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Material presented to you during the 2012 Donald D. Gehring Academy is made available to you as a registrant of the Academy. Further transmission of materials.

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Presentation on theme: "Material presented to you during the 2012 Donald D. Gehring Academy is made available to you as a registrant of the Academy. Further transmission of materials."— Presentation transcript:


2 Material presented to you during the 2012 Donald D. Gehring Academy is made available to you as a registrant of the Academy. Further transmission of materials presented during the Academy may be permitted within ASCA member institutions, if the author and ASCA are credited as a source. Any additional transmission of any presented or posted material will require approval of the author and ASCA. All rights reserved. ‹#›

3 SEXUAL MISCONDUCT TRAINING Presenters: Tamara L. King, J.D. W. Scott Lewis, J.D. Saundra K. Schuster, J.D. Daniel C. Swinton, J.D. ‹#›


5 Relevant Statistics  20% of college women will be victims of attempted or actual sexual assault  6% of undergraduate college men will be victims of attempted or actual sexual assault  4 in 10 violent crimes against college students are committed by offenders perceived by the victim to be using drugs or alcohol Campus Sexual Assault Study Final Report. (Christopher Krebs, et al.) National Criminal Justice Service, 2007 5

6 Relevant Statistics  Between 80 and 90 percent of cases, victim and perpetrator know each other. The more intimate the relationship, the more likely it is for a rape to be completed rather than attempted  Half of all student victims don’t label the incident “rape.” This is particularly true when no weapon was used, no sign of physical injury is evident, and alcohol was involved—factors commonly associated with campus acquaintance rape  Fewer than 5% of student victims report to authorities or law enforcement 6

7 Campus Legal Standards Regarding Sexual Misconduct  UNDERSTANDING THE LEGAL LANDSCAPE:  College Policy Should reflect the law Should reflect college culture  Title IX Significant case law OCR Guidelines  Clery Act, “Campus Sexual Assault Victims Bill of Rights”  Title VII 7

8 Title IX 8 “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.” Title IX of the Education Amendments of 1972 Implementing Regulations at: 20 U.S.C. § 1681 & 34 C.F.R. Part 106

9 Title IX  Federal Law enacted in 1972  Intended to end sex discrimination in all areas of education  Made non-discrimination based on gender a condition of participation in all federally funded education programs for both public and private institutions  It applies to educational program equity, such as in athletics, and also to sexual harassment and sexual assault  Compliance with the law is overseen by the U.S. Dept. of Education, Office of Civil Rights 9

10 Cases That Created the Title IX Liability Standard  Franklin v. Gwinnett Public Schools  Gebser v. Lago Vista  Davis v. Monroe County Bd of Education 10

11 Franklin v. Gwinnett Public Schools U.S. Supreme Ct. (Feb. 26, 1992) Case involved faculty/student sexual harassment  The Supreme Court in this case established that sexual harassment constituted sex discrimination under Title IX.  The Court also determined there is a private right for recovery of monetary damages under Title IX  However, this case did not address issues concerning the educational institution’s liability 11

12 Gebser v. Lago Vista Indep School U.S. Supreme Ct. (June 22, 1998) Case involved a faculty/student sexual harassment. Ct. said you cannot recover monetary damages against the school unless:  An official of the educational institution had “actual knowledge” of harassment;  The official had authority to “institute corrective measures” to resolve the harassment problem; AND  The official “failed to adequately respond” to the harassment and, in failing to respond, must have acted with “deliberate indifference.” 12

13 Davis v. Monroe Cty. Bd. Of Ed. U.S. Supreme Ct. (May 24, 1999)  This case involved student to student sexual harassment  The first major ruling on a school’s liability for student to student sexual harassment Supreme Court applied same standards to find the institution liable for damages as in the Gebser case: the institution must have “actual notice” of the harassment; and the institution must have responded to the harassment with “deliberate indifference”. Additionally court held: 1. Harassment must be “severe, pervasive, and objectively offensive,” to the extent that the victim is deprived of educational opportunities or services. 2. Justice O’Connor added a framework to determine deliberate indifference – stating that deliberate indifference constitutes a response that is “clearly unreasonable in light of the known circumstances”. 13

14 OTHER RELEVANT CASES 14  Jackson v. Birmingham Bd. of Ed., U.S. Supreme Court, 2005  DeJohn v. Temple University, 3 rd Circuit Court of Appeals, Aug. 2008  Holcomb v. Iona, 2 nd Circuit Court of Appeals, April 2008

15 Remedies Under Title IX  A student may assert a Title IX sexual harassment claim against the institution: (1) Sue the institution in court and seek money damages or injunctive or declaratory relief (2) File an administrative complaint, a grievance with U.S. Dept of Ed Office Of Civil Rights (OCR) 15

