Article 2 § D of the Code of Student Conduct or§ 4.3.7. of the Employee Handbook

Preamble: consent to sexual activity

Consent

Consent is knowing, voluntary and clear permission by word or action, to engage in mutually agreed upon sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to make certain that the other has consented before engaging in the activity. 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.

A person cannot consent if he or she is unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated and/or lacks capacity has violated this policy. It is not an excuse that the individual respondent of sexual misconduct was intoxicated and, therefore, did not realize the incapacity/lack of capacity of the other.

Incapacitation/lack of capacity

Incapacitation/lack of capacity is defined as a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also covers a person whose incapacity results from mental disability, involuntary physical restraint, and/or from the taking of incapacitating drugs.

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 dating relationship is not sufficient to constitute consent. The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. Silence or the absence of resistance alone is not consent.

A person can withdraw consent at any time during sexual activity by expressing in words or actions that he or she no longer wants the act to continue, and, if that happens, the other person must stop immediately.

A minor below the age of consent according to state law cannot consent to sexual activity. This means that sexual contact by an adult with a person below the age of consent is a crime as well as a violation of this policy, even if the minor appeared to have wanted to engage in the act.

Prohibited conduct

Sexual Misconduct, as defined below, is prohibited. Any violation of the Student Code of Conduct Article 2 § D or Employee Handbook, § 4.3.7 will be charged and adjudicated by the Title IX Office.

Title IX sexual misconduct

The U. S. Department of Education’s (DOE) Title IX regulations requires that when an alleged victim of one or more of the following offenses files a formal complaint with the Title IX Office, the Office must investigate and adjudicate the allegations. According to the DOE, Title IX violations only apply to conduct within a Concordia University educational program or activity against a person in the United States.

1) Sexual Harassment
  1. Quid Pro Quo Harassment: An employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct.
  2. 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.
2) Sexual Assault

Sexual Assault is any sexual act directed against another person, without consent of the complainant, including instances where the complainant is incapable of giving consent. This violation includes attempting a sexual assault and/or one or more of the following types of sexual assault.

  1. Forcible Rape is the 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 (male or female), without the consent of the complainant.
  2. Forcible Sodomy is 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 where the complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
  3. Sexual Assault With An Object: To use 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 where the complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
  4. 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 where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
  5. Incest: Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
  6. Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent [age in state where occurred].
3) Dating Violence

Dating Violence: Violence committed by a person who is 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.
4) Domestic Violence

Domestic Violence is defined as a felony or misdemeanor crime of violence committed:

  • by a current or former spouse or intimate partner of the complainant;
  • by a person with whom the complainant shares a child in common;
  • by a person who is cohabitating with, or has cohabitated with, the complainant as a spouse or intimate partner;
  • by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred;
  • 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 the jurisdiction in which the crime of violence occurred.
5) Stalking

Stalking is engaging in a course of conduct 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 purpose of this definition...
    • course of conduct means two or more acts, including, but not limited to, acts in which the stalker 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.
6) Retaliation

No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or other University policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in a Title IX investigation or other University investigation, proceeding, or hearing.

  • Note 1: Acts of alleged retaliation should be reported immediately to the Title IX Coordinator, the Chief Student Affairs Officer, Dean of Students, Human Resources, or Campus Safety and will be promptly investigated. The University will take all appropriate actions to protect individuals who fear that they may be subjected to retaliation.
  • Note 2: Charges against an individual for code of conduct/employee handbook 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 formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.
  • Note 3: Charging an individual with a code of conduct/employee handbook violation for making a materially false statement in bad faith in the course of a grievance proceeding does not constitute retaliation, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

University sexual misconduct

Formal complaints that do not fall under the above Title IX Offenses but meet the definitions described below will be investigated and adjudicated by the Title IX Office including conduct occurring off campus and outside of the United States.

