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Sexual Misconduct Investigation

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Step 1: Intake and Formal Complaint

Any individual may allege violation of Sexual Misconduct Policy
Title IX Coordinator must then contact complainant:

Explain Process for Filing Formal Complaint
Describe Availability of Supportive Measures
Supportive Measures Available Regardless of Whether Formal Complaint is Filed
Solicit Complainant’s Wishes

Title IX Coordinator must document interaction

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Step 1: Intake and Formal Complaint

As stated in the prior training, any individual may lodge a good faith allegation that the College’s Sexual Misconduct Policy has been violated. Any College employee who receives such an allegation or otherwise learns of conduct that could violate the College’s Sexual Misconduct Policy must report that to either one of the identified Responsible College Employees or to the Title IX Coordinator. All Responsible College Employees who obtain information suggesting that a violation of the Sexual Misconduct Policy has occurred have a legal obligation to report that to the College’s Title IX Coordinator.

Upon receipt of an allegation, the Title IX Coordinator must contact the complainant (that is, the person alleged to be the victim of sexual misconduct). During that initial meeting, the Title IX Coordinator must explain to the complainant the process for filing a formal complaint of violation of the Sexual Misconduct Policy.

The Title IX Coordinator must also discuss with the complainant the availability of supportive measures and must make clear that such supportive measures are available to the complainant regardless of whether a formal complaint is filed. The Title IX Coordinator must solicit the complainant’s wishes regarding the supportive measures, although the Title IX Coordinator is not necessarily required to abide by those wishes.

Title IX prohibits the College from being deliberately indifferent to sexual misconduct. Accordingly, the College’s Sexual Misconduct Policy requires that the Title IX Coordinator document the reasons for denying any accommodations that a complainant has requested.

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Formal Complaint

Written document or electronic submission

Signed by Complainant or Title IX Coordinator

Alleges violation of Sexual Misconduct Policy

Requests Investigation

The Sexual Misconduct Grievance Procedure begins when a formal complaint is filed requesting that the College investigate an allegation of sexual misconduct. This must be a written document or electronic submission signed by either the complainant (that is, the person alleging a violation of the College’s Sexual Misconduct Policy) or the Title IX Coordinator.

Once a formal complaint has been signed, an investigation will occur. Under the College’s Sexual Misconduct Policy, the investigation will be conducted primarily by one of the College’s two deputy Title IX Coordinators. If the respondent—that is the person accused of sexual misconduct—is a student, then the investigation will be conducted primarily by the Director of Student Conduct, who is the Deputy Title IX Coordinator for Students. For all other respondents—including non-student employees of the College—the investigation will be conducted primarily by the Executive Director of Employee Relations, who also holds the position of Deputy Title IX Coordinator for Employees. The Title IX Coordinator is also responsible for investigating sexual misconduct allegations, and the College’s legal counsel may also be engaged to serve as an investigator when the College deems that necessary and appropriate.

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Supportive Measures

Non-punitive and designed to restore or preserve equal access
Available to both the complainant and the respondent
May include,

Counseling services
Academic extensions or accommodations
Modifications of work or class schedules
Campus escort services
Mutual non-contact orders
Leaves of absence
Increased Security
Workplace accommodations
Other similar measures

Again, either party is entitled to necessary supportive measures throughout the Sexual Misconduct Grievance Procedure. What are supportive measures? Supportive measures are non-disciplinary and non-punitive individualized services that are offered to a complainant or respondent without charge or fee. Such measures are designed to restore or preserve equal access to HACC’s educational programs and activities without unreasonably burdening the other party. Supportive measures include measures designed to protect the safety of all parties and the College’s educational environment. Supportive measures may include providing the parties with counseling services, academic extensions or accommodations, modifications of work or class schedules, campus escort services, mutual non-contact orders, leaves of absence, increased security, workplace accommodations when one or both of the parties are HACC employees, and other similar measures.

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Emergency Removals

Title IX Coordinator may order respondent removed from College during grievance procedure

May be full or partial ban

Title IX Coordinator must conduct individualized safety and risk analysis

Removal justified based on risk to the physical health or safety of any other individual

Must notify respondent of decision and manner for lodging challenge
Challenges decided by Asst. VP of Student Engagement and Belonging (non-student employees) or VP Human Resources and Organization Development (students)
Respondent bears the burden of demonstrating unreasonableness

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At any time following receipt of information suggesting that a violation of the College’s Sexual Misconduct Policy may have occurred, the Title IX Coordinator may remove a respondent from the College’s education programs or activities on an emergency basis. This may take the form of a complete ban from all College-related activities or locations. Or it might just involve a partial limitation on the respondent’s ability to participate in the College’s programs or activities. To implement such a removal or limitation, however, the Title IX Coordinator must first undertake an individualized safety and risk analysis regarding the respondent.

