Sexual Misconduct Formal Complaint Hearing Process

What Complainants and Respondents can Expect during the Hearing Process:

• Reasonably prompt and equitable resolution of allegations of sexual misconduct;
• Written notice of hearing, including the potential policy violation(s), nature of the allegation(s), the identities of the Parties involved, and the date, time and location of the incident (if known);
• The opportunity to offer information and/or present evidence from the investigation during the hearing, and/or identify witnesses who participated in the investigation that they would like to have appear at the hearing; and to have their questions asked of witnesses during the hearing;
• Reasonable notice of any meeting where the party’s presence is requested;
• The opportunity to have an advisor of choice present with them at any meeting or proceeding related to the formal complaint including the hearing;
• Appointment of an advisor to conduct cross-examination if a party does not have an advisor of choice who is able to conduct cross examination;
• Timely and equal access to any information that will be used for the hearing;
• A reasonable length of time to prepare for the hearing;
• Written notice of any extension of time frames for good cause;
• Privacy to every extent possible in accordance with Policy 1100 and legal requirements;
• The opportunity to challenge the decisionmaker for actual bias or conflict of interest;
• Written notice of the outcome, imposition of any sanction(s), the rationale for each, appeal procedures, change to the finding and/or sanction, if any, after an appeal, and when the outcome and sanctions become final;
• Reasonably available supportive measures;
• Prohibition on retaliation
• Implementation of reasonable accommodations for a documented disability in order to facilitate participation of the party in the formal complaint hearing process;
• A hearing conducted by a neutral, trained, unbiased decisionmaker who presumes no policy violation has occurred unless proven otherwise by a preponderance of the evidence after weighing the evidence presented at the hearing;
• The opportunity to answer questions posed to them during the hearing or to decline to answer questions posed during the hearing;
• The opportunity to have their questions posed to witnesses and parties by their advisor of choice or appointed advisor.

Advisor of Choice Role and Responsibilities

• Complainants and Respondents may have an advisor of choice present at any meeting including the hearing. The advisor of choice may be anyone a party chooses and may be, but is not required to be an attorney. A witness may not serve as an advisor of choice for a party.
• Prior to the hearing, an advisor may help the party prepare for the case, which may include being present with the party they are supporting during any prehearing meetings with the Office of Institutional Compliance/Title IX and/or the decisionmaker. An advisor may also communicate with the Office of Institutional Compliance/Title IX and or the decisionmaker about the case and/or procedures with the permission of the Respondent or Complainant. At the party’s request, the Office of Institutional Compliance/Title IX may copy an advisor on electronic communication directed to the party pertaining to the party’s case; the advisor must agree to adhere to guidelines and restrictions related to confidential information as set forth by the Office of Institutional Compliance/Title IX.
• The availability of an advisor is reasonably considered when scheduling meetings, including the hearing. The Office of Institutional Compliance/Title IX cannot compel an advisor to attend; it is the party’s responsibility to coordinate an advisor’s attendance. If an advisor does not attend the hearing, the hearing may proceed with any necessary adaptations to the procedures such as the appointment of an advisor for the party to conduct cross examination on behalf of the party.
• The Office of Institutional Compliance/Title IX will provide to advisors of choice access to the evidence, investigation report, and all other documentation the party they are supporting has access to prior to the hearing.
• Any participant who receives access to an electronic case file must adhere to specific expectations since information and records maintained by the Office of Institutional Compliance/Title IX are considered educational records and fall within the protections, restrictions, and exemptions outlined in the Family Educational Rights and Privacy Act or employment records. Participants who receive case file access may not share nor make public documents or information which constitutes part of any other student’s educational record or an employee’s employment file. As such, upon receiving access to the case materials, participants are not permitted to make reproductions of the materials, share the materials with another person or entity, or copy, download, delete, modify, or alter the materials in the electronic case file.
• During a hearing an advisor for a party may not communicate for or speak on behalf of the party except for conducting cross-examination. Respondents and Complainants must present their statements or information themselves.
• If a party does not have an advisor of choice, The Office of Institutional Compliance/Title IX will appoint an advisor for the purpose of conducting cross-examination. The appointed advisor will be chosen at the discretion of the Office of Institutional Compliance/Title IX. 
• During a hearing, an advisor may consult with the party on how to present their statements or information by whispering, providing notes, electronically sending messages, or taking notes as long as it does not disrupt the adjudication of the case.
• During a hearing, an advisor may provide support by taking breaks with or requesting breaks on behalf of the party they are accompanying.
• An advisor may not also serve as a witness at the hearing, for the case.

