Title IX and Sexual Misconduct Policy

warneri@rhodes.edu

As used throughout this Policy, references to the “Title IX Coordinator” shall include any Deputy Title IX Coordinator and any other person expressly designated by the Title IX Coordinator to act on their behalf.

II. Definitions

Advisor: Refers to an individual of the party’s choosing who may, but does not have to be, an attorney, and who can provide assistance to the Complainant or the Respondent during any stage of the processes covered by this Policy. Advisors may attend these processes. The College will provide a list of individuals who have received training to serve as advisors and ask questions of a party or witness during a complaint resolution hearing.

Appeals Board: Refers to a group of trained College faculty and staff members that hears and decides appeals of findings and sanctions imposed by the decision-maker(s) for all Respondents except tenured faculty, whose appeal will be heard by the Rhodes Board of Trustees. The Appeals Board will consist of three members (one of whom will be designated as the board’s chairperson), selected from a pool of trained faculty and staff who have no prior involvement in the case and are free of any conflict of interest. This three-member board is authorized to affirm, alter, or reverse the original findings and/or sanctions recommended by the decision-maker(s). Once issued, the Appeals Board’s decision is final.

Complainant: Refers to an individual who is alleged to be the victim of conduct that could constitute sexual harassment (defined below).

Complaint: See Formal Complaint below.

Coercion: Means the use of pressure to compel another individual to initiate or continue activity against their will, including psychological or emotional pressure, physical or emotional threats, intimidation, manipulation, or blackmail. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include, but are not limited to threatening to “out” someone based on sexual orientation, gender identity, or gender expression; threatening to harm oneself if the other party does not engage in the sexual activity; and threatening to expose someone’s prior sexual activity to another person and/or through digital media.

Consent: Means an affirmative, conscious decision by each participant to engage in mutually agreed-upon sexual activity. The presence or absence of consent is determined by evaluating all the relevant facts and circumstances. All five of the following elements are essential in order to have consent. If one or more of the following is absent, there is no consent.

• Consists of Mutually Understandable Communication: Communication regarding consent consists of mutually understandable words and/or actions that indicate an unambiguous willingness to engage in sexual activity. In the absence of clear communication or outward demonstration, there is no consent. Consent may not be inferred from silence, passivity, lack of resistance or lack of active response. An individual who does not physically resist or verbally refuse sexual activity is not necessarily giving consent. Relying solely upon non-verbal communication can lead to an erroneous conclusion as to whether consent was sought or given. Verbal communication is the best way to ensure all individuals are willing and consenting to the sexual activity.

• Informed and Reciprocal: All parties must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting and a willingness to do the same thing, at the same time, in the same way.
• Freely and Actively Given: Consent cannot be obtained through the use of force, coercion (defined above), threats, intimidation or pressuring, or by taking advantage of the incapacitation (defined below) of another individual.
• Not Unlimited: Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to sexual activity with one person constitute consent to activity with any other person. Each participant in a sexual encounter must consent to each form of sexual contact with each participant. Even in the context of a current or previous intimate relationship, each party must consent to each instance of sexual contact each time. The consent must be based on mutually understandable communication that clearly indicates a willingness to engage in sexual activity. The mere fact that there has been prior intimacy or sexual activity does not, by itself, imply consent to future acts.
• Not Indefinite: Consent may be withdrawn by any party at any time. Recognizing the dynamic nature of sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate clearly throughout all stages of sexual activity. Withdrawal of consent can be an expressed “no” or can be based on an outward demonstration that conveys that an individual is hesitant, confused, uncertain or is no longer a mutual participant. Once consent is withdrawn, the sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before continuing further sexual activity.

Dating Violence: A form of sexual harassment 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. The existence of such a relationship is determined based on a consideration of the following factors: (i) the length of the relationship, (ii) the type of relationship, and (iii) the frequency of interaction between the persons involved in the relationship.

Decision-maker(s): Refers to the individual or group of individuals who adjudicates complaints of sexual harassment and, if applicable, determines the appropriate sanction. Where a three- member hearing board is used, the board will be selected by the Title IX Coordinator from the available pool of faculty and staff who are trained to serve as hearing board members. One of the three board members will be designated as the chairperson. In all cases, a decision-maker will have no prior involvement in the case and be free of conflicts of interest or bias towards one party or the other.

Domestic Violence: A form of sexual harassment defined as felony or misdemeanor crimes of violence (including threats or attempts) committed between:

• Individuals who are current or former spouses or intimate partners;
• Persons who share a child in common;
• Persons who currently live together or have formerly lived together as spouses or intimate partners;
• A person similarly situated to a spouse of the victim under the domestic or family violence laws of the school’s jurisdiction, or
• 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 Tennessee.

Formal Complaint: Means a document (hard copy or electronic) filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the College investigate the allegation of sexual harassment. The filing of a formal complaint triggers the College’s complaint resolution process, described in Sections IX and X.

Incapable of Giving Consent (also known as “Incapacitation”): Means the lack of the ability to make rational, reasonable judgments as a result of alcohol consumption, other drug use, sleep, the taking of any so-called “date-rape” drug, unconsciousness, or blackout. An individual unable to make informed judgments is physically helpless. An incapacitated person cannot make rational, reasonable decisions because that person lacks the ability to fully understand the who, what, where, or how of their sexual interaction. Incapacitation is a state beyond drunkenness or intoxication, in which alcohol, drugs, or other factors render one unable to make fully informed judgments or have an awareness of consequences. Evaluating incapacitation also requires an assessment of whether a Respondent knew or should have known of the other individual's incapacitated state. While incapacitation may be caused by drugs or alcohol, it also includes the state of being asleep, during which time a person is unable to provide affirmative consent.

Investigator: Refers to an official(s) designated by the Title IX Coordinator to conduct an investigation of alleged sexual harassment, and who acts as a witness in the event of a complaint resolution hearing. The Investigator will be a trained individual who collects and examines the facts and circumstances of potential violations of this Policy and provides an investigative report to the Title IX Coordinator and the decision-maker(s). The Investigator will be neutral and free of any conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.

Mandatory Reporter: Refers to an individual who is obligated to report any knowledge they may have of sexual harassment. Rhodes College defines all faculty and staff as mandatory reporters except certain “confidential resources” staff. See mandatory reporting policy at https://sites.rhodes.edu/titlenine/reporting/mandatory-reporting.

Medical records: A party’s records that are maintained by a physician, nurse, nurse practitioner, psychiatrist, psychologist, licensed clinical social worker, therapist 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.