The Title IX Coordinator may order the respondent removed on a temporary basis if that analysis determines that the respondent poses an immediate threat to the physical health or safety of any other individual.

If the Title IX Coordinator orders the respondent removed temporarily, the Title IX Coordinator must notify the respondent of the decision and the manner of challenging that decision.

If the respondent is a non-student employee (or anyone else other than a student), then the Asst. Vice President of Student Engagement and Belonging will decide any challenge of a removal decision.

If the respondent is a student, then the Vice President of Human Resources and Organization Development will decide the challenge to the Title IX Coordinator’s decision.

During any such challenge, the respondent bears the burden of demonstrating that the Title IX Coordinator’s decision was incorrect.

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Administrative Leave

Available once formal complaint is signed
Administrative leave for any non-student employee respondent
May last throughout investigation, hearing, or appeal process
May be paid or unpaid

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Emergency Removals & Administrative Leave

May be amended at any time
Will expire at conclusion of grievance process, unless ordered continued through grievance process
Even if formal complaint dismissed or finding of non-responsibility is made, College may continue emergency leave or administrative leave, but only if threat is unrelated to sexual misconduct allegations.

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Keep in mind, an order of emergency removal or administrative leave should only be as broad as necessary to protect the safety interests implicated. Similarly, such orders may be amended at any time during the Sexual Misconduct Grievance Procedure if a determination is made that the order was unjustified or should be adjusted in some fashion.

The order, however, will normally expire upon conclusion of the Sexual Misconduct Grievance Process, unless the Sexual Conduct Hearing Board or appeal decision maker requires that the order continue in place.

The College may order that an emergency removal order or administrative leave continue even if the formal complaint is dismissed or the Sexual Misconduct Grievance procedure results in a finding of non-responsibility. But in that situation, the order may only continue if the threat that the respondent poses is unrelated to the sexual misconduct allegations.

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Step 2: Written Notification to Parties

Copies of formal complaint and SGP 114
Statement describing event (identities, date, time, and location)
Presumption of Non-Responsibility
Permitted use of advisor (including attorney)
Inspection and review of evidence
Prohibition of knowingly false statements or information

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Step 2: Written Notification to the Parties

Once a formal complaint has been filed, the Title IX Coordinator must provide both the complainant (that is, the person alleging to be a victim of sexual misconduct) and the respondent (that is, the person accused of sexual misconduct) written notice of the formal complaint. That written notice must include the formal complaint, plus a statement making clear that a formal complaint has been filed against the respondent. The notice must contain a copy of the College’s Sexual Misconduct Policy and Grievance Procedure, and must contain a description regarding the alleged conduct with sufficient details, including (if known) the identities of the parties to the event and the date, time, and location of the incident. The written notice must also state that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process. The written notice must also notify the parties that throughout the grievance process they may utilize the services of an advisor of their choice, who may be—but is not required to be—an attorney. The written notice must inform the parties that they will be permitted to inspect and review the evidence gathered during the investigation that directly relates to the incident that is the subject of the investigation. The written notice must also state that the College’s Code of Conduct prohibits any person from knowingly making a false statement or knowingly submitting false information during the investigation and grievance process.

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Informal Resolution Process

Restorative justice approach
Both parties must voluntarily agree
Parties must receive notice of allegations and process requirements
Parties may withdraw from informal resolution process
College cannot coerce participation
No informal process for allegations that College employee victimized student

The filing of a formal complaint does not automatically require that a live hearing be conducted. Instead, there are certain, limited circumstances in which the parties may utilize an informal resolution process to resolve an alleged violation of the Sexual Misconduct Policy. And the College will be seeking to implement the principles of “restorative justice” for its informal resolution process.

To utilize the informal process, however, both the complainant and the respondent must provide voluntary, written consent to engage in the informal resolution process. If either party refuses, then the informal resolution process cannot be utilized.

Moreover, the parties must receive written notice regarding the formal complaint’s allegations and the informal resolution process’s requirements.

Parties do not automatically waive their right to a live hearing simply by agreeing to attempt informal resolution. Instead, either party may withdraw and resume the grievance process at any time before signing off on an informal resolution.

The College may not condition any employment or enrollment benefit based on a party’s agreement or refusal to participate in the informal resolution process.

And the informal resolution process may never be used for situations involving allegations that a College employee engaged in sexual misconduct toward a student.

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Informal Resolution Process

Parties must provide written consent within 14 days after receipt of written notice of investigation

Informal resolution process must be concluded within 21 days of receipt of both parties’ written consent

Title IX Coordinator should solicit interest at the same time written notice of investigation is issued.

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Step 3: The Investigation

Title IX Coordinator oversees collection of evidence
Parties not required to gather evidence
College may not restrict parties from gathering evidence or discussing allegations
Both parties provided equal opportunity to present fact and expert witnesses and inculpatory/exculpatory evidence
Advance written notice required for all hearings, investigative interviews, and other meetings.

