Brigham Young University prohibits Sexual Harassment. (See Sexual Harassment Policy.) The following procedures describe its response to allegations of Sexual Harassment. Please see the Appendix for the definitions of capitalized terms.

The Title IX Office investigates allegations in a Formal Complaint as follows:

1.1  Preliminary Assessment

The Title IX Coordinator assesses the allegations in a Formal Complaint and makes a preliminary determination as to whether the alleged conduct occurred against a person in the United States who is participating in or attempting to participate in BYU’s Education Program or Activity.

The Title IX Coordinator dismisses a Formal Complaint alleging conduct that would not constitute Sexual Harassment, even if proved. The Title IX Coordinator may dismiss the Formal Complaint or any of its allegations or may suspend an investigation if, at any time during the investigation or hearing,

• a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein;
• the Respondent is not or is no longer enrolled at or employed by BYU; or
• specific circumstances prevent an Investigator from gathering evidence sufficient to reach a determination as to the allegations in the Formal Complaint.

Dismissal precludes a Complainant from alleging the same factual allegations in any subsequent Formal Complaint under the Sexual Harassment Policy. However, a Complainant may file another Formal Complaint against the same Respondent based on new or additional factual allegations. Dismissal of a Formal Complaint does not preclude action against the Respondent under the Church Educational System Honor Code, Personnel Conduct Policy, Sex Offender Policy, Faculty Discipline and Termination Policy, Banning Policy, or other university policies applicable to the conduct.

Following the dismissal of a Formal Complaint based on a preliminary assessment, the Title IX Coordinator promptly sends written notice of the dismissal and reasons for the dismissal simultaneously to the Parties. A determination to dismiss allegations of a Formal Complaint may be appealed as provided for in these procedures. Following a dismissal, the Title IX Coordinator may refer the allegations to appropriate campus units to address under other university policies subject to applicable confidentiality provisions and amnesty protections.

If a Formal Complaint is dismissed or an investigation is suspended because the Respondent is not or is no longer enrolled at or employed by BYU, the Title IX Coordinator may reopen the investigation if the Respondent enrolls, reenrolls, reapplies, or applies for work at the university or any organization owned, controlled, or sponsored by The Church of Jesus Christ of Latter-day Saints. If a Formal Complaint is reopened, the Title IX Coordinator promptly notifies the Parties, and the Parties are entitled to the same rights and responsibilities as set out in these procedures.

1.2  Selection of the Investigator

Upon receiving or signing a Formal Complaint of Sexual Harassment, the Title IX Coordinator promptly delivers the Formal Complaint to an employee or independent contractor selected by the Title IX Coordinator to investigate the allegations in the Formal Complaint (Investigator). The Title IX Coordinator ensures that any individual selected as an Investigator has received training in the previous 12 months on issues of relevance and meets all other standards required of individuals involved in administering this grievance process (Grievance Administrators). The Investigator creates an investigative report (see section 1.7 Investigative Report) that fairly summarizes relevant evidence.

1.3  Notice of Allegations

Upon receipt of a Formal Complaint, the Investigator promptly collects the information necessary to prepare a written Notice of Allegations and provides the notice to the known Parties. The Notice of Allegations includes the following:

• notice of the allegations potentially constituting Sexual Harassment, including the identities of the Parties involved in the incident (if known), the conduct allegedly constituting Sexual Harassment, and the date and location of each alleged incident constituting Sexual Harassment (if known)
• notice of the formal grievance resolution and alternative resolution processes
• a statement that the Respondent is presumed not responsible for the alleged conduct and that a determination as to whether the Respondent is responsible for Sexual Harassment (Determination Regarding Responsibility) is made only after the grievance process is complete
• 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 to the Parties that they may inspect and review evidence
• 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 (see Sexual Harassment Policy)

A Party who wishes to file a Formal Complaint of Sexual Harassment 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 15 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 Sexual Harassment allegations about the Complainant or Respondent that are not included in the Notice of Allegations, the Investigator must provide all known Parties with a supplemental Notice of Allegations as to the additional allegations.