16 Role Of OCR & Title IX The U.S. Dept. of Education, Office for Civil Rights (OCR) is responsible for establishing the compliance standards to be applied in investigations and enforcement of Title IX regarding sexual harassment. The OCR Guidelines distinguish the administrative oversight of Title IX from the standards applicable to private litigation for monetary damages. OCR administratively enforces Title IX by:  OCR investigations result from complaints filed with the U.S. Dept of Education as well as from “voluntary compliance investigations”  OCR investigates and resolves complaints alleging that educational institutions that are recipients of federal funds have failed to protect students from harassment based on sex  If OCR identifies a violation, Title IX requires OCR to attempt to secure voluntary compliance 16

17 Office Of Civil Rights Establishes Regulatory Liability Standards Provides the principles that a school should use to recognize and respond to sexual harassment of students as a condition of receiving federal financial assistance. The revised guidance from OCR states that once a school has notice of possible sexual harassment of a student, the school should take immediate and appropriate steps to investigate what occurred and take prompt and effective action to end the harassment, remedy the effects, and prevent it from occurring again. OCR standards require the sexual misconduct must rise to the level of severe, pervasive and objectively offensive, and establishes that conduct of a sexual nature that rises to this level are subject to the OCR remedial recommendations 17

18  These steps are the school’s responsibility whether or not the student who was harassed makes a complaint or otherwise asks a school to take action  OCR acknowledges that in circumstances where the complainant requests confidentiality or refuses to participate, the school’s ability to take action may be limited  The school is still required to take all reasonable steps to investigate and respond 18

19 If an educational institution fails to take reasonable corrective action based on the OCR recommendations, OCR will file a formal finding of violation and an institution could risk losing its federal funding. OCR also initiates Voluntary Compliance Reviews  Complaints and Reviews are often resolved by agreement requiring schools to adopt effective anti- harassment policies and procedures, train staff and students, address incidents in question and to take other steps to restore a non-discriminatory environment 19

20 OCR Title IX Compliance Requirements: Non-Discrimination Statement 20  Must prominently include a statement of policy  “An institution shall implement specific and continuing steps to notify applicants for admission and employment, students, and parents, all unions …that it does not discriminate on the basis of sex in the educational program or activity which it operates, and the institution is required by Title IX not to discriminate in such a manner.” (34 C.F.R. § 106.9)

21 OCR Title IX Compliance Requirements Policies and Procedures  Publication of Policies and Procedures that establish:  Effective reporting and response protocol  Appropriate grievance procedures  Fair and equitable investigations  Equitable remedies  Preventing recurrence  Incorporate preventive training  Appointment of a Title IX Coordinator 21

22 More on Policies & Procedures  Policies should clearly define expected/prohibited conduct  Policies should be regularly updated and revised  Procedures should clearly channel grievants to appropriate resources  Procedures should provide for the equitable remedying of complaints 22

23 Effective Reporting & Response Protocol  Once you have actual notice, you have a legal duty to conduct an investigation.  That legal duty is absolute!  The investigation may be preliminary or comprehensive, but it must be done.  The “Promptness Requirement”  30-60 day resolution should be the goal  The “Effective Requirement”  To stop the sexual harassment or sexual violence (ensure that the discriminatory conduct does not continue  Remedy the effects of the discrimination on the student, to the extent practical and possible  Provide sanctions that are reasonably calculated to prevent the reoccurrence of the discriminatory conduct 23

24 Grievance Procedures Must Include  Notice: Provide notice of procedures  Application: Applies to complainants alleging harassment on the basis of sex  Investigation: Adequate, reliable and impartial  Timeframe: Define reasonable timeframe  Outcome: Both complaining party and accused should receive notice of outcome  Assurances: Institution assures it will take steps to prevent recurrence  Retaliation: Provisions to prohibit retaliation  Appeal: Offer opportunity to appeal findings or remedies 24

25 Grievance Procedures  Describe who may file a grievance  Describe what constitutes a grievance  Define clear limits for submitting a grievance and prompt & effective response  Specify the availability of any assistance for the person who initiates the grievance  Define the number and levels of steps in the process  Define the notice requirements 25

26 Grievance Procedures  Identify the timelines for each step  Identify the roles and/or selection of persons involved in the grievance process  State the right of all parties to impartial decision makers  State protection of grievant from harassment and retaliation  State right of either party to appeal outcome 26

27 Fair and Equitable Investigations  Interview all persons involved  Do not interview the alleged harasser at the same time as the victim/complainant  Provide complainant, accused and any witnesses the opportunity to have a representative accompany them during investigations  Keep complete records of investigations, including a detailed description of allegations, notes on all interviews, outcome of investigations, and any action taken  Abide by procedural timeframes set in policy  Provide a written report of investigation & outcome 27

28 Prevention Includes Assurance of Equitable Remedies  Remedies for sexual harassment and assault must be effective in ending the harassment, eliminating the hostile environment and preventing it from recurring.  Take timely steps to confirm and document that the appropriate remedies were implemented. For example:  Was the student provided alternative housing?  Was counseling made available?  Was a no-contact order issued?  Was the grade removed from the student’s transcript?  Make sure the complainant knows that he or she should report any difficulties obtaining the remedies and any subsequent harassment. 28

