CUNY Policy on Sexual Misconduct�Presenters Training

YVETTE SANTANA-PRADO, UNIVERSITY DIRECTOR OF STUDENT CONDUCT, CENTRAL OFFICE OF STUDENT AFFAIRS

NICOLE DONATICH, ASSOCIATE GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL

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Goals of this training: �

• Review of major changes to revised Policy  
• Review the hearing process
• Review of the role of the presenter
• Address the differences of... 
• Your role as a presenter at Title IX Sexual Harassment hearings
• Your role as a presenter at Non-Title IX Sexual Misconduct hearings
• Remote Hearings 

Recap from General Session Training �

CUNY’s Policy on Sexual Misconduct was revised this summer following new Title IX Regulations issued by the United States Department of Education. 

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SUMMARY OF MAJOR CHANGES:

• Definition of Title IX Sexual Harassment 
• Two sets of procedures: 
• Title IX Sexual Harassment 
• Non-Title IX Sexual Harassment 
• Title IX Grievance Process 

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The USDOE defines Title IX Sexual Harassment as …  

Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the united states and that satisfies one or more of the following: (1) a CUNY employee conditioning the provision of an aid, benefit, or service of CUNY on an individual’s participation in unwelcome sexual conduct; (2) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to CUNY’s education program or activity; or (3) sexual assault, dating violence, domestic violence, or stalking as defined in this policy. 

The Policy now has two sets of procedures: 

• Title IX Sexual Harassment matters 
• Allegations that meet the definition of Title IX Sexual Harassment must follow the Title IX Grievance Process 
• Non-Title IX Sexual Misconduct matters 
• Prohibited Sexual Misconduct that does not meet the USDOE definition of Sexual Harassment 
• Title IX Sexual Harassment vs. Non-Title IX Sexual Misconduct – how does this effect my role as a presenter?

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Similarities

Both Title IX Sexual Harassment & Non-Title IX Sexual Misconduct matters....

Right to an investigative process that is fair, impartial, timely, thorough and provides a meaningful opportunity to be heard

Burden of proof and burden of gathering evidence rests on the college (preponderance of the evidence)

The opportunity to offer evidence; have irrelevant evidence excluded from a hearing

Parties have access to the same supportive measures and accommodations

Can be resolved through Informal Resolution (except for allegations that an employee sexually harassed a student)

Parties have the right to be accompanied by an advisor of their choice throughout the process

Investigations – 120-day time frame

Hearings and Appeals will be heard by members of the CUNY-wide Sexual Misconduct Panel

Appeal grounds - (1) procedural irregularity that affected outcome; (2) new evidence not reasonably available at time of hearing that could affect outcome; (3) conflict of interest that affected outcome; or (4) disproportionate nature of penalty.

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Differences – �Title IX Sexual Harassment Matters

• Title IX formal complaint required to initiate the grievance process
• Investigation
• Prior to completion of the investigative report, the right to review all relevant documents and materials gathered during the investigation – and the right to respond in writing
• After completion of the investigative report, the right to review the report – and the right to respond in writing.
• Investigative reports will only summarize evidence and will not include recommendations regarding responsibility

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Differences – �Title IX Sexual Harassment Matters (con.)

• Hearing:
• The right to a hearing (both employees and students)
• Decision-maker (adjudication committee) will review investigative report and parties’ written responses prior to hearing
• CUNY-appointed cross examination advisor must be provided if a party does not have an advisor at a hearing
• If a witness does not make themselves available for cross examination (either by their absence or refusal to answer questions) the decision maker is strictly prohibited from considering that witness’s statements (either at the hearing or in the investigative report) when determining responsibility (Yes, really)

Decisions - “Written Determination of Responsibility” - must contain specific requirements outlined by the Regs

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Differences – �Title IX Sexual Harassment Matters (con.)

