Sexual Misconduct Policy, Section VI: Principles of Investigation and Adjudication

A. Introduction

These procedures are entirely administrative in nature and are not considered legal proceedings. Formal investigation and adjudication serve to determine responsibility for a violation of College policy, and have no association with any civil or criminal proceeding. A criminal or civil proceeding may run concurrently with a College procedure.

B. Presumption of non-responsibility

The investigation is an impartial, fact-finding process. Reports are presumed made in good faith. Respondents are presumed not responsible. This presumption is overcome only when a preponderance of the evidence establishes that the Respondent committed the prohibited conduct alleged in the notice of investigation.

C. Standard of proof

The standard of proof to find a violation of this policy is a preponderance of the evidence. Preponderance of the evidence means that based on the totality of evidence and reasonable inferences from the evidence, it is more likely than not that the Respondent committed the prohibited conduct charged.

Put another way, the preponderance of the evidence means such evidence that when weighed against that opposed to it, has the more convincing force and the greater probability of truth.

D. Equitable Process Protections for Parties

During the process outlined in this policy, both the Reporting Party and the Respondent can expect the following:

• To be informed of the allegations, investigation procedures, and avenue of appeal
• A fair, thorough, reliable, and impartial investigation by a trained and experienced investigator
• The opportunity to have an advisor of their choice at any and all parts of the process, including any interview, Evidence Review, and hearing.
• The opportunity to provide relevant information and names of relevant witnesses. Declining to present information or witnesses will not be considered an admission of responsibility.
• The opportunity to inspect documents and/or relevant information gathered during the investigation, including all inculpatory and exculpatory evidence. This opportunity takes place at least ten (10) calendar days before a hearing, and is referred to as Evidence Review.
• To be notified of the names of any person involved in the investigation or hearing under this policy.
• Communication from the Title IX Coordinator, investigator, and/or the Director of Student Rights and Responsibilities, regarding next steps and the reason for any delays.

If the Reporting Party or Respondent identifies concerns about actual bias or conflict of interest in the investigatory, hearing, or appeal process, they should notify the Title IX Coordinator in writing as soon as possible. If the concern is about the Title IX Coordinator, the party should notify the Dean of Equity and Inclusion. Actual bias is an articulated prejudice in favor of or against one party or position; it is not generalized concern about the personal or professional backgrounds, interests, positions, or beliefs of the decision makers in the process.

Where actual bias or conflict of interest is established, the affected investigation, sanctioning, or appeal will be managed by separate individuals identified by the College, in a manner that eliminates the identified bias or conflict.

E. Role of an Advisor

Throughout the process, both the Reporting Party and the Respondent may use an advisor of their choice. The advisor may be any person - parent, friend, mental health professional, certified victim’s advocate, attorney, or advisor trained by the College. An advisor may not be a witness or have any conflicting role in the process or with a party.

Students have the option to use an advisor from the advisor list maintained by the College. The advisor list maintained by the College will provide the names, experience, and training of individuals, as well as their availability as advisors to a Reporting Party or Respondent or both. Advisors include law school students who undergo a semester of training at the law school. Advisors from the College list are available to students at no cost.

The role of the advisor is to provide support and assistance in understanding and navigating the investigation process. In a Live Hearing, the advisor’s role is to ask questions of witnesses and the other party, subject to the Live Hearing conduct expectations. To protect the privacy of those involved, all advisors are required to sign a confidentiality agreement prior to attending an interview or otherwise participating in the College’s investigatory or formal resolution process.

The College’s duty is to the student, not the advisor. All communication is made directly with the student. The process will not be unreasonably delayed to accommodate the schedule of the advisor. An advisor must be familiar with college policy and may be required to meet with the Title IX Coordinator or other college administrator in advance of participation in college proceedings.

The Reporting Party or Respondent speak for themselves. The advisor may not testify in or obstruct an interview, disrupt a hearing, or disrupt any other part of the process. The Title IX Coordinator, Adjudicator or hearing decision-maker, and Assistant Dean of Student Rights and Responsibilities each have the right to determine what constitutes appropriate behavior of an advisor and take reasonable steps to ensure compliance with this policy.

To limit the number of individuals with confidential information about the issues, each party may identify one advisor. Advisor changes may be made in exceptional circumstances.

F. Evidence

Rules of evidence and discovery used in state and federal proceedings are not applicable to the investigatory process for prohibited conduct. The investigation will consider information that is relevant, material, and close in time to the conduct at issue; in other words, information that makes the existence of a fact or inference more or less likely.

Information that is not relevant or is not considered reliable may be excluded during the investigative or adjudicatory process. For instance, polygraph tests will not be considered in determining whether a fact exists.

(a) Character evidence

Character witnesses, statements, or letters are not admissible as evidence and are not considered.

Examples of character evidence include statements, resumes, transcripts, and letters from friends, family, or faculty.

With the exceptions listed in (b) and (c) below, prior acts are not admissible to prove disposition to commit prohibited conduct. Prior acts of prohibited and non-prohibited conduct by a Respondent may be admissible to establish motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake/accident.

(b) Prior sexual history

Generally, the sexual history of a Reporting Party, Respondent, or witness will not be admitted or considered as evidence unless directly relevant and temporally proximate to an issue.

Character or reputation regarding sexual activity is never relevant and will not be considered as evidence.

When is sexual history relevant?

• When there is evidence of substantially similar conduct by a Respondent, regardless of a finding of responsibility. This evidence may also be relevant to establish motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake/accident;
• When there is prior sexual history between the parties and the Respondent states that the Reporting Party gave consent. Specifically, their prior sexual history may be relevant to assess how consent was communicated between the parties. However, the mere fact of a current or previous dating/sexual relationship does not constitute consent;
• When sexual history may be relevant to prove a material fact. For example, to explain an injury or physical finding.

(c) Prior acts of Intimate Partner Violence

Prior acts of intimate partner violence by a Respondent, regardless of a finding of responsibility, are admissible in determining responsibility in an investigation for the same or similar conduct.

Prior acts of intimate partner violence may also be relevant to establish motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake/accident.

G. Timeliness

It is the college’s goal to complete an investigation and adjudication in a timely manner by balancing principles of thoroughness, fairness, and promptness. Notice of an investigation will include anticipated timing of completion.

In some cases, the Title IX Coordinator may determine that good cause exists to grant a delay: in order to conduct a fair and complete investigation, to accommodate an investigation by law enforcement, to accommodate the availability of witnesses or delays by the parties, to account for college breaks, to arrange for language interpretation, to arrange for disability accommodation, or due to the complexity of the investigation.

Any extension for good cause will be shared in writing with the parties, and will include the reason for the delay and anticipated timing of completion.