Preponderance of Evidence: Refers to the standard by which it is determined at a hearing whether or not a violation of this Policy has occurred, and means that an act of sexual harassment is “more likely than not” to have occurred.

Report: Refers to any communication to the Title IX Coordinator, the Provost or the Chief Human Resources Officer of an allegation that sexual harassment occurred or may have occurred. Rhodes will investigate all reports it receives of sexual harassment. After making a report, an individual may choose to end their involvement in the process or may choose to be involved or not be involved in the College’s investigation and related proceedings. The College strongly encourages all individuals to report incidents of sexual harassment even if the individual does not intend to be further involved.

Reporter: Refers to an individual who makes a report of conduct that could constitute sexual harassment. Reporters include persons who believe they have been the victim of sexual harassment or someone who has observed or has knowledge of conduct that may be sexual harassment.

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

Sex Discrimination: Refers to the unequal treatment of an individual based on their sex in any employment decision, education program or educational activity receiving federal financial assistance. Such programs or activities include, but are not limited to, admission, hiring and recruitment, financial aid, academic programs, student treatment and services, counseling and guidance, discipline, classroom assignment, grading, vocational education, recreation, physical education, athletics, housing and employment. The prohibition on sex discrimination also covers unlawful discrimination based on gender identity, sexual orientation, marital or family status, pregnancy, termination of pregnancy, childbirth or related conditions.

Sexual Assault: A form of sexual harassment defined as an act of sexually-motivated physical contact directed towards another person when the other person does not consent or is incapable of giving consent. The definition of sexual assault under Title IX includes the following:

1. Rape: The penetration, no matter how slight, of the vagina or anus with any body part or object or instrument, or oral penetration by a sex organ of another person, without the consent of the other person or where the other person is incapable of giving consent, including instances where the other person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity. Attempted rape is included. An object or instrument is anything used by the offender other than their genitalia.
2. Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of that person, including instances where the other person is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity.
3. Incest: Non-forcible sexual intercourse between persons who are related to each other within the degrees where marriage is prohibited by law.
4. Statutory Rape: Non-forcible sexual intercourse with a person who is under the statutory age of consent.

Sexual Harassment: Conduct on the basis of sex that satisfied one or more of the following:

1. A Rhodes employee’s conditioning the provision of an aid, benefit or service on an individual’s participation in unwelcome sexual conduct.
2. Unwelcome sexual conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Rhodes’ education programs or activities.
3. Sexual Assault (defined above).
4. Dating Violence (defined above).
5. Domestic Violence (defined above).
6. Stalking (defined below).

Stalking: A form of sexual harassment defined as engaging in a course of conduct directed at a specific person that would cause a reasonable person to (1) fear for the person’s safety or the safety of others; or (2) to suffer substantial emotional distress.

Types of stalking could include, but are not limited to:

1. Following the targeted person;
2. Approaching or confronting that person in a public place or on private property;
3. Persistent and unwelcome attempts to contact the person by phone, electronic communication (including via the internet and cellphones), or regular mail, either anonymously or non-anonymously;
4. Vandalizing the person’s property or leaving unwanted items for the person;
5. Persistently appearing at the person’s classroom, residence, or workplace without that person's permission or other lawful purpose;
6. Cyber-stalking, in which a person follows, observes, monitors, or surveils another person through the use of electronic media such as the Internet, digital media networks, blogs, cell phones, texts or other similar devices; and
7. Using visual or audio recording devices or hidden or remote cameras used without the subject’s consent.

Supporter: An individual who provides emotional support to a party by accompanying them to any hearing, conference or related proceedings. Supporters may not actively participate during complaint resolution hearings and informal resolution conferences.

Supportive measures: Individualized services reasonably available to a Complainant or Respondent that are non-punitive, non-disciplinary, and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment. See Section IX.A. of this Policy for examples of supportive measures.

Title IX Coordinator: Refers to the Rhodes official who oversees the Title IX process at Rhodes, and includes the Deputy Title IX Coordinator(s).

II. Scope of Policy

1. Affected Persons. This Policy applies to all Rhodes students and employees, including faculty, administrators, regular staff employees, temporary employees, and seasonal employees.
2. Jurisdiction. To be covered by this Policy, the conduct or alleged conduct must have occurred either on campus or in a Rhodes controlled program or activity, whether such program or activity is on-campus or off-campus, including remote learning platforms. This Policy also applies to conduct occurring in any building owned or controlled by Rhodes or by a student organization that is officially recognized by Rhodes.
3. Conduct and Persons Covered by this Policy. This Policy is designed to address conduct that meets the definition of sexual harassment reported by (1) a person who is attempting to participate in a Rhodes education program or activity or (2) is currently participating in a Rhodes education program or activity.
4. Conduct and Persons Not Covered by this Policy. The College encourages anyone who has witnessed or experienced an incident of sex discrimination, sexual harassment, or other sexual misconduct to report it regardless of where the incident occurred or who committed it. Even if a report concerns the actions of a person over whom Rhodes does not have jurisdiction, the College may take prompt action to provide for the safety and well-being of any affected person and the broader College community.

Complaints of sex discrimination other than sexual harassment may be made to the Title IX Coordinator, and will be addressed by the appropriate College official outside of this Policy.

The College is committed to addressing sexually-based misconduct regardless of whether it meets the definition of sexual harassment under Title IX or Title IX’s jurisdictional requirements. Please see Appendix A for procedures to report sexually-based misconduct not covered by this Policy.

III. Title IX and Sex Discrimination

Title IX of the Education Amendments Act of 1972 is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. Title IX prohibits use of federal money to support sex discrimination in education programs and provides individuals with protection against such practices. Title IX applies, with a few specific exceptions,to all aspects of federally funded education programs and activities maintained by colleges and universities.

As required by Title IX, Rhodes prohibits all unlawful discrimination on the basis of sex, gender identity, or sexual orientation in any employment decision, admissions determination, education program, or educational activity.

Title IX defines sex discrimination to include sexual harassment, and this policy is designed specifically to comply with Title IX’s mandate to maintain an educational and employment environment free of sexual harassment. As part of its commitment to maintaining a community free of discrimination, and in compliance with Title IX’s mandate, Rhodes will address allegations of sexual harassment in a timely and effective way, provide resources as needed for affected persons and not tolerate retaliation against any person who reports sexual harassment in accordance with this Policy.

