Valley City State University (VCSU) is committed to providing a safe, inclusive, and respectful learning, living, and working environment for its students, faculty, and staff members. To this end, through this policy, the University provides means to address discrimination, harassment, and sexual and related misconduct.
This policy furthers the University’s commitment to creating a learning, living, and working environment free of discrimination, harassment, and sexual and related misconduct, and to meeting applicable legal requirements. Such applicable legal requirements include Title VII of the Civil Rights Act of 1964 (Title VII), Title IX of the Education Amendments of 1972 (Title IX), the Violence Against Women Reauthorization Act of 2013 (VAWA), the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (the Clery Act), and North Dakota state law.
So that VCSU may continue to foster a climate of respect and security on campus as it relates to preventing and responding to acts of sexual misconduct, this Policy has been created and serves to demonstrate the University’s commitment to:
- Disseminating clear policies and procedures for responding to sexual misconduct reported to the University;
- Engaging in investigative inquiry and resolution of reports that are prompt, fair, equitable, and independent of other investigations that may occur;
- Supporting complainants and respondents and holding persons accountable for established violations of this Policy;
- Providing a written explanation of the rights and options available to every complainant that has been the victim of sexual misconduct, regardless of whether the offense occurred on or off campus; and
- Providing educational, preventative, and training programs for the VCSU community.
In addition, this Policy:
- Identifies the University’s Title IX Coordinator and Deputy Title IX Coordinators and describes their roles in compliance with guidance from the United States Department of Education’s Office of Civil Rights and in compliance with the Clery Act.
- Identifies how students can report sexual misconduct to the University and what resources are available both on and off campus to aid them, including students’ rights to notify local law enforcement and their right also to decline to notify such authorities.
- Provides the University with a means to take reasonable steps to identify sexual misconduct, educate, prevent the recurrence of such misconduct, and to correct the discriminatory effects of sexual misconduct on the complainant and others, if appropriate.
These definitions apply to terms as they are used in this policy.
A. Advisor: Either an attorney or non-attorney advocate who advises a student during the conduct proceedings.
Advisors are permitted in proceedings not involving academic misconduct which could result in the suspension or expulsion of a student.
B. Aiding prohibited conduct: A person aids prohibited conduct, if with the intent to promote or facilitate such conduct, that person helps another person commit the prohibited conduct.
C. Appeals Authority: The individual appointed by VCSU to consider appeals.
D. Attempting to commit prohibited conduct: A person attempts to commit prohibited conduct if, with the intent to commit such conduct, that person engages in conduct directly tending toward completion of the prohibited conduct.
E. Complainant: A person who is the subject of a report or initiates a Formal Complaint of prohibited conduct under these procedures will be designated as the “complainant.”
Both the complainant and respondent are referred to as “party” or “parties” throughout this policy.
F. Confidential resources: Confidential resources do not have an obligation to report prohibited conduct to the Title IX Coordinator and will not do so without the explicit consent of the complaining party.
VCSU’s confidential resources are:
VCSU Health and Counseling Services
Dr. Erin Klingenberg
Director of Counseling Services; Licensed Clinical Counselor
VCSU Health Services
Betty Tykwinski, MSN, RN
Director of Health Services
Mythaler Hall, first floor
Abused Persons Outreach Center (APOC)
Victim Services and Prevention Coordinator
F-M Rape and Abuse Crisis Center
701-293-7273 (available 24 hours)
The Village (For Employees)
Employee Assistance Program
Voluntary, active and clear agreement, communicated by words or actions, to participate in specific sexual activity. Consensual sexual activity happens when each participant willingly chooses to participate.
In cases where a complainant asserts that sexual activity occurred without consent, the standard is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity in question.
In North Dakota, the legal age of consent is 18. This means that there can be no consent when one participant in the sexual activity is under the legal age of consent and any other participant is at or over the legal age of consent.
Section III explains consent in further detail.
H. Dating violence:
Any intentional act or threatened act of violence against the complainant committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant. Dating violence also may take the form of behavior that seeks to establish power and control over the complainant by causing the complainant to fear violence to themselves or another person. Such behavior may take the form of harassment, property damage, intimidation, and violence or a threat of violence to one’s self (i.e. the respondent) or a third party. It may involve one act or an ongoing pattern of behavior.
Consistent with the Violence Against Women Act (VAWA), for reporting purposes under the Clery Act, VCSU will evaluate the existence of an intimate relationship based on the complainant’s statement, taking into consideration the length of the relationship, the type of the relationship, and the frequency of interaction between the persons involved in the relationship.
I. Domestic partners:
Domestic partners are unmarried couples living together in a long-term relationship.
J. Domestic Violence:
Domestic violence includes felony or misdemeanor crimes of violence committed by (a) a current or former spouse or intimate partner of the complainant, (b) by a person with whom the complainant shares a child in common, (c) by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, (d) by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred, (e) or by any other person against an adult or youth complainant who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
Additionally, North Dakota statute provides that domestic violence includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.
Domestic violence also includes behavior that seeks to establish power and control over the complainant by causing the complainant to fear violence to themselves or another person. Such behavior may take the form of harassment, property damage, intimidation, and violence or a threat of violence to one’s self (I.e., the respondent) or a third party. Domestic violence may also include interference with personal liberty, intimidation of a dependent, physical abuse, or willful deprivation by a person who is or was a family or household member of the complainant. It may involve one act or an ongoing pattern of behavior.
K. Force or threat of force:
The use of force or violence, or the threat of force or violence, including but not limited to: (1) when the respondent threatens to use force or violence on the complainant or on any other person, and the complainant under the circumstances reasonably believes that the respondent has the ability to execute that threat; or (2) when the respondent has overcome the complainant by use of superior strength or size, physical restraint or physical confinement.
