The care and welfare of EMU students, faculty, and staff is of utmost importance. While policies and procedures can often feel cold and impersonal, we understand the stress and emotional trauma involved in such situations. Procedures are carried out by people who care about and are committed to trauma informed work with all parties involved.
The following procedures function in conjunction with the Relationship Violence and Sexual Misconduct Policy, and will be initiated when a report of an alleged occurrence of Prohibited Conduct is received. The intent of these procedures is to provide a prompt, fair, equitable, and impartial process from the initial report to the final outcome, consistent with applicable law and our commitment to the Anabaptist-Mennonite Christian tradition, as expressed in the University’s Life Together Commitment, mission, and values. This process is not designed to take the place of making a criminal report to law enforcement or of a criminal investigation. The procedure as outlined below may take place whether or not a criminal report is made: it is a separate and independent process.
EMU is committed to a “prompt and equitable resolution” of complaints of Prohibited Conduct whether education is being conducted in person or remotely through online platforms. When these procedures must be applied during times of remote instruction, they will be followed as closely as possible in the investigative and adjudicative processes.
SECTION A.2: GRIEVANCE PROCESS
The procedures that follow articulate the Grievance Process used by the University to address Formal Complaints under this policy. Upon the receipt of a Formal Complaint, the presumption followed by the University is that the Respondent will not be held responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of this process. The standard used to determine responsibility for all Formal Complaints against students and staff under this policy is the preponderance of the evidence.
This process is intended to provide the parties a reasonably prompt time frame for the conclusion of this process, as provided in Section 7.7 of this policy and as is otherwise provided in each section below. These timelines may be temporarily delayed or extended for good cause, which is defined to include considerations such as the absence of a party; concurrent law enforcement activity; the need for language assistance or accommodation of disabilities; difficulties obtaining or securing evidence; and other good and just cause. The University will notify both parties simultaneously if an extension is needed and the reasons for the extension.
At no time should this process be construed as requiring, allowing, relying upon, or otherwise using questions or evidence that constitute or seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
This process may conclude and the Formal Complaint may be dismissed at any time if (1) the Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein; (2) the Respondent is no longer enrolled in or employed by the University; or (3) specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint or the allegations. Upon a dismissal permitted under this policy, the University will promptly notify both parties simultaneously of the dismissal and the reason(s) supporting the dismissal.
The Complainant will be offered the following options for moving forward:
No Further Action: the Complainant can indicate a preference that the Title IX Coordinator and/or the Deputy Title IX Coordinator take no further action to pursue an investigation into the reported incident;
File a Formal Complaint: the Complainant can indicate a preference that the Title IX Coordinator proceeds with an investigation of the reported incident;
Assist in making a Police Report. This option can be pursued regardless of whether or not option A or B has been selected. The Complainant may also choose to make a separate report to the local police department at a later time if they decide not to file a police report immediately.
The Complainant may choose which of the above options they want the University to take, and will indicate their choice by completing the EMU RVSM Complaint Form, if they have not done so as part of their initial outreach to the University Title IX office. Once this form has been completed, Complainants may change their mind at any time as to the course of action they want the process to take and will indicate this decision by completing this form again. Regardless of the option selected, the Complainant may access certain campus resources and Supportive Measures, for example, counseling, health center support, and pastoral services. For a full listing see Section 8: Resources and Supportive Measures.
A.3.3. INITIAL ASSESSMENTS AND NOTICE TO PARTIES
A.3.3.1 Safety Assessment
All Campus Safety and Care Reporting Forms and EMU RVSM Complaint Forms are received by the Title IX Coordinator, the Coordinator of Campus Safety and Security, and the Dean of Students, who comprise the Title IX Safety Team. After a report is received, the Safety Team will determine the need for administrative leave (in the case of employees), emergency removal (in the case of students), and/or a timely warning to be issued within the 72 hour notice to the Commonwealth’s Attorney and local law enforcement, and will, if deemed necessary make those notifications. A timely warning is required by the Clery Act and alerts the campus community to potentially dangerous circumstances. The need for a timely warning is determined by considering the nature of the act reported and the likelihood that continuing danger exists for the campus community. If warranted, a timely warning will be issued by the Coordinator of Campus Safety and Security, who has the final authority to make the determination. In cases involving an employee, the Director of Human Resources will also be consulted.
A.3.3.2 Title IX Assessment
No Further Inquiry or Investigation. The Title IX Assessment team will assess the Complainant’s preference for no further action by considering the severity of the alleged misconduct and the factors set forth in Section 3.6: Request for Anonymity. If the Complainant chooses not to move forward, the Title IX Assessment team may concur that no further process is required. The Title IX Assessment Team may also determine that the Title IX Coordinator must execute a Formal Complaint to move forward based upon the severity of the alleged misconduct and/or other factors set forth in Section 3.6 despite the wishes of the Complainant.
