Formal Procedure for Resolution of Student Sexual Misconduct Charge(s)- Appendix A

See EEO/Title IX web page for Student Title IX/ Sexual Misconduct Policy

Formal Resolution of Sexual Misconduct Complaints

A complainant may elect to pursue a formal resolution, which involves a hearing before the Sexual Misconduct Panel, as more particularly described within this section.  Any student who is a complainant or an accused student in a disciplinary proceeding before the Sexual Misconduct Panel has all of the rights described in the hearing procedures set forth within Appendix A. 

A. Rights of the Student Parties (Complainant and Accused)

Any student who is a complainant or an accused student in a disciplinary proceeding before the Sexual Misconduct Panel shall be afforded the following rights:

1. Accused students shall be informed in writing of the charges against them.  Both the complainant and the accused students shall be provided with copies of pre-hearing materials and shall have adequate time (not less than 10 calendar days) to prepare for a hearing.

2. Accused students shall be assumed “not responsible” until proven “responsible” by a preponderance of the evidence.

3. Students shall have a fair and equitable hearing, with a presumption that the accused student is not responsible for the charges until proven otherwise.

4. Accused students shall not be required to testify against themselves.

5. Students shall have the right to appeal in accordance with the provisions of the KSU SCAI student misconduct procedures.

6. Students have the right to be present during the hearing and to be advised of the sanctions imposed.  Note that a student’s failure to appear after receiving notice of the hearing will not prevent the hearing from taking place.

B.  The Sexual Misconduct Hearing Panel

1. Organization.  The Sexual Misconduct Hearing Panel (the “Panel”) is composed of a minimum of three KSU professional staff and/or faculty members appointed by the SCAI Office.

2. Hearing Panels.  A panel will be convened to hear each case.  Typically, the hearing body will include the SCAI chair, the assistant director of SCAI, and at least three KSU faculty and/or professional staff.  The assistant director of SCAI, or his/her designee, will be responsible, as detailed in Section F. 9 below, for presenting information during the hearing.  The SCAI chair shall preside over the hearing.  Neither the SCAI chair nor the assistant director of SCAI shall have a vote in the deliberations.

3. Function and Authority.  The Panel’s purpose is to hear cases that include allegations of sexual misconduct (including sexual harassment).  The Panel is charged with determining whether the accused is responsible or not responsible for the alleged conduct using a preponderance of the evidence standard and recommending appropriate sanctions.  The Panel is empowered to consider any charge under the SCAI Misconduct Procedures that is linked to a charge of sexual misconduct, following the hearing procedures set forth below. 

4. Training.  Title IX training will be provided through the EEO/Title IX officer or deputies to the SCAI Office and the Panel.

C.  Initiating a Sexual Misconduct Complaint Before the Panel

1. Filing a Formal Complaint.  Any student, faculty member, employee, or guest of KSU may file a formal sexual misconduct complaint against a student.  The complainant must submit a written statement (the “formal complaint”) describing the incident to the EEO/Title IX officer. 

2. Investigation.  Upon receipt of the formal complaint, the EEO/Title IX officer or designee will assign an investigator to thoroughly investigate the allegations.  Investigators are neutral fact finders who, during the course of the investigation, typically conduct interviews with the complainant, the accused student, and third-party witnesses; visit and take photographs at each relevant site, if appropriate; and, where applicable, coordinate with the University Department of Public Safety or other law enforcement agencies.  The completed investigative report typically will include summaries of interviews with the complainant, the accused, and third-party witnesses; photographic, electronic, and forensic evidence, if any; and a list of facts undisputed by the parties.  The investigator will submit a written report and provide it to the EEO/Title IX officer,usually within 60 days of the initial complaint, if not sooner.  Investigators will not communicate with parents of either the complainant or the accused student.  Parents may contact the EEO/Title IX officer with questions about the process; details regarding a specific case will not be shared.