7) Sexual Harassment
  1. Quid Pro Quo Harassment: An employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct.
  2. 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.
8) Non-Consensual Sexual Intercourse

Non-Consensual Sexual Intercourse is defined as any sexual penetration or intercourse (anal, oral or vaginal), however slight, with any object, by a person upon another person, that is without consent and/or by force.

  • Note: “Sexual penetration” includes actual or attempted vaginal or anal penetration by a penis, tongue, finger or object, or oral copulation by mouth-to-genital contact or genital-to-mouth contact (see Statement on Consent below).
9) Non-Consensual Sexual Contact

Non-Consensual Sexual Contact is defined as any intentional sexual touching or attempts, however slight, with any object, by a person upon another person that is without consent and/or by force.

  • Note: “Sexual touching” includes any actual or attempted bodily contact with the breasts, groin, genitals, mouth or other bodily orifice of another individual, or any other bodily contact in a sexual manner (see Statement on Consent below).
10) Sexual Exploitation

Sexual Exploitation occurs when one person takes non-consensual or abusive sexual advantage of another for their own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute sexual harassment.

Examples of sexual exploitation include, but not limited to...

  • Invasion of sexual privacy.
  • Non-consensual digital, video, or audio recording of nudity or sexual activity.
  • Unauthorized sharing or distribution of digital, video, or audio recording of nudity or sexual activity.
  • Engaging in voyeurism.
  • Going beyond the boundaries of consent (such as letting your friend hide in the closet to watch you have consensual sex).
  • Knowingly exposing someone to or transmitting an STI, STD, or HIV to another person.
  • Intentionally or recklessly exposing one’s genitals in nonconsensual circumstances or inducing another to expose their genitals.
  • Sexually-based stalking and/or bullying may also be forms of sexual exploitation.
11) Stalking

Stalking is engaging in a course of conduct 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 purpose of this definition...
    • course of conduct means two or more acts, including, but not limited to, acts in which the stalker 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.
12) Dating Violence

Violence committed by a person who is 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.
13) Domestic Violence

Domestic Violence is defined as a felony or misdemeanor crime of violence committed:

  • by a current or former spouse or intimate partner of the complainant;
  • by a person with whom the complainant shares a child in common;
  • by a person who is cohabitating with, or has cohabitated with, the complainant as a spouse or intimate partner;
  • by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred;
  • 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 the jurisdiction in which the crime of violence occurred.
14) Retaliation

No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or other University policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in a Title IX investigation or other University investigation, proceeding, or hearing.

  • Note 1: Acts of alleged retaliation should be reported immediately to the Title IX Coordinator, the Chief Student Affairs Officer, Dean of Students, Human Resources, or Campus Safety and will be promptly investigated. The University will take all appropriate actions to protect individuals who fear that they may be subjected to retaliation.
  • Note 2: Charges against an individual for code of conduct/employee handbook 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 formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.
  • Note 3: Charging an individual with a code of conduct/employee handbook violation for making a materially false statement in bad faith in the course of a grievance proceeding does not constitute retaliation, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.
15) Improper Restraint or Detention

The detaining of a person without the person’s consent and/or against the person’s will to leave is prohibited.

  • “Improper Restraint or Detention” can apply to any act in which a person intentionally restricts another person’s freedom or liberty to move or to leave without consent. This can occur on or off campus, in a building, on the streets, in a vehicle, or any other place in which a person is restrained, against their will, from moving, whether physically, by threat, or intimidation.
  • This can also include but is not limited to, removing that person’s means of leaving (e.g. taking and/or holding someone’s keys, wallet, phone, or other means that would provide that individual with the means to leave the vicinity).
  • Note: This policy applies to restricting a person from leaving a resident hall room and/or failing to leave a resident’s room when requested to do so. However, this policy does not apply to authorized personnel acting within the scope of their responsibilities (e.g. Campus Safety Officers, Resident Hall Staff).
16) Fraud/Lying

Lying or fraudulent behavior in, or with regard to, any transaction with the University, whether oral or written, is prohibited, including but not limited to misrepresenting the truth before a hearing of the University or knowingly making a false statement orally or in writing to any University official.

