4-50: Employee Policy on Sexual Violence, Sexual Misconduct, Relationship Violence, Domestic Violence and Stalking – Procedure

If an employee is accused of sexual misconduct, other gender-based violence, or the crimes of rape, sexual assault, sexual harassment, stalking, dating violence, or domestic violence, they are subject to action in accordance with the SFCC Corrective Action and Disciplinary Action Policy up through and including termination and may be subject to arrest and prosecution; following appropriate investigation(s).

An employee wishing to officially report such an incident may do so by contacting any of the following offices:

Human Resources, 505-428-1228
Campus Safety and Security, 505-428-1224
Counseling Services, 505-428-1682 or 505-428-1839;
Vice President for Academic and Student Success/Title IX Coordinator, 505-428-1409
Student Development, 505-428-1306 or
Associate Vice President for Student Success, 428-1486.

An employee with knowledge of an incident, or who is a victim of sexual misconduct or gender-based violence or the crimes of rape, sexual assault, sexual harassment, stalking, dating violence, or domestic violence is encouraged to report it immediately. Protective measures for victims are available from the campus whether a victim chooses to report to local and/or campus law enforcement, and irrespective of whether a victim pursues a formal complaint through the SFCC resolution process.

If you are the victim of sexual misconduct, gender-based violence or the crimes of rape, acquaintance rape, sexual assault, sexual harassment, stalking, dating violence, or domestic violence, some or all of these safety suggestions may guide you after an incident has occurred:

1. Go to a safe place and speak with someone you trust. Tell this person what happened. If there is any immediate danger, contact Campus Security at 428-1224 if you are on campus, or call 911 if you are off campus.

2. Consider securing immediate professional support (e.g.: counseling, victim advocacy, medical services, etc.) to assist you in the crisis.

3. If you are on campus during regular business hours, you may go to Counseling Services for available resources. These are strictly confidential resources.

4. For your safety and well-being, immediate medical attention is encouraged. Further, in the case of rape or sexual assault being examined as soon as possible, ideally within 120 hours, is important. The hospital will arrange for a specific medical examination at no charge.

To preserve evidence, it is recommended that you do not bathe, shower, douche, eat, drink, smoke, brush your teeth, urinate, defecate or change clothes before receiving medical attention. Even if you have already taken any of these actions, you are still encouraged to have prompt medical care, and evidence may still be recoverable.

Typically, if police are involved or will be involved, they will obtain evidence from the scene, and it is best to leave things undisturbed until their arrival. They will gather bedding, linens or unlaundered clothing and any other pertinent articles that may be used for evidence. It is best to allow police to secure items in evidence containers, but if you are involved in transmission of items of evidence, such as to the hospital, secure them in a clean paper bag or clean sheet, to avoid contamination.

• If you have physical injuries, photograph or have them photographed, with a date stamp on the photo.
• Record the names of any witnesses, and their contact information. This information may be helpful to the proof of a crime, to obtain an order of protection or to offer proof of a campus policy violation.
• Try to memorize details (physical description, names, license plate number, car description,), or even better, write notes to remind you of details, if you have time and the ability to do so.
• If you obtain external orders of protection (e.g. restraining orders, injunctions, protection from abuse), please notify Campus Safety and Security Office at 428-1224 so that those orders can be observed on campus.

5. Even after the immediate crisis has passed, consider contacting Counseling Services, and/or the local rape crisis center for available resources.

6. SFCC is able to offer reasonable accommodations, escorts, no contact order compliance, available resources through counseling services and other support as needed by a victim.

Violence and Sexual Misconduct Procedural Guidelines

Sexual Misconduct

Policy 4-1 Workplace Ethics and Code of Conduct prohibits sexually violent acts, termed “Sexual Misconduct.” Some sexually violent acts are considered crimes and may be prosecutable. Sexual misconduct includes non-consensual sexual intercourse, non-consensual sexual contact, sexual exploitation, interpersonal relationship violence, sex/gender-based stalking, and sexual harassment. While SFCC may apply different standards and definitions than the New Mexico Code, sexual misconduct often overlaps with crimes of rape, sexual assault, sexual harassment, stalking, dating violence, and domestic violence.

