Sexual Misconduct: Difference between revisions

4.3.1. Factors that will be considered in determining whether to disclose a report of sexual misconduct, a complaint, or the identity of the Complainant to a Respondent include: the seriousness of the alleged conduct; the Complainant's age; whether there have been other complaints about the same individual; and the Respondent’s rights to receive information about the allegations.<br />

4.4.1.3. to the extent practicable, provide resources and internally manage the Complainant's situation, as the University would if the Complainant did not request anonymity; and<br />

4.4.1.4. ask the Complainant to acknowledge and sign a document confirming that s/he has requested anonymity and that may mean that the University is unable to take disciplinary action against the Respondent.<br />

'''Investigation by University'''<br />

4.5. The University will investigate and act upon information that is provided to it about allegations of sexual misconduct.<br />

4.6. The University is committed to the following when investigating sexual misconduct complaints:<br />

4.6.1 Assigning investigators who receive annual training on the issues related to domestic violence, dating violence, sexual assault, sexual harassment, and stalking, and how to conduct an investigation that protects the safety of persons involved;<br />

4.6.2. Basing findings on the greater weight of the evidence standard;<br />

4.6.3. Treating all parties fairly and equally;<br />

4.6.4. Notifying all parties that the investigation will be impartial, prompt and equitable; and<br />

4.6.5. Providing all parties an opportunity to be heard.<br />

'''University Disciplinary Procedures'''

4.7 Investigations of allegations against students will be handled using the Response to Allegations of Student Sexual Misconduct disciplinary procedures.<br />

4.8 Investigations of allegations against employees will be handled using the Response to Allegations of Employee Sexual Misconduct disciplinary procedures.<br />

4.9 University internal investigations and any disciplinary or remedial actions are independent of any civil, criminal or external administrative investigation. The University may pursue an investigation, take appropriate remedial action and/or impose disciplinary sanctions against a member of the university community at the same time the actor is facing criminal charges for the same incident, even if the criminal prosecution is pending, has been dismissed, or the charges have been reduced.<br />

==Possible Sanctions After Sexual Misconduct Finding==  

Institutional sanctions that may be imposed against students for sexual misconduct range from warning to expulsion. Sanctions against students may be imposed by the Student Affairs Officer, Conduct Officer, or Conduct Board. Institutional sanctions against employees range from warning to termination. Institutional sanctions against employees will be recommended by the Investigator to the person or persons authorized to impose employee sanctions.  Institutional sanctions against third parties range from loss of privileges to trespass exclusion orders.  Notice of the outcome of a sexual misconduct complaint must be provided to both complainant and respondent.

a. “Actor” means a person accused of sexual misconduct.<br />

b. “Advisor” means any person, including legal counsel, who assists the Respondent, Complainant or Investigator during a Conduct proceeding.<br />

c. “Bodily injury” shall mean physical pain, illness, or any impairment of physical condition.<br />

d. “Campus security authority” (CSA) is a University official charged with the duty to report incidents of sexual misconduct to the person in charge of Clery Act reporting. All officers of a university police department or a campus security department are campus security authorities, but there are other CSAs outside of those offices. The Office of the President and  Chancellor shall prepare and publicize a list of designated campus security authorities.<br />

e. “Complainant” means any individual who comes forward to complain of sexual misconduct against or by a member of the University community or a third party.<br />

f. “Confidentiality” means that the University will not disclose the names of individuals involved in sexual misconduct cases to others except on a need to know basis or as required by law.  The University will instruct employees and students about the requirement not to disclose confidential information. Confidentiality is not the same as anonymity, where an individual is not named or personally identified.<br />

g. “Consent” means agreement, approval, or permission as to some act or purpose, given voluntarily by a competent person. Nebraska law states “without consent” means:<br />

:(1) (i) The person was compelled to submit due to the use of force or threat of force or coercion, or (ii) the person expressed a lack of consent through words, or (iii) the person expressed a lack of consent through conduct, or (iv) the consent, if any was actually given, was the result of the actor's deception as to the identity of the actor or the nature or purpose of the act on the part of the actor;<br />

:(2) The person need only resist, either verbally or physically, so as to make the person's refusal to consent genuine and real and so as to reasonably make known to the actor the person's refusal to consent; and<br />

:(3) A person need not resist verbally or physically where it would be useless or futile to do so. <br />

:(4) In the above text, the word “person” means the individual against whom a wrongful act was allegedly committed, and the word “actor” is the individual alleged to have committed a wrongful act. When the actor knew or should have known that a person was mentally or physically incapable of resisting or understanding the nature of his or her conduct, there is no consent.  A person may be incapacitated due to intoxication, mental illness or deficiency or by physical illness or disability to the extent that personal decision-making is impossible. Surprise may also prevent resistance, as where a person is grabbed from behind. <br />

:There are some persons who the law presumes are incapable of consenting to sexual contact or penetration by an actor by reason of their age.  Under Nebraska law an actor nineteen years of age or older may not subject a person under the age of sixteen years of age to sexual penetration, or a person under fifteen years of age to sexual contact. <br />

h. “Dating violence” is included within the definition of “domestic assault.”<br />

i. “Domestic assault” has three definitions which depend on the harm threatened or inflicted by an actor on a person. An actor commits domestic assault if he or she (i) intentionally and knowingly causes bodily injury to his or her intimate partner; (ii) threatens an intimate partner with imminent bodily injury; or (iii) threatens an intimate partner in a menacing manner. An actor commits a more severe form of domestic assault if he or she intentionally and knowingly causes bodily injury to his or her intimate partner with a dangerous instrument. An actor commits the worst form of domestic assault if he or she intentionally and knowingly causes serious bodily injury to his or her intimate partner.<br />

j. “Domestic violence” is included with the definition of “domestic assault.” <br />

k. “Force or threat of force” means (a) the use of physical force which overcomes the person’s resistance or (b) the threat of physical force, express or implied, against the person or a third party that places the person in fear of death or in fear of serious personal injury to the person of a third party where the person reasonably believes that the actor has the present or future ability to execute the threat.<br />

l. “Intimate partner” means a spouse; a former spouse; persons who have a child in common whether or not they have been married or lived together at any time; and persons who are or were involved in a dating relationship. For purposes of this definition, dating relationship means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context. <br />

m. “Intimate parts” means the genital area, groin, inner thighs, buttocks or breasts.<br />

n. The term “Investigator” means a University official authorized to investigate and recommend remediation of complaints of sexual misconduct.