Sexual misconduct sanctions for students

The sanctions below apply to students who have been found responsible for violating the University Sexual Misconduct Policy. Therefore, the general University Code of Student Conduct adjudication process and sanctions do not apply to the Sexual Misconduct Policy.

Also the University recognizes that it has a responsibility to effectively implement remedies designed to restore or preserve a complainant’s equal educational access any time a respondent is found responsible for sexual harassment. It will be the Title IX Coordinator’s (or designee) responsibility to supervise the assigned remedies.

  • Note 1: Because sexual misconduct can manifest itself in a range of severity, the University has established 3 levels of severity. The Title IX Coordinator or Administrative Hearing Panel reserves the right to evaluate the gravity of the student’s behavior (e.g. assign a level) and impose any of the sanctions listed below.
  • Note 2: Individuals with previous violations of the Sexual Misconduct Policy or previous Code of Student Conduct/Academic violations will be sanctioned at a higher level. Sexual Misconduct violations accumulate over the student’s entire academic career. The Administrative Hearing Panel has the authority to sanction outside the parameters of this matrix for mitigating or aggravating case factors. Fines and points will not be assessed for suspension or expulsion sanctions.
Definition of Sanctioning Terms for Students

Reprimand: An official written notice that the student has violated University policies and that more severe conduct action will result should the student engage in additional violations while enrolled at the University.

University Probation: Any subsequent violation of the University Sexual Misconduct Policy during the specified probationary period will result in suspension or expulsion.

Points: Points are awarded for violations as listed in the “Sexual Misconduct Sanction Matrix for Students”. Yearly points awarded for violations occurring after room selection of the current year carry over to the next academic year. Current resident students who accumulate more than 19 points in the current year are not eligible to participate in the following year's room selection process. All accumulated points affect a student's housing priority. All students who accumulate a yearly student conduct point total of more than 24 points are subject to immediate resident hall suspension or expulsion or University suspension or expulsion.

  • Note: It will not be necessary for points to be awarded when the sanction results in either suspension or expulsion from the University.

Suspension: Separation from the University for a specified period of time after which the student is eligible to return subject to the satisfaction of specific conditions noted at the time of suspension. The student is typically required to vacate the campus within 24 hours of notification of the action, though this deadline may be extended upon application to the Title IX Coordinator. During the suspension period, the student is banned from University property, functions (on and off campus), events, and activities unless the student receives prior written approval from the Title IX Coordinator.

Expulsion: This sanction is a permanent separation from the University. The student is banned from University property and the student’s presence at any University-sponsored activity or event (on or off campus) is prohibited. This action may be enforced with a trespass action, as necessary.

Definition of Remedy Terms for Students

Education or Remediation: Assigned action intended to educate or correct behavior that resulted in a violation of the University Sexual Misconduct Policy. The assigned action may include, but is not limited to, online education program; counseling; and/or mediation.

No Contact Order (NCO): A NCO requires that both parties refrain from contacting the other party through any means (e.g. fact-to- face, in writing, through friends or other persons, electronically/social media). A NCO will stay in effect until such time as both parties are officially notified in writing that the NCO has been terminated. Violations of the NCO will be considered a form of retaliation. Following a minimum of one semester NCO, either party may petition, in writing, the Title IX Coordinator to contact the other party to terminate the NCO. If both parties agree, in writing to the Title Coordinator and the Title IX Coordinators agrees that the lifting of the NCO is appropriate, the Title IX Coordinator will notify both parties that the NCO is terminated.

  • Note: At no time can either party contact the other party to lift the NCO.

Resident Hall Relocation: Relocation, for resident students, to another resident hall floor or hall.

Academic Relocation: Assignment to another academic class section or on-line class; if one is not available the respondent may be removed from that class.

