Equal Opportunity, Harassment, and Nondiscrimination Policy

Advisor means a person chosen by a party or appointed by the institution to accompany the party to meetings related to the resolution process, to advise the party on that process, and to conduct questioning for the party at an adjudicatory hearing, if any.

Amorous Relationship Policy is the University System of NH policy to prevent conflicts of interest that can occur when members of the USNH community engage in consensual amorous relationships, and especially when the parties’ institutional roles place them in an uneven power dynamic (see USY V.D.3.6).

Complainant means an individual who is alleged to be the victim of conduct that could constitute harassment or discrimination based on a protected class; or retaliation for engaging in a protected activity.

Complaint (formal) means a document filed/signed by a Complainant or signed by the Title IX Coordinator alleging harassment or discrimination based on a protected class or retaliation for engaging in a protected activity against a Respondent and requesting that the University investigate the allegation.

Confidential Resource means an employee or off-campus resource who is not a mandated reporter (Responsible Employee) of notice of harassment, discrimination, and/or retaliation.

Day means a business day when Plymouth State University (PSU) is in normal operation.

Education program or activity means locations, events, or circumstances where Plymouth State University exercises substantial control over both the Respondent and the context in which the sexual harassment or discrimination occurs and also includes any building owned or controlled by a student organization that is officially recognized by the University.

Final Determination is a conclusion by the preponderance of evidence that the alleged conduct occurred and whether it did or did not violate policy.

Finding is a conclusion by the preponderance of the evidence that the conduct did or did not occur as alleged.

Formal Grievance Process means a method of formal resolution designated by PSU to address conduct that falls within the policies included below, and which complies with the requirements of Title IX, 34 CFR Part 106.45.

Grievance Process Pool includes any investigators, hearing panel/decision makers, appeal officers, and Advisors who may perform any or all of these roles (though not at the same time or with respect to the same case).

Hearing Decision-maker or Panel refers to those who have decision-making and sanctioning authority within the University’s Formal Grievance process.

Investigator means the person or persons assigned by the University to gather facts and evidence about an alleged violation of this Policy, assess relevance and credibility, synthesize the evidence, and compile this information into an investigation report and file of directly related evidence.

Notice means that an employee, student, or third party informs the Title IX Coordinator or other Official with Authority of the alleged occurrence of harassing, discriminatory, and/or retaliatory conduct.

Official with Authority (OWA) means an employee of Plymouth State University explicitly vested with the responsibility to implement corrective measures for harassment, discrimination, and/or retaliation on behalf of the University.

Parties include the Complainant(s) and Respondent(s), collectively.

Remedies are post-finding actions directed to the Complainant and/or the community as mechanisms to address safety, prevent recurrence, and restore access to the University’s educational program.

Respondent means an individual who has been alleged to be the perpetrator of conduct that could constitute harassment or discrimination based on a protected class; or retaliation for engaging in a protected activity.

Responsible Employee means an employee of the University who is obligated by policy to share knowledge, notice, and/or reports of discriminatory harassment (including sexual harassment), discrimination, and/or retaliation with the Title IX Coordinator. While Responsible Employees have reporting obligations to the Title IX Coordinator, they are not considered Officials with Authority.

Resolution means the result of an informal or Formal Grievance Process.

Sanction means a consequence imposed by the University on a Respondent who is found to have violated policy.

Sexual Harassment is the umbrella category including the offenses of sexual harassment, sexual assault, stalking, and dating violence and domestic violence. (see Sexual Harassment section below for greater detail).

Student is defined, for the purposes of this process, as any individual who has accepted an offer of admission, or who is registered or enrolled for credit or non-credit bearing coursework, and who maintains an ongoing relationship with the University.

Title IX Coordinator is the official designated by Plymouth State University to ensure compliance with federal and state civil rights laws including Title IX and PSU’s Title IX program. References to the Coordinator throughout this policy may also encompass a designee of the Coordinator for specific tasks.

Title IX Team refers to the Title IX Coordinator, any deputy coordinators, and any member of the Grievance Process Pool.

Title IX Coordinator

The Title IX Coordinator serves as the Title IX Coordinator and ADA/504 Coordinator and oversees implementation of the University’s policy on equal opportunity, harassment, and nondiscrimination. The Title IX Coordinator has the primary responsibility for coordinating PSU’s efforts related to the intake, investigation, resolution, and implementation of supportive measures to stop, remediate, and prevent discrimination, harassment, and retaliation prohibited under this policy.