29 Preventing Recurrence  Identify patterns and systemic problems  Campus-wide policy statements, informational campaigns and other messages that harassment and assault will not be tolerated.  Regular training on sexual misconduct for students and employees.  Conduct periodic surveys of campus climate.  Establish a system for monitoring future incidents and patterns  Provide technical assistance to campus law enforcement on Title IX compliance 29

30 The IX Commandments ThoroughReliableImpartial PromptEffectiveEquitable End the Discrimination Prevent its Recurrence Remedy the effects upon the victim & community 30 Investigation Process Remedies

31 Preventive Training 31  Must address legal and procedural standards  Incorporate timeframes for review and update of policies and specify the office in charge of updates  Identify qualified trainers  Conduct regular sexual misconduct training for all staff & students  Identify and publish additional training or informational opportunities  Ensure new policies and procedures are appropriately noticed and published

32 Bystander Intervention as Prevention 32

33 Title IX Coordinator  Title IX requires that each institution that receives federal funds must protect individuals from gender discrimination  To assist in accomplishing that task, Title IX requires that each institution select a Title IX Coordinator  Title IX Coordinator is responsible for promoting an institutional environment that is free of gender bias and sexual harassment, by engaging in the following:  Develop a working knowledge of Title IX and the implementing regulations  Keep informed of current research and judicial decisions related to Title IX and gender equity 33

34 Duties Of Title IX Coordinator  Participate in the development, implementation and evaluation of the institution’s Title IX policies and procedures  Develop sexual harassment Title IX complaint procedures for students and staff  Provide public notice of the complaint procedures and the name and contact information for the Title IX Coordinator  Monitor and evaluate the institution’s Title IX compliance efforts and make recommendations for any appropriate changes  Provide in-service training to ensure institutional community understands Title IX policies and procedures 34

35 Dear Colleague Letter Sent by Office of Civil Rights April 4, 2011 35

36 DCL Highlights  OCR stated specifically that they view sexual violence as a form of sexual harassment and therefore a form of gender discrimination covered by Title IX  OCR reiterated that campuses that do not take jurisdiction over off-campus sexual misconduct may fail to remedy discrimination covered by Title IX  Notice = Duty of immediate Title IX-based prompt and effective action to eliminate harassment, prevent its recurrence, and remedy its effects. 36

37 DCL Highlights  OCR stated that failure to implement prompt and equitable procedures = violation of Title IX (see off- campus jurisdiction example in DCL)  Notice can be second hand or by third parties  Law enforcement action does not relieve a campus from its own INDEPENDENT investigative responsibility under Title IX  Though some short term delay to avoid obstructing law enforcement is possible until gathering of evidence is complete  Investigation must be prompt, thorough, impartial 37

38 DCL Highlights  Sanctioning the offender is not the only remedy for harassment  Other steps to limit harassment, prevent recurrence required even when complainant will not allow campus to pursue complaint  Training can help to show compliance efforts  Equitable resolution via equitable procedures means each party must have the same appeal rights as the other, or gender discrimination may result.  This is true of many procedural rights, opportunities, privileges, and obligations we afford to all parties. 38

39 Equity Requires Immediate Action  Immediate investigation  MOU with local police cannot excuse Title IX delay  Prompt resolution  Interim action to protect alleged victim/campus  Equity calls for the institution to make the most reasonable remedy applying “totality of the circumstances”  Must maintain documentation of all proceedings 39

40 Equitable Process is Critical  Should afford opportunity for informal resolution  That does not mean mediation.  Preponderance of evidence is the ONLY appropriate standard for resolving Title IX complaints  Rape, sexual assault, sexual harassment, stalking, gender- based bullying, intimate partner violence, etc.  Must determine if Code of Conduct system works for providing equitable process 40

41 Equity Requires Training  Title IX Coordinator(s)  Intake staff/faculty  Campus Law Enforcement  Investigators  Hearing Officers  Training on and knowledge of sexual violence  Confidentiality requirements  Due process rights… should not “restrict or unnecessarily delay Title IX protections for complainant”  Appeals Officers (the biggest area of risk currently) 41

42 Equity Requires Clear Timeframes  Timeframe for each stage of process, and process for extensions  Parties entitled to periodical status updates (FERPA does not conflict with Title IX)  60 days to resolution; varies situationally  Notification of outcomes to parties permitted by FERPA, required by Clery (outcome and sanctions)  Title IX rules in a conflict with FERPA  IN WRITING!  Entitled to status updates on appeals, too, regardless of which party appeals. 42

43 Title IX Coordinator Role: More Details from the DCL  Each campus must identify at least one Title IX Coordinator  More than just a contact for DoED inquiries  Must disseminate/publish contact information for coordinator  Oversees training  Assures equitable remedy  Identifies patterns and systemic problems  Cannot have conflict of interest in role  Provides technical assistance to campus law enforcement on Title IX compliance 43

