CUNY-WIDE SEXUAL MISCONDUCT PANEL

RODNEY PEPE-SOUVENIR, UNIVERSITY TITLE IX DIRECTOR, OFFICE OF RISK, AUDIT, AND COMPLIANCE

JESSICA MORAK, ASSOCIATE GENERAL COUNSEL, OFFICE OF THE GENERAL COUNSEL

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GOALS OF THIS TRAINING: �

• Brief review of major changes to revised Policy 
• The CUNY-wide Sexual Misconduct Panel:  What is it? 
• Your role as a decision maker at hearings 
• Your role as a decision maker of appeals 
• Remote Hearings 
• Procedural Guidelines 

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RECAP FROM GENERAL SESSION TRAINING �

CUNY’S POLICY ON SEXUAL MISCONDUCT WAS REVISED AS OF MAY 2020. THE NEW POLICY WENT INTO EFFECT AS OF AUGUST 14^TH OF 2020 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 �

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HOW DOES THIS EFFECT THE CUNY-WIDE PANEL? 

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TITLE IX SEXUAL HARASSMENT  

• All parties will receive a copy of the final investigative report
• All cases proceed to hearing 
• Employee hearings (students, too) 
• Panel will receive the investigative report, exhibits and parties written responses to the report prior to the hearing 
• Report will summarize evidence; will not come to a conclusion re: responsibility 
• Expanded scope of evidence  
• Expert witnesses? 
• Cross-examination rules 
• Panel now may consider prior statements not subject to cross-examination (i.e. police reports, statements made to medical personnel, statements on social media, etc.)
• College presenter will not advocate for a certain outcome 

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NON-TITLE IX SEXUAL MISCONDUCT 

• All parties will receive a copy of the final investigative report
• Cases proceed to hearing only upon recommendation from President 
• Students only 
• Panel will typically receive the investigative report and exhibits prior to the hearing 
• College presenter will advocate for a certain outcome, typically that respondent be found responsible 

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GOALS OF THIS TRAINING: �

• Brief review of major changes to revised Policy 
• The CUNY-wide Sexual Misconduct Panel:  What is it? 
• Your role as a decision maker at hearings 
• Your role as a decision maker of appeals 
• Remote Hearings 
• Procedural Guidelines 

CUNY-WIDE SEXUAL MISCONDUCT PANEL:��CENTRALIZED PROCESS �

• Goal – Continuity across CUNY 
• Serve CUNY-wide (not on home campus) 
• Annual training 
• Law 
• Policy 

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CUNY-WIDE SEXUAL MISCONDUCT PANEL:��WHAT IS THE PANEL ���

• Three (3) person committees
• Hearings
• Appeals
• Employee cases 

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CUNY-WIDE SEXUAL MISCONDUCT PANEL:��PANEL SELECTION �

• 2020-2021 – selected based on criteria in previous version of the Policy 
• 2021-2022 – “CUNY will consult with each College President to help constitute Panel” 

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CUNY-WIDE SEXUAL MISCONDUCT PANEL:��COMMITTEE SELECTION

• Decisionmaker
• Adjudication Committee = 3 members of the CUNY-wide Sexual Misconduct Panel
• Student respondents
• (1) Faculty or HEO
• (2) Student
• (3) Chairperson (Faculty or HEO)
• Employee respondents - Faculty
• (1) Faculty
• (2) Faculty
• (3) Chairperson (Faculty or HEO)
• Employee respondents – HEO
• (1) HEO
• (2) HEO
• (3) Chairperson (Faculty or HEO)
• Employee respondents – other
• (1) Faculty
• (2) Faculty or HEO
• (3) Chairperson (Faculty or HEO)

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*HEO refers to Higher Education Officer series employees

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CUNY-WIDE SEXUAL MISCONDUCT PANEL:��COMMITTEE SELECTION (CON.) �

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

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CUNY-WIDE SEXUAL MISCONDUCT PANEL:��COORDINATING THE HEARING/MEETING �

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

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GOALS OF THIS TRAINING: �

• Brief review of major changes to revised Policy 
• The CUNY-wide Sexual Misconduct Panel:  What is it? 
• Your role as a decision maker at hearings 
• Your role as a decision maker of appeals 
• Remote Hearings 
• Procedural Guidelines 

