Summary of Student Sexual Misconduct Procedures

University of Minnesota Twin Cities

The University is committed to a fair process for responding to reports of sexual misconduct which includes, sexual assault, sexual harassment, stalking and relationship violence and related retaliation. The following describes the process in detail.

Reporting

A student may report an incident of sexual misconduct or retaliation directly to the Office of Equal Opportunity and Affirmative Action (EOAA) by calling or emailing the office to arrange an appointment or by simply appearing in the office. A student can also make a report of sexual misconduct through Ethics Point, the University’s online reporting system.

Once EOAA receives a report the office sends a letter to the reporting student that includes important information about the process, invitesthem to meet with an investigator andprovidesa list of resources.

The EOAA Office also receives reports of sexual misconduct involving students from employees who are required to report per legal guidance from the Department of Education, Office of Civil Rights (OCR) and University policy because they are “responsible employees” which at the University of Minnesota includes supervisors or anyone who advises students.

If EOAA receives a report from a staff or faculty member or in some cases a person outside of the University, EOAA sends a letter to the impacted student inviting them to a meeting with an investigator and providing a list of resources. In a large number of cases students either do not respond or decline to meet with EOAA, in which case EOAA sends a second closing letter that explains the consequences of not investigating, notifies them that they can decide to come forward later and explains that if they experience negative consequences as a result of the report of sexual misconduct they should report it to the University.

In limited circumstances, for example where there is a threat to campus safety, the situation involves extreme violence or the perpetrator is connected to multiple incidents of sexual misconduct, the University will investigate without the agreement of the reporting student(s).

Investigation

Once it is concluded that an investigation should proceed, the EOAA Office determines through the processwhether it is more likely than not that any of the University’s policies related to sexual misconduct or retaliation have been violatedin the situation reported. This is also known as a preponderance of the evidence standard.

There are 7 staff members in the EOAA office who perform sexual misconduct investigations including the Director. In the majority of cases the investigation begins with a meeting with the reporting student to determine their perspective about what occurred. During this initial meeting the investigator will also gather evidence including, but not limited to text messages, emails, other social media communication or medical records. During the initial meeting the reporting student will also be asked to identify other potential witnesses that might include friends or others who were present at or around the time of the incident or with whom the reporting student might have spoken or written to following the incident.

The investigator then proceeds to meet with each of the relevant witnesses, including the accused student and gather other relevant information including, but not limited to police reports, video footage or audiotapes. Before the conclusion of the investigation the investigator will in many cases meet with the reporting student and the accused student a second time.

Boththereportingandaccusedstudentsmaybringanadvisor,advocate, attorneyorsupportperson tothe investigation meetings.AdvocatesfromtheUniversity’sStudentConflictResolutionCenter (SCRC)areavailabletoassistaccusedstudentsthroughtheinvestigation process.AdvocatesfromtheAuroraCenterareavailabletoassistreportingstudentsin the investigation process.

Each investigation is performed on an individualized basis that could require a deviation from the process described. For example it might be necessary to meet with any witness or one of the parties more than one or two times.

The primary investigator prepares a written report of the investigation,which contains the following:

  • Background and Procedure – a description of the parties, the complaint and the process used in the investigation.
  • Allegation and Response – a summary of the facts from the perspective of all parties and a description of other evidence gathered.
  • Analysis and Findings – a statement of the relevant policies and subdivisions of the Student Conduct Code and analysis of the facts as applied to the policies and specific definitions in the policies including affirmative consent, sexual harassment, sexual assault, stalking, relationship violence and retaliation.[1]
  • Conclusion –a determination as to whether or not a violation of the Student Conduct Code or any University policy occurred as a result of the facts alleged.

Each member of the EOAA staff reviews a draft of the investigation report. The EOAA staff then meets together to discuss the case and provide feedback to the primary investigator. The primary investigator incorporates the feedback, which sometimes includes further investigation, and prepares a final report. The Director reviews the final report of the investigation and findings,which are then forwarded to the OfficeforStudentConductandAcademicIntegrity(OSCAI).

Sanctioning/Informal Resolution

OSCAI reviews the investigation report and refers to a set ofsanctioning guidelines that consider the nature of the offense in order, to propose an informal resolution. AspartoftheUniversity’sinformalresolutionprocess, and in compliance with federal law,OSCAIinformsbothpartiesin writing of:(1)theoutcomeoftheEOAAinvestigation, including a copy of the report;and(2)aproposedresolution.Ifbothpartiesagreetotheoutcomeandproposedresolution,theUniversitydisciplinaryprocessis concluded.

Similarly students may bring an advisor, advocate, attorney or support person to any meetings with OSCAI.

