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Sexual Misconduct

Sexual misconduct offenses / Complaints / How to File a Complaint / Privacy/Confidentiality / Charges, Investigations, and Determinations / Appeals / Your Rights and Responsibilities as a Respondent

Vanderbilt University desires to establish and maintain a safe and healthy environment for all members of the University community, guests, and visitors. The University, by providing resources for prevention, education, support, reporting, investigation, and a fair disciplinary process, seeks to eliminate all forms of sexual misconduct. Sexual misconduct is a form of sex discrimination prohibited by Title IX. Title IX is the federal law that prohibits discrimination on the basis of sex (http://www.vanderbilt.edu/ead/ea_laws.html#a3). Sexual misconduct of any kind represents socially irresponsible behavior. Sexual misconduct, as described and defined in this policy, will not be tolerated and will subject a perpetrator to penalties up to and including expulsion.

Sexual misconduct offenses include the following

  • Non-Consensual Sexual Intercourse
  • Non-Consensual Sexual Contact
  • Sexual Harassment
  • Actions that fall within the broader range of “sexual misconduct” as described in “Other forms of sexual misconduct” below

Definitions of sexual misconduct offenses:

  • Non-Consensual Sexual Intercourse is any vaginal and/or anal penetration – however slight – by a penis, object, tongue, or finger, and/or oral copulation (mouth to genital contact), by any person upon another without effective consent.
  • Non-Consensual Sexual Contact is any contact of a sexual nature – however slight – with the breasts, buttocks, groin, genitals, mouth, or body part of another, by any person upon another without effective consent. Sexual touching also includes an individual causing someone else to touch him or her with, or on, any of these body parts.
  • Sexual Harassment is
  • unwelcome conduct of a sexual nature, that is
  • sufficiently severe, pervasive, or persistent (as determined using a reasonable person standard) such that
  • it interferes with, limits, or deprives a student of the ability to participate in or to receive benefits, services, or opportunities from the University’s educational programs or activities, and can be based on
    • power differentials,
    • the creation of a hostile environment,
    • or retaliation.
  • Other forms of sexual misconduct include, but are not limited to, the following:
  1. Invasion of privacy of a sexual nature
  2. Procuring, offering, or promoting prostitution
  3. Intentional transmission of HIV (human immunodeficiency virus) or another STD (sexually transmitted disease)
  4. Attempts to commit sexual misconduct
  5. Aiding in the commission of sexual misconduct as an accomplice

Clarifications:

Force includes physical force (such as pushing, hitting, pinning down), threats (direct or indirect expressions of harm to self or others), intimidation (implied or indirect threats), and/or other forms of coercion.

To coerce is to attempt to cause another person to act or think in a certain way by use of pressure, threats, or intimidation; to compel is to coerce.

Blacking out is an amnesia-like state that may be brought on by drugs, heavy drinking, or intoxication; blacking out is not necessarily incompatible with the ability to engage in simple or even complex behavior. Afterwards the person has no recollection of all or part of the events that occurred during the blackout. There is a distinction between passing out (falling asleep or becoming unconscious) due to drug or alcohol use and blacking out in that a person in a blackout remains conscious and operative.

Incapacitation includes the inability to make a rational, reasonable decision. Incapacitation can result from the taking of GHB, Rohypnol, Burundang, Ketamine, or other sedatives or “date-rape” drugs, or excessive use of alcohol or other drugs. Evidence of incapacity may include, but is not limited to, one or more of the following:

  • slurred speech
  • bloodshot eyes
  • the smell of alcohol on the breath
  • shaky equilibrium
  • vomiting
  • outrageous or unusual behavior
  • unconsciousness
  • elevated blood alcohol level
  • blacking out

It is the burden of the person wishing to engage in sexual activity with another to specifically determine the capacity of that potential sexual partner to provide “Effective Consent,” as explained below.