Independence and Conflict of Interest

The Title IX Coordinator oversees the Title IX Team’s work related to this policy and acts with independence and authority free from bias and conflicts of interest. The Title IX Coordinator oversees all resolutions under this policy and these procedures. The members of the Title IX Team are selected and trained to ensure they are not biased for or against any party in a specific case, or for or against Complainants and/or Respondents, generally.

To raise any concern involving bias or conflict of interest by the Title IX Coordinator, contact the Director of Human Resources, the Provost and Vice President for Academic Affairs, or the USNH Ethics and Compliance Hotline at 1-844-592-8455. Concerns of bias or a potential conflict of interest by any other Title IX Team member should be raised with the Title IX Coordinator.

Reports of misconduct or discrimination committed by the Title IX Coordinator should be reported to the USNH Ethics and Compliance Hotline at 1-844-592-8455. Reports of misconduct or discrimination committed by any other Title IX Team member should be reported to the Title IX Coordinator.

Administrative Contact Information

Complaints or notice of alleged policy violations, or inquiries about or concerns regarding this policy and procedures, may be made internally to the Title IX Coordinator or the Officials with Authority, listed below:

Janette Wiggett, Title IX Coordinator Frost House MSC 65 17 High St. Plymouth, NH 03264 jtwiggett@plymouth.edu (603)535-2206

Plymouth State University has determined that the following administrators are Officials with Authority to address and correct harassment, discrimination, and/or retaliation. The Officials with Authority listed below may also accept notice or complaints on behalf of PSU:

For employee matters:

Director, Human Resources

Associate Director, Human Resources

For student matters:

Dean of Students

Associate Director(s), Student Conduct

Plymouth State University has also classified all employees as Responsible Employees requiring mandatory reporting of any knowledge they have that a member of the community is experiencing harassment, discrimination, and/or retaliation. The section on Reporting Responsibilities for Employees details which employees have this responsibility and their duties, accordingly. Inquiries may be made externally to:

Office for Civil Rights (OCR)

U.S. Department of Education

400 Maryland Avenue, SW

Washington, D.C. 20202-1100 Customer Service Hotline #: (800) 421-3481

Facsimile: (202) 453-6012  TDD#: (877) 521-2172 Email: OCR@ed.gov Web: http://www.ed.gov/ocr

For complaints involving employees: Equal Employment Opportunity Commission or the New Hampshire Commission for Human Rights. Since they have differing time limits for filing, which are in some cases dependent on filing with another agency, Complainants are encouraged to obtain that information early in the process.

Notice or disclosures of discrimination, harassment, and/or retaliation may be made using any of the following options:

1) Report an initial complaint with, or give verbal notice to, the Title IX Coordinator. Such a report may be made at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator or any other official listed.

2) Report online, using the appropriate disclosure reporting form posted on the Reporting an Incident section of this page. Reports may be made anonymously but may still give rise to a need to investigate. Plymouth State University seeks to provide supportive measures to all impacted parties/Complainants, which is not possible when the identity of an impacted party is not provided. Because initial reporting carries no obligation to initiate a formal response, and as PSU respects Complainant requests to not proceed unless there is a compelling threat to health and/or safety, the Complainant is largely in control and should not fear a loss of privacy by making a report that allows the Title IX Coordinator to discuss options for proceeding and/or provide supportive measures.

Following an initial report or disclosure, an impacted party will be provided with information about filing a Formal Complaint. A Formal Complaint is a document filed and signed by the Complainant or signed by the Title IX Coordinator alleging a policy violation by a Respondent and requesting that the University investigate the allegation(s). A complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information in the section immediately above, or as described in this section. Complainants are encouraged to meet with the Title IX Coordinator to discuss resources and reporting options prior to submitting a written Formal Complaint.

Plymouth State University will offer and implement appropriate and reasonable supportive measures to the parties upon notice or disclosure of alleged harassment, discrimination, and/or retaliation.

Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the parties to restore or preserve access to the University’s education program or activity, including measures designed to protect the safety of all parties or the University’s educational environment, and/or deter harassment, discrimination, and/or retaliation.

The Title IX Coordinator promptly makes supportive measures available to the parties upon receiving notice or a complaint. At the time that supportive measures are offered, the Title IX Coordinator will inform the Complainant, in writing, that they may file a formal complaint with the Title IX Coordinator either at that time or in the future, if they have not done so already. The Title IX Coordinator works with the Complainant to ensure that their wishes are taken into account with respect to the supportive measures that are planned and implemented.