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Step 3: The Investigation

The investigation of the formal complaint is the next step in the Sexual Misconduct Grievance Process. Before we get into some best practices with respect to conducting fair and equitable investigations, let’s talk about some basic principles relevant to investigations. These are derived from the U.S. Department of Education’s Title IX regulations and have been implemented through Shared Governance Policy 114: the College’s Sexual Misconduct Policy and Grievance Procedure.

First off, it is important to remember that the Title IX Coordinator is responsible for overseeing the gathering of evidence. The parties are not responsible for gathering evidence on the College’s behalf.

That said, the College may not prohibit the parties from gathering evidence or discussing the allegations under investigation, even with potential witnesses.

During the investigation, both the complainant and the respondent must be provided an equal opportunity to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence. The term “inculpatory evidence” means evidence that tends to demonstrate that the respondent is responsible for the sexual misconduct allegations. Exculpatory evidence is the opposite; it is evidence suggesting that the respondent is not responsible.

The Title IX Coordinator will provide advanced written notice to a party whose participation in a meeting is invited or expected. That notice must include the date, time, location, participants, and purpose of all hearings, investigative interviews, and other meetings. This notice will be provided sufficiently in advance to provide the party adequate time to prepare for the meeting.

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Preparing for Interviews

Compile a detailed outline of key issues, including

Incidents that witnesses will be questioned about
Information each witness is believed to have
Evidence which may corroborate or refute information received

Use to identify witnesses to be interviewed

Compose a detailed outline of questions that will be asked of witnesses

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Obviously, a key aspect of any reliable investigation involves interviewing witnesses who may have knowledge about the events. You will certainly want to at least attempt to interview both the complainant and the respondent in every investigation that you conduct. Your investigations, however, will almost always require you to interview third parties whom other evidence has identified as potentially having knowledge of the events.

We recommend that in preparing to conduct your investigation that you sit down and compose a detailed outline of key issues and maybe even a chart or spreadsheet that identifies the timeline of the key events. Once you have that written down, you should identify the key events about which you will question witnesses. You may also want to develop a “Cast of Characters” list that identifies who the various players are involved in the incident and the information that each such witness may have regarding the event. You might also want to make a list of each piece of evidence that you have obtained, which could help identify information that corroborates or refutes information obtained from certain witnesses.

Once you have that all laid out, you can use these documents to identify the witnesses you will interview and to compose a list of interview topics for each such witness.

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Interviews

Disclosures

Your Role
Investigation’s Topic
Purpose of Interview
Limited Confidentiality
Role Witness Plays
Prohibition Against Retaliation
Obligation to Tell the Truth

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There are a few basic disclosures you’ll want to make at the outset of any interview during your investigation. For each witness, you will want to explain your role in the College’s Sexual Misconduct Grievance Process. Specifically, you’ll want to make it clear that you are investigating an allegation of violation of the College’s Sexual Misconduct Policy. You’ll want to explain what incident the investigation relates to and who the parties are. You’ll want to explain that the primary purpose of the interview is to gather information to determine whether a violation of the College’s Sexual Misconduct Policy occurred, but that the information may be used for other purposes, such as to determine whether violations of other College policies may have occurred. If a witness asks for confidentiality, you’ll want to be honest about that topic. You’ll have to explain that the investigation is being kept confidential, but that you may need to disclose the results of the interview with College officials because the College has an obligation to take remedial actions if it is determined that a violation of the Sexual Misconduct Policy occurred, but that determination can only be made after a live hearing. Such a hearing may require the witness to testify or might result in the presentation of the witness’s statement to the Sexual Conduct Hearing Board charged with deciding whether the respondent should be held responsible or not responsible for violating the Sexual Misconduct Policy. Some witnesses are hesitant to cooperate with an investigation, out of fear that doing so will expose them to retribution by other parties. Conversely, sometimes witnesses get very angry that they’ve been identified as part of an investigation and seek to take revenge against a person whom they believe dragged them into the investigation. So it’s important that you also make clear to witnesses that the College’s policy prohibits retaliation against any person who has filed a formal complaint or provided information during an investigation. So witnesses should make sure not to engage in retaliation themselves, and they should be instructed to contact you immediately if they feel that they have been the target of retaliation. Last, but certainly not least, you’ll want to have the witness acknowledge that they have an obligation to tell the truth. The witness should also confirm that the witness will comply with that obligation. You’ll also want to tell the witness that any false statements or false information provided during the investigation and grievance process is considered a violation of College policy, which could result in disciplinary action against the witness.

