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Sexual Harassment Grievance Procedures (Non-Title IX Sexual Violence)

Brigham Young University prohibits Sexual Harassment. (See Sexual Harassment Policy.1) As described in the Sexual Harassment Policy, the university will respond to allegations of Sexual Harassment by offering Supportive Measures designed to restore or preserve a Complainant’s equal access to BYU’s Education Program or Activity. The university will also follow the applicable grievance process before imposing any disciplinary sanctions or other actions against a Respondent that are not Supportive Measures.

The following procedures describe the university’s equitable, fair, prompt, and impartial response to Formal Complaints of Sexual Violence against a BYU employee or a BYU student that do not fall under federal Title IX regulations because the allegations in the Formal Complaint did not occur in the United States or did not occur within BYU’s Education Program or Activity.

The Title IX Coordinator will follow the Sexual Harassment Grievance Procedures (Title IX) to respond to Formal Complaints of Sexual Harassment occurring against a person in the United States who is participating in or attempting to participate in BYU’s Education Program or Activity, as required by federal regulations under Title IX of the Education Amendments Act of 1972.


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I. Investigation

The university will investigate allegations in a Formal Complaint as follows:

A. Preliminary Investigation and Dismissal

The university will consider the allegations in a Formal Complaint and will dismiss the Formal Complaint with regard to any alleged conduct that would not constitute Sexual Violence, even if proved. Dismissal for this reason precludes any subsequent Formal Complaint alleging the same factual allegations. However, a Complainant may file another Formal Complaint against the same Respondent based on new or additional factual allegations.

If, at any time after the filing of a Formal Complaint, it is determined that the allegations constitute Sexual Harassment that is subject to Title IX, the Formal Complaint will be addressed under the Sexual Harassment Grievance Procedures (Title IX).

The Title IX Coordinator may also dismiss a Formal Complaint or may suspend an investigation if a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein or if specific circumstances prevent gathering evidence sufficient to reach a determination as to the allegations in the Formal Complaint.

Upon a dismissal, the Title IX Coordinator will simultaneously send written notice of the dismissal and the reason for the dismissal to the Parties. Dismissal of a Formal Complaint does not preclude action against the Respondent under the Church Educational System Honor Code, Personnel Conduct Policy, Faculty Discipline and Termination Policy, Banning Policy, or other university policies applicable to the conduct.

B. Selection of the Investigator

Upon receiving or signing a Formal Complaint, the Title IX Coordinator will deliver it to an employee or independent contractor selected by the Title IX Coordinator (Investigator) to investigate the allegations in the Formal Complaint.

C. Notice of Allegations

Upon receipt of a Formal Complaint, the Investigator will collect the information necessary to prepare a written Notice of Allegations and will provide the notice to the known Parties at least five business days before the Respondent’s initial interview. The Notice of Allegations will include the following:

  • notice of the allegations potentially constituting Sexual Violence, including the identities of the Parties involved in the incident (if known), the conduct allegedly constituting Sexual Violence, and the date and location of each alleged incident constituting Sexual Violence (if known)
  • notice of the university’s formal and informal grievance resolution processes
  • notice to the Parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney
  • notice prohibiting any Party from knowingly making false statements or knowingly submitting false information during the grievance process, and informing the Parties that those actions constitute a material violation of the Church Educational System Honor Code commitment to “be honest”
  • notice prohibiting any Party from engaging in retaliation

A Party who wishes to file a Formal Complaint against another Party or individual based on allegations arising out of the same facts or circumstances identified in the Notice of Allegations must file the Formal Complaint within fifteen business days of receiving the Notice of Allegations or becoming aware of the facts on which the Formal Complaint is based, whichever is later. Allegations in any Formal Complaint received under this paragraph may be consolidated or separated as provided in the Sexual Harassment Policy.

If, in the course of an investigation, the Investigator decides to investigate allegations of Sexual Violence about the Complainant or Respondent that are not included in the Notice of Allegations, the Investigator will provide all known Parties with a supplemental Notice of Allegations as to the additional allegations.

D. Information Gathering

The Investigator will provide an equal opportunity for the Parties to identify witnesses, including fact witnesses, and to provide other information, whether the information tends to show the Respondent’s responsibility for Sexual Violence or tends to show the Respondent is not responsible. The Investigator may ask the Parties to provide this information in a written statement and/or through live interview(s). The Investigator will not restrict the ability of either Party to discuss the allegations under investigation with others or to gather and provide relevant information to the Investigator, but the Parties are reminded that any discussions may not violate any protective orders then in force and must not include intimidation, threats, coercion, or discrimination against any person for the purpose of interfering with any right or privilege secured by the Sexual Harassment Policy or these procedures.

