COLORADO COMMUNITY COLLEGE SYSTEM
SYSTEM PRESIDENT’S PROCEDURE
Sexual Misconduct Procedure
EFFECTIVE: May 9, 2012
REVISED: July 11, 2013
REVISED: October 1, 2014
REVISED: January 20, 2015
REFERENCE: Board Policy (BP) 3-120 Affirmative Action/Anti-Discrimination; BP 4-120 Prohibition of Discrimination or Harassment; System President’s Procedure (SP) 3-120a and SP 4-120a Sexual Misconduct Procedure; SP 3-50b and SP 4-31a Civil Rights Grievance and Investigation Process for Employees and Students
/ Nancy J. McCallin /
Nancy J. McCallin, Ph.D.
This procedure applies to all Administrators/Professional Technical employees, Faculty, Adjunct Instructors, Classified employees, hourly employees, which would include student hourlys and workstudys (CCCS employees), students, authorized volunteers, guests, and visitors within the Colorado Community College System (CCCS).
The System and College communities have the right to be free from sexual violence. All members of the System and College communities are expected to conduct themselves in a manner that does not infringe upon the rights of others. CCCS believes in a zero tolerance policy for sex/gender-based misconduct. When an allegation of misconduct is brought to an appropriate administrator’s attention, and a respondent is found to have violated this procedure, serious sanctions will be implemented to reasonably ensure that such actions are never repeated. This procedure has been developed to reaffirm these principles and to provide recourse for those individuals whose rights have been violated. This procedure is intended to define the System and College’s expectations and to establish a mechanism for determining when those expectations have been violated.
When a complainant(s) and respondent(s) are CCCS employees, authorized volunteers, guests or visitors, the System and Colleges will comply with Title VII of the Civil Rights Act of 1964. When a complainant(s) and/or respondent(s) is a student, the System and Colleges will comply with Title IX of the Education Amendments of 1972 (Title IX). For all individuals who this procedure applies to, the System and Colleges will adhere to its obligations under the Violence Against Women Reauthorization Act (VAWA) of 2013.
ADA, Title VI and Title VII/Equal Opportunity Coordinator(s) (EO Coordinator) is the employee designated by the System and College President to oversee all civil rights complaints, including sexual misconduct, when employees are both the complainant and the respondent. The Presidents may also designate a “Deputy” EO and Title IX Coordinator.
The EO Coordinator’s responsibilities include, but need not be limited to:
Complainant(s) is a person who is subject to the alleged sex misconduct or related retaliation. For purposed of this procedure, a complainant can be a CCCS Employee(s), student(s), authorized volunteer(s), guest(s), or visitor(s).
Disciplinary Authority is the individual with authority, or delegated authority, to impose discipline upon a respondent.
Jurisdiction applies to behaviors that take place on the campus, at System or College sponsored events, and may also apply off-campus and to actions online when the Title IX/EO Coordinator determines that the off-campus conduct affects a substantial System or College interest. A substantial System or College interest is defined to include:
Any online postings or other electronic communication by students, including cyber-bullying, cyber-stalking, cyber-harassment, etc . . . . occurring completely outside of the System or College’s control (e.g., not on System or College networks), websites or between System or College email accounts) will only be subject to this procedure when those online behaviors can be shown to cause a substantial on-campus disruption. Otherwise, such communications are considered speech protected by the 1st Amendment to the Constitution.
Off-Campus discriminatory or harassing speech by employees may be regulated by the System or College only when such speech is made in an employee’s official or work-related capacity.
Offensive conduct that does not rise to the level of discrimination or harassment may not result in the imposition of discipline under the System President’s Procedures, but will be addressed through civil confrontation, remedial actions, education and/or effective conflict resolution mechanisms.
Respondent is a person whose alleged conduct is the subject of a complaint. For purposes of this procedure, a respondent can be a CCCS Employee(s), authorized volunteer(s), guest(s), visitor(s), or student(s).
Sexual Misconduct (refer to footnote 1) offenses include, but are not limited to:
Quid pro quo sexual harassment exists when there are:
Hostile Environment includes any situation in which there is harassing conduct that is sufficiently severe, persistent, or pervasive that it alters the conditions of employment or limits, interferes with or denies educational benefits or opportunities, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint.
The determination of whether an environment is “hostile” can be based on the following circumstances:
Retaliatory harassment is any adverse employment or educational action taken against a person because of the person’s perceived participation in a complaint or investigation of discrimination or sexual misconduct.