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Interviews

Get basic background information
Begin with open-ended questions; then move to specifics
Ask one question at a time; avoid compound questions
Nail down specifics: Who said or did what, in what order?
Avoid conclusory statements; they aren’t very helpful
Distinguish matters of personal knowledge from hearsay

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For all witnesses you interview, you might find it helpful to begin with some basic background information about the witness—their age, major course of study, projected graduation year or length of employment (when those issues are relevant). That will help establish some rapport with the witness and get the witness used to answering questions by providing responsive information.

Once you get into more substantive questions, you might want to try starting with some open ended questions before moving on to narrow, specific topics. For example, “Tell me generally what you were planning to do the evening of September 15.” That would be a good general question about an event that occurred on September 15 that you could ask before delving into more specific information about that event.

Make sure to ask only one question at a time; avoid compound questions that ask multiple questions at once. Compound questions can lead to misunderstandings since it isn’t always clear which of the several questions asked the witness is answering.

Eventually, as the interview progresses, you’ll want to focus on specifics, making sure that you get the who said or did what, in what order. Once the witness provides those specifics, try to have the witness confirm what they told you, but without conclusory statements. For example, you might say something like, “Okay, just to confirm what you just told me. You saw respondent come up from behind and hug complainant around her waist. And you heard her ask him to put her down and saw her struggling. She appeared to you to have trouble breathing.” That’s better than a conclusory statement like, “You saw him hurt her,” which doesn’t provide much information about what actually happened.

One very important thing to clarify with each witness is whether that witness is providing you with information that they personally witnessed versus hearsay. Obviously, personal knowledge is more probative of events than second hand information, but second hand information isn’t worthless. Many times, that second hand information can lead you to other witnesses with first hand knowledge. But you’ll need to follow up when a witness tells you that the information is second hand. Ask that witness from whom they received the information and if there is some sort of other evidence out there that confirms the second hand information.

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Interviews

Be empathetic, but impartial
Don’t express disbelief or an opinion/theory about the evidence
If feasible, save the hardest questions for the end
But don’t be afraid to ask difficult or potentially embarrassing questions
Ask about other evidence . . . AND GET IT!

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Witnesses, particularly third party witnesses, will sometimes express anger at being drug into a situation not of their making. You may express empathy for such witnesses. But you must remain impartial. Try to avoid expressing disbelief about what a witness has told you, although certainly you can—and should—ask tough follow up questions. Similarly, you don’t want to express theories or opinions about the evidence. That could lead to an allegation that an investigator harbored bias against a party, which is a basis for finding that the grievance procedure violated Title IX.

If you can, try to save your toughest questions for the end of the interview. But again, you must ask those tough questions. Don’t be afraid to ask something that is important, even if it might be difficult or potentially embarrassing for the witness to answer.

Always ask witnesses if evidence (such as text messages or photos) exists regarding the events discussed. And if a witness indicates that such evidence exists, ask the witness to provide that to you. Objective evidence forms the foundation around which witness testimony is built.

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Concluding the Interview

Review significant points obtained and confirm accuracy
Ask the witness if there were questions that were not asked, which should have been asked
Ask the witness if they have other relevant information about the events
Ask the witness if they have anything to add

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As you conclude a witness interview, it makes sense to circle back and have the witness confirm the significant information you’ve obtained and have the witness confirm that your understanding of their statement is accurate.

You should also ask the witness, “Can you think of any questions that you think I should have asked, but haven’t?” Similarly, you always want to make sure to ask the witness, “Have you told me everything you know about this incident?” And “Is there anything else you want to add?” These questions will help to solidify that the witness has told you everything they know about the incident. They also make it more difficult for the witness to back out of a statement if, at some later time, the information provided becomes inconvenient to the witness or another party.

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Concluding the Interview

Invite witness to follow up with you if they think of anything else
Reiterate prohibition against retaliation
Confirm with the witness how you will memorialize witness’s statement

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Memorializing the Interview

To record or not to record?
If written, it is recommended that you have witnesses sign off on narrative describing information provided

Allow witness to make changes
Make sure witness understands that it’s their statement, not yours

If witness won’t cooperate, document that

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So, how will you memorialize the interview? Will you make an audio recording while you are interviewing the witness? There are conflicting theories about how helpful that is. Of course, if you obtain a recording of the discussion, there usually isn’t any dispute about what was discussed. In this way, an audio recording can help in the defense of a claim that an investigator harbored an impermissible bias or demonstrated animus toward an interviewee. On the other hand, some people who conduct interviews take the position that recording interviews harms the truth finding process by making witnesses less cooperative. We’ll leave that up to you regarding whether you want to make an audio recording of witness interviews. But if you do so, you cannot do it secretly. You must inform the witness that you intend to record the interview and ask for the witness’s permission to record. Under Pennsylvania law, it is a criminal offense to record another person without their consent.

