Title IX Policy and Procedure

TITLE IX POLICY AND PROCEDURE

1. PURPOSE

Saint Anselm College ( “the College”) complies with the provisions of Public Law No. 92-318, Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., and the regulations promulgated thereunder (34 C.F.R. Subtitle A, Part 106), which prohibit discrimination on the basis of sex, including sexual violence and harassment, in any education program or activity receiving federal financial assistance. Saint Anselm College also complies with Section 304 of the Violence Against Women Reauthorization Act of 2013, which prohibits sexual assault, dating violence, domestic violence, and stalking.

The College values and upholds the equal dignity of all members of its community. This document outlines the College’s procedures for responding to and resolving complaints under Title IX. These procedures strive to balance the rights of the Parties during what is often a difficult time for all involved.

The Title IX Coordinator initially reviews all reports submitted to the College involving sex or gender-based concerns. Reports alleging discrimination based on sex that does not meet the jurisdictional and scope threshold of Title IX, which is described below, are referred to other applicable College procedures, including Student Conduct, the Respect and Belonging Team, and Human Resources. This is not to suggest that any incident is more or less important, but instead a reflection of federal Title IX regulations that apply only to a specifically identified set of circumstances.

2. JURISDICTION AND SCOPE OF THIS TITLE IX PROCEDURE

Under the United States Department of Education’s Title IX Regulations, published May 19, 2020 (the Title IX Final Rule), the College’s Title IX Procedures apply to reports that satisfy the jurisdictional and scope requirements described in this section, as determined by the Title IX Coordinator after an Initial Assessment. Collectively, conduct that satisfies these jurisdictional and scope requirements is referred to as “Title IX Prohibited Conduct” throughout this document.

The College does not dismiss reports that fail to satisfy the jurisdictional and scope requirements of Title IX Prohibited Conduct. Instead, the Title IX office refers those reports to Student Conduct, the Respect and Belonging Team, or Human Resources, as appropriate.

Location Where the Incident Occurred (Jurisdictional Requirement)

This Title IX Procedure applies to incidents occurring in the following places:

The incident(s) occurred on the College’s campus, within the United States;
the incident(s) occurred in a building under the College’s control and within the United States;
the incident(s) occurred in the context of one of the College’s education programs and activities (defined as locations, events, or circumstances in which the College exercises substantial control over both the Respondent and the context in which the conduct occurred) or the incident occurred through the use by an individual located in the United States via computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the College’s programs and activities over which the College has substantial control.

Identity of the Complainant (Jurisdictional Requirement)

This Procedure applies to Complainants, who at the time of filing a Written Complaint are participating in or attempting to participate in an education program or activity of the College. This includes, but is not limited to, current students, (whether applicant, admitted, currently enrolled, or on leave of absence; includes alumni or former students attempting to participate in a College activity) and current employees (defined as applicant, hired but not yet working, or employed).

Identity of the Respondent (Jurisdictional Requirement)

This Procedure applies to Respondents, who at the time a Written Complaint is filed, are participating in or attempting to participate in an education program or activity of the College. This includes but is not limited to current students, (whether applicant, admitted, currently enrolled, or on leave of absence; includes alumni or former students attempting to participate in a College activity) and current employees (defined as applicant, hired but not yet working, or employed).

If the Complainant and/or Respondent is no longer a student or employee at the time of the Written Complaint and the College is, thus, unable to pursue resolution under these procedures, the College will seek to meet its Title IX obligations by providing support for the parties and, as feasible, taking appropriate steps to end any Title IX Prohibited Conduct, prevent its recurrence, and address its effects.

Scope of Conduct Addressed Under Title IX Procedures

This Title IX Procedure applies to reports of conduct on the basis of sex or gender that falls into one of the following categories:

Dating violence, domestic violence, stalking, or sexual assault; and
Title IX Sexual Harassment:
- unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies the Complainant equal access to an education program or activity, including employment; or
- conduct by an employee conditioning the provision of an aid, benefit, or service of the College on the Complainant’s participation in unwelcome sexual conduct.