Intoxication refers to a state of stupefaction, exhilaration or euphoria resulting from the ingestion of alcohol or other chemical substances.

Blacking out, incapacitation and intoxication do not provide a valid explanation or excuse for violation of the Sexual Misconduct policy.

Effective Consent is consent that is informed, freely and actively given, and consists of mutually understandable words or actions indicating a willingness to engage in mutually agreed-upon sexual activity.

  • Because of the need for clear communication, the person who wishes to engage in sexual activity with another bears the burden of specifically asking permission if effective consent is in question or ambiguous.
  • Mutually understandable effective consent must be obtained and maintained by both parties throughout the sexual interaction.
  • Effective consent to sexual activity may be revoked at any time, at which point sexual activity must cease immediately.
  • A person who is the object of sexual aggression is not required to physically or otherwise resist a sexual aggressor in order to convey or demonstrate a lack of effective consent. The Sexual Misconduct policy is predicated upon the requirement to obtain effective consent (communicating “yes” by word or action) rather than denial (saying “no”).
  • Previous sexual relationships of the accused or the accuser with others are irrelevant, but previous and/or a current sexual relationship between the accused and the accuser may or may not be relevant depending on the facts and circumstances, as to whether effective consent was sought or obtained.
  • Effective consent expires. Effective consent lasts for a reasonable time, depending on the circumstances. For example, effective consent on one occasion, whether on the same day or another day, may not carry over to another time.
  • Effective consent cannot be implied by attire, inferred from the buying of dinner, the spending of money on a date, or being invited to a person’s residence.
  • One who is incapacitated as a result of alcohol or other drug consumption (voluntary and/or involuntary), or who is unconscious, unaware, asleep, or otherwise physically helpless, is incapable of giving effective consent. Because effective consent must be informed, an individual may not engage in sexual activity with another whom the individual knows, or should reasonably know, is incapacitated.
  • Incapacitated persons are considered incapable of giving effective consent because they lack the ability to appreciate the fact that the situation is sexual, and/or cannot rationally and reasonably appreciate the nature and extent (who, what, when, where, why and how) of that situation.
  • Because effective consent may never be provided by an incapacitated person, one must assume effective consent has been withdrawn should an individual become incapacitated at any point during a sexual act or encounter.
  • Agreement or acquiescence obtained through the use of fraud or force (actual or implied), whether that force be physical force, threats, intimidation, or other forms of coercion, is not effective consent.
  • A person’s age may be a factor in determining the ability to give effective consent. Each determination will be made on a case-by-case basis.
  • Agreement or acquiescence is not effective consent when given by the following:
  • individuals with a cognitive disability or other conditions that significantly limit their ability to fully understand the nature or extent of the action for which effective consent was requested;
  • incapacitated persons. (See “Incapacitation” above.)

Depending on the facts and circumstances, proof of intent may or may not be required to find a violation of the Sexual Misconduct policy. For example, engaging in intercourse without obtaining effective consent constitutes a violation of the policy regardless of intent. On the other hand, intent may be an appropriate consideration in some sexual misconduct complaints (such as when one person brushes up against another person in a sexual manner in a crowded room), and in other actions that fall within the broader range of sexual misconduct.

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Complaints

The Equal Opportunity, Affirmative Action and Disability Services Department (EAD) investigates all complaints pertaining to alleged sexual harassment/sexual misconduct. Retaliation against a person who files a complaint, participates in an investigation, encourages one to file, or opposes discrimination is prohibited.

Students who believe they have been the subject of a violation of University policy pertaining to matters of sexual harassment, discrimination, or retaliation should contact the EAD. Complaints may be filed at any time; however, it may be to the complainant’s advantage to contact the EAD as soon as possible after the act in question occurred. If the EAD is not the proper place to handle the complaint, it will direct the complainant to the appropriate department.

Students also have the right to contact the Vanderbilt University Police Department or the Metro Nashville Police Department and to file a complaint with them. The filing of a police report or the pendency of civil or criminal proceedings does not preclude the EAD or any other department of Vanderbilt University from proceeding with its investigation and determination.