Facility Ban: The inability to enter, use, or access a specific building, facility, or area of campus or off campus activity/event for a specified period of time.

Sanction Matrix for Students
Sanction Matrix for Students
Policy Violation
Article 2
Level Fee Points Probation Education/Remedies/Other
§ D1 (a,b) Sexual Harassment or
§ D7 Sexual Harassment
1 $50 - $100 2-5 Up to 6 months
  • Education or Remediation
  • Relocation
  • No Contact Order
2 $100 - $200 4-6 6 – 9 Months
§ D2 (a,b,c,e,f) Sexual Assault
or
§ D8 Non-Consensual Intercourse
2 $100 - $200 6 -9 12 months
  • Education or Remediation
  • Relocation
  • No Contact Order
  • Facility Ban
3
  • Suspension: Minimum 12 months, complete counseling before return, probation for 12 months upon return; No Contact Order; or
  • Expulsion
§ D2 (d) Forcible Fondling
or
§ D9 Non-Consensual Sexual Contact
2 $100 - $200 6 -9 12 months
  • Education or Remediation
  • Relocation
  • No Contact Order
  • Facility Ban
3 Suspension: Minimum 6 months, complete counseling before return, probation for 12 months upon return; No Contact Order
§ D3 or D12
Dating Violence § D4 or D13
Domestic Violence
1 $50 - $100 2-5 Up to 6 months
  • Education or Remediation
  • Relocation
  • No Contact Order
  • Facility Ban
2 $100 - $200 4-6 6 – 9 Months
3 Suspension: Minimum 6 months, complete counseling before return, probation for 12 months upon return; no contact order to complainant during time as a student
§ D5 Stalking
or
§ D11 Stalking
1 $50 - $100 2-5 Up to 6 months
  • Education or Remediation
  • Relocation
  • No Contact Order
  • Facility Ban
2 $100 - $200 6 -9 12 months
3 Suspension: Minimum 6 months, complete counseling before return, probation for 12 months upon return; No Contact Order
§ D6 Retaliation
or
§ D14 Retaliation
1 $50 - $100 2-5 Up to 6 months No contact order (minimum 6 months)
2 $100 - $200 4-6 6 – 9 Months
  • Education or Remediation
  • Relocation
  • No Contact Order
  • Facility Ban
3 Suspension: Minimum 6 months, complete counseling before return, probation for 12 months upon return; no contact order to complainant during time as a student
§ D 10 Sexual Exploitation 1 $50 - $100 2-5 Up to 6 months
  • Education or Remediation
  • Relocation
  • No Contact Order
  • Facility Ban
2 $100 - $200 4-6 6 – 9 Months
3 Suspension: Minimum 6 months, complete counseling before return, probation for 12 months upon return; no contact order to complainant during time as a student
§ D15 Improper Restraint or Detention 1 $50 - $100 2 – 5 Up to 6 months
  • Education or Remediation
  • Relocation
  • No Contact Order
  • Facility Ban
2 $100 - $200 6 -9 12 months
3 Suspension: Minimum 6 months, complete counseling before return, probation for 12 months upon return; No Contact Order

§ D16 Fraud/Lying
1 $50 - $100 2-5 Up to 6 months No Contact Order to complainant, respondent, or witness
2 $100 - $200 4-6 6 – 9 Months

Sexual misconduct sanctions for employees

The sanctions below apply to employees who have been found responsible for violating the University Sexual Misconduct Policy.

  • Note 1: Because sexual misconduct can manifest itself in a range of severity, the University has established 3 levels of severity. The Title IX Coordinator or Administrative Hearing Panel reserves the right to evaluate the gravity of the employee’s behavior (e.g. assign a level) and impose any of the sanctions listed below.
  • Note 2: Individuals with previous violations of the Sexual Misconduct Policy or previous Employee Handbook violations will be sanctioned at a higher level. The Title IX Coordinator or Administrative Hearing Panel has the authority to sanction outside the parameters of this matrix for mitigating or aggravating case factors.
Definition of Sanctioning Terms

Reprimand: An official written notice that the employee has violated University policies and that more severe action will result should the employee engage in additional violations while employed by the University.