If instead, you opt for a written statement, it is recommended that you use your notes of the interview to compose a narrative describing what the witness told you. Then provide that to the witness. Tell them to review the draft statement and make any revisions the witness feels necessary and then have the witness sign the statement. Make clear to the witness that the statement belongs to the witness. So they should make any changes necessary. But once the witness signs the statement, that becomes the witness’s statement. It’s not the investigator’s statement.

Sometimes, witnesses will meet with you and talk about an event, but won’t provide you with a written statement or anything else confirming what the witness told you. Make sure you document that. And you might try this. If a witness won’t confirm what they told you during the interview, try writing the witness an email or letter describing your recollection of the interview. Conclude that correspondence by stating, “Please confirm that my recollection of the interview is accurate. If I don’t hear from you by (and add here a reasonable period for responding) then I’ll presume that my description of what you told me is accurate.”

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Interviewing Complainants

Make clear the College is committed to complying with the law and College policy

The College is under a legal obligation to conduct a prompt, thorough, and equitable investigation.

If a violation is found, the College must implement remedies designed to restore the complainant’s equal access to the College’s programs and activities.

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Interviewing complainants in sexual misconduct cases, particularly sexual assault matters, presents its own, unique challenges. A description of trauma-informed practices is beyond the scope of this training. But try to make clear to complainants a few key points, which could help in getting the information necessary to ensure a complete investigation.

Make clear to the complainant that the College is committed to complying with the law and College policy, both of which require the College to conduct a prompt, thorough, and equitable investigation. Make sure the complainant understands that if a violation is found at the conclusion of the grievance process, then the College must implement remedies and potentially sanctions against the respondent. And any such remedies or sanctions imposed must be designed to restore the complainant’s equal access to the College’s programs and activities.

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Interviewing Complainants

For each allegation, ascertain:

When the alleged incident occurred
Where the alleged incident occurred
Who was present
Exactly what happened or what was said
Why the complainant reported the incident
What the complainant wants to occur

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When interviewing the complainant, you will need as many details as possible. Of course, you will have to be sensitive to the fact that the complainant may be experiencing the effects of trauma, which could impair the complainant’s ability to recall absolutely every detail. That said, the investigation will be greatly aided by obtaining details about the event in question. So you will not want to conclude the interview of the complainant without first attempting to ascertain when the alleged incident occurred, where it occurred, who was present, and what exactly the complainant contends occurred. That information will assist in developing an overall investigation strategy. Additionally, you’ll want to inquire why the complainant has reported the incident (particularly in non-sexual assault cases involving allegations of sexual harassment). The investigator will also definitely want to find out what the complainant wants to occur.

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Interviewing Complainants

Make sure the complainant knows that supportive measures are available

If complainant is uncooperative, reiterate non-retaliation and confidentiality rules.

If still uncooperative, explain that investigation will continue and conclusion will be based on evidence obtained

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Interviewing Respondents

Reiterate impartiality – no judgment has been made
Allow respondent to respond to each allegation
Ask what steps the respondent feels should be taken to ensure a thorough investigation
Solicit the identity of all persons respondent believes should be interviewed and the information those individuals have

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Interviewing respondents also presents its own set of challenges. People are frequently hesitant to provide information that they believe might be used against them. So it’s important that at the outset of the investigation that you emphasize to the respondent that you are an impartial investigator looking into an allegation of sexual misconduct. You are required to conduct the investigation and to issue a report that fairly summarizes the relevant evidence obtained, but you are not an advocate for either party in the process at that point.

In this regard, provide the respondent with the opportunity to respond to each allegation. Make sure to ask the respondent what steps they believes should be taken to ensure that a complete, thorough investigation occurs. Ask the respondent to identify all persons the respondent believes should be interviewed and what information those individuals have.

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Investigation’s Scope

Sometimes an investigation requires an expansion of the scope to investigate other matters

If so, the Title IX Coordinator must notify the parties of the new allegations

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Step 4: Disclosure of Evidence

Parties entitled to review evidence before conclusion of investigation

Hard copy or electronic format

Evidence must be “directly related”

Rape Shield Rule applies

Parties have ten business days to review and issue a written response

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Step 4: Disclosure of Evidence

Once the initial investigation has been completed, the Title IX Coordinator must disclose to both the complainant and the respondent the evidence gathered during the investigation that is directly related to the allegations in the formal complaint. That requires that the Title IX Coordinator provide the parties with either hard copies or electronically stored information that was gathered during the investigation if the evidence is directly related to the allegations in the formal complaint.

According to the U.S. Department of Education’s Title IX regulations, “directly related” is a broad concept, even broader than relevance. But the term has limits. Specifically, the Rape Shield Rule applies to the disclosure of evidence to the parties. That means that the parties should not be provided with evidence gathered during the investigation if such evidence concerns the complainant’s sexual predisposition or prior sexual behavior, unless such evidence addresses whether someone other than the respondent committed the alleged conduct or if such evidence concerns specific incidents of the complainant’s prior sexual involvement with the respondent and addresses whether the respondent had consent to engage in the alleged conduct.