What Witnesses Can Expect

• Written notification of the date, time, and location of the hearing for which their participation is requested and the opportunity to decline to participate
• If called as a witness for a hearing, the opportunity to answer questions posed to them or to decline to answer questions posed
• Prohibition on retaliation

Role and Responsibilities of the Office of Institutional Compliance/Title IX

The Office of Institutional Compliance/Title IX oversees the prompt, fair, and impartial adjudication of formal complaints of alleged sexual misconduct (Policy 1100) by coordinating the hearing process in a manner that avoids pre-judgement of facts at issue, conflicts of interest, and bias. The presumption is that no policy violation has occurred unless proven otherwise by a preponderance of the evidence at the conclusion of a hearing by a trained decisionmaker. The Office of Institutional Compliance/Title IX carries out such duties as sending official communication regarding the process to participants, offering and coordinating supportive measures, appointing a decisionmaker, coordinating logistics for the hearing, and serving as technical assistance during the hearing. Office of Institutional Compliance/Title IX personnel do not serve as investigators or decisionmakers for formal complaints of sexual misconduct.

The Office of Institutional Compliance will issue Written Notice of Hearing to the complainant and respondent via email to the complainant and respondent’s official CNU email address. The notice will generally be issued no less than ten (10) business days prior to a scheduled hearing and will include the following information:

• A description of the alleged policy violation(s) and the policy(s) allegedly violated;
• The proposed time and date of the hearing or request for availability for a hearing;
• That hearings are conducted using video conferencing technology to facilitate a live hearing that provides video and audio access at all times to participants;
• Instructions for how to access the hearing via the selected video conferencing application and that the Office of Institutional Compliance/Title IX will send participants the link to access the hearing;
• The identity of the decisionmaker and a statement that a party may object to the decisionmaker on the basis of demonstrated bias or conflict of interest by notifying the Office of Institutional Compliance/Title IX in writing detailing the rationale for the objection within four (4) business days of issuance of the notice of hearing
• Notification that the Parties may have an advisor of choice at the hearing who will be responsible during the hearing for asking questions (cross examination) of the other party and/or witnesses;
• That the party inform the Office of Institutional Compliance/Title IX in writing no later than four (4) days after issuance of the Notice of Hearing whether they have an advisor of choice and if so the identity of the advisor of choice;
• That if a complainant or respondent does not have an advisor of choice who can conduct cross-examination, one will be appointed for the party and that the party should inform the Office of Institutional Compliance/Title IX as soon as they know they need an advisor to conduct cross-examination;
• The deadline by which the parties can submit a final response to the investigation report and that responses will be made available to the decisionmaker and one another through a secure electronic file.
• The deadline by which the complainant and respondent must submit to the Office of Institutional Compliance/Title IX the names of witnesses they would like to have appear for questioning at the hearing and that only witnesses who submitted information for the formal complaint investigation are eligible to appear at the hearing;
• Information on how to request reasonable safety measures if applicable;
• Information on how the hearing will be recorded and on how the Parties may access the recording after the hearing;
• A statement that if any party or witness does not appear at the hearing, the hearing may be held in their absence;
• That a member of the Office of Institutional Compliance/Title IX staff will serve as technical assistance for the hearing by running the video conferencing technology but will not be involved in the decision-making process;
• Information on how a party may request disability accommodations, language assistance, and/or interpretation services during the hearing at least seven (7) business days prior to the hearing.