L. Interim measures:
Interim measures are individualized services offered as appropriate to either or both the complainant and respondent involved in an alleged incident of sexual misconduct, prior to an investigation or while an investigation is pending. Interim measures include counseling, extension of time or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar accommodations.
As measures needed by each student may change over time, the Title IX Coordinator will communicate with each student throughout the investigation to ensure that any interim measures are necessary and effective based on the students’ evolving needs. Interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation.
M. Physical abuse:
Physical abuse includes sexual abuse and means any of the following: (1) the knowing or reckless use of physical force, confinement, or restraint; (2) knowing, repeated, and unnecessary sleep deprivation; and/or (3) knowing or reckless behavior that creates an immediate risk of physical harm.
Physical abuse also includes the willful, purposeful denial of medication, medical care, shelter, food, or other assistance to a person who requires such things because of age, health or disability, thereby putting that person at risk of physical, mental, or emotional harm.
N. Prohibited conduct:
Prohibited conduct includes, but is not limited to: aiding prohibited conduct, attempting to commit prohibited conduct, dating violence, discrimination, domestic violence, harassment, physical abuse, sexual assault, sexual exploitation, sexual and gender-based harassment, stalking, and violating an interim measure.
O. Prohibited Discrimination:
Sex, race, color, religion, physical or mental disability, pregnancy, status with regard to marriage or public assistance, sexual orientation, participation in lawful activity, or genetic information are Equal Education and Employment Opportunity (EEEO) protected classes. Prohibited discrimination occurs when an employment or academic decision that results in negative and/or different treatment of an individual based upon his or her membership in an EEEO-protected class, such as denying an opportunity for which an individual is qualified, not considering a person for an opportunity that is open to others, singling a person or group for different treatment because of her, his or their EEEO-protected class status, failure to provide reasonable accommodation for a disability or religious belief or practice; reinforcing the use of stereotypes that unreasonably impacts a person’s environment or opportunities.
P. Protected Status Harassment (Harassment):
When an individual is targeted with verbal, written, visual, or physical conduct based on that person's EEEO- protected class status that unreasonably interferes with the individual's work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.
Protected-status harassment, including sexual harassment, occurs when an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment. The conduct constitutes harassment under any of the following conditions:
1. The conduct is direct.
2. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status.
3. Submission to, or rejection of, such conduct by an individual is used as the basis for an employment or academic decision affecting that person.
4. The conduct is sufficiently severe or pervasive to alter the conditions of the complainant’s employment or academic pursuits and creates a work or educational environment that a reasonable person would find abusive.
A person accused of conduct prohibited by this policy and does not imply pre-judgment.
R. Responsible employee:
Responsible employees are those who would reasonably be expected to have the authority or duty to report or take action to redress sexual misconduct. A responsible employee is obligated to promptly report sexual misconduct to the Title IX Coordinator or Deputy Title IX Coordinator for the University. Designated responsible employees are: administration, faculty, directors, coaches, assistant coaches, athletic trainers, and residence life staff. Confidential resources, including the Director of Counseling Services and the Director of Health Services, are excepted from reporting.
Adverse action taken against an individual for making a good faith report of prohibited conduct or participating in any investigation or proceeding under these procedures. Retaliation may include: intimidation, threats, coercion, or adverse employment or educational actions. Retaliation may be found even when an underlying report made in good faith was not substantiated. Retaliation may be committed by the respondent, the complainant, or any other individual or group of individuals. Retaliation does not include good faith actions pursued in response to a report of prohibited conduct.
Acts of alleged retaliation should be reported immediately to the Title IX Coordinator or Deputy Title IX Coordinator for the University and will be promptly investigated.
T. Right to an advisor:
In conduct proceedings that may result in suspension or expulsion, a student or student organization has the right to be represented, at the student or student organization’s expense, by an advisor of its choice.
Penalties which may be imposed by the University upon persons who, in proper hearing processes, have been found to have committed violations of the Code of Student Conduct.
V. Sexual assault:
A person knowingly has sexual contact with another person, or who causes another person to have sexual contact with that person without consent.
Regardless of consent, incest (sexual intercourse between persons who are related to each other within the degrees marriage is prohibited by law) and statutory rape (sexual intercourse with a person who is under the age of eighteen) constitute sexual assault.
W. Sexual contact:
Any touching, however slight, with any object or body part, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission of urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires.
X. Sexual exploitation:
Sexual Exploitation is taking advantage of another person without consent. Examples include, but are not limited to:
1. Observing another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person observed or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved;
2. Making, sharing, posting streaming or otherwise distributing any image, photography, video, or audio recording depicting or otherwise recording another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person depicted or recorded;
3. Exposing one’s genitals to another person without the consent of that person;
4. Prostituting another person;
5. Exposing another person to a sexually transmitted infection without the knowledge and consent of the person exposed; and
6. Causing another person to become incapacitated with the intent of making that person vulnerable to nonconsensual sexual assault or sexual exploitation.
Y. Sexual exploitation: Sexual harassment is unwelcome sexual advances, requests for sexual favors, or other unwanted conduct of a sexual nature, whether verbal, nonverbal, graphic, physical, or otherwise, when the conditions outlined in (1) or (2) are present:
1. Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any University programs or activities or is used as the basis for University decisions affecting the individual (often referred to as “quid pro quo” harassment); or
2. Such conduct creates a hostile environment. A hostile environment exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits or deprives an individual’s participating in or benefiting from the University’s education or employment programs or activities. Conduct must be deemed severe, persistent, or pervasive in a way that a reasonable person would find abusive, hostile, or offensive.
