E.3 Sexual Misconduct

3.01

General Information

In cases of sexual misconduct, it is important to preserve relevant evidence as failure to do so could compromise any subsequent investigation, jeopardize the ability to punish the perpetrator and/or complicate the ability to obtain an order of protection. Though the decision of whether and when to report is up to the individual who experienced the sexual misconduct, delayed reporting may make it more difficult to find and convict/discipline the perpetrator. Thus, an individual who experienced sexual misconduct is encouraged to consider filing a report with the police; filing a report does not obligate the victim to press charges or pursue legal action. In order to preserve evidence, a victim should strongly consider obtaining an appropriate medical examination as soon as possible. Although the university does not have the staff or facilities to do so, the emergency rooms at Mercy Hospital (2525 S. Michigan Avenue / (312) 567-2000) and University of Chicago Hospital (5841 S. Maryland Avenue / (773) 702-1000) do, including conducting a forensic examination. Such an examination often serves a valuable evidentiary purpose. Completion of a forensic examination does not require one to file a police report.

If desired, one who has experienced sexual misconduct may seek an order of protection (750 ILCS 60/214) or no contact order (740 ILCS 22/101.1 et seq.) from an Illinois court. The decision to grant such an order in any particular instance is at the discretion of the court. If such an order is issued, the university will honor it as and to the extent required by law.  Additional information on orders of protection and the process for obtaining such an order is available on the website of the Cook County Clerk of the Circuit Court at http://www.cookcountyclerkofcourt.org/?section=SERVRESPage&SERVRESPage=orderprot.

3.02

Reporting

Any employee who believes he/she has experienced sexual misconduct should report the incident to his/her supervisor, Human Resources (10 West 35^th Street, 9^th Floor / 7-3318) , the Title IX Coordinator (10 West 35^th Street, 2^nd Floor / 7-5725) or Public Safety (3300 South Michigan Avenue / 8-6300) and, if necessary, seek medical assistance.  The decision to inform law enforcement authorities rests with the individual, though the university can provide assistance to facilitate such reporting.  Once reported, an employee who believes he/she has experienced sexual misconduct (the “Complainant”) will receive information about resources and options available to him/her.  The university will designate, given the particular facts and circumstances, an appropriate and trained person to investigate (the “Investigator”) the report. The report will be investigated promptly, thoroughly and discretely with every reasonable effort made to maintain confidentiality to the extent possible.  However, when the university receives such a report, it has an independent obligation to investigate the same and to respond in a way that limits the effects of the sexual misconduct and prevents its reoccurrence, even if the individual who experienced the sexual misconduct has elected not to pursue it or has declined to cooperate.

3.03

Investigatory Process

In connection with any such investigation, the Complainant and the person(s) accused of committing the sexual misconduct (the “Respondent”) will have the opportunity to present evidence and witnesses to the Investigator, and the Investigator may meet with other persons as he/she deems appropriate to complete the investigation.  Generally, the Investigator will meet with the each party and any witnesses separately, and the Investigator may meet again with either party or any witness as circumstances warrant.  Each party also is permitted to have one support person/adviser present during investigation meetings. (A union representative my serve as an adviser, where applicable.)  In order to maintain the integrity, civility and efficiency of the process, this support person/adviser is limited to advising the staff person and may not participate in any meetings.  This limitation on participation includes, but is not limited to presenting evidence, asking questions and making statements during the investigation meetings.  Advisers who do not abide by these guidelines may be excluded from the process.  The investigation meetings will not be electronically recorded by the University and may not be recorded by any participant.  The parties may submit addition materials or information to the Investigator within five days following their respective interviews.  All parties and witnesses are expected to cooperate and provide complete and truthful information throughout the investigation process.

If the Investigator determines based on the preponderance of the evidence, meaning the facts and circumstances and reasonable inferences drawn therefrom indicate that it is more likely than not the reported, then the Respondent will be subject to discipline up to and including termination. The Complainant and Respondent will be notified at the same time of the results of the investigation.  In situations involving sexual misconduct, the university will inform the Complainant of all discipline imposed on the Respondent. Human Resources and the Respondent’s manager(s) will review the findings of the investigation and determine any corrective action.

