Sexual Misconduct Formal Complaint Investigation Process

The Office of Institutional Compliance/Title IX is responsible for overseeing and coordinating the investigation of formal complaints of sexual misconduct filed under policy 1100 by issuing written notice of allegation, reminders, notice of completion of the investigation, answering questions about the investigation process, checking in with the parties and the assigned investigator, and providing supportive measures and resources to the parties. The investigator who is assigned to conduct the investigation is responsible for gathering relevant evidence and writing an investigative report that fairly summarizes all relevant evidence. The investigation report does not contain a recommendation, finding, or determination regarding responsibility.

• Every effort will be made to complete the investigation and hearing process (excluding any appeals, pauses for exploration of the informal resolution process, federal and state holidays, and days CNU is not open for regular business operations) no later than 90 business days after Written Notice of Allegation of Formal Complaint is issued to the parties by The Office of Institutional Compliance/Title IX. Parties will be informed in writing of any extensions of timeframe and the rationale for such extensions. Parties may also request extensions by contacting the Title IX Coordinator or Deputy Title IX Coordinator in writing. If an extension is granted it will be extended to both parties and parties will receive written notice of the extension.
• Meetings and interviews conducted by the investigator are conducted over the phone or using video conferencing technology.
• Evidence and information are shared with the complainant, respondent, and their advisors of choice using a secure electronic platform such as Google Drive.
• The complainant and respondent may have an advisor of choice with them at all meetings and proceedings for the investigation and hearing process.

Formal Complaint Investigation Phases
The formal complaint investigation process is divided into distinct phases:

• Phase 1: Evidence Collection
• Phase 2: Evidence Review and Response
• Phase 3: Draft Investigation Report Review and Response
• Phase 4: Final Investigation Report Review and Response/Referral for Hearing

After the Office of Institutional Compliance/Title IX has received a written formal complaint from the complainant and received confirmation from the complainant of their intent to file a formal complaint, the Office of Institutional Compliance/Title IX will issue written notice of allegation of the formal complaint to the respondent and the complainant.

Notification of allegation of formal complaint generally states and includes:

• The approximate date, time, and location of the alleged incident and the names, if known, of the complainant and respondent.
• A description of the incident(s) that is(are) the focus of the formal complaint and access to the full formal complaint submitted by the complainant to the Office of Institutional Compliance/Title IX so that the respondent and complainant have full access as soon as possible and before they would be expected to make statements for an investigation.
• The specific policy alleged to have been violated and that if other allegations are uncovered during the course of an investigation, the Office of Institutional Compliance/Title IX will send written notification of additional allegations to the parties.
• Information regarding formal complaint investigation procedures, hearing procedures, and informal resolution procedures.
• Information about reasonably available supportive measures.
• The right of the complainant and respondent to bring an advisor of their choice to any meetings and proceedings, information on the role of the advisor in procedures, and how to notify the Office of Institutional Compliance/Title IX of their choice of advisor so the advisor may have access to all formal complaint materials the parties have access to.
• The presumption that no policy violation has occurred unless proven otherwise by a preponderance of the evidence at the conclusion of a hearing and that in conducting the investigation the assigned investigator serves fairly and impartially and that the Office of Institutional Compliance/Title IX oversees and conducts formal complaint processes in a fair and unbiased manner.
• The right of the respondent to inspect and review the formal complaint submitted by the complainant, before participating in an investigative interview or submitting a response.
• The name of the individual assigned to conduct the formal complaint investigation (if one has been assigned at the time notice of allegation is issued) and that the investigator does not issue any findings or recommendations.
• The equal opportunity of both parties to have sufficient time to prepare before participating in investigative interviews.
• The equal opportunity of both parties to submit evidence and inspect and review evidence submitted.
• The equal opportunity of the complainant and respondent to have 10 business days upon receipt of access to the evidence to submit a response to the evidence collected before the investigator drafts the investigation report.
• The equal opportunity of the complainant and respondent to have 10 business days upon receipt of the draft investigation report to submit a response to the investigator.
• The equal opportunity of the complainant and respondent to submit a final response to the investigation report no later than 5 days prior to a scheduled hearing.
• The prohibition against retaliation for parties participating in procedures under Policy 1100.
• That parties are instructed to preserve any potentially relevant evidence in any format.
• That the formal complaint investigation is the only opportunity prior to a hearing for the complainant and respondent to submit evidence and statements.
• That the formal complaint investigation is the only opportunity prior to a hearing for the investigator to receive submissions by witnesses.
• How to schedule an appointment with the Office of Institutional Compliance/Title IX to ask questions regarding the procedures and discuss supportive measures.
• Notification that participation in the investigation and hearing process is voluntary, and that the Office of Institutional Compliance/Title IX, assigned investigator, and assigned decisionmakers welcome and encourage participation by parties but have no mechanism to compel parties to participate or provide information.
• How to request reasonable accommodations for a disability in order to be able to participate in the formal complaint process.
• Information about applicable transcript notation for respondent.