3. Charging Statement.  Upon review of the investigative report and in consultation with the investigator, if the EEO/Title IX officer determines the complaint alleges a sexual misconduct/sexual harassment offense, the SCAI chair shall prepare a statement of charges setting forth the nature, time, and place of the violations, as alleged by the complainant.  The SCAI chair shall provide the charging statement and a copy of the investigative report promptly to the accused by official KSU email.  The SCAI chair also will concurrently provide a copy of the charging statement and the investigative report to the complainant via the same delivery method. [1]

4. Accused’s Response to Charging Statement.  Within five days of receipt of the charging statement, the accused may submit a formal written response to the SCAI Office.  In the event that the charging statement includes other charges under the Student Code of Conduct that are linked to sexual misconduct, the accused may include in his or her formal written response a request that those other charges be adjudicated by the SCAI Panel or a hearing officer separately from the hearing on the sexual misconduct charge(s).  The SCAI director will determine whether or not a separate hearing on the issues other than sexual misconduct will take place.   

5. Preparing for Hearing.  Upon receipt of the accused’s response or lapse of the five-day response period, the SCAI Office shall concurrently provide copies of the Pre-Hearing Materials (including the formal complaint, the charging statement, the investigative report, and the accused’s response (if any)) to the complainant, the accused, and the SCAI chair of the Panel in preparation for a hearing.

6. Multiple Accused Students.  In the event the complaint involves more than one accused student, upon written request to the SCAI Office by any of the accused students within three days of receipt of the Pre-Hearing Materials, the hearings concerning each student may be conducted separately if the SCAI director agrees, after balancing the interests of all involved parties, that fairness warrants separate hearings. 

D. Preparation for the Hearing

1. Setting the Hearing. The SCAI chair sets a hearing time, date, and place and dockets it on the Panel’s records. The chair then gives written notice of the setting to the members of the hearing panel who are to hear the case, the complainant, and the accused.  Notice to the complainant and accused shall be served by official KSU email.  Unless otherwise agreed to by both parties, the hearing date shall not be less than 10 calendar days from the date of service of notice. 

2. Distribution of Additional Hearing Materials, if Any.  Prior to the hearing (and in any case not less than two days before the hearing) the SCAI Office shall provide to the complainant, accused, SCAI chair, and members of the hearing panel additional information pertinent to the case, if any. 

3. Witnesses.  The SCAI Office will try to arrange the attendance of possible witnesses who are members of KSU community, if reasonably possible, who are identified by the complainant and/or the accused at least two business days prior to the hearing date.  The SCAI Office also may identify and arrange the attendance of possible witnesses based on the investigator’s investigation of the formal complaint. 

4. Panel Preparation.  To ensure an efficient and thorough hearing, the hearing panel may choose to meet in advance, without the parties present, to prepare for the hearing and will be given a copy of the Pre-Hearing Materials for review prior to the hearing.  

E.  Personal Support for the Parties

Advisers to the Parties. The complainant and the accused each have the right to have an adviser during the investigation and hearing process. This adviser may attend meetings and any hearing. The adviser may be anyone selected by the party, including, but not limited to, a parent, an attorney, a fellow KSU student, or a KSU faculty or staff member. The role of the adviser is to provide guidance and moral support to the party. However, the adviser does not make statements, present evidence, or call or question witnesses at the hearing.

F.  Hearing Procedures

1. Fair and Equitable Hearing.  KSU is committed to providing a hearing that is fair and equitable to all parties, with a presumption that the accused is not responsible for the charges until proven otherwise.

2. Confidentiality.  The hearings shall be closed and confidential, and any person participating in any aspect of the proceedings must strictly maintain this confidentiality. 