The Decision Maker

The decisionmaker designated to conduct the hearing and reach a determination, must be someone other than the individual designated to investigate the formal complaint and generally will not be a member of the Office of Institutional Compliance/Title IX staff. The decisionmaker serves in a fair and impartial manner free from actual bias or conflict of interest. The presumption of the decision maker is that no policy violation has occurred unless proven otherwise by a preponderance of the evidence presented at the hearing.

Prior to the hearing, the decisionmaker will be provided secure electronic access to the formal complaint, notices of allegation, draft investigation report, Final Investigation Report, all evidence made available to parties, written responses submitted by parties, and the parties’ final written response to the final investigation report.

Pre-Hearing

The Office of Institutional Compliance/Title IX will assure that the complainant, respondent, and their respective advisors of choice have secure electronic access to all information collected during and submitted for the investigation, any responses that the complainant and respondent submitted to the evidence, the draft investigation report, responses submitted by the complainant and respondent to the draft investigation report, the final investigative report, and any responses submitted by the complainant and respondent to the final investigative report. Parties will generally have such access at least ten (10) business days prior to a scheduled hearing. However, in situations where a party needs to have an advisor appointed less than ten (10) days prior to the hearing, the hearing will generally proceed as scheduled. Since final responses are not due until five (5) business days prior to a scheduled hearing, parties and the decisionmaker may have less time to review the final responses.

The parties may choose to provide a written response to the final Investigation report, which must be submitted to The Office of Institutional Compliance/Title IX no later than five (5) business days prior to the scheduled hearing date. The parties and their advisors will be provided with the other party’s written response if one is received and any response(s) received will be provided to the decisionmaker prior to the start of the hearing.

A party may object to the decisionmaker on the basis of demonstrated bias or conflict of interest by notifying the Office of Institutional Compliance/Title IX in writing detailing the rationale for the objection within four (4) business days of issuance of the notice of hearing.

Hearing Format

The decisionmaker has the authority and can exercise their discretion with respect to administering the hearing, and may change the order of the hearing. A typical hearing generally includes the following:

• brief opening statements by the complainant and respondent;
• direct and/or cross-examination of the parties, and any witnesses by the decisionmaker;
• cross- examination of the parties and any witnesses by the parties’ advisors;
• brief closing statements by the complainant and respondent.

Participation in Hearing, Voluntary Participation and Response, Absence of a Party or Witness

Participation in the hearing by any party or witness is voluntary and the university does not have a mechanism to compel participation by the complainant, respondent, or witnesses. Additionally, during the hearing, responding to questions is voluntary, and there is no mechanism for compelling a party to answer a question. However, because the most accurate and fair review of the facts can best be accomplished when parties and witnesses are present, the parties and any requested witnesses are strongly encouraged to attend and participate in the hearing. If a party or witness does not submit to questioning at the hearing, the decision maker may exercise their judgement in evaluation of whether their statements to the investigator has a sufficient indicia or reliability to be admissible, and if so, in evaluating what weight, if any, to give to the statement of a party or witness not subject to questioning. In determining relevance, admissibility, and weight, the decisionmaker may consider longstanding principles of jurisprudence and evidence. The decisionmaker may not draw any adverse inference based solely on the decision of a party or witness to not attend or participate in the hearing.

In order to submit to direct or cross-examination at the hearing, any party or witness must have first participated during the investigation.

Hearing Length

The decisionmaker conducts the hearing in a manner that balances the needs of involved parties while also being respectful of the amount of time parties are committing to the process. Though the decisionmaker will work diligently to run the hearing in an efficient manner, depending on the volume of evidence, the number of witnesses scheduled to appear, and the volume of questions posed by the decisionmaker and advisors for the parties; hearings may last several hours. The decisionmaker will determine whether a hearing will be conducted in one single session or conducted over several shorter sessions. Parties are asked to set as much time aside as possible for the hearing to provide flexibility if the hearing can’t be completed in one session.

Hearing Recording

The hearing (not including any deliberations by the decisionmaker) are recorded by CNU for the purpose of review in the event of an appeal. No other recording of the hearing is authorized. The hearing recording will be available for inspection and review by the decisionmaker during closed deliberation and the appeal officer, in the event an appeal is filed. The complainant and respondent may request access to the recording by contacting the office of Institutional Compliance/Title IX in writing. Access to the recording for the decisionmaker, appeal officer, the complainant, and respondent will be for the period of time each party needs the access in order to carry out particular functions for the process and provided through a secure electronic platform.