1.4  Information Gathering

The Investigator provides an equal opportunity for the Parties to identify witnesses, including fact and expert witnesses, and to provide other information, whether the information tends to show the Respondent’s responsibility for Sexual Harassment 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 during live interviews. The Investigator does not restrict the ability of either Party to discuss the allegations under investigation with others or to gather and present relevant information, 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 presumes that the Respondent is not responsible for the alleged conduct until a Determination Regarding Responsibility is made at the conclusion of the grievance process. The Investigator seeks to collect information sufficient for the individuals assigned to make a Determination Regarding Responsibility (Decision Makers) to reach a determination 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 Parties may be accompanied to any meeting or proceeding by the advisor of their choice and one support person.

The Investigator considers all relevant information—including information tending to show the Respondent’s responsibility for Sexual Harassment and information tending to show the Respondent is not responsible—from the Parties or from other sources, including university records. Unless the Investigator obtains a Party’s voluntary, written consent, the Investigator does not

1. interview a Party’s ecclesiastical leader, physician, psychiatrist, psychologist, lawyer, or other professional or paraprofessional acting or assisting in that capacity, or
2. 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.

The Investigator does 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 the privilege has waived the privilege.

1.5  Investigation Record

The Investigator creates 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. Prior to completing the investigative report, the Investigator sends the Investigation Record to each Party and the Party’s advisor, if any. The Investigation Record is shared 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 shared with them during the proceedings, must use this information only for purposes of these procedures, and must not further distribute or disclose this information. The Title IX Office may restrict further access to the Investigation Record and seek appropriate sanctions against a Party or an advisor who violates a confidentiality obligation under these procedures. The Investigation Record remains available to the Parties and their advisors until the conclusion of the grievance process.

1.6  Written Response

After the Investigator sends the Investigation Record to the Parties, they have 10 business days to submit a written response, which the Investigator considers prior to completing the Investigative Report. Any written response and any additional evidence provided in connection with a Party’s written response is added to the Investigation Record.

1.7  Investigative Report

At the conclusion of the investigation, the Investigator creates a report (Investigative Report) that

• confirms the allegations occurred against a person in the United States who is participating in or attempting to participate in BYU’s Education Program or Activity;
• identifies the allegations potentially constituting Sexual Harassment and the Respondent’s responses to each allegation;
• describes the procedural steps taken from the receipt of the Formal Complaint through the conclusion of the investigation, 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 any recommendations the Investigator deems appropriate; and
• provides the name and contact information of the Decision Makers.

The Investigator simultaneously sends the Investigative Report to the Title IX Coordinator, the Decision Makers, and to each Party and each Party’s advisor, if any, and includes the Investigative Report as part of the Investigation Record.

The Investigator, in good faith, attempts to conclude the investigation and issue an Investigative Report within 90 calendar days of receiving the Formal Complaint of Sexual Harassment. 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 provides the Complainant and the Respondent with written notice of the delay and the reason for the delay or extension.

1.8  Deadline for Evidence

The Parties’ receipt of the Investigative Report marks the end of the investigation. Absent good cause, the Investigator and the Decision Makers do not consider any additional evidence, including but not limited to the introduction of new fact witnesses, that would have been discoverable through the exercise of due diligence during the investigation but that was not provided to the Investigator at that time.

1.9  Decision-making Panel

A panel of Decision Makers makes the determination of responsibility for allegations of Sexual Harassment and is authorized to impose all sanctions under these procedures. The decision-making panel comprises a Presiding Decision Maker designated by the Title IX Coordinator and additional Decision Makers designated as follows:

• for a student Respondent—an associate dean of students or a designee and the director of BYU Counseling and Psychological Services or designee; if the alleged Sexual Harassment occurred in a student employment context, the Decision Makers 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 a designee and a dean or associate dean from a college other than that in which the Respondent is employed
• for a staff Respondent—the responsible vice president or assistant to the president or a designee and the managing director of Employee Relations or designee
• for an athletic professional Respondent—the advancement vice president or a designee and the athletic director or a designee
• for a Respondent who is neither a student nor an employee—an individual designated as a banning officer by the Dean of Students and an individual designated by the vice president who oversees the area within BYU’s Education Program or Activity in which the Complainant was participating or attempting to participate when the alleged harassment occurred

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

The Title IX Coordinator ensures that any individual designated as a Decision Maker receives training or has received training in the previous 12 months on issues of relevance of questions and evidence—including when questions and evidence about a Complainant’s sexual predisposition or prior sexual behavior are not relevant—and meets all other standards required of Grievance Administrators under these procedures.

