Interim Grievance Process for Formal Complaints of Title IX Sexual Harassment

Application and Effective Date: September 10, 2021

I. Purpose and Application

This procedure describes the exclusive process that will be followed by Arizona State University to resolve formal complaints of Title IX sexual harassment.
Title IX sexual harassment is conduct, based on sex, that constitutes one or more of the following:
1. Unwelcome conduct, occurring in the United States, that a reasonable person would find so severe, pervasive, and objectively offensive that it effectively denies a person equal access to ASU’s education program or activity.
2. An employee conditioning the provision of an aid, benefit, or service of ASU on an individual’s participation in unwelcome sexual conduct.
3. Any of the following specific acts of sexual harassment taking place within the United States and within an ASU education program or activity: sexual assault, dating violence, domestic violence, and stalking.
If the facts or occurrences forming the basis of a formal complaint of Title IX sexual harassment would also constitute a violation of other university policies such as the Student Code of Conduct, ACD 401, the policy prohibiting other kinds of harassment, discrimination, and retaliation, or university policies governing employee conduct, those potential policy violations will be addressed outside of this grievance process through the applicable procedures. When appropriate, this grievance process may proceed concurrently with any other university process addressing other aspects of the facts or occurrences giving rise to a formal complaint of Title IX sexual harassment.
The university may amend this document as necessary from time to time. Amendments may apply to grievances ongoing at the time the amendment is made, unless the effect of the amendment is to reduce the rights of either complainants or respondents, in which case the version of this process in effect at the time the formal complaint was made will be followed.

II. Availability of Supportive Measures

The filing of a formal complaint of Title IX sexual harassment is not required to obtain supportive measures from the university.
Supportive measures are non-disciplinary, non-punitive individualized services, offered as appropriate and reasonably available, to restore or preserve equal access to ASU’s educational program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the educational environment or to deter sexual harassment.
Supportive measures include providing individuals with copies of university policies, procedures, and processes for handling allegations of Title IX discrimination, including Title IX sexual harassment.
Supportive measures may include counseling, extension of deadlines or other course-related adjustments, modification of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of campus areas, and other similar measures. The wishes of the party requesting supportive measures will be considered.
Supportive measures may also include administrative and educational actions that do not unreasonably burden another party. Administrative and educational actions are not disciplinary.
Supportive measures may be provided to complainants and respondents.
ASU will maintain as confidential any supportive measures provided to either party, to the extent that doing so does not impair the ability of the university to provide the supportive measures.

III. Limitation on Confidentiality

Information gathered within this process will be shared only with those who have a need to know the information, including the other party, as permitted by FERPA or as required by law, or to carry out this grievance process, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Otherwise, outside of the investigation process, the identity of any individual who has filed a complaint of Title IX sexual harassment, including any individual who has made a report or filed a formal complaint of Title IX sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, shall remain confidential.

IV. Grievance Process for Formal Complaints of Title IX Sexual Harassment

This grievance process treats complainants and respondents equitably by providing remedies to a complainant where a determination of responsibility for Title IX sexual harassment has been made against a respondent, and by following the process outlined here before the imposition of any disciplinary sanctions or other actions that are not supportive measures against a respondent.

A. Filing a Formal Complaint

To file a formal complaint of Title IX sexual harassment, a complainant must submit a document that contains:
1. The complainant’s digital or physical signature;
2. An allegation of Title IX sexual harassment against a respondent;
3. A statement of what action is being requested; and
4. A statement that complainant is participating in or attempting to participate in an ASU education program or activity.
A formal complaint must be filed with the Title IX Coordinator, not a designee, in person, by mail, or by electronic mail. Because the formal complaint must be in writing and signed by the complainant, it is strongly encouraged that the formal complaint be filed electronically at TitleIXCoordinator@asu.edu.
If it is not clear from the document submitted that complainant wishes to file a formal complaint under this Title IX process, the Title IX Coordinator will contact complainant to verify the intention to engage the Title IX process.
The Title IX Coordinator will reach out to the complainant to engage in an interactive process to discuss available supportive measures, which are available with or without the filing of a formal complaint, including the complainant’s wishes with respect to supportive measures, and explain the process for filing a formal complaint.
A formal complaint should be made as soon as possible after the alleged violation. Prompt reporting enables the university to investigate the facts, determine the issues and provide an appropriate remedy or sanction. The ability to investigate complaints could be impacted (e.g. availability of witnesses, preservation of evidence) if a complaint is not filed promptly.
The Title IX Coordinator, not a designee, can also file a formal complaint. When this happens, the complainant is the individual who is alleged to be the victim of conduct that could constitute a violation of this policy.
Formal complaints of Title IX sexual harassment may be consolidated as to allegations of Title IX sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of Title IX sexual harassment arise out of the same facts or circumstances. Where a grievance process involves more than one complainant or more than one respondent, references in this process to the singular “party,” “complainant,” or “respondent” include the plural, as applicable.
Intake and review of potential formal complaints will take no more than ten (10) days.