Formal Complaint. The Title IX Assessment team will assess the Formal Complaint to determine whether the Complainant’s allegations are within the scope of this policy or whether another University policy controls. If it is determined that the Formal Complainant is not within the scope of this policy, the Title IX Coordinator will notify the Complainant that the Formal Complaint is dismissed and will refer the Complainant to the appropriate process.
The University may consolidate Formal Complaints as to allegations against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, when the allegations arise out of the same facts or circumstances.
A.3.3.4. Notice of Allegations and Investigation
Upon receipt of a Formal Complaint, the University will provide the following written notice to the Complainant and the Respondent which includes the following:
A copy of this Appendix A;
Notice of the allegations listed in the Formal Complaint, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview;
Sufficient details include:
The identities of the parties involved in the incident, if known;
The conduct allegedly constituting Prohibited Conduct, if known;
The date and location of the alleged incident, if known;
A statement that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of this process;
Notice to the parties that they may have an Advisor of their choice, who may be, but is not required to be, an attorney;
The parties will be provided a relevant consent form to share information consistent with this procedure
Notice to the parties that they may inspect and review evidence as provided below;
Notice to the parties of any provision in the University’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process; and
Reminders to the parties that retaliation is prohibited.
If, during the course of the investigation, the University decides to investigate allegations about the Complainant or the Respondent that are not included in this notice, the University will provide notice of the additional allegations to the parties.
A.3.4. UNIVERSITY OUTREACH TO RESPONDENT
Once a Formal Complaint is filed, the Title IX Coordinator will make contact with the Respondent by phone call or email to set up a time for an intake meeting.
The Respondent may have an Advisor with them at this meeting. The Respondent also has the right to decline a meeting. During the intake meeting, the Title IX Coordinator will make available and review copies of the Appendix C: Appendix C: Rights of the Respondent, outline the Title IX process and procedures, and provide a list of Section 8: Resources and Supportive Measures, both on and off campus.
SECTION A.4: INVESTIGATION
The Title IX Coordinator or their designee will conduct a prompt, thorough, impartial, and equitable investigation based on the following principles:
The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on EMU and not on the parties;
The University will not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the University obtains that party’s voluntary, written consent to do so in this process;
Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other evidence in support of their position; and
Provide written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate. The availability of a party’s Advisor is irrelevant to this principle.
A.4.2. INTERVIEWS WITH INVOLVED PARTIES
As a part of the investigation, interviews will be conducted with all involved parties, beginning with the Complainant. The Complainant and the Respondent will not come into contact with one another during the interview process. The University will provide each party with at least 24 hours’ notice of the date, time, location, participants, and purpose of each interview.
The involved parties may have an Advisor of their choosing present during all stages of the reporting, investigating, and adjudication process in a non-participatory role (See Section 2: Definitions). The interviewer may also choose to have a confidential unbiased third party included in the interview. Interviews with any witnesses will also be conducted. No unauthorized audio or video recordings of any kind are permitted during any stage of this process, including, without limitation, during the interviews.
A.4.3. WITNESS INTERVIEWS
If it is necessary to interview witnesses as a part of the investigation process, witnesses can expect preservation of their privacy, except as otherwise provided in this policy; to be treated with respect by University officials; appropriate accommodations and protective measures, including the right to bring a support person; and other forms of assistance (for a list of available Supportive Measures, see Section 8.2).
A.4.4. DRAFT INVESTIGATIVE REPORT
Prior to completion of the investigative report, the Title IX Coordinator will send to each party and the party’s Advisor, if any, a copy of the draft investigation report and the evidence obtained as a part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility. This evidence will also include evidence in support of or against a party’s position, whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation. The evidence will be provided to each party on the same basis, whether in electronic format or hard copy. The parties will each have 10 calendar days to submit a written response, which the investigator will consider prior to the completion of the investigative report. The parties may elect to waive the full 10 days.
Either party may suggest additional witnesses and provide additional information after they review the draft investigative report. If additional witnesses or additional information is provided at this time, the Title IX Investigator will interview the additional witnesses and review the additional information.
A.4.5. INVESTIGATIVE REPORT
The Title IX Investigator will consider the responses to the draft investigative report, if any, and complete an investigative report that, at a minimum, sets out all the known facts, the disputed facts, summarizes all relevant evidence, and a list of all parties interviewed. The Title IX Investigator will provide a copy of the report to the Title IX Coordinator, who then convenes the Title IX Review Panel.