In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances. Factors in this consideration may include, but are not limited to:
1. The frequency, nature, and severity of the conduct;
2. Whether the conduct was physically threatening;
3. The effect of the conduct on the complainant’s mental or emotional state;
4. Whether the conduct was directed at more than one person;
5. Whether the conduct arose in the context of other discriminatory conduct;
6. Whether there is a power differential between the parties; and
7. Whether the conduct implicates concerns related to academic freedom or protected speech.
Because of protections afforded by academic freedom, speech and other expression occurring in the context of instruction or research will not be considered sexual or gender-based harassment unless this speech or expression also meets one or both of the following criteria:
1. It is meant to be either abusive or humiliating toward a specific person or persons, and/or
2. It persists despite the reasonable objection of the person or persons targeted by the speech.
Z. Staff: An employee at Valley City State University who is not a faculty member. For purposes of this policy, coaches and assistant coaches are classified as staff.
AA. Stalking: A course of conduct directed at a specific person that would cause a reasonable person to (a) fear for her or his safety or the safety of a third person, or (b) to suffer emotional distress.
1. Course of conduct means two or more acts, including but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
2. Reasonable person means a reasonable person under similar circumstances and with similar identities to the complainant.
3. Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
Stalking behavior includes but is not limited to: following a person; appearing at a person's home, work, or school; making unwanted phone calls; sending unwanted emails or text messages; leaving objects for a person; vandalizing a person's property; injuring a person’s pet; and monitoring or placing a person under surveillance.
BB. Student: The term student will be interpreted to mean any person, whether or not incidentally on the University payroll, who is currently registered with the University as a degree or non-degree-seeking candidate. The term student will be interpreted also to mean persons not officially registered, and not faculty members or other University employees, if they are:
1. Currently enrolled in or taking classes at the University; or
2. Currently using University facilities or property, or the property of a University-related residential organization, in connection with academic activities; or
3. Currently on suspension from being a student of the University.
CC. Title IX Coordinator and Title IX Deputy Coordinators
DD. Violating an Interim Measure: A person violates an interim measure if the measure is an order by a University official and the person to whom the order applies knowingly violates any of the conditions of the order. One common example of an order by a University official is a “no-contact” order.
A. What is Consent? Consent means voluntary, active and clear agreement, communicated by words or actions, to participate in specific sexual activity. Consensual sexual activity happens when each participant willingly chooses to participate. It is the responsibility of the person who wants to engage in a sexual activity to obtain the consent of the other person for that sexual activity. Consent may also be withdrawn or modified at any time by the use of clearly understandable words or actions.
1. In cases where a complainant asserts that sexual activity occurred without consent, the standard is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity in question.
2. The definition of consent does not vary based upon a person’s sex, sexual orientation, gender identity, or gender expression.
3. Consent is best obtained through direct communication about the decision to engage in specific sexual activity. Consent need not be verbal, but verbal communication is the most reliable and effective way to seek, assess, and obtain consent. Non-verbal communication often is ambiguous. For example, heavy breathing can be a sign of arousal, but it also can be a sign of distress. To be sure, talking with sexual partners about desires, intentions, boundaries and limits can be uncomfortable, but it serves as the best foundation for respectful, healthy, positive and safe intimate relationships.
4. When consent is withdrawn or can no longer be give, sexual activity must stop.
B. What is Not Consent?
Consent cannot be obtained by threat of harm, coercion, intimidation, or by use or threat of force.
Examples of coercion and intimidation include using physically or emotionally manipulative conduct against the complainant or expressly or implicitly threatening the complainant or a third party with negative actions that would compel or induce a reasonable person in the complainant’s situation to engage in the sexual activity at issue.
Examples of sexual coercion include statements such as “I will ruin your reputation,” or “I will tell everyone,” or “your career (education) at VCSU will be over,” or “I will post an image of you naked.”
Examples of force or threat of harm include using physical force or a threat, express or implied, that would place a reasonable person in the complainant’s situation in fear of physical harm to, or kidnapping of, themselves or another person.
The lack of explicit consent does not imply consent and likewise, the lack of verbal or physical resistance does not constitute consent. Thus, silence, passivity, submission, and/or the lack of resistance (including the absence of the word “no”) do not—in and of themselves—constitute consent.
The following are factors in determining consent:
1. The existence of a romantic or sexual relationship does not, in and of itself, constitute consent.
2. Consent on a prior occasion does not constitute consent on a subsequent occasion.
3. Consent to one sexual act does not constitute consent to another sexual act.
4. Consent to sexual activity with one person does not constitute consent to engage in sexual activity with another.
5. Consent cannot be inferred from a person’s manner of dress or other contextual factors, such as alcohol consumption, dancing, or agreement to go to a private location like a bedroom.
6. Accepting a meal, a gift, or an invitation for a date does not imply or constitute consent.
7. Silence, passivity, or lack of resistance alone or in combination does not constitute consent.
8. Incapacitation by the person initiating sexual activity does not in any way lessen his or her obligation to obtain consent.
9. Consent may be withdrawn at any time.
Consent cannot be obtained from someone who is unable to understand the nature of the activity or give knowing consent due to circumstances. A person is mentally or physically incapacitated when that person lacks the ability to make or act on considered decisions to engage in sexual activity, i.e., when a person’s perception and/or judgment is so impaired that the person lacks the cognitive capacity to make or act on conscious decisions, including without limitation the following circumstances:
1. The person is incapacitated due to the use or influence of alcohol or drugs, or due to a mental disability. Alcohol and drugs can impair judgment and decision-making capacity, including the ability to rationally consider the consequences of one’s actions. The effects of alcohol and drug consumption often occur along a continuum. For example, alcohol intoxication can result in a broad range of effects, from relaxation and lowered inhibition to euphoria and memory impairment, and to disorientation and incapacitation. Incapacitation due to alcohol or drug use is a state beyond “mere” intoxication or even being drunk. Indicators of incapacitation may include inability to communicate, lack of control over physical movements, and/or lack of awareness of circumstances. An incapacitated person can also experience a blackout state during which he or she appears to give consent but does not have conscious awareness or the capacity to consent. Some medical conditions also can cause incapacitation.