B. Emergency Removal

An individualized assessment of safety factors will be conducted to determine whether an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Title IX sexual harassment justifies removal from an educational program or activity. Both complainant and respondent will receive notice of the Emergency Removal which shall include the terms of the removal and notice of the right to challenge the decision immediately following the removal.
A challenge to an emergency removal must occur no later than five (5) days following the effective date of the removal.
Each party will be notified of any challenge and given two (2) day to submit any written response to the challenge.
The university will determine whether the removal should remain in place or be lifted.
If upheld, the emergency removal will remain in effect until either a final determination regarding responsibility has been made or the reasons for imposing the emergency removal no longer exist.
A Title IX Coordinator, Investigator, or Decision Maker may have a role in the emergency removal process as long as such a role does not result in a conflict of interest or bias with respect to the grievance process.
The Emergency Removal decision and appeal will take no more than twenty (20) days.

C. Administrative Leave

An employee/appointee respondent may be placed on administrative leave during a grievance process.

D. Investigative Process for Formal Complaints of Title IX Sexual Harassment

Notice of Allegations.
1. Upon confirmation of receipt of a formal complaint, the investigator shall issue a notice of allegations. The notice shall be sent to both complainant and respondent and shall contain a:
  1. Copy of ACD 401: Prohibition Against Discrimination, Harassment, and Retaliation (referred to as ACD 401) as well as P20a: Title IX Formal Complaint Grievance Process (referred to as P20a);
  2. Notice of allegations, including references to ACD 401 and P20a, and the alleged violations;
  3. Short statement describing the alleged Title IX sexual harassment with sufficient details including the identities of the parties involved in the incident, if known, the conduct allegedly constituting Title IX sexual harassment, and the date and location of the alleged incident, if known;
  4. Statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
  5. Statement that the standard of review is one of preponderance of evidence and that the university has the burden of proof;
  6. Statement that each party may have an advisor of their choice, who may be, but is not required to be, an attorney who may inspect and review evidence under this process;
  7. Statement informing the parties that employees and students are required to attend any meeting scheduled under this policy. While attendance is required, students and employees are not required to participate in meetings under this process. Individuals are not required to attend a live hearing. If an individual chooses to participate in the grievance process, they must do so by providing truthful information. Providing false or misleading information in this process may result in disciplinary action under other university policies;
  8. Statement that there is no restriction on the ability of either party to discuss the allegations under investigation or their own knowledge of facts to gather and present relevant evidence throughout the grievance process;
  9. Statement that all evidence directly related to the formal complaint will be shared with both parties;
  10. Statement that if, in the course of an investigation additional allegations about the complainant or respondent, are determined, that were not included in the notice already provided, an additional notice of allegations to the parties whose identities are known will be provided.
2. The notice of allegations shall be sent to both parties at least three (3) days prior to any scheduled interview in order to allow complainant and respondent sufficient time to prepare a response and attend the meeting.
Opportunity to Present Evidence to Investigator
1. Each individual whose participation is invited or expected will receive written notice of the date, time, location, participants, and purpose of any meeting, investigative interviews, or hearing with sufficient time for the individual to prepare to participate;
2. Each party shall be given an equal opportunity to identify witnesses, including fact and expert witnesses and identify or provide other inculpatory and exculpatory evidence to the investigator;
3. Each party may have an advisor of choice present at any meeting or investigative interviews, but that advisor may not participate in grievance meetings or interviews.
Ability to Review Evidence
1. The investigator will allow both parties equal opportunity to inspect and review any evidence obtained as part of the formal complaint investigation that is directly related to the allegations raised, including the evidence upon which the investigator does not intend to rely on, (i.e. inculpatory and exculpatory evidence) whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.
