Student Conduct Hearing Process
As part of the due process entitled to complainants and respondent, a hearing may be necessary to resolve the complaint. A title IX hearing is similar to other hearings with some special considerations. As in all hearings, a recording of the hearing will be made for purpose of review by an appeal panel.
During a hearing the respondent and complainant students shall have the following rights:
- Receive advance notice of the alleged violation(s) and the date of the hearing.
- The opportunity to present their version of the events in question
- Have an advisor (up to three) present. That advisor may be an attorney.
- Have witnesses present information on their behalf.
- Not participate in or answer any questions during a hearing.
- Questions any statements or witnesses presented.
- Challenge the objectivity of the hearing.
- Appeal the outcome of the hearing.
In many Title IX hearings, given the alleged conduct between the complainant and respondent, direct questioning of the parties will not be allowed. Only the Chair and Panel members have absolute authority to directly question parties and witnesses. In these circumstances, questions should be submitted directly to the Chair who is empowered to disallow or reframe the questions as necessary. If the Chair disallows the question they will provide a verbal reasoning for their decision.
Given the sensitive nature of a Title IX hearing, the complainant or witnesses may not desire to appear or participate directly in the hearing room. The complainant or witness may participate via closed-circuit technology including Skype. Determinations for this participation will be made at the discretion of the VPSA and should not be held against any complainant or witness.
The burden of proof in a hearing refers to who has responsibility of showing a violation has occurred. It is always the responsibility of the University / hearing officer to show this. The respondent never has the burden to prove that a violation didn’t occur. As such, a respondent may decide not to share their side of the story or may decide not to participate in the hearing. None of these decisions shift the burden of proof away from the University / hearing officer.
The standard of proof in a hearing describes the level of proof that must be met in order to find a respondent responsible for a violation. In some hearings, there may be strong, definitive evidence presented to persuade the hearing panel or hearing officer that the student/student organization did or did not violate a particular section of the Code of Student Rights and Responsibilities. Sometimes, however, there may be ambiguities and contradictions, which require the hearing panel or hearing officer to decide whom they believe, or whom they think is more credible. Similar to a court of law, the student/student organization is always not responsible until shown otherwise by the information. However, unlike a court of law, the standard of proof is much lower and is known as more likely than not. In other words, if you imagine yourself weighing the evidence on an imaginary scale, one must be more than 50% sure that the student/student organization violated the policy to find them responsible. One does not need to be 100% or even 75% sure, just more than 50% sure (51% or 50.1%).
An attorney can serve as an advisor to either party. The attorney is, for the purpose of the University process, serving as an advisor and not an attorney.
As discussed above, given the sensitive nature of the incident, and to minimize re-victimization, parties (respondent and complainant) will not be allowed to directly question each other. Advisors are allowed to ask questions of the other party and witnesses during the hearing. Attorneys should remember that this is not a trial and all questioning will be done in a manner consistent with the educational mission of the University. Questions should not be asked in an aggressive or badgering manner.
It is the responsibility of the advisor to:
- Allow their advisee to state the student’s own case. An advisor may NOT speak on behalf of their advisee. If the advisor ignores these rules, the hearing board chair will warn them, and if the behavior persists, the advisor will be asked to leave the room. A student can decide not to answer questions but cannot have an advisor answer them on their behalf.
- Pass notes and/or whisper to their advisee.
- Communicate quietly/discreetly with their advisee.
- Request a brief recess to confer with their advisee if necessary.
If necessary, the hearing board chair will kindly remind the attorney that this is not a courtroom nor is the hearing part of a legal process. The attorney will be responsible for following all guidelines followed by any other advisor. The attorney is present to advise, not represent the student through the University hearing process.
1. Types of Information
There are different types of information that may be presented with during a hearing. The types of information include:
- Direct Evidence: Based on personal observation or experience. You either believe the person saw or did what he/she saw/did or you don’t believe it.
In most sexual harassment cases, the bulk of the evidence will come in the form of direct evidence through the personal observations and experiences of the complainant and the accused student.
Given the nature of sex, there will generally not be any other eyewitnesses to the specific incident itself. However, witnesses may play an important role on determining incapacitation. Witnesses are often able to give information on how the complainant and accused student were acting, whether they notice any alcohol being consumed, whether or not the complainant was able to walk on their own or whether the complainant vomited. Witnesses may also be able to describe the events leading up to the incident and the demeanor of both parties after the incident.