This is referred to as “Title IX Prohibited Conduct,” and defined in detail in Section 3, below.

3. DEFINITIONS OF TITLE IX PROHIBITED CONDUCT

1) Sexual Assault:

a. Rape:

Penetration, no matter how slight,
of the vagina or anus of a person,
with any body-part or object, OR
Oral penetration
- of a sex organ of the Complainant, or
- by the Respondent’s sex organ,
without the consent of the Complainant,
including instances where the Complainant is incapable of giving consent because of their age or because of a temporary or permanent mental or physical incapacity.

b. Fondling:

The touching of the private body parts (buttocks, groin, breasts) of the Complainant by the Respondent, or
the Respondent’s private body parts touching the Complainant, or
the Respondent causing the Complainant to touch the Respondent’s or their own private body parts,
- for the purpose of sexual gratification¹,
- without the consent of the Complainant,
- including instances where the Complainant is incapable of giving consent because of their age or because of a temporary or permanent mental or physical incapacity.

c. Incest:

Sexual intercourse,
between persons who are related to each other,
within the degrees wherein marriage is prohibited by New Hampshire law.

d. Statutory Rape:

o Sexual intercourse,
o with a person who is under the statutory age of consent of 18 years old.

2) Dating Violence:

Violence²,
on the basis of Sex,
committed by a Respondent,
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

3) Domestic Violence:³

Violence,
on the basis of Sex,
committed by a Respondent who is a current or former spouse or intimate partner of the Complainant,
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.

4) Stalking:

A Respondent engaging in a course of conduct⁴
on the basis of Sex,
directed at the Complainant, that
- would cause a Reasonable Person to fear for the person’s safety, or the safety of others; or
- Suffer substantial emotional distress⁵.

5) Title IX Sexual Harassment:

conduct on the basis of sex, or that is sexual in nature, and is:

a. Quid Pro Quo:

• An Employee of the College,

• conditions⁶ the provision of an aid, benefit, or service of the College,

• on an individual’s participation in unwelcome sexual conduct.

b. Hostile Environment:

Unwelcome conduct,
determined by a reasonable person,
to be so severe, and
pervasive, and,
objectively offensive,
that it effectively denies a complainant equal access to the College’s program or activity.⁷

4. HOW THE COLLEGE RESPONDS TO REPORTS

Initial Assessment

Upon notice of alleged Title IX Prohibited Conduct, the College will first assess safety. The Title IX Coordinator will refer the matter to the Threat Assessment Team for assessment, as needed.

Following this, the Title IX Coordinator’s initial response will depend on whether the identity of the Complainant is known, and whether the reported conduct satisfies the threshold jurisdiction and scope of the Title IX policy and procedure. The Title IX Coordinator’s Initial Assessment of a report typically occurs within five (5) business days. The initial assessment typically includes:

Assessing whether the reported conduct may reasonably constitute a Title IX Policy violation.
Determining whether the College has jurisdiction over the reported conduct.
Offering and coordinating supportive measures.
Notifying the Complainant, or the person who reported the allegation(s), of the available resolution options.
Determining whether the Complainant wishes to file a Written Complaint (though the Complainant need not make that decision during the Initial Assessment).

Response If the Complainant’s Identity Is Known

Where the identity of the Complainant is known, the Title IX Coordinator will promptly contact the Complainant to inform the Complainant of the availability of supportive measures, with or without the filing of a Written Complaint, and explain to the Complainant the process for filing a Written Complaint.

By submitting a Written Complaint, the Complainant authorizes the College to initiate a Formal Grievance Process or Informal Resolution.