Student Sexual Misconduct Subcommittee Hearing

If eitherpartydisagreeswiththe outcome of the investigation or the proposed informalresolutionthey canopttoinitiatetheUniversity’sformalresolutionprocess facilitated by the University Senate.Inthisformalprocess,thepartiesareaffordedahearingbeforea trainedpaneldrawnfromthe Student Sexual Misconduct Subcommittee(SSMS) of the Campus Committee on Student Behavior (CCSB)[2].

The SSMS is being implemented for the first time this fall and was developed last spring and summer by a workgroup comprised of representatives from EOAA, OSCAI, the Office of Student Affairs, the Senate Office and the Office of the General Counsel. The workgroup submitted a proposal, which was accepted, to the Provost for the formulation of the SSMS. The primarygoals for developing the SMSS were to shorten the amount of time it takes to process sexual misconduct cases and to make sure that panelists receive sufficient training. The workgroup had a strong response to requests for applications and selected a highly qualified group of panelists who received 10 hours of training in August 2016 and will receive an additional 10 hours through the remainder of the school year on how to effectively adjudicate sexual misconduct cases. To date the panel has received training in the specific areas of:the University policy and relevant definitions, stages of the review process, sanctioning decisions, support resources for students, implicit bias and evaluating credibility.

Hearings are presented to 3 to 5 panelists who perform a de novo review of each case. Although the panelists will receive a copy of the investigation report and a rebuttal statement from the student who requested the hearing, they consider the testimony and evidence presented at the hearing anew. If the student requesting the hearing relies on an advocate from the Student Conflict Resolution Center or other non-lawyer representative to represent them in the hearing then staff from OSCAI presents the case to the hearing panel on behalf of the University. If a lawyer represents the student requesting the hearing, a lawyer from the Office of the General Counsel will present the case on behalf of the University of Minnesota. If the reporting student requests the hearing and either student has an attorney, the University’s attorney will present the case.

At the request of either party, certain practical measures are employed during the hearing so that the reporting and accused students are never in each other’s presence. The panel also makes a decision based upon the preponderance of the evidence standard and may change the findings and/or the sanctions determined by EOAA and OSCAI. Finally, the panel prepares a written decision of their determination which is reviewed by the Office of the General Counsel before it is circulated to the parties.

Appeal to the Provost

After the conclusion of the formal hearing, the parties will receive the resolution and eitherpartymayappealthe decision of the SMSS to the Provost or their designee as outlined in the Student Conduct Code: Twin Cities Procedures.

The Notice of Appeal must be submitted to the Provost’s Appeal Secretary within five weekdays of receipt of the original disciplinary decision.A student found to have violated Board of Regents Policy: Student Conduct Code or the reporting party in a sexual misconduct case would then be provided with an additional five weekdays for submission to the Provost’s Appeal Secretary of a written statement specifically identifying the ground(s) for the appeal, explaining why the ground(s) for appeal are met, and providing any supporting documentation.[3]

The appellate officer will strive to issue a final decision within 30 calendar days of the notice of appeal.The appellate officer will provide simultaneous written notice to the accused student, the reporting party, and the chair of the hearing body.

Given the growing number of appeals, in part due to the requirement by the OCR to offer appeal rights to both parties, it has become unworkable for the Provost/Chief Academic Officer to review the current volume of these complex cases. The Student Conduct Code: Twin Cities Procedures states:

The Provost serves as the appellate officer, unless the Provost authorizes another administrator who holds a position of campus-wide scope to serve as the appellate officer in the Provost’s place.

Accordingly, the Provost shall designate the Vice Provost for Student Affairs/Dean of Students as the appellate officer.

Retaliation

Retaliatoryconductincludesanyformofintimidation,reprisalorharassmentagainstindividualsforreportingorotherwiseparticipatinginaUniversityinvestigation, hearing or appealofsexualmisconductorretaliation.RetaliationcanalsoincludesharinginformationaboutacomplaintorinvestigationwithotherUniversitymemberswhodonothaveaneedtoknow. Parties and witnesses are reminded throughout the process about the prohibition against retaliation.

1

[1]Relevant University policies include the Student Conduct Code, the administrative policy on Sexual Assault, Stalking and Relationship Violence and both Board of Regents and the administrative policy against Sexual Harassment.

[2]Members of the CCSB review all other potential violations of the Student Conduct Code, not including sexual misconduct.

[3]Appellate review of sexual misconduct cases is a review of the record to determine whether a serious error occurred in the original proceeding that resulted in unfairness. Appellate review respects the credibility judgments of the hearing body, and respects the hearing body’s determinations as long as there is any evidence to reasonably support them.