It is an affirmative, unambiguous and conscious decision.  Consent to one type of sexual act does not imply consent to other forms and must be ongoing throughout a sexual encounter.  Past consent to sexual activity does not imply ongoing future consent with that person or consent to that same activity with another person.  If a person is mentally or physically incapacitated or impaired so that such person cannot understand the fact, nature or extent of the sexual situation, there is no consent.  This includes incapacitation by use of alcohol, and/or drug consumption that meets this standard, or being asleep or unconscious.

Dating Violence

Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.  The existence of such a relationship shall be determined based on a consideration of the following three factors: (1) the length of the relationship; (2) the type of relationship; and (3) the frequency of interaction between the persons involved in the relationship. 

Domestic Violence

A pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.  Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person.  This may include, but is not limited to any behaviors that intimidate, manipulate, harass, assault, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound another.  Domestic violence also includes violent misdemeanor and felony offences committed by the victim’s current or former spouse, current or former cohabitant, person similarly situated under domestic or family violence law, or anyone else protected under domestic or family violence law (current or former spouse or intimate partner, or a person with whom someone shares a child or any other person who is a present or former household member.)

Sexual Harassment

Unwelcome conduct of a sexual nature, whether between people of different sexes or the same sex, or unwelcome conduct of a non-sexual nature based upon a student’s actual or perceived gender, including conduct based on gender identity or expression, and non-conformity with gender stereotypes.  It includes sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.  Sexual violence (assault) is a form of sexual harassment prohibited by Title IX.  In addition, depending on the facts, dating violence, domestic violence and stalking may also be forms of sexual harassment.

When a student is sexually harassed, the harassing conduct is unwelcome and substantially interferes with work, educational performance or equal access to the University’s resources and opportunities.

There are two forms of sexual harassment – quid pro quo harassment and hostile environment harassment.  Quid pro quo harassment, by definition requires that the harasser be someone in a position of authority over the student.  Hostile environment harassment can occur when anyone in the campus community, including a student, harasses another person. An individual's intent or lack of intent to harass is not relevant to the determination of whether harassment occurred.

To make the ultimate determination of whether a hostile environment harassment exists for a student, the University considers a variety of factors related to the severity, persistence, or pervasiveness of the sexual harassment, including (1) the type, frequency, and duration of the conduct; (2) the identity and relationships of persons involved; (3) the number of individuals involved; (4) the location of the conduct and the context in which it occurred; and (5) the degree to which the conduct affected one or more student’s education.  The more severe the sexual harassment, the less need there is to show a repetitive series of incidents to find a hostile environment.  Indeed, a single instance of sexual assault may be sufficient to create a hostile environment.  Likewise, a series of incidents may be sufficient even if the sexual harassment is not particularly severe.  

Sexual Assault

Actual or attempted sexual contact with another person without that person’s consent, or when a person is incapable of giving consent.  For the purposes of this policy, may include Sexual Assault, Dating Violence, Domestic Violence, and Stalking. Additional acts that fall under sexual assault include, but are not limited to: Sexual Contact – non-consensual sexual touching of a person (i.e. rape, groping, sodomy, forced kissing, etc.) without consent; Sexual Battery – coercing, forcing or attempting to coerce or force a person to touch another person’s intimate parts or penetration of the vagina, anus, or mouth of a person by any body part of another person, or by an object without the other person’s consent. Sexual battery may occur whether the victim is clothed or not; Sexual Coercion – using pressure, alcohol or drugs to have sexual contact with someone against his or her will. Persistent attempts to have sexual contact with someone who has already refused.   

All such acts of sexual assault are forms of sex discrimination prohibited by Title IX and VAWA. Sexual assault is a criminal act.  Therefore, a student has a right to file a criminal complaint and a Title IX complaint simultaneously.

Stalking

Repeatedly maintaining a visual or physical proximity to a person, directly, indirectly, or through third parties, by any action, method, device, or means; following, monitoring, observing, surveilling, threatening, or communicating to or about a person; or interfering with a person’s property; repeatedly committing harassment against a person; or repeatedly conveying or causing to be conveyed verbal or written threats conveyed by any other means of communication; or threats implied by conduct or a combination thereof, directed at or toward a person; or such other course of conduct directed to a specific person what would cause a reasonable person to fear for her/his or other’s safety, or to suffer substantial emotional distress.

