Misconduct

At UHS, sexual misconduct is a broad term encompassing a range of non-consensual sexual activity or unwelcome behavior of a sexual nature.

What does the policy cover?

  • Sexual Harassment
  • Non-Consensual Sexual Contact
  • Sexual Assault
  • Sexual Exploitation
  • Intimate Partner Violence (Domestic and Dating Violence)
  • Stalking

What does UHS have jurisdiction over?

UHS has jurisdiction over allegations of Sexual Misconduct occurring on University premises, at University Affiliated Activities, and/or where both the accused person and alleged victim are a student, faculty or staff. The University has the discretion to investigate conduct occurring off University premises, or at a non-University affiliated activity if the Complainant and Respondent are UH-Affiliated. The process outlined in this policy is separate from any criminal proceedings. Proceedings under this policy will not be dismissed or delayed because criminal prosecution/proceedings are pending, criminal charges have been dismissed, or the criminal charges have been reduced.

What right to confidentiality does anyone involved have?

The University will protect the confidentiality of all individuals involved in a report or complaint by refusing to disclose their identifying information to anyone outside the University to the maximum extent permitted by law. The University will balance a confidentiality request with its responsibility to provide a safe and non-discriminatory environment.

I am concerned if I make a report or participate in an investigation that I will be retaliated against.

The University takes reports of Sexual Misconduct very seriously and will not tolerate retaliation against those who make such reports or participate in the investigation or adjudication process. Any act of retaliation will be treated as a separate violation of its policy and sanctioned appropriately.

What are interim measures?

The University will consider interim measures to protect involved persons and/or the community when an incident is reported and while an incident is being investigated and adjudicated. An alleged victim does not have to file a complaint to receive reasonable interim measures. Interim measures can include, but are not limited to, changes to academic, living, transportation, or working situations. No contact orders can be issued under this policy and are not contingent upon filing a formal complaint.

If a formal complaint of sexual misconduct is filed, how long will it take EOS to make a decision?

EOS will make every effort to issue its finding within 60 days from its receipt of the complaint.

What standard of proof does UHS use?

UHS uses the preponderance of the evidence standard of proof. This standard looks at whether it is “more likely than not” that the policy was violated.

What happens if is determined that a policy violation occurred?

If it is determined that a policy violation occurred, EOS will recommend that appropriate action be taken by the appropriate administrator. The appropriate administrator will be determined by the classification of the Respondent. If the finding is made against a faculty person, it will be that person’s dean or their designee. If the finding is made against a staff person, the appropriate administrator will be that person’s supervisor. If the finding is made against a student, it will be the component’s Dean of Students or their designee.

What possible sanctions may be implemented by the University?

The sanctions for committing an act of Sexual Misconduct will be commensurate to the offense and may include but is not limited to the following:

  • Probation (including disciplinary probation)
  • Temporary or permanent ban from residence hall communities
  • Educational programs such as state-certified batterer’s intervention
  • Ban from participating in campus organizations
  • Disqualification from student employment positions
  • Withholding of transcripts, grades, diploma, or degree
  • Partial or full criminal trespass
  • Suspension
  • Revocation of admission and/or degree
  • Ban from participating in campus organizations
  • Termination of employment
  • Expulsion

What if I am dissatisfied with EOS' finding?

The Complainant and Respondent both have the right to appeal a finding because they can show that, during EOS' investigation, a significant error occurred that could have significantly impacted the finding. To file an appeal, the party must submitted their appeal request in writing to the Title IX Coordinator within five business days of receiving EOS' finding.

Can I have a lawyer present?

Both the complainant and the respondent will be permitted to ask an adviser of their choosing to be present during all relevant meetings related to alleged violations of this policy. The adviser may accompany the complainant or respondent and may confer privately with them, but the adviser may not speak on behalf of the complainant or respondent or otherwise participate in any meeting. An adviser's failure to comply with these guidelines may result in the termination of the meeting.

DEFINITIONS

Complainant

A party that makes a complaint of Sexual Misconduct. In some cases, the University can serve as the complainant.

Ex. If an alleged victim of sexual harassment decides to file a formal complaint against the person that harassed them, they would become the complainant. The person they accused would be the respondent.

Consent

Consent is an informed and freely and affirmatively communicated willingness to participate in a particular sexual activity. Consent can be expressed either by words or by clear and unambiguous actions, as long as those words or actions create mutually understandable permission regarding the conditions of each instance of sexual activity. It is the responsibility of the person who wants to initiate a sexual activity to ensure that they have the consent of the other(s) to initiate in each instance of sexual activity before they initiate the sexual activity.