HEARING COMMITTEE:� �YOUR ROLE AS DECISION-MAKER

• Hearing Committee = Decision-maker 
• Three (3) person committee, including Chair 
• Majority vote on responsibility 
• Before the Hearing - What to review
• Investigative report and exhibits 
• Title IX – will only include factual summary 
• Non-Title IX – will also include factual findings – whether the allegations are substantiated/unsubstantiated (although typically, only substantiated cases will proceed to hearing, upon recommendation of President) 
• Parties’ written responses 
• Title IX Only

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HEARING COMMITTEE:��YOUR ROLE AS DECISION-MAKER

• 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 
• Scripts will be provided (Title IX and Non-Title IX) 

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HEARING COMMITTEE��YOUR ROLE AS DECISION-MAKER

• 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 

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RULES OF DECORUM: ��OVERVIEW

• New 
• Applies to: Parties (Complainant and Respondent) & advisors 
• Applies to: both remote and virtual hearings
• 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

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 
• Record/broadcast the hearing 

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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:��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 
• 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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SEXUAL HISTORY�EXCEPTIONS

• Title IX Regulations prohibit:
• Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior
• This evidence is not relevant UNLESS:
• Offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
• Example – To prove that an injury was caused by another sexual partner, rather than the respondent
• Concerning specific incidents of prior sexual behavior with the respondent and are offered to prove consent.
• Example – The parties’ past pattern/practice of sexual activity to prove affirmative consent in the specific incident in question
• This is slightly different than CUNY’s Policy as it relates to Non-Title IX Sexual Misconduct matters
• Evidence about either party’s prior sexual history may not be introduced, unless
• Concerning specific incidents of prior sexual behavior between the parties to prove consent.

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CONSIDERATIONS DURING THE HEARING PROCESS:��RELEVANCE - HYPO 1

Sexual Assault – Contact case. Complainant alleges that the respondent groped their genitals while dancing at a CUNY event. 

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CONSIDERATIONS DURING THE HEARING PROCESS:��RELEVANCE - HYPO 1

• Are the text messages relevant?
• Ask yourself: Does this make the allegations under investigation more or less likely to be true? 
• What is the Respondent’s perspective? 
• What is the Complainant’s perspective? 
• Admissible?

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CONSIDERATIONS DURING THE HEARING PROCESS:��RELEVANCE - HYPO 2

Sexual Assault – Penetration case.

Complainant and Respondent are known to each other.

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CONSIDERATIONS DURING THE HEARING PROCESS:��RELEVANCE - HYPO 2

• Are the text messages relevant?
• What is the red flag in this hypo?  
• Ask yourself – does this meet any of the very limited exceptions enumerated in the Policy? 
• What type of hearing is this?  
• Title IX – Admissible?  
• Non-Title IX – Admissible?  

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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 
• 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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HEARSAY – HYPO �TITLE IX VS. NON-TITLE IX

Victims Rights Law Center et al. v. Cardona, WL 3185743 (D.Mass. July 28^th, 2021)

CROSS EXAMINATION:��WHAT IS IT?

• 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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CROSS EXAMINATION:��IN CUNY’S PROCESS

• 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 
•  *NEW*Prior statements of the parties and witnesses will be considered whether or not the parties or witnesses submit to cross-examination *NEW*
• CUNY appointed cross-examination advisors 
• What has changed (for Non-Title IX)… 
• Nothing 

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CROSS-EXAMINATION – HYPO �TITLE IX VS. NON-TITLE IX

• Complainant refuses to answer all cross-examination questions – how does that impact…

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• Committee’s Consideration of Complainant’s testimony
• Admissibility of video taken by Complainant’s friend
• Video
• Complainant’s statements on video

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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PENALTY PHASE

• Character evidence 
• Past findings of responsibility for Sexual Misconduct 
• Previous disciplinary record 
• Impact Statements 

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DECISION ON RESPONSIBILITY

• Title IX
• No verbal announcement following hearing 
• Penalty phase occurs in every case 
• “Determination of responsibility” 

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• Non-Title IX
• Decision announced following hearing 
• If responsible – proceed to penalty phase 
• If not responsible – hearing ends 
• Written decision  
• “Based solely on the testimony and evidence presented at the hearing” 
• Due within 7 days of the conclusion of the hearing 

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TITLE IX - DETERMINATION OF RESPONSIBILITY:��WHAT DOES THE WRITTEN DECISION LOOK LIKE? 