In an effort to reduce the risk of sexual misconduct as well as the crimes of rape, sexual assault, sexual harassment, stalking, dating violence, and domestic violence occurring among its students and employees, SFCC utilizes a range of campaigns, strategies, and initiatives to provide awareness, educational, risk reduction, and prevention programming.

Prevention Programming

SFCC offers programming to prevent domestic violence, dating violence, sexual assault (including stranger and known offender assaults), and stalking each year. Educational programs are offered to raise awareness for all incoming students and employees, and are conducted during new student orientation, new employee orientation, and throughout an incoming student’s first semester. These programs and others offered throughout the year include strong messages regarding not just awareness, but also primary prevention including normative messaging, environmental management, and bystander intervention.

Bystander engagement is encouraged through safe and positive intervention techniques and by empowering third-party intervention and prevention such as calling for help, using intervention-based apps, identifying allies, and/or creating distractions. Bystander empowerment training highlights the need for those who intervene to insure their own safety in the intervention techniques they choose, and motivates them to intervene as stakeholders in the safety of the community when others might choose to be bystanders.

Programs also offer information on risk reduction that strives to empower victims, how to recognize warning signals and how to avoid potential attacks, and do so without victim-blaming approaches. Throughout the year, ongoing awareness and prevention campaigns are directed to students and employees, including faculty, often taking the form of campaigns, emails, guest speakers and events.

In the event that sexual misconduct, gender-based violence or the crimes of sexual assault, stalking, dating violence, or domestic violence do occur, SFCC takes the matter very seriously. SFCC employs interim protection measures such as interim suspension and/or no contact orders in any case where a student’s or employee’s behavior represents a risk of violence, threat, pattern or predation. Longer term, students may be expelled, and employees may be terminated. In extreme cases, an individual may be banned from campus.

Legal and Clery Definitions

Rape is generally defined as forced sexual intercourse. It may also include situations where the victim is incapable of giving consent due incapacitation by means of disability, alcohol, or other drugs. Many rapes are committed by someone the victim knows, such as a date or friend.

Under New Mexico law, rape is defined as sexual intercourse against the will of the victim that can occur under a variety of circumstances, including:

• When the victim is prevented from resisting due to alcohol or drugs.
• When the assailant uses physical force or the threat of force to overpower and control the victim.
• When the victim fears that she or he or another will be injured if the victim does not submit.
• When the victim is at the time unconscious of the nature of the act, and this is known to the assailant.
• When the victim is incapable of giving legal consent due to a mental disorder or developmental or physical disability, and this is known or reasonably should be known to the assailant.
• When the act is accomplished by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another person.
• When the assailant uses duress, such as a direct or implied threat of hardship or retribution, to coerce the victim.
• When the assailant uses force, fear or threats to accomplish sexual intercourse against the will of the spouse. This provision of the law is known as the “spousal rape law.”

• Other Sexual Offenses-Forcible is defined as any sexual act directed against another person, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent. Examples include sodomy (forced anal intercourse); oral copulation (forced oral-genital contact); rape by a foreign object (forced penetration by a foreign object, including a finger) and; sexual battery (the unwanted touching of an intimate part of another person for the purpose of sexual arousal).
• Forcible Rape: The carnal knowledge of a person, forcibly and/or against the person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity (or because of their youth).
• Forcible Sodomy: Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will; or not forcibly against the person’s will where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.
• Sexual Assault with an Object: The use of an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.
• Forcible Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will; or, not forcibly or against the person’s will where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity
• Other Sex Offenses Non-Forcible: The unlawful, non-forcible sexual intercourse.
• Incest: Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
• Statutory Rape: Non-forcible sexual intercourse with a person who is under the statutory age of consent.
• Consent is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed upon sexual activity. In New Mexico, sexual consent is defined as: sexual activity requires consent, which is defined as voluntary, positive agreement between the participants to engage in specific sexual activity.
• Consent is voluntary. It must be given without coercion, force, threats, or intimidation. Consent means positive cooperation in the act or expression of intent to engage in the act pursuant to an exercise of free will.
• Consent is revocable. Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion. A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Even in the context of a relationship, there must be mutual consent to engage in sexual activity. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. Once consent is withdrawn, the sexual activity must stop immediately.
• Consent cannot be given when a person is incapacitated. A person cannot consent if s/he is unconscious or coming in and out of consciousness. A person cannot consent if they are under the threat of violence, bodily injury, or other forms of coercion. A person cannot consent if their understanding of the act is affected by a physical or mental impairment.
• Sex Offender is a person who is convicted of a sexual offense. Sexual offenses includes such crimes as rape, sodomy, and sexual abuse.