3.04

Appeals

The Complainant or the Respondent may appeal the Investigators findings and any sanctions imposed directly to the Provost if the Respondent has a faculty appointment and to Vice President of Finance and Administration if the Respondent does not have a faculty appointment.  Any appeal must be filed in writing within five days of the date of written notification of the findings of the investigation or if applicable, the imposition of disciplinary sanctions.  An appeal may be made only for one of the following reasons:

1. Appropriate procedures were not followed.
2. The sanction imposed was inappropriate for the offense.
3. New evidence that was not available at the time of the original decision, due to no fault of the complainant or respondent, has become available.

The Provost or Vice President for Finance and Administration, as the case may be, may make one of the following determinations:

1. Uphold the decision and sanction.
2. Reverse the decision and sanction.
3. Uphold the decision and modify the sanction or return the matter to Human Resources and the Respondent’s manager(s) to reconsider the sanction.

3.05

Accomodations; Non-retaliation

Interim protective measures and accommodations are reasonable measures the University can put in place to provide immediate support and added protection to an individual who reports having experienced sexual misconduct, at no cost to that individual.  These measures can be temporary in duration pending the results of an investigation, but can become permanent. Interim protective measures and accommodations include, but are not limited to:

1. A no-contact directive;
2. Work space relocation;
3. Adjustment of employment schedules;
4. Time off from work or a leave of absence;
5. Transportation arrangements; and/or
6. Safety planning.

Interim protective measures and accommodations can be made available regardless of whether

an individual chooses to report an incident to University public safety or local law enforcement or pursue a complaint with the University.  Human Resources, in consultation with the Title IX Coordinator, will determine whether interim protective measures or accommodations are reasonable and should be implemented, and, if so, will work to ensure that interim protective measures or accommodations are implemented as soon as possible. The University will keep confidential any accommodations or protective measures provided, to the extent that maintaining such confidentiality would not impair the ability of the institution to provide the protective measures or accommodations.

Retaliation of any kind, direct or indirect, by anyone against an individual who makes a report of sexual misconduct or provides information pursuant to an investigation of sexual misconduct is also a violation of university policy and will not be tolerated.

3.06

Definitions

Sexual misconduct includes: sexual assault; dating violence; domestic violence, sexual exploitation and stalking. The definition of each such offense is as follows:

1. Sexual Assault
   Is defined as sexual intercourse (anal, oral, or vaginal), including, but not limited to, physical sexual violence, such as sexual assault or sexual battery, or sexual touching (including disrobing or exposure), including, but not limited to, sexual battery or sexual coercion, however slight, with any object, by a man or woman upon a man or a woman, without effective consent.
    
2. Dating Violence
   Is defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, where the existence of such a relationship is determined based upon a consideration of the length of the relationship, the type of relationship and the frequency of interaction between the persons involved in the relationship.
    
3. Domestic Violence
   Includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the State of Illinois, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the State of Illinois.
    
4. Sexual Exploitation
   Is defined as taking non-consensual or abusive sexual advantage of another for one’s own benefit or to the benefit of another other than the person being exploited and that does not otherwise meet the definition of sexual misconduct, such as, but not limited to, prostituting another, non-consensual video or audio taping of sexual activity, engaging in voyeurism, invading another’s sexual privacy, and exposing one’s genitals or inducing another to expose his or her genitals in non-consensual circumstances.
    
5. Stalking
   Is defined as 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 to suffer substantial emotional distress.

For purposes of the foregoing relevant offenses, effective consent is informed, freely and actively given, mutually understandable words or actions which indicate a positive agreement to participate in mutually agreed upon sexual activity. Consent must be clear and unambiguous, and it should not be presumed in the absence of such an agreement. The absence of “no” should not be understood to per se mean there is consent. Consent is not effective if it results from the use of force, threats, intimidation, or coercion. In addition, to have sex with someone who you know to be, or should know to be incapable of making a rational, reasonable decision about a sexual situation is a violation of this policy (e.g. an intoxicated person or someone with a mental or emotional impairment or someone who is unconscious or asleep or otherwise incapable of making such decisions).