Proceeding

A proceeding is the due process and appeal rights provided to a complainant and accused pursuant to this Policy. A “proceeding” does not include communications and meetings between officials and victims concerning accommodations or protective measures to be provided to a victim.

Result

The University’s final outcome/determination after the proceeding.

B. Consensual Relationships

Consensual romantic and sexual relationships between students and faculty or staff are strongly discouraged. No person involved in a romantic or sexual relationship with a student shall have responsibility for evaluating the student's academic performance or for making decisions regarding the student's rights or benefits because of the inherent conflict of interest. Such relationships may become the basis for serious charges of sexual harassment. These relationships may also appear to others as exploitative even if the parties view their relationship as consensual. 

C. Confidentiality

Reports of sexual harassment of sexual assault made to responsible employees will be forwarded to the Title IX Coordinator or Deputy Title IX Coordinator who will determine what steps need to be taken.  Generally, the University will investigate the report to determine what occurred and will provide interim measures, if necessary, during the investigative process and any proceeding. All complaints will be handled with sensitivity throughout the process. Confidentiality will be maintained to the extent possible to protect the privacy interests of those involved.  The Title IX Coordinator or Deputy Title IX Coordinator will consider whether the victim’s request for confidentiality can be honored while still providing a safe and nondiscriminatory and safe environment for all students. Therefore requests for confidentiality will be weighed against the overall safety of students.  Employees allowed to maintain confidentiality and not required to report include the University’s physicians, psychologists, nurse practitioner, Health Center staff, and Women Center employees. (Confidential employees.)

Sexual assault is a criminal act and there are certain employees that have a responsibility for reporting such acts, despite one’s request for confidentiality. A responsible employee is an employee who must report knowledge of sexual harassment or sexual assault and who has the authority to take action to redress sexual assault, or who has been given the duty of reporting incidents of sexual violence and assault. For the purposes of these complaint procedures, a resident assistant is considered a responsible employee.  In addition, the individuals designated by this Policy as having responsibility for implementation are also responsible employees.

The University encourages victims of sexual harassment and sexual assault to report the incident and to seek help from employees with whom they feel most comfortable. 

D. Retaliation

Retaliation against an individual for reporting sexual harassment or for participating in an investigation is prohibited by Title IX and University policy.Examples of retaliation include intimidation, threats, coercion and may subject the offender to sanctions, regardless of whether or not the sexual harassment complaint has been substantiated.

Any activity by a student perceived by a complainant to be retaliatory in nature should be immediately reported to the Deputy Title IX Coordinator, who will in turn contact the Dean of Students Office for appropriate action. Claims of retaliation by a faculty or staff member should be reported to the Title IX Coordinator.

E. Interim Measures

If the complainant wants to avoid contact with the alleged perpetrator, interim measures can be taken whereby arrangements can be made to change class assignments, living arrangements, dining, transportation, etc.  Furthermore, resources are available including, but not limited to counseling, advocacy, academic support, physical health and mental health services.  If a report is made to a responsible employee, the Title IX Coordinator or Deputy Title IX Coordinator will inform the victim of available Interim Measures and will coordinate appropriate Interim Measures for the victim.  Victims who disclose incidents of sexual assault to confidential employees should discuss whether such employees report the misconduct to the University and request Interim Measures on the student’s behalf without reporting the nature of the conduct.  Confidential employees will work with the victim to determine what information the victim is willing to share with University employees involved in securing Interim Measures. Confidential employees will also explain to the victim how sharing certain information with responsible employees may trigger the University’s Title IX obligation to investigate. 

F. Groundless or Malicious Allegations

It is a violation of these procedures for anyone to knowingly make false accusations of sexual harassment/assault. Failure to prove a claim of sexual harassment, however, is not equivalent to making a false accusation. Sanctions may be imposed for making groundless or malicious accusations of sexual harassment/assault.