• When a respondent is found responsible
• Remedies for Complainants
• Sanctions for Respondent
• Students
• Warning – Suspension – Expulsion
• Employees -
• CBA employees - Sanction = referral for discipline under applicable CBA
• Non CBA employees – Reprimand – suspension - termination

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Differences – �Non-Title IX Sexual Misconduct Matters

• Investigation
• Investigative reports will summarize evidence and will include recommendations regarding responsibility
• If Complainant is a student, report must be provided to both parties
• Following appeal, if any, report provided to the President for appropriate action
• Student respondents – referral for disciplinary hearing
• Employee respondents – referral for discipline under applicable CBA

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Differences – �Non-Title IX Sexual Misconduct Matters (con.)

• Hearing
• Only student respondents will proceed to hearing
• Only substantiated cases will proceed to hearing
• Prior to hearing, parties have the right to review evidence college intends to use at hearing

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CUNY-Wide �Policy on Sexual Misconduct Panel

• All hearings and appeals under the revised policy will now be decided by a centralized, CUNY-wide panel
• Adjudication committee = 3 members of the panel
• Panel members will not serve on matters from their home campus
• Students will not serve on employee-respondent matters

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Goals of this training: �

• Review of major changes to revised Policy  
• Review the hearing process
• Review of the role of the presenter
• Address the differences of... 
• Your role as a presenter at Title IX Sexual Harassment hearings
• Your role as a presenter at Non-Title IX Sexual Misconduct hearings
• Remote Hearings 

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The Hearing Process�in the revised CUNY �Policy on Sexual Misconduct

Scheduling the Hearing�

• University Title IX Director  
• Adjudication Committee Selection (on rotation) 
• Scheduling 
• Location 
• Centralized  
• Campus  
• Virtual attendance permitted 
• Will provide investigative report, exhibits and parties’ written responses (if applicable) to the Committee 
• Will assign case identifier 

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Coordinating the Hearing �

• WHO
• College Office of Student Affairs or 
• College Office of Human Resources 
• WHAT
• Provide a physical location on campus 
• Facilitating remote platform 
• Recording the hearing 
• Arranging for presenters and advisors 

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Pre-hearing �Review of Evidence

Title IX Matters

• Investigation stage
• Parties provided all relevant documents and materials gathered during the investigation
• Final investigative report and exhibits
• 5 days before the hearing
• List of documents or other evidence the college intends to use at the hearing
• Must provide any evidence that was not previously provided during investigative stage

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Non-Title IX Matters

• 5 days before the hearing
• Provide similar and timely access to review documents or other evidence the college intends to use at the hearing

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All hearings are closed hearings.

Participation and observation is limited to the parties, their advisors, witnesses, the adjudication committee, the college presenter and any college or CUNY staff required to coordinate the hearing.

Commencing the Hearing

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• The college shall make a record of each fact-finding hearing by some means such as an audio recording or the equivalent. Must assign designated recorder to record hearing.
• Chair must read the chairperson script provided. The entire script must be read into the record.

Hearing Committee �

• During the Hearing 
• Listen to Testimony 
• Review and consider evidence 
• Ask questions 
• Chairperson’s Role at the Hearing  
• Preside over the hearing 
• Rules of Decorum 
• Make procedural rulings, such as: 
• Admissibility of evidence 
• Relevance 
• Questioning 

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Hearing Committee �

• After the Hearing 
• Consider all of the information and evidence 
• Discuss with committee members 
• Make a decision regarding responsibility and penalty (if applicable) 
• Issue a written decision 
• Title IX - “Determination of Responsibility” 
• Chair – Coordinates/takes lead 

Rules of Decorum: �Overview

• NEW 
• APPLIES TO: PARTIES (COMPLAINANT AND RESPONDENT) & ADVISORS 
• PURPOSE - “TO PROHIBIT ANY PARTY OR PARTY ADVISOR FROM QUESTIONING WITNESSES IN AN ABUSIVE, INTIMIDATING, OR DISRESPECTFUL MANNER...” 