2. Prior to completion of the investigative report, the investigator will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy.
3. In order to maintain the confidentiality of the process including the identity of the parties and witnesses, each party, and their advisor, must sign a non-disclosure agreement prior to being provided access to the evidence for review.
4. The parties will have ten (10) days to submit a written response, which the investigator will consider prior to completion of the investigative report.
Investigative Report
1. The investigator shall create an investigative report that fairly summarizes the relevant evidence and includes a description of the procedural steps taken from the receipt of the formal complaint through the completion of the investigative report.
  1. The investigator will objectively evaluate all relevant evidence (inculpatory and exculpatory).
  2. The investigator may make credibility determinations that are not be based on a person’s status as a complainant, respondent, or witness.
  3. The investigator will not require, allow, rely upon, or otherwise use 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.
  4. The investigator 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 that party gives voluntary, written consent to do so for a grievance process. A party who sends their own medical records to an investigator is deemed to have given written consent for both use and disclosure.
2. The investigator shall send to each party and the party’s advisor the investigative report provided that they have signed a non-disclosure agreement. A party may file a response to the investigative report within five (5) days of receiving the investigative report. The investigator will make any necessary revisions and finalize the investigative report. All party responses to the initial investigative report will be included in the investigation file.
3. Investigations into formal complaints of Title IX sexual harassment will be completed within ninety (90) days, unless otherwise communicated to the parties.
4. The investigator will send a copy of the final investigative report to the Hearing Officer who will conduct the live hearing.
Live Hearing
1. A Hearing Officer shall preside over the live hearing.
2. The Hearing Officer shall prepare and send a written notice of the hearing to the parties no less than twenty (20) days before the date set for the hearing. The notice will be directed to the complainant and respondent’s ASU e-mail address and the email address of record for any party advisor, and will include a:
  1. Statement of the date, time, location, and nature of the hearing, including a statement that Title IX regulations and university process constitute the authority to hold such a hearing;
  2. Copy of the investigative report; including references to ACD 401 and P20a and the alleged violations with a short statement describing the misconduct;
  3. Notice of the right to be assisted by an advisor or represented by an attorney which explains that exercise of this right is at the option of the party and at the party’s sole expense;
  4. Notice that a university representative will attend the hearing and present witnesses and evidence including the investigation report and relevant evidence;
  5. Copy of or link to ACD 401 and P20a;
  6. Notice if a panel is convened, including a list of the names of all panel members;
  7. Notice if the Decision Maker is not the same person as the Hearing Officer, including the name of the Decision Maker and the scope of authority that has been delegated by the Decision Maker to the Hearing Officer.
  8. Statement of the length of time set for the hearing and the time limitation for the presentation of evidence.
  9. Statement that each party shall be given an equal opportunity to present witnesses, including fact and expert witnesses and identify or provide inculpatory and exculpatory evidence.
  10. Notice of the applicable range of discipline that may be issued by a Decision Maker.
  11. Notice of any hearing specific procedural rules, including rules of decorum, that will be applicable to the proceeding, that do not contradict this process.
3. Parties cannot waive the right to a live hearing.
4. The investigator will have all evidence available at the live hearing for the parties’ inspection, review, use and an opportunity to refer to such evidence during the hearing, including for purposes of cross-examination, provided that they have signed a non-disclosure agreement.
5. Live hearings will be conducted with all parties physically present in the same geographic location or virtually, with technology enabling participants simultaneously to see and hear each other.
  1. At the request of either party, the live hearing will occur with the parties located in separate rooms with technology enabling the Hearing Officer and parties to simultaneously see and hear the party or the witness answering questions.
  2. Advisors are expected to adjust their schedules to allow them to attend the live hearing. Technology is available should an advisor need to appear virtually.
6. Exclusion of Evidence:
  1. 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 of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
  2. The Hearing Officer 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 that party gives voluntary, written consent to do so for a grievance process. A party who sends their own medical records to the investigator or Hearing Officer or presents such evidence at the live hearing or as part of this process is deemed to have given written consent for both use and disclosure.
  3. The Hearing Officer may admit statements made by witnesses, including the parties, who do not submit to cross-examination at the live hearing, subject to objections and arguments about the reliability, relevance, and weight of those statements. The Hearing Officer is responsible for determining what weight, if any, to give such statements.
7. Cross Examination:
  1. The Hearing Officer must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including questions challenging credibility.
  2. If a party does not have an advisor present at the live hearing, or if the party would prefer to use the university provided Hearing Attendant for cross examination, the Hearing Attendant will be assigned without fee or charge to that party. The Hearing Attendant is present for the sole purpose to conduct cross-examination on behalf of that party. The party is responsible for providing the Hearing Attendant with questions to ask a party or witness. If a party does not appear or does appear but does not provide cross examination questions, the Hearing Attendant will only ask the witness specific pre-designated questions.
  3. Cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice or by a university provided Hearing Attendant but never by a party personally.
  4. Only relevant and follow-up questions, including questions challenging credibility, may be asked during cross-examination of a party or witness.
  5. Pause Provision. Before a complainant, respondent, or witness answers a cross-examination or other question, the Hearing Officer must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
  6. The Hearing Officer cannot draw an inference about the factual determinations based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
8. The live hearing will be audio or audiovisual recorded and available to the parties for inspection and review.
Factual Determination. If the Hearing Officer is not the Decision Maker, the Hearing Officer will issue a written recommendation regarding the factual determinations, consistent with any delegated authority, to the Decision Maker within five (5) days.
The Decision Maker may request that additional evidence be gathered or evaluated, which may require that the live hearing re-convene. The Decision Maker will issue this request within ten (10) days of receiving the written recommendation from the Hearing Officer or last day of the living hearing, whichever is later. This request will be issued simultaneously to the parties.
Once the Decision Maker has determined that all relevant evidence has been gathered and evaluated, the Decision Maker shall provide to both parties simultaneously notice of any further university sanctioning process required by university policy and the expected timeframe for that process.
At the conclusion of any additional sanctioning process, if needed, the Decision Maker shall provide to both parties simultaneously the determination regarding responsibility that will include:
1. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
2. A statement of the standard of evidence being used (preponderance of evidence) and that the burden of proof and of gathering and presenting sufficient evidence to reach a determination regarding responsibility rests with ASU.
3. Identification of the allegations potentially constituting Title IX sexual harassment;
4. Findings of fact;
5. Conclusions regarding the application of the alleged violations to the facts;
6. A statement of, and rationale for a determination of responsibility, including a rationale for disciplinary sanctions;
7. A statement whether remedies designed to restore or preserve equal access to ASU’s education program or activity will be provided to the complainant; and
8. A statement that the parties are entitled to appeal the determination regarding responsibility and a notice of appeal rights which shall include:
  1. A statement of the permissible bases for the complainant and respondent to appeal;
  2. A statement that each party may file an appeal or a statement in support of, or challenging, the outcome within fifteen (15) days after the decision is issued. Any filed appeal or statement will be shared with all parties; and
  3. A statement that the determination regarding responsibility becomes final on the date which an appeal will no longer be considered timely if no appeal is filed.
  4. When appropriate, notice to the parties of the right to seek judicial review pursuant to A.R.S. section 12-904.
9. A determination regarding responsibility of a formal complaint of Title IX sexual harassment does not preclude or affect action under any other university policy.