Rhodes has designed this Policy to comply with Title IX by providing for a consistent and transparent mechanism to investigate and, where required, adjudicate complaints of sexual harassment. At all stages of the formal complaint resolution process, Rhodes and its representatives will:

1. Require objective evaluation of all relevant evidence, whether inculpatory or exculpatory;
2. Avoid credibility determinations based on a person’s status as a Complainant, Respondent, or witness;
3. Require Title IX personnel (including Title IX Coordinators, investigators, decision-maker(s), or any person designated to facilitate an informal resolution process) to be free from conflicts of interest or bias for or against complainants or respondents;
4. Train all Title IX personnel on the definition of sexual harassment, the scope of the school’s education program and activities, how to conduct an investigation and the grievance process, how to serve impartially, on any technology used at a live hearing, and on issues of relevance, including how to apply the rape shield protections available only for complainants;
5. Not use, rely on, or seek disclosure of information protected under a legally recognized privilege, unless the person holding the privilege has waived the privilege;
6. Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
7. Ensure that the burden of proof and the burden of gathering evidence remains at all times with Rhodes;
8. Not access or use any party’s medical records unless the College first obtains the party’s voluntary, written consent to do so;
9. Not restrict the ability of the parties to discuss the allegations or gather evidence (e.g., no “gag orders”); and
10. Keep confidential the identity of complainants, respondents, and witnesses, except as may be permitted by FERPA, as required by law, or as necessary to carry out a Title IX proceeding.

IV. Retaliation

No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, its regulations, or this Policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sexual harassment, but arise out of the same facts or circumstances as a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or this Policy, constitutes retaliation.

Rhodes will keep confidential the identity of any individual who has made a report or complaint of sexual harassment; any complainant; any individual who has been reported to be the perpetrator of sexual harassment; any respondent; and any witness, except as may be permitted by Title IX, FERPA, or as otherwise required by law, or to carry out Rhodes’ Title IX procedures.

Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a Title IX proceeding does not constitute retaliation. A determination regarding responsibility alone, however, is not sufficient to conclude that any party made a materially false statement in bad faith.

Complaints alleging retaliation may be filed with the Title IX Coordinator. In the event an individual alleges that the Title IX Coordinator retaliated against them, the individual may file a complaint with the Chief Human Resources Officer.

Any individual found to have retaliated against another individual will be in violation of this Policy and will be subject to disciplinary action, up to and potentially including termination for employees and expulsion for students.

V. Time Considerations for Reporting

Provided that the Complainant is participating in or attempting to participate in Rhodes’ educational programs or activities at the time of the report, there is no time limit for reporting incidents of sexual harassment under this Policy. However, delay in reporting may limit or foreclose the ability of the College to investigate and/or take meaningful action. Reports made by a student who has graduated or otherwise no longer attends Rhodes or a former employee are not covered by this Policy but may be reported as sexual misconduct under Appendix A.

VI. Amnesty for Violations of the College's Alcohol and Illegal Drug Use Policies for Reporters

The College recognizes that students involved (e.g. as witnesses, bystanders, third parties, or Complainants) who have violated the College’s drug and alcohol policy may be hesitant to report out of fear of sanction. Therefore, in order to encourage reporting in all situations, anyone who reports sexual harassment may be granted amnesty for any violation of the College’s drug and alcohol policy that occurred in connection with the reported incident. Rhodes intends to grant such amnesty for all but the most egregious violations of the College’s drug and alcohol policy; however, individuals who are not sanctioned may be provided with resources on drug and alcohol counseling and/or education, as appropriate.

Honor code violations and violations of codes or policies other than the drug and alcohol policy may still be referred to the appropriate College office(s).

VII. Anonymous and Confidential Reporting

An individual can make an anonymous report of a violation of the College’s Title IX Policy but if the anonymous reporter does not provide sufficient information for Rhodes to offer supportive measures or conduct an investigation, the College may request the reporter to provide more information. If the reporter declines to do so, and the Title IX Coordinator reasonably determines that Rhodes cannot, through the exercise of reasonable diligence, take meaningful action in response to an anonymous report, the matter will be closed. The anonymous reporting form can be found on the College’s website (https://sites.rhodes.edu/titlenine/about/title-ix-and-sexual-misconduct-policy). The Title IX Coordinator will receive the anonymous report and will determine any appropriate steps, including individual or community remedies, as appropriate.

Additionally, a person can make a report requesting confidentiality. In such instances, the Title IX Coordinator must weigh the request for confidentiality against the College’s obligation to provide a safe, non-discriminatory environment for all students and employees, the effect of confidentiality on Rhodes’ ability to provide supportive measures or properly investigate and resolve a report of sexual harassment, and the respective rights and obligations of the parties to a Title IX matter.

In any instance where Rhodes determines it must deny or modify a request for confidentiality, the Title IX Coordinator will inform the requesting individual prior to making the disclosure to anyone beyond necessary College officials. Any such disclosure will be limited to individuals with a need to know the information. Consistent with FERPA’s prohibition on re-disclosure of confidential information, any recipient is prohibited from using or disclosing other people’s confidential information, learned as a result of participation in any investigation or proceeding under this Policy outside of such forums without express consent or for any improper purpose.

VIII. Reporting Sexual Harassment

Anyone can report an incident of sexual harassment to Rhodes. A report can be made by any individual who is a victim of sexual harassment, who has observed sexual harassment, or who has knowledge of sexual harassment happening to or affecting someone else.

Rhodes strongly encourages all individuals to report incidents of sexual harassment even if the individual does not intend to pursue a formal complaint. Even if Rhodes does not have jurisdiction over the incident, Rhodes may take prompt action to provide supportive measures for the safety and well-being of any affected person and the broader Rhodes community. No person should assume that an incident has already been reported by someone else or that Rhodes already knows about a particular situation.

Making a report under this Policy does not affect a Complainant’s ability to pursue a criminal action against the Respondent through the criminal justice system. A Complainant may choose to make a report under this Policy, pursue remedies through the criminal justice system, or both. To the extent allowed by law, Rhodes will cooperate with any ongoing criminal investigation of the incident.

In order to make a report to Rhodes, a reporting individual may use any of the following:

1. Report     the    incident     to    the     Title     IX    Coordinator      via     email     to TitleIX@rhodes.edu, or by calling 901-843-3354;
2. Report the incident by submitting an online Report form available at http://sites.Rhodes.edu/TitleNine;  or
3. Report the incident to the Chief Human Resources Officer via email at powelll@rhodes.edu or by calling 901-843-3747.

A number of other individuals, including faculty, staff, and resident assistants, are considered mandatory reporters who must report all incidents of sexual harassment that they observe or know about to the Title IX Coordinator.