Vanderbilt University Police Department
2800 Vanderbilt Place
Nashville, TN 37212
615-32(2-2745)
Emergency – 911 or 615-42(1-1911)
http://police.vanderbilt.edu/

Metro Nashville Police Department Headquarters
200 James Robertson Parkway
Nashville, TN 37201
615-862-7400
Emergency – 911
http://www.police.nashville.gov

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How to File a Complaint

To file a complaint pertaining to the Sexual Misconduct policy, please contact the University’s Title IX Coordinator, Anita Jenious, the Director of the EAD, at 615-32(2-4705), visit the office, or write.

Campus Address:
Baker Building, Suite 808

Located at:
110 21st Avenue South
Nashville, TN 37203

Mailing Address:
PMB 401809
2301 Vanderbilt Place
Nashville, TN 37240-1809

If a complainant calls or visits the EAD, a staff person will assist with the preparation of a brief summary of the incident. A complainant should provide as many details about the incident as possible and answer all questions as fully as possible. Names, dates, places, and details of what happened should be as accurate as possible. Supporting documents, such as emails, photos, or text messages can help to support allegations. If witnesses were present, it is important to identify them, state what they may know, and inform the EAD how they can be contacted. If a complainant writes to the EAD, the following information should be included: what happened and when; names of all parties involved, including witnesses (if any); supporting documentation (if any); and contact information. Students are encouraged to complain about sexual misconduct or sexual harassment even if some or all of the information outlined above is unavailable or cannot be provided.

An EAD staff person will assess the nature of the complaint and either submit the complaint to the Director or refer the complainant to the appropriate department. If the complaint falls within the EAD’s purview, an investigator will contact the complainant to set up a time for further discussion. If appropriate, the investigator will assist the complainant in completing a complaint form, and once signed, an investigation will follow.

Other campus offices such as the Office of Housing and Residential Education at 615-32(2-2591), the Margaret Cuninggim Women’s Center at 615-32(2-4843), Project Safe at 615-32(2-7233), the Office of Religious Life at 615-32(2-2457), Student Health at 615-32(2-2427), and the Psychological and Counseling Center at 615-32(2-2571) are available to provide counseling and support to students who believe they have been subjected to sexual harassment, which includes the forms of sexual misconduct delineated above.

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Privacy/Confidentiality

Reports, cases, investigative information, findings, and sanctions are kept private to the extent possible and are only disclosed to those who have a need or a right to know. In certain situations (e.g., where disciplinary action is taken against a respondent), particular disclosures may be required by applicable laws and regulations.

Students should be aware that employees of Vanderbilt may have an obligation to report an incident to their supervisor, or the police, or the EAD, or other offices. If students wish the details of an incident be kept confidential, they may speak with a mental health professional at the Psychological and Counseling Center, a health practitioner at Student Health, or members of the clergy and chaplains acting in those capacities when an incident is reported to them. Students should also be aware that Tennessee law requires child abuse, including sexual abuse, to be reported to the authorities, even if the information is given or received on a confidential basis.

Directives to Desist:

Given the nature of sexual misconduct cases, students may request use of a “Directive to Desist.” These directives often require that the complainant and a respondent have no contact with each other during the course of the investigation and/or thereafter. The University may also employ such directives at its own discretion as deemed necessary. Additional information about such directives may be found in Chapter 3 of the Student Handbook under the section, “Threat, Harassment, Stalking, Intimidation: Directives to Desist” (http://www.vanderbilt.edu/student_handbook/student-conduct#threat).

Charges, Investigations, and Determinations

Upon receipt of a complaint, the EAD will open a formal case file and assign an investigator who will direct the investigation and confer with the Office of Student Conduct & Academic Integrity as to interim accommodations for the complainant and any other interim actions that are appropriate. Note that mediation will not be used to resolve cases of sexual misconduct.