Questions by the Decisionmaker

The decisionmaker may ask questions of the parties, witnesses, and/or the investigator(s) to aid the decisionmaker’s objective evaluation of all relevant evidence in order to reach a determination regarding responsibility and, if applicable, appropriate sanctions and remedies.

Questions by the Parties assigned advisors (cross examination)

The parties may not question each other or any witness directly. Instead, question asking (cross examination) must be conducted directly, orally, and in real time by the party’s advisor and never by a party personally. The decisionmaker will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.

Relevancy Determinations and Pauses Before Response

All questions of parties and witnesses are subject to a relevancy determination by the decisionmaker. The advisor will offer the proposed question to a party or witness. Prior to the party or witness answering a posed question, the decisionmaker will consider the proposed question, and will determine if the question is allowed, disallowed, or needs to be rephrased. If the question is permitted by the decisionmaker, the decisionmaker will communicate to the individual to whom the question was directed that they may proceed with answering the question.

The decisionmaker will explain any decision to exclude a question as not relevant, or to reframe it for relevance.

The decisionmaker will limit or disallow questions on the basis that they are irrelevant, unduly repetitious, or abusive. The decisionmaker’s determination is final. The decisionmaker will not hear arguments from an advisor on relevance once the decisionmaker has ruled on a question.

During cross-examination, questions are limited based on the following topics:

• Sexual predisposition of a party 
• Current/prior sexual behavior of a party

Except for the following regarding a Complainant:

• Questions and evidence about the party’s prior sexual behavior that are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or
• Questions and evidence concerning specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent that are offered to prove consent. 

Except for the following regarding a Respondent:

• Evidence of a pattern of conduct similar in nature by the respondent, either prior to or subsequent to the conduct in question, regardless of whether there has been a finding of responsibility, may be deemed relevant if:
  • The previous incident was substantially similar to the present allegation;
  • The information indicates a pattern of behavior and substantial conformity with that pattern by the respondent; or
  • The respondent was subject to a previous credible allegation and/or was previously found responsible for a policy violation.
• The assigned investigator will establish during the investigation of the incident(s) how pattern of conduct will be included. The Investigator will provide a summary of relevant pattern of conduct evidence in the investigation report to be included in the hearing.

Legal privilege

Questions may not attempt to elicit information from conversations protected by a legal privilege. Relationships providing legal privilege include, but are not limited to attorney-client, doctor-patient, counselor-client, clergy-confessional, etc.

A party may admit their own privileged conversations. If a party provides information during the hearing that is from privileged conversations, this information is able to be questioned by the decisionmaker(s) and by the other party, through their advisor during cross-examination. However, the questions must focus solely on the information that the party consented to share and may not attempt to elicit new information.

Credibility

Questions based solely on a person’s status as a complainant, respondent, or witness may not be used to address credibility.

New Evidence Offered at Hearing

In the absence of good cause, information including the identification of witnesses that was discoverable through the exercise of due diligence, that was not provided to the investigator(s) during the investigation, will not be considered during the hearing unless the decisionmaker agrees to the admission of new evidence. If the decisionmaker agrees to admit the new evidence offered at the hearing, the decisionmaker may delay the hearing and instruct the Office of Institutional Compliance/Title IX to reopen the investigation.

Standard of Evidence

At the conclusion of the hearing, the decisionmaker will determine whether a preponderance of the evidence substantiates that a violation of the policy occurred. Respondent will not be found in violation of the policy absent a finding by a preponderance of the evidence that the violation occurred.

Investigator Role in Hearing

The investigator(s) may be called as a witness and be subject to questions by the decisionmaker and the parties through their advisors. Since the investigator does not issue a preliminary finding or recommendation in the investigative report, the investigator will not entertain questions regarding credibility of parties and witnesses, the investigator’s impression of parties and witnesses, and/or opinion and recommendation regarding possible outcomes.