If the allegations of Sexual Harassment did not occur against a person in the United States who is participating in or attempting to participate in BYU’s Education Program or Activity, Decision Makers make the determination of responsibility for Sexual Harassment based solely on the Investigative Report and Investigation Record.

If the allegations of Sexual Harassment occurred against a person in the United States who is participating in or attempting to participate in BYU’s Education Program or Activity, Decision Makers make the determination of responsibility for Sexual Harassment based on a live hearing, the Investigative Report, and the Investigation Record. This procedure only applies if the Complainant is participating in or attempting to participate in BYU’s Education Program or Activity at the time of filing the Formal Complaint.

3.1 Live Hearings

After receiving the Investigative Report, the Title IX Coordinator schedules a live hearing and provides written notice of the time and place of the hearing to each Party and each Party’s advisor, if any. The hearing must take place at least 10 business days after the Investigative Report is delivered to the Parties and no more than 45 calendar days after the Investigative Report is delivered unless it is delayed by unavoidable circumstances, such as the unavailability of the Parties, Decision Makers, Investigator, or key witnesses.

The Decision Makers ensure that the hearing is conducted impartially. Live hearings are either conducted with all Parties physically present in the same room or with the Parties located in separate rooms with technology enabling the Decision Makers and Parties to simultaneously see and hear the Party or the witness answering questions. In the Decision Makers’ discretion, witnesses and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other. In these circumstances, the Decision Makers may impose conditions on the person appearing virtually to ensure the integrity of the process.

Any Party wishing to be physically separated from the other Party during the hearing, or any Party requesting that any witness be permitted to appear virtually at a live hearing, must submit a written request to the Title IX Coordinator at least 10 business days before the date of the hearing so the Title IX Coordinator can make the appropriate arrangements.

The Title IX Office arranges for a transcript or an audio or audiovisual recording of the hearing to be made and makes the recording or transcript available within the Investigation Record for the Parties’ inspection and review after the hearing.

3.2 Pre-Hearing Submissions

After receiving the Investigative Report and at least 10 business days prior to the hearing, the Parties must provide a written submission to the Decision Makers that includes the following:

• the Party’s written response, if any, to the Investigative Report
• the name and contact information of any witnesses the Party intends to call at the hearing and the substance of the witnesses’ anticipated statements
• the name and contact information of the Party’s chosen advisor for the hearing

If a Party does not identify a chosen advisor in the written submission, the Title IX Coordinator, without fee or charge to the Party, appoints an advisor for that Party and, at least five business days prior to the hearing, provides the advisor’s name and contact information to the Parties.

The Decision Makers review the Parties’ written submissions and, at least five business days prior to the hearing, forward the written submissions to the other Party.

3.3 Opening and Closing Statements

The Decision Makers may ask the Complainant and the Respondent to make a brief statement at the opening and/or the closing of the hearing. The Decision Makers may limit the time for these statements but will give each Party an equal opportunity to make any statements at the hearing.

3.4 Investigation Record

The Investigation Record is available to the Decision Makers and the Parties during the hearing, and each Party is given equal opportunity to refer to information in the Investigation Record during the hearing, including for purposes of cross-examination. Physical or documentary information not included in the Investigation Record is not admissible during the hearing unless the Presiding Decision Maker determines that the information was not reasonably available to the Party seeking its admission during the investigation.

3.5 Witnesses

The Decision Makers and the Parties may ask the Investigator and any witness who has provided a statement to the Investigator in the Investigation Record to answer questions at the hearing. Campus units make reasonable allowance for BYU students and employees to participate in a Sexual Harassment hearing, if necessary, during regular school or work hours. However, no Party or witnesses are compelled to participate in a hearing.

If a Party or witness does not attend or does not submit to cross-examination at the hearing, the Decision Makers may still, at their discretion, rely on any relevant statement of that Party or witness in reaching a Determination Regarding Responsibility. The Decision Makers may not draw any inference about the Determination Regarding Responsibility based solely on a Party’s or witness’s absence from the hearing or refusal to answer cross-examination or other questions, including any inference that a Respondent’s absence or refusal to answer questions implies his or her responsibility for the Sexual Harassment alleged or that a Complainant’s absence or refusal to answer implies that the Respondent is not responsible for the Sexual Harassment alleged by the Complainant.