Before beginning the investigative process, the EAD investigator will provide a copy of the complaint and any additional statements or information provided by the complainant to the Director of Student Conduct (or designee), who will determine the charge(s) to be brought, if any, and present the charge(s) to the respondent. After the presentation of the charge(s), the respondent will have the opportunity to agree or disagree with the charge(s). The Director of Student Conduct will then refer the respondent to the EAD for the investigative process.

The process will then follow EAD’s standard investigative protocol. The EAD investigator will seek a response from the respondent. The investigator will interview relevant persons who may have pertinent knowledge. Supporting documentation may be collected and analyzed. The EAD staff may ask the complainant to clarify some aspects of the complaint. If the complainant learns or remembers any additional information, the complainant should notify the EAD investigator immediately. Note that the past sexual relationship between the parties may or may not be deemed relevant to the investigation by the EAD. For example, past sexual encounters between the parties may provide insight on communication patterns for purposes of determining effective consent.

At the conclusion of the investigation, the EAD will determine, based on the preponderance of the evidence, whether the alleged acts occurred and violate the Sexual Misconduct policy. Where there is insufficient evidence to support a violation of the Sexual Misconduct policy, the EAD will provide its determination in writing to the complainant and the respondent, notifying them that the matter will be closed with no action taken. Where there is sufficient evidence to support a violation of the Sexual Misconduct policy, the EAD will provide its determination in writing to the complainant and the respondent. The determination and a full investigative report will also be forwarded to the Director of Student Conduct for sanctioning where the respondent is found responsible for the alleged violation(s).

Sanctioning:

The Director of Student Conduct (or designee) will determine the sanctions if and when the EAD determines the Sexual Misconduct policy has been violated by the respondent. The following procedures will apply:

  • The Director of Student Conduct will review the EAD’s investigative report and render an appropriate sanction.
  • If, upon reviewing the materials, the Director of Student Conduct requires clarification or additional information from the EAD before rendering a decision as to sanction, the Director may request such clarification or additional information from the EAD.

The guidelines provided in the “Disciplinary Sanctions” section of Chapter 3 of the Student Handbook will apply. The following policies will also apply:
The recommended guidelines for sanctions are set forth below. The Director of Student Conduct may deviate from the range of recommended sanctions when it is appropriate based on all the facts and circumstances to do so.

  • The presumptive sanction for any student found responsible for Non-Consensual Sexual Intercourse is suspension or expulsion, depending on the severity of the incident and other relevant considerations, and taking into account any previous conduct infractions.
  • Any student found responsible for Non-Consensual Sexual Contact or other forms of sexual misconduct, including sexual harassment, may face a sanction ranging from a reprimand to expulsion, depending on the severity of the incident, and taking into account any previous conduct infractions.
  • Psychological counseling will be required for any student found responsible for a violation of the Sexual Misconduct policy who receives a sanction other than expulsion. In addition to this condition, in cases of suspension, the Director of Student Conduct may set other conditions for readmission to Vanderbilt.

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Appeals

The complainant and the respondent have the right to appeal the determination of the EAD and the sanction (if any) rendered by the Director of Student Conduct.

Such appeals will be decided by an Appellate Officer for Sexual Misconduct. Officers will be faculty or academic administrators appointed by the Chancellor (or the Chancellor’s designee) for two or three year terms, who will receive training on issues involved in sexual misconduct. Assignment to cases will be on a rotating basis.
A petition for appeal, signed by the petitioning student, must be submitted in writing, to the Appellate Officer for Sexual Misconduct at either 310 Sarratt or at the following address:
Appellate Officer for Sexual Misconduct
PMB 351508
2301 Vanderbilt Place
Nashville, TN 37235-1508

