EO 1095

Complaints made by Students

"Systemwide PolicyProhibiting Discrimination, Harassment, Retaliation, Sexual Misconduct, Dating and Domestic Violence, and Stalking Against Students and Systemwide Procedure for Addressing Such Complaints by Students" is the appropriate systemwide procedure for all complaints of Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking made by CSU Students against the CSU, a CSU Employee, another CSU Student, or a Third Party

Interim and Ultimate Remedies

. The University is required to provide victims who experience Sexual Misconduct, Dating or Domestic Violence, or Stalking with reasonably available Interim Remedies, if requested, regardless of whether the victim chooses to report the misconduct to Campus police or local law enforcement. Victims should be notified of options for avoiding contact with the Respondent, including changes to the Respondent's or purported victim's employment, academic or living situations, as appropriate. For example, the Campus may prohibit the parties from having any contact with each other pending the outcome of the Campus investigation and any ensuing discipline proceeding. Campuses should minimize the burden on the victim and should not, as a matter of course, remove victims from work assignments, job sites, classes or housing while allowing the Respondent to maintain the status quo. Other possible interim (and ultimate) steps may include providing an escort between Campus locations in extraordinary cases where safety may be endangered; changes to Employee work areas, work assignments or reporting relationships; providing Students with academic support services such as tutoring or allowing Students to re-take a course or withdraw from a course without penalty and without adverse effect on their academic records; and reviewing any disciplinary actions proposed to be taken against an alleged victim to see if there is a causal connection between the misconduct forming the basis for the proposed discipline and the alleged Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating or Domestic Violence, or Stalking. The Title IX Coordinator shall assist and provide the purported victim with reasonable Remedies as requested throughout the reporting, investigative, and disciplinary processes, and thereafter.

Coordination with Criminal Investigations and Proceedings

A pending (Campus or local) police criminal investigation does not relieve a Campus of its responsibility to resolve Sexual Misconduct, Dating or Domestic Violence, or Stalking complaints: a Campus may not wait until the conclusion of a police investigation to commence its own administrative investigation, and must take immediate steps to protect the victim(s). Although it may be necessary to temporarily delay the administrative investigation while the police are gathering evidence conducting their criminal investigation, once notified that the police have completed the fact gathering portion of their investigation, the Campus must promptly resume and complete its own investigation. Subject to applicable law, the Title IX Coordinator should normally be given access to Campus law enforcement investigation notes, reports and findings as necessary for the administrative investigation, so long as it does not compromise the police/criminal investigation.

Notice of Rights and Options for Victims of Sexual Misconduct, Dating or Domestic Violence or Stalking

A written explanation of rights and options must be provided to a Student, Employee or Third Party who reports to the University that s/he has been a victim of Sexual Misconduct, Dating or Domestic Violence, or Stalking, whether the offense occurred on or off Campus. It is the Title IX Coordinator's responsibility to ensure this written Notice is provided to the complainant/victim(s).

Certification_2

Alternatively, the Advocate may be a person who is employed by any organization providing the programs specified in California Penal Code § 13835.2 for the purpose of counseling and assisting Sexual Assault victims, and who meets one of the following requirements: 1) Is a psychotherapist as defined in California Evidence Code § 1010; has a master's degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape crisis counseling; or 2) Has the minimum training for sexual assault counseling required by the guidelines established by the employing agency pursuant to California Penal Code § 13835.10(c), and is supervised by an individual who qualifies as a psychotherapist or counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include but not be limited to the following areas:

Privileged and Confidential Communications_4

EXCEPTIONS: Under California law, any health practitioner employed in a health facility, clinic, physician's office, or local or state public health department or clinic is required to make a report to local law enforcement if he or she provides medical services for a physical condition to a person who he or she knows or reasonably suspects is suffering from: (1) a wound or physical injury inflicted by a firearm; or (2) any wound or other physical injury where the injury is the result of assaultive or abusive conduct (including Rape, Sexual Assault, and Dating and Domestic Violence).6 This exception does not apply to sexual assault and domestic violence counselors and advocates. Health care practitioners should explain this limited exception, if applicable.

Notice of Nondiscrimination on the Basis of Gender or Sex

Each CSU Campus is required to post a Notice of Nondiscrimination on the Basis of Gender or Sex prominently on its website. The Notice must also be: (1) posted at Campus locations where other notices regarding Campus policies are posted, as well as published in electronic and printed publications of general distribution that provide information to Students and Employees about the University's services and policies; and, (2) distributed to all Employees and all Students at the beginning of the fall term every academic year (no earlier than two weeks before and no later than two weeks after the first day of classes.) Distribution may be electronic.