The Investigator will seek to collect information sufficient for a three-person review panel (Decision Makers) to make findings of fact and reach a determination as to whether the Respondent engaged in Sexual Violence (Determination Regarding Responsibility) based on the preponderance of the evidence (i.e., evidence sufficient to show that the determination is more likely than not to be true).

The Investigator will consider all relevant information—including information tending to show the Respondent’s responsibility for Sexual Violence and information tending to show the Respondent is not responsible—from the Parties or from other sources, including university records. However, the Investigator will not interview a Party’s ecclesiastical leader, physician, psychiatrist, psychologist, lawyer, or other professional or paraprofessional acting or assisting in that capacity; nor will the Investigator access, consider, disclose, or otherwise use records that are made or maintained in connection with the confidential communication with or treatment by any such person, unless the Investigator obtains that Party’s voluntary, written consent to do so for a grievance process under these procedures. The Investigator will not intentionally require, allow, rely on, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the Party holding such privilege has waived the privilege.

E. Investigation Record

The Investigator will create a record (Investigation Record) consisting of all information obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, regardless of whether the Investigator thinks the information is relevant.

F. Investigative Report

At least 10 business days before the conclusion of the investigation, the Investigator will create a report (Preliminary Investigative Report) that

  • identifies the allegations potentially constituting Sexual Violence and the Respondent’s responses to each allegation;
  • describes the procedural steps taken following the receipt of the Formal Complaint, including notifications to the Parties, interviews with Parties and witnesses, site visits, and methods used to gather other evidence;
  • impartially summarizes the relevant evidence;
  • makes recommended findings of fact; and
  • makes any other recommendations the Investigator deems appropriate.

The Investigator will simultaneously send the Preliminary Investigative Report and the Investigation Record to each Party and each Party’s advisor, if any, through a file-sharing platform that provides the Parties with read-only access and maintains the confidentiality of the transmitted data.

Each Party and advisor must maintain the confidentiality of all information in the Preliminary Investigative Report and the Investigation Record, must use this information only for purposes of these procedures, and must not further distribute or disclose this information. The university may seek appropriate sanctions against a Party or an advisor who violates a confidentiality obligation under these procedures.

After the Investigator sends the Preliminary Investigative Report and Investigation Record to the Parties, they will have 10 business days to submit a written response, which the Investigator will consider prior to finalizing the Investigative Report. Any written response and any additional evidence provided in connection with a Party’s written response will be added to the Investigation Record. After the deadline for the Parties to submit their written responses to the Preliminary Investigative Report and Investigation Record has passed, the Investigator will promptly finalize the Investigative Report and send it and the Investigation Record to the Decision Makers.

The Investigator will, in good faith, attempt to conclude the investigation and issue the Preliminary Investigative Report and Investigation Record to the Decision Makers within 90 calendar days of receiving the Formal Complaint of Sexual Violence. If, as a result of the complexity of a case or other good cause—including considerations such as the absence of a Party, a Party’s advisor, or a witness; ongoing law enforcement activity; or the need for language assistance or accommodation of disabilities—the investigation cannot reasonably be concluded within the 90-day period, the Investigator will provide the Complainant and the Respondent with written notice of the delay and the reason for the delay or extension.


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II. Determination Regarding Responsibility

The Decision Makers, who are authorized to impose all sanctions described in the Sexual Harassment Policy, will be determined as follows:

  • for a student Respondent, an associate dean of students or designee, the director of BYU Counseling and Psychological Services or designee, and a Decision Maker designated by the Title IX coordinator; if the alleged Sexual Violence occurred in a student employment context, the Decision Makers will also include the student employee’s immediate supervisor and the managing director of Employee Relations or designee
  • for a faculty Respondent, the academic vice president or designee, the faculty member’s dean or immediate supervisor, and a Decision Maker designated by the Title IX coordinator
  • for an administrative or staff employee Respondent, the responsible vice president or assistant to the president or designee, the managing director of Employee Relations or designee, and a Decision Maker designated by the Title IX coordinator
  • for an athletic professional Respondent, the advancement vice president or designee, the manager of faculty relations or designee, and a Decision Maker designated by the Title IX coordinator

Neither the Title IX coordinator nor the Investigator may serve as a Decision Maker. However, the Title IX coordinator will serve as a non-voting resource to assist the Decision Makers.