The appeal must be submitted no later than ten (10) calendar days following the date the student is notified of the determination of the EAD (when the student is found not to have violated the policy), or following the date the student is notified of the sanction. Requests for extensions must be submitted prior to the expiration of the ten-day period. The petition must include the following: a statement of the grounds for appeal, supporting explanation, and copies of, or reference to, all evidence the Petitioner wishes the Officer to consider. Except as explicitly provided below, no documents or other evidence may be included with an appeal unless previously submitted to the EAD.
Grounds for Appeal

The grounds for appeal are as follows:

  • Procedural irregularities sufficient to affect the determination of the EAD and/or the decision of the Director of Student Conduct.
    • The EAD and the Director of Student Conduct are expected to conduct themselves in accordance with their policies and procedures. Deviations from those policies and procedures that render their actions fundamentally unfair constitute a sufficient basis for an appeal to the Appellate Officer for Sexual Misconduct. Procedural irregularities that are considered by the Officer to be harmless and did not, in the judgment of the Officer, adversely affect the process, are not a basis for upsetting the determination of the EAD and/or the decision of the Director of Student Conduct.
  • Insufficient evidence to support the determination of the EAD.
    • It is not the role of the Appellate Officer for Sexual Misconduct to substitute his/her judgment for the judgment of the EAD if there is a reasonable basis for the EAD’s determination. Deference must be given to the findings of the EAD, which had the opportunity to hear the witnesses and to assess their credibility and demeanor. The Officer may not alter the determination of the EAD unless the determination of the EAD is clearly erroneous and cannot be reasonably supported by the evidence.
  • New evidence that was not reasonably available for presentation to the EAD, the introduction of which could reasonably be expected to affect the determination of the EAD.
    • All available evidence, including testimony of witnesses, is expected to be presented to the EAD. Only on that basis can the EAD render fair and reasonable decisions. A student who seeks to introduce new evidence has the burden of demonstrating that the evidence was not reasonably available at the time of the original process, and that the introduction of such new evidence can be reasonably expected to affect the determination of the EAD. If the Appellate Officer for Sexual Misconduct determines that the student has satisfied this burden, the Officer remands the case to the EAD with instructions to reconsider the case in light of the new evidence.
  • Harshness of the penalty imposed by the Director of Student Conduct sufficient to show an abuse of discretion.
    • Deference should be given by the Appellate Officer for Sexual Misconduct to the penalties imposed by the Director of Student Conduct. At the same time, the Officer should recognize that the Director of Student Conduct can make errors in judgment sufficient to show an abuse of discretion. Abuse of discretion does not necessarily imply an intentional wrong or bad faith, but simply the failure to exercise reasonable judgment under the circumstances.