IX. What Happens When a Report is Made

A. Contact with the Complainant and Supportive Measures

Upon receiving a report of sexual harassment, the Title IX Coordinator will promptly contact the Complainant confidentially to discuss the availability of supportive measures (as explained more fully below), consider the Complainant’s wishes with respect to supportive measures, inform the Complainant that supportive measures are available with or without the filing of a formal complaint, and explain to the Complainant the process for filing a formal complaint. The Title IX Coordinator will also contact the Respondent and any other members of the Rhodes community who have been affected by the alleged conduct and offer reasonable supportive measures. Reasonable supportive measures are non-punitive, individualized services offered as appropriate, as reasonably available, and without fee or charge.

Supportive measures shall be balanced based on the facts collected, seriousness of the allegations, and the potential safety risks posed to the Rhodes community. Supportive measures are designed to restore or preserve equal access to Rhodes’ education programs and activities without unreasonably burdening the other party, including measures designed to protect the safety of all parties or Rhodes’ educational environment, or to deter sexual harassment. Rhodes will maintain as confidential any personal supportive measures provided to only the Complainant or only to the

Respondent, to the extent that maintaining such confidentiality would not impair its ability to provide the supportive measures (for example, not applicable to mutual no contact orders).

Supportive measures, among other things, may include:

1. Extension of deadlines or other course-related adjustments;
2. Modification of work or class schedules;
3. Assistance in connecting to counseling services;
4. Assistance in connecting to medical services;
5. Providing an escort to and from classes;
6. Changes in work or housing locations;
7. Arranging a leave of absence;
8. Assistance with obtaining personal protective orders from a court;
9. Increased security and monitoring of certain areas of campus;
10. Mutual restrictions on communication or contact between the parties (“no contact orders”); or
11. A combination of any of these measures.

The Title IX Coordinator will coordinate the supportive measures. Notwithstanding the above, Rhodes may:

1. Remove a Respondent from an educational program or activity on an emergency basis after a safety and risk analysis determines that an immediate threat to the physical health or safety of a student or other individual justifies removal. In such a case, the Respondent will be provided with notice and an opportunity to promptly challenge the decision.
2. Place a non-student employee Respondent on administrative leave during the pendency of the complaint resolution process.

B. Formal Complaint Process

A Complainant may, but is not required to, file a formal complaint. If the Complainant does not wish to file a formal complaint, and thus trigger an investigation and the complaint resolution process, the Complainant’s wishes will generally be respected, except that the Title IX Coordinator may sign a formal complaint to initiate an investigation over the wishes of the Complainant if the Title IX Coordinator determines that a formal complaint is needed to guarantee equal access to educational opportunities for Rhodes students and/or employees and such determination is not clearly unreasonable in light of the known circumstances. If a formal complaint is filed, either by the Complainant or the Title IX Coordinator, Rhodes will begin the investigation and complaint resolution process set forth in Section X of this Title IX Policy. If a Complainant and the Title IX Coordinator decide not to file a formal complaint, Rhodes cannot conduct a Title IX investigation or use the complaint resolution process set forth in this Policy, and no disciplinary action may be taken against the Respondent.

X. Investigation and Resolution Processes

A. Preliminary Review

Rhodes will gather and review all reports of sexual harassment reported to the Title IX Coordinator, the Provost or the Chief Human Resources Officer. In this phase, the Title IX Coordinator will conduct a limited investigation to determine if the alleged conduct reported is covered by Rhodes’ Title IX Policy. If the Title IX Coordinator determines that the alleged conduct is not covered by Rhodes’ Title IX Policy, the Title IX Coordinator will close the matter under Title IX but may take other action pursuant to Appendix A.

If the Title IX Coordinator determines that the alleged conduct is covered by Rhodes’ Title IX Policy, the Title IX Coordinator will consult with the Complainant to determine if the Complainant wishes to file a formal complaint and review other available resources and options, including requesting supportive measures, as discussed above. Even if the Complainant does not wish to file a formal complaint, the Title IX Coordinator may file a formal complaint if they determine that the reported conduct implicates Rhodes’ Title IX obligations to maintain a safe and non- discriminatory campus environment. Regardless of whether a formal complaint is filed, the Title IX Coordinator will make supportive measures available to all parties.

B. Filing a Formal Complaint

At the time of filing a formal complaint, a Complainant must be participating in or attempting to participate in an education program or activity of the College. A formal complaint filed by a Complainant must include the Complainant’s physical or digital signature or otherwise indicate that the Complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a Complainant or a party during a complaint resolution process and must comply with requirements for Title IX personnel to be free from conflicts and bias. Upon receipt of a formal complaint, the Title IX Coordinator will promptly provide written notifications to all known parties. This notification will include the following information:

1. Notice of the allegations constituting potential sexual harassment, including all relevant details known at the time, with sufficient time to prepare a response before any initial investigative interview. These details will include, at a minimum, the identities of the parties involved in the incident(s), if known, the alleged conduct that could constitute sexual harassment, and the date and location of the alleged incident(s), if known. If, in the course of an investigation, the College decides to investigate allegations that are not included in the original notice, the College will provide notice of the additional allegations to the parties whose identities are known;1
2. A statement that the Respondent is presumed not responsible for the alleged conduct unless a determination regarding responsibility is made at the conclusion of the complaint resolution process;
3. A description of Rhodes’ complaint resolution process, including the rights and responsibilities of the parties during the investigation, hearing, and appeal process, and the availability of any informal resolution process (as set forth more fully in this Title IX Policy);
4. A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney; and
5. A statement that the parties may inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including evidence that Rhodes does not intend to rely on in reaching a determination.

In the Title IX Coordinator’s discretion, Rhodes may consolidate multiple formal complaints where the allegations arise out of the same facts or circumstances.

¹ If the Respondent is a tenured faculty member, in conjunction with the notice requirements listed here, the Provost will also follow the requirements for Preliminary Proceedings Concerning the Fitness of a Faculty Member required by Section X of the Faculty Handbook.

Unless the formal complaint resolution process results in a determination that a Respondent was responsible, Rhodes will not impose disciplinary actions or take any other actions under this Policy that are not supportive measures.

At the discretion of the Title IX Coordinator, a temporary delay or limited extension of deadlines in the formal complaint process may be granted for good cause. Good cause includes the absence of a party, advisor or witness; concurrent law enforcement activity; or the need for language assistance or the accommodation of disabilities.