In rare cases, you might see other forms of direct evidence including DNA results, evidence from forensic evidence kits, articles of clothing, or video footage.
- Circumstantial Evidence: Information which, although it does not include an eyewitness to the actual event, does include enough information to lead a reasonable person to the conclusion that the student/student organization did what he/she is alleged to have done. For example, if you are in a hallway and you see a water balloon being thrown out of a room, into the hallway (but you didn’t see who threw it), and you immediately walk to that room there is only one student in that room, it may be reasonable to conclude that the student threw the balloon.
- Documentary Evidence: Any supportive writings or documents including statements, reports, etc., that support or deny a fact at issue. Documents whose existence and content are known generally, or are known by any unbiased witness, need not be physically produced during the hearing to be relevant.
In most cases the hearing panel or hearing officer will be given a copy of the IOA investigative report as information to consider when making a decision. This report will contain a detailed account of the investigation as well as summaries of the parties involved and witnesses the investigator was able to speak to.
In some cases, a copy of a SANE report will be available as information to consider. Not all cases will have a SANE report. A Sexual Assault Nurse Examiner (SANE) is a nurse who has received special training to conduct evidentiary health exams on victims of sexual assault. The nurse will use a sexual assault forensic evidence kit (often referred to as a Rape Kit) to collect any evidence. Generally the exam is done as soon in time as possible to the assault. For a short video detailing the SANE examination, please watch here - http://www.surviverape.org/forensics/sexual-assault-forensics/rape-exam (please note that there may be small variances in procedure from jurisdiction to jurisdiction).
A common form of documentary evidence in a digital era include text messages and/or Facebook messages. While these messages may be relevant in some cases, judgment regarding their admissibility and relevance will be made by the hearing panel or hearing officer. Messages shown only for the purpose to prove an existing relationship may end up having no relevance.
- Secondhand, or “hearsay” evidence: While it is acceptable for the board to hear second hand information, for example, from a proxy for a witness unable to attend a hearing due to illness or academic conflict, it is not intended that evidence given by unknown or unidentified persons be accepted, nor be considered when weighing the facts of a case. Opinions, unless inferred from fact, or unless they come from an expert, are to be considered minimally useful.
Generally, direct evidence is considered to be the most reliable form of evidence as it is based off a person’s own observations or experience. However, it is ultimately up to the hearing board members to decide the credibility of information and the weight that they will assign to that information.
In order for information to be accepted the hearing panel or hearing officer must first look at whether certain information is admissible as part of the hearing. It is important to recognize that hearings do not adopt the formal rules of evidence that are present during a court room proceeding. This is not a trial. The objectives, goals, and purpose of the hearing are distinct from those of the criminal justice system. As such, it is inappropriate to substitute any formal rules of evidence into the conduct system. Evidence or information that may not be admissible in a court of law may be admissible in a conduct hearing.
Admissibility of information refers to whether or not the information should be heard by the hearing panel. Most information will be admissible but there are some very important exceptions.
- The respondent or complainant student’s past sexual history. This information would be prejudicial because people are inclined to think that people who always consent for sex probably consented in this instance, or that individuals who behave badly always behave badly.
- The exception to this rule would be if past sexual behavior with multiple parties is used to show a pattern of behavior relevant to some aspect of the violation (e.g. the demonstration of consent through a pattern of words or actions; demonstrated pattern of nonconsensual activity based on previous activities). Past sexual history with anyone other than the respondent or complainant will never be admissible.
- Information relating to how the complainant “appeared” during the investigation and or reporting of the allegation. Complainants may act in various ways; sarcastic, laugh, cry, physically shake, act catatonic, etc. A nurse, police officer, or other official, in their official capacity, reporting that an individual “appeared to have been raped” would be prejudicial. [Better information would be a police officer relating if the harmed party seemed credible and how the police officer arrived at that conclusion (from years of experience, previous interviews, etc)]. An witness can speak to demeanor, physical state, emotions; but may not make assumptions based on those observations. It would be improper for a witness to state the respondent "appeared guilty."