The Title IX Coordinator will maintain the privacy of the supportive measures, provided that privacy does not impair the ability to provide the supportive measures and will act to ensure as minimal an academic impact on the parties as possible. Supportive measures implemented for one party may not unreasonably burden the other party. These actions may include, but are not limited to:

• Referral to confidential advocate from Voices Against Violence
• Referral to counseling, medical, and/or other healthcare services
• Referral to the Employee Assistance Program
• Referral to community-based service providers
• Visa and immigration assistance
• Translation/interpreter services
• Student financial aid counseling
• Education to the community or subgroup(s)
• Altering campus housing assignments
• Altering work arrangements for employees
• Safety planning
• Providing campus safety escorts
• Providing transportation accommodations
• Implementing mutual administrative no contact orders (ANCO)
• Academic support, extensions of deadline or other course/program-related adjustments in consultation with faculty and Academic Student Advocate
• Trespass orders issued by University Police
• Timely warnings to campus issued by University Police
• Class schedule modifications, withdrawals, or leave of absence in consultation with Academic Student Advocate
• Increased security and monitoring of areas of the campus
• Any other actions deemed appropriate by the Title IX Coordinator

Violations of administrative no contact orders will be referred to appropriate student or employee conduct processes for enforcement.

The University can act to remove a Respondent entirely or partially from its education program or activities on an emergency basis when an individualized safety and risk analysis has determined that an immediate threat to the physical health or safety of any person justifies removal. This risk analysis is coordinated by the Title IX Coordinator in conjunction with the Dean of Students (for student matters) or Director of Human Resources (for employee matters) using objective violence risk assessment procedures.

In all cases in which an emergency removal is imposed, the Respondent will be given notice of the action with rationale and the option to meet with the Title IX Coordinator prior to such action/removal being imposed, or as soon thereafter as reasonably possible, to show cause why the action/removal should not be implemented or should be modified. This is referred to as a show cause meeting.

This meeting is not a hearing on the merits of the allegation(s), but rather is an administrative process intended to determine solely whether the emergency removal is appropriate. When this meeting is not requested, objections to the emergency removal will be deemed waived. The show cause process also applies to any restrictions that a coach or athletic administrator may place on a student-athlete arising from allegations related to Title IX. There is no appeal process for emergency removal decisions.

A Respondent may be accompanied by an Advisor of their choice when meeting with the Title IX Coordinator for the show cause meeting. The Respondent will be given access to a written summary of the basis for the emergency removal prior to the meeting to allow for adequate preparation.

The Title IX Coordinator has discretion under this policy to implement or overturn an emergency removal and to determine the conditions and duration. Violation of an emergency removal under this policy will be grounds for discipline, which may include expulsion or termination.

The University will implement the least restrictive emergency actions possible in light of the circumstances and safety concerns. At the discretion of the Title IX Coordinator and in consultation with the Academic Student Advocate, alternative coursework options may be pursued to ensure as minimal an academic impact as possible on the parties.

For Non-Student Employees:

Administrative leave (with or without pay) and other interim actions pending investigation are subject to University personnel policies and/or applicable collective bargaining agreements.

Privacy

Every effort is made by the University to preserve the privacy of reports. Plymouth State University will not share the identity of any individual who has made a report or complaint of harassment, discrimination, or retaliation; any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, or any witness, except as permitted by the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g; FERPA regulations, 34 CFR part 99; or as required by law; or to carry out the purposes of 34 CFR Part 106, including the conducting of any investigation, hearing, or grievance proceeding arising under these policies and procedures.

The University reserves the right to designate which PSU officials have a legitimate educational interest in being informed about incidents that fall within this policy, pursuant to FERPA.

Only a small group of officials who need to know will be told about the complaint. Information will be shared as necessary with those implementing supportive measures and emergency removals, including but not limited to Investigators, Hearing Panel members, the parties, and their advisors. The circle of people with this knowledge will be kept as small as possible to preserve the parties’ rights and privacy.

When reports of Sexual Harassment are made in which the Respondent is an employee, the University System Board of Trustees is informed by the President about the nature of the allegation and the status of the parties per Board policy. The identity of the parties is not shared as part of this report. See policy BOT.V.C.6.

Plymouth State University may contact parents/guardians of students to inform them of situations in which there is a significant, articulable health or safety risk to the student or other individuals.

Aggregated, anonymous data about disclosures, formal complaints, and incident resolution is shared annually with the University System Board of Trustees and the New Hampshire Department of Education (in accordance with NH RSA 188-H).