C. Dismissal of a Formal Complaint

If the allegations in a formal complaint are not within the scope of this Policy because they do not meet the Title IX definition of sexual harassment, or because the alleged activities did not occur in Rhodes’ education program or against a person in the United States, then the Title IX Coordinator shall dismiss the formal complaint for purposes of Title IX.

At any time during the investigation or complaint resolution hearing, Rhodes may dismiss the formal complaint under the following circumstances:

1. A Complainant notifies the Title IX Coordinator in writing that they would like to withdraw the formal complaint in whole or in part. In such instance, the Title IX Coordinator may, in their discretion, sign the formal complaint to continue the process.
2. The Respondent is no longer enrolled in or employed by Rhodes.
3. Specific circumstances prevent Rhodes from gathering evidence sufficient to reach a determination as to the formal complaint, in whole or in part.

Upon dismissal, the Title IX Coordinator will promptly send written notice of the decision to dismiss the complaint and the reasons for such decision to both parties.  Even if the formal complaint is dismissed, however, Rhodes still may address the allegations pursuant to Appendix A. When a formal complaint is dismissed, supportive measures may be continued.

D. Investigation After a Formal Complaint is Filed

1. Appointment of Investigator

Once a formal complaint is filed, the Title IX Coordinator will appoint an investigator (“Investigator”) to handle the investigation. This Investigator will be a different person than the Title IX Coordinator, and will be properly trained on Title IX and free of conflict of interest or bias towards either Complainant or Respondent. The Investigator will begin an investigation as soon as practicable and generally not later than ten (10) days after written notice of the formal complaint has been delivered to all parties.

 2. Use of Advisors and Supporters

During the investigation process, each party will have the same opportunity to select an advisor of the party’s choice who may be, but need not be, an attorney. Rhodes will provide a pool of trained advisors from which the parties may choose.

The adviser may assist with all written submissions made by a Complainant or a Respondent, may assist with preparing questions or other information for the Complainant or the Respondent to use at the hearing, and may facilitate scheduling and other processes. During any pre-hearing meeting or proceeding, the adviser may be present to observe and provide support and counsel to the participant. The adviser may not, at this stage, present evidence on a party’s behalf, present argument, examine witnesses, testify, or disrupt or otherwise obstruct meetings or proceedings.

Should a matter proceed to a complaint resolution hearing, advisors for both the Complainant and the Respondent are permitted to ask questions of the Investigator, the Complainant, the Respondent and any witnesses.

If a party does not choose an advisor for the hearing, Rhodes will provide one without fee or charge to ask questions of witnesses on behalf of that party. The advisor may be, but is not required to be, an attorney. A party who has not chosen an advisor must notify the Title IX Coordinator in writing at the same time the party provides a list of expected attendees and witnesses.

Both Claimants and Respondents may also choose a designated Supporter. The role of the Supporter is primarily to provide emotional support during the process by accompanying the Claimant or Respondent to any hearing, conference or related proceeding. The Claimant and the Respondent may choose any person, regardless of their association with the College, to perform the role of Supporter and to support them through a portion of or the entire Title IX process. Neither party is required to have and be accompanied by a Supporter; however, the College encourages the presence of a Supporter at all stages of the proceedings, including the reporting and investigation stages, in order to provide the Claimant and Respondent with emotional and personal support. The Supporter may be present during any stage of these processes but will not be allowed to make opening or closing statements, present evidence, make procedural objections, question witnesses, or otherwise actively participate during complaint resolution hearings and informal resolution conferences.

Rhodes may limit the quantity of people in attendance at hearings, conferences and related disciplinary proceedings but will not interfere with parties' choices of specific attendees. A fact witness can serve as an Advisor / Supporter and will not be prohibited from testifying as a witness, but they will be subject to the witness sequestration rule and subject to exclusion from most parts of the complaint resolution hearing. There is no restriction on former Advisors or Supporters testifying as fact witnesses.

3. Conduct of the Investigation

The Investigator collects and examines the facts and circumstances of the alleged conduct and provides an investigative report to the Title IX Coordinator. Although the burden of investigation remains on the College, the Investigator will provide equal opportunity for the parties to present fact and expert witnesses and other inculpatory and exculpatory evidence.

The Investigator will send written notice of any investigative interviews or meetings involving the parties to the parties and their advisors, allowing each party adequate time to prepare in advance.

The Investigator will complete the investigation as quickly as possible, generally within sixty (60) days. The amount of time needed to complete an investigation will depend in part on the nature of the allegation(s) and the evidence to be investigated (e.g., the number and/or availability of witnesses involved), as well as the College’s academic calendar.

The Complainant, Respondent, witnesses, and others sharing information with the Investigator are expected to provide all relevant and truthful information and to do so at their earliest opportunity to facilitate prompt resolution. Medical records will not be received by the Investigator without the written consent of the subject of the medical records. Rhodes’ students and employees remain subject to the policies in the Student and Employee Handbooks during investigations and may be subject to discipline for failing to provide information, making false statements or knowingly submitting false information during the investigation.

Rhodes will keep the parties reasonably informed of the status of the investigation. If it is determined that more time is needed for the investigation, Rhodes will communicate the additional estimated amount of time needed to complete the investigation.

When the investigation is complete, the Investigator will provide the parties with a preliminary report, which will include, as applicable, the Complainant’s statement, the Respondent’s statement, each witness statement, and either a copy or written summary of any other evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint. The preliminary report will be provided in an electronic format that restricts the parties from downloading or copying the evidence. Each party will have ten (10) days to review the preliminary report and to provide written feedback. Each party’s written feedback, if any, will be attached to the final investigative report.

After consideration of the parties’ final responses to the preliminary report, or after ten (10) days have elapsed without comment, the Investigator will prepare and send to the parties and to their advisors a final investigative report that includes the parties’ written feedback, if any. The report will be in electronic format or hard copy. The parties will have at least ten (10) days after receipt of the final investigative report to prepare for any scheduled hearing.

The parties may also provide a written response to the final investigation report to the Title IX Coordinator within five (5) days of receipt of the final investigative report so that the party’s response will be available to both parties and the decision-maker(s) prior to the hearing. If warranted, the Investigator may choose to update the final investigative report to take a party’s response into account, in which case the hearing date may be postponed.