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Rules of Decorum: Do’s

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• Keep cell phones/cameras, etc. turned off and put away 
• Refer to parties using the surname and gender used by the party
• Wait to be acknowledged by Chair prior to speaking 
• Do not speak at the same time as others (with exception of voicing an objection) 
• Be respectful 

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Rules of Decorum: Dont’s �

• Act abusively or disrespectfully 
• Argue, yell, scream, badger or “lean in” to a witness’s personal space 
• Use profanity 
• Record or broadcast hearing
• Make irrelevant comments about a party or witness’s character, motive or physical attributes 
• Refer to documents not already in evidence 
• Mischaracterize evidence 
• Ask argumentative questions 

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Rules of Decorum: �Warning and Removal Process �

• Adjudication Committee has discretion to determine violations 
• First violation - Warning/Reminder 
• Second/Further violation – Discretion to remove the offending person or allow them to continue participating in the hearing 

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Considerations during the Hearing Process

RELEVANCE

Considerations during the hearing process:��What is Relevance?

• Relevance is the foundation of the hearing process 
• Parties have the right “to have irrelevant evidence excluded from any hearing” 
• “Having to do with the matter at hand” (Merriam Webster) 
• "Logically connected and tending to prove or disprove a matter in issue.” (Black’s Law Dictionary) 

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Considerations during the hearing process:��What is Relevance?

• TITLE IX
• Parties have the right to “...an evaluation of all relevant evidence, including both inculpatory and exculpatory evidence...”  
• Includes both fact and expert witnesses 

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• NON-TITLE IX
• More flexibility & control 
• Chair has discretion to limit the number of witnesses and length of testimony 

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Considerations during the hearing process:��What is not relevant?

• Duplicative questions 
• Duplicative vs. Corroborative  
• Questions and evidence about sexual history/predisposition  
• Unless an exception applies 
• Mental Health Diagnosis or treatment
• Title IX – inadmissible without consent
• Non-Title IX – total bar
• Specific to Title IX
• Medical records, unless written consent 
• Information protected by a legally recognized privilege 
• Party/witness statements that have not been subjected to cross examination** 

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Exceptions to the prohibition on evidence of sexual history��Title IX Matters

Parties have the right to exclude questions and evidence about their own sexual predisposition or prior sexual behavior,

• Exceptions -
• (1) to prove that someone other than the respondent committed the conduct alleged by the complainant, or
• (2) complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent (complainant only)

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Exceptions to the prohibition on evidence of sexual history��Non- Title IX Matters

Evidence of either party’s prior sexual history may not be introduced except,

• Exceptions -
• Evidence of prior sexual history between complainant and respondent can be offered to prove consent

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Considerations during the Hearing Process

HEARSAY

Considerations during the hearing process:��What is Hearsay?

• Hearsay 
• An “out of court” statement, offered to prove the truth of the matter asserted 
• Testimony or documents, quoting someone who is not present 

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Considerations during the hearing process:��Is hearsay admissible?

• Article XV/Non-Title IX Sexual Misconduct Hearings – Generally “one level” of hearsay is permitted
• The Adjudication Committee can consider the weight of the evidence 
• Title IX Sexual Harassment Hearings –  
• “If a party or witness does not submit to cross-examination at the live hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility...” 

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Considerations during the hearing process:��Cross Examination

• Cross Examination is... 
• Questions asked by an opposing party 
• A method of questioning (a question that suggests the answer) 
• A way to test witness credibility 
• Cross Examination is not... 
• A made for TV moment 
• A time to be argumentative and aggressive 
• An opportunity to embarrass or berate a witness 
• An opportunity for the person asking the questions to testify 

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Considerations during the hearing process:��Cross Examination

• What has not changed … 
• Cross examination permitted at CUNY hearings 
• Cross examination by advisors only 
• What has changed (for Title IX)…  
• Chair must determine whether each cross-examination question is relevant before the party or witness answers 
• Chair must explain when a question is deemed not relevant 
• All parties and witnesses must submit to cross examination, or else … (their statements cannot be considered) 
• CUNY appointed cross-examination advisors 
• What has changed (for Non-Title IX)… 
• Nothing 

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Considerations during the hearing process:�� Credibility

• Consistency 
• Corroboration  
• Specificity 
• Demeanor 
• Demonstrated bias/motivation to lie 
• Is the testimony reasonable, logical and inherently plausible? 

