WHAT ARE MY RIGHTS AS A STUDENT?
The Federal Campus Sexual Assault Survivor’s Bill of Rights, which exists as part of the campus security reporting requirements commonly referred to as the Clery Act, provides for the following:
- Survivors shall be notified of their options to notify law enforcement;
- Accuser and accused must have the same opportunity to have others present during the investigation and/or hearing;
- Both parties shall be informed of the outcome of any disciplinary proceeding;
- Survivors shall be notified of counseling services; and
- Survivors shall be notified of options for changing academic and living situations.
What are my options for reporting?
You have many options to consider, which include reporting to the local police, campus police, or campus officials. Depending on the type of sexual misconduct you are reporting, there may be an informal resolution process as well as a formal resolution process available to you on campus.
Should I report to local police or campus police?
If you choose to report to law enforcement, you should report to the agency with jurisdiction over the location of the incident. If you were assaulted on campus, you should report to the campus police department. If you were assaulted off campus, you should report to your local police department.
Can I make a report but keep my identity confidential?
On most college campuses, licensed professional counselors in your institution’s student counseling center are not required to report a sexual assault that in any way identifies a survivor without the survivor’s consent. If, however, there is an imminent threat of danger, the counselor is required to take action in order to protect whoever is at risk.
While counselors may encourage you to make a report to your campus police department or your institution’s Title IX Coordinator (for more information about Title IX, click here), counselors are typically the only campus employees who are not required to disclose sexual misconduct to a Title IX Coordinator. Regardless of where the assault took place, you can speak with a counselor without having to file a report with campus authorities or the local police.
Are there instances where my identity will not remain confidential?
Yes. Institutions that receive federal Title IX funding now require many employees to report to campus authorities when they learn of a sexual assault. Counseling staff are exempt from mandatory reporting.
While most institutions cannot guarantee absolute confidentiality of a survivor when reporting a sexual assault, there are typically protections in place against retaliation for your participation in a report or investigation. Anyone who, in good faith, participates in a report or investigation has the right to do so without fear of or actual retaliation. A report can be filed with a Title IX Coordinator if someone believes they have been the subject of retaliation.
What is the informal resolution process and when is this option available?
Informal resolution means that no formal investigation occurs and disciplinary action is not required as a result of the incident. Many schools allow complainants to informally resolve certain sexual harassment claims instead of or before filing a formal complaint. If the complainant wishes to pursue the issue further, the formal campus procedure may be available. However, that is not the case at all institutions.
The informal process is generally not permitted for sexual violence cases, and it may only be available if the incident involves two students of the institution.
What are the potential options for informal resolution?
Options may include:
- A consultation where the victim communicates directly with the alleged perpetrator,
- Working with the appropriate department/unit to modify the situation in which the offending conduct occurred,
- Arranging and attending a meeting between the alleged perpetrator and the appropriate administrator to discuss the requirements of the institution’s policy on sexual misconduct, and/or
How do I initiate the informal resolution process?
Contact your institution’s Title IX Coordinator.
What is the formal resolution process and when is this option available?
When the conduct is severe, such as sexual assault, the institution will initiate a formal process to resolve the complaint. The formal process involves the submission of a written complaint, a formal investigation into the facts alleged in the complaint, and the possibility of disciplinary action against the alleged perpetrator.
How do I institute the formal resolution process at my institution?
Talk to your Dean of Students, Title IX coordinator, or other designee. Each university receiving federal Title IX funds is required to have a designated person or department to receive formal complaints. Check your institution’s website or student handbook.
You may be asked to complete a complaint form to initiate the process. At this point, the survivor is considered the complainant and the alleged perpetrator is the respondent. Some universities will review the complaint form, assign the matter to a coordinator or investigator, and then advise the complainant of the name and contact information of the investigator. An initial meeting will follow.
What happens at the initial meeting with the Title IX Coordinator or investigator?
At this meeting, the investigator will ask you about the circumstances and events that gave rise to your report. The investigator will generally give you a copy of the institution’s sexual misconduct policy, explain the process to you, and explain to you the options you have for reporting to law enforcement. He or she may also give you counseling referrals and other resources to help you cope with the experience.