2. The person is asleep or unconscious.
3. The person is under the legal age of consent. In North Dakota, the legal age of consent is 18. This means that there can be no consent when one participant in the sexual activity is under the legal age of consent and any other participant is at or over the legal age of consent. In sum, an act will be deemed non-consensual if a person engages in sexual activity with an individual who is incapacitated, and who the person knows or reasonably should know is incapacitated, or with an individual who is asleep, unconscious, or under the legal age of consent.
IV. Prohibited Discrimination, Harassment, and Sexual and Related Misconduct Policy
A. VCSU’s Objectives
VCSU is committed to preventing, responding to, and remedying the effects of discrimination, harassment, and sexual and related misconduct. The University is also committed to providing prompt, fair, and impartial processes for all parties when such prohibited conduct is alleged. These processes are carried out by officials who receive specific training.
In tandem with this policy, to comply with applicable laws, and as a crucial part of its effort to prevent prohibited conduct, the University provides educational, preventative, and training programs for the VCSU community.
B. Prohibited Conduct
Prohibited conduct, includes, but is not limited to: aiding prohibited conduct, attempting to commit prohibited conduct, dating violence, discrimination, domestic violence, harassment, physical abuse, sexual assault, sexual exploitation, sexual and gender-based harassment, stalking, and violating an interim measure.
C. Sexual misconduct
Sexual misconduct encompasses a range of conduct. Sexual Misconduct includes sexual acts. Sexual acts include, but are not limited to the following actions:
1. Sexual intercourse;
2. Sodomy (oral and/or anal);
3. Sexual penetration with any object;
4. Sexual touching of a person’s intimate parts (genitalia, groin, breasts, buttocks, mouth or other bodily orifice or the clothing covering them); or
5. Compelling a person to touch his or her own or another person’s intimate parts.
Sexual Misconduct ranges from sexual assault (a criminal act that the U.S. Department of Education defines as a form of sexual harassment) to conduct such as sex-oriented remarks or jokes, pressures or demands for sexual favors, implied or overt promises or threats, unwanted touching or persistent unwelcome comments, e-mails, or pictures of an insulting or degrading sexual nature, which may constitute unlawful harassment, depending upon the specific circumstances and context in which the conduct occurs.
For example, sexual advances, requests for sexual favors, or sexually-directed remarks or behavior constitute sexual harassment when:
1. Submission to or rejection of such conduct is made, explicitly or implicitly, a basis for an academic or employment decision, or a term or condition of either; or
2. Such conduct directed against an individual persists despite its rejection.
D. Sexual Misconduct Violates VCSU’s Standards and May Violate the Law
Sexual misconduct may violate the law and does violate the standards of our community and is unacceptable at VCSU. Sexual misconduct, as described in this policy, is a form of sexual harassment, which is a form of discrimination and is prohibited by Title IX of the Education Amendments of 1972 (Title IX). Likewise, domestic violence, dating violence, and stalking are prohibited conduct as defined by the Clery Act.
E. Consensual Relationships
At times, consensual relationships may form and exist. The relative positions of the individuals involved in the relationship will determine, what if any necessary action must be taken. In all cases, the person in the position of greater institutional authority must promptly report to his/her department chair, supervisor, Title IX Coordinator, supervising vice president, and President the sexual or romantic relationship so that VCSU may, in accord with policy, assist in separating the professional relationship from the intimate relationship.
1. Undergraduate Students
Trust is essential to sound relationships between individuals of inherently unequal power. Those who teach are entrusted with guiding students, evaluating their work, giving grades for papers and courses, and recommending students to colleagues. Students depend on the integrity of their relationships with those instructors and understandably expect instructors to exercise their authority fairly. The teacher-student relationship must not be jeopardized by possible doubt of intent or fairness of professional judgment, conflicts of interest, harassment, or the appearance to others of favoritism or advantage.
In general, undergraduate students and faculty are vastly different groups of people with regard to age, scope of life experiences, developmental status, and vulnerability. These differences impart greater obligations to those with more institutional authority. In the interests of prudence and fostering a campus environment free of sexual harassment and discrimination, this policy prohibits sexual and/or romantic relationships between faculty and undergraduates at the University regardless of whether an instructional, mentoring, research, or other University-based relationship exists or may reasonably be expected to exist in the future.
This policy prohibits sexual and/or romantic relationships between staff or employees and undergraduates at the University.
This policy also prohibits a graduate student with an academic teaching or academic supervisory role (such as teaching assistant, lecturer, or research assistant) from having a sexual and/or romantic relationship with an undergraduate student whom he or she teaches or supervises during the duration of the teaching or supervisory relationship. For example, a graduate student serving as a teaching assistant may not have a sexual and/or romantic relationship with an undergraduate student during the duration of the course for which the graduate student is serving in that role.
In addition, this policy prohibits coaches, paid and volunteer, of varsity teams and sport clubs from having sexual and/or romantic relationships with undergraduate students on their teams as well as students not on their teams.
2. Graduate Students
Graduate students generally are older and have had more developmental opportunities and life experiences than undergraduates. As a result, the parameters of acceptable romantic or sexual relationships between faculty and graduate students are different than those between faculty and undergraduate students. Although not per se prohibited, relationships between graduate students and faculty must occur within boundaries designed to ensure fairness and minimize the inappropriate exercise of authority. Often third-party witnesses to such a relationship or suspected relationship want the department chair to address the matter but remain silent out of fear of reprisal. Such individuals are encouraged to come forward and are reminded that the policy is to remove the professional connections between the members of the couple.