E. Dismissal of Title IX Formal Complaint

At all times during the grievance process, the matter is evaluated to ensure that the allegations fall within this process.
A formal complaint may be dismissed if:
1. a 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 or employed by the university; or
3. specific circumstances prevent ASU from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
A formal complaint must be dismissed if
1. the conduct alleged in the formal complaint would not constitute Title IX sexual harassment as defined in this policy, even if proved;
2. the alleged conduct did not occur in an ASU education program or activity; or
3. the alleged conduct did not occur against a person in the United States.
A Dismissal Decision Maker will notify the parties in writing of a dismissal determination which will include:
1. Reasons for the determination;
2. A statement that each party may file an appeal or a statement in support of, or challenging, the outcome within fifteen (15) days after the decision is issued;
3. Notice that any filed appeal or statement will be shared with all parties; and
4. A statement that the dismissal determination becomes final on the date which an appeal will no longer be considered timely if no appeal is filed.
A dismissal determination of a formal complaint of Title IX sexual harassment does not preclude or affect action under any other university policy.

F. Appeal of Determination Regarding Responsibility and Dismissal Determination

An appeal or a statement in support of, or challenging, the outcome, must be in writing and state both whether there is a request for a rehearing/review of the evidence and the bases for which the appeal is being requested.
The Appeal Decision Maker shall send a copy of any filed appeal or statement to all parties within two (2) days of receiving the appeal or statement.
An appeal may be filed on the following bases:
1. procedural irregularity that affected the outcome of the matter;
2. new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal determination was made, that could affect the outcome of the matter;
3. excessive severity of the sanction;
4. the decision is not reasonably justified by the evidence or is contrary to law; or
5. the Title IX Coordinator, investigator(s), Hearing Officer or Decision-Maker(s) 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 Appeal Decision Maker will issue a written decision, including the rationale for the decision, simultaneously to both parties, describing the result of the appeal and the rationale for the result within fifteen (15) days from the date no further appeal can be filed. The Appeal Decision Maker can uphold or modify the previous decision or grant a rehearing. The decision by the Appeal Decision Maker is the final decision.
The appeal process shall take no more than thirty (30) days unless a rehearing is granted.

G. Other Grievance Process Provisions

1. Selection of Hearing Officer and Decision Makers
  1. The selection will be made, as appropriate, by either the University Provost; the Executive Vice President, Treasurer and Chief Financial Officer; the Senior Vice President for Educational Outreach and Student Services; the Executive Vice President, ASU Knowledge Enterprise; the Chief of Staff, Office of the President; or their designee.
  2. Designation of duties can be in whole or part.
2. Training
  1. Title IX Coordinators/Deputy Title IX Coordinators, investigators and all Decision Makers, will receive training on this policy, how to conduct an investigation and grievance process including hearings, appeals and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
  2. Investigators will receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.
  3. Hearing Officers and Decision Makers will receive training on any technology to be used at a live hearing and on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant.
  4. Any materials used to train Title IX Coordinators, investigators, Hearing Officers, and Decision Makers will not rely on sex stereotypes and will promote impartial investigations and adjudications of formal complaints of Title IX sexual harassment.
  5. Current training materials will be posted on ASU’s website and training materials will be kept for seven years.
3. Conflict of Interest and Bias
  1. Conflict of interest and bias will not be presumed from prior education, employment, or personal affiliation of an individual. Instead conflict of interest or bias will be found only when it can be objectively determined.
  2. No complainant or respondent should be ignored or met with judgment or disbelief. Such conduct may be evidence of bias.
  3. The Title IX Coordinator/Deputy Title IX Coordinators, investigators, and Decision Makers, shall not have a conflict of interest or bias for or against complainants or respondents generally or specifically with regard to an individual complainant or respondent.
  4. The Title IX regulation addresses dual roles. When working on a particular Title IX Matter the following applies:
    1. A Title IX Coordinator/Deputy may also serve as an investigator;
    2. The Hearing Officer may also be the Decision Maker;
    3. The individual serving as the Dismissal or Determination Decision Maker of a formal complaint of Title IX sexual harassment cannot serve as the Appeal Decision Maker;
    4. Aside from provision (B)(6) of this process, there is no restriction on who serves as the Emergency Removal Decision Maker; and
    5. During the same ASU matter, no individual can serve in more than one of the following roles: Hearing Officer, Decision Maker, Appeal Decision Maker, investigator, or Title IX Coordinator/Deputy.
    6. Other dual roles are not a violation of this process.
  5. See also ACD 204-08: Conflict of Interest.
4. Reasonably Prompt Time Frames
  1. Because the entire Title IX grievance process includes the potential for emergency removals, investigation, multiple live hearings, sanctioning decisions, and the right to an appeal, the ultimate decision regarding responsibility may take up to 180 days to be issued. In cases where the respondent is an employee who has hearing rights pursuant to another policy, such as ABOR 6-101, ABOR 6-201, ABOR 6-302, or SPP 1101, up to an additional 180 days may be added to complete the requirements of that policy.
  2. All parties will receive written notice and reasons of any temporary delay or a limited extension of time frames for good cause. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
5. Record Keeping. ASU will maintain for a period of seven years records of:
  1. each investigation into a formal complaint of Title IX Sexual Harassment including any determination regarding responsibility and any audio/visual recordings or transcripts of the hearings, any disciplinary sanctions imposed on respondent, and any remedies provided to the complainant designed to restore or preserve equal access to an ASU education program or activity;
  2. Any appeal and the result of such appeal;
  3. All materials used to train Title IX Coordinators, investigators, Hearing Officers and Decision Makers. This information will be placed on ASU’s website.
6. Title IX Coordinator and Deputy Coordinator designation of duties:
  1. The Title IX Coordinator is responsible for the coordination of Title IX at Arizona State University. The Title IX Coordinator may designate duties to Deputy Title IX Coordinators as well as other employees, including those who serve in roles whose main function is to provide support measures to parties.
  2. Contact information for the Title IX Coordinator and Deputy Title IX Coordinators shall be posted on the university website.