Designation and Appointment

Each Campus is required to designate at least one confidential Sexual Assault Victim's Advocate (Advocate). The Advocate should be a full-time Employee of the University or a recognized University auxiliary, whose primary responsibility is rendering advice and assistance to victims of Sexual Misconduct. The Advocate may also be appointed by way of a written agreement with a local community-based sexual violence service provider, such as a rape crisis center, to provide the services described herein. The Advocate shall be confidential, independent, and certified, as described below, and shall be appointed based on experience and a demonstrated ability to effectively provide sexual violence victim services and response.

Campus Title IX Coordinators

Each Campus is required to designate one Title IX Coordinator with primary responsibility to monitor, supervise, and oversee overall Campus-wide implementation of and compliance with Title IX and this Executive Order,17 including coordination of training, education, communications, and administration of complaint procedures for Employees, Students and Third Parties in the areas of Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking. The Title IX Coordinator shall have authority across all Campus-based divisions and programs (e.g., Human Resources, Academic Affairs, Student Affairs, Athletics, Housing, University Police, etc.) to monitor, supervise, oversee, and ensure implementation of this Executive Order in all areas, including the duties listed below. The Title IX Coordinator and any Deputy Title IX Coordinator(s) shall be Management Personnel Plan (MPP) employees. The designated coordinator should be someone without other institutional responsibilities that could create a conflict of interest (e.g., someone serving as University counsel or as a disciplinary decision maker) and should report directly to a vice-president or higher. The Title IX Coordinator must have the qualifications, authority and time to address all complaints throughout the Campus involving Title IX issues.

Training, Education and Preventive Measures

Each Campus must implement preventive education programs to promote the awareness of CSU policies against Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking, and to make victim resources available, including comprehensive victim services. Programs must include primary prevention and awareness programs: (1) for all new Students18 and new Employees; (2) refresher programs at least annually for all Students; (3) twice a year for all Students who serve as Advisors in residence halls; (4) annually for all Student members of fraternities and sororities; (5) annually for all Student athletes and coaches; and, (6) annually for all Employees consistent with their role in responding to and reporting incidents. Ongoing prevention and awareness campaigns for allStudents and Employees shall also be conducted.

Annual Report

Each Campus will report the following annually on October 1, for the prior fiscal year (July 1 to June 30), without disclosing any information that would reveal the identities of the parties involved: 1. The number of Sexual Misconduct, Dating and Domestic Violence, and Stalking reports received in which a Student is the Respondent; 2. The number of Sexual Misconduct, Dating and Domestic Violence, and Stalking reports received in which an Employee is the Respondent; 3. The number of Sexual Misconduct, Dating and Domestic Violence, and Stalking reports investigated; 4. The number of Sexual Misconduct, Dating and Domestic Violence, and Stalking reports resolved without investigation, including a description of the resolution and/or reason for no investigation; 5. The number of Sexual Misconduct, Dating and Domestic Violence, and Stalking investigations in which the Respondent was held responsible, including a description of the final sanction; and, 6. The number of Sexual Misconduct, Dating and Domestic Violence, and Stalking investigations in which the evidence was found insufficient to hold the Respondent responsible. The information shall be reported in a manner that protects the privacy of the persons involved, including victims, Respondents, and witnesses, and shall be posted on the Campus web site.

Complaints made by Third Parties

Executive Order 1096 is the appropriate systemwide procedure for all complaints of Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking filed by Third Parties against the CSU, a CSU Employee or a CSU Student.

Complaints made by Student-Employees

Executive Order 1096 is the appropriate systemwide procedure for all complaints of Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking made by Student-Employees where the alleged violation arose out of the person's status as an Employee and not his/her status as a Student.

Complaints made by Employees, former Employees, and applicants for employment.

Executive Order 1096, entitled "Systemwide Policy Prohibiting Discrimination, Harassment, Retaliation, Sexual Misconduct, Dating and Domestic Violence, and Stalking Against Employees and Third Parties and Procedure for Addressing Such Complaints by Employees and Third Parties" is the appropriate systemwide procedure for all complaints of Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking made by Employees and Third Parties against the CSU, another CSU Employee, a CSU Student or a Third Party. Employees covered by a collective bargaining agreement that provides a grievance procedure for raising allegations of Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating or Domestic Violence, or Stalking shall use the grievance procedure specified in their collective bargaining agreement.

