COLORADO COMMUNITY COLLEGE SYSTEM
SYSTEM PROCEDURE

Sexual Misconduct Procedure


SP 3-120a

EFFECTIVE: May 9, 2012
REVISED: July 11, 2013
REVISED: October 1, 2014
REVISED: January 20, 2015
REVISED: September 23, 2016

REFERENCES: 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; SP 3-50b and SP 4-31a Civil Rights Grievance and Investigation Process

APPROVED:

/ Nancy J. McCallin /
Nancy J. McCallin, Ph.D.
System President

Application

This procedure applies to the Community Colleges within the Colorado Community College System (CCCS) and the System Office.

Allegations that an individual has engaged in any of these prohibited behaviors will be investigated under System President’s Procedure (SP) 3-50b, Civil Rights Grievance and Investigation Process (if the accused is a CCCS employee, authorized volunteer, guest, or visitor), or SP 4-31a, Civil Rights Grievance and Investigation process (if the accused is a student).

Basis

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 both the complainant and respondent are CCCS employees, authorized volunteers, guests and/or visitors, the System and Colleges will comply with Title VII of the Civil Rights Act of 1964. When a complainant and/or respondent 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 their obligations under the Violence Against Women Reauthorization Act (VAWA) of 2013.

Definitions

ADA, Title VI and Title VII/Equal Opportunity Coordinator(s) (EO Coordinator) is the employee designated by the System or College President to oversee all civil rights complaints, including sexual misconduct, when employees are both the complainant and the respondent. The President may also designate a “Deputy” EO Coordinator.

The EO Coordinator’s responsibilities include, but need not be limited to:

    • Contact for government inquiries;
    • Point person for all civil rights complaints involving employees as complainant and respondent;
    • Creator and implementer of appropriate procedures;
    • Assurance of First Amendment protection;
    • Prevention and remediation of stalking;
    • Prevention and remediation of intimate partner and relationship violence;
    • Prevention and remediation of bullying and cyberbullying;
    • Oversight and coordination of prompt and equitable grievance procedures;
    • Coordinator of the interaction of multiple student and employee grievance processes;
    • Supervisor of investigations;
    • Compliance auditor; and
    • Trainer or convener of broad training requirements for CCCS employees, boards, investigators and appeals officers.

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.

Complainant is a person who has been subjected to alleged sexual misconduct and/or related retaliation. For purposed of this procedure, a complainant can be a CCCS employee, student, authorized volunteer, guest, or visitor.

Consent 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.

Disciplinary Authority is the individual with authority, or delegated authority, to impose discipline upon a respondent.

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.

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 www.911rape.org.

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.

Use of alcohol or other drugs will never function as a defense to a violation of this procedure.

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 action that constitutes criminal offense as defined by federal or Colorado law. This includes, but is not limited to, single or repeat violations of any local, state or federal law committed in the municipality where the System or College is located;
    • Any situation where it appears that the accused individual may present a danger or threat to the health or safety of self or others;
    • Any situation that significantly impinges upon the rights, property or achievements of self or others or significantly breaches the peace and/or causes social disorder; and/or
    • Any situation that is detrimental to the educational interests of the System or College.

Any online postings or other electronic communication by students, including but not limited to cyber-bullying, cyber-stalking, and/or cyber-harassment, 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 First Amendment.

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, authorized volunteer, guest, visitor, or student.

Title IX Coordinator 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:

    • Contact for government inquiries;
    • Point person for all civil rights complaints involving a student as complainant and/or respondent;
    • Creator and implementer of appropriate procedures;
    • Assurance of First Amendment protection;
    • Prevention and remediation of stalking;
    • Prevention and remediation of intimate partner and relationship violence;
    • Prevention and remediation of bullying and cyberbullying;
    • Oversight and coordination of prompt and equitable grievance procedures;
    • Coordinator of the interaction of multiple student and employee grievance processes;
    • Supervisor of investigations;
    • Compliance auditor; and
    • Trainer or convener of broad training requirements for CCCS employees, boards, investigators and appeals officers.