44 Investigation of Title IX Claims 44

45 The Role of the Title IX Officer in the Investigation Process Title IX Officer 45

46 Supervisor Of The Investigation Structure  The Title IX Officer is responsible for:  The appointment of investigators  Supervision of investigators and investigations  Strategizing investigations  Assurance of initial remedial actions  Timeline compliance  Communication and coordination of investigation teams  Providing institutional memory to investigators  Training of investigators, hearing boards & appeals officers 46

47 Training Is Critical  In order for investigations of sex discrimination complaints to be thorough and reliable, any individual who conducts them must have relevant and in-depth training and knowledge.  Establish competencies and minimum training schedule  Update and refresh 47

48 Example Training Competencies  Strategic process  Questioning skills  Evaluating evidence  Establishing rapport  Good report writing  Alcohol & Other drugs  Victimology  Patterns  Predation  Recantation  Communication Training  Rape Myths  Consent  Force  Incapacity 48

49 Training Should Also Include  The institution’s policies and procedures  Applicable legal standards and framework  Applicable federal and state law and court decisions  Investigative techniques including specifically interviewing witnesses  Cultural sensitivity; diversity competence  How to analyze evidence in relation to the standard  How to synthesize evidence, write reports, make findings 49

50 When Processes Collide  What happens when the employee is a student or the student is an employee?  There is a difference  Oversight of Deputy Coordinators/Investigators  Ability to merge/combine the investigatory and hearing processes  Coordination of remedies in student-to-employee and employee-to-student grievances 50

51 Investigation Approach 51

52 Why Apply Investigation Model?  Sex based misconduct is not only a campus behavioral violation, but also a violation of federal civil rights laws.  Often requires Title IX response  Civil Rights Investigation Model most effective for victim- based violations  Campus conduct process involves passive receipt of information  Investigation process involves strategic information gathering, comprehensive investigation, credibility information  Better information leads to better decisions  Investigation model can stand alone or be grafted onto and/or integrated into existing procedures. 52

53 Should There Be More Than One Investigator?  No specific requirement, but:  Investigation must be prompt, thorough and impartial  Investigatior must collect the maximum amount of relevant information available to make a determination  A pool of investigators may help to ensure that your investigation meets these requirements. 53

54 Additional Benefits of Team Investigations  Who investigates may be strategic to each specific case  Ability to brainstorm investigation steps and lines of questioning with co-investigators, co-facilitate interviews  Flexibility if there is any conflict with investigators and parties 54

55 How Is Investigation Different In Hr Contexts Than In Student Conduct Contexts?  Role of FERPA, Employee/Faculty Handbook/Collective Bargaining Agreement impacts process  Issues of First Amendment protections  State Public Records Laws  At-will v. property interest  Due Process and Fundamental Fairness 55

56 An Analytic for Sexual Misconduct Allegations 56 UNDERSTANDING THE FORCE – INCAPACITY – CONSENT CONSTRUCT

57 Overview of the Three Questions 1. Was force used by the accused individual to obtain sexual access? 2. Was the victim incpacitated? Did the accused individual know, or should s/he have known that the alleged victim was incapacitated? 3. What clear words or actions by the complainant gave the accused individual permission for the specific sexual activity that took place? 57

58 Force  There are four types of force to consider:  Physical violence -- hitting, restraint, pushing, kicking, etc.  Threats -- anything that gets the other person to do something they wouldn’t ordinarily have done absent the threat  Intimidation -- an implied threat that menaces and/or causes reasonable fear  Coercion – the application of an unreasonable amount of pressure for sexual access. Consider: Frequency Intensity Isolation Duration 58

59 Force  Because consent must be voluntary (an act of free will), consent cannot be obtained through any type of force.  If force, in any of the four forms (or other forms as defined in your policy), was used, stop here. You are done.  The policy has been violated. Consent and incapacity are irrelevant at this point. 59

60 Incapacity  If incapacity could be involved (was alcohol, drugs or other form of incpapcity an issue in the matter), there is a two-step analysis:  First, did the victim believe he/she was incapacitated at the time of the sexual encounter? Could s/he make rational, reasonable decisions? Could s/he appreciate the situation and address it consciously such that any consent was informed consent? Knowing who, what, when, where, why and how 60

61 Incapacity  Second, did the accused individual know that the alleged victim was incapacitated?  OR, should the accused individual have known (from all the circumstances)?  Use a reasonable person standard. 61

62 Incapacity Information  Incapacitation is a determination that can only be made after the incident in light of all the facts available  Assessing incapacitation is very fact dependent  Blackouts are frequent issues  Blackout = incapacitation  Blackout = no working (form of short term) memory, thus unable to understand who, what, when, where, why or how  Partial blackout must be assessed as well  What if the accused student was drunk too? 62

63 Consent  The Consent question: What clear words or actions by the complainant gave the accused individual permission for the specific sexual activity that took place?  Consent Is:  Informed (knowing)  Voluntary (freely given)  Active (not passive)  Clear words or actions  Indicating permission to engage in mutually agreed upon (sexual) activity 63