• Must be in writing, and: 
• Identify allegations 
• Describe procedural steps  
• Findings of fact supporting determination 
• Conclusions regarding applying the Policy to the findings of fact 
• Statement of and rationale for the result as to each allegation 
• If responsible – any disciplinary sanctions or referral for discipline 
• Complainant’s remedies 
• Procedures and permissible bases for the parties to appeal 

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TITLE IX WRITTEN DECISION TEMPLATE

NON-TITLE IX WRITTEN DECISION TEMPLATE

GOALS OF THIS TRAINING: �

• Brief review of major changes to revised Policy 
• The CUNY-wide Sexual Misconduct Panel:  What is it? 
• Your role as a decision maker at hearings 
• Your role as a decision maker of appeals 
• Remote Hearings 
• Procedural Guidelines 

APPEALS COMMITTEE��WHAT TYPES OF APPEALS WILL BE HEARD? 

• Appeal from the Adjudication Committee’s Determination of Responsibility 
• Both Title IX and Non-Title IX Matters 
• Post hearing 
• May modify penalty or remand for a new hearing 
• Appeal from unsubstantiated determination by Title IX Coordinator 
• Non-Title IX matters only, student complainants only 
• Post investigative report – prehearing 
• May remand for appropriate action – which may include, evaluation of new evidence or a new investigation 

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APPEALS COMMITTEE��COMMITTEE SELECTION

• Same as Hearing Committee 
• Serve CUNY-wide (not on home campus) 
• Cannot serve on hearing and appeal committee on the same case 

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APPEALS COMMITTEE��GROUNDS FOR APPEAL

• (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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APPEALS COMMITTEE��YOUR ROLE

• Appeal Committee = Decision-maker 
• Three (3) person committee, including Chair 
• Majority vote on responsibility 
• Appeals are “on the papers” 

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APPEALS COMMITTEE��YOUR ROLE�BEFORE THE �APPEALS MEETING

• Before the Appeals Meeting  - What to review
• Appeal from a Determination of Responsibility 
• Investigative Report, Exhibits 
• Written Determination of Responsibility 
• Transcript/recording (if necessary) 
• Party written submissions: 
• Appealing party 
• Non-Appealing party 
• Appeal from an unsubstantiated finding in an investigative report 
• Investigative Report, Exhibits 
• Party written submissions: 
• Appealing party 
• Non-Appealing party 

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APPEALS COMMITTEE ��YOUR ROLE�DURING THE �APPEALS MEETING

• Discuss: 
• The appeal 
• The non-appealing party’s response 
• Whether the basis for appeal is supported by the evidence 
• Consider any new evidence submitted by the parties 
• Investigative Report, exhibits 
• Written Determination of Responsibility 
• Transcript, if necessary 
• If yes, then whether it affected the outcome 

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APPEALS COMMITTEE ��YOUR ROLE�DURING THE �APPEALS MEETING

• Consider the remedy: 
• What is necessary to ensure the party’s rights are met? 
• Should be tailored to the basis of appeal 
• New investigation 
• De novo hearing 
• Instruction to evaluate new evidence 
• Modify penalty 
• Outline the written decision 
• Identify next steps and responsibilities 

APPEALS COMMITTEE ��YOUR ROLE�AFTER THE �APPEALS MEETING

• Written decision 
• Final Outcome 
• Rationale 
• Due within 15 days of receipt of the non-appealing party’s written submission or failure to provide a submission 
• Provide to the University Title IX Director (Appeals-TitleIX@cuny.edu) , who will distribute to parties simultaneously and make other notification