Reporting to University or Local Police

If a victim makes a report of a sex offense as enumerated in California Government Code § 6254(f)(2) to local or University Police, the police are required to notify the victim that his/her name will become a matter of public record unless confidentiality is requested.10 If a victim requests that his/her identity be kept confidential, his/her name will not become a matter of public record and the police will not report the victim's identity to anyone else at the University, including the Title IX Coordinator. University Police will, however, report the facts of the incident itself to the Title IX Coordinator being sure not to reveal to the Title IX Coordinator the victim's name/identity, or compromise their own criminal/police investigation. The University is required by the federal Clery Act to report certain types of crimes (including certain sex offenses) in statistical reports. However, while the University will report the typeof incident in the annual crime statistics report known as the Annual Security Report, victim names/identities will not be disclosed. Likewise, the University is required by state law to report certain types of crimes to local law enforcement (including certain sex offenses). However, the victim's identity may not be disclosed to local law enforcement unless the victim consents after being informed of his/her right to have identifying information withheld. If a victim does not consent, the alleged assailant's identity may also not be disclosed to local law enforcement.11

Certification_1

If employed by the University, the Advocate shall be a person whose primary responsibilities are rendering advice and assistance to Sexual Misconduct victims. The Advocate must have received a certificate evidencing completion of a training program in the counseling of Sexual Assault victims issued by a counseling center that meets the criteria for the award of a grant established pursuant to California Penal Code §13837 and who meets one of the following requirements: 1) Is a psychotherapist as defined in California Evidence Code § 1010; has a master's degree in counseling or a related field; or has one year of counseling experience, at least six months of which is in rape crisis counseling; or 2) Has 40 hours of training as described below and is supervised by an individual who qualifies as a psychotherapist or counselor under paragraph (1). The training, supervised by a person qualified under paragraph (1), shall include but not be limited to the following areas:

Confidentiality

It is essential that the Advocate be an individual who has protection under state law to engage in privileged communications, as described below in the section on Certification. While it would be appropriate for the Advocate to report to and be supervised by Campus Student counseling services or health services, Campus placement of the Advocate in a different division, department or office would be acceptable as long as the provisions of this section are followed.

Reporting to the Title IX Coordinator and Other University Employees

Most University Employees have a duty to report Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking incidents when they are on notice of them. When a victim tells the Title IX Coordinator or another University Employee about a Sexual Misconduct, Dating or Domestic Violence, or Stalking incident, the victim has the right to expect the University to take immediate and appropriate steps to investigate what happened and to resolve the matter promptly and equitably. In all cases, the University strongly encourages victims to report Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking incidents directly to the Campus Title IX Coordinator.

Privileged and Confidential Communications_1

Sexual Assault and Domestic Violence Counselors and Advocates5 - Sexual assault and domestic violence counselors and advocates who work or volunteer on or off Campus in sexual assault centers, victim advocacy offices, women's centers, gender equity centers, and health centers and who are acting in that role (including all individuals who work or volunteer in these centers and offices, as well as non-professional counselors or advocates, and those who act in that role under their supervision) may talk to a victim of Sexual Misconduct, Dating or Domestic Violence, or Stalking without revealing any information about the victim and the incident to anyone else at the University, including the Title IX Coordinator and law enforcement (police), without the victim's consent. A victim can seek assistance and support from these counselors and advocates without triggering a University investigation or a law enforcement (police) investigation that could reveal his/her identity or that a victim disclosed an incident to them. However, see limited exceptions below regarding when sexual assault and domestic violence counselors and advocates must report to local law enforcement agencies. Counselors and advocates should explain these limited exceptions to victims, if applicable.

Location and Availability of Services

The Advocate shall provide effective and accessible victim-advocacy services, in a safe, private, and confidential environment. The Advocate should be physically housed on Campus in a gender-neutral location which allows for privacy and confidentiality when meeting with victims. The Advocate should not be housed in a women's center, as some victims are men or gender-nonconforming and might not be comfortable seeking assistance in a women's center. A gender equity or similar inclusive center would be appropriate, but is not mandatory if a Campus has no such office.

Annual Report

The Advocate shall submit to the Campus President and Title IX Coordinator an annual report summarizing how the resources supplied to the Advocate were used, including the number of Sexual Misconduct victims assisted. No personally identifying information will be included in the report. These annual Campus reports will also be submitted to the Systemwide Title IX Compliance Officer.

Roles and Responsibilities

The Advocate will provide the emergency and ongoing support services and assistance outlined below in order to ensure the well-being and safety of victims. These services shall be available 24 hours a day.

Complaint Procedures

The CSU is required to adopt and publish complaint procedures that provide for prompt and equitable resolution of Sex Discrimination complaints, including Sexual Harassment, Sexual Misconduct, Dating and Domestic Violence, and Stalking.