In accordance to the Campus Sex Crimes Prevention Act of 2000, which amends the Jacob Wetterling Crimes against Children and Sexually Violent Offender Registration Act, the Jeanne Clery Act and the Family Educational Rights and Privacy Act of 1974, SFCC is providing a link to the New Mexico State Sex Offender Registry. All sex offenders are required to register in the state of New Mexico and to provide notice of each institution of higher education in NM at which the person is employed, carries a vocation or is a student. The link to the New Mexico registry is http://www.city-data.com/so/New-Mexico.html.

In addition to the above notice to the State of New Mexico, all sex offenders are required to deliver written notice of their status as a sex offender to the SFCC Office of the Registrar no later than three business days prior to their enrollment in, employment with or volunteering at SFCC. Such notification may be disseminated by SFCC to, and for the safety and well-being of the SFCC community, and may be considered by SFCC for enrollment and discipline purposes.

Clery Definitions

Reporting of statistics under the Clery Act uses federal offenses definitions that allow comparability across campuses, regardless of the state in which the campus is located. These definitions are as follows:

• Sex Offenses-Forcible: Any sexual act directed against another person, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent.
• Forcible Rape: The carnal knowledge of a person, forcibly and/or against the person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity (or because of their youth).
• Forcible Sodomy Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will; or not forcibly against the person’s will where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.
• Sexual Assault with an Object The use of an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.
• Forcible Fondling The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will; or, not forcibly or against the person’s will where the victim is incapable of giving consent because of his/her youth or because of their temporary or permanent mental or physical incapacity.
• Sex Offenses-Non-Forcible: Unlawful, non-forcible sexual intercourse.
• Incest: Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
• Statutory Rape: Non-forcible sexual intercourse with a person who is under the statutory age of consent.

Campus Procedures for Addressing Sexual Misconduct, Dating Violence, Domestic Violence, Stalking, Sexual Harassment and other acts of sex and gender discrimination

For misconduct or violent behavior including sexual misconduct or other gender based violence, which typically include the crimes of domestic violence, dating violence, sexual harassment, and stalking, sanctions range from warnings through termination and ban from campus. Serious and violent incidents and acts of non-consensual sexual intercourse (the policy equivalent to the crime of rape) usually result in suspension and/or termination of employment (Policy 2-2 Student Corrective Action and Disciplinary Action, Policy 4-2 Employee Corrective Action and Disciplinary Action. Definitions of sexual misconduct are included below.

• Domestic Violence: asserted violent misdemeanor and felony offenses committed by the victim’s:
  • Current or former spouse/partner
  • Current or former cohabitant
  • Current or former partner whom they share a child with
  • Anyone else protected under domestic or family violence law
• Dating Violence: abuse committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.
• Stalking: Behavior in which a person repeatedly engages in conduct directed at a specific person that places that person in reasonable fear of his or her safety or the safety of others.