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Goals of this training: �

• Review of major changes to revised Policy  
• Review the hearing process
• Review of the role of the presenter
• Address the differences of... 
• Your role as a presenter at Title IX Sexual Harassment hearings
• Your role as a presenter at Non-Title IX Sexual Misconduct hearings
• Remote Hearings 

The Presenters Role�

Traditionally, the role of the student conduct process is to…

• Maintain campus safety
• Educate students on institutional expectations by holding them accountable for their actions
• Prevent inappropriate behavior from occurring in the future
• Foster student growth and development

The role of the hearing in the �Title IX Grievance Process…

• Live hearing is a mandatory, final step
• Fact finding by the decision-maker (Adjudication Committee)
• Parties afforded equal rights
• Opportunity to present evidence
• Opportunity to cross examine witnesses

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The relevant parties

• Respondent: a student or employee accused of committing violation of the Policy

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• Complainant: the individual who submitted a complaint alleging the infraction

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• Presenter: individual presenting evidence at the hearing

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• Advisor or Legal Counsel: individual assisting and/or presenting evidence on behalf of the respondent or complainant; individual conducting cross-examination on behalf of respondent and complainant

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Procedural�Rights

• Advance notice of hearing and allegations
• Sent by College Office of Student Affairs or Office of Human Resources
• Representation; advisor or legal counsel (respondent and complainant)
• Presumption that respondent is “not responsible” until any finding of responsibility
• Present their side of the story; witnesses and evidence.
• Cross-examination of witnesses ( by advisor only).
• Right against self-incrimination; silence may not be construed as an admission of responsibility

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Representation

• The College, Respondent, and Complainant, are permitted to have lawyers or other advisors act on their behalf throughout the process.
• Advisors may actively participate throughout the process and act on behalf of the parties during the hearing.
• Cross-examination must be conducted through advisors.
• Any party intending to appear with an attorney must provide 5 calendar days notice of such representation. Failure to provide such notice may result in adjournment of hearing.
• Notify respondent and complainant if college case is being presented by an attorney.

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Failure to Appear

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• Parties are entitled to one adjournment each, for a reasonable amount of time, without specifying a reason.
• Additional requests for adjournment must be made 5 calendar days prior to the hearing date.
• If either party fails to respond to the notice, appear on the hearing date or request an extension, the college may proceed in their absence.
• If the Respondent fails to appear for the scheduled hearing, the hearing should be adjourned and rescheduled. A new hearing notice, indicating that the party failed to show for a hearing, should be sent to the respondent. All enclosure must be included.
• This notice should also explain that should the respondent fail to show up on the rescheduled date, a hearing will be held in their absence.

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The Role of the Presenter �Generally, in all PSM matters

• Familiarize yourself with the investigative report, exhibits and parties written responses to the investigative report (if applicable)
• Identify relevant evidence to present on behalf of the college
• Witnesses
• Documentary evidence
• Present evidence in an organized way
• Confirm that an employee is assigned to operate the recording device.
• Meet the burden of proof

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The Burden of Proof�Preponderance of the Evidence

• Preponderance of the evidence: is it more likely than not that the alleged conduct occurred?
• The college maintains the burden of proof during both the investigatory and hearing stage
• The preponderance of evidence standard equates to “more likely than not” or 50.1%

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Preparing Witnesses

• Explain the hearing process.
• Develop an initial line of questioning for each witness.
• Review and outline the evidence you intend to introduce through the witness’ testimony.
• Review and practice both direct and cross examination questions.
• Advise the witness to wait before they answer any questions because there might be an objection.

Preparing Witnesses�The Complainant

• Be sensitive to the trauma a complainant may have experienced
• Remain impartial, avoid pre-judgement of the facts at issue and do not demonstrate bias for or against each party

Types of questions to avoid

• Questions about prior sexual history
• Questions about prior criminal history
• Questions about academic history at CUNY or any other institution
• Questions about prior drug use or lack thereof, that does not relate to the incident in question
• Questions about religious or moral background

Interactions with the Respondent�

• Be aware of your own biases, pressures, emotional reactions
• Treat the parties equally
• During cross examination, use a calm and neutral tone
• Seek clarification about critical details
• Specific information about how consent was obtained and/or understood
• Circle back on critical details as needed

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Opening �Statement

• The college bears the burden of proof and therefore must make an opening statement.
• Introduce yourself as the college representative.
• Outline the allegations.
• Present an overview of your case
• An opening should address what evidence the college intends to present and highlight the witnesses that will be called.