3.6 Questioning of Parties and Witnesses

The Decision Makers may ask any relevant questions of any Party or witness at the hearing, including the Investigator. The Decision Makers permit each Party’s advisor to ask the other Party and any witnesses all relevant questions and follow-up questions, including questions challenging credibility. Cross-examination at the live hearing is conducted directly, orally, and in real time by a Party’s advisor and never by a Party personally. If a Party does not have an advisor present at the live hearing, the Title IX Coordinator, without fee or charge to that Party, provides an advisor of the Coordinator’s choosing to conduct cross-examination on behalf of that Party.

3.7 Relevance

Only relevant questions may be asked of a Party or witness. Before a Complainant, Respondent, or witness answers a cross-examination or other question, the Presiding Decision Maker must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.

Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant and may not be asked, unless offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove Consent.

4.1 Determination Regarding Responsibility

The Decision Makers objectively evaluate all evidence relevant to the allegations in the Notice of Allegations—including both information tending to show the Respondent’s responsibility for Sexual Harassment and information tending to show the Respondent is not responsible—and determine by majority vote, based on the preponderance of the evidence (i.e., whether it is more likely than not), whether the Respondent is responsible for Sexual Harassment. The Decision Makers do not 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 person holding the privilege has waived it. The Decision Makers presume that the Respondent is not responsible for the alleged conduct until a Determination Regarding Responsibility is made at the conclusion of the grievance process and do not base any credibility determinations on a person’s status as a Complainant, Respondent, or witness. It is the Decision Makers’ responsibility to ensure that the burden of proof is met with regard to any Determination Regarding Responsibility of Respondent.

Within 10 business days of the hearing or within 60 calendar days of the investigator’s transmission of the Investigative Report and Investigation Record, whichever is applicable, the Decision Makers issue a written Determination Regarding Responsibility to the Parties. The Determination Regarding Responsibility must include the following:

• identification of the allegations potentially constituting Sexual Harassment and the Respondent’s responses to each allegation
• description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including notifications to the Parties, interviews with Parties and witnesses, site visits, methods used to gather other evidence, and hearings held
• 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
• whether remedies designed to restore or preserve equal access to BYU’s Education Program or Activity are provided to the Complainant
• the procedures and permissible bases for the Complainant and Respondent to appeal and the date the Determination Regarding Responsibility becomes final

Remedies provided by the Decision Makers may include Supportive Measures and disciplinary sanctions against the Respondent as detailed in the Sexual Harassment Policy. The Title IX Coordinator is responsible for effectively implementing any remedies in conjunction with university units and management personnel authorized to implement the remedies.

The Presiding Decision Maker or Title IX Coordinator promptly and simultaneously sends a copy of the written Determination Regarding Responsibility to the Parties and their advisors. The Determination Regarding Responsibility becomes final 11 business days after it is delivered to the Parties, unless an appeal is filed within 10 business days of the Parties receiving the written determination. If an appeal is timely filed, the Reviewer’s written appeal decision becomes final on the date that it is provided to the Parties. If the Reviewer upholds the original Determination Regarding Responsibility, the Parties’ access to the Investigation Record terminates as soon as they receive the appeal decision. Any further access to the Investigation Record is only as permitted by the Access to Student Records Policy or as required by law.

4.2 Appeal

Either Party may appeal a Determination Regarding Responsibility and/or the dismissal of a Formal Complaint or any of its allegations.

The appealing Party must submit a written appeal to the Title IX Office within 10 business days of receiving the Determination Regarding Responsibility or notice of dismissal. An appeal of a Determination Regarding Responsibility is not a reconsideration of the case but is limited to the contents of the Determination and the Investigation Record. The written appeal is limited to five pages, exclusive of exhibits, and must identify at least one of the following grounds as the basis for the appeal:

• 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.

The Title IX Coordinator sends a copy of the written appeal to the designated appeal reviewer (Reviewer) as outlined below, and notifies the non-appealing party, in writing, when an appeal is filed. The Reviewer first determines whether the appealing Party has asserted one of the three permissible bases for appeal listed above. If no permissible basis for appeal is asserted, the Reviewer dismisses the appeal, and the Title IX Coordinator provides notice of the dismissal to both parties.

If a proper basis for appeal has been asserted, the Title IX Coordinator sends a copy of the written appeal to the other Party, who may file a written opposition to the appeal. The opposition must be sent to the Title IX Office within 10 business days of receiving the written appeal and is limited to five pages, exclusive of exhibits. The Title IX Coordinator sends a copy of the opposition to the appealing Party for reference only, as no further opposition or statement is accepted from the appealing party.