The Title IX Coordinator will provide the final copy of the investigative report to each party in the same format at least 10 calendar days prior to the Review Panel. Either party may choose to respond to the final report within 10 calendar days from the date of delivery.
The Title IX Investigator and/or the Title IX Coordinator/Deputy Title IX Coordinator will meet with the Complainant to review the report. Following this meeting, the Title IX Investigator and/or the Title IX Coordinator/Deputy Title IX Coordinator will meet with the Respondent to review the report.
SECTION A.5: ADAPTIVE RESOLUTION
The Adaptive Resolution process is an optional, private, and confidential process. All persons present at any time during the Adaptive Resolution process are expected to maintain the privacy and confidentiality of this process and the related proceedings.
Adaptive Resolution is not available to resolve a Formal Complaint alleging sexual harassment when a University employee is the Respondent.
The parties may elect to pursue Adaptive Resolution at any time after a Formal Complaint is filed and before the Review-Panel proceedings begin. Adaptive Resolution may be pursued during intake; before the investigation commences; during the investigation; and after the investigation has concluded. When the parties agree to Adaptive Resolution, the Title IX Coordinator will provide the parties with written notice disclosing the allegations, the requirements of the Adaptive Resolution Process, and the reminders that Adaptive Resolution will pause the Formal Process and that any party has the right to withdraw from the AdaptiveResolution Process and pre-/resume the Formal Process at any time.
Adaptive Resolution may occur in three separate scenarios:
When the parties agree to resolve the matter through an adaptive resolution process, such as mediation or various restorative justice options;
When the Respondent accepts responsibility for violating this policy, desires to accept a sanction, and end the process; or
When the Title IX Coordinator can resolve the matter informally by providing Supportive Measures to remedy the situation.
A.5.1. ADAPTIVE RESOLUTION
All parties must consent to the use of Adaptive Resolution, which involves the mutually agreed upon resolution of an allegation. The Title IX Coordinator will ultimately decide whether Adaptive Resolution will be pursued. In doing so, the Title IX Coordinator will consider objective factors, such as:
The severity, persistence or pervasiveness of the Prohibited Conduct;
The nature or violence (if applicable) of the Prohibited Conduct;
The impact of the Prohibited Conduct on the Complainant;
The impact or implications of the Prohibited Conduct within the University community;
Prior misconduct by the Respondent, including the Respondent’s relevant prior disciplinary history, at the University or elsewhere, and any criminal convictions;
Whether the Respondent has accepted responsibility for the Prohibited Conduct;
The maintenance of a safe, nondiscriminatory and respectful environment conducive to learning; and
Any other mitigating, aggravating, or compelling factors.
The Title IX Coordinator will maintain the records of any resolution that is reached. Failure to abide by the resolution may result in disciplinary action. Neither party may appeal the outcome of alternative resolution.
A.5.2. RESPONDENT ACCEPTS RESPONSIBILITY
The Respondent may accept responsibility for all or part of the allegations listed in the Formal Complaint at any time. The Respondent’s intent to accept responsibility for all or part of the allegations will pause the process. The Title IX Coordinator will then determine whether Adaptive Resolution can be used and whether all parties are able to agree on responsibility, sanctions, and/or remedies. If an agreement is reached, the Title IX Coordinator promptly implements the agreed upon finding, sanctions, and remedies to address the harms, needs and obligations created by the situation (ending the harassment, preventing its recurrence, and remedying its effects).
The outcome is not subject to appeal. If the parties cannot agree on the terms of the resolution, the Formal Grievance Process will be initiated or will resume at the same point where it was paused.
A.5.3. ADAPTIVE RESOLUTION AGREEMENT
The Title IX Coordinator, with the consent of the parties, may navigate the implementation of an agreement to address and repair the alleged harm to the extent possible on behalf of both parties and the University, and that is as satisfactory as possible for all involved. The outcome of an Adaptive Resolution Agreement may not appealed and the case is closed.
SECTION A.6: REVIEW PANEL
Following the submission of the final investigative report, the Title IX Coordinator will convene the Title IX Review Panel, unless the Formal Complaint is otherwise resolved through Adaptive Resolution. The Review Panel consists of the Review Panel chair and two additional EMU employees (one faculty member and one staff member) who have received Title IX training and training specifically related to the Relationship Violence and Sexual Misconduct Policy and its procedures. The Title IX Coordinator and the Title IX Investigator will also attend the Review Panel meeting in order to answer questions and provide clarifications. The Review Panel process is consistent with the University’s faith-based and religious-based principles rooted in the Anabaptist-Mennonite Christian tradition, including those principles of community, peacemaking, accountability, and discipleship (See EMU and the Mennonite Faith Tradition, Life Together: Commitments for a Community of Learning, Mission, Vision, Values).