Confidentiality and mandated reporting are addressed more specifically below.

Promptness

All allegations are acted upon promptly by Plymouth State University once it has received notice or a formal complaint. Formal complaints can take up to 90 business days to resolve from submission of the complaint through appeal. There are always exceptions and extenuating circumstances that can cause a resolution to take longer, but the University will avoid all undue delays within its control.

Any time the general time frames for resolution outlined in PSU’s procedures will be delayed, PSU will provide written notice to the parties of the delay, the cause of the delay, and an estimate of the anticipated additional time that will be needed as a result of the delay.

Time Limits on Reporting

There is no time limitation on providing notice/complaints to the Title IX Coordinator. However, if the Respondent is no longer subject to the PSU’s jurisdiction and/or significant time has passed, the ability to investigate, respond, and provide remedies may be more limited or impossible. Acting on notice/complaints significantly impacted by the passage of time (including, but not limited to, the rescission or revision of policy) is at the discretion of the Title IX Coordinator, who may document allegations for future reference, offer supportive measures and/or remedies, and/or engage in informal or formal action, as appropriate.

When notice/complaint is affected by significant time delay, the University will typically apply the policy in place at the time of the alleged misconduct and the procedures in place at the time of notice/complaint.

The policies of Plymouth State University are written and interpreted broadly to include online and cyber manifestations of any of the behaviors prohibited below, when those behaviors occur in or have an effect on the University’s education program and activities or use PSU networks, technology, or equipment.  

While PSU may not control websites, social media, and other venues in which harassing communications are made, when such communications are reported to the University, it will engage in a variety of means to address and mitigate the effects.  

Members of the community are encouraged to be good digital citizens and to refrain from online misconduct, such as feeding anonymous gossip sites, sharing inappropriate content via Snaps or other social media, unwelcome sexting, revenge porn, breaches of privacy, or otherwise using the ease of transmission and/or anonymity of the Internet or other technology to harm another member of the PSU community. 

Any online postings or other electronic communication by students, including cyber-bullying, cyber-stalking, cyber-harassment, etc., occurring completely outside of the University’s control (e.g., not on PSU networks, websites, or between PSU email accounts) will only be subject to this policy when such online conduct can be shown to cause a substantial in-program disruption. Otherwise, such communications are considered speech protected by the First Amendment. Supportive measures for Complainants will be provided, but protected speech cannot legally be subjected to discipline. 

Plymouth State University adheres to all federal and state civil rights laws and regulations prohibiting discrimination in public institutions of higher education.  

Plymouth State University, in accordance with federal and state laws and regulations, does not discriminate on the basis of race, color, religion, national origin, gender, sex, sexual orientation, gender identity or expression, age, veteran’s status, physical or mental disability, marital status, in admission or access to, treatment of or employment in its programs or activities.  

This policy covers nondiscrimination in both employment and access to educational opportunities. Therefore, any member of the PSU community whose acts deny, deprive, or limit the educational or employment access, benefits, and/or opportunities of any member of the PSU community, guest, or visitor on the basis of that person’s actual or perceived membership in the protected classes listed above is in violation of the PSU policy on nondiscrimination.  

When brought to the attention of the Title IX Coordinator, any such discrimination will be promptly and fairly addressed and remedied according to the appropriate grievance process described below.  

Plymouth State University is committed to full compliance with the Americans With Disabilities Act of 1990 (ADA), as amended, and Section 504 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified persons with disabilities, as well as other federal and state laws and regulations pertaining to individuals with disabilities.  

Under the ADA and its amendments, a person has a disability if they have a physical or mental impairment that substantially limits a major life activity.  

The ADA also protects individuals who have a record of a substantially limiting impairment or who are regarded as disabled by the University, regardless of whether they currently have a disability. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, or caring for oneself.  

The Title IX Coordinator has been designated as PSU’s ADA/504 Coordinator responsible for overseeing efforts to comply with these disability laws, including responding to grievances and conducting investigations of any allegation of noncompliance or discrimination based on disability.  

Grievances related to disability status and/or accommodations will be addressed using the procedures below (see Disabilities Accommodations in the Resolution Process).

Students with Disabilities

Plymouth State University is committed to providing qualified students with disabilities with reasonable accommodations and support needed to ensure equal access to the academic programs, facilities, and activities of the University. 