The Title IX Coordinator sends the Determination Regarding Responsibility, written appeal, and any written opposition to the Reviewer for review and provides the Reviewer with access to the Investigation Record. Neither the Title IX Coordinator nor any person designated as an Investigator or Decision Maker in a matter may be designated as a Reviewer of the same matter. The Reviewer is determined as follows:

• The Reviewer of a determination involving a student Respondent, including a student employee, is the dean of students.
• The Reviewer of a determination involving a faculty Respondent is 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 or a designee is the Reviewer and makes the decision after a hearing before a Termination Hearing Committee. (See Faculty Discipline and Termination Policy.)
• The Reviewer of a determination involving a staff Respondent is the employee’s responsible vice president or assistant to the president. However, if the employee’s responsible vice president or 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) is the Reviewer. Any HRC members who were involved in the Determination Regarding Responsibility or dismissal are recused from the HRC’s review of the appeal.
• The Reviewer of a determination involving an athletic professional Respondent is 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 is the Reviewer and makes the decision after a hearing before a Termination Hearing Committee. (See Faculty Discipline and Termination Policy.)
• The Reviewer of a determination involving a Respondent who is neither a student nor an employee is the Ban Review Committee or, where the sanction does not include a ban of the Respondent, the vice president who oversees the area within BYU’s Education Program or Activity in which the Complainant was participating or attempting to participate when the alleged harassment occurred, or an individual designated by that vice president.

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 does not interview the Parties or consider any information outside the Investigation Record and the written appeal and opposition of the Parties.

Within 15 business days of receiving the appeal, the Reviewer simultaneously provides the Parties and the Title IX Coordinator with a written appeal decision, either upholding the original Determination Regarding Responsibility or remanding the case for reconsideration. The Reviewer’s written appeal decision includes the Reviewer’s rationale for the result and instructions if the matter is remanded. If the Reviewer cannot reasonably consider and issue an appeal decision within 15 business days, the Reviewer advises the Parties as to when the appeal decision is provided. If the Reviewer upholds the original Determination Regarding Responsibility, the original Determination immediately becomes final and is not subject to further appeal or review.

If the Reviewer remands the case for reconsideration because of a procedural irregularity, the Reviewer’s decision instructs the Title IX Coordinator how to resolve the irregularity before the Decision Makers reconsider the case.

If the Reviewer remands the case because of new evidence that was not reasonably available at the time the Determination Regarding Responsibility was made by the Decision Makers, the Decision Makers reconvene to consider the new evidence. If a hearing was held, the Decision Makers reconvene the hearing to evaluate the new evidence. The subject matter of the hearing is limited to the new evidence.

If the Reviewer remands the case because 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, the Reviewer identifies a new panel of Decision Makers to reconsider the case or hold a new hearing and make a Determination of Responsibility.

The Determination of Responsibility issued by the Decision Makers after reconsidering the case as outlined above is final and no further review or appeal is allowed.

4.3 Impartiality

Grievance Administrators—including the Title IX Coordinator, Investigators, Decision Makers, and Reviewers—presume the Respondent is not responsible for the alleged conduct until a Determination Regarding Responsibility is made at the conclusion of the grievance process. Grievance Administrators strive to objectively evaluate all relevant evidence, including both information tending to show the Respondent’s responsibility for Sexual Harassment and information tending to show the Respondent is not responsible. No Grievance Administrator may participate in the grievance process if he or she has a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent. Determinations regarding any person’s credibility may not be based on the person’s status as a Complainant, Respondent, or witness.

4.4 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 Harassment 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 Harassment, 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 are not publicly available, but in the event the university is required to make any records publicly available, any identifying information about the Parties is redacted, to the extent permissible by law, to protect the Parties’ confidentiality.

4.5 Advisors

An investigation under these procedures is an internal matter. Nevertheless, Parties may invite an advisor of their choice to accompany them to any meeting or proceeding related to the investigation or resolution of a Formal Complaint. The advisor may be a friend, mentor, family member, attorney, or any other person selected by the individual to provide support, guidance, and advice. The Title IX Office does 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 is not 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, except during live hearings as provided in these procedures. Advisors are subject to campus rules and are expected to refrain from interference with the investigation and resolution process. Advisors are not permitted to contact or ask the other Party or any witness questions other than as permitted during the live hearing.

