Formal resolution of a report under the Sexual Misconduct Policy will occur through a Review Panel composed of three members of the General Faculty Professional Conduct Review Committee (Edited Fall 2016 on approval of General Faculty Committee). If there are insufficient eligible members of the General Faculty Professional Conduct Review Committee available, the Co-Chairs will identify appropriately trained faculty alternates to serve on the review panel.
A Review Panel provides an assessment of the evidence gathered in the investigation, as well as any additional information or interviews it deems necessary, to determine if a College policy was violated, and if so, recommend what sanctions are appropriate. This recommendation will be submitted to the appropriate Divisional Dean (or their designee).
Members of the General Faculty Professional Conduct Review Committee who make determinations in sexual misconduct reports must participate in annual training on non-discrimination; the dynamics of sexual and/or gender-based harassment, discrimination and violence, including sexual violence, stalking, and intimate partner violence; the factors relevant to a determination of credibility; the appropriate manner in which to receive and evaluate sensitive information; the manner of deliberation; evaluation of consent and incapacitation; the application of the preponderance of the evidence standard; sanctioning and the College’s policies and procedures. The training will be coordinated by the Title IX Coordinator in conjunction with campus and external partners.
The Review Panel is designed to provide a timely, fair, and equitable consideration of the findings of the investigation. The following guidelines apply to the review process:
Following the threshold determination that there is sufficient information to move forward with a Review Panel, the Co-Chairs of the General Faculty Professional Conduct Review Committee will send a Notification Letter to both the Reporting Party and the Responding Party. The Notification Letter provides each party with a brief summary of the conduct at issue and the specific policy violation(s) that are alleged to have taken place. The Co-Chairs will also notify the appropriate Divisional Dean (or their designee).
Multiple reports may be consolidated against a Responding Party in a single Review Panel, if the evidence related to each incident would be relevant and probative in reaching a determination on the other incident. Matters may be consolidated where they involve multiple Reporting Parties, multiple Responding Parties, or related conduct that would regularly have been heard under other professional misconduct processes.
If the Reporting Party and Responding Party have questions about process, they may consult the Title IX Coordinator, who does not play a formal role in the review.
If a Responding Party wishes to accept responsibility for the charges, they may provide the Co-Chairs of the General Faculty Professional Conduct Review Committee with a written acceptance of the facts of the allegation. In this instance, the role of the Review Panel will be solely to determine appropriate sanctions. The investigative report will serve as the primary evidence in making this determination.
Following the Notice of Charges, the Chairs of the General Faculty Professional Conduct Review Committee will supply the Reporting Party and Responding Party with a list of available committee members within three business days. The Reporting Party and the Responding Party may each submit a written request to the Co-Chairs that a member or members of the committee be removed from consideration as a Review Panel member. The request must clearly state the grounds to support a claim of bias, conflict of interest or an inability to be fair and impartial. This challenge must be raised within 2 business days of receipt of the notice of the Review Panel members.
The Co-Chairs will constitute a Review Panel of three members from the eligible committee membership or designated alternates.
Both parties will be afforded similar and timely access to any documents and information examined by the Review Panel.
The Review Panel will receive all relevant information acquired through the investigation, including written statements, documents, items, or investigative interviews with the parties or witnesses.
The Review Panel will, in ordinary circumstances, meet with and ask questions directly of the Reporting Party and the Responding Party. Both the Reporting Party and Responding Party may choose an advisor to accompany them to their meeting with the Review Panel. The Review Panel may also seek evidence or contact witnesses, whether or not the evidence was previously included or the witnesses were previously interviewed as part of the College’s investigation. In general, witnesses must have observed the conduct in question or have information relevant to the incident and cannot be called solely to speak about an individual’s character.
Prior Sexual History of a Reporting Party: In general, a Reporting Party’s prior sexual history, character or reputation is not relevant and will not be reviewed as evidence. Where there is a current or ongoing relationship between the Reporting Party and the Responding Party, and the Responding Party alleges consent, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties. As noted in other sections of this policy, however, the mere fact of a current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Anyprior sexual history of the Reporting Party with other individuals is typically not relevant and will not be included in the review. In addition, prior sexual history may be considered under very limited circumstances to explain injury or demonstrate motive or intent.
Pattern Evidence by a Responding Party: Where there is evidence of a pattern of conduct similar in nature by the Responding Party, either prior to or subsequent to the conduct in question, regardless of whether there has been a finding of responsibility, this information may be deemed relevant and probative to the Review Panel’s determination of responsibility and/or assigning of a sanction. The determination of relevance will be based on an assessment of whether the previous incident was substantially similar to the conduct cited in the report and indicates a pattern of behavior and substantial conformity with that pattern by the Responding Party. Pattern evidence may also be relevant to prove intent, state of mind, absence of mistake or identity. Where there is a prior finding of responsibility for a similar act of sexual misconduct, there is a presumption of relevance and the finding may be considered in making a determination as to responsibility and/or assigning of a sanction.
After the Review Panel has received all investigative information and any other information or witness statements requested and conducted any additional interviews or fact-finding it deems necessary, it will reach a determination as to whether a violation of College policy occurred by a preponderance of the evidence. This standard means that the Review Panel will decide whether it is “more likely than not,” based upon all of the relevant information, that the Responding Party is responsible for the alleged violation.
The Review Panel will determine whether the Responding Party is responsible, and if so, recommend appropriate sanctions. The findings and any recommended sanctions should be documented in writing and submitted to the appropriate Divisional Dean (or their designee) and the Title IX Coordinator.
Ordinarily, the Review Panel will submit its finding and any recommendations within 20 business days following its constitution by the Co-Chairs of the General Faculty Professional Conduct Review Committee.
A Review Panel that finds a Responding Party responsible for a violation of this policy may impose appropriate sanctions that may include, but are not limited to, those set forth below. Sanctions may be issued individually, or a combination of sanctions may be imposed. The Review Panel will allow the Reporting Party and Responding Party to present a written statement about impact and or request sanctions before determining any sanctions.
- Any faculty member who is determined to have committed sexual assault will likely receive the sanction of termination.
- Any faculty member who is determined to have committed non-consensual sexual contact or any other prohibited form of conduct may receive a sanction ranging from a conduct warning to termination.
In the case of suspension or termination, the Review Panel and Divisional Dean (or their designee) will follow procedures described in the Oberlin College Faculty Guide.
The Review Panel may deviate from the range of recommended sanctions, based upon a full consideration of the following factors:
- the impact of the conduct on the Reporting Party;
- the impact of the conduct on the community, its members, or college property;
- the nature and violence of the conduct at issue;
- prior misconduct by the Responding Party, including the Responding Party's prior discipline or criminal history, both at the college or elsewhere, if known
- whether the Responding Party has accepted responsibility for their actions;
- how the college has sanctioned similar incidents in the past, based upon information about such similar incidents that the Title IX coordinator will provide upon request;
- maintenance of a safe and respectful environment conducive to learning;
- protection of the college community; and,
- any other mitigating, aggravating or compelling circumstances in order to reach a just and appropriate resolution in each case.
The Review Panel may also consider educational strategies that, taking into account the impact on the Reporting Party and the safety of the community as a whole, allows a Responding Party to learn about the origins of their behavior, their responsibility for this behavior, and how they can change this behavior. Such strategies may be suggested in addition to, but not