University Probation: Notice that any subsequent violation of the University Sexual Misconduct Policy during the specified probationary period will result in employment termination.

Education and/or Remediation: Assigned action intended to educate or correct behavior that resulted in a violation of the University Sexual Misconduct Policy. The assigned action may include, but is not limited to, online education program; counseling; and/or mediation.

No Contact Order (NCO): A NCO requires that both parties refrain from contacting the other party through any means (e.g. fact-to- face, in writing, through friends or other persons, electronically/social media). A NCO will stay in effect until such time as both parties are officially notified in writing that the NCO has been terminated. Violations of the NCO will be considered a form of retaliation.

Facility Ban: The inability to enter, use, or access a specific building, facility, or area of campus or off campus activity/event for a specified period of time.

Suspension: Separation from the University for a specified period of time after which the employee is eligible to return subject to the satisfaction of specific conditions noted at the time of suspension. The employee is typically required to immediately vacate the campus upon notification of the action, though this deadline may be extended upon application to the Title IX Coordinator. During the suspension period, the employee is banned from University property, functions (on and off campus), events, and activities unless the employee receives prior written approval from the Title IX Coordinator. The suspension may either be a paid or unpaid suspension.

Employment Termination: This sanction is a permanent separation from the University. The employee is banned from University property and the employee’s presence at any University-sponsored activity or event (on or off campus) is prohibited. This action may be enforced with a trespass action, as necessary.

Sanction Matrix for Employees
Sanction Matrix for Employees
Policy Violation Level Sanction/Remedy (some or all listed below)
§ 4.3.7.1 Sexual Harassment
or
§ 4.3.7.7 Sexual Harassment
1 Verbal Warning
2
  • Reprimand
  • Education or Remediation
  • No Contact Order
  • Facility Ban
  • Suspension
3 Employment Termination
§ 4.3.7.2 Sexual Assault (a,b,c,e,f)
or
§ 4.3.7.8 Non-Consensual Sexual Intercourse
3 Employment Termination
§ 4.3.7.2d Sexual Assault - Forcible Fondling
or
§ 4.3.7.9 Non-Consensual Sexual Contact
2
  • Reprimand
  • Education or Remediation
  • No Contact Order
  • Suspension
3 Employment Termination
§ 4.3.7.3 Dating Violence or
§ 4.3.7.12 Dating Violence § 4.3.7.4 Domestic Violence or
§ 4.3.7.13 Domestic Violence
2
  • Reprimand
  • Education or Remediation
  • No Contact Order
  • Facility Ban
  • Suspension
3 Employment Termination
§ 4.3.7.5 Stalking or
§ 4.3.7.11 Stalking
1 Reprimand
2
  • Reprimand
  • Education or Remediation
  • No Contact Order
  • Facility Ban
  • Suspension
3 Employment Termination
§ 4.3.7.6 Retaliation or
§ 4.3.7.14 Retaliation
1 Verbal Warning
2
  • Reprimand
  • Education or Remediation
  • No Contact Order
  • Facility Ban
3 Employment Termination
§ 4.3.7.10 Sexual Exploitation 1 Verbal Warning
2
  • Reprimand
  • Education or Remediation
  • No Contact Order
  • Facility Ban
3 Employment Termination
§ 4.3.7.15 Improper Restraint/Detention 2
  • Reprimand
  • Education or Remediation
  • No Contact Order
  • Facility Ban
3 Employment Termination
§4.3.7.16 Fraud/Lying 1 Verbal Warning
2
  • Reprimand
  • Education or Remediation
  • No Contact Order Facility Ban
3 Employment Termination