Confidentiality and Duty to Report

The University encourages victims of Sex Discrimination, Sexual Harassment, Sexual Misconduct, Dating or Domestic Violence, or Stalking to talk to someone about what happened - so they can get the support they need, and so the University can respond appropriately. Whether - and the extent to which - a University Employee may agree to maintain confidentiality (and not disclose information to the Title IX Coordinator) depends on the Employee's position and responsibilities at the University. The following information is intended to make persons aware of the various reporting and confidential disclosure options available so that everyone can make informed choices. The University strongly encourages victims to talk to someone identified in one or more of these groups.

Privileged and Confidential Communications_3

The University will be unable to conduct an investigation into a particular incident or pursue disciplinary action if a victim chooses to: (1) speak only to a physician, professional counselor, clergy member, sexual assault counselor, domestic violence counselor or advocate; and, (2) maintain complete confidentiality. Even so, these individuals will assist victims in receiving other necessary protection and support, such as victim advocacy, disability, medical/health or mental health services, or legal services, and will advise victims regarding their right to file a complaint with the University and a separate complaint with local or University police. If a victim insists on confidentiality, such professionals, counselors, and advocates may not be able to assist with: University academic support or accommodations; changes to University-based living or working schedules; or adjustments to course schedules. A victim who at first requests confidentiality may later decide to file a complaint with the University or report the incident to the police, and thus have the incident fully investigated. These counselors and advocates can provide victims with that assistance if requested as well as explain that University policy and the law include protections against retaliation. They should also explain that the University will not only take steps to prevent retaliation when it knows or reasonably should know of possible retaliation, but will also take strong responsive action if retaliation occurs.

Legislative Requirements

Title IX is a federal law that applies to educational institutions receiving federal financial assistance and prohibits discrimination on the basis of sex in an educational institution's programs or activities, including employment, academic, educational, extracurricular and athletic activities (both on and off Campus). Title IX protects all people regardless of their Gender, Sexual Orientation, or Gender Identity or Expression, from Sex Discrimination, including Sexual Harassment and Sexual Misconduct, which are forms of Sex Discrimination. Title IX requires institutions to take necessary steps to prevent Sex Discrimination on their Campuses, and to respond promptly and effectively when Sex Discrimination is reported. The Clery Act requires colleges and universities to report annual statistics on crime, including Sexual Assault and Rape, on or near their Campuses, and to develop and disseminate prevention policies. VAWA/Campus SaVE Act provides that Dating and Domestic Violence, and Stalking must be included in Campus Clery reports, and also requires that institutional policies address and prevent Sexual Misconduct, Dating and Domestic Violence, and Stalking through training, education, and certain discipline procedures.2 California Education Code § 67386 requires other institutional policies, including the adoption of an Affirmative Consent standard in assessing Sexual Misconduct. The California Equity in Higher Education Act prohibits discrimination based on any Protected Status, including Gender or Sex, in all postsecondary institutions in the state. California Education Code § 67385.7 et seq. requires the CSU to provide educational and preventive information about Sexual Misconduct to Students. TheCalifornia Campus Blueprint to Address Sexual Assault provides guidance on steps that can be taken to improve individual Campus responses to sexual violence.3

Supervision

To assure the independence and support needed for the Advocate to represent the interests of the victim independent of the University, the Advocate must report to and be supervised by an individual outside the office(s) handling the investigation and adjudication of Sexual Misconduct complaints. Thus, the Advocate may not be under the direct control or supervision of the University's Title IX office, Student Conduct office, or Police Department. If the Advocate is appointed by way of written agreement with a local community-based sexual violence service provider, such as a rape crisis center, supervision shall be provided by the outside service provider in accordance with the terms and conditions set forth in the written agreement.

Privileged and Confidential Communications_2

Union Representatives -- A CSU employee/union representative is not required to report a possible violation of Executive Orders 1095, 1096 or 1097 if the information is provided to the union representative, acting in that role, in a confidential setting by a union member seeking advice about a possible violation or representation in a matter within the scope of representation. However, CSU employee/union representatives are strongly encouraged to report the information to the DHR Administrator or Title IX Coordinator.

Victim Rights and Resources

Victims also should be made aware of their rights under Title IX, VAWA/Campus SaVE Act and related legislation, and any available resources, such as counseling, health, and mental health services, as well as the right to file a complaint with University and/or local law enforcement. Campuses must also ensure that persons know how to report any subsequent problems, and the Campus Title IX Coordinator or other appropriate Campus representatives should follow-up to determine whether any retaliation or new incidents of misconduct have occurred.