Ex. John asked Jane if he could kiss her and she said yes. John had consent to kiss Jane.

Domestic Violence

Domestic Violence includes acts of violence committed by a

  • A current or former spouse or intimate partner of an alleged victim
  • A person with whom an alleged victim shares a child in common
  • A person who is cohabitating with or has cohabitated with an alleged victim as a spouse or intimate partner
  • A person similarly situated to a spouse of an alleged victim under the domestic or family violence laws of the State of Texas.

Ex. Although Xavier and Mark were not legally married in Texas, they were legally married in another state. As such, they were considered intimate partners under UHS policy and Xavier’s physical violence against Mark was considered under the domestic violence provision of the Sexual Misconduct Policy.

Dating Violence

Dating violence includes acts between people who are currently or formerly in a social relationship of a romantic or intimate nature. At UHS, the existence of such a relationship shall be determined by the alleged victim with consideration of the following:

  • The length of the relationship
  • The type of relationship
  • The frequency of interaction between the persons involved in the relationship

Ex. After two weeks of dating, Stephanie hit Kevin. Her conduct will be assessed under the dating violence provision of the Sexual Misconduct Policy.

Incapacitation

A person is incapacitated, cannot consent, if:

  • The person is unconscious or otherwise unable to resist;
  • The person is unaware that sexual activity is occurring;
  • The person does not have the legal capacity to consent.

Further, a person may be unable to consent when they are mentally or physically incapacitated due to the influence of drugs, alcohol, or medication and as a result are rendered temporarily incapable of understanding, appraising or controlling their conduct. A person’s incapacity to understand, appraise or control their conduct may be analyzed based on surrounding factors including, but not limited to, hallucinations, blackouts, seizures, vomiting, slurred speech, disorientation, or incoordination.

Ex. In their investigation the allegation that the victim was incapacitated, the EOS investigator asked all of the party goers if it appeared that the alleged victim was under the influence of drugs and alcohol to the extent that they were unconscious or unaware of what was going on at the approximate time that the alleged misconduct occurred.

Intimate Partner Violence

A term used to describe a range of prohibited actions that occur between people who have or have had a romantic or sexual relationship. Intimate partner violence can be a single event or a pattern of behavior that includes sexual and/or physical abuse. The term encompasses domestic violence and dating violence.

Non-consensual Sexual Contact

Nonconsensual sexual contact is any intentional touching in a sexual manner, however slight or momentary, or the use of an object to touch another in a sexual manner.

Ex. The complaint alleged Hakeem intentionally touched Sara in a sexual manner without her consent.

Respondent

A party who has been accused of committing an act of Sexual Misconduct by a Complainant.

Ex. If alleged victim of sexual harassment decides to file a formal complaint against the person that harassed them, that person would be the respondent. The person who filed the complaint would be the complainant.

Sanctions

A disciplinary action taken against the respondent for violating the Sexual Misconduct Policy.

Ex. Possible sanctions for a person that commits sexual assault at UHS is suspension or expulsion.

Sexual Assault

Sexual assault is sexual intercourse that occurs without consent.

  • Sexual Activity – Intercourse, however slight, meaning:
    • Vaginal penetration by a penis, object, tongue or finger,
    • Anal penetration by a penis, object, tongue or finger,
    • Oral copulation (mouth to genital contact or genital to mouth contact).

Ex. Even though Peter only meant to haze the pledge, the conduct was considered a sexual activity. If the evidence of the sexual activity showed that it was unwanted or coerced, it would be considered a sexual assault.

Sexual activity also includes:

  • Any intentional contact with another’s intimate body parts defined as the person’s breasts, buttock, groin, or genitals,
  • Touching another with any of these body parts
  • Making another touch a person or themselves with or on any of these body parts;
  • Any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.

Sexual Exploitation

Sexual exploitation occurs when a party takes non‐consensual or abusive sexual advantage of another for their own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other Sexual Misconduct offenses.

Ex. Peter was accused of video recording Steven’s sexual activity without his consent. That activity is covered under the sexual exploitation provision of the Sexual Misconduct Policy.

Sexual Harassment

Sexual harassment is a form of sex discrimination that includes verbal, written or physical behavior of a sexual nature, directed at someone, or against a particular group, because of that person’s or group’s sex, or based on gender stereotypes, when that behavior is unwelcome, severe or pervasive, and where it meets either of the following criteria:

  • Submission or consent to the behavior is believed to carry consequences for the individual’s education, employment, on-campus living environment or participation in a University-affiliated activity.

    Ex. Samantha’s boss told her that if she went on a date with him, he would give her a raise.

