University Procedure

Filing an OEOA Complaint Against a Student Based on Sexual Harassment, Sexual Assault/Misconduct, Dating/Domestic Violence, or Stalking

 

*As a precautionary measure due to the extraordinary circumstances surrounding the worldwide Coronavirus (COVID-19) pandemic, the complaint procedures as outlined in the University’s Anti-Harassment and Non-Discrimination Procedure 1.2.2 are currently being facilitated through alternate modalities such as telephone and Zoom. All students, faculty, and staff have unlimited access to Zoom via laptop and/or cellphone.*

Any student¹ who feels they have experienced harassment and/or discrimination on the basis of sex (including sexual harassment, sexual assault, domestic violence, dating violence, or stalking) can report the alleged conduct to the University. Once the University has received information related to a potential policy violation, written notice will be sent promptly to the Complainant outlining the availability of supportive measures along with information on how to file a formal complaint. Supportive measures are available to the Complainant with or without the filing of a formal complaint. The University reserves the right to have the Title IX Coordinator sign a formal complaint in the absence of a participating Complainant. A determination by the Title IX Coordinator to file a formal complaint will be made on a case by case basis. For the purposes of this policy, if the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not considered a party to the case.

For the purposes of this policy, a formal complaint is defined as a document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment, as defined in the University’s 1.2 Policy, against a Respondent and requesting that the University investigate the allegation of sexual harassment. At the time of filing a formal complaint, a Complainant must be participating in or attempting to participate in a University education program or activity. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail. For the purposes of this policy, a “document filed by a Complainant” means a document or electronic submission, such as by electronic mail or through an electronic incident report that contains the Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the person filing the formal complaint. Additionally, there is no time limit on a Complainant’s decision to file a formal complaint.

The Complainant always has the option to pursue a criminal complaint with the appropriate law enforcement agency or pursue both the OEOA and criminal complaint processes simultaneously.

The University will strive to complete the investigation, meaning the period from commencement of an investigation through to completion of an investigative report, within a reasonably prompt timeframe. The commencement of an investigation begins with the receipt of a formal complaint from the Complainant or when the Title IX Coordinator signs a formal complaint on behalf of the University. The University will strive to gather evidence and conduct interviews within sixty (60) University business days, with the understanding that additional time beyond sixty (60) University business days may be necessary. OEOA reserves the right to extend this time frame by a reasonable period according to the scope of the investigation, the availability of witnesses, any concurrent police investigations, and the cooperation of the parties. If additional time is necessary, both the Complainant and Respondent will be notified of the OEOA's need to extend the investigation beyond the allotted sixty (60) University business days limit.

¹ Individuals not affiliated with the University may file a formal complaint under the University’s Anti-Harassment and Non-Discrimination Policy 1.2 (P) Sexual Misconduct/Violence, Domestic Violence, Dating Violence, and Stalking.

Emergency Removal

The Vice President for Student Affairs (VPSA) or designee shall be responsible for the determination of emergency removals. During an emergency removal, the removed student shall be denied access to all campus facilities, including residence halls and classes, and to all University-related activities or privileges for which the student might otherwise be eligible, as the Vice President or designee may determine to be appropriate. All emergency removals will include an opportunity to submit information to challenge the final interim removal decision.

Whenever an interim action is taken, a proceeding to resolve alleged violations of the policy shall be convened at the earliest possible time. The interim actions may remain in effect until a final decision has been reached, including any appropriate appeals process, at the discretion of the VPSA or designee. In cases where a student is allowed to return to campus if removal or a suspension is not a sanction following the student conduct process, effort will be made to restore the student formerly on interim suspension to academic wholeness. Steps can include, but are not limited to, communicating with professors, assisting in obtaining course materials, and assisting in identifying academic assistance resources.

Investigation of Formal Complaint

When OEOA investigates allegations of sexual harassment, it reviews the information collected using the preponderance of the evidence standard. "Preponderance of the evidence" means there is more credible information supporting the position of one party, in comparison to the other, so that the facts in question were more likely than not to have occurred. It is the responsibility of the University to gather relevant evidence to the extent reasonably available and not the responsibility of the parties. The University’s review will be thorough, reliable, and impartial.

Advisors

The parties can have others present during the complaint procedures, including the opportunity to be accompanied to any related meeting or proceeding by an advisor of their choice.