Procedurally, when SFCC receives a report of sexual misconduct, gender-based violence, or other sex or gender discrimination the Title IX Coordinator and the Office of Human Resources are notified. If the victim wishes to access local community agencies and/or law enforcement for support, SFCC will assist the victim in making these contacts. The Office of Human Resources will offer assistance to victims in the form of interim or long-term measures such as opportunities for changes in on-campus working situations and other assistance as may be appropriate and available on campus or in the community (such as no contact orders, campus escorts, targeted interventions, etc.). If the victim so desires, they will be connected with a counselor off-campus, as well as an on-or off-campus victim’s advocate. No victim is required to take advantage of these services and resources, but SFCC provides them in the hopes of offering help and support without condition or qualification. A summary of rights, options, supports and procedures, in the form of this document, is provided to all victims, whether they are a student, employee, guest or visitor.

When appropriate upon receipt of notice, the Title IX Coordinator and the Office of Human Resources will cause a prompt, fair and impartial process to be initiated, commencing with an investigation which may lead to the imposition of sanctions, based upon a preponderance of evidence (what is more likely than not), upon a responding employee or other accused individual. In the case of an employee, the Office of Human Resources will facilitate the investigation and process. Procedures detail the investigation and resolution processes (Policy 2-2 Student Corrective Action and Disciplinary Action, Policy 4-2 Employee Corrective Action and Disciplinary Action). The Title IX Coordinator Affairs and the Executive Director of the Office of Human Resources are ultimately responsible to assure in all cases that the behavior is brought to an end, SFCC acts to reasonably prevent its recurrence and the effects on the victim and the community are remedied.

The Vice President for Academic and Student Affairs/Title IX Coordinator is responsible for assuring that training is conducted annually for all advocates, investigators, hearing officers, panelists and appeals officers that encompasses a hearing process that protects the safety of victims and promotes accountability. Training will focus on sexual misconduct, domestic violence, dating violence, sexual assault, stalking, sexual harassment, retaliation and other behaviors that can be forms of sex or gender discrimination covered by Title IX and Clery Act. Training will help those decision-makers in the process to protect the safety of victims and to promote accountability for those who commit offenses.

Campus Confidentiality for Addressing Sexual Misconduct, Dating Violence, Domestic Violence, Stalking, Sexual Harassment and other acts of sex and gender discrimination

The investigation and records of the resolution conducted by SFCC are maintained confidentially. Information is shared internally among administrators who need to know, but a tight circle is kept. Where information must be shared to permit the investigation to move forward, the person bringing the accusation will be informed. Privacy of the records specific to the investigation are maintained in accordance with New Mexico law and the federal FERPA statute. Any public release of information to comply with the open crime logs or timely warning provisions of the Clery Act will not release the names of victims or information that could easily lead to a victim’s identification. Additionally, SFCC maintains privacy in relation to any accommodations or protective measures afforded to a victim, except to the extent necessary to provide the accommodations and/or protective measures.

In any complaint of sexual misconduct, sexual assault, stalking, dating violence, domestic violence or other sex or gender-based discrimination covered under the federal law, Title IX, the person bringing the accusation and the responding party are entitled to the same opportunities for a support person or advisor of their choice throughout the process, including any meeting, conference, hearing or other procedural action. The role of advisors is to provide the accuser or accused with support, guidance or advice. SFCC policy states that in the case of termination of employment or other severe sanctions, employees may appeal the disciplinary actions using the procedures outlined in Policy 4-2, including appealing their supervisor and next level supervisor. If the decision is still not favorable to the employee, a Hearing Panel will be assembled, if the employee requests. Once complete, the parties will be informed, in writing, of the outcome, including the finding, the sanctions (if any) and the rationale therefor. Delivery of this outcome to the parties will occur without undue delay between notifications. All parties will be informed of the SFCC appeal processes, and their rights to exercise a request for appeal. Should any change in outcome occur prior to finalization, all parties will be timely informed in writing, and will be notified when the results of the resolution process become final.

Both Title IX and the Clery Act provide protections for whistleblowers who bring allegations of non-compliance with the Clery Act and/or Title IX to the attention of appropriate campus administrators. SFCC does not retaliate against those who raise concerns of non-compliance. Any concerns should be brought to the immediate attention of the campus Title IX Coordinator and/or to officials of the U.S. Department of Education.

October 2015

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