Consider bringing someone with you to the initial meeting with the Title IX coordinator, such as a counselor, a friend, or someone you trust. Because this is an emotional and difficult situation, it is a good idea to have someone with you to help you understand the process and your options.
What are my options for confidentiality at this point?
At the initial meeting, you will also learn about your options for confidentiality and the impact confidentiality may have on the institution’s ability to fully investigate. Any request for confidentiality will generally be honored to the extent possible without compromising the university’s obligation to investigate allegations of sexual misconduct. There are many individuals who have an obligation to report and may not be able to honor a request for confidentiality while balancing the requirements to report under the Clery Act.
Will the institution provide any protection to me during the investigation?
The institution may implement interim measures if appropriate to ensure the complainant’s safety and to limit potential retaliation. Such measures may include:
- Campus no-contact orders
- Escort or transportation assistance
- Housing or employment assignments
- Class schedule modification
- Restrictions from specific activities or facilities
A suspected perpetrator’s failure to adhere to the interim measures may constitute a separate violation of the institution’s sexual misconduct policy.
How long does the formal resolution process last?
While each institution’s average resolution timeframe may differ, the institution will make all reasonable efforts to investigate and resolve each complaint. Many institutions attempt to resolve the complaint (not including possible appellate options, which are discussed below) within sixty (60) days of the complaint.
Is the alleged perpetrator involved with the investigation?
Once the institution receives a complaint, it will provide notice of the allegations in writing to the respondent with a copy of the institution’s sexual misconduct policy and procedures. The institution will also provide the complainant with a notice of allegations to the accused. The respondent will likely be asked to provide a response within a certain period of time.
Because of federal privacy laws, including FERPA, many institutions do not allow either party to have a copy of the investigation file. However, they will generally allow a student and the student’s representative to review the file and take handwritten notes.
How does the investigative process work?
Many institutions have an investigation and findings stage. This may begin before or after a response is received from the accused. The investigator is neutral and will provide both the complainant and the accused an opportunity to respond in person or in writing, submit documents, and present witnesses.
The investigation is usually conducted by the University’s Title IX Coordinator and their staff. The investigator will conduct interviews of the accused, the complainant, and other witnesses. The investigator will also review the evidence.
What happens after the investigator completes the investigation?
Once the investigation is complete, the investigator may issue a report. The report may include summaries of interviews, photographs, descriptions of relevant evidence, and a detailed description of the incident and related events.
Next, there will generally be a hearing conducted in front of a panel. This hearing goes by various names such as “a due process hearing,” “formal hearing,” or “conduct conference panel.” The complainant does not present any evidence or witnesess. The complainant typically will only be a witness at the hearing. The parties at the hearing are the university officials and the accused.
What is the purpose of the due process hearing?
The purpose of the hearing is to allow, the accused, to present his/her perspective of the events which led to the charges alleged against him/her and to determine what sanction, if any, will be taken in reference to the charges made against him/her. The accused will have the opportunity to provide documentation and/or witnesses who have first-hand knowledge of the incident(s) resulting in charges.
Who will conduct the due process hearing?
The institution’s policy will govern the makeup of the hearing body or board. The hearing could be before a panel of several campus officials. Additionally, many universities have students on their panel.
What is the burden of proof at the due process hearing?
The panel/hearing officer will generally make its decision based on a preponderance of the evidence. This standard is much lower than the standard in a criminal trial, which requires guilt to be determined beyond a reasonable doubt. A finding of violation based on this standard means it is more likely than not that the accused violated the institution’s sexual misconduct policy. Another way to think about this standard is to ask yourself the question: Is it more than 50% likely that the accused violated a university policy or rule?
Can I find out what testimony and information will be presented during the hearing?
Prior to the hearing, the Title IX Coordinator will generally advise both the complainant and the accused of the names of any witnesses and a brief summary of their expected testimony and the name of any advisor that will attend the hearing and whether that person is an attorney. Whether or not the complainant or the accused receives an advisor will vary by institution.
What is the role of an advisor at the due process hearing?