OEOA Investigator

Whenever a formal complaint is received and reviewed, the Title IX Coordinator will assign an Investigator. The Investigator will be an OEOA staff member that must be impartial, free of any actual conflict of interest, and have specific and relevant training and experience. A Complainant or a Respondent who has concerns that the assigned OEOA Investigator cannot conduct an impartial and fair review (e.g., has personal connections to any involved parties) may report those concerns directly to the Title IX Coordinator. Any concerns of perceived bias reported to the Title IX Coordinator will be assessed to determine whether a different Investigator should be assigned to the investigation. Any requests for supportive measures expressed to the OEOA Investigator will be sent to the Title IX Coordinator for decision and implementation.

1. Notice to the Complainant and Respondent

Once a formal complaint has been filed, the Complainant and the Respondent will be informed in writing of the initiation of the OEOA investigation into alleged violations of the policy, and when applicable, alleged violations of the Code of Student Conduct. The notice of the investigation will include the identities of the parties, a summary of the conduct at issue (including when and where it allegedly occurred, if known), and the potential specific violations. In this initial notification to the parties, they will be informed that they may have an advisor of their choice, at their own cost, attend all meetings and hearings. Further, both parties will be notified of the process to request supportive measures and the prohibition against knowingly making false statements or knowingly submitting false information during the investigation process. The Complainant and Respondent will be notified prior to the meeting of their right to review and inspect all evidence during the investigation.

The Respondent, in specific, will be informed that they are presumed not responsible for the alleged conduct and that a determination regarding responsibility is not made until the conclusion of the complaint process. Through the course of the investigation, if any evidence is obtained or disclosed that may establish additional potential violations, the Respondent will be informed in writing at the time.

2. Investigative Interview

During an investigation, the Investigator will meet separately with the Complainant, the Respondent, and pertinent witnesses. At the time of the meeting, the Complainant, the Respondent and pertinent witnesses will be given the opportunity to participate in an interview with the Investigator.

As noted above, the Complainant and the Respondent may bring an advisor of their choice to an interview, with the understanding that the advisor’s role is to provide guidance, advice, and assistance. 

Following the interview, each individual will be provided with a draft summary of their statement for their review and feedback to ensure its accuracy and completeness.

3. Evidence

An investigation will allow both the Complainant and the Respondent an equal opportunity to submit information, additional evidence (including inculpatory and exculpatory evidence), and to identify witnesses, including fact and expert witnesses, with relevant and appropriate information. The Investigator will also gather other relevant information or evidence reasonably available to the Investigator and University. Evidence that may be reasonably available to the University includes but is not limited to, documents, photographs, social media, communications between the parties, and other electronic records as appropriate.

In general, a person’s medical and counseling records are confidential and not accessible to the Investigator unless the person voluntarily chooses to share those records with the Investigator. Should the parties involved submit medical records as evidence, any information that is deemed confidential and/or irrelevant to the investigation must be redacted by that party. In those instances, if relevant and appropriate, the relevant portions of the medical records will be summarized in the preliminary report, which will be made available for the other party’s review.

The University cannot restrict the ability of either party to discuss the allegations under investigation or to gather and present evidence during the grievance process.

All evidence (inculpatory and exculpatory) obtained as part of the investigation will be shared with the parties, and their advisors, if any, for their review and comment. The parties will have ten (10) University business days to review all evidence and submit any feedback to the evidence.

The Investigator will objectively review all information identified or provided by the parties as well as any additional evidence obtained and will determine the appropriate relevance, and probative value of the information developed or received during the investigation.

4. Draft Investigation Report

After each individual has had the opportunity to comment on their own statement and evidence, the Investigator will prepare a draft investigation report. The draft investigation report will include a description of the procedural steps taken, the evidence gathered, including statements obtained during the investigation, any feedback to statements and any other information and evidence gathered. The Investigator will provide the Complainant and the Respondent, and their advisors, if any, with the draft investigation report in an electronic or hard copy format.

The Complainant and the Respondent will have one opportunity to concurrently review the draft investigation report and provide feedback. The Complainant and the Respondent must submit any comments, feedback, additional documents, evidence, requests for additional investigation, names of additional witnesses, or any other information they deem relevant to the Investigator, within ten (10) University business days. The ten-day period begins on the date of delivery of the draft investigation report via email. The parties’ feedback may be attached to the final investigation report, if it is determined to be relevant and appropriate.

5. Final Investigation Report

After receiving any feedback submitted by either party, or after the ten (10) University business days review period has lapsed without response, the Investigator will address any relevant and appropriate issues identified by the Complainant and/or the Respondent, and as appropriate, pursue any additional investigative steps as needed and will issue a final investigation report for the purposes of a hearing referral.

The OEOA Investigator will provide a copy of the final investigation report simultaneously to the Complainant and the Respondent, and their advisors, if any, in an electronic or hard copy format. In addition to the investigation report, the OEOA Investigator will also provide written information about next steps in the process.