4. Coordination with Law Enforcement

If Rhodes is made aware that there is a concurrent criminal investigation, the Investigator will inform any law enforcement agency that is conducting its own investigation that a Rhodes investigation is also in progress. The Investigator will ascertain the status of the criminal investigation and determine the extent to which any evidence collected by law enforcement may be available to the College in its investigation. At the request of law enforcement, Rhodes may agree to temporarily defer part or all of its own investigation (or subsequent hearing) until after the initial evidence-gathering phase of the law enforcement investigation is complete. The Investigator will communicate with the parties, consistent with the law enforcement request and the College’s obligations, regarding procedural options, anticipated timing, and the implementation of any necessary interim measures.

5. Informal Resolution

At the discretion of the Title IX Coordinator and after the filing of a formal complaint, the Complainant and Respondent may mutually agree to forego an investigation and complaint resolution hearing and pursue an informal resolution of the complaint. Waiver of the right to an investigation and adjudication of formal complaints will never be required as a condition of enrollment or continuing enrollment, employment or continuing employment, or enjoyment of any other right.

An informal resolution is a voluntary, non-adversarial, remedies-based, non-judicial process designed to eliminate or address potential sexual harassment. This process, which is similar to mediation, aims to assure fairness, to facilitate communication, and to maintain an equitable balance of power between the parties. Rhodes will not offer or facilitate an informal resolution to resolve allegations that an employee sexually harassed a student.

The Title IX Coordinator will make an initial decision about whether a formal complaint qualifies for an informal resolution, and if both parties then agree in writing to pursue that path, Rhodes will halt any investigation or scheduled complaint resolution hearing so that the parties can schedule an informal resolution process led by a facilitator who is free of bias and conflicts of interest. The facilitator is not an advocate for either party but rather assists the parties in reaching a resolution upon which they can both agree.

Informal resolution is available at any time prior to a determination regarding responsibility. For cases selected to be resolved through informal resolution:

1. The parties will receive simultaneous written notice of the allegations, the name and contact information for the facilitator, the requirements of the informal resolution process, the fact that a party may withdraw from the informal resolution process and proceed with the investigation and determination of the formal

1. complaint at any time prior to reaching an informal resolution, and any consequences resulting from participating in the informal resolution process, including any records of the process that will be maintained or shared.
2. The facilitator will set up an informal resolution conference at a time agreeable to both parties but within a reasonable amount of time after the decision to participate in the process is made.
3. Advisors and/or Supporters may be present at each party’s option, but may not actively participate during the conference.
4. The College will not compel face-to-face confrontation between the parties or participation in any particular form of informal resolution.
5. The informal resolution conference ends when a resolution has been reached or when the facilitator determines that further proceedings will not allow the parties to reach an agreement. Agreements reached in an informal resolution conference will be reduced to writing and signed by both parties. Such agreements are final and not subject to appeal.

F. Complaint Resolution Hearing

A complaint resolution hearing is Rhodes’ disciplinary proceeding through which one or more decision-maker(s), through a live hearing, evaluates evidence related to a complaint to determine whether a Respondent is responsible or not responsible for a violation of this Policy, based on the criteria of “a preponderance of evidence.” Under this standard, the burden of proof is met and a Respondent may be found responsible for a Policy violation if the decision-maker(s) determines that it is more likely than not that the Respondent committed the violation. If the Respondent is found in violation of the Policy, the Respondent may be subjected to disciplinary action.

1. Decision-maker(s)

The decision-maker(s) will be selected by the Title IX Coordinator and may vary based on the enrollment or employment status of the Respondent:

1. Student and staff respondent cases will typically be heard by a hearing board consisting of three faculty and/or staff members. A chair will be chosen to confer with the Title IX Coordinator concerning procedures and evidence related to the hearing.
2. Non-tenured faculty respondent cases will typically be heard by the Faculty Governance Committee.
3. Tenured faculty respondent cases will typically be heard by the Faculty Governance Committee or the Faculty Committee on Appeals consistent with Section X of the Faculty Handbook, as modified for Title IX compliance.

Decision-makers must have had no prior involvement in the case and be free of conflicts of interest and bias for or against either the Complainant or Respondent.  Decision-makers will receive regular training on how to conduct a fair and impartial hearing. Neither the Title IX Coordinator nor the Investigator can be a decision-maker.

The Title IX Coordinator will identify the decision-maker(s) at least five (5) days prior to the hearing date. Either party may challenge the selection on the grounds of conflict of interest or bias by submitting their objection in writing to the Title IX coordinator no less than two (2) days prior to the hearing date stating the basis for their objection. The Title IX Coordinator has sole discretion to keep or replace a decision-maker, and may postpone the hearing to allow for a replacement decision-maker, if necessary.

2. Pre-Hearing Procedures

The parties will be provided notice of the date, time and location of the hearing. At least ten (10) days prior to a hearing, both parties and the decision-maker(s) will be provided access to a hearing packet containing the investigation report, supporting evidence, and other information about the hearing. The packet may not be copied and must be returned at the end of the hearing because it will typically contain other parties’ confidential and FERPA-protected information. Receipt of the hearing package will be conditioned upon each recipient’s agreement not to re-disclose or use outside of the hearing other people’s confidential information learned as a result of the investigation or hearing.

At least five (5) days’ prior to the hearing, the parties must give the Title IX Coordinator and the other party a list of expected attendees (including any advisor) and their expected witnesses (including themselves), in order of appearance. Witnesses expected to testify only to the good character of a party will not be permitted. The parties will not be strictly bound to their lists, but they should be made in good faith.

Typically, the parties will be responsible for choosing and supplying their own witnesses to the hearing. When necessary for the pursuit of truth and to gather evidence sufficient to reach a determination, the decision-maker(s) may request the Title IX Coordinator to arrange for the availability of other witnesses after the witness lists have been submitted; recognizing, however, that Rhodes cannot compel any witness to attend. Such additional witnesses will be disclosed to the parties in advance of the hearing.

The Title IX Coordinator, in consultation with the decision-maker, shall have discretion to exclude witnesses based on investigation results that show their expected testimony is not relevant to the facts at issue in the hearing. The parties may object to such a determination, but the Title IX Coordinator shall have ultimate discretion on this issue.

3. Conduct of Hearing

At the live hearing, the decision-maker(s) will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination must be conducted directly, orally, and in real time by the party’s advisor, never by the party personally. At the request of either party, the hearing will be conducted with the parties located in separate rooms with technology enabling the decision- maker(s) and parties to simultaneously see and hear the party or the witness answering questions. Live hearings may be conducted with all parties physically present in the same geographic location or, at Rhodes’ discretion, any or all parties, witnesses, and other participants may appear virtually, with technology enabling participants to simultaneously see and hear each other.