Transcript Notation
If a student respondent withdraws while under investigation for an allegation of sexual misconduct, a notation will be placed on the student respondent’s transcript. The notation will read:

• Withdrew while under investigation for a violation of university policy 1100.

In cases where a student respondent is found responsible for and suspended or dismissed for sexual misconduct a notation will be placed on the student respondent’s transcript. Such notations will read, as applicable:

• Dismissed for a violation of university policy 1100.
• Suspended for a violation of university policy 1100.

Removal of transcript notations is governed by Policy 9045: Transcript Notation Removal Policy.

Complainants and respondents have the right to have an advisor of choice present with them at any meetings and proceedings for the formal complaint process. An advisor of choice may be anyone a complainant or respondent chooses and may be but is not required to be an attorney. The complainant and respondent may need to provide written permission for their respective advisor of choice to directly receive access to the investigation report and the evidence by contacting the Office of Institutional Compliance/Title IX at titleixic@cnu.edu and completing the “Advisor of Choice Authorization” form provided with Notice of Allegation.

An individual may choose different individuals to serve as their advisor of choice for different phases of the investigation and overall process. Each time a party changes advisors of choice during the formal complaint process, the party is asked to contact the Office of Institutional Compliance/Title IX at titleixic@cnu.edu and complete and submit the Advisor of Choice Authorization form.

• Generally, a witness should not be an advisor of choice.
• CNU does not provide advisors of choice for the investigation phase of the formal complaint process.

The advisor of choice may speak directly with the party they are providing support for and may ask clarifying questions about policy and procedure of the Office of Institutional Compliance/Title IX and the investigator. However, an advisor of choice may not speak for the party they are supporting during the investigation of the formal complaint.

After written notice of allegation of formal complaint is delivered to the complainant and respondent, the assigned investigator will begin the investigation by making contact with the complainant and respondent separately. The assigned investigator is responsible for gathering information for the investigation and writing the investigation report, and will generally follow the procedures listed here. The investigation report does not include any findings, recommendations, or assessments of credibility. The assigned investigator does not serve as the decision maker in sexual misconduct formal complaint hearings.

The complainant, respondent, and witnesses are invited to participate in the investigation process and may submit any information, including their own written statement, that they would like to submit for the investigation with the understanding that the complainant, respondent, and their advisors of choice will have full access to all materials collected by and submitted to the investigator for the formal complaint investigation.

The investigator will collect information and evidence which includes interviewing parties who elect to participate and collecting and accepting documentation, information, and statements from parties. The time frame for evidence collection may vary depending on the overall scope of the investigation, the volume of evidence, and the availability and responsiveness of the complainant, respondent, and witnesses to requests made by the investigator.

At any point during the investigation, the investigator in consultation with the Office of Institutional Compliance/Title IX may determine it is necessary to extend or reopen the periods for evidence collection and/or review. In such cases, timelines for evidence collection or review may be modified by the Office of Institutional Compliance/Title IX. Parties will be notified of any such decisions and rationale in writing.

Voluntary participation, submission of information, and evidence
Participation in the formal complaint investigation and hearing process is voluntary for the complainant, respondent, and witnesses. CNU, as well as the assigned investigator, have no mechanism for compelling individuals to participate.

The assigned investigator is responsible for collecting evidence for the investigation and does not have a mechanism for compelling individuals or agencies to share documents, video, and audio that may be relevant to the investigation of a formal complaint including but not limited to medical reports, educational records, correspondence (either electronic or mailed) that may have taken place between parties involved, surveillance video, police reports, personal text messages, phone records, other electronic communication, pictures, video, maps, room layouts, etc. If the assigned investigator or the Office of Institutional Compliance/Title IX is unable to obtain such information, parties who wish to include any such information may submit it directly to the investigator.