Sexual Misconduct Offenses include, but are not limited to:
• Sexual Harassment
• Non-Consensual Sexual Contact (or attempts to commit same)
• Non-Consensual Sexual Intercourse (or attempts to commit same)
• Sexual Exploitation

A. Sexual Harassment may be the result of a hostile environment, quid pro quo, and/or retaliation.

1) A hostile environment exists when a person is subjected to sex- or gender-based verbal or physical conduct that is sufficiently severe, persistent, or pervasive to alter the conditions of a person’s employment and/or unreasonably interfere with a person’s ability to participate in or benefit from the System or College’s educational program and/or activities, from both a subjective and objective viewpoint.

The determination of whether conduct constitutes prohibited harassment can be based on the following circumstances:

    • the frequency of the conduct;
    • the nature and severity of the conduct;
    • whether the conduct was physically threatening;
    • whether the conduct was humiliating;
    • the effect of the conduct on the alleged victim’s mental or emotional state;
    • whether the conduct was directed at more than one person;
    • whether the conduct arose in the context of other discriminatory conduct;
    • whether the conduct unreasonably interfered with the alleged victim’s educational or work performance;
    • whether a statement is a mere utterance of an epithet which engenders offense in an employee or student, or offends by mere discourtesy or rudeness; and
    • whether the speech or conduct deserves the protections of the First Amendment and/or academic freedom.

2) Quid pro quo sexual harassment exists when a person engages in unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, and submission to or rejection of such conduct is used in determining educational and/or employment decisions.

3) Retaliatory sexual 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 sexual misconduct.

B. Non-Consensual Sexual Contact is:

    • any intentional sexual touching,
    • however slight,
    • with any object,
    • by any individual upon any individual,
    • that is performed without consent and/or by force.

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.

C. Non-Consensual Sexual Intercourse is:

    • any sexual penetration or intercourse (anal, oral or vaginal);
    • however slight,
    • with any object,
    • by any individual upon any individual,
    • that is performed without consent and/or by force.

D. Sexual Exploitation occurs when a person 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 the other sexual misconduct offenses.

Examples of sexual exploitation include, but are not limited to:

    • Invasion of sexual privacy.
    • Prostituting another person.
    • Non-consensual video or audio-taping of sexual activity.
    • Going beyond the boundaries of consent (such as letting uninvolved persons hide in a closet to secretly observe an act of otherwise consensual sex).
    • Engaging in voyeurism.
    • Knowingly transmitting a sexually transmitted infection (STI) or human immunodeficiency virus (HIV) to another person.
    • Exposing one’s genitals in non-consensual circumstances and/or inducing another to expose their genitals.
    • Viewing or possessing child or adult pornography at work or on System or College-owned property.
    • Sexually-based stalking and/or bullying may also be forms of sexual exploitation.

Other forms of sexual misconduct include, but are not limited to, the following, when the act is based on a person’s actual or perceived sex or gender:

    • Threatening or causing physical harm, extreme verbal abuse or other conduct which threatens or endangers the health or safety of any person.
    • 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 System or College community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity; hazing is also illegal under Colorado law.
    • Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally.
    • Stalking, defined as a course of conduct directed at a specific person that is unwelcome and would cause a reasonable person to feel fear.
    • Violation of any other System or College rule.

Procedure

The System President delegates to each College President the responsibility to ensure procedures for the effective investigation and remediation of prohibited conduct is implemented at their College. The System President will be responsible to ensure such procedures are implemented at the System office.

Conflicts of Interest

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.

Education and Prevention Programs

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:

    • Identifies domestic violence, dating violence, sexual assault and stalking as prohibited conduct;
    • Defines what behavior constitutes domestic violence, dating violence, sexual assault, and stalking pursuant to Colorado law;
    • Defines what behavior and actions constitute consent to sexual activity in the State of Colorado;
    • Provides safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or intervene when there is a risk of domestic violence, dating violence, sexual assault, or stalking against a person other than the bystander;
    • Provides information on risk reduction so that students and employees may recognize warning signs of abusive behavior and how to avoid potential attacks; and
    • Provides information on the procedures the college will adhere to after a sex offense occurs.

Retaliatory Acts

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.

Interpretation and Revision

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.