Response If the Complainant’s Identity Is Unknown

Where a report is filed but the identity of the Complainant is unknown, the Title IX Coordinator will assess the nature and circumstances of the report, including whether it provides information that identifies the potential Complainant, the potential Respondent, any witnesses, and/or any other third party with knowledge of the reported incident, and take reasonable and appropriate steps to respond to the report of Title IX Prohibited Conduct consistent with applicable federal and state laws and these procedures. Response If the Respondent’s Identity Is Unknown Where a report is filed but the identity of the Respondent is unknown, the Title IX Coordinator will assess the nature and circumstances of the report, including whether it provides information that identifies the potential Respondent, any witnesses, and/or any other third party with knowledge of the reported incident, and take reasonable and appropriate steps to respond to the report of Title IX Prohibited Conduct consistent with applicable federal and state laws and these procedures.

Referrals to Other College Procedures

If the Title IX Coordinator determines that the threshold jurisdictional requirements have not been met, and the reported conduct could not reasonably constitute a Title IX Policy violation, the matter will be referred to either Student Conduct (for reports involving a student-respondent) or Human Resources (for reports involving an employee-respondent).

5. THE COMPLAINANT’S RIGHT TO REQUEST A COLLEGE PROCESS

Where a report satisfies the jurisdictional and scope of this Title IX Procedure, three College processes are available. A complainant may:

Request that the College provide a Supportive-Only Response and take no other action;
submit a Written Complaint to initiate a Formal Grievance Process, which involves an investigation and hearing; or
submit a Written Complaint and request the Respondent’s participation in an Informal Resolution Process, upon approval of the Title IX Coordinator.

Please Note: No disciplinary action can be taken without a Formal Grievance Process.

The College prioritizes the Complainant’s wishes about how to proceed. The College recognizes that the decision about whether to initiate a Formal Grievance Process or Informal Resolution can be complicated and challenging for Complainants. The decision need not be made immediately. Supportive measures are available even if the Complainant does not submit a Written Complaint to request a College Title IX Process.

6. THE TITLE IX COORDINATOR’S AUTHORITY TO INITIATE A FORMAL GRIEVANCE PROCESS WITHOUT THE COMPLAINANT’S CONSENT

The College supports any Complainant’s decision not to pursue a Written Complaint, via a Formal Grievance Process or Informal Resolution Process, under these procedures. If a Complainant does not want any action taken, the Title IX Coordinator will consider that request and honor it, if possible. The Complainant can later choose to pursue a Formal Grievance Process or Informal Resolution Process.

In a narrow category of cases, the Title IX Coordinator may need to initiate a Formal Grievance Process on behalf of the College regardless of the Complainant’s wishes, depending on the nature of the allegations. The Title IX Coordinator may consider elements such as patterns of behavior, predation, threats, violence, use of weapons, or involvement of minors in determining whether to sign a Written Complaint on behalf of the College.

If the College is unable to honor a complainant’s request that the College take no action, the Title IX Coordinator will sign a Written Complaint on behalf of the College. Where the Title IX Coordinator signs a Written Complaint, the Title IX Coordinator is not a complainant or otherwise a party. Instead, the original Complainant will be treated as the “Complainant” in the process, meaning that they will receive all required communications and opportunities to participate in the investigation and adjudication. That Complainant is not, however, required to participate in any proceedings that follow.

The Title IX Coordinator will notify the Complainant that the College intends to proceed with a Formal Grievance Process. The Title IX Coordinator will make reasonable efforts to protect the privacy of the Complainant. However, typically, the Complainant’s identity will be disclosed to the Respondent and other necessary parties as part of the College’s investigation. If the Complainant declines to participate in an investigation and/or the adjudicative process under these procedures, the College’s ability to investigate meaningfully may be limited.

1. DISMISSAL OF WRITTEN COMPLAINT (MANDATORY AND DISCRETIONARY)⁸

Mandatory Dismissal

The College must dismiss a Written Complaint or any allegations therein if, at any time during the investigation or hearing, it is determined that:

The conduct alleged in the Written Complaint would not constitute Title IX Prohibited Conduct as defined above, even if proven
The Title IX Prohibited Conduct did not occur in the College’s Education Program or Activity (including buildings or property controlled by recognized student organizations) and/or the College does not have control of the Respondent
The Title IX Prohibited Conduct did not occur against a person in the United States
The Complainant alleging Title IX Prohibited Conduct is not participating in or attempting to participate in the College’s Education Program or Activity at the time of filing the Written Complaint, and based on the available information, the Title IX Coordinator has determined that they do not need to sign a Written Complaint on behalf of the College⁹