After the hearing has concluded, the decisionmaker will enter into closed deliberation in order to objectively and fairly weigh all evidence in order to determine, by a preponderance of the evidence, whether it is more likely than not that a violation of policy has occurred and only if the determination is that a violation of policy has occurred, to impose sanctions and remedies. The decisionmaker conducts deliberations privately and the deliberations are not recorded. The decisionmaker will conduct the deliberation in a fair, impartial, thorough, and efficient manner. There is no set time frame for deliberation because each formal complaint hearing produces varying levels of evidence and information.

Within ten (10) business days of concluding deliberation, the decisionmaker will provide in writing to the Office of Institutional Compliance/Title IX, the decisionmaker’s determination report. The decisionmaker may request an extension and the parties will be notified of the extension.

The Decisionmaker’s Determination Report Contains:

• A description of the alleged policy violation(s) and the policy(s) allegedly violated;
• A description of the procedural steps taken by CNU from the receipt of the formal complaint to the determination including inculpatory and exculpatory evidence;
• Finding of each alleged policy violation and the findings of fact that support the determination(s);
• Conclusions regarding the application of the relevant policy to the facts at issue;
• A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility;
• Any sanctions issued that CNU is permitted to share according to state or federal law;
• Any remedies provided to the complainant designed to ensure access to CNU’s educational or employment programs or activities to the extent CNU is permitted to share according to state or federal law. (This information is normally not shared with the respondent unless the remedy directly relates to the respondent.);
• Information on when the determination of the decisionmaker is considered final; and
• The procedure and permissible bases for any available appeal for either party.

Notice of Outcome

The Office of Institutional Compliance/Title IX will provide written notice of outcome to the parties via email. The notice will include secure electronic access to the decisionmaker’s determination report, instructions for submitting an appeal including deadline for submission of the appeal, and the date that, absent an appeal, the decisionmaker’s determination becomes final.

Sanctions

Sanctions will only be imposed after a determination of responsibility and will depend on the facts and circumstances of each particular situation, the frequency and severity of the offense, and any history of past misconduct. Sanctions may include penalties up to and including dismissal for students and dismissal from employment for employees.

Sanctions for Students are listed in the Student Handbook and may include but are not limited to disciplinary probation, deferred sanction, restrictions, loss of and/or delay of privileges, educational and reflective experiences, fees/fines and/or restitution, suspension, dismissal.

Sanctions for Instructional, Administrative Professional, and Adjunct Faculty are listed in the applicable section of the University Handbook and may include but are not limited to admonition, written warning, suspension, dismissal.

Sanctions for Classified and Wage staff are listed in Virginia Department of Human Resource Management Policy 1.60 Standards of Conduct and may include, but are not limited to, verbal warning, written warning, suspension, dismissal.

Remedies

Remedies may be provided in addition to any sanctions as determined by the decisionmaker that are designed to preserve or restore equal access to the university’s education programs and activities for the complainant. The Title IX Coordinator or Deputy Title IX Coordinator oversees effective implementation of remedies.

These appeal procedures apply only to appeals of the decisionmaker's determination and not to the decision of the Title IX Coordinator or Deputy Coordinator to dismiss a formal complaint (hyperlink to file a formal complaint page).

Once the Notice of Outcome with access to the decisionmakers report has been provided, both parties have seven (7) business days from the date notice is received into the party’s email account to file an appeal.

An appeal of the determination of the decisionmaker is available only based on one or more of the following grounds:

• Procedural irregularity that affected the outcome of the matter; and/or
• New evidence that was not reasonably available at the time the determination regarding responsibility was made, that could affect the outcome of the matter; and/or
• The Title IX Coordinator or Deputy Title IX Coordinator, investigator(s), and/or decisionmaker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

A request for an appeal must be submitted in writing to the Office of Institutional Compliance/Title IX by the deadline stated in the notice of outcome and must set forth the grounds upon which the appeal is based and the evidence supporting the appeal.