Thus, a faculty member is required to promptly report to his/her chair and the Title IX Coordinator for the University a romantic or sexual relationship with a graduate student whom she or he teaches, advises, supervises, mentors, recommends for awards, or employment, etc. or may reasonably expect to teach, advise, etc. in the future. The chair will then work with the Human Resource Director to develop and implement a plan to mitigate actual and perceived favoritism and conflicts of interest by establishing an instructional and supervisory arrangement in which all relevant parties may have confidence.
Faculty must keep in mind that a graduate student’s initial consent to a romantic relationship does not preclude a charge of sexual misconduct in the future.
While there may be no apparent impediment to a sexual and/or romantic relationship between a faculty member and a graduate student outside each one’s disciplinary realm, students’ academic interests and pursuits often shift. Beliefs about what is consensual may also shift over time. What may appear to be consensual at one point may subsequently be interpreted as coercive, especially in hindsight and after the end of the relationship. The inherent power differential between a faculty member and a graduate student heightens the risks inherent in such relationships, prompting the University to advise strongly against them altogether even in the absence of a perceived or real conflict of interest.
In addition, any graduate student with an academic teaching or academic supervisory role is prohibited from having sexual and/or romantic relationship with a student whom he or she teaches or supervises during the duration of the teaching or supervisory relationship (e.g., a graduate student serving as a lecturer may not have a sexual and/or romantic relationship with a student who is enrolled in that course during the duration of the course).
3. Other Imbalances of Power within the University
There are multiple imbalances of power within the University. Examples of an unequal power dynamic include supervisor-subordinate, senior faculty member-junior faculty member, mentor-mentee, advisor-advisee, and teaching assistant-student. While not per se prohibited, romantic and sexual relationships must occur within boundaries designed to ensure fairness and minimize the inappropriate exercise of authority. University’s Nepotism Policies speak to some of these situations, and basic ethics and expectations of professionalism may also apply. (See Section VII. C. Related University Policy.)
4. Pre-existing Domestic Partner Relationships Permitted
Pre-existing domestic partner relationships are permitted. A pre-existing domestic partner relationship is a long-term committed relationship that existed prior to registering as a student. For example, a domestic partner of a faculty member may be an undergraduate student at the University without repercussion. Those who are involved in a pre-existing domestic partner relationship must report the relationship to the department chair, supervisor, Title IX Coordinator, the supervising Vice President, and the President.
F. Title IX Complaints
Title IX complaints, including those reporting violence or concerned about VCSU’s compliance with Title IX or Department of Education policies, may be directed to the Title IX Coordinator or Deputy Title IX Coordinator or the Office of Civil Rights, U.S. Department of Education. Complaints may also be directed to any other federal agency. The Title IX Coordinator is responsible for coordinating and overseeing all prohibited conduct complaints, thus ensuring consistent practices and standards in handling complaints.
This policy applies to prohibited conduct on any campus of the University, on any other property or facility used by it for educational purposes, or on the property of a University-related residential organization.
All actions by a student that involve the use of the University computing and network resources from a remote location, including but not limited to accessing email accounts, will be deemed to have occurred on campus.
This policy will apply regardless of the location of the conduct where the President or their designated representative in the person of the Title IX Coordinator determines that either:
1. The alleged prohibited conduct has occurred in the context of a University program or activity; or
2. The conduct poses a substantial threat to the University’s educational mission or to the health or safety of University community members, including potentially contributing to or creating a hostile environment on any campus of the University.
H. Time to File Formal Complaints
To promote timely and effective review, the University strongly encourages complainants and other persons with knowledge of possible violations of this policy to make reports as soon as possible, ideally within sixty days of the alleged prohibited conduct. A delay in reporting may affect the University's ability to gather relevant and reliable information, contact witnesses, investigate thoroughly, and respond meaningfully. It may also affect the University’s ability to take disciplinary action against a student who has engaged in prohibited conduct.
While prompt reporting is encouraged, the University will consider as timely any Formal Complaint that is filed under these procedures.
However, the University is limited and cannot consider a complaint against a student respondent if the respondent is no longer a student as defined by this policy, (e.g., has not graduated or permanently left the University).
If the respondent is no longer a student at the time of the Formal Complaint, and the University is, thus, unable to pursue resolution, it will still seek to meet its Title IX obligations by providing support for the complainant and, as feasible, taking appropriate steps to end any prohibited conduct, prevent its recurrence, and address its effects.
I. Retaliation and Bad Faith Complaints
VCSU prohibits retaliation by its faculty, staff, or students against a person who exercises his or her rights or responsibilities under any federal or state law, including Title IX and VAWA, or this policy. Local, state, and federal laws prohibit any form of retaliation against a person based on that person’s participation in any matters under this policy or that person’s opposition to protected-status discrimination or harassment. Any act of retaliation may be a separate violation of this policy and is subject to sanctions or discipline set forth in the Student Code of Conduct and Employee Code of Conduct.
At the same time, an individual who believes that they are aggrieved because a complaint under this policy is malicious, knowingly false, or fundamentally frivolous, may make a complaint. A party who brings such a bad faith complaint may be found to have violated this policy’s prohibition against retaliation.
J. Others Who Violate this Policy May be Banned
Others found to have violated this policy may be banned from campus and/or otherwise restricted from attending or participating in University activities and programs.
K. Encouragement to Report and Seek Medical Care
Sexual misconduct can be devastating to the person who experiences it directly and can adversely impact family, friends, and the larger community.
Regardless of the definitions provided above, people who believe they have experienced any sexual misconduct are encouraged to report the incident and to seek medical care and support as soon as possible.
L. Recommendations for Complainant
A guiding principle in the reporting of domestic violence, dating violence, sexual assault, and stalking is to avoid possible re-victimizing of the complainant by forcing the individual into any plan of action. It is recommended that a person who has been assaulted consider each of the following:
1. Finding a location where re-victimization will not occur.
2. Avoiding the destruction of evidence by bathing, douching, changing clothes, or cleaning up in any way. Preserve evidence in a paper bag for possible future action. Also, keep copies of emails, text messages, and voice messages.