II. How to File a Complaint

Sexual Harassment

Individuals seeking to report alleged acts of sexual harassment by students should file an immediate complaint with the Deputy Title IX Coordinator, Dr. Shannon Gary, Student Center, Room 400, (973-655-4118). In the event that a complaint is filed against any person who has primary responsibility for implementing these procedures, the President shall determine the appropriate changes in personnel and shall advise the parties in writing of how the complaint should be processed.

Individuals seeking to report alleged acts of sexual harassment by faculty or staff, or a third party (i.e. visitor, contractor)  should file an immediate complaint with the Director of Equal Opportunity/Affirmative Action & Diversity/Title IX Coordinator of the University, Ms. Barbara Milton, College Hall 361D, (973-655-4349). Early resolution of complaints can benefit the complainant, the respondent, and the University as a whole. Late reporting may impede a satisfactory resolution or hamper a proper investigation.

A student who believes that she/he may have been sexually harassed may seek advice from the Dean of Students or the Women's Center. At their discretion, referrals will be made to either the Title IX or Deputy Title IX Coordinator.

Sexual Assault

Students and responsible employees should immediately report sexual assault cases to Campus Police at 973-655-5222, and/or to the Sexual Assault Response Team (SART) in the Health Center at 973-655-4361.  Late reporting may have an impact on the gathering of evidence or extent of the investigation.  

In cases of sexual assault, the complainant has the right to simultaneously file a criminal complaint and a Title IX complaint.

Parties have the right to be accompanied by an advisor of their choice at every step of the University process. An adviser's role is to support and advise the complainant or respondent. Advisors may not speak at a hearing on behalf of the individual charged, or appear in lieu of the individual. 

A. Complaints

A student may file a formal complaint at any time. The formal complaint must be filed with the Title IX Coordinator if it alleges an incident involving a student and a University employee, faculty, or contractor; and with the Deputy Title IX Coordinator if it alleges an incident involving only University students.

Incidents occurring off campus should also be reported.  Regardless of the location, if the accused is affiliated with the University the Deputy Title IX Coordinator will conduct an investigation.  A concurrent investigation may occur by authorities within the jurisdiction of misconduct if the victim chooses to pursue police action.

If the accused is not affiliated with the University the victim will be offered all available victim support options offered by the University; however the incident will be investigated by authorities within the jurisdiction of misconduct.

Students/individuals are encouraged to report sexual harassment and sexual assault as soon as possible. Again, late reporting may impede a proper investigation.

  1. All complaints will be acknowledged and promptly investigated and will include interviews with the complainant, and possibly with the respondent, witnesses, and other persons believed to have knowledge relevant to the allegations. 

  2. All complaints will be investigated in an impartial manner. If the complaint is adjudicated by a University hearing panel the opportunity will be given for both the complainant and respondent to present witnesses and evidence. Throughout the investigation the confidentiality of all participants will be maintained in accordance with this Policy. 

    The standard for making a determination in sexual harassment/assault cases and in resolving complaints will be the preponderance of evidence (more likely than not) and the complainant will be afforded a prompt and equitable resolution to the matter. 

  3. The investigation should be completed within 45 days from the time the formal complaint is filed. If a longer period is necessary for a thorough investigation, the President may issue reasonable time extensions. In such cases, both parties will be notified of any extensions.

  4. Upon the conclusion of the investigation of a formal complaint, a written investigative report will be prepared and submitted to the President or designee.  The President or designee will issue a final determination on the formal complaint to the complainant and respondent.

  5. The final decision of the President or designee may include remedial measures, such as a referral to the appropriate University administrative office for disciplinary action or making Interim Measures permanent. The final decision will include general information regarding rights to appeals.

  6. Sanctions for students found to have violated these procedures range from a warning to expulsion through the University's conduct process and where alleged criminal actions have occurred by referral to the local or county Prosecutor. 

  7. Sanctions for employees range from an oral reprimand to removal, reassignment, dismissal or detenuring and referral to the local or county Prosecutor. 

  8. All disciplinary action will be in compliance with University policies and applicable law and regulations. 

  9. Both the complainant and the alleged perpetrator shall be simultaneously informed, in writing, of the Result, the University’s procedures for the accused and the victim to appeal the Result, and when the Result becomes final. 

B. Record of Complaint and Decision

The record of the complaint and final decision shall be retained in a file in the offices of Title IX Coordinator or Deputy/Title IX Coordinator as applicable, in accordance with the record retention requirements of applicable laws. 