3. Pledge of Honesty.  All witnesses in a sexual misconduct hearing, including the parties, shall pledge to present honest information.  In the event that the accused student is found to be “not responsible” due to inconclusive evidence, the complainant will not be subject to disciplinary action for dishonesty on the grounds of filing a formal complaint.  Likewise, in the event that the accused student is found to be “responsible” by a preponderance of the evidence, the accused will not be subject to disciplinary action for dishonesty on the grounds that the accused student pled “not responsible.”  However, if the SCAI chair has reason to believe that a student lied during the hearing, then the student may be formally accused of dishonesty, which could result in a KSU Student Code of Conduct violation.

4. Role of the SCAI Chair.  The SCAI chair presides and makes all rulings regarding procedure, evidence, and practice.  Formal rules of process, procedure, and/or technical rules of evidence, such as are applied in criminal or civil court, are not used in sexual misconduct/sexual harassment hearings. 

5. Evidence.  No attempt shall be made to apply technical rules of evidence.  In general, any evidence, whether oral testimony or documentary, that is considered by the SCAI chair to be relevant to the charge or defense should be received subject to the power of the SCAI chair to exclude frivolous, repetitive, or merely cumulative testimony.  Hearsay evidence (testimony by a witness to what a person not present at the hearing stated) should be received and evaluated with caution, since no opportunity ordinarily exists to question the absent person.  Circumstantial evidence can receive the same consideration as direct evidence.  Objections to evidence are ruled upon by the SCAI chair.

6. Reputation and Opinion Evidence. Reputation or opinion evidence of past sexual behavior of either the complainant or the accused is not admissible in evidence.  Reliable and trustworthy evidence regarding sexual activity between the complainant and accused shall be admissible at the discretion of the SCAI chair. 

7. Burden and Standard of Proof.  No hearing panel member should vote to find that the person charged is responsible as charged unless, upon weighing all of the evidence, the violation is proven by a preponderance of the evidence.  A preponderance of the evidence means that the information shows that it is more likely than not that the accused student violated this policy.  No hearing panel member should consider any evidence of violation not presented in the hearing.  Whenever the charge is not admitted, no violation is found unless a majority of the hearing panel hearing the matter concurs in finding it. 

8. Provision of Record for Review.  The hearing will be audiotaped.  The audiotape shall be secured in the SCAI chair’s office and shall be released only for purposes of appeal or under court order or subpoena. 

9. General Rules of Procedure.  The hearing shall proceed as follows:

  1. The SCAI chair calls the hearing to order and reviews the rules of procedure for the hearing.
  2. The assistant director of SCAI (“assistant director”), or designee, reads the charging statement.  The SCAI chair asks the accused whether he or she admits to the substance of the charge or declines to admit it.
  3. If the accused admits to the substance of the charge, then the assistant director, or designee, shall read the investigative report.  The accused may then make a statement in mitigation or extenuation and may call a reasonable number of witnesses in substantiation of his or her statement.  Members of the hearing panel may then ask questions of the investigator, the accused, the complainant, and/or the witnesses.  Final remarks may be made by the complainant followed by the accused.  The hearing panel shall then go into executive session to consider and determine the sanction, if any, to be recommended.
  4. If the accused declines to admit to the substance of the charge, the Panel proceeds to hear evidence as to the matters in dispute, normally in the order set forth below.
  5. The assistant director, or designee, gives a brief opening statement that shall include (i) any stipulations of fact and facts that are not disputed; (ii) a summary of the policies the accused is alleged of violating; (iii) a statement concerning the standard of proof; and (iv) a list of witnesses to be called during the hearing and a statement concerning the substance and relevancy of their testimony.
  6. Both the complainant and/or the accused may call the investigator as a witness to be questioned regarding the investigative report.
  7. The complainant and the accused may provide testimony under the direction of the assistant director, or designee, in that order, but neither party is required to make a statement or provide testimony.
  8. The assistant director, or designee, calls non-party witnesses, if any, to testify.  If a potential witness identified by the complainant or the accused is not called to testify, the assistant director, or designee, may state the reason the potential witness is not testifying.
  9. Following the statements of each of the complainant, accused, and non-party witnesses, the assistant director, or designee, may ask questions.  Questions may be suggested by the complainant, accused, or Panel members, with such questions directed to the assistant director, or designee, who will in turn question the witness.  This method is used to preserve the non-adversarial tone of the hearing.
  10. The Panel may ask questions of the assistant director, or designee.
  11. Pertinent records, exhibits, and written statements may be accepted as information for consideration by the Panel at the discretion of the SCAI chair.'
  12. The complainant and the accused may each make final remarks, in that order, but neither party is required to make final remarks.
  13. The Panel then determines in executive session by majority vote whether the accused is responsible for the charge(s).  If the Panel, by a preponderance of the evidence, determines the accused is responsible, then the Panel shall prepare its written decision, which must set forth the Panel’s findings and include sanctions (if any).  The Panel must also prepare a written decision, with specific findings, if it determines the accused is not responsible for a policy violation.  The decision must be signed by all hearing panel members who heard the case.  Any Panel dissenter to the report may file a separate report.