Consideration of Petition and Determination of Appeal

  • When the Appellate Officer for Sexual Misconduct receives a petition, the Officer instructs the Director of Student Conduct to notify all persons who were sent formal notification of the determination of the EAD and the sanction (if any) that a petition for appeal has been filed and that the sanction (if any) should not be implemented pending the result of the appeal. This does not preclude the University from taking interim actions to ensure the safety and security of the complainant, respondent, or campus community.
  • Upon receipt of the petition, the Officer will also request from the EAD and/or the Director of Student Conduct the entire record of the case.
  • The Officer will then proceed to review the petition and the record with all deliberate speed to determine whether the petition, when considered in the light most favorable to the Petitioner, presents sufficient grounds for an appeal.
  • If the Officer determines that the petition does not set forth sufficient grounds for the appeal, the petition is dismissed. The Officer’s decision is final.
  • If the Officer determines that sufficient grounds for appeal are presented in the petition, the Officer forwards a copy of the petition to the EAD and/or the Director of Student Conduct as well as the non-petitioning student with instructions to respond to it (or such parts of the petition that the Officer has determined set forth a basis sufficient to provide relief). The EAD and/or the Director of Student Conduct as well as the non-petitioning student must provide their responses to the Officer within ten (10) calendar days of receiving the Officer’s notification that the appeal will be considered further. The EAD and/or the Director of Student Conduct also forward to the Officer the entire record of the case. Upon receiving the responses from the EAD and/or the Director of Student Conduct as well as the non-petitioning student, the Officer sends the responses to the Petitioner offering the Petitioner an opportunity to reply. Replies must be submitted within five (5) calendar days. The Officer forwards a copy of the responses to the EAD and/or the Director of Student Conduct for informational purposes.
  • The Officer then proceeds to consideration of the appeal. The Officer’s consideration of the appeal must be based only on the original records created by or provided to the EAD and/or the Director of Student Conduct and the petition, any new evidence the Officer determines should be considered, and all responses submitted by the involved parties.
  • After reviewing the record, the Officer decides whether to affirm, modify, or reverse the determination of the EAD and/or the decision of the Director of Student Conduct or to remand the case to the EAD and/or the Director of Student Conduct with instructions.
    • In cases where there has been a procedural error on the part of the EAD and/or the Director of Student Conduct, the Officer remands the case to the EAD and/or the Director of Student Conduct with instructions.
    • In cases where the Officer deems that new evidence should be considered, the Officer remands the case to the EAD with instructions.
  • The Officer notifies the complainant, the respondent, the EAD, and the Director of Student Conduct (who, in turn, notifies all persons who were sent formal notification of the original determination of the EAD and decision of the Director of Student Conduct (if any)) of the Officer’s decision and the reasons for the decision.
  • While a case is pending, policy changes that might affect the case cannot be considered in the appeal.
  • If the Officer has a question about the meaning or application of a University policy or procedure, the Officer may consult with the Dean of Students and Office of General Counsel to determine how best to proceed. At no time may the Officer substitute his/her opinions or values for University policy.
  • An Officer may not address an appeal if the Officer has a conflict of interest that might render the Officer’s objectivity questionable. Each Officer is responsible for determining whether or not a conflict of interest exists and may consult with the University Compliance Office, if necessary. If a conflict does exist, the case is assigned to the next panelist in the rotation.
  • Once a final determination has been made, all records of the EAD and/or the Director of Student Conduct are returned to that authority.

Additional Petition for Penalty of Expulsion

Students who have been expelled from Vanderbilt University may, upon completion of the appeals process, submit a written petition within ten (10) calendar days to the Provost or the Provost’s designee, requesting reconsideration of the penalty of expulsion. The decision of the Provost or the Provost’s designee is final.

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Your Rights and Responsibilities as a Respondent

As the person responding to the complaint, you will be informed of the allegations and given an opportunity to ask questions, provide information, and offer names of witnesses or other people with relevant information. The EAD attempts at all times to protect you from unfounded allegations.  As such, it expects full and truthful cooperation from you and that you will respect the confidential nature of the process.

If it considers it appropriate to further its investigation, the EAD may request access to premises, records and documents relevant to the complaint. Your cooperation can help foster a fair decision on the complaint.

Consistent with Vanderbilt’s policies, you must not retaliate against a person who files a complaint, participates in an investigation, encourages one to file, or opposes discrimination. In addition, you must not interfere with an investigation.

Timeline:

The investigative process will typically be completed within 60 calendar days. Given the many variables and factors that may arise in such cases, additional time may be needed in some cases. Any deviation from the 60-day time frame will be communicated in writing or by email to both the complainant and the respondent, along with a new timeline.

Limited Disciplinary Immunity for Complainants and Witnesses:

Individuals with information about sexual misconduct complaints may hesitate to come forward out of fear that their own violations of University policy would be revealed in reporting sexual misconduct. Students should not be discouraged from reporting incidents of sexual misconduct and assisting victims in times of crisis. Vanderbilt University does not condone infractions of policy, but considers reporting incidents of sexual misconduct to be of paramount importance. Therefore, the University may extend limited immunity for alcohol or substance abuse violations to potential witnesses in order to facilitate reporting and resolution of sexual misconduct complaints.

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