APPEAL COMMITTEE DECISION TEMPLATE �

GOALS OF THIS TRAINING: �

• Brief review of major changes to revised Policy 
• The CUNY-wide Sexual Misconduct Panel:  What is it? 
• Your role as a decision maker at hearings 
• Your role as a decision maker of appeals 
• Remote Hearings 
• Procedural Guidelines 

REMOTE HEARING GUIDEINES

TITLE IX, NON-TITLE IX SEXUAL MISCONDUCT AND ARTICLE XV DISCIPLINARY HEARINGS

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REMOTE HEARINGS ARE SUBJECT TO THE SAME RIGHTS, EXPECTATIONS, AND PROCEDURES AS IN-PERSON HEARINGS�

PARTICIPANTS

COMMITTEE MEMBERS

RELEVANT RIGHTS AND EXPECTATIONS

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• Confidentiality
• Fair, impartial, timely opportunity to be heard
• Presentation of position without fear of abuse - physical, verbal, or otherwise - from others supporting conflicting points of view.
• Properly trained Adjudication Committee members
• Properly trained College Personnel
• Reasonable advance written notice of any required meeting
• Reasonable advance written notice of optional meetings
• The opportunity to offer evidence
• The exclusion of irrelevant evidence from any hearing
• An advisor if required or desired
• A full and fair recording of any hearing
• Equal access to college provided resources

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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
• All parties must read and sign the Agreement relevant to their matter
• FERPA applies

RESPONSIBILITIES OF THE COLLEGE

RESPONSIBILITIES OF THE COLLEGE: ��BEHIND THE SCENES����

• University Title IX Director
• Student Affairs
• Human Resources
• Presenters
• CIS
• VCP Host
• Campus Disability Services Centers

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RESPONSIBILITIES OF THE COLLEGE CONT.

• VCP
• Notice of hearing time, VCP, Remote Hearing documents (Instructions and Agreements), communication timing and important contact information (Disabilities Office, HR or Student Affairs point-person)
• Reasonable Accommodation for participants with disabilities
• Review of evidence
• CUNY-Appointed Cross Examination Advisors
• Identify presenters
• 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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RESPONSIBILITIES OF THE ADJUDICATION COMMITTEE

• ADJUDICATION COMMITTEE MEMBERS (ACM)
• COMMITTEE CHAIRPERSON

RESPONSIBILITIES OF THE ACM

• Before Hearing
• VCP
• Quiet and private location for hearing
• Confidentiality
• During Hearing:
• Listening to the evidence
• Adhere to the Rules of Decorum
• Directing the Host
• Access to email for exhibit offerings

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RESPONSIBILITIES OF THE COMMITTEE CHAIRPERSON

• Before hearing
• All of the same responsibility as the ACM with the following additions:
• Read Chairperson script
• Ensuring a workable email for exchange of proposed Exhibits during hearings
• At hearing
• Enforce the Rules of Decorum
• Inform the parties of the hearing procedures
• Inform the parties of their rights
• Directing the Host
• Maintain the integrity of the hearing
• Ensure all parties have reviewed:
• Remote hearing guidelines

RESPONSIBILITIES OF THE RESPONDENT, COMPLAINANT, AND MEMBERS OF THEIR PARTIES

• COMPLAINANT
• RESPONDENT
• ADVISORS & WITNESSES

RESPONSIBILITIES OF THE RESPONDENT, COMPLAINANT, �AND MEMBERS OF THEIR PARTIES

• Privacy
• Lighting/background
• Appear on camera
• Workable computer, audio and video
• Downloading and testing the VCP application
• Registering for hearing
• Read
• Instructions and Guidelines for Remote Hearing
• Rules of Decorum
• Read and sign
• Relevant Agreement
• On the Copying and Use of Hearing Materials: Article XV Student Disciplinary Hearing
• On the Copying and Use of Hearing and Investigative Materials: Title IX
• On the Copying and Use of Hearing and Investigative Materials: non-Title IX
• Inform the College of any needed accommodation for self and any witnesses within 48 hours of hearing notice
• Ensuring that evidence is in PDF format
• A usable email for the purpose of sending proposed exhibits to the opposing party and the Committee Chairperson
• Establishing an alternate means of communication separate from the VCP meeting (Advisors)

QUESTIONS?