Examples of Sexual Harassment include, but are not limited to:
While a particular interaction must be offensive to both a reasonable person and to the complainant to be defined as harassment, CCCS employees and other persons of authority should be sensitive to questions about mutuality of consent that may be raised and to the conflict of interests that are inherent in personal relationships that result from professional and educational interactions. Harassment is particularly damaging when it exploits the educational dependence and trust between students and faculty/staff. When the authority and power inherent in faculty/staff relationships with students, whether overtly, implicitly, or through misinterpretation, is abused in any way, there is potentially great damage to the individual student, to the accused individual, and to the climate of the institution.
It is the policy of the State Board for Community Colleges and Occupational Education that none of its employees or its Board members shall engage in any activity or relationship that places them in a conflict of interest between their official activities and any other interest or obligation. Conflict of interest requires all employees to disqualify themselves from participating in a decision when a personal interest is present; therefore, SP 3-70a, Conflict of Interest-Relationships, requires all employees involved in an amorous relationship to excuse themselves from any authority or evaluative role with respect to the other person. Please refer to SP 3-70a for more information and disclosure requirements.
Non-consensual sexual contact is:
Sexual touching includes any bodily contact with the breasts, groin, genitals, mouth or other bodily orifice of another individual, or any other bodily contact in a sexual manner.
Non-consensual sexual intercourse is:
Consent (refer to footnote 6) must be clear, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity. Also, in order to give effective consent, one must be of legal age. Further, consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. Previous relationships or prior consent cannot imply consent to future sexual acts.
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcomes resistance or produces consent.
Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sex, 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.
Sexual activity with someone whom one should know to be—or based on the circumstances should reasonably have known to be—mentally or physically incapacitated (by alcohol or other drug use, unconsciousness or blackout), constitutes a violation of this procedure.
Incapacitation is a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent. Incapacitation could result from mental disability, sleep, involuntary physical restraint, or from the ingestion of rape drugs. Possession, use and/or distribution of any of these substances, including, but not limited to Rohypnol, Ketomine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another person is a violation of this policy. More information on these drugs can be found at the Rape Treatment Center. Having sex with someone whom you know to be, or should know to be, incapacitated (mentally or physically) is a violation of this procedure.
Use of alcohol or other drugs will never function as a defense to a violation of this procedure.
Sexual exploitation occurs when anyone takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses.
Examples of sexual exploitation include, but are not limited to:
Title IX Coordinator(s) (refer to footnote 7) is the employee designated by the System and the College President to oversee all civil rights complaints, including sexual misconduct, when students are complainants and/or respondents. The Title IX Coordinator’s responsibilities include, but need not be limited to:
The System President delegates to each College President the responsibility to ensure this procedure is implemented at their College. The System President will be responsible to ensure this procedure is implemented at the System office.
The System and the Colleges do not permit sexual misconduct. The System and Colleges can respond to a complaint only if it is aware of the allegations made. Further, the System and Colleges can more effectively investigate the sooner the allegation is brought to its attention.
Any person who believes they have been subjected to sexual misconduct should file a grievance pursuant to SP 3-50b and SP 4-31a, Civil Rights Grievance and Investigation Process.
Confidentiality and Reporting Incident(s) of Sexual Misconduct Violations
CCCS employees and officials affiliated with the System and Colleges, depending on their roles within CCCS, have varying reporting responsibilities and abilities to maintain confidentiality. In order to make informed choices, one should be aware of confidentiality and mandatory reporting requirements when consulting System and College resources.
On campus, some resources may maintain confidentiality, offering options and advice without any obligation to inform an outside agency or individual unless you have requested information to be shared. Other resources exist for you to report crimes and policy violations and these resources will take action when you report victimization to them. Most resources on campus fall in the middle of the two extremes; neither the College, nor the law, requires them to divulge private information that is shared with them, except in rare circumstances. The following describes the reporting options at the System and Colleges.
Further, any person has the right to file a police report. Should a complainant want to do so, and needs further assistance, please contact the Title IX and/or EO Coordinator, or the College designee in charge with overseeing the Clery Reporting obligations. Each College must publish and notify the College community of who this individual is.
CCCS employees, unless deemed a confidential resource by law, have an ethical obligation to report any incidences they are aware of concerning sexual misconduct. If the employee is unsure, s/he may direct their questions to the Title IX and/or EO Coordinator at the System or at the Colleges. Failure to report will be considered a violation of BP 3-70, Colorado Community College System Code of Ethics, and may result in discipline, up to and including termination.
All CCCS employees receiving reports of potential sexual misconduct violations are expected to promptly contact the Title IX and/or EO Coordinator, within 24 hours of becoming aware of a report or incident. In all cases, the System and the Colleges’ Title IX and/or EO Coordinator will give consideration to the victim in how the grievance is pursued, but reserves the right, when necessary to protect the community, to investigate and pursue a resolution when an alleged victim chooses not to initiate or participate in a formal grievance.