Opening �Statement

• Stick to the facts you can prove
• All parties have the right to make an opening statement
• Non-Title IX Matters:
• Make a strong statement regarding the college’s belief that the respondent is responsible for the alleged conduct violation.
• Tip: if there is a piece of evidence you want the committee to play close attention to, highlight it during your opening statement.

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The�College’s �Case

• College bears the burden of proof
• The college puts on its case by way of witness testimony, documentation, etc.
• Parties’ advisors have the opportunity to cross- examine/challenge the school’s witness(es) and/or evidence.

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The�College’s �Case

• You should logically organize the order / sequence of witnesses and evidence
• Restrict your questions and evidence to information relevant to the allegations
• Review for conflicts.
• When examining your witness, never ask a question to which you do not know the answer.
• If witness is nervous, ask general questions that witness should easily be able to answer

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The�College’s �Case�Direct Examination

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• Elicit information relevant to the allegations
• OPEN-ENDED QUESTIONS - prompt narrative answers

- allows the witness to testify

- cannot be answered with a yes or no

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• CLOSED-ENDED QUESTIONS – follow up questions

- clarify issues raised by the witness’ response to open-ended questions.

- typically result in yes or no answers

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• DO NOT ASK LEADING QUESTIONS

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The�College’s �Case�Redirect Examination

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• After cross examination of your witnesses you have the ability to ask your witness additional questions to clear up any issues that call for further explanation. You are limited to matters covered in cross examination.

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• Only use if witnesses testimony was confusing or discredited on cross examination.

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The�College’s �Case�Exhibits

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• Exhibits can include: pictures, video, text messages, phone logs, physical objects, or other tangible items.
• Introducing exhibits is a 3 step process:

(1) present the exhibits for identification.

(2) have witness explain what the evidence is and how it is relevant to the case.

(3) move the exhibit into evidence.

• In person hearings - Be sure to have enough copies for all parties involved.

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The�Complainant’s�Case

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• Complainant has the right, though is not mandated to present evidence by way of witness testimony, documentation, etc.
• Because the evidence that would likely be introduced by complainant will most likely be introduced by the College, this step seldom occurs.

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The�Respondent’s�Case

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• The respondent puts on their case by way of witness testimony, documentation, etc.
• You have the opportunity to cross examine/challenge the respondent’s witness(es) and/or evidence.
• Your cross examination should be limited to challenging testimony that the witness has given.

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�Cross Examination

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The two major purposes of cross examination are to:

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(1) to elicit testimony favorable to your side from

an opposing witness.

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(2) to discredit the witness.

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AVOID FISHING EXPEDITIONS

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Cross Examination

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• Never get drawn in to a confrontation with a witness.
• Not every witness needs to be cross-examined.
• Cross-examination questions cannot exceed the scope of testimony given on direct examination.
• The parties’ advisors can cross examine the college’s witnesses.
• Do not ask questions to which you do not know the answer.
• Prepare probable cross-examination questions ahead of time.
• Limit the areas that you cover.
• Use contradictory statements against witness.

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Recalling�Witnesses

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• Parties have the opportunity to recall witnesses to clarify earlier testimony or evidence that was presented

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• The questioning begins with the party who determined it was necessary to recall the witness

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Objections

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• Objections are made to prevent improper questions from being answered or improper documents from being introduced, and to have improper testimony deleted from the record.

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Objections

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Types of Objections:

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1. Irrelevant- questions that have no relevance to the charges.

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• Cumulative- witnesses and documents are repetitive and do not add new information. (The Title IX Regs also identify duplicative evidence as irrelevant)

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• Assuming facts not in evidence - a question that assumes or suggests information that is not currently in evidence

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• Hearsay- witness testifying to something someone else has said out of court/hearing (generally we accept 1 level ie: “John said” is allowable, but “John said that Jane said” is not allowable).

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• Conclusions- questions that ask a witness to make a conclusion.

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Objections

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Basic Rules for Objections

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• Use sparingly.