All accommodations are made on an individualized basis. A student requesting any accommodation should first contact the Director of Campus Accessibility Services, who coordinates services for students with disabilities.  Campus Accessibility Services reviews documentation provided by the student and, in consultation with the student, determines which accommodations are appropriate for the student’s needs and academic program(s).  

Employees with Disabilities

Pursuant to the ADA, Plymouth State University will provide reasonable accommodation(s) to all qualified employees with known disabilities when their disability affects the performance of their essential job functions, except when doing so would be unduly disruptive or would result in undue hardship to the University. 

An employee with a disability is responsible for submitting a request for an accommodation to the Director of Human Resources and providing necessary documentation. The Director of Human Resources will work with the employee’s supervisor to identify which essential functions of the position are affected by the employee’s disability and what reasonable accommodations could enable the employee to perform those duties. 

Students, staff, administrators, and faculty are entitled to an employment and educational environment that is free of discriminatory harassment. Plymouth State University’s harassment policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane yet controversial or sensitive subject matters protected by academic freedom.  

The sections below describe the specific forms of legally prohibited harassment that are also prohibited under PSU policy. When speech or conduct is protected by academic freedom and/or the First Amendment, it will not be considered a violation of PSU policy, though supportive measures will be offered to those impacted. 

Discriminatory Harassment

Discriminatory harassment constitutes a form of discrimination that is prohibited by Plymouth State University policy. Discriminatory harassment is defined as unwelcome conduct by any member or group of the community on the basis of actual or perceived membership in a class protected by policy or law.  

PSU does not tolerate discriminatory harassment of any employee, student, visitor, or guest. PSU will act to remedy all forms of harassment when reported, whether or not the harassment rises to the level of creating a “hostile environment.”  

A hostile environment is one that unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities. This discriminatory effect results from harassing verbal, written, graphic, or physical conduct that is severe or pervasive and objectively offensive. 

When discriminatory harassment rises to the level of creating a hostile environment, PSU may also impose sanctions on the Respondent through application of the appropriate grievance process below.  

PSU reserves the right to address offensive conduct and/or harassment that 1) does not rise to the level of creating a hostile environment, or 2) that is of a generic nature and not based on a protected status. Addressing such conduct will not result in the imposition of discipline under this policy, but may be addressed through respectful conversation, remedial actions, education, effective alternate resolution, and/or other informal resolution mechanisms.  

For assistance with informal resolution techniques and approaches, individuals should contact the Title IX Coordinator.  

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of New Hampshire regard Sexual Harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice.  

Plymouth State University has adopted the following definition of Sexual Harassment in order to address the unique environment of an academic community, which consists not only of employer and employees, but of students as well.  

Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved. Sexual Harassment, as an umbrella category, includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking, and is defined as:

Conduct on the basis of sex that constitutes one or more of the following: 

Quid pro quo:

• an employee of the recipient,  
• conditions the provision of an aid, benefit, or service of the University, 
• on an individual’s participation in unwelcome sexual conduct;

Hostile environment sexual harassment :

• unwelcome conduct,  
• determined by a reasonable person, 
• to be so severe, and 
• pervasive, and, 
• objectively offensive,  
• that it effectively denies a person equal access to the University’s education program or activity.

Unwelcomeness is subjective and determined by the Complainant (except when the Complainant is below the age of consent). Severity, pervasiveness, and objective offensiveness are evaluated based on the totality of the circumstances from the perspective of a reasonable person in the same or similar circumstances (“in the shoes of the Complainant”), including the context in which the alleged incident occurred and any similar, previous pattern that may be evidenced.

Sexual Assault, defined as:

• Forcible Sex Offense: 
  • Any sexual act directed against another person,  
  • without the consent of the Complainant,  
  • including instances in which the Complainant is incapable of giving consent.
• Forcible Rape: 
  • Penetration,  
  • no matter how slight,  
  • of the vagina or anus with any body part or object, or 
  • oral penetration by a sex organ of another person,  
  • without the consent of the Complainant. 
• Forcible Sodomy: 
  • Oral or anal sexual intercourse with another person,  
  • forcibly, 
  • and/or against that person’s will (non-consensually), or  
  • not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.  
• Sexual Assault with an Object: 
  • The use of an object or instrument to penetrate,  
  • however slightly,  
  • the genital or anal opening of the body of another person,  
  • forcibly,  
  • and/or against that person’s will (non-consensually),  
  • or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.  
• Forcible Fondling: 
  • The touching of the private body parts of another person (buttocks, groin, breasts),  
  • for the purpose of sexual gratification,  
  • forcibly,  
  • and/or against that person’s will (non-consensually),  
  • or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.  
• Non-forcible Sex Offenses: 
  • Incest: 
    • Non-forcible sexual intercourse,  
    • between persons who are related to each other,  
    • within the degrees wherein marriage is prohibited by New Hampshire law.  
  • Statutory Rape: 
    • Non-forcible sexual intercourse, 
    • with a person who is under the statutory age of consent of 16. 