  • The behavior has the purpose or effect of substantially interfering with another’s work or educational performance by creating an intimidating or hostile environment for employment, education, on-campus living or participation in a University-affiliated activity

    Ex. Over the course of the semester, Heidi made several unwelcome attempts to develop a romantic or sexual relationship with Alex. Her actions may be considered sexual harassment.

Sexual Misconduct

A broad term encompassing a range of non-consensual sexual activity or unwelcome behavior of a sexual nature. The term includes sexual harassment, nonconsensual sexual contact, sexual assault, sexual exploitation, stalking, and intimate partner violence.

Stalking

Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to

  • Fear for their safety and/or the safety of others; or
  • Suffer substantial emotional distress

Ex. After their break up, Peter sent threatening emails and followed his ex., Kim, to class every day for a week. His conduct caused Kim to be fearful and she filed a complaint. Peter’s conduct would be investigated under the stalking provision of the policy.

Student

Any person who has been accepted for admission or who is currently or was previously enrolled in the University pursuing undergraduate, graduate or professional studies, whether full-time or part-time, and a person who is registered for a future semester.

Title IX Coordinator

The person who has been designated on each component institution campus to coordinate efforts to comply with and implement this Policy. The Title IX Coordinator is responsible for conducting the administrative investigation of reports of Sexual Misconduct and is available to discuss options, provide support, explain University policies and procedures and provide education on relevant issues. The Title IX Coordinator may designate one or more Assistant Title IX Coordinators.

Title IX Coordinator

Any activity on or off campus that is initiated, aided, authorized or supervised by the University or by an officially-recognized organization of the University.

Ex. Although it took place at Reliant Stadium, graduation is a university-affiliated activity.

University Community

All faculty, staff, and students of and visitors to any University premises or University-affiliated activity.

Ex. Although the delivery man was not an employee or a student, he was considered to be a part of the university community when he visited campus. As such, he was expected to adhere to the Sexual Misconduct Policy whenever he was on campus.

University Premises

Buildings or grounds owned, leased, operated, controlled or supervised by the University.

Ex. The dorms were considered university premises because it is controlled by the university.

EXPECTATIONS & RIGHTS

All members of the UHS community are afforded the rights outlined in th Sexual Misconduct Policy. However, complainants and respondents participating in this process may also expect the following:

Respect for Privacy

Information regarding sexual misconduct reports, and any investigation or review of those reports, including any sanctioning determinations, will be shared among University employees with a legitimate educational interest or with external individuals or entities only on a need-to-know basis and only as permitted under the Sexual Misconduct Policy and applicable law.

Information and Choice on Participation

Complainants, Respondents, or students serving as Reporters or witnesses may choose to participate or decline to participate in the process. However, even if a Complainant or Respondent declines to participate, as described in this policy, the University may continue to investigate the matter and issue findings based on available information.

Access to Confidential Assistance and Resources

Before, during, or after any review or investigation process, students may find it helpful to consult with a counselor or seek other forms of assistance. Students who wish to seek information or support in a confidential manner may contact the following campus and community resources. All information shared with these offices will remain confidential to the extent permitted by law and Sexual Misconduct Policy. Discussions with representatives of these offices will not be considered a report to the University regarding the problematic behavior and therefore will not, without additional action by the Complainant or a Reporter, result in further action by the University.

Protection from Retaliation and Assurance of Fair Treatment

The University will take appropriate steps to ensure that a person who in good faith reports, complains about, or participates in a sexual misconduct investigation will not be subjected to retaliation by the Respondent or by others with knowledge of the underlying report. Anyone who believes they are experiencing retaliation is strongly encouraged to report that concern using the same procedure for reporting possible sexual misconduct under this policy. A retaliation concern will be reviewed as a separate offense under this policy; that is, a person can be found responsible for retaliation even if not found to be responsible for the underlying reported sexual misconduct.

The University also will take appropriate steps to ensure that Respondents accused of sexual misconduct or retaliation are treated fairly throughout the University’s review.

Timeliness of Process

Upon receipt of a report, the University strives to complete its review of that report within sixty (60) calendar days, its sanction or intervention process within fifteen (15) calendar days after the University’s findings are shared with the participating Complainant and Respondent, and its appellate process within fifteen (15) days of the Appeals Board’s receipt of the appeal. There are, however, many factors that may affect the length of time needed to complete various portions of the resolution process fairly and equitably. As such, some matters will be resolved before the designated time frames and some may be resolved afterward.