3. Pursuing medical treatment. Post-assault medical care can be performed at a local emergency room. Many hospitals have a specialized examiner who can complete an exam for victims of sexual violence. Such an exam can help the victim receive an appropriate medical assessment and treatment and can preserve evidence for possible future action.
4. Pursuing counseling services with appropriate agencies (e.g., University Counselor, Employee Assistance Program (EAP), or private providers). Calling someone that is known and trusted, such as a friend or counselor, and discussing with this person the assault can help to evaluate trauma to sort our next steps.
M. Prevention and Education Programs
VCSU provides numerous education programs and awareness campaigns to prevent and promote awareness of sexual assault, domestic violence, dating violence, stalking, rape, and acquaintance rape. In addition to covering the information addressed in this policy, these programs will, among other things, provide information regarding options for bystander intervention and information on risk reduction strategies.
V. General Reporting Guidelines
All members of the VCSU community who have been subjected to prohibited conduct have the right to make a report to VCSU, Office of Civil Rights (for Title IX Complaints), local law enforcement, and/or state police, or choose not to report. VCSU encourages members of the its community who believe that they have experienced misconduct under this policy or become aware of alleged misconduct to report the incident immediately to the University.
A. Responsible Employees Required to Report
Responsible Employees are required to consult with the Title IX Coordinator or Deputy Title IX Coordinator when they become aware of an alleged incident of sexual and related misconduct under its policy, such as dating violence, domestic violence, and stalking, that involves a student as either the complainant or respondent. Responsible employees must report such information regardless of where the incident occurred. Other than sharing such information with the Title IX Coordinator or Deputy Title IX Coordinator, responsible employees will maintain an individual’s privacy to the greatest extent possible.
Designated responsible employees are: administration, faculty, directors, coaches, assistant coaches, athletic trainers, and residence life staff. Confidential resources, including the Director of Counseling Services and the Director of Health Services, are excepted from reporting. While only responsible employees are required to report all incidents of sexual misconduct (including sexual harassment), dating violence, domestic violence, and stalking to the Title IX Coordinator or Deputy Title IX Coordinator for the University, all other members of our community (including students) are encouraged to report such incidents to the Title IX Coordinator or Deputy Title IX Coordinator.
B. Confidential Resources
There are a number of confidential resources for individuals who are unsure whether to report misconduct or who seek counseling or other emotional support in addition to, or without, making a report to the University. For confidential support, one can seek assistance from the following:
VCSU Health and Counseling Services
Dr. Erin Klingenberg
Director of Counseling Services; Licensed Clinical Counselor
email@example.comVCSU Health Services
Betty Tykwinski, MSN, RN
Director of Health Services
Mythaler Hall, first floor
firstname.lastname@example.orgAbused Persons Outreach Center (APO)
Victim Services and Prevention Coordinator
701-845-0078F-M Rape and Abuse Crisis Center
701-293-7273 (available 24 hours)www.raccfm.com
Conversations with the VCSU Health and Counseling Services are kept strictly confidential and, except in rare circumstances, will not be shared without explicit permission. While conversations are confidential, these employees are required by federal law to report that an incident occurred. The employees will not convey any personally identifiable information to the University Title IX Coordinator or any other University officials; however, they may share with the University Title IX Coordinator or Deputy Title IX Coordinator de-identified statistical or other information regarding prohibited conduct under this policy.
Medical and counseling records are privileged and confidential documents that parties will not be required to disclose.
University officials will maintain a person’s privacy to the greatest extent possible. When the information pertains to sexual or related misconduct, the information provided to a non-confidential resource will be relayed to the Title IX Coordinator or Deputy Title IX Coordinator only as necessary for the Title IX Coordinator or Deputy Title IX Coordinator to investigate and seek resolution.
C. Reports to Title IX Coordinator or Deputy Title IX Coordinator
After a report is received by the Title IX Coordinator or Deputy Title IX Coordinator, the Title IX Coordinator will determine who will conduct the investigation. If the Title IX Coordinator is the subject of the complaint, the Human Resource Director will assume the Title IX Coordinator’s role. The Title IX Coordinator is responsible for overall coordination and oversight of all misconduct complaints to ensure consistent practices and standards in handling complaints. The Title IX Coordinator will appoint an investigator. The appointed investigator will contact the complainant, if known, or another individual reporting the prohibited conduct to offer support services, including assistance with academic, housing, transportation, employment, and other reasonable and available accommodations. The individual will also be advised of the option to pursue a formal complaint.
Please note that reporting an incident to the Title IX Coordinator or Deputy Title IX Coordinator for VCSU is private, and it does not mean the person who experienced sexual misconduct, dating violence, domestic violence, or stalking somehow loses control of the process. To the contrary, the Title IX Coordinator or Deputy Title IX Coordinator is here to advise members of our community on their options regarding remaining anonymous, confidentiality, VCSU’s process for investigating complaints of sexual misconduct, dating violence, domestic violence, and stalking, and the VCSU’s disciplinary process. Indeed, in some cases, individuals choose not to move forward with the investigation process, but still request support services. When VCSU receives a report that someone in our community experienced sexual misconduct, dating violence, domestic violence, or stalking, VCSU will provide that person with a written summary of their rights and options, including information on contacting local law enforcement and community-based resources.
D. Process Privacy
To encourage parties and witnesses to fully participate, the University recognizes the importance of privacy. It is in the best interests of all participants to maintain privacy during the process.
Parties are encouraged not to reveal information they learn in the course of their participation in the process other than for the purpose of consulting with advisors and seeking support and advice from family, clergy, health professionals, and others playing a similar role. Parties are also encouraged to request that any advisors and support persons they consult keep information related to matters under this policy private. Parties may choose whether to disclose or discuss with others the outcome of a complaint under this policy.