Once the Title IX Coordinator provides the parties with the directly related evidence, the parties have ten business days to review that evidence, provide additional evidence or issue a written response to that evidence. Frequently, those responses will require additional investigation to address the concerns raised by the parties. Additionally, as it will be discussed near the end of this presentation, strict timelines apply to the grievance process. As a result, you will endeavor to complete the initial investigation and disclosure of evidence as quickly as feasible, since additional investigation might be required in response to the parties’ evaluation of the disclosed evidence.

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Disclosure of Evidence

Written response from parties may (and frequently) will require follow-up investigation

Non-Disclosure Agreement may be required

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Obviously, there is a pretty good chance that much of the evidence obtained during an investigation will be subject to the privacy restrictions in the Family Educational Rights and Privacy Act, or FERPA. And the U.S. Department of Education’s Title IX regulations impose stringent confidentiality requirements related to the sexual misconduct grievance process. So the College is entitled to require that the parties (and their respective advisors) first sign a non-disclosure agreement before the Title IX Coordinator discloses the evidence to the parties. Try to obtain the signed non-disclosure agreements at the investigation’s outset. Doing so will help ensure that deadlines in the procedure are complied with. The College’s legal counsel has drafted appropriate non-disclosure agreements that can be used for this purpose.

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Step 5: Investigative Report

Fairly summarizes the relevant evidence

Recommends whether the case should be forwarded to the Sexual Conduct Hearing Board or dismissed

Must be provided to the parties at least 10 business days before any hearing

Parties are permitted to respond to investigative report

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Again, the Title IX Coordinator will provide the parties with evidence gathered during the investigation that directly relates to the allegations. The parties then have ten days to comment upon or respond to the evidence provided. At that point, the investigator may need to complete some follow up investigation or respond to the issues that the parties have raised.

Once that process is complete, the Title IX Coordinator must compose an investigative report. That report must fairly summarize the relevant evidence. This means the Title IX Coordinator will have sift through the directly related evidence and determine which evidence is relevant. As discussed during the prior training, relevant evidence is that evidence which makes a point important to the ultimate outcome more or less likely to have occurred than it would be without that evidence.

As alluded to in the earlier training, the investigative report will ultimately either forward the matter for a hearing before the Sexual Conduct Hearing Board or require dismissal of the formal complaint. The matter will be forwarded for a hearing when the allegations, if presumed true, would constitute a violation of the Sexual Misconduct Policy and the conduct in question occurred in the College’s “educational programs or activities.” Conversely, the matter must be dismissed if the evidence gathered conclusively establishes that the conduct in question did not occur within the College’s programs or activities or if the allegations, even accepted as true, and/or do not amount to “sexual misconduct,” as that term is defined in Shared Governance Policy 114. Both parties are permitted to appeal the Title IX Coordinator’s decision to forward the matter to the Hearing Board or to dismiss the matter, as discussed during the prior training session.

Regardless, the Title IX Coordinator’s investigative report must be provided to both parties (that is, the complainant and the respondent). Moreover, no hearing before the Sexual Conduct Hearing Board may be scheduled until at least ten days after the investigative report has been provided to the parties. The parties are permitted to respond to the investigative report, if they wish to do so.

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Investigative Report

Fairly summarizes relevant evidence
Use consistent terminology
Be clear about the source of information obtained
Include screenshots and other reference material when available
Use direct quotes in lieu of paraphrasing

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How should the author go about fairly summarizing the relevant evidence?

Again, the first step is to identify the relevant evidence, as distinguished from the evidence that merely is directly related to the allegations. Only the relevant evidence must be summarized.

When summarizing the relevant evidence, be sure to use consistent terminology. To avoid confusion, use the same name when referring to the same person, event, location or piece of evidence. And use different terminology to refer to different people, events, locations, or evidence.

Identify the source of the evidence obtained by naming the witness who provided that evidence and whether that came from the witness’s interview statement or from some other statement or source.

As I said before, objectively verifiable evidence forms the foundation around which witness testimony is built. So be sure to incorporate screen shots or other evidence into your investigative report.

When referring to information provided by a witness, endeavor to provide direct quotes in lieu of paraphrasing witnesses' statements.

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Investigative Report

Respond to the parties’ responses
Use a disclaimer at the outset:

“This document is intended to be a summary of the relevant evidence and description of what was learned through the investigation. Please refer to the full record, including the evidence provided to the parties.”

MUST CONTAIN A STATEMENT REGARDING THE PRESUMPTION OF NON-RESPONSIBILITY!

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The investigative report should address any relevant concerns that the parties raised in response to the disclosure of the investigation’s evidence. The report should also identify any additional investigative steps taken in response to the concerns raised by the parties, and what (if anything) the additional evidence resolved regarding those concerns.