The Complainant and the Respondent will be simultaneously notified of the composition of the Review Panel by the Title IX Coordinator and have the right to raise any conflicts of interest.
A.6.1. REVIEW PANEL PROCEEDINGS
The Review Panel process provides each party an objective evaluation of all relevant evidence. The Review Panel will not make credibility determinations based on a person’s status as a complainant, respondent, or witness. The Review Panel will meet separately with the Complainant and the Respondent. An advisor may attend the Review Panel but may not participate in the panel process. Either the Complainant and/or the Respondent may choose not to attend the Review Panel. The Review Panel will proceed regardless.
The chair of the Review Panel will inform all persons present that the proceedings are being recorded for reference purposes only. The recording will be destroyed at the conclusion of the case, after the deadline for and/or completion of an appeal process, and will be available to each party for inspection and review during the Appeals Board process, if applicable.
Prior to the Review Panel proceeding, the Complainant and/or the Respondent may submit relevant questions and follow-up questions for the Review Panel to consider asking the other party or witnesses as a form of cross-examination or other questioning. Review panel members may also ask their own relevant and follow-up questions to the Complainant, the Respondent, and/or witnesses during their separate Review Panel proceedings. Only relevant questions may be asked of a party or witness.
Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents about the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent. If the Chair decides that a question submitted by either party is not relevant, the Chair must explain to the party the decision to exclude a question as not relevant.
Evidence gathered during the investigation will also be available for each party to access during the Review Panel proceedings.
The Complainant and/or the Respondent may also request to give testimony to the Review Panel during their separate Review Panel hearings. If a party or witness does not submit to questioning by the Review Panel, the Review Panel must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the Review Panel cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the Review Panel proceeding.
A.6.2. REVIEW PANEL OUTCOMES
A.6.2.1. Determination Regarding Responsibility
The Review Panel will make a finding to determine whether or not a violation of the Relationship Violence and Sexual Misconduct Policy has occurred. This finding will be based on the standard of proof known as the preponderance of evidence. The Review Panel will make this determination based on the findings outlined in the final investigative report and the testimony heard.
At the conclusion of the Review Panel, the Review Panel chair will prepare a written summary of the proceedings. This documentation will include:
Identification of the allegations of Prohibited Conduct;
A description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interview with parties and witnesses, site visits, methods used to gather evidence, and hearings held;
Findings of fact supported by the determination;
Conclusions regarding the application of the University’s Code of Conduct to the facts;
A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions that the University imposes on the Respondent, and whether EMU will provide remedies to the Complainant designed to restore or preserve equal access to the University’s educational program or activity; and
The University’s procedures and permissible bases for the Complainant and Respondent to appeal.
The Review Panel chair will deliver the panel summary to the Title IX Coordinator, who will provide the written determination to the parties simultaneously. The determination regarding responsibility becomes final either on the date that the University provides the parties with the written determination of the appeal, if an appeal is filed, or the date on which an appeal would no longer be considered timely, if an appeal is not filed.
In the case of dismissal, suspension or withdrawal while under investigation, notification will be sent to the parent/legal guardian(s), to the CARE Team, care of the Dean of Students (Harrisonburg campus) or the deputy Title IX Coordinator at the Lancaster (PA) site, in order to coordinate in a confidential manner with various offices on campus (University Registrar, Financial Aid, etc.).
A.6.2.2. Possible Sanctions
If the outcome of the Review Panel proceeding results in a determination of responsibility, by a preponderance of the evidence, the Review Panel will decide between a number of different outcomes for the Respondent(s).
A Formal Complaint may result in one or more of the following possible sanctions, based on the facts of the case and the considerations listed above:
In-school, temporary, or indefinite suspension/disciplinary withdrawal;
Probation, with specific lengths being determined during the staff review;
Loss of University employment or volunteer position;
Loss of University resources or services;
No contact orders;
Removal from dorm or other campus buildings;
Application of a behavioral contract;
Alcohol and/or drug assessment and recommendations;
Exclusion from co-curricular or leadership activities;
Completion of issue-relevant education activities;
Mentoring for regular relevant educational conversations;
Monetary or other restitution;
Referral to counseling;
A prominent notation will be placed on the Respondent’s academic transcript if the Respondent is suspended from, permanently dismissed from, or withdraws from the University while under investigation for an offense involving sexual harassment, as required by Virginia state law. In compliance with Virginia state law, a notation can be removed from a student’s academic transcript if the student takes the actions identified in Virginia Code 23.1-900C as calling for such removal.