10.  When Accused Does Not Appear.  If the accused does not appear personally, the fact that the accused has been duly notified by KSU email of the time and date of the hearing shall be verified by the SCAI Panel chair.  If it is determined that the accused has not been duly notified, the hearing will be adjourned and the procedures will revert to setting and notification of a rescheduled hearing.  If it is determined that due notice was given, then the hearing will proceed without the accused.

G. Notice of Action.

The Sexual Misconduct Hearing Panel may immediately inform the parties orally of its decision following its determination, or it may defer giving any notice for a period not to exceed two days from formal closing of the hearing.  In any event, the SCAI chair shall, no later than three days from the formal closing of the hearing, give to the accused a copy of the Panel’s written decision.  The SCAI chair shall concurrently give to the complainant a copy of the decision, redacted as necessary to comply with the Family Education Rights and Privacy Act (“FERPA”) and any other applicable privacy laws.  The results of the hearing shall also be shared with the Department of Public Safety. 

H.  Imposition of Sanctions

Standards.  Unless specifically limited by some provision of this policy, in any case where a violation is found or admitted, the Panel may consider as possible sanctions any of the sanctions available under the University Student Code of Conduct.  Sanctions should attempt to fairly fit the sanction to the violation(s) seen in total context and may include, but are not limited to, the following: 

1. Expulsion: permanent severance of one’s relationship with the University;

2. Probated expulsion: further convictions of major offenses, as specified by the Panel, shall result in expulsion; 

3. Suspension: temporary severance of one’s relationship with the University;

4. Probated suspension: notice to the student that further convictions of major offenses, as specified by the Panel, shall result in suspension;

5. Suspension from on-campus housing;

6. Disciplinary probation: notice to the student that any further major disciplinary violation may result in suspension; this action might also include one or more of the following: the setting of restrictions on social activities, the issuing of a reprimand, or other restrictions as determined;

7. Restrictions: exclusion from enjoying or participating in social activities or from holding office in University organizations;

8. Reprimand: Oral reprimand: an oral disapproval issued to the student. Written reprimand: a written disapproval issued to the student;

9. Other educational or developmental sanctions.

The sanctions of expulsion, probated expulsion or suspension, involving loss or interruption of educational opportunity, are appropriate only when the violator’s continued membership in the KSU community is judged to (i) fundamentally be at variance withthe integrity of its educational mission, (ii) pose a specific threat to the minimal internal order of the community, or (iii) pose a specific threat to his or her own emotional health.

I. Finality of Determination by Sexual Misconduct Hearing Panel

Determination by the Panel, both as to the fact of violation and as to the sanction(s) to be imposed, are finally dispositive of the disciplinary proceeding, subject only to the rights of the parties to appeal.

J. Appeal Procedures from Sexual Misconduct Panel Decisions

See Section VII of the SCAI Misconduct Procedures, and incorporated herein by reference.