Definitions

Complainant
means an individual who is alleged to be the victim of conduct that could constitute sexual harassment, whether or not that person first brought the conduct to the attention of the university

Consent
in the context of sexual activity means informed and freely given words or actions that indicate a willingness to participate in mutually agreed upon sexual activity. Consent may not be inferred from: 1) silence, passivity or lack of resistance, 2) a current or previous dating or sexual relationship, 3) acceptance or provision of gifts, meals, drinks, or other items or 4) previous consent to sexual activity. Consent may be withdrawn during sexual activity. Consent to one form of consensual sexual activity does not imply consent to any other form of sexual activity. Consent may not be obtained through physical force, violence, duress, intimidation, coercion, or an express or implied threat of injury. Consent may never be given by a person who is: incapacitated (by drugs, alcohol or otherwise), unconscious, asleep, or otherwise physically or mentally unable to make informed, rational judgments. The use of alcohol or drugs does not diminish one’s responsibility to obtain consent and does not excuse conduct. Consent cannot be given by someone who, by virtue of age, circumstances, or other factors, is deemed by law to be incapable of giving consent.

Dating violence
means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature, with the victim and where the existence of such a relationship shall be determined based on a consideration of the length of the relationship, the type of relationship and the frequency of interaction between the persons involved in the relationship.

Days
means calendar day. If the last day of a specific time period is during a weekend or university holiday the time period is extended to 5:00 p.m. of the next non-break business day. Any break in the academic calendar is not counted towards calendar days.

Domestic violence
includes any felony or misdemeanor crimes of violence committed:

1. 1. by a current or former spouse or intimate partner of the victim, by a person who is cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic of family violence laws of the jurisdiction receiving grant monies;
  2. by a person with whom the victim shares a child in common or is pregnant by the other party;
  3. by a person residing or having resided in the same household;
  4. where a victim is related to the defendant or the defendant’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law; or
  5. where a victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.

Education program or activity
For purposes of reports and formal complaints of Title IX sexual harassment, “education program or activity” includes locations, events, or circumstances over which ASU exercises substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.

Hearing Officer
The Hearing Officer can be an individual or the Chair of an appointed committee or panel.

Remedies
Remedies are intended to restore or preserve equal access to an ASU education program or activity. Where a formal complaint has been filed, after following the Grievance Process (P20a), a determination regarding responsibility must be made. If a determination of responsibility is made, remedies can be issued and may include possible disciplinary sanctions against respondent as well as supportive measures for complainant.
A determination of responsibility will result in implementation of appropriate remedies, administrative action, educational intervention, and/or discipline issued by the Decision Maker.

Range of Discipline
The discipline that can be issued to a student ranges from removal from an ASU education program or activity to expulsion and degree revocation; and for an employee the range includes a written reprimand to termination.

Respondent
means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

Sexual assault
As defined in the Clery Act, any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.

Stalking
for purposes of a formal complaint of Title IX sexual harassment means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others OR suffer substantial emotional distress.