Sexual Misconduct Panel Training

Sexual Misconduct

Panel Training

Office for

Student Civil

Rights &

Sexual

Misconduct

u Kimberly Simón, Title IX Coordinator

u Meredith Holden, Case Manager

u Glenn Mellinger, Investigator

u Tyler Patrick, Investigator

u Meghan Rogers, Investigator

u Abigail Wesson, Title IX Training & Outreach Coordinator

u Valeria Mucharraz, CARE Coordinator

u Gloria Baron, Administrative Business Assistant

SCRSM Office

Overview

Title IX

System Regulation

Section D: Title IX Procedures for

Students

Title IX/ Non-Title IX Flowchart

Alcohol & Other

Drugs

u The university will not take any disciplinary action

against a student who in good faith reports being the

victim of, or witness to, an incident of sexual

harassment, sexual assault, dating violence, or stalking,

for a violation of the Code of Student Conduct occurring

at or near the time of the incident, regardless of the

location at which the incident occurred or the outcome

of the disciplinary process regarding the incident.

u Amnesty will be extended to the Complainant,

Respondent, and witnesses who provide statements

during an investigation and disclose their own personal

drug or alcohol use. The university may provide

educational options to students to address any

concerning behavior as part of the afforded amnesty or in

lieu of conduct proceedings.

Amnesty

SCRSM Process Documents

Sexual Misconduct

Flowchart

Title IX FAQ

Rights &

Responsibilities

Document

Investigation

Report Example

u Always demands partners attention

u Jealousy

u Humiliation in public

u Name calling

u “If I lose you, I will kill myself”

u Threats

u Cutting off family and friends

u Strangling

u Restraining by force

u Slapping/ hitting

u Destruction of Property

u Yelling

Activity: Break

Out Rooms

Dating/ Domestic Violence

Consent

Must have clear, knowing, and voluntary consent from their

sexual partner

prior to and during each

sexual activity

u The following factors must all be fulfilled in order to

have valid consent:

u Consent has been expressed by each partner

through clear words or actions.

u Consent is actively expressed by each partner.

Consent is not passive or implied.

u Each partner is informed about each sexual

activity and knowingly consents to participate in

each sexual activity.

u Consent is given voluntarily and freely by each

partner for each sexual activity.

u Each partner has

legal capacity

to consent to

engage in sexual activities.

Revocation of Consent

Ø One partner can revoke consent at any time, so long as it’s clearly communicated to the other

partner: can be verbal or non-verbal.

Ø Once consent is revoked, the sexual activity must stop. If it continues, a sexual assault has

occurred.

u Examples of

verbal

communication revoking consent:

u “Can we slow down a little?”

u “I’m not ready.”

u “I’m not sure if I want to …”

u “This doesn’t feel right.”

u Examples of

non-verbal

communication revoking consent:

u Reluctance to take clothes off or putting clothes back on

u Pushing partner away or pulling away from partner

u Tu r n i n g a w a y f r o m p a r t n e r ’s k i s s o r t u r n i n g b o d y a w a y f r o m p a r t n e r

u Suddenly freezing or going limp after previously being an active participant

u Suddenly going silent after previously talking or moaning

Incapacitation

A state of being that prevents an individual from having

capacity to give consent.

Age: A minor cannot consent to engage in sexual activity. In

Texas, the legal age of consent is 17.

Intellectual or other Disability: A person with a mental

disorder or other cognitive issue which prohibits them from

making an informed decision lacks capacity to consent to

engage in sexual activity.

Physical Incapacitation: A person who is asleep,

unconscious, and/or intoxicated to the point of no longer

understanding or controlling their actions cannot consent to

engage in sexual activity.

Dr. Tom Kimball

Trauma

Hearing

Documents

Pre-Hearing Checklist

Panel List

Hearing Script

Statement Examples

Allegation Document

Information-Gathering in the

Hearing

u Have questions prepared

u Be direct

u Some questions are awkward; ask them anyway

u Ask even if the student is not present

u The Investigator may be able to answer based on the

information they gathered

u The Chairperson/Title IX Hearing Officer will stop any

inappropriate/irrelevant questions

Examples of Evidence

u Complainant and Respondent

statements

u Witness statements

u Police reports

u Pictures/screenshots

u Te x t m e ssa g e s

u Videos

u Personal or surveillance

u Alcohol Behavior Checklist

u Medical records

u SANE exams

u Bank statements

u Uber receipts

u ID card logs (Raider Card)

u Apartment floorplans/layouts

u Social Media content

u Tu t o r i a l s

Common Types

of Evidence

u Direct (first-hand) information

u Documentary information

u Circumstantial information

u Hearsay information

u “Expert” information

u Character information

u Direct information is a first-person observation of an

event/incident

u Example: A police officer observed the event and wrote

a report. If necessary, the officer could be present at

the hearing to answer questions.

u Strengths

u Drawn from direct observation

u Observer may be present at the hearing to answer

questions about the event

u Weaknesses

u Subject to observer’s accuracy and/or interpretation

u Subject to bias based on relationships to parties

involved

Direct (First-

hand)

Information

Documentary

Information

u Direct information is a written description of an incident that

took place. This can be an official report, like a police or an

University Student Housing (USH) report, or it can be a written

statement by a witness.

u Example: A CA wrote a report documenting a conversation

with a student who reported a sexual assault. The report

serves as the original basis for the allegations being

reviewed by the panel.

u Strengths

u Drawn from direct observation and/or initial reporting

u Serve as a basis from which the panel may develop

questions

u Weaknesses

u Without a witness present, direct questions cannot be

answered about the document’s contents

u Subject to bias based on relationships to parties involved

Circumstantial

Information

u Circumstantial information is a reported

observation of information that offers

inferences about the facts of the event.