The University prohibits students from distributing documents obtained in the course of their participation in matters under this policy and applicable procedure. However, students may share these documents for the purpose of consulting with an advisor; seeking support and advice from family, clergy, health professionals, and others playing a similar role; or as part of a civil, criminal, or administrative legal proceeding. As appropriate, the Title IX Coordinator, may issue an order restricting the parties from disclosing specific information.
The University will provide other participants, such as witnesses and hearing and appeal panel members, with instructions about respecting and safeguarding private information. Such persons are obliged to comply with the University’s rules regarding privacy. The University will take reasonable measures to protect the privacy of proceedings and records; however, the University cannot and does not guarantee that privacy will be maintained. Privacy does not mean that the University is constrained from divulging facts of proceedings in appropriate circumstances. Additionally, the University may publicly divulge details of an outcome if one of the parties discloses selective portions of the proceedings, or if the matter is involved in litigation.
E. Leniency for Other Policy Violations
To encourage reports of sexual misconduct, the University offers leniency for other policy violations to a student who reports an alleged violation of this Policy in good faith. For example, if the reporting student was engaged in underage drinking at the time the sexual assault occurred, the University will not sanction the reporting student for underage drinking. The University will not discipline a reporting student for such conduct violations unless the University determines that the violation was egregious. For example, an action that places the health or safety of any other person at risk.
The Title IX Coordinator is responsible for overall coordination and oversight of all misconduct complaints to ensure consistent practices and standards in handling complaints.
The University’s procedures for responding to allegations of aiding prohibited conduct, attempting to commit prohibited conduct, dating violence, discrimination, domestic violence, harassment, physical abuse, sexual assault, sexual exploitation, sexual and gender-based harassment, stalking, and violating an interim measure depends on the nature of the incident, the relationship of the respondent to the institution, and to the extent possible, the wishes of the person bringing forward the complaint.
At times, individuals may have dual roles. For example, a staff member might also be a student. The role in which the individual was acting when the incident occurred will determine which procedure applies. For example, if the incident occurred when the staff member was acting in his or her role as a staff member, the staff member procedure would applyIf the staff member was acting in his or her role as a student, the student procedure would apply.
Anyone who seeks to make a sexual misconduct or Title IX complaint, or report may:
1. File a complaint or report
2. Request interim measures from the Title IX Coordinator;
3. Make an anonymous report; and/or
4. Contact law enforcement to file a criminal complaint and to preserve physical evidence.
An individual may pursue some or all of these steps at the same time. When initiating any of the above, an individual does not need to know whether they wish to request any particular course of action, nor how to label what happened. Before or during this decision-making process, complainants and other reporting persons are encouraged to consult a confidential resource.
A. File a Complaint or Report
Individuals are encouraged to report any alleged sexual misconduct or Title IX violation of this policy directly to the Title IX Coordinator. In order to do so, individuals may use the Formal Report or schedule an appointment with the Title IX Coordinator or Deputy Title IX Coordinator.
Reporting Form: Sexual Misconduct and Title IX Compliance.
Anyone may choose to bring forward a complaint within the University instead of, or in addition to, seeking redress outside the institution in the legal system. Someone with a complaint of sexual assault, domestic violence, dating violence or stalking may also opt to pursue his or her complaint via the legal system without engaging the University's disciplinary process, although, in the interest of community safety, the University may be obliged to address an alleged sexual assault through internal disciplinary procedures and/or campus wide awareness and prevention efforts.
In all cases, the University is committed to providing a prompt, fair, impartial, and thorough investigation and resolution that is consistent with the University’s policies and is transparent to the complainant and the respondent.
B. Request Interim Measures from the Title IX Coordinator
A complainant may request interim measures from the Title IX Coordinator. Interim measures are steps taken to ensure the safety of the complainant and/or University community before the final outcome of any investigation. Such measures may include changes to academic and extra-curricular activities, adjustments to living, transportation, dining, and working arrangements, issuing and enforcing no-contact orders, and honoring an order of protection or no-contact order entered by a State civil or criminal court. Depending on the circumstances, interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation.
C. Anonymous Reporting
With the exception of administration, faculty, directors, coaches, assistant coaches, athletic trainers, and residence life staff who have a duty to report, any individual who believes that they have experienced misconduct or becomes aware of alleged misconduct may make an anonymous report by using the online reporting form:
Reporting Form: VCSU Watch: Anonymous Tip
If a known complainant discloses an incident or incidents of sexual misconduct to the University but asks to remain anonymous during the investigation and/or asks that the University refrain from investigating, the investigator, in consultation with the Title IX Coordinator for the University, will consider how to proceed, taking into account the complainant’s wishes, the University’s obligation to provide a safe and non-discriminatory environment, and the respondent’s right to have specific notice of the allegations and an opportunity to be heard if the University were to take action that affects them. In such circumstances, the investigator may arrange for limited fact-finding to better understand the context of the complaint and explore viable options for investigation, adjudication, and remediation.
Because sexual assault is a serious crime that may threaten the community as a whole, in some instances the University may be obliged to address an alleged sexual assault through internal disciplinary procedures without the cooperation of the individual alleging the assault. Always in such instances, the University will respect the parties’ privacy to the extent possible consistent with its legal obligations and will inform the individual of its obligation to address a community safety issue. All publicly available recordkeeping, including Clery Act reporting and public disclosures, will not contain personally identifying information about the complainant.
The University's ability to investigate and resolve anonymous complaints will be limited if the information contained in the anonymous complaint cannot be verified by independent information.