Coordination with Concurrent Legal Proceedings

Members of the UHS community may engage criminal prosecution procedures and/or civil litigation in connection with the same behavior that forms the basis of a sexual misconduct report under this policy. In such cases, the University is committed to appropriate coordination with your campus police department and local law enforcement and may, if requested and appropriate, share information with those agencies. The University will fulfill its legal and ethical obligation to take immediate and appropriate action to investigate possible sexual misconduct, even if there are other external processes or procedures pending in connection with that same sexual misconduct report. Similarly, if the University finds sexual misconduct has occurred, the University will take effective steps to end it, prevent its recurrence, and address its effects, regardless of what external proceedings may also be pending.

Standards for criminal investigations are different than the standards for a violation of this policy, and therefore the University will not base its decisions under this policy solely on law enforcement reports and/or actions. Accordingly, the University will not normally wait for the conclusion of a criminal investigation or other proceedings before implementing its review of reported sexual misconduct under this policy.

COMPLAINANT/RESPONDENT FAQ

Complainant FAQ

I am a victim of sexual misconduct? What reporting rights do I have?

Victims of Sexual Misconduct have the right to decide if and when they report incidents of sexual misconduct that occurred against them.

Can a victim of sexual misconduct file an anonymous report?

If a victim chooses to make a report, they may request that their report be investigated by the University without providing their name to the Respondent or witnesses. Moreover, anyone can receive information about this policy, their rights under the policy reporting options, and supports resources without disclosing facts related to the alleged incident.

Do I have to file a complaint in order to receive interim measures from the University?

A victim of sexual misconduct does not need to file a complaint to receive interim measures. Some interim measures may be implemented without an alleged victim disclosing identifying information related to the incident(s).

I am not sure I want to file a formal police report. Do I have any other options?

A formal complaint may be filed with your component’s Title IX Coordinator. This can be done simultaneous to the filing of a criminal complaint or by its self. An alleged victim can initiate the formal complaint process by filling out the Formal Complaint Form and submitting it to the Title IX Coordinator, who will forward the Complaint to Equal Opportunity Services ("EOS").

How long do I have to decide whether or not I want to file a complaint?

There is no limit to the timeframe for filing a complaint and a complaint may be withdrawn at any time.

Do I have the right to inspect the evidence?

Yes. Before a finding is made, you have the right to right to inspect the evidence against you. To formally request to inspect the file, please notify the investigator assigned to your case.

Respondent FAQ

If I have been accused of violating the policy, do I have the right to see the allegations against me?

Yes. You have the right to receive the allegations against you within five (5) business days of the complaint being filed. After you have received the complaint, you have the right to file a response within five (5) business days of your receipt of the complaint.

Can I consult my attorney before I respond?

Yes. In fact, your advisor, which could be an attorney, may be present during all relevant meetings related to alleged violations of this policy. While your adviser may accompany you and may confer privately with you, the adviser may not speak on your behalf or otherwise participate in any meeting. An adviser’s failure to comply with these guidelines may result in the termination of the meeting.

Do I have the right to inspect the evidence against me?

Yes. Before a finding is made, you have the right to inspect the evidence against you. To formally request to inspect the file, please notify the investigator assigned to your case.

Can I delay my response until the criminal charges against me are dropped?

No. You have the right to receive the allegations against you and provide a response. However, if you do not provide your response within the time period provided in the policy the investigator will move forward with their investigation and provide a finding with the evidence that they have in their possession.

If you ever desire any information regarding the Sexual Misconduct Policy or training opportunities on your campus, the following is a list of UHS Title IX Coordinators. If you have any concerns about sex discrimination, sexual misconduct specifically, please contact one of the following offices.

UH - Main Campus

Title IX Coordinator

Dr. Richard Anthony Baker

Assistant Vice Chancellor/ Vice President

713-743-8835

rabaker4@uh.edu

UH - Clear Lake

Title IX Coordinator

Nichole Eslinger, M.S., NCC, LPC, PHR, SHRM-CP

Assistant Director, Human Resources

281-283-2168

eslinger@uhcl.edu

UH - Downtown

Title IX Coordinator

Ivonne Montalbano, MBA, SPHR

Vice President for Employment Services and Operations

713-222-5366

montalbanoi@uhd.edu

Title IX Coordinator

Tommy N. Thomason, M.Ed

Student Conduct Officer/Title IX Coordinator

713-221-8056
ThomasonT@uhd.edu

UH - Victoria

Title IX Coordinator

Laura Smith

Director of Human Resources

361-570-4800

SmithL@uhv.edu

Title IX Coordinator

Chari Norgard

Assistant EO/Title Coordinator

361-570-4835

NorgardC@uhv.edu