64 Rules To Remember  No means no, but nothing also means no. Silence and passivity do not equal permission  To be valid, consent must be given prior to or contemporaneously with the sexual activity  Consent can be withdrawn at any time, as long as that withdrawal is clearly communicated by the person withdrawing it 64

65 Consent – U-Tube 65

66 Investigation Process Overview 66

67 The Investigation Process  Incident  Notice  Strategy development  Informal, Administrative or Formal Resolution?  Investigation Plan  Interview all witnesses  Gather and assesses evidence  Write the investigation report  Make a finding or recommendation (will vary by school)  May recommend sanction  Appeal 67

68 When Do You Investigate?  Receive Complaint  Actual Notice or Constructive Notice  How do rumors, gossip, online postings, etc. fit in?  Once notice exists, the duty to investigate is absolute  Small “i” preliminary  Big “I” comprehensive investigation 68

69 Notice Standard  OCR applies a “constructive notice” standard that is broader than the notice standard used by the courts – which is “actual notice”  This brings under its ambit all complaints about which the university knew, or should have known  The OCR standard of “knew or should have known” is more favorable to student complainants than the “actual knowledge” standard used to determine civil liability 69

70 Actual Notice  Individual files a Title IX grievance  Individual notifies the Title IX Coordinator or other responsible employee  Individual complains to campus police or security official  Staff member witnesses harassment  Indirect notice from sources such as flyers posted on campus, media, online postings, video 70

71 Constructive Notice  In some cases, the pervasiveness of the harassment may be enough to conclude that the college should have known of the hostile environment – where harassment is widespread, openly visible, or well known to students and/or staff.  In other cases, OCR can conclude the institution should have known of incidents of harassment from a report to an employee who had a reporting duty to a supervisor, but:  failed to uphold that duty, or  based on a complainant’s reasonable understanding of the apparent authority of the person to whom the report was made, though that employee in fact lacked actual authority as a mandated reporter. 71

72 Notice & Employee Obligations 72  OCR requires that a college or university may be held accountable for harassment of students (even by other students) if any person perceived to be a responsible school employee was put on notice and took no corrective action  This is different from the standard applied by the courts, which imposes liability when a school official with authority to take corrective action fails to respond, or is deliberately indifferent

73 Responsible Employee and Reporting Obligations  A responsible employee includes any employee who: o Has the authority to take action to redress the harassment, o Has the duty to report harassment or other types of misconduct to appropriate officials, o Someone a student could reasonably believe has this authority or responsibility.  Institutions must ensure that employees are trained regarding their obligation to report harassment to appropriate administrators. 73

74 Training For Responsible Employee Colleges and universities should ensure that employees are trained so that:  Those with authority to address harassment know how to respond appropriately  Other responsible employees know that they are obligated to report harassment to appropriate officials  Essential Topics for training  Knowledge of institutional and community resources  Information regarding reporting  Confidentiality requirements  Importance of remediation 74

75 Informal And Formal Resolution Process  OCR endorses and encourages informal resolution, and we believe it is a best practice, as long as it is voluntary  Some minor incidents can be resolved through confrontation and/or intervention  More significant discrimination can also be resolved informally, by a process in which the accused individual accepts responsibility, and/or by some forms of ADR or conflict resolution.  Mediation not appropriate for sexual assault 75

76 Strategy is Key  The investigation team, in consultation with their supervisors, and/or the Title IX Coordinator strategizes the entire investigation. This includes:  What Policy(s) elements may have been violated?  What are the undisputed facts? Which ones are significant to the investigation?  What are the facts in dispute? Which ones are significant to the investigation?  Who do you need to interview?  What should be the order of the interviews 76

77 Other Elements to Consider in Strategy  What are the key issues involved?  What additional strategies do you need to address key issues?  What additional documentary evidence will be important to the investigation?  Discuss your Methodology for this case (what approach will you use?)  Timeline (within 30-60 days will vary by case) 77

78 Understanding Role of Gatekeeping  As the investigation unfolds, the investigators should determine if there is reasonable cause to believe that policy has been violated.  If that threshold is reached, the investigators should communicate with the Coordinator to ensure a formal charge ensues.  If investigation cannot produce sufficient evidence of reasonable cause, the investigation should end prior to the issuance of the formal charge, and no hearing should be held. 78

79 Ensuring Equity In the Process  Each party’s rights, privileges and opportunities need to be balanced.  Not exact parity, but equitable procedures that reach equitable outcomes that impose equitable remedies.  Equitable = fair under the circumstances  What you do for one party, ask whether you need to do for the other(s)  Determine if a variation is important and if so, what are the issues of equity? 79

80 Todd & Amy Part I  What Policy(s) elements may have been violated?  What are the undisputed facts? Which ones are significant to the investigation?  What are the facts in dispute? Which ones are significant to the investigation?  Who do you want to interview?  Order of interviews  What other information do you need?  Do you need to interview an expert witness? 80