If a party files a timely appeal, the Office of Institutional Compliance/Title IX will promptly notify the other party in writing and provide a copy of the appeal. The non-appealing party may, but is not required to, submit a written response to the office of Institutional Compliance/Title IX regarding the appeal within five (5) business days from receipt of the copy of the appeal. At the expiration of the deadline for the non- appealing party’s written response, the Office of Institutional Compliance/Title IX shall confirm that the appeal and written response, if any, is timely and shall forward it and any written response to the appeal officer, generally an individual who is external to CNU, within 5 business days of receipt. If an extension beyond 5 business days is necessary, all parties will be notified in writing of the expected time frame. The appeal officer will be a trained and qualified individual who has not had any previous involvement with the formal complaint. The Office of Institutional Compliance/Title IX is responsible for appointing an appeal officer.

If adequate grounds for appeal have been stated, the appeal officer will consider the merits of the appeal. In considering the merits of the appeal, the appeal decisionmaker may review any pertinent materials in the record and meet with the parties and witnesses as needed (meetings will be conducted over the phone or using video conferencing technology). Any information included in the appeal that does not support one of the permissible grounds for appeal shall not be considered in the appeal process.

The decision of the appeal officer shall be final. The decision and the rationale for the decision shall be provided in writing to the Office of Institutional Compliance/Title IX who will then make it available to both parties via a secure electronic platform such as Google Drive within five (5) business days of having received the decision from the appeal officer.

The appeal officer will make every effort to complete their work within twenty (20) business days of having received the appeal. However, depending on the volume of information produced and that the appeal officer maker must review in order to determine an outcome, it may take longer. If an extension beyond twenty (20) business days is necessary, all parties will be notified in writing of the extension.

If an appeal is not filed within the appeal period, the determination of the hearing decisionmaker becomes final and is not subject to further review.

Any sanctions imposed as a result of the hearing are stayed during the appeal process.

The decision of the appeal officer is final.

The hearing process must be managed to ensure all participants receive a fair, impartial, and unbiased experience that allows the decisionmaker to gather information necessary to make a decision for the alleged violations in the case. During the process, all participants must adhere to the following expectations:

General Expectations

Respondents, Complainants, Advisors of Choice, and Witnesses must:

• Listen respectfully to the individual speaking without interruption. 
• Wait to begin speaking until addressed by the decisionmaker. 
• Avoid speaking over other participants. 
• Use respectful language that is not demeaning, derogatory, or disrespectful. 
• Avoid raising their voices. 
• Remain seated in their predetermined locations. 
• Refrain from making distracting or offensive gestures (e.g., rolling eyes, throwing arms in the air, etc.) or audible reactions (e.g., scoffing, speaking under their breath, etc.). 
• For questions about the Rules of Decorum or procedures, a participant should request a break through the decisionmaker, as applicable, to consult with the decisionmaker and Office of Institutional Compliance/Title IX personnel serving as technical assistance for the hearing. 

Violation of Expectations & Procedures 

Determination regarding a participant’s violation of one of these expectations lies with the decisionmaker. If a participant violates an expectation of the Rules of Decorum or the hearing procedures, the decisionmaker will issue a verbal warning, identifying the expectation violated and how it was violated. This notice and rationale will be captured via audio and/or video recording. 

Should a participant continue to violate these expectations or procedures, the decisionmaker will immediately call for a break. During the break, the decisionmaker will address the problematic behavior directly. If the participant refuses to comply with the warning given by the decisionmaker, or causes additional problems, the decisionmaker, may decide to take one or more of the following actions: 

• Implement other methods to address the problematic behavior, as determined by the decisionmaker, that allows the hearing to continue in a fair manner for all participants.
• Remove the participant from the hearing. If the participant removed is an advisor for the complainant or respondent, a new advisor may be appointed by the university to serve as their advisor for the remainder of the hearing. The new advisor is provided at no cost to the party. 
• End the hearing and potentially reconvene at a later date, at the discretion of the decisionmaker in consultation with the Office of Institutional Compliance/Title IX, if the removed participant is the complainant or respondent  

Participants who are affiliated with CNU as either a student or employee may be referred for disciplinary action under another policy.