III. Conduct Process

  1. Reports or complaints against students shall be referred to the Deputy Title IX Coordinator for action pursuant to the University’s Student Code of Conduct. Following the conclusion of the conduct process, a student may appeal discipline imposed by the University to the Vice President for Student Development and Campus Life pursuant to Article VIII of the Student Code of Conduct.

    1. An outcome imposed by a Student Conduct Hearing Panel may be appealed by the accused student(s) or complainant(s) to an Appellate Board within three (3) business days of the decision. The Vice President will convent an appellate board to review appeal(s) if merit is found. 

    2. The Appellate Board will be comprised of one (1) student, (1) faculty/staff and (1) administrator not associated with the hearing.

    3. Except as required to explain the basis of new information, an appeal shall be limited to a review of the verbatim record of the Student Conduct Hearing Panel hearing and supporting documents for one or more of the following purposes:

      1. Whether there was a procedural error.  Deviations from designated procedures will not be a basis for sustaining an appeal unless significant prejudice results.

      2. Whether the sanction(s) imposed were appropriate or substantially disproportionate to its findings.

      3. To consider new information, sufficient to alter a Result, or other relevant facts not brought out in the original hearing, because such information and/or facts were not known to the person appealing at the time of the proceeding.

  2. Interim Measures imposed by the University may be appealed in writing by a student complainant or accused to the Vice President for Student Development and Campus Life within three (3) business days of the decision. Interim measures imposed by the University may be appealed in writing by an employee complainant or accused to the Vice President for Human Resources, or in accordance with the employee's applicable collective bargaining agreement.

  3. Following the Result, both complainant and respondent have the right to appeal the University's decision. Appeals shall be made to the University's Board of Trustees within 45 days of the Result and in accordance with the Rules Governing Appeals to the Montclair State University Board of Trustees.

  4. The University's Board of Trustees may: 1) affirm the original decision and Interim Measures and/or sanction and corresponding stipulations; 2) affirm the original decision but modify the original sanction or stipulations; or 3) reverse or modify the decision, which may include dismissal of the charges. The decision of the appeal is considered final action that may be further appealed to the Appellate Division of the Superior Court of New Jersey by either party.

IV. External Complaint Process

In addition to using the University's internal procedures, a student has the right to file a complaint with federal and state agencies that investigate allegations of sexual harassment and sexual assault charges. An external complaint may be filed directly with the agency. The agencies should be consulted concerning their deadlines for filing. The following are a list of external agencies that may consider complaints alleging sexual harassment and sexual assault.

For Title IX violations:

Office for Civil Rights
U.S. Department of Education
New York Office
75 Park Place, 14th Floor
New York, New York 10007-2146
(212) 637-6466
http://www2.ed.gov/about/offices/list/ocr/index.html

For violations of the New Jersey Law Against Discrimination:

New Jersey Division of Civil Rights
Essex County Regional Office
31 Clinton Street
Newark, New Jersey 07102
(973) 648-2700
http://www.nj.gov/oag/dcr/index.html

For violations of Domestic Violence, Dating Violence and Stalking:

Domestic Violence Unit
Wilentz Justice Complex
Room 1251, 12th Floor
212 Washington Street
Newark, New Jersey 07102
(973) 776-9300 Ext. 57049 (Main Number)
(973) 693-6845 (Fax Number)

Passaic County Administration Building, Domestic Violence Unit
401 Grand Street
Paterson, New Jersey 07505
(973) 881-4800 (Main Number)
(973) 225-0155 (Fax Number)

V. Other Resources

If needed, the following counseling services are available to students:

The Dean of Students Office - Student Center, (973) 655-4118
The University Health Center - Blanton Hall, (973) 655-4361
Counseling and Psychological Services - Student Center, (973) 655-5211
The Women's Center - Student Center - Room 420, (973) 655-5114
Residential and Education Services – (973) 655-4155
Essex County Rape Care Center (973) 746-0800
Passaic County Rape Care Center (973) 881-1450
Rape Crisis Hotline (877) 733-2273
New Jersey Domestic Violence Hotline 1-800-572-SAFE (7233)