Discretionary Dismissal

The College may dismiss a Written Complaint or any allegations therein if, at any time during the investigation or hearing:

A complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Written Complaint or any allegations therein
The Respondent is no longer enrolled in or employed by the College
Specific circumstances prevent the College from gathering evidence sufficient to reach a determination as to the Written Complaint or allegations therein

Please Note: A complainant who decides to withdraw a Written Complaint may later request to reinstate it or refile it.

Upon any dismissal, the College will promptly and simultaneously send the Parties written notice of the dismissal and the rationale for doing so.

Appeal of Dismissal

The Parties may appeal a decision to dismiss or not to dismiss a Written Complaint. All dismissal appeal requests must be filed within five (5) business days of the notification of the dismissal decision.

A dismissal may be appealed on the following grounds:

A procedural irregularity affected the outcome of the matter
New evidence that was not reasonably available at the time the determination regarding dismissal was made, that could affect the outcome of the matter
The Title IX Coordinator, Investigator(s), or Decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the specific Complainant or Respondent that affected the outcome of the matter

The opposing Party will have five (5) business days to review and respond to the appeal.

If any of the asserted grounds in the appeal satisfy the grounds described in the Policy, then the Dismissal Appeal Decision-maker(s) will notify all Parties and their Advisors, and the Title IX Coordinator of their decision and rationale in writing. The effect will be to reinstate the Complaint.

Appeal decisions are deferential to the original determination, making changes only if there is a compelling justification to do so.

7. COUNTER COMPLAINTS

The College is obligated to ensure that the Formal Grievance Process is not abused for retaliatory purposes.

Although the College permits the filing of counter-complaints, in any case where a counter-complaint is filed, the Title IX Coordinator will assess whether the allegations in the counter-complaint are made in good faith. When counter-complaints are not made in good faith, they will not be permitted. They will be considered potentially retaliatory and will be referred to Student Conduct for investigation.

Counter-complaints determined to have been reported in good faith will be processed using the Formal Grievance Process. At the Title IX Coordinator’s discretion, investigation of such claims may take place after resolution of the underlying initial Written Complaint.

8. ADVISORS IN THE FORMAL GRIEVANCE PROCESS

The Parties may each have a Title IX Advisor of their choice present with them for all meetings, interviews, and hearings within the Formal Grievance Process, if they so choose. The Title IX Coordinator will appoint an advisor to any party who has not elected one, for the purpose of a hearing.

8. SANCTION RANGES

The following sanction ranges apply for Title IX Prohibited Conduct under this Policy. Sanctions can be assigned outside of the specified ranges based on aggravating or mitigating circumstances, or the Respondent’s cumulative conduct record.

Quid Pro Quo Harassment: warning through dismissal or termination.
Hostile Environment Harassment: warning through dismissal or termination.
Rape: suspension through dismissal or termination.
Fondling: warning through suspension (termination for employees).
Incest: warning through dismissal or termination.
Statutory Rape: warning through dismissal (termination for employees).
Stalking: probation through dismissal or termination.
Dating/Domestic Violence: probation through dismissal or termination.

Please Note: Where a pattern is found, it can be the basis to enhance sanctions, accordingly.

9. RETALIATION PROHIBITED

Those who make a complaint or participate in a process under this policy are protected from retaliation. Retaliation charges will be referred to Student Conduct (students) and/or Human Resources (employees) for appropriate disciplinary proceedings. Retaliation is defined as follows:

Adverse action, including intimidation, threats, coercion, or discrimination, against any person,
by the College, a student, employee, or a person authorized by the College to provide aid, benefit, or service under the College’s education program or activity,
for the purpose of interfering with any right or privilege secured by law or this Policy, or
because the person has engaged in protected activity, including reporting information, making a Complaint, testifying, assisting, or participating or refusing to participate in any manner in an investigation or resolution process under this Policy and related Procedures.