The role of the advisor will vary by institution. Some institutions may only allow an advisor to sit with the advisee and communicate quietly with the advisee orally or in writing. The advisor may or may not have the ability to speak on an advisee’s behalf and may or may not have the ability to make an opening or closing statement, present evidence, or question witnesses. Some institutions only allow the advisor to be an attorney if there are also pending criminal charges against the accused.
Can I attend the due process hearing and provide evidence?
The complainant and the accused will receive notice of the hearing and the right to attend. Most universities expect the accused’s presence at the hearing and expect the complainant to provide testimony at the hearing; however, neither the complainant nor the accused will be compelled to attend. The accused and the university officials may be allowed to present evidence. If you wish that the university submits certain evidence at the hearing, submit your evidence in a timely fashion to make sure your institution will allow it to be considered during the hearing. Generally, the university will require you to submit any documentation or evidence that you wish to present to the hearing panel at least one full business day prior to the start of the hearing.
The party wishing to present a witness will generally be responsible for securing that witness. If a witness who is helpful is not available, an affidavit can usually be admitted. Generally, the university will require you to submit a list of witnesses in writing at least one full business day prior to the start of the hearing.
What happens at the due process hearing?
The hearing will generally commence with a brief introduction from the hearing chairperson to introduce the individuals and explain the hearing process. The hearing is generally an internal institution process rather than a formal court proceeding. Thus, the rules of evidence and formal courtroom procedures will typically not apply.
The university officials and the accused may have the opportunity to present opening statements. The university and the accused will have the ability to present his or her evidence to the panel, which may consist of documents and testimony from witnesses. Many institutions do not allow the other party to cross-examine witnesses directly. Instead, they may allow the other party to present written questions to the panel prior to the hearing or at the hearing. There is no guarantee that the questions will be asked by the panel. The panel will generally decide whether the question is relevant and may rephrase the question or decline to ask the question entirely.
Once the panel has heard all of the evidence, they will make a decision. The decision will consist of a finding of “not responsible” or “responsible” for each charge. If the accused is found responsible, then the panel will decide what sanctions to impose. The panel will provide a decision within a certain time period and will generally provide a written decision to the complainant and the accused.
For some institutions, this is the end of the formal process. The hearing decision becomes final. For others, either the complainant or the accused may appeal the panel decision. The sanctions imposed will generally remain in place while the party appeals the hearing decision.
What are some of the possible sanctions?
Possible sanctions include, but are not limited to:
- Termination of employment
- No-contact orders
- Expulsion or suspension
- Probation (disciplinary and academic)
- Mandated counseling
- Revocation of admission or degree
- Monetary restitution
- Mandatory withdrawing from a course with a grade of W, F, or WF
- Banning from campus organizations
How and when will I be notified of the decision and sanction (if any)?
The findings are generally provided to the complainant and the accused simultaneously. The findings will be provided in writing, and the institution will notify both the complainant and the accused of any appeal rights under the university’s policy.
What can I do if I disagree with the finding or the imposed sanction?
Generally, both the complainant and the accused have the right to appeal the decision or finding. Although each institution has slightly different procedures, the complainant and accused may contest the finding and/or sanction imposed, which will result in what is often referred to as a “due process hearing.” The deadline to appeal may come quickly (sometimes in as little as five days), so be sure and identify the relevant deadline.
If my institution allows an appeal of the panel decision, what is the process?
Some institutions may have limited, specific grounds for appeal, including the following circumstances:
- The discovery of previously unavailable relevant evidence;
- A claim of substantive procedural errors in the investigation proceedings or the hearing; or
- A claim that the finding was not supported by the evidence, and/or the sanction imposed is disproportionate to the finding.
The appellate body will review the appeal and notify the parties of the decision. The finding of the appellate body is the final step in the formal process.
At some institutions, a hearing is conducted before an appellate body to review the initial findings, sanctions, or both. At others, the written appeal is considered without a rehearing.
Are there any other safety and accommodation options available to sexual assault survivors?
Regardless of whether you are attending an institution governed by Title IX, sexual assault survivors can also seek restraining orders and protective orders through the local police department and courts, regardless of whether a report is filed. These are options to be considered even if the perpetrator is not a student at the same institution.
Where can I find additional resources?
Many universities provide counseling, student support groups, and other services. Check your university website, health centers, counseling centers, and student life departments for more resources.