Informal Resolution Conference

At the request of the parties, and when deemed appropriate, an investigation may be referred to an informal resolution conference in lieu of a University hearing to resolve the complaint. The Complainant and Respondent must give voluntary, informed, written consent to attempt an informal resolution. The OEOA Investigator and a member of Student Conduct and Community Responsibilities (SCCR) will meet with the Respondent to review the final investigation report and determine the University policies that may have been violated, as well as any sanctions that would be imposed as a result of the behavior. The OEOA Investigator will meet with the Complainant to notify them of the outcome of the meeting with the Respondent. At any time prior to agreeing to a resolution, either party has the right to withdraw from the informal resolution process and proceed to a University hearing.

The following outcomes may result from an informal resolution conference:

1. The Respondent and the OEOA Investigator may agree on the University violations for which the student is responsible and the sanctions to be imposed. In this case, a decision letter is generated within five (5) University business days, and the case is resolved. There is no right to appeal, unless the student has agreed to a disciplinary suspension or disciplinary dismissal, in which case the student maintains limited appeal rights.
2. The Respondent and the OEOA Investigator may not agree on the University violations and/or sanctions to be imposed. The case will then be forwarded to a formal hearing.
3. If after receiving written consent from both parties to enter into an informal resolution, either the Respondent and/or the Complainant fail to attend an informal resolution conference, the case may be referred to a formal hearing.
4. In cases where an informal resolution can be reached between the Respondent, the OEOA Investigator, and a representative from SCCR, the OEOA Investigator will consult with the Complainant to review the proposed outcome. If the outcome is satisfactory to all involved parties, a decision letter will be generated, and the case will be resolved. If the Complainant does not support the proposed outcome, the case will be referred to a formal hearing.

6. Referral to Hearing

The OEOA Investigator will provide the investigation report to the parties simultaneously, along with information regarding the hearing process. The hearing will be scheduled no earlier than ten (10) University business days of receiving the investigation report.

A member of the panel of decision-makers will conduct a pre-hearing meeting within five (5) University business days of the notice of hearing. The purpose of this meeting is not to discuss the substance of the investigation, but rather to provide information related to the hearing procedures.

If the Complainant and/or the Respondent do not intend to have an advisor present during the hearing, the University must provide an advisor of the University’s choice to the parties.

Hearing Procedures

At the conclusion of the OEOA investigation, the information contained in the investigation report will be forwarded to a panel of decision-makers for a determination, by a preponderance of the evidence, of whether a violation of Policy 1.2 has occurred. The following rules apply to this proceeding:

1. Hearings will be closed to the public and are audio recorded. The panel shall consist of three members, comprising of faculty and staff. A fourth panel member shall be assigned as an alternate in each case. The Complainant and Respondent have the right to have an advisor of their choosing present at the hearing.
2. If a party does not have an advisor present at the hearing, the University will provide that party an advisor, without fee or charge, to conduct cross-examination. Such cross-examination must be conducted directly, orally, and in real time by the party’s advisor and never by a party personally. All questions, including those that challenge credibility, must be relevant and appropriate.
3. Hearings may be conducted with all parties physically present in the same geographic location or, at the University’s discretion, any or all parties, witnesses, and other participants may appear at the hearing virtually, with technology enabling participants simultaneously to see and hear each other.
4. All cross-examination must exclude evidence of the Complainant’s sexual behavior or predisposition, unless such evidence about the Complainant’s sexual behavior is offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the evidence concerns specific incidents of the Complainant’s sexual behavior with respect to the Respondent and is offered to prove consent.
5. The panel of decision-makers will hear information and witnesses presented on behalf of both parties. All people appearing at a hearing are subject to questioning by the advisors and decision-makers. Only witnesses who can speak to the substance of the allegations will be considered by the panel.
6. Before a Complainant, Respondent, or witness answers a cross-examination or other question, the decision-makers must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. In the event that a question is deemed irrelevant, the party’s advisor may challenge the decision to exclude the questions based on relevance.
7. At the request of either party, an audio recording of the hearing will be made available to them for their inspection and review.

At the conclusion of the hearing, the panel of decision-makers will deliberate to reach a decision, by majority, for the alleged violations. The decision will be on the basis of whether there is a preponderance of information that the Respondent violated each cited University regulation. A member of the panel of decision-makers must issue a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the Respondent, and whether remedies will be provided to the Complainant.

The written determination will be emailed simultaneously to the parties no later than seven (7) University business days after the hearing. This may be delayed if the panel needs additional time to review the information provided at the hearing. Notifications of any delay will be sent to the parties by email to their Illinois State University email account.