81 Interviewing 81

82 Important to Remember: As an investigator, you have no “side” other than the integrity of the process! 82

83 Demeanor of Investigator  Work to establish a baseline of relaxed conversation  Maintain good eye contact  Listen carefully to the answers to your question  Avoid writing while they are talking, if possible  Do not be thinking about your next question while they are talking  Ask questions in a straightforward, non-accusatory manner  Nod affirmatively to keep witness talking 83

84 Interview Skills  General Interview Skills:  Outline your interview questions but be flexible  Plan the order of interviews; may be beneficial to interview Respondent last  Most beneficial to conduct interviews in person  Interviews should be conducted in a neutral, quiet and private setting with a minimal or no likelihood of interruptions  Explain process, your role as a neutral fact finder, and privacy protections and limitations 84

85 Interview Skills  Establish rapport before questioning  Discuss thoroughness and the need for completeness; make sure parties don't leave facts out because they are afraid of getting into trouble  Ascertain who the individual is and their relation to the other parties in the case  Create comfort with language and sensitive subjects  Document whether the individual is cooperative or resistant  Be professional: gather the facts, make no judgments, make no statements about the parties 85

86 General Interview Skills (cont’d)  Pay attention to alcohol / drug consumption and timing of consumption  Be cognizant of the difference between what was “heard” (rumor) and what was “witnessed” (facts)  Ask who else you should talk to and ask for any relevant documentation (i.e. texts, emails)  Let parties know you may need to follow up with them as the investigation progresses  Recommend that the parties and witnesses not discuss the investigation  Discuss non-retaliation  Obtain FERPA releases 86

87 Establish Pre-interview Ground Rules  Can subject record?  Who will attend?  How will records be kept?  Advisors  Attorneys  Roommates, Parents, etc.  FERPA/confidentiality 87

88 Questioning Guidelines  Take the complaint from start to finish through a process of broad to narrow questions and issues that need to be addressed  Engage in a matching process  Ask questions about the allegations and the evidence and the policy elements  Focus on areas of conflicting evidence or gaps of information  Drill down on timelines and details  Don’t leave a question or gap unanswered 88

89 Interviewing The Complainant  Acknowledge difficulty of reporting and thank them.  Acknowledge that they may have told this story multiple times already explain why you are taking notes and/or ask for permission to record if applicable  Provide a copy of your policies and procedures  Ask them to share a complete account of what occurred  Good to have them give full story without asking questions, then drill down on details  Ask whom they spoke to and told about the incident.  Ask about outcry witnesses and possible documentation such as blogs or journal 89

90 Interviewing The Complainant  Ask what the complainant’s motivation is for reporting and what they hope to see as a result  Find out if their academics and/or work have been affected  Ask how this has affected them emotionally and /or physically  Advise that the complaint will be discussed with the respondent and witnesses  Discuss other reporting options 90

91 Interviewing The Complainant  Discuss counseling options if they are not already connected  Discuss non-retaliation and intermediary steps such as no contact orders and class changes and give examples of retaliation, and to whom it should be reported immediately  Let the complainant know next steps and when they will hear from you, and that they can contact you anytime with questions or any problems that rise 91

92 Confidentiality Issues of Complainant  If a complainant requests that his or her name not be used:  The institution should take all reasonable steps to respond and investigate consistent with that request  So long as doing so does not prevent the school from responding effectively and preventing the harassment of other students or the complainant 92

93 Confidentiality for Complainant  The college or university should explain to the complainant that:  Its responsive action may be limited.  It cannot guarantee privacy if doing so would jeopardize the safety of the complainant or others.  emphasize that only those with a need to know will be informed.  Train those who will be informed about confidentiality expectations 93

94 The Reluctant Victim  When an alleged victim is reluctant to make a formal complaint, or returns to withdraw a formal complaint, Investigators should honor that request and determine the reason for reconsideration  Those reasons that involve the investigation or hearing process should be addressed by the Investigator. Those that involve other issues should be addressed by their support person 94

95 The Reluctant Victim  The victim should be notified as to their options: That the process will still be available to them, regardless of how long they wait That the institution will support them in any way it can (housing, classes, no contacts, etc.) That, if information is brought to the attention of the of the institution that may involve a threat to the community, the office may be forced to proceed with an investigation, but that the victim will be notified of this process 95

96 Interviewing The Respondent  Acknowledge difficulty of the situation and thank them for meeting with you  Provide a copy of your policies and procedures  Ask them to share a complete account of what occurred  Question the Respondent as to the allegations- ask a combination of open and closed ended questions  Get detailed- do not leave a question unanswered  Ask about witnesses and any other relevant information  Ask about possible motivation for complaint 96

97 Interviewing The Respondent  Let the Respondent know next steps and when they will hear from you, and that they can contact you anytime with questions  Discuss counseling options if they are not already connected  Discuss non-retaliation and any intermediary steps such as no-contact orders, housing moves and exclusions  If interim suspension is employed, review the terms and provide a time frame 97

98 Interviewing Witnesses  It may be helpful to not label the allegations as “sexual misconduct” or “sexual harassment” but to describe it in terms of the behavior.  Ascertain relation to the other parties in the case  Ask questions; address the need for complete truthfulness  Ask for opinions  Ask if either party spoke about the incidents after they happened.  Did they see any change in behavior? 98

