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:
- The SCAI chair calls the hearing to order and reviews the rules of procedure for the
hearing.
- 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.
- 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.
- 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.
- 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.
- Both the complainant and/or the accused may call the investigator as a witness to
be questioned regarding the investigative report.
- 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.
- 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.
- 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.
- The Panel may ask questions of the assistant director, or designee.
- Pertinent records, exhibits, and written statements may be accepted as information
for consideration by the Panel at the discretion of the SCAI chair.'
- The complainant and the accused may each make final remarks, in that order, but neither
party is required to make final remarks.
- 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.
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