Privileged Information
The Office of Institutional Compliance/Title IX and the assigned investigator cannot access, accept, consider, disclose or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional or paraprofessional’s capacity, or assisting in that capacity, and which are made or maintained in connection with the provision of treatment to the party, unless the party voluntarily provides written consent to the Office of Institutional Compliance/Title IX and the assigned investigator to include the information in the investigation. If the complainant or respondent voluntarily elect to submit information for the investigation that would be considered privileged, they must complete and return the “Consent to Include Privileged Information” form provided to them with written notice of allegation. A copy of the form must accompany each submission.

Participation of witnesses-collection of witness statements and documents
During the investigation all witnesses are treated as incident witnesses who are invited to share any information they have and to represent their own and not another party’s perspective. Incident witnesses are individuals who are believed to have information about the incident(s) that is (are) the focus of the formal complaint investigation. Generally, the investigator will identify incident witnesses to contact for the investigation of the formal complaint. The complainant and respondent may also identify witnesses. However, such witnesses will not be classified by the investigator as “complainant witnesses” or “respondent witnesses” and instead will be considered incident witnesses. The complainant and respondent may also elect to submit statements they have gathered independently from witnesses for the investigation. The statements may be classified as incident witness statements and the investigator may still attempt to make contact with the incident witness for information gathering purposes. While the investigator will make reasonable attempts to reach out to all potential witnesses, there is no mechanism to compel witnesses to participate. Generally, a witness should not be an advisor of choice.

All evidence collected during the information/evidence collection period will be made available to the complainant and respondent and their respective advisors of choice for review for a period of 10 business days via a secure electronic platform such as Google Drive.

The complainant and respondent will each have until the conclusion of the 10-business day period to submit a written response to the evidence directly to the investigator. The investigator is not required to accept late submissions.

Upon receipt of timely responses, the investigator will determine whether evidence collection and review should continue or whether to proceed to writing the investigation report. If evidence collection and review will continue, the investigator or the Office of Institutional Compliance/Title IX will notify the parties of the continuation.

After the evidence review and response period, the investigator will write a draft investigation report. Upon completion of the draft investigation report, the investigator will make the draft investigation report available to the complainant and respondent and their respective advisors of choice via the secure electronic platform being used for the investigation for review and response. The complainant and respondent will each have until the conclusion of the 10-business day review and response period to submit a written response to the draft investigation report directly to the investigator. The investigator is not required to accept late submissions.

Upon receipt of timely responses, the investigator will determine whether investigation activity should continue or if the draft investigation report can be finalized. If the investigator determines that investigation activity will continue, the investigator or the Office of Institutional Compliance/Title IX will notify the parties of the continuation.

Investigation Report
In the report, the investigator will present a fair summary of all relevant evidence but will not present findings, make recommendations, or weigh credibility.

Information that pertains to the sexual predisposition of the complainant will be excluded from the report. Information about the complainant's prior sexual behavior will also be excluded unless such information is offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if it concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and is offered to prove consent.

When the complainant and respondent are notified and receive access to the final investigation report, they will also be notified that the investigation portion of the formal complaint process has concluded. They will receive instruction regarding submitting a final response to the final investigation report (must be received no later than 5 business days prior to the scheduled hearing) and they will be informed that within a set period of time they will receive Written Notice of Hearing.

• The Office of Institutional Compliance/Title IX will retain a copy of the final investigation report as required by applicable institutional, state, and federal policies.
• The Office Institutional Compliance/Title IX will continue to provide reasonably available supportive measures to the complainant and respondent.
• The Office of Institutional Compliance/Title IX coordinates the hearing process for formal complaints but Office of Institutional Compliance/Title IX personnel do not serve as decisionmakers in formal complaints.
• The individual assigned as the investigator for the formal complaint may appear at the formal complaint hearing to provide an overview of the investigative procedures and to answer questions about procedures but will not provide any recommendations, conclusions, or assessments of credibility.
• The complaint, respondent, and their advisors of choice will retain their electronic access to all information gathered for and during the investigation including the original formal complaint, the notice of allegation and any amended or additional notices of allegation, evidence (including statements from parties and witnesses), relevant evidence, the draft investigation report, final investigation report, responses to the evidence, and responses to the draft investigation report in order to participate in the hearing process.