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• Before making an objection, be reasonably sure that the answer will hurt your case.

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• Be sure you can explain the basis for your objection.

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• Your objection must be made timely, as soon as the question is asked.

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Closing�Argument

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• Review the evidence that has been introduced in the hearing.

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• Non-Title IX only - Indicate how the evidence proves that the respondent is responsible for the charges by a preponderance of the evidence.

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Penalty Phase

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• Impact Statement : Complainant and Respondent may make an impact statement.

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• Character References: Both the Complainant and Respondent may submit evidence related to Respondent’s character.

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• Even if Respondent or Complainant chose not to participate in hearing portion, they may still introduce evidence or arguments related to penalty, or make an impact statement.

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Penalty Phase

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Prior record:

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• The college may introduce past findings of Respondents’ responsibility for domestic violence, stalking or sexual assault, and/or

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• Any prior disciplinary record from any CUNY institution the Respondent has attended.

*present envelope at beginning of penalty phase.

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Penalty Phase

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• A prior disciplinary record is a previous FSDC decision/Adjudication Committee decision, where charges were sustained, or

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• A previous fully executed mediation agreement for any CUNY institution the student has attended.

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• College must submit a sealed envelope bearing the respondent’s signature across the seal. (*Beginning of the penalty phase)

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• The chair must confirm that the Respondent has had the opportunity to review the contents of the envelope.

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Goals of this training: �

• Review of major changes to revised Policy  
• Review the hearing process
• Review of the role of the presenter
• Address the differences of... 
• Your role as a presenter at Title IX Sexual Harassment hearings
• Your role as a presenter at Non-Title IX Sexual Misconduct hearings
• Remote Hearings

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The Presenter Role

TITLE IX VS. NON TITLE IX HEARINGS

Presenting at�Title IX Sexual Harassment Hearings

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• All cases proceed to hearing, regardless of evidence uncovered during investigation
• Student and employee respondents
• Balance between:
• Carrying the burden of proof
• Equal, unbiased presentation of evidence

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Presenting at�Title IX Sexual Harassment Hearings

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• Opening
• Brief procedural history; discuss allegations
• Outline presentation of evidence to come
• Presentation of Evidence
• Use the investigative report as a blue print
• Cross Examination
• Seek clarification
• Remember you are a neutral representative on behalf of college
• Closing
• Must not advocate for a certain outcome
• Do not comment on credibility

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Presenting at�Non- Title IX Sexual Misconduct Hearings

• Cases proceed to hearing upon recommendation from the President
• Student respondents only
• Your role –to present evidence and advocate in support of a finding of responsibility
• Opening
• May also suggest that evidence will demonstrate respondent is responsible
• Presentation of Evidence
• Present evidence to demonstrate responsibility
• Cross Examination
• Seek clarification
• Highlight inconsistencies
• Closing
• Advocate for a certain outcome (responsibility)
• Comment on credibility

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Goals of this training: �

• Review of major changes to revised Policy  
• Review of the role of the presenter
• Review the hearing process
• Address the differences of... 
• Your role as a presenter at Title IX Sexual Harassment hearings
• Your role as a presenter at Non-Title IX Sexual Misconduct hearings
• Remote Hearings  

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REMOTE HEARING GUIDELINES

Remote Hearing �Guidelines�

“Live hearings … may be conducted with all parties physically present in the same geographic location or, at the college’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants to see and hear each other simultaneously.”

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The same rights, expectations and procedures that apply to in-person hearings pursuant to the CUNY policy on Sexual Misconduct, apply to remote hearings.

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General Guidelines

• The Hearings will be conducted via a secure video-conferencing platform (VCP) determined by the College
• All participants must review the Instructions and Guidelines for Remote Hearings
• All Parties must review the Rules of Decorum
• FERPA applies

Responsibilities of the College

Responsibilities of the College

• VCP
• Reasonable Accommodation for participants with disabilities
• Pre-hearing review of evidence
• Establish point-person to respond to participant questions/concerns about hearing procedure
• Back-up recording
• Identifying and setting up Host
• Creating “Break Out” rooms
• Managing the “mute” function
• Recording via VCP

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Questions?