At the start of the hearing, each party will have the option to provide an opening statement, summarizing their position. The Investigator will then present the investigation report and be available for questioning by the decision-maker(s) and the parties’ advisors.

Each party will then be permitted to call their own witnesses, including themselves. Witnesses will be asked to affirm adherence to the Honor Code, if applicable. Prospective witnesses, other than the Complainant and the Respondent, may be sequestered, i.e., excluded from the hearing during the statements of the Investigator and other witnesses, at the request of any party.

The decision-maker(s) and the parties, acting through their advisors, will have an opportunity to question witnesses who appear at the hearing. Any person who offers testimony at the hearing must remain available to answer questions from the decision-maker(s) and both parties’ advisors. Typically, the decision-maker(s) will ask questions first, then permit the questions of the advisor of the party whose witness it is, then the questions of the advisor of the other party.

All hearings will be recorded and closed to the public. Attendance at the hearing by those other than the parties, their witnesses, their supporters and their advisors, will be at the discretion of the decision-maker(s). Any person who engages in disruptive behavior may be removed at the discretion of the decision-maker(s). The recording of the hearing and/or a transcript will be made available to the parties upon request.

4. Rules Governing Proof

At the hearing, all relevant evidence will be objectively evaluated. Relevant evidence is any evidence that tends to make the allegations at issue more or less likely to be true. Credibility determinations will not be made on the basis of a person’s status as a complainant, respondent, or witness.

The decision-maker(s) will be responsible for ensuring in advance that each question asked by one party’s advisor to the other party is fair and relevant. Questions that seek to elicit solely character evidence or have the effect of impermissibly badgering or harassing the witness will not be permitted. If a question is not permitted, the decision-maker(s) will provide the parties with the basis for that decision.

Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless the questions and evidence are offered to prove that someone other than the Respondent committed the conduct alleged, or are concerning specific incidents with the Respondent that are offered to prove consent. If the Respondent is found in violation of the Policy, any previous discipline for sexual misconduct received by Respondent may be subject to inquiry by the decision-maker(s) only in connection with determining potential sanctions.

The standard of evidence to determine responsibility in hearings under this Policy is the preponderance of the evidence standard, which means that, based on the evidence presented, it is more likely than not that the Respondent is responsible for a violation of Title IX. The Respondent

is presumed not responsible and can be found responsible only if the evidence preponderates in favor of a finding of responsibility.

Legal rules of evidence or criminal or civil procedure are not binding on the decision-maker(s) at complaint resolution hearings, but may inform the decision to include or exclude or give proper weight to evidence in order to insure the fundamental fairness of the process.

Introduction of the medical records of any person will not be permitted unless the person whose records are sought to be introduced voluntarily agrees in writing that they may be introduced. No medical records may be introduced at the hearing, regardless of consent, unless they are (1) complete; (2) introduced and explained by a heath care professional with knowledge of the underlying facts; (3) previously provided to the Investigator prior to the completion of the final investigation report.

The decision-maker(s) may, in their discretion, exclude or grant lesser weight to last-minute information or evidence introduced at the hearing that was not previously presented for investigation by the Investigator or not provided to the other party in sufficient time for that party to adequately address that information at the hearing.

The decision-maker(s) may rely, if relevant, on a statement of a party or a witness even if that party or witness is not present for the hearing or does not submit to questioning. The decision- maker(s) may not draw an inference for or against a party or witness solely based on their absence from the hearing or refusal to answer questions.

At the conclusion of the hearing, the Investigator may give a closing statement and each party will have an opportunity to provide a closing statement at their discretion.

5. Deliberations and Written Decision

All parties, the witnesses and the public will be excluded during the decision-maker(s) deliberations, which will not be recorded or transcribed. The Title IX Coordinator and the Investigator will not participate in the deliberations of the decision-maker(s) in determining responsibility.

In all cases, the decision-maker(s) must consider evidence presented by the Complainant, the Respondent, the Investigator and/or others and determine by a preponderance of the evidence whether a violation of the Policy occurred and impose sanctions, if any.

The decision-maker(s) will issue a written determination regarding responsibility to the parties simultaneously. The written determination will include:

1. Identification of the allegations potentially constituting sexual harassment;
2. 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;
3. Findings of fact supporting the determination;
4. Conclusions regarding the application of the Title IX Policy to the facts;
5. A statement of, and rationale for, the result as to each allegation, including:

• A determination regarding responsibility;
• Any disciplinary sanctions to be imposed; and
• Whether remedies designed to restore or preserve equal access to Rhodes’ education program or activity will be provided by Rhodes to the Complainant (but not the details of such measures unless necessary to carry them out).

6. The College’s procedures and permissible bases for the Complainant and Respondent to appeal.

The decision-maker(s) will use best efforts to issue the written determination regarding responsibility within fourteen (14) days after the hearing. The determination will be issued simultaneously to the parties. Either party may appeal the determination by filing a written appeal, as described below, within ten (10) days after receipt of the determination regarding responsibility. If no appeal is filed, the determination regarding responsibility becomes final ten (10) days from the date of delivery to the parties.

The Title IX Coordinator will be authorized to stay sanctions pending appeal and/or make further accommodations, including supportive measures, that are consistent with the determination.

7. Sanctions

When determining sanctions for a Respondent found in violation of the Policy, the following criteria may be considered, among other factors:

1. The nature, circumstances, and severity of the violation(s);
2. The College’s responsibility to ensure the effectiveness of behavioral standards for the Rhodes community;
3. The impact of the violation(s) on the Complainant and the community, protection of the College community and the risk that a Respondent may create a hostile and intimidating environment;
4. The requests of the Complainant;
5. The level of cooperation and/or honesty of the Respondent, or lack thereof, during the disciplinary processes;
6. Any official college report including, but not limited to, prior disciplinary records, criminal records if known, or other official information, the relevance of which will be determined by the decision-maker(s);
7. Whether other judicial measures have been taken to protect the Complainant or discipline the Respondent (e.g., civil protection orders); and
8. The housing and course enrollment pattern of the Complainant, giving due regard to the principle that a student found responsible for sexual harassment under the Policy should bear the burden of accommodating the Complainant and not the reverse.