The Decision Makers will objectively evaluate all evidence in the Investigative Report and Investigation Record, and, by a majority vote, make a Determination Regarding Responsibility based on the preponderance of evidence. At the Decision Makers’ discretion, the Investigator may be invited to respond to questions about the Investigative Report and the Investigation Record. The Decision Makers’ discussions with the Investigator and their deliberations will be closed to the Parties and their advisors. Remedies provided by the Decision Makers may include Supportive Measures and disciplinary sanctions against the Respondent as detailed in the Sexual Harassment Policy.

Within 60 days of the Investigator’s transmission of the Investigative Report and Investigation Record, the Decision Makers will simultaneously issue a written Determination Regarding Responsibility to the Parties and their advisors, if any, and the Title IX Coordinator.

The Determination Regarding Responsibility must include the following:

  • findings of fact supporting the Determination Regarding Responsibility
  • conclusions regarding the application of the Sexual Harassment Policy to the facts
  • a statement of, and the rationale for, the result as to each allegation, including
    • a Determination Regarding Responsibility
    • any disciplinary sanctions the university imposes on the Respondent
  • the procedures and permissible bases for the Complainant and Respondent to appeal and the date the Determination Regarding Responsibility becomes final

The Parties will be simultaneously notified of any delay in issuing the Determination Regarding Responsibility and the reason for the delay and of any changes to the Determination before it becomes final.

The Title IX Coordinator is responsible for coordinating the implementation of any remedies identified in the Determination Regarding Responsibility with the university units and management personnel authorized to implement the remedies.


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III. Appeal

A Party who is unsatisfied with the Decision Makers’ Determination Regarding Responsibility (Appealing Party) or notice of dismissal may submit an appeal within 10 business days of the date of the email delivery of the Determination Regarding Responsibility. An appeal is not a reconsideration of the case but is limited to the contents of the Determination Regarding Responsibility and the Investigation Record. The Appealing Party must show at least one of the following:

  • A procedural irregularity affected the outcome of the matter.
  • New evidence that was not reasonably available at the time the Determination Regarding Responsibility or dismissal was made, that could affect the outcome of the matter. This new evidence and an explanation of both why it was unavailable at the time the Determination Regarding Responsibility was made and its potential impact must be included in the appeal.
  • The Title IX Coordinator, Investigator, or any Decision Maker had a conflict of interest, a bias for or against Complainants or Respondents generally, or a preexisting bias against the individual Complainant or Respondent that affected the outcome of the matter.

An appeal may not exceed five pages in length and must be submitted to the Title IX Coordinator, who will send a copy of the appeal to the non-appealing Party (Non-appealing Party) and advisor, if any. The Non-appealing Party will have 10 business days after the delivery of the appeal to provide a response, which may not exceed five pages in length, to the Title IX Coordinator. The Title IX Coordinator will promptly send the appeal and response, if any, to a designated appeal reviewer (Reviewer) for review.

The Reviewer will be determined as follows:

  • The Reviewer of a determination involving a student Respondent, including a student employee, will be the dean of students.
  • The Reviewer of a determination involving a faculty Respondent will be the academic vice president or an associate academic vice president designated by the academic vice president. However, if the academic vice president was a Decision Maker or if the sanction imposed by the Decision Maker is for the involuntary termination of a faculty member with continuing faculty status (CFS) or in a CFS-track position, the university president will be the Reviewer and will make the decision after a hearing before a Termination Hearing Committee (See Faculty Discipline and Termination Policy.)
  • The Reviewer of a determination involving an administrative or staff employee Respondent will be the employee’s responsible vice president or the assistant to the president. However, if the employee’s responsible vice president or the assistant to the president was a Decision Maker or if the sanction imposed by the Decision Maker is for the employee’s involuntary termination, the Human Resources Committee (HRC) will be the Reviewer. Any HRC members who were involved in the Determination Regarding Responsibility or dismissal will be recused from the HRC’s review of the appeal.
  • The Reviewer of a determination involving an athletic professional Respondent will be the advancement vice president or a director or managing director designated by the advancement vice president. However, if the advancement vice president was a Decision Maker or if the sanction imposed by the Decision Maker is for the involuntary termination of an athletic professional, the university president will be the Reviewer and will make the decision after a hearing before a Termination Hearing Committee. (See Faculty Discipline and Termination Policy.)