Dating Violence:

• violence,  
• on the basis of sex, 
• committed by a person, 
• who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.  
  • The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition— 
  • dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. 
  • dating violence does not include acts covered under the definition of domestic violence. 

Domestic Violence:

• violence, 
• on the basis of sex, 
• committed by a current or former spouse or intimate partner of the Complainant, or
• by a person with whom the Complainant shares a child in common, or 
• by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or 
• by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of New Hampshire, or 
• by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of New Hampshire. 

*To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship. 

Stalking:

• engaging in a course of conduct, 
• on the basis of sex, 
• directed at a specific person, that  
  • would cause a reasonable person to fear for the person’s safety, or  
  • the safety of others; or 
  • suffer substantial emotional distress.  

For the purposes of this definition— 

• Course of conduct means two or more acts, including, but not limited to, acts in which the Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.   

• Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant. 

• Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily require, medical or other professional treatment or counseling.  

Plymouth State University reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any offense under this policy (see Sanctions: Student sanctions; Employee Outcomes). 

As used in the offenses above, the following definitions and understandings apply:  

Force: 

Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent. 

Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.  

Coercion:

Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.  

Consent:

Consent is:  

• knowing, and 
• voluntary, and 
• clear permission  
• by word or action  
• to engage in sexual activity.  

Since individuals may experience the same interaction in different ways, it is the responsibility of each party to determine that the other has consented before engaging in the activity.  

If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged. 

For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Reasonable reciprocation can be implied. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.  

Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, that sexual activity should cease within a reasonable time.  

Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent.  

Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on the University to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.  

Incapacitation: 

A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this policy if they engage in sexual activity with someone who is incapable of giving consent.  

It is a defense to a sexual assault policy violation that the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated. “Should have known” is an objective, reasonable person standard which assumes that a reasonable person is both sober and exercising sound judgment.  

Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction).  

Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.  

This policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs.  

In addition to the forms of sexual harassment described above, which fall within the coverage of Title IX, Plymouth State University additionally prohibits the following offenses.

• Sexual Exploitation, defined as taking non-consensual or abusive sexual advantage of another for their own benefit or for the benefit of anyone other than the person being exploited, and that conduct does not otherwise constitute sexual harassment under this policy. Examples of Sexual Exploitation include, but are not limited to: 
  • Sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed) 
  • Invasion of sexual privacy. 
  • Taking pictures, video, or audio recording of another in a sexual act, or in any other sexually-related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent), including the making or posting of revenge pornography 
  • Prostituting another person 
  • Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or a sexually-transmitted disease (STD) or infection (STI), without informing the other person of the infection 
  • 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 
  • Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections 
  • Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity 
  • Knowingly soliciting a minor for sexual activity 
  • Engaging in sex trafficking 
  • Creation, possession, or dissemination of child pornography 
• Threatening or causing physical harm, extreme verbal, emotional, or psychological abuse, or other conduct which threatens or endangers the health or safety of any person; 
• Discrimination, as defined as actions based on membership in a protected class that deprive, limit, or deny other members of the community of educational or employment access, benefits, or opportunities; 
• Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another; 
• Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the PSU community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity (as defined further in the Hazing Policy); 

Violation of any other Plymouth State University policies may constitute a Civil Rights Offense when a violation is motivated by actual or perceived membership in a protected class, and the result is a discriminatory limitation or denial of employment or educational access, benefits, or opportunities.  

Sanctions for the above-listed Civil Rights Offenses range from reprimand through expulsion/termination (see Sanctions: Student sanctions; Employee Outcomes).

Protected activity under this policy includes reporting an incident that may implicate this policy, participating in the grievance process, supporting a Complainant or Respondent, assisting in providing information relevant to an investigation, and/or acting in good faith to oppose conduct that constitutes a violation of this Policy.  

Acts of alleged retaliation should be reported immediately to the Title IX Coordinator and will be promptly investigated. Plymouth State University is prepared to take appropriate steps to protect individuals who fear that they may be subjected to retaliation. 

It is prohibited for PSU or any member of the PSU community to take materially adverse action by intimidating, threatening, coercing, harassing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by law or policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy and procedure.  

Charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.  

The exercise of rights protected under the First Amendment does not constitute retaliation. 

Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this policy does not constitute retaliation, provided that a determination regarding responsibility, alone, is not sufficient to conclude that any party has made a materially false statement in bad faith. 

Confidential Resources

A Complainant may speak with the following resources if they wish for details of an incident to be kept confidential:

• On campus:
  • a counselor at the PSU Counseling Center 
  • a provider at PSU Health Services 
• Off-campus: 
  • Advocates from Voices Against Violence, our local crisis services agency 
  • Licensed professional counselors and other medical providers 
  • Local or state legal assistance agencies  
  • Clergy/Chaplains 
  • Legal counsel, where there is an established attorney/client relationship

All of the above-listed individuals will maintain confidentiality when acting under the scope of their licensure, professional ethics, and/or professional credentials, except in cases of immediacy of threat or danger or abuse of a minor, or vulnerable adult with a disability, or when required to disclose by law or court order.  

Counselors at the PSU Counseling Center (for students) and the Employee Assistance Program (for employees) are available to help on a confidential basis, free of charge.  

PSU employees who provide confidential resources will, as directed by the Chief of University Police, timely submit anonymous statistical information for Clery Act purposes.   

Employee Reporting Responsibilities

All employees of Plymouth State University (including live-in student employees/Community Advisors), with the exception of those who are designated as Confidential Resources, are considered Responsible Employees and must promptly share with the Title IX Coordinator all known details of a report of  discrimination and/or discriminatory harassment (including Sexual Harassment) made to them in the course of their employment. 

Employees are encouraged to promptly share all details of other behaviors under this policy that they observe or have knowledge of, even if not reported to them by a Complainant or third-party.  

Complainants may want to carefully consider whether they share personally identifiable details with non-confidential employees, as details of Sexual Harassment and discrimination disclosures must be shared with the Title IX Coordinator.  

Generally, disclosures in climate surveys, human subjects research, or at events such as “Take Back the Night” marches or speak-outs do not provide notice that must be reported to the Coordinator by employees, unless the Complainant clearly indicates that they desire a report to be made or seek a specific response from the University. Supportive measures may be offered as the result of such disclosures without formal University action. 

Failure of a Responsible Employee, as described above in this section, to report an incident of harassment or discrimination, including Sexual Harassment, of which they become aware is a violation of PSU policy and may be subject to disciplinary action for failure to comply.  

Finally, it is important to clarify that a Responsible Employee who is themselves a target of harassment or other misconduct under this policy is not required to report their own experience, though they are, of course, encouraged to do so. 

If a Complainant does not wish for an investigation to take place or does not want a formal complaint to be pursued, they may make such a request to the Title IX Coordinator, who will evaluate that request in light of the duty to ensure the safety of the campus and to comply with state or federal law.  

The Title IX Coordinator has ultimate discretion over whether Plymouth State University proceeds when the Complainant does not wish to do so, and the Title IX Coordinator may sign a formal complaint to initiate a grievance process upon completion of an appropriate violence risk assessment.  

The Title IX Coordinator’s decision will be based on results of the violence risk assessment that show a compelling risk to health and/or safety that requires the University to pursue formal action to protect the community.  

A compelling risk to health and/or safety may result from evidence of patterns of misconduct, predatory conduct, threats, abuse of minors, use of weapons, and/or violence. The University may be compelled to act on alleged employee misconduct irrespective of a Complainant’s wishes. 

The Title IX Coordinator must also consider the effect that non-participation by the Complainant may have on the availability of evidence and the University’s ability to pursue a Formal Grievance Process fairly and effectively.  

When the Title IX Coordinator executes the written complaint, they do not become the Complainant. The Complainant is the individual who is alleged to be the victim of conduct that could constitute a violation of this policy.  

When the University proceeds in this manner, the Complainant (and/or their Advisor) may have as much or as little involvement in the process as they wish. The Complainant retains all rights of a Complainant under this Policy irrespective of their level of participation. Typically, when the Complainant chooses not to participate, the Advisor may be appointed as proxy for the Complainant throughout the process, acting to ensure and protect the rights of the Complainant.  

Note that the University’s ability to remedy and respond to notice may be limited if the Complainant does not want the University to proceed with an investigation and/or grievance process. The goal is to provide the Complainant with as much control over the process as possible, while balancing the University’s obligation to protect its community. 

In cases in which the Complainant requests confidentiality/no formal action and the circumstances allow the University to honor that request, the University will offer informal resolution options (see below), supportive measures, and remedies to the Complainant and the community, but will not otherwise pursue formal action.  

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 the University, and to have the incidents investigated and properly resolved through these procedures (see Time Limits on Reporting). 

The Plymouth State University community encourages the reporting of misconduct and crimes by Complainants and witnesses. Sometimes, Complainants or witnesses are hesitant to report to Plymouth State University officials or participate in grievance processes because they fear that they may be in violation of certain policies, such as public health safety protocols, underage drinking, or use of illicit drugs at the time of the incident. Respondents may hesitate to be forthcoming during the process for the same reasons. 

It is in the best interests of the PSU community that Complainants choose to report misconduct to PSU officials, that witnesses come forward to share what they know, and that all parties be forthcoming during the process.  

To encourage reporting and participation in the process, PSU maintains a policy of offering parties and witnesses amnesty from minor policy violations – such as underage consumption of alcohol or the use of illicit drugs – related to the incident.  

Amnesty does not apply to more serious allegations such as physical abuse of another or illicit drug distribution. The decision not to offer amnesty to a Respondent is based on neither sex nor gender, but on the fact that collateral misconduct is typically addressed for all students within a progressive discipline system, and the rationale for amnesty – the incentive to report serious misconduct – is rarely applicable to a Respondent. 

Students: 

Sometimes, students are hesitant to assist others for fear that they may get in trouble themselves (for example, an underage student who has been drinking or using marijuana might hesitate to help take an individual who has experienced sexual misconduct to the University Police).  

Plymouth State University maintains a policy of amnesty for students who offer help to others in emergent need. The University may provide purely educational options with no formal disciplinary finding, rather than punitive sanctions, to those who offer their assistance to others in emergent need. 

Employees: 

Sometimes, employees are hesitant to report harassment or discrimination they have experienced for fear that they may get in trouble themselves. For example, an employee who has violated the amorous relationship policy and is then assaulted in the course of that relationship might hesitate to report the incident to University officials.  

The University may, at its discretion, offer employee Complainants amnesty from such policy violations (typically more minor policy violations) related to the incident.  

Deliberately false and/or malicious accusations under this policy, as opposed to allegations, which, even if erroneous, are made in good faith, are a serious offense and will be subject to appropriate disciplinary action. 

Additionally, witnesses and parties knowingly providing false evidence, tampering with or destroying evidence after being directed to preserve such evidence, or deliberately misleading an official conducting an investigation can be subject to discipline under Plymouth State University policy.

Federal Timely Warning Obligations

Parties reporting sexual assault, domestic violence, dating violence, and/or stalking should be aware that under the Clery Act, Plymouth State University must issue timely warnings for incidents reported to them that pose a serious or continuing threat of bodily harm or danger to members of the campus community.  

Plymouth State University will ensure that a Complainant’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the potential danger.  

Federal Statistical Reporting Obligations

Certain campus officials – those deemed Campus Security Authorities – have a duty to report the following for federal statistical reporting purposes (Clery Act): 

• All “primary crimes,” which include homicide, sexual assault, robbery, aggravated assault, burglary, motor vehicle theft, and arson; 
• Hate crimes, which include any bias motivated primary crime as well as any bias motivated larceny or theft, simple assault, intimidation, or destruction/damage/vandalism of property; 
• VAWA-based crimes, which include sexual assault, domestic violence, dating violence, and stalking; and 
• Arrests and referrals for disciplinary action for weapons-related law violations, liquor-related law violations, and drug abuse-related law violations. 

All personally identifiable information is kept private, but statistical information must be passed along to the University Police Department regarding the type of incident and its general location (on or off-campus or in the surrounding area, but no addresses are given) for publication in the Annual Security Report and daily campus crime log.  

Campus Security Authorities include: student affairs/student conduct staff, campus law enforcement, local police, coaches, athletic directors, residence life staff, student activities staff, human resources staff, advisors to student organizations, and any other official with significant responsibility for student and campus activities. 

Instructions related to these reporting obligations are communicated annually by the Director of Public Safety/Chief of University Police. 

ATIXA 2020 ONE POLICY, TWO PROCEDURES MODEL. USE AND ADAPTATION OF THIS MODEL WITH CITATION TO ATIXA IS PERMITTED THROUGH A LIMITED LICENSE TO PLYMOUTH STATE UNIVERSITY. ALL OTHER RIGHTS RESERVED. ©2020. ATIXA