1. Hearing Board Training for cases involving sexual assault, dating/domestic violence & stalking Leigh Ann Datt & Karla Fonner Office of Student Conduct and Student Intervention Services 724-738-2507

2. Definitions “Domestic violence” includes asserted violent misdemeanor and felony offenses committed by the victim's current or former spouse, current or former cohabitant, person similarly situated under domestic or family violence law, or anyone else protected under domestic or family violence law. “Dating violence” means violence by a person who has been in a romantic or intimate relationship with the victim. Whether there was such relationship will be gauged by its length, type, and frequency of interaction. “Stalking” means a course of conduct directed at a specific person that would cause a reasonable person to fear for her, his, or others' safety, or to suffer substantial emotional distress. “Sexual assault" can be defined as any type of sexual contact or behavior that occurs by force or without consent of the recipient of the unwanted sexual activity. Falling under the definition of sexual assault is sexual activity such as forced sexual intercourse, sodomy, child molestation, incest, fondling, and attempted rape. It includes sexual acts against people who are unable to consent either due to age or lack of capacity. As per VAWA 2013

3. Dating/Domestic Violence

4. Stalking Can take several forms: following, phone calls, text messages, leaving/sending gifts, letters, email, instant messages, waiting, watching, etc

5. Rape

6. Sexual Assault

7. Consent In most cases the existence of sexual activity is not disputed, but whether or not it was consensual is. Consent must be: Voluntarily expressed either verbally or physically Given by someone of sound mind/legal age Given by someone who is not intoxicated or unconscious

8. Complications Alcohol Being drunk does not excuse a policy violation, or breaking the law. Unexpected Perpetrators Non-stranger assaults. No weapon, physical violence or signs of injury. “Nice Guy Syndrome” Limited perceived credibility of victims young, unexpected behaviors, sexually active, mentally ill, uncooperative, drunk or abusing substances. Lack of evidence

9. The Hearing Process

10. Staging Differences Accommodations: PFA’s and No Contacts Divider Phone in option

11. Common Behaviors Reporting Person Omit, exaggerate or fabricate parts of their account or delay reporting Easily overwhelmed, annoyed or frustrated Have memory inconsistencies or loss Not be able to concentrate Accused Defensive Persuasive Convincing Manipulative Controlling Attempts to derail Will likely not see their behavior as wrong

12. Sanctions Title IX and Case Law Requires: Bring an end to the discriminatory conduct Take steps reasonably calculated to prevent the future reoccurrence of the discriminatory conduct Restore the victim as best you can to his/her pre- deprivation status Real clash with the typically educational and developmental sanctions of student conduct processes Sanctions for serious sexual misconduct should not be developmental as their primary purpose. They are intended to protect the victim and the community

13. Questioning

14. 4 Important Concepts: What do we need to know? is there a violation of the code Why do you need to know it? burden of proof clarification What is the best way to ask this question? open ended questions work best- ”tell me more about…” Am I the best person to ask it? how have things been going so far

15. Focused Questioning What exactly did the suspect do? Did the offender know the victim was drunk? How much did they have to drink? What signs of intoxication are exhibited? Who purchased the alcohol, who provided the alcohol? Why does the accused think the encounter was consensual?

16. Past Sexual History Every state uses Rape Shield laws as part of the rules of evidence. Past sexual experience is not relevant to current cases (complainant) The defendant’s passed experiences can be included if there are prior allegations of assault. What the complainant was wearing does not indicate consent Promiscuity is not an automatic ticket to sex

17. The 3 Question Progression Sexual Assault/Rape The order in which you ask the questions is important. 1.Was force used by the accused individual to obtain sexual access? 2.Did the accused individual know, or should s/he have known that the alleged victim was intoxicated or unconscious (alcohol, other drugs, asleep, etc.)? 3.What clear words or actions by the complainant gave the accused individual permission for the specific sexual activity that took place? Note: Will not work EVERYTIME, meant to be a tool

18. Force Was force used by the accused individual to obtain sexual access? 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 Because consent must be voluntary (an act of free will), consent cannot be obtained through any type of force

19. Intoxication or Unconsciousness Intoxication/Unconsciousness is a determination that will be made after the incident in light of all the facts available 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

20. Intoxication or Unconsciousness What was the form of intoxication? Alcohol or Other Drugs Not impaired, not under the influence, not drunk, but incapacitated Administered voluntarily or without victim’s knowledge Rape drugs Unconsciousness Mental/cognitive impairment Injury Sleep/passed out

21. Intoxication or Unconsciousness First, was the alleged victim intoxicated or unconscious at the time of sex? Could s/he make rational, reasonable decisions? Could s/he appreciate the situation and address it consciously such that any consent was informed knowing who, what, when, where, why and how Second, did the accused individual know of the intoxication or unconsciousness (fact)? Or, should the accused individual have known from all the circumstances (reasonable person)?

22. Intoxication or Unconsciousness If the alleged victim was not intoxicated or unconscious, move on to the 3 rd question. If the alleged victim was intoxicated or unconscious, but: The accused individual did not know it = policy not violated The accused individual should not have known it = policy not violated. Move on to 3 rd question. If the alleged victim was intoxicated/unconscious, and: The accused individual knew it = policy violation. Sanction. The accused individual should have known it = policy violation. You are done. Sanction accordingly.

23. Consent Question 3 is the Consent question: What clear words or actions by the complainant gave the accused individual permission for the specific sexual activity that took place? Equity demands a “pure” consent-based policy, defining what consent is rather than defining it by what it is not (force, resistance, against someone’s will, unwanted, someone unable to consent, etc.)

24. Consent Informed (knowing) Voluntary (freely given) Active (not passive) Clear words or actions Indicates permission to engage in mutually agreed upon (sexual) activity

25. Rules 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

26. Thoughts & Discussion