99 Interviewing Witnesses  Ask if they have been contacted already by one of the parties  Ask if they have made any previous statements  Ask if there is anything you should know that was not been covered or if there is anyone else they think that should be contacted  Discuss non-retaliation and give examples of it as some people only see it as threats  Discuss privacy; execute FERPA release  Ask all interviewees to contact you if they remember anything else or want to add to their interview. 99

100 Witness Lists And Flowcharts  Witness lists and flowcharts are important  identify the role/involvement of the witness and his/her relation to other parties  specify how the witness was identified (referred by a party or on your own)  keep track of statements / compare accounts as between witnesses  document your outreach attempts  quickly locate how to contact a witness  Timeline of incident also very helpful 100

101 Provide Information to those Interviewed  Each party should receive:  a copy of the policies alleged to have been violated  a copy of the procedures that will be used to resolve the complaint, including the rights that extend to the parties  Consider providing parties copies of your non- retaliation provision. 101

102 Todd & Amy Part II  What questions do you want to ask Todd?  What questions do you want to ask Amy?  What questions do you need to ask from witnesses? 102

103 Case Analysis 103

104 Understanding Evidence  Formal rules of evidence do not apply. If the information is considered relevant to prove or disprove a fact at issue, it should be admitted.  Evidence is any kind of information presented with the intent to prove what took place  Certain types of evidence may be relevant to the credibility of the witness, but not to the charges  Consider if drugs or alcohol played a role  If so, do you know what you need to know about the role of alcohol on behavior? Timing? Incapacitation?  Look for evidence of prior planning 104

105 Understanding Evidence  You may assign weight to evidence based on:  Direct or testimonial evidence (personal observation or experience)  Circumstantial evidence (not eyewitness – but compelling)  Documentary evidence (supportive writings or documents)  Real evidence (physical object)  Hearsay evidence (statement made outside the hearing but presented as important information)  Character evidence (generally not relevant or acceptable)  Past record (should only be presented prior to sanctioning if it relates to significant pattern of behavior that would impact “more likely than not” determination)  Impact statements (should only be reviewed after a finding) 105

106 Credibility  “To assess credibility is to assess the extent to which you can rely on a witnesses’ testimony to be accurate and helpful in your understanding of the case”  Credible is not synonymous with truthful  Memory errors do not necessarily destroy a witness’ credibility  Refrain from focusing on irrelevant inaccuracies and inconsistencies  Pay attention to the following factors… 106

107 Factors to Consider for Credibility  Demeanor  Nonverbal language  Demeanor issues should be your cue to ask more questions  Non-cooperation  Look for short, abrupt answers or refusal to answer  OK to ask, “you seem reluctant to answer these questions - can you tell me why?”  Logic/Consistency  Ask “Does this make sense?”  Corroborating evidence 107

108 Making Credibility Determinations 108  Look at consistency of story – substance and chronology of statements  Consider inherent plausibility of all information given  Look for the amount of detail (facts) provided, factual detail should be assessed against general allegations, accusations, excuses or denials that have no supporting detail  Pay attention to non-verbal behavior, but don’t read too much into it

109 Analyzing the Information  Examine only actions that have a direct relation to the situation under review  Explore motivation, attitude and behavior of complainant, accused and witnesses  Apply relevant standards:  Force, Consent, Incapacity  Unwelcomeness; reasonable person; discriminatory effect  Analyze the broadest, most serious violations first and make a determination of each and every violation alleged 109

110 Analytic to Use in Making A Finding  Parse the policy (policies) that form basis of investigation  Address key issues identified  Assess whether answers are factual, opinion-based, or circumstantial (assess their evidentiary value)  Weigh other elements of evidence (relevance & credibility)  Withhold judgment until all evidence has been considered  Determine whether more likely than not policy (policies) has been violated 110

111 Applying the Preponderance Standard to Your Analysis  Use language the community understands  50.1% (50% plus a feather)  “More likely than not”  The “tipped scale”  Try NOT to use just the term “preponderance of the evidence” - it is not common language  Should be articulated throughout your policy, procedure, investigation and hearings  Educate the parties and their advisors 111

112 Investigation Notes and Report 112

113 Note Taking Considerations  Assemble an investigative file and keep it in a secure location.  Keep a timeline of the steps in the process, including dates of all meetings and interviews.  Date all records and include who was present at any meetings; number pages  Keep records of all contacts including e-mail and phone calls with all parties  Use pre-prepared numbered questions as a framework, but be flexible 113

114 Note-Taking: Other Considerations  Notes should be free from bias and subjectivity  Notes should be complete and detailed  Decision may turn on small details  Where possible, include verbatim statements on critical issues – use their words, not yours  Keep notes on what is told to the complainant, respondent and witnesses  Identify any delays in the process and reasons for the delays  If it isn’t written down, it didn’t happen 114