In the end, though, this report’s description of the relevant evidence is just that—a description. And the author of the report should make that clear. To do so, the author should consider adding a disclaimer at the report’s outset along the lines of what is included in the italicized text in this slide of the presentation.

You might recall from the earlier training session that the presumption of non-responsibility is a key concept discussed in the U.S. Department of Education’s Title IX regulations. As a result, the investigative report must contain a statement indicating that the respondent is presumed not responsible for the alleged violation unless and until the College demonstrates by a preponderance of the evidence that the respondent is responsible for the alleged violations.

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Investigative Report

May be arranged chronologically, by witness summary, by allegation/topic

But explain structure at the outset

Tell the story
Cite to the record
Number the evidence packet for ease of reference

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That said, the report’s author has a great deal of flexibility in how they wish to organize the report’s content. The report may be arranged chronologically or just contain summaries of witness statements, or the report may be organized to correspond with each allegation or relevant topic. Really, it’s up to the reports author’s preference about the best way to present the evidence. But whatever way the report is structured, be sure to state that at the report’s outset. For example, the report might state, “For sake of clarity, this report has been organized chronologically and by subject matter when appropriate.”)

Whatever the chosen structure, be sure that the fair description of the evidence tells the story—while highlighting where the evidence conflicts.

Again, use citations to record the evidence—that is, witness statements, photographs, screen shots, documentary evidence, etc. The best way to do that is to compile the evidence into a packet and number each page with an “R” number. So the first page in the packet will be labeled R-1, the second R-2, the third R-3, and on and on. Then when composing the report, cite to the specific R-page number where the evidence being referred to can be found.

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Investigative Report

Report will also be provided to the Hearing Officer
Information needed for the Board’s written decision:

Description of the allegations that could potentially constitute sexual misconduct
A description of all procedural steps from the receipt of the formal complaint through issuance of report:

Notifications provided to parties
Interviews conducted
Site visits made
Methods used to gather evidence

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Of course, the investigative report is an important tool that the parties use to prepare for the hearing. But it is also very important to the Hearing Officer who will preside over any hearing held before the Sexual Conduct Hearing Board. Recall that if a hearing is held before the Sexual Conduct Hearing Board, that will require the Hearing Board to issue a written decision. And that written decision must include a description of some matters about which the Hearing Board may have no knowledge. Therefore, the Hearing Officer, who will draft the Hearing Board’s written decision will be relying on information provided in the investigative report to obtain that information. So that information must be included in the investigative report.

Specifically, the investigative report must include a description of the allegations that could potentially constitute sexual misconduct. And, very importantly, it must include a description of all procedural steps from the receipt of the formal complaint through the issuance of the report, including a description of all notifications provided to the parties, a list of all interviews conducted and their dates and times, a description of any site visits that investigators made, and a description of methods used to gather evidence. Neither the Hearing Board, nor the Hearing Officer may be privy to this information. Yet, in accordance with the U.S. Department of Education’s Title IX regulations, the Hearing Board’s written decision must contain this information. So it will be up to the investigators to include that information in the investigative report so that it can be included in the Hearing Board’s written report.

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Final Points

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Bias Prohibited

Title IX regulations prohibit investigator bias:

Against specific complainant and respondent

Against complainants and respondents generally

Discrimination on the basis of race, color, or national origin

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As stated previously, the U.S. Department of Education’s Title IX regulations prohibit institutions from using biased investigators to complete the sexual misconduct investigations required by Title IX. That same rule applies to decision makers, such as members of the Sexual Conduct Hearing Board. Those regulations and the accompanying commentary from the U.S. Department of Education describe three classes of prohibited bias. First, investigators may not harbor a bias for or against the specific complainant and respondent in a particular case. Nor may the investigator harbor bias for or against complainants and respondents generally. So if the topic at issue in a particular investigation triggers a predisposition you hold, or if you have preconceived opinions about the specific parties involved in a particular matter, you are required to recuse yourself from the investigation process.

And, of course, no investigator may discriminate against any party based on that person’s race, color, or national origin. Doing so is wrong, and it also exposes the College to legal liability under Title VI of the Civil Rights Act.

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Bias Prohibited

Other examples of prohibited bias:

Situations when the investigator has obtained significant information about the alleged incident outside of the investigation

Situations when the investigator provides information to the Sexual Conduct Hearing Board or Appeal Board members outside of the formal grievance process

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Impartiality Required

Careful use of language

Do not use the terms “victim” or “perpetrator”

Do not use the terms “innocent” or “guilty”

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As this discussion suggests, investigators must be impartial. As a result, investigators will want to ensure that the language used throughout the investigative process reflects that impartiality. Use the terms like “complainant” and “respondent” to refer to the parties. The Department of Education has explicitly sanctioned the use of those terms. The Department, however, has explicitly barred institutions from using the terms “victim” and “perpetrator” during the investigation process. According to the Department of Education, the determination regarding whether a reporting party is actually a victim cannot be made until the conclusion of the grievance process. So using that term before a final decision has been made would suggest that the institution was biased in the procedure employed. Similarly, shy away from terms like “innocent” or “guilty” which are terms associated with the criminal justice system. Instead, use the terms “responsible” and “not responsible,” which are the terms permitted by the Title IX regulations.