Although all Parties have the same opportunity to have an advisor present during any grievance proceeding, the Title IX Office 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 Title IX Office is not obligated to provide one). However, if a Party does not have an advisor present at the live hearing, the Title IX Office provides, without fee or charge to that Party, an advisor of its choice to conduct cross-examination of the other Party and witnesses on behalf of that Party. If the advisor provided by the Title IX Office is an attorney, he or she does not have an attorney-client relationship with the Party, and their communications are not subject to an attorney-client privilege. However, the Title IX Office considers the communications to be confidential.

4.6 Notice, Delivery of Documents, and Extensions of Time

The university provides any individual whose participation is invited or expected written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the individual to prepare to participate.

Delivery of notice 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 business 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 grants 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.

4.7 Record Keeping

The university maintains the following records for a period of seven years or as required by the Information and Records Retention Policy, whichever is longer:

• records of any actions, including any Supportive Measures, taken in response to a report or Formal Complaint of Sexual Harassment. In each instance, the Title IX Office must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to BYU’s Education Program or Activity. If the Title IX Office does not provide a Complainant with Supportive Measures, then the university must document the reasons why the response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the university in the future from providing additional explanations or detailing additional measures taken.
• records of any alternative resolution, including any written agreement of alternative resolution
• records of each Sexual Harassment investigation, including any Determination Regarding Responsibility and any audio or audiovisual recording or transcript created during the live hearing, any disciplinary sanctions imposed on the Respondent, and any remedies provided to the Complainant designed to restore or preserve equal access to BYU’s Education Program or Activity
• records of any appeal and the result therefrom
• all materials used to train Grievance Administrators (which are publicly available on the Title IX website)

Definitions

Complainant means an individual who is alleged to be the victim of conduct that could constitute Sexual Harassment.

Consent is a voluntary, informed, and freely given exchange of words or actions, based on all the relevant facts and circumstances, that indicates a willingness to participate in mutually agreed-upon sexual activity. Consensual sexual activity happens when each partner willingly and affirmatively chooses to participate. Consent must be obtained prior to engaging in sexual activity and prior to any escalation of sexual activity.

Consent cannot be assumed based on silence or passivity; the absence of certain words or actions like “no,” “stop,” or pushing someone away; or the existence of a prior or current relationship. Consent to any sexual act or prior consensual activity between or with any person does not necessarily constitute Consent to any other sexual act. Consent may be initially given but may be withdrawn through words or actions at any time prior to or during sexual activity.

An act is without Consent of a Complainant under any of the following circumstances:

• the Complainant expresses lack of consent through words or actions
• the Respondent overcomes the Complainant through the actual application of physical force or violence
• the Respondent is able to overcome the Complainant through concealment or by the element of surprise
• the Respondent coerces the Complainant to submit by threatening to retaliate against the Complainant or any other person and the Complainant believes at the time that the Respondent has the ability to execute this threat
• the Respondent knows the Complainant is unconscious, unaware that the act is occurring, or is physically unable to resist
• the Respondent knows or reasonably should know that the Complainant has a disability that renders the Complainant unable to appraise the nature of the act, resist the act, understand the possible consequences to the Complainant's health or safety, or appraise the nature of the relationship between the Respondent and the Complainant
• the Respondent knows that the Complainant participates because the Complainant mistakenly believes that the Respondent is someone else
• the Respondent intentionally impaired the Complainant’s ability to appraise or control his or her conduct by administering any substance without the Complainant’s knowledge
• the Complainant is younger than 14 years of age
• the Complainant is younger than 18 years of age and at the time of the alleged act the Respondent was the Complainant’s parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust (such as teacher, coach, counselor or ecclesiastical leader) in relation to the Complainant
• the Complainant is 14 years of age or older, but younger than 18 years of age, and the Respondent is more than three years older than the Complainant and entices or coerces the Complainant to submit or participate
• the Respondent is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the Complainant reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the Complainant could not reasonably be expected to have been manifested

Dating Violence means violence, including sexual or physical abuse or the threat of such abuse, committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship is determined based on a consideration of the following factors: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

Domestic Violence means sex-based violence, including sexual or physical abuse or the threat of such abuse, committed by a person who is a current or former spouse or intimate partner of the Complainant, by a person with whom the Complainant shares a child in common, by a person similarly situated to a spouse of the Complainant, or by any other person against a victim who is protected from that person’s acts under state domestic or family violence laws.