u Example: Witness information and written

reports state that a student was visibly

intoxicated, with glassy, bloodshot eyes,

and a smell of alcohol on their breath. The

student was also observed to be slurring

their words, and, in the eyes of the

witness, seemed to be having a hard time

maintaining balance.

u Strengths

u Drawn from direct observation and/or

initial reporting

u multiple pieces of circumstantial

information can often create compelling

conclusions

u Serve as a basis from which the panel may

develop questions

u Weaknesses

u Pieces of information may be subject to

multiple interpretations

u Hearsay information is information that is reported

through another party (second-hand information).

u Example: Lauren, a student witness, tells the panel that

within minutes of the alleged fight at Chimy’s, Jordan

told her that he saw Michael running away from Chimy’s

toward The Suites apartments.

u Strengths

u Can be useful as a means for determining what an

involved party said or did following an event.

u Weaknesses

u Information may not be consistent with fact

u Subject to bias based on relationships to parties

involved

u May not be relevant to the issues in dispute

Hearsay

Information

“Expert”

Information

u “Expert” information is information that is shared from a

person who has an acknowledged expertise in related

subject matter.

u Example: A police investigator notes that the

placement of wounds sustained in a fight demonstrate

multiple blows to the individual, despite the

respondent asserting that they only struck the

complainant in self-defense.

u Strengths

u Can assist in making credibility decisions between

people providing disparate information

u Can aid the panel in understanding pieces of

information that should be present

u Weaknesses

u People are often given the benefit of expertise with

insufficient training and/or experience

u Opinions can sometimes be couched as information

Character

Information

u Character information is information

provided by an individual about a student’s

past, most often used to assure the panel

that a person is of good character and

judgment.

u Example: The respondent provides

character statements from a family

friend, a high school coach, and their

CA. These statements speak to the

relationships with the respondent, and

how, given what they know about them,

they could not have possible stalked

another student.

u Strengths

u Can provide a more holistic view of an

individual to consider in the sanctioning

phase of deliberations after a violation

is found to have occurred.

u Weaknesses

u Does not relate to the incident and is

not relevant in determining a finding of

fact

Phase 1: Fact

Finding

u What evidence do we have?

u Of that evidence, what is a

fact/undisputed?

u What evidence is unproven but

relevant? What insight does it provide?

u Of the evidence that is disputed, which

pieces are more likely true? Which

pieces are more likely false?

u Which pieces of evidence are most

impactful?

Phase 2:

Determining

Responsibility

u Preponderance of the evidence

u Majority v. C o n s e n s u s

u Majority rule

u Reviewing evidence

u Focus on

behavior

not

character

u What types of evidence have been made available for this

case?

u What are the facts of the case that relate to the alleged

violation(s)?

u What evidence/information is not relevant to the alleged

violation(s) in this case?

u Do the facts support a finding of responsible?

u Consider each charge individually

Phase 2: Determining Responsibility

u Key word dissection

Dissect

violation

into critical

components

Match facts

to those

components

Student is

responsible

If the equation is incomplete, then the

student is not responsible for the

violation.

Darren Gibson, Littler Mendelson Higher Education Group

Title IX Hearing Process

Case Study

Break Out Rooms

u Articulate what the panel believes happened

u Identify the elements of the violation which are

supported by facts

u List the facts which support each element

u May address sanctions, particularly if varying from the

matrix

The Rationale

Good Rationales

Include facts of the

case that led to the

finding

• “It is undisputed

that…”

Specific examples of

evidence that support

the facts

• “On page 56 of the

report…”

• “In the hearing, the

respondent stated…”

Points of discussion

the panel used in

making the decision

• Were there

credibility concerns?

• Did the panel find

inconsistencies in

statements (in the

report, hearing, or

both) that led to the

decision?

Sanction

Considerations

What are the core issues in this case?

What is appropriate for our community’s behavior

standards and expectations?

Is there a continuing threat to health or safety?

Did the student(s) provide any compelling

information regarding sanction severity or impact?

Is this a first offense or part of a pattern?

Primary

Sanctions

u Reprimand

u Formal warning

u Probation

u Monitoring behavior for that period of time

u Student is considered in bad disciplinary standing

u Suspension

u Time-limited removal from the institution

u Typi c a l ly 1 t o 3 y e ars

u Anything past that time frame and it may be appropriate to

expel

Expulsion

u Permanent removal from the institution

Sanctioning Considerations

Cumulative

Conduct history

Was the behavior

severe, persistent,

or pervasive?

Impact statements

•Impact on the

respondent?

•Impact on the

complainant?

Impact to the

greater campus

community

Consistency with

common practice

Staying on the grid

Mitigating or

aggravating factors

Mitigating vs. Aggravating Factors

Mitigating Factors

• Is there convincing evidence of a lack

of intent to deceive and/or harm?

• Has the student clearly accepted

responsibility for the violation?

• Is there evidence that the student

has taken steps to address/remedy

personal issues that may have

contributed to the violation?

• Is there evidence to support that the

student’s ability to think rationally

was impaired even though they made

a conscious effort to participate in

the violation?

Aggravating Factors

• Is there evidence to support that the

behavior was premeditated?

• Was there physical/emotional

damage to another student?

• Is this repeated behavior on the part

of the respondent?

• Was blame deflected by the

respondent?

• Was there an attempt to conceal or

hide evidence of the violation by the

respondent or by parties on behalf of

the respondent?