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Impartiality Required

Reliance on sex stereotypes prohibited

Prejudgment of facts is prohibited; keep an open mind

Do not prejudge a party due to the inability to recount each specific detail of an incident in sequence, whether such inability is due to trauma, the effects of drugs or alcohol, or the simple fallibility of human memory.

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Similarly, neither the general investigation strategy, nor the fair summary of the evidence should rely on sex stereotypes, such as presumptions concerning how male and female individuals normally react to situations or how they would normally react to certain behavior.

The Title IX regulations also prohibit prejudgment of facts. Each case is unique. So the investigator should take care to avoid making snap decisions that aren’t based on the factual evidence when developing investigatory strategies and composing the fair summary of the relevant evidence. For example, investigators are prohibited from presuming that men aggressively pursue sex or that women normally regret having casual sex.

Among other things, this means that investigators should not prejudge a party due to that party’s inability to recount each specific detail of an incident in sequence. There are many reasons why a party might not be able to reconstruct an event note-by-note. For example, trauma has been known to adversely affect memory. Use of drugs or alcohol may impair an individual’s ability to recount. And the simple fallibility of human memory might make it so that a party cannot recall insignificant details of an event.

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Conflicts of Interest Prohibited

Investigators may not have a conflict of interest

Recusal may be required

Failure to recuse may violate Title IX

Investigation may be outsourced to remedy conflict of interest

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Investigation Restrictions

Investigators may not require that any person disclose information or evidence protected by legally recognized privilege

E.g., attorney-client privilege, privilege against self-incrimination

Investigators not permitted to restrict individuals’ rights under U.S. Constitution

Investigators may not use or rely upon a party’s treatment records, absent voluntary, written consent of that party.

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The U.S. Department of Education’s Title IX regulations also impose certain limitations on investigations, which the College has incorporated in its Sexual Misconduct Policy and Grievance Procedure.

For example, investigators may not require that any person involved in an investigation disclose information protected by a legally-recognized privilege. The most common legal privileges that this restriction would apply to would be the attorney-client privilege and the privilege against self-incrimination. The attorney-client privilege protects from disclosure confidential communications between an attorney and a client related to the provision of legal advice. The privilege against self-incrimination refers to citizens’ constitutional right to refuse to incriminate themselves in the violation of a crime.

Similarly, Title IX regulations prohibit investigators from restricting individuals’ rights under the U.S. Constitution, including the right against self-incrimination, which is protected under the Fifth and Fourteenth Amendments of the U.S. Constitution.

Investigators also may not access, consider, disclose, or otherwise use a party’s records regarding medical, psychological, or psychiatric treatment, unless that party provides voluntary written consent to the disclosure of those records.

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Final Issues: Confidentiality

Party and witness identities must be kept confidential

Unless disclosure permitted by FERPA
Required by law
Or if necessary to conduct the investigation, hearing, or appeal

Prevents anyone other than the advisor or party from attending interviews

Prevents anyone other than party, advisor, and witnesses from attending hearings

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Final Issues: Deadlines

Initial Notice of Allegations: 3 Days
Disclosure of Evidence to Parties: 45 Days
Investigative Report: 60 Days
Live Hearing: 75 Days
Hearing Board’s Written Decision: 80 Days
Written Appeal Decision: 100 Days
Informal Resolution Process time does not count!
Limited grounds for extension listed in SGP 114

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We’ll conclude this training by discussing deadlines. The Department of Education’s Title IX regulations require that institutions, such as HACC, impose specific deadlines that ensure the completion of the sexual misconduct grievance procedure in a reasonably prompt fashion. So sexual misconduct investigations are subject to fairly strict deadlines.

For example, the Title IX Coordinator must provide the initial notice of the allegations to the parties within three days of the filing of a formal complaint.

The Title IX Coordinator must disclose the evidence to the parties within 45 days of the formal complaint’s filing.

The investigative report fairly summarizing the relevant evidence must be provided to the parties within 60 days of the formal complaint.

The Hearing Board must issues its written decision within 80 days of the formal complaint.

Any written decision required from an appeal decision maker must be provided to the parties within 100 days of the formal complaint.

Keep in mind, however, that any time spent pursuing the informal resolution process does not count toward any of these disclosure deadlines.

Additionally, there are grounds for extending deadlines. Those grounds, listed in Shared Governance Policy 114, however, are very limited.

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THE END

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