Education Program or Activity means all of a school’s operations. BYU’s Education Program or Activity includes all locations, events, or circumstances over which the university exercises substantial control over both the Respondent and the context in which Sexual Harassment occurs.

Locations include both on-campus locations and off-campus buildings owned or controlled by BYU within the United States. BYU considers factors such as whether the university funded, promoted, or sponsored the event or circumstance in which the alleged off-campus Sexual Harassment occurred in determining whether it occurred in BYU’s Education Program or Activity.

Formal Complaint means a document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that BYU investigate the Sexual Harassment allegation.

Party means a Complainant or a Respondent.

Relevant means related to the allegations of Sexual Harassment under investigation as part of the grievance procedures. Questions are Relevant when they seek evidence that may aid in showing whether the alleged Sexual Harassment occurred, and evidence is Relevant when it may aid a decision maker in determining whether the alleged Sexual Harassment occurred.

Respondent means an individual who is alleged to be the perpetrator of conduct that could constitute Sexual Harassment.

Retaliation means intimidation, a threat, coercion, or discrimination for the purpose of interfering with any right or privilege secured by this policy or because the individual has made a report or complaint, testified, assisted, participated, or refused to participate in an investigation, proceeding, or hearing under this policy.

Sexual Assault means any sexual act directed against a Complainant without the Complainant’s Consent. Sexual Assault includes, but is not limited to, fondling, incest, rape, and statutory rape.

• Fondling—the intentional touching of the clothed or unclothed genitals, buttocks, groin, breasts, or other body parts of the Complainant by the Respondent, without the consent of the Complainant, for the purpose of sexual degradation, sexual gratification, or sexual humiliation; or the Respondent caused or directed the Complainant’s intentional touching of the Respondent’s clothed or unclothed genitals, buttocks, groin, breasts, or other body parts, without the consent of the Complainant, for the purpose of sexual degradation, sexual gratification, or sexual humiliation.
• Incest—nonforcible sexual intercourse between persons who are related to each other within the degree wherein marriage is prohibited by Utah law. As used in this definition, sexual intercourse means the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person.
• Rape—the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the Consent of the victim. Rape includes sodomy and sexual assault with an object.
• Statutory Rape—nonforcible sexual intercourse with a person who is under the statutory age of Consent.

Sexual Exploitation—any violation of the sexual privacy of another or taking advantage of another person in a sexual manner without the person’s Consent for personal gratification or benefit in any way that does not otherwise constitute Sexual Harassment. Examples of Sexual Exploitation include, but are not limited to, any of the following if they occur without the Consent of all parties involved:

• exposing one’s own or another person’s intimate parts;
• recording video or audio of, photographing, or disseminating or transmitting intimate or sexual utterances, sounds, or images;
• creating intimate images of an identifiable person, including through the use of artificial intelligence or other technologies;
• allowing others to view sexual acts (whether in person, through electronic means, or via a video camera or other recording device); and
• engaging in any form of voyeurism (e.g., viewing or listening to any of the foregoing).

Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following:

• Quid pro quo harassment—a BYU employee or faculty member conditions the provision of an aid, benefit, or service of BYU on an individual’s participation in unwelcome sexual conduct
• Hostile environment harassment—Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to BYU’s Education Program or Activity
• Sexual Assault, Dating Violence, Domestic Violence, or Stalking
• Sexual Exploitation

Stalking means engaging in a course of conduct (two or more acts) directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others, or to suffer substantial emotional distress. Both in-person and electronic Stalking are prohibited.

Supportive Measures means nondisciplinary, nonpunitive, individualized services offered as appropriate, as reasonably available, and without fee or charge to a Complainant or a Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Supportive Measures are measures designed to restore or preserve equal access to BYU’s Education Program or Activity without unreasonably burdening the other Party, including measures designed to protect the safety of all parties or the university’s educational environment, or deter Sexual Harassment. Supportive Measures may include referral to the university’s sexual assault survivor advocate or confidential advisor to Respondents, counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, BYU Police SafeWalk services, mutual restrictions on contact between the Parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.

Title IX Coordinator means the person authorized by BYU to coordinate the university’s efforts to comply with its responsibilities under Title IX and to institute corrective measures on behalf of the university.