If the outcome of the Review Panel proceeding results in a determination of responsibility, remedies will be provided to the Complainant. Remedies must be designed to restore or preserve equal access to the University’s education programs or activities. Such remedies may include the same individualized services provided as Supportive Measures; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the Respondent.
SECTION A.7: APPEALS PROCESS
If the Complainant or Respondent does not agree with the findings and/or the outcomes, they may appeal the result to the Appeal Board. The appeal must be submitted in writing within three (3) business days following notification and should be directed to the Title IX Coordinator who will direct the appeal to the Appeal Board chair. Reasons for an appeal must be clearly stated and based on one of the following:
Relevant new evidence that was not reasonably unavailable at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;
Procedural irregularity that affected the outcome of the matter; or
The Title IX Coordinator, investigator(s), or Review Panel members had a conflict of interest or bias for or against complainants or respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.
The Title IX Coordinator will simultaneously notify each party in writing within three (3) business days of the appeal when an appeal is filed. The Title IX Coordinator will then convene the Appeals Board, which will not consist of the same person(s) as the Review Panel.
The Appeals Board chair will review the reason for appeal to determine if it meets the above criteria. If the determination is made that it does not meet one of the above criteria, the request for appeal will be rejected and the chair of the Appeals Board will notify the requesting party that no appeal may be made. If the request for appeal does meet one of the above criteria, the Appeals Board chair will notify the parties in writing of the following:
Date, time, and location of the Appeals Board meeting, which will be scheduled within five (5) business days from the date of the request for an appeal, subject to extension for good cause;
The names of the Appeals Board members, and how to challenge participation by any member of the Appeals Board for bias or conflict of interest;
The grounds for the appeal request, including any new evidence provided.
The Complainant and the Respondent may respond to the disclosure of information or new evidence by contacting the Appeals Board chair within two (2) business days.
Following this two (2) business day response period, the Appeals Board will review the request for an appeal and the corresponding response or additional information offered by any party in addition to the final investigative report, the written summary of the Review Panel, and the appeal letter and will make a decision to either uphold or modify the outcome of the Review Panel.
The Appeals Board consists of the Appeals Board chair and two additional EMU employees (one faculty member and one staff member) who have received training related to Title IX and EMU’s RVSM Policy and its procedures. The Title IX Coordinator and the Title IX Investigator will also attend the Appeals Board meeting in order to answer questions and provide clarifications.
The Appeals Board chair will prepare a letter reflecting the Appeals Board’s decision of the appeal and the rationale for the result. The Title IX Coordinator will simultaneously provide the Complainant and the Respondent a copy of the letter of Appeals Board determination. The decision of the Appeals Board is final.
SECTION A.8: CONFLICTS OF INTEREST
At any time during the reporting, investigation, review, or appeals process, the Complainant, Respondent, witness(es), Title IX Coordinator, Deputy Title IX Coordinator(s), Title IX Investigator, Review Panel members, or Appeals Board members may raise conflict of interest or bias concerns.
In cases where the Complainant, Respondent, and/or witness(es) are related to or in close relationship with faculty, staff, or other employees of the University, or in cases where there is reason to believe that the investigation may not be impartial if completed internally, an outside investigator will be retained. Conflicts of interest will be evaluated by the Title IX Coordinator or designee. It is a requirement under this policy that any individual designated by the University as a Title IX Coordinator, Deputy Title IX Coordinator, investigator, Review Panel member, Appeals Board member, any other decision-makers, or any other person investigating, reviewing, or facilitating an Adaptive Resolution of a Formal Complaint not have a conflict of interest or bias for or against complainants or respondents generally, or the parties specific to a Formal Complaint.
SECTION A.9: TRAINING
The University will provide and require the Title IX Coordinator, Deputy Title IX Coordinator, HR Director, investigators, Review Panel members, Appeal Board members, any other decision-makers, and any other person investigating, reviewing, or facilitating an Adaptive Resolution of a Formal Complaint have had relevant training, to include training on the following, as applicable to their role in the process:
The definitions (Section 2) related to this policy, including the definition of sexual harassment;
The scope (Section 3) of this policy and the scope of EMU’s education program and activities;
How to conduct an investigation and grievance process including hearings, appeals, and Adaptive Resolution processes;
How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias;
Any technology to be used for the Review-Board and Appeals-Board proceedings;
On issues of relevance, questions, and evidence, including when questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant; and
Issues of relevance to create an investigative report that fairly summarizes relevant evidence.
Any materials used for training purposes must not rely on sex stereotypes and must promote impartial investigations and adjudications of Formal Complaints.