10. STANDARD OF PROOF

The College uses the preponderance of the evidence standard of proof when determining whether a Policy violation occurred. This means that the College will decide whether it is more likely than not, based upon the available information at the time of the decision, that the Respondent is in violation of the Policy.

11. FALSE ALLEGATIONS AND EVIDENCE

Deliberately false and/or malicious accusations under this Policy are a serious offense and will be subject to appropriate disciplinary action. This does not include allegations that are made in good faith but are ultimately shown to be erroneous or do not result in a determination of a Policy violation.

Additionally, witnesses and Parties who knowingly provide false evidence, tamper with or destroy evidence, or deliberately mislead an official investigating or facilitating a resolution process can be subject to discipline. While the College may pursue Policy violations against those who make materially false statements in bad faith in the course of a resolution under this Policy or related Procedures, a finding that an individual is responsible for a violation is not sufficient to conclude that the individual has made a materially false statement in bad faith.

12. EMERGENCY REMOVAL

The College may act to remove a student Respondent accused of Title IX Prohibited Conduct from its education program or activities, partially or entirely, 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 student or other individual justifies removal. This risk analysis is performed by the Threat Assessment Team using its standard objective violence risk assessment procedures, in consultation with the Dean of Students.

13. FEDERAL TIMELY WARNING OBLIGATIONS

The College issues timely warnings for reported incidents that pose a serious or continuing threat of bodily harm or danger to members of the College community.

14. INDEPENDENCE AND CONFLICTS OF INTEREST

Individuals implementing this Policy act with independence and authority, free from bias and conflicts of interest. To raise any concern involving bias, conflict of interest, misconduct, or discrimination, contact the Title IX Coordinator or Vice President of Institutional Equity.

¹ Contact with private body parts is considered to be done for the purpose of sexual gratification unless: (1) the contact can be proven inadvertent; (2) the contact is for a legitimate medical (or other privileged) purpose and thus is conduct for which consent should have been sought and obtained by the provider; (3) the contact involves a Respondent who is pre-sexual, based on maturity/age (thus their intent is not sexual); (4) the contact involves a Respondent who cannot developmentally understand sexual contact or that their contact is sexual; or (5) the contact is something like butt-slapping on a team and is both minimal and unlikely to have sexual motivation or purpose, as shown by the context of the act(s).

² For purposes of the Policy, violence includes situations where the Respondent intentionally or recklessly causes the Complainant serious physical, emotional, or psychological harm.
(1) Intent is evidenced when a Reasonable Person would be more likely to act with the purpose of causing serious harm rather than for any other reason.
(2) Recklessness is evidenced by a disregard of obvious risk to the safety of the Complainant.
(3) Legitimate use of violence for self-defense is not chargeable under the Policy because the purpose is safety, not harm. It may also be used as a defense if is not clear at the time of charging whether the use of violence was for self-defense or not. Self-defense is only to be considered if it is prompted by physical violence or the threat thereof.
(4) Consensual use of violence, such as in kink relationships, would also not meet this definition, in most circumstances.
(5) Threats to seriously harm the Complainant or people they care about may be chargeable under this definition if doing so causes serious emotional or psychological harm.

³ To categorize an incident as Domestic Violence under the Policy, 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.

⁴ For the purposes of this definition, a “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

⁵ Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

⁶ Implicitly or explicitly.

⁷ Unwelcomeness is subjective and determined by the Complainant (except when the Complainant is younger than the age of consent), though a Decision-maker(S) may consider compelling evidence that rebuts an assertion of unwelcomeness. 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 patterns that may be evidenced.

⁸ These dismissal requirements are mandated by 34 CFR § 106.45.

⁹ Such a Complainant is still entitled to supportive measures, but the Formal Grievance Process is not applicable unless the Title IX Coordinator signs the Formal Complaint in the event the Complainant cannot/will not do so.

Title IX Policy and Procedure