Except as provided in the Faculty Discipline and Termination Policy for the appeal and hearing of a decision terminating the employment of a CFS or CFS-track faculty member or athletic professional, the Reviewer will not interview the Parties or consider any information outside the Determination Regarding Responsibility, the Investigative Report, and the Investigation Record.

Within 30 business days of receiving the appeal, the Reviewer will simultaneously provide the Parties and the Title IX Coordinator with a written Determination Regarding Responsibility upholding, reversing, or amending all or part of the original Determination Regarding Responsibility and providing the Reviewer’s rationale for the result. If the Reviewer cannot reasonably consider and resolve the appeal within 30 calendar days, the Reviewer will simultaneously advise the Parties as to when the appeal decision will be provided. The Reviewer’s Determination Regarding Responsibility is final, and no further review will be allowed.

The Title IX Coordinator is responsible for coordinating the implementation of the Reviewer’s Determination Regarding Responsibility with the university units and management personnel authorized to implement the actions. In cases where the Reviewer’s Determination Regarding Responsibility results in reinstatement to the university or resumption of privileges, all reasonable attempts will be made to restore the Respondent’s prior status.


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IV. General Provisions

A. Impartiality

These procedures will be conducted by individuals who do not have a conflict of interest or bias for or against the Complainant or the Respondent.

B. Confidentiality

Parties to the investigation of a Formal Complaint are not restricted from discussing the allegations under investigation, especially as necessary to gather and present relevant evidence. However, given the sensitive nature of Sexual Violence allegations and the potential for damage to the Parties’ personal reputations, all participants in the grievance process, including individuals who have made a report of Sexual Violence, Complainants, Respondents, advisors, and witnesses, are requested to keep the allegations and investigation proceedings confidential insofar as possible. Any use or dissemination of information relating to the allegations or investigation that is intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by the Sexual Harassment Policy or these procedures is prohibited retaliation.

Records kept by the university relating to Sexual Harassment allegations (including Sexual Violence allegations) are not publicly available, but in the event the university is required to make any records publicly available, any identifying information about the Parties will be redacted, to the extent permissible by law, to protect the Parties’ confidentiality.

C. Advisors

An investigation under these procedures is an internal university student or employment disciplinary matter. The Parties may invite an advisor of their choice to accompany them to meetings related to the investigation or resolution of a Formal Complaint of Sexual Violence that the Parties are invited to attend. The advisor may be a friend, mentor, family member, attorney, or any other person selected by the individual to provide advice and support. The university will not typically change scheduled meetings to accommodate an advisor’s inability to attend. Individuals may elect to change their advisor during the investigative process and are not required to use the same advisor throughout the process.

An advisor may attend for purposes of observation but will not be permitted to represent a Party, to respond to questions posed to the Party they advise, or to otherwise participate in any meeting or proceeding that may take place under these procedures. Advisors are subject to campus rules and are expected to refrain from interference with the university investigation and resolution process. Advisors are not permitted to contact the other Party or any witness.

The university will not provide an advisor for a party. Although all Parties have the same opportunity to have an advisor present, the university cannot guarantee equal advisory rights when it comes to advisors (e.g., if one Party selects an attorney as their advisor, but the other Party does not have or cannot afford an attorney, the university is not obligated to provide one).

D. Notice, Delivery of Documents, and Extensions of Time

Any Party whose participation is invited or expected in proceedings described in these procedures will receive written notice of the date, time, location, participants, and purpose of the proceeding, which will be provided in sufficient time for the Party to prepare to participate.

Delivery of documents occurs when a Party receives documents in person, when they are sent by email to the Party’s email address on file with the university, or three days after they are posted by U.S. Mail to the Party’s residential address on file with the university.

A Party may ask the Title IX Coordinator or designee for an extension of any deadline imposed by these procedures. The Title IX Office, in consultation with the Investigator or Reviewer, will grant the extension only for good cause with written notice to the other Party of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a Party, a Party’s advisor, or a witness; ongoing law enforcement activity; or the need for language assistance or accommodation of disabilities.

E. Record Keeping

The university will maintain records related to the application of these procedures for a period of seven years or as required by the Information and Records Retention Policy, whichever is longer.

 

1 Capitalized terms in these procedures are defined in the Sexual Harassment Policy or as indicated herein.