115 Note-taking: Other Considerations  Taking notes may slow down the interview in a good way- may help detect deception  Note-taking should occur throughout the entire interview, not just when the accused individual makes a pertinent disclosure or an “incriminating”  Remember that a student has the right to inspect their education record under FERPA  “Sole possession” FERPA exception is very limited 115

116 Note-Taking  Review your notes before the interview concludes;  Clarify anything you are unclear about  Document any refusal to answer, evasion or refusal to participate  Capture key quotes  Summarize your perceptions of credibility, honesty  Record any requests or unusual interaction with interviewee  Review and finalize notes immediately upon completion of interview 116

117 Preparing the Investigation Report  The investigation report is the one comprehensive document summarizing the investigation, including:  Results of interviews with parties and witnesses  Results of interviews with experts  Summary of other information collected, i.e. information from police reports including pretext calls, medical exams, video surveillance and photographs, copies of text, email and social networking messages, etc.  Assessment of weight, relevance and credibility of information gathered  Assessment of credibility of parties 117

118 The Investigation Report  Helpful to have a “skeleton” outline of what report will include  The report should:  Detail the allegations and how they were brought forward  Explain the role of the parties and witnesses, and ant relations between them  Summarize information collected  Identify evidence collected (direct, circumstantial, documentary, expert)  Assess weight, relevance and credibility of information gathered 118

119 The Investigation Report  Explain unsuccessful attempts to collect information and/or interview witnesses  Highlight key factual findings for each allegation  Measure the information gathered against the policies alleged to have been violated, applying the standard of proof (analysis)  Recommend a finding on whether the policy has been violated, or make the finding, depending on your process  The file should contain all policies and procedures currently applicable. 119

120 Jurisdiction Timelines and Timeliness Confidentiality OTHER ISSUES 120

121 Jurisdiction  For Sexual Misconduct/Title IX Cases  There is an expectation that you have SOME jurisdiction over off campus incidents  Jurisdictional Limitations  Geographic  Temporal  When is a student a “student?”  Application-Admission-Registration-Attendance-Breaks 121

122 Timelines  Ensure that all steps in the investigation are conducted according to the timelines in the institution’s policy.  Parties and witnesses should be interviewed as soon as possible  so that recollections are as fresh and accurate as possible  to secure necessary remedies as soon as possible  Document unavoidable delays  Notice any extensions provided 122

123 “Confidentiality” Of The Process  Privacy of the parties’ and witnesses’ names and the allegations should be maintained to the greatest extent possible.  Absolute confidentiality is not possible – must explain limitations of confidentiality  Best practice not to furnish the respondent with a copy of the complaint without redaction or summarizing 123

124 Investigating Retaliation Claims 124

125 Investigating Retaliation Claims Keys To Understanding  Establishing retaliation, unlike establishing sexual harassment, requires proving motive – the intent to retaliate.  Since someone’s intention is rarely displayed openly, the legal framework is about whether a retaliatory motive can be inferred from the evidence.  Gathering details of what occurred is critical. 125

126 Investigating Retaliation Claims Preliminary Elements of a Claim The following elements establish an inference of retaliation:  Did the complainant engage in protected activity? Usually straightforward Unless there is a question of reasonableness of belief or manner  Was the complainant subsequently subjected to adverse action?  Do the circumstances suggest a connection between the protected activity and adverse action?  Did the individual accused of retaliation know about the activity?  How soon after the protected activity did the adverse action occur? 126

127 Investigating Retaliation Claims Rebutting The Inference  What is the stated non-retaliatory reason for the adverse action?  Is the explanation for the action legitimate on its face?  Is there evidence that the stated legitimate reason is a pretext?  This is the heart of the case – is the explanation the true reason?  The preponderance of the evidence must establish that the adverse action was motivated by retaliation. 127

128 Investigating Retaliation Claims Is The Explanation Legitimate? Factors to consider:  The explanation makes sense  The action was consistent with established policy or practice  No adverse action was taken against others who engaged in protected activity  Complainant was treated the same as other individuals. 128

129 Investigating Retaliation Claims Is There Evidence Of Pretext ? Factors to consider:  The explanation given is not credible  Other actions by the same individual are inconsistent with the explanation.  The explanation is not consistent with past policy or practice.  There is evidence of other individuals treated differently in similar situations. 129

130 Final Advice Focus On Remedies  Throughout process  Investigation  Stop behavior  Remediate impact (often not sanction-based)  Prevent re-occurrence Consider the effect of “educational” sanctions 2 nd victim is both Title IX and negligence concern Consider what educational/training needs to be implemented, changed, etc. 130

131 CASE STUDY 131

132 Strategy for Case Study  What Policy(s) elements may have been violated?  What are the undisputed facts? Which ones are significant to the investigation?  What are the facts in dispute? Which ones are significant to the investigation?  Who do you want to interview?  Order of interviews  What other information do you need?  Do you need to interview an expert witness?  What questions do you want to ask Dencie?  What questions do you want to ask Will?  What questions do you need to ask from witnesses? 132

133 THANK YOU! Questions? 133

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