CHAPTER 188-H SEXUAL MISCONDUCT AT INSTITUTIONS OF HIGHER EDUCATION
Adoption of Policies
Section 188-H:2
188-H:2 Adoption of Policies Required. –
I. Each institution of higher education shall adopt a policy on sexual misconduct, consistent with applicable state and federal law, which shall be publicly available on campus in locations where students regularly congregate including, but not limited to, dining and recreational facilities, libraries, bookstores, student unions and student centers, and the common areas of dormitories and other student housing locations, and shall be made available, upon request, to an applicant, student, or employee of the institution and shall be publicly available on the institution's website in an accessible format not later than the first week of classes in each academic year. The institution shall update the website annually. The policy shall be trauma-informed, and shall be developed in coordination with the institution's Title IX coordinator, and the local rape crisis center or domestic violence center. In addition, the institution may consider input from various internal and external entities including, but not limited to institutional administrators, personnel affiliated with on-campus and off-campus health care centers, personnel affiliated with on-campus, when available, and local, confidential resources advisors, residence life staff, students, the division of state police, and the police department and the county attorney having jurisdiction in the city or town where the institution's primary campus is located. The policy shall be developed in a culturally competent manner in order to reflect the diverse needs of all students. The policy shall include, but not be limited to:
(a) Procedures by which students and employees at the institution may report or disclose alleged incidents of sexual misconduct regardless of where the offense occurred.
(b) Information on where to receive immediate emergency assistance following an alleged incident of sexual misconduct which shall include, but shall not be limited to:
(1) The name and location of the nearest medical facility where an individual may request that a medical forensic exam be administered by a trained sexual violence forensic health care provider, including information on transportation options and information on reimbursement for travel costs, if any.
(2) The contact information for a rape crisis center and a domestic violence center and a description of the services provided by such centers.
(3) The telephone number and website for a national 24-hour hotline, as well as any state or local resources, that provides information on sexual misconduct.
(4) Information on any programs that may financially assist a student with the cost of emergency medical assistance.
(c) Descriptions of and contact information for the types of counseling and health, safety, academic, and other support services available within the local community or region or through a rape crisis center or domestic violence center, or the name and contact information for organizations that support students accused of sexual misconduct, which shall include but not be limited to the name and contact information for a confidential resources advisor and a description of the role of and services provided by the confidential resources advisor and the name and contact information for the institution's Title IX coordinator.
(d) The rights and obligations of students and employees to:
(1) Notify or decline to notify law enforcement, including campus, local and state police, of an alleged incident of sexual misconduct.
(2) Receive assistance from campus authorities in making any such notification.
(3) Obtain a court- or institution-issued protective order against a responding party of the incident of sexual misconduct.
(e) The process for requesting supportive measures reasonably available from the institution which shall include, but not be limited to, options for changing academic, living, campus transportation, or working arrangements or taking a leave of absence in response to an alleged incident of sexual misconduct, how to request those changes, and the process to have any such measures reviewed.
(f) The contact information for the closest local, state, and federal law enforcement agencies with jurisdiction over matters involving sexual misconduct and procedures for students to notify the institution that a protective order has been issued under state or federal law and the institution's responsibilities upon receipt of such notice.
(g) A summary of the institution's procedures for investigating, adjudicating, and resolving sexual misconduct complaints, including an explanation of all procedures which shall be followed to obtain investigatory reports and gather evidence, and potential sanctions which may be imposed, as well as clear statements advising students that:
(1) The process shall be uniformly applied for all disciplinary proceedings relating to any claims of sexual misconduct.
(2) Timely and detailed notice shall be given, upon such time as the institution decides to proceed with an institutional disciplinary process, to the reporting party and the responding party describing the date, time, and location, if known, and a summary of the factual allegations concerning the violation.
(3) An investigation, including any hearings and resulting disciplinary proceedings, shall be conducted by an individual who receives not less than annual training on issues relating to sexual misconduct, investigatory procedures and hearing procedures to protect the safety and rights of students and promote accountability, objectivity, impartiality, and a trauma-informed response.
(4) The reporting party of an alleged incident of sexual misconduct and the responding party may be accompanied by an advisor or support person of their choice, which may include an advocate or counsel, to meet with the institution's investigator or other fact finder and may consult with an advisor or support person, which may include an advocate or counsel, during any meetings and disciplinary proceedings; provided, however, that the institution may establish rules regarding how the proceedings will be conducted which may include guidelines on the extent to which the advisor or support person for each party may participate in a meeting or disciplinary proceeding and any limitations on participation which shall apply equally to both parties; and provided further, that the institution shall adopt reasonable measures to provide for the involvement of the advisor or support person for each party but the availability of the advisor or support person shall not significantly delay a meeting or disciplinary proceeding.
(5) The reporting party and the responding party shall be provided with a copy of the institution's policies regarding the submission and consideration of evidence that may be used during a disciplinary proceeding and shall have equal opportunity to present evidence and witnesses on their behalf during a disciplinary proceeding; provided, however, that each party shall be provided with timely and equal access to all relevant evidence that shall be used in the determination of a discipline.
(6) There shall be restrictions on evidence considered by the fact finder including, but not limited to, the use of evidence of prior sexual activity or character witnesses.
(7) The reporting party and the responding party shall be informed in writing of the results of a disciplinary proceeding not later than 7 business days after a final determination of a complaint, not including any time for appeal, unless good cause for additional time is shown, and they shall be informed of any process for appealing the decision.
(8) If an institution offers an appeal as a result of procedural errors, previously unavailable relevant evidence that could significantly impact the outcome of a case or where the sanction is disproportionate to the findings, the reporting party and the responding party shall be provided with an equal opportunity to appeal decisions regarding responsibility or sanctions.
(9) The institution shall not publicly disclose the identity of the reporting party and the responding party, except as necessary to carry out a disciplinary process or as permitted under state or federal law.
(10) The institution's disciplinary proceedings shall not serve as a substitute for the criminal justice process.
(h) A summary of the institution's employee disciplinary process as it pertains to sexual misconduct.
(i) The range of sanctions or penalties the institution may impose on students and employees found responsible for a violation of the applicable institutional policy prohibiting acts of sexual misconduct.
II. Each institution of higher education shall provide draft policies and substantive changes by electronic or regular mail to internal and external entities, with instructions on how to comment and a reasonable length of time in which comments will be accepted. However, once an institution has adopted such policies as required by this section, the opportunity for review and comment by internal and external entities shall only apply to substantive changes in those policies.