D. Report to Law Enforcement
All individuals are urged to report immediately to law enforcement any conduct that may constitute a crime. An individual who believes they have experienced sexual or related misconduct prohibited under this policy may choose to report to the University and/or to law enforcement. An individual may pursue either, both, or neither of these options. Reports to the University and law enforcement may be made simultaneously. To make a report to law enforcement, contact one of the following:
911 (for emergencies)
Valley City Police Department
216 2nd Ave NE
Barnes County Sheriff Department
575 10th St SW #4
E. Reports Regarding Prohibited Conduct Against Students
The Procedures for Resolution of Reports Against Student underV520.02 Prohibited Discrimination, Harassment, and Sexual and Related Misconduct will apply where the respondent is a student who is alleged to have engaged in prohibited conduct, including, but not limited to: dating violence, domestic violence, sexual assault, sexual exploitation, sexual-and gender-based harassment, stalking, aiding prohibited conduct, attempting to commit prohibited conduct, retaliation, or violating an interim order. The procedures apply equally to all students regardless of sex, gender, sexual orientation, gender identity, or gender expression. Reports may be made to any of the following individuals:
F. Reports Regarding Prohibited Conduct Against Staff, Coaches, or Assistant Coaches
The procedure outlined in Procedures for Resolution Against Staff under V520.02 Prohibited Discrimination, Harassment, and Sexual and Related Misconduct will apply where the respondent is a staff member who is alleged to have committed including, but not limited to: prohibited discrimination, sexual violence, including sexual assault; sexual and protected-status harassment; or retaliation. Reports may be made to any of the following individuals:
G. Reports Regarding Prohibited Conduct Against Faculty
The procedure outlined in Procedures for Resolution of Reports Against Faculty under V520.02 Prohibited Discrimination, Harassment, and Sexual and Related Misconduct will apply where the respondent is a faculty member who is alleged to have committed including, but not limited to: prohibited discrimination, sexual violence, including sexual assault; sexual and protected-status harassment; or retaliation. Reports may be made to any of the following individuals:
H. Reports Regarding Discrimination in Intercollegiate Athletics Participation
For questions, concerns, or reports of discrimination in participation in intercollegiate athletics under Title IX, contact the Athletic Director. If the Athletic Director is the subject of the complaint, contact the Title IX Director. The procedure outlined in Procedures for Resolution of Reports Against Faculty under V520.02 Prohibited Discrimination, Harassment, and Sexual and Related Misconduct may apply.
I. Reports Regarding Accessibility to Facilities on Campus:
For questions, concerns, or reports regarding accessibility to facilities on campus, contact the Learning Center for Students.
J. Requests for Disability Accommodation
For requests for disability accommodation, contact the Disability Support Services.
K. Reports Regarding Employee Relations and Workplace Concerns
For reports regarding employee relations and workplace concerns, where feasible, first contact the supervisor. If resolution is not reached after discussion with the supervisor, contact the Human Resource Director. If the Human Resource Director is the subject of the complaint, contact the Title IX Director.
VII. References/Related Resources
- U.S. Department of Labor: Title IX, Education Amendments 1972
- 20 U.S. Code §1092 (f): Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act
- 34 U.S. Code §12291: Definitions and grant provisions
- 485(f) of the Higher Educational Act of 2008
- Titles VI and VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 Violence Against Women Act
- Violence Against Women Reauthorization Act (VAWA)
- Civil Rights Act of 1991
- Family Education Rights and Privacy Act (FERPA)
- Age Discrimination in Employment Act of 1967
- Rehabilitation Act of 1973 §504
- Americans with Disabilities Act of 1990
- 34 CFR Parts 100, 106, 104 Department of Education regulations
C. Related University Policy
- North Dakota Human Rights Act 1983
- NDCC §12.1-17-07.1 Stalking
- NDCC §12.1-17-08 Consent as a Defense
- NDCC § 12.1-20-02 Definitions related to Sex Offenses
- NDCC §14-03-03 Void Marriages
- NDCC § 14-07.1-01 Definitions related to Domestic Violence
- NDCC § 15-10-56 Disciplinary proceedings—Right to counsel for students and organizations-- Appeals
- NDUS 308.1 Officer and Employee Code of Conduct
- NDUS 514 Due Process Requirements for Student Conduct that May Result in Suspension or Expulsion
- NDUS 603.1 Harassment
- NDUS 603.2 Equal Employment Opportunity
- NDUS 603.3 Nepotism
- NDUS 605.3 Non-Renewal, Termination or Dismissal of Faculty
- NDUS 605.4 Hearing and Appeals
- NDUS 605.5 Mediation
- NDUS 608.2 NDUS Employees—Non-Renewals and Dismissals
- NDUS 611.4 Employee Responsibility and Activities: Conflict of Interest
- NDUS 612 Faculty Grievances
- NDUS Human Resource Policy Manual 25: Job Discipline/Dismissal
- NDUS Human Resource Policy Manual 27: Appeals Procedures
- V308.01 VCSU Employee Code of Conduct
- V520.01 Code of Student Conduct
- V530.04 University Hearings and Appeals Board
- V603.01.02 Hostile Work Environment
- V603.01.03 Workplace Violence
- V603.02 VCSU Equal Opportunity Employment Plan
- V603.03 Nepotism
- V605.03 Non-Renewal, Termination or Dismissal and Sanction of Faculty Members
- V605.05 Mediation
- V605.09 Faculty Responsibilities
- V612 Faculty Grievance Policies and Procedures
Sponsored by: Vice President for Student Affairs
Reviewed: Winter 1996
Revised: July 2001
Revised Number: February 2010
Revised: January 2012
Revised and consolidating of three policies (V520.02 Sex Offense Policy, V520.03 University Policy on Sexual Harassment, V520.04 Consensual Relationships) into one policy numbered and renamed to V520.02 Prohibited Discrimination, Harassment, and Sexual and Related Misconduct: October 2018