The inquiry does not end with a determination that information is admissible, as stated above, most information will be admissible. The next determination a hearing board must make is whether or not the information is relevant. Information that has not been stricken on the basis of prejudice may still be considered irrelevant for purposes of deciding whether sexual misconduct occurred. Some common examples are as follows:
- The sexual history of the harmed party and accused student. Past consent or past consensual relations is not determinate in deciding whether consent was given in this specific instance.
- The exception to this rule would involve parties who were in a consensual sexual relationship at the time of the incident, and the respondent uses past sexual experiences to demonstrate a pattern of consent that was recognized and accepted by both parties.
- Consent to one sexual act does not necessitate that consent was given for other sexual acts. Consent to kissing does not indicate consent for fondling; consent for oral sex does not indicate consent to vaginal or anal sex.
- Similar to past consensual relations, consent at 6 p.m. may be rescinded at 6:10 p.m. Consent may be revoked at any time or during the sexual act. If consent was rescinded, either through words or through actions, prior consent is of no consequence.
- The clothing of the complainant can never give consent, therefore, what the complainant was wearing at the time of the incident will generally be irrelevant for purposes of the hearing. The hearing panel or hearing officer is there to decide whether consent was given and/or whether it could be given. It is not their role to judge how other individuals dress.
When determining the relevance of information from the complainant, respondent, or witness, the hearing panel or hearing officer will look to whether the information makes it more or less likely that the student is responsible or not responsible.
- In a case where consent is at issue because the complainant states they were too intoxicated to give consent, how much the student drank, whether the student ate dinner, over what time period, etc may all be relevant. In a case where alcohol is not involved, what the complainant ate for dinner would likely have no relevance.
An appeal is defined as a review of the original case. This may involve a review of the decision as recorded on paper, or other procedures as described below. During an appeal, the burden is placed on the appealing student or student organization representative to demonstrate why the finding or sanction should be changed.
Appeals may be based only on the following grounds:
18.104.22.168 Failure to Follow Procedures. The decision of a hearing body may be set aside if the hearing body failed to follow required procedures. However, if the failure to follow procedures was harmless, that is, did not prejudice the appellant, the hearing body decision should be affirmed notwithstanding the procedural error. The burden shall be on the appellant to identify the prejudicial effects of any alleged procedural error.
22.214.171.124 Inconsistency with Applicable Provisions. The decision of a hearing body shall be set aside if applicable provisions of the University Senate Code, University Senate Rules and Regulations, Handbook for Faculty and Other Unclassified Staff, Board of Regents policies or procedures, or state or federal law require a contrary result.
126.96.36.199 Factual Determinations Not Supported by the Record. The decision of a hearing body may be set aside if it is not supported by substantial evidence in the record compiled at the hearing. For purposes of this provision, a decision is supported by substantial evidence if a reasonable person could find that the decision was justified on the basis of the evidence submitted at the hearing, with due regard for any contrary evidence in the record. The appeals panel should bear in mind the superior opportunity of the hearing panel to judge the credibility of witnesses.
188.8.131.52 Arbitrary and Capricious Decisions. In exceptional cases, the decision of a hearing body may be set aside if it is arbitrary, capricious, or an abuse of discretion. A decision is arbitrary and capricious or an abuse of discretion if it is based on improper considerations, entirely fails to consider an important aspect of the problem, or lacks a plausible explanation of the connection between the facts found and the recommendations made.
Appeal requests may be denied in cases not having sufficient grounds in one or more of these areas. All appeals must be submitted to University Governance Office located in Strong Hall, Room 33.
The written request for an appeal, stating the specific grounds upon which the appeal is based, must be received by University Governance the end of the thirtieth (30th) calendar day following the rendering of charges against the students/student organization. Appeals submitted after the thirtieth calendar day will not be accepted.
The Chair of the University Judicial Board, through University Governance, shall appoint an appeal panel which shall hear all appeals from formal hearings and from decisions pursuant to the administration of the Code of Student Rights and Responsibilities. The appeal panel will review the entire hearing file and record of the hearing (if requested). The appeal panel may request a personal appearance of the student or organizational representative to discuss the incident in question. After reviewing the record, and depending upon the demonstrated grounds for appeal, the appeal panel may take any of the following actions:
- Affirm the charge;
- Impose greater or lesser sanctions; or
- Order a new conduct hearing.
The action of the panel considering an appeal will be communicated to the student or organizational representative in writing. This is the final step in the appeal process.