After taking into account the above considerations, the decision-maker(s) will determine the sanctions for a Respondent found in violation of the Title IX Policy. One or more of the following sanctions may be imposed upon any student found in violation of the Policy:

1. Warning: A formal letter to be placed in a student’s record warning the student that any further violations of the Title IX Policy or other violation of institutional policies will lead to more severe consequences, including suspension or expulsion;
2. Loss of Privileges: Denial of specified privileges for a designated period of time;
3. Required training or education: Attending or participating in a required number, determined by the decision-maker(s), of educational and/or awareness programs relating to the Policy violation, and providing evidence of engaging in the programs;
4. Fines: Previously established and published fines may be imposed;
5. Restitution: Compensation for loss, damage, or injury. This may take the form of appropriate service and/or monetary or material replacement;
6. Discretionary Sanctions: Work assignments, service to the College or community, education, referral to counseling, required behavioral assessment, or other related discretionary assignments;
7. Residence Hall Suspension: Separation of the student from the residence halls for a definite period of time, after which the student is eligible to return. Conditions for readmission may be specified;
8. Residence Hall Expulsion: Permanent separation of the student from the residence halls;
9. Disciplinary Probation: A period of time in which the student is placed on notice that any further violation of institutional regulations will likely lead to more severe disciplinary sanctions, including suspension or expulsion, if the student is found to violate any institutional regulations during the probationary period. Students can be placed on disciplinary or housing probation. A student on disciplinary probation is considered to be not in good social standing with the College;
10. College Suspension: Separation of the student from Rhodes College for a definite period of time, after which the student is eligible to return. Conditions for readmission may be specified; or
11. College Expulsion: Permanent separation of the student from Rhodes College. Pursuant to Rhodes’ academic criteria, expulsion may occur at any time before a diploma is awarded.

The following sanctions may be imposed upon any employee found in violation of the Policy:

1. Warning: A formal letter to be placed in an employee’s personnel file warning the employee that any further violations of the Title IX Policy or other violation of institutional policies will lead to more severe consequences, including suspension or termination of employment;
2. Required training or education: Attending or participating in a required number, determined by the decision-maker(s), of educational and/or awareness programs relating to the Policy violation, and providing evidence of engaging in the programs;
3. Loss of pay increase: The employee would be ineligible for an annual merit or cost- of-living increase for the year in which the violation occurred;
4. Suspension of employment with or without pay; or
5. Termination of employment.

G. Appeals

Either Complainant or Respondent may appeal any dismissal of a formal complaint or determination of responsibility within ten (10) days of delivery of written notification of the dismissal or a determination. Such appeal must be in writing and can only be raised on one or more of the following grounds:

1. A procedural irregularity that could have affected the outcome of the matter;
2. New evidence that (i) was not reasonably available to the appealing party at the time of the dismissal or determination, and (ii) could have affected the outcome of the matter; or
3. The Title IX Coordinator, Investigator, 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 notice of appeal must specifically describe the facts or evidence upon which the appeal is based and how it allegedly affected the outcome. The notice of appeal will be provided promptly to the other party, who may, within ten (10) days of receipt of the notice of appeal, file a written response. The appeal will be reviewed and determined by an Appeals Board,2 members of which shall not be the Title IX Coordinator, the Investigator or the decision-maker(s) who reached the determination of responsibility or decision for dismissal, and shall be free of bias or conflict of interest. The Appeals Board’s decision will be based on a preponderance of the evidence. The Appeals Board will issue a written decision describing the result of the appeal and the rationale for the result. Appeals Board decisions are final and not subject to further review.

² For cases involving tenured faculty, any appeal will be to the Rhodes College Board of Trustees consistent with Section X of the Faculty Handbook, as modified to comply with Title 

APPENDIX A

Supplemental Sexual Misconduct Policy

The Supplemental Sexual Misconduct Policy covers the following circumstances:

1. Where there has been a report of sexual harassment involving a Rhodes student occurring off campus.
2. Where a former student or employee reports sexual harassment or sexual misconduct occurring while the former student or employee attended or worked at Rhodes;
3. Where there has been a report of sexual harassment involving a Rhodes student in a study abroad program outside the United States.
4. Where the reported conduct does not satisfy the definition of sexual harassment under Title IX but could satisfy the definition of sexual misconduct.

Reports of conduct covered by this Supplemental Policy may be made in the same manner outlined in Section XIII of the Title IX Policy, and are subject to Sections IV, V, VI and VII of the Title IX Policy. Supportive measures will be offered in the same manner as described in Section IX.A. of the Title IX policy.

Reports of conduct covered by this Supplemental Policy will be investigated by Rhodes or by an outside investigator retained by Rhodes. All investigations will be prompt, thorough and confidential to the extent practicable. After an investigation is completed, the Title IX Coordinator may address the report by one of the following methods, depending on the facts and circumstances of each case:

1. Administrative resolution by the Title IX Coordinator or other appropriate Rhodes official;
2. Informal resolution if agreed to in writing by both parties (not available when the respondent is an employee); or
3. A hearing conducted by one of the decision-maker(s) described in Section X.F.1. of the Title IX Policy using modified hearing procedures.

Sanctions for a person found responsible for conduct covered by this Supplemental Policy are the same as those outlined in Section X.F.6. of the Title IX Policy. Appeal rights are the same as those outlined in Section X.G. of the Title IX policy.

Definitions

Sexual misconduct: conduct involving a Rhodes student that is sexually-based but does not meet the definition of sexual harassment under Title IX. Examples include sexual exploitation (defined below) and other verbal or physical conduct of a sexual nature that is unwelcome and has the effect of unreasonably interfering with the ability of the person to whom the conduct is directed to enjoy the benefits of attending Rhodes. Conduct that may meet the definition of sexual harassment but occurs outside of Rhodes’ Title IX jurisdiction (such as off campus or in a study abroad program) will also be treated as sexual misconduct.

Sexual exploitation: occurs when a person takes non-consensual sexual advantage of another for their own advantage or benefit, or the benefit of anyone other than the one being exploited. Examples of sexual exploitation include, but are not limited to:

1. Non-consensual video or audio recording of sexual activity or other private activity, even if that activity occurs in a public or semi-public place;
2. Non-consensual dissemination of video, photographs, or audio of sexual activity or other private activity, including dissemination by a third party or a person not involved in the original conduct;
3. Exceeding the boundaries of consent (such as permitting others to hide in a closet and observe consensual sexual activity, falsely representing that a condom is being used, videotaping of a person using a bathroom or engaging in other private activities);
4. Engaging in voyeurism, exposing one’s breasts, buttocks, or genitals in a non- consensual circumstance or inducing another to expose their breasts, buttocks, or genitals without affirmative consent;
5. Prostituting another person;
6. Engaging in consensual sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease or infection (STD or STI) and without informing the other person of such disease or infection; and
7. Sexually-based bullying.