If one desires that details of the incident be kept confidential, they should speak with mental health counselors, either on or off campus, campus health service providers, or off-campus rape crisis resources who can maintain confidentiality.
The System and Colleges will provide on and/or off-campus mental health counselors free of charge. In addition, another confidential resource you may speak to off-campus, are members of the clergy and chaplains. If you speak to a confidential resource that is endorsed by the College, these individuals are asked to submit anonymous statistical information to the College for Clery Act purposes unless they believe it would be harmful to their client, patient, or parishioner.
If you are unsure of someone’s duties and ability to maintain privacy, ask them before talking to them. They will be able to explain and help a reporting party to make decisions about who is in the best position to help.
Certain campus officials have a duty to report criminal misconduct for federal statistical reporting purposes (Clery Act). All personally identifiable information is kept confidential, but statistical information must be passed along to campus law enforcement regarding the type of incident and its general location (on or off-campus, in the surrounding area, but no addresses are given) for publication in the annual Campus Security Report. This report helps to provide the community with a clear picture of the extent and nature of campus crime, to ensure greater community safety. Mandated federal reporters include: student affairs/student conduct officers, 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. The information to be shared includes the date, the location of the incident (using Clery location categories) and the Clery crime category. This reporting protects the identity of the victim and may be done anonymously.
Victims of criminal misconduct should also be aware that College administrators must issue immediate timely warnings for incidents reported to them that are confirmed to pose a substantial threat of bodily harm or danger to members of the campus community. The College will make every effort to ensure that a victim’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 danger.
For more information on Clery Act reporting requirements please contact the College’s designee in charge with overseeing the Clery Reporting obligations. Each College must publish and notify the College community of who this individual is.
All complaints shall be made as promptly as possible after the occurrence. A delay in reporting may be reasonable under some circumstances; however, an unreasonable delay in reporting is an appropriate consideration in evaluating the merits of a complaint or report.
The System and the Colleges must include a web link to the Civil Rights Incident Report Form, as attached to SP 3-50b and SP 4-31a, Civil Rights Grievance and Investigation Process, to initiate a sexual misconduct allegation.
If you do not want to make a report through the online form, please report all concerns or complaints relating to sexual misconduct to the Title IX/EO Coordinator(s) at the System or the Colleges. The System and the Colleges are required to publish the name, title, address, phone number, and email of the Title IX and EO Coordinator(s).
Students with complaints of this nature also have the right to file a formal complaint with the United States Department Education:
Office for Civil Rights (OCR)
U.S. Department of Education
Cesar E. Chavez Memorial Building
1244 Speer Boulevard, Suite 310
Denver, CO 80204-3582
Telephone: (303) 844-5695
Facsimile: (303) 844-4303
For employees with complaints of this nature also have the right to file a formal complaint with the Colorado Department of Regulatory Agencies
Colorado Civil Rights Division
1560 Broadway #1050
Denver, CO 80202
Telephone: (303) 894-2997
Facsimile: (303) 894-7830
United States Equal Employment Opportunity Commission
303 E. 17th Avenue
Denver, CO 80203
Telephone: (800) 669-4000
Facsimile: (303) 866-1085
All other grievances where the complainant is a student(s) and the basis of the complaint is not based on federal or state civil rights laws will be addressed pursuant to SP 4-31, Student Grievance Procedure.
All other grievances by an employee(s) and the basis of the complaint is not based on federal or state civil rights laws will be addressed pursuant to SP 3-50a, Employee Grievances.
The College engages in comprehensive educational programming to prevent domestic violence, dating violence, sexual assault and stalking. Educational programming consists of primary prevention and awareness programs for all incoming students and new employees and ongoing awareness and prevention campaigns for students and faculty that:
If any person who reports an incident of sexual misconduct or any person who testifies, assists or participates in a proceeding, investigation or hearing relating to such allegation of sexual misconduct, feels they are being subjected to retaliatory acts may report such incidences to the EO or Title IX Coordinator.
It is a violation of this procedure to engage in retaliatory acts against any person who reports an incident of sexual misconduct, or any person who testifies, assists or participates in a proceeding, investigation or hearing relating to such allegation of sexual misconduct. Such act will be subject to discipline, up to and including expulsion for students, termination for CCCS employees, and dismissal for authorized volunteers, guests or visitors.
This procedure defines and prohibits sexual misconduct. If statutory provisions, regulatory guidance, or court interpretations change or conflict with this procedure, the procedure can be deemed amended as of the time of the decision, ruling or legislative enactment to assure continued compliance.
CCCS reserves the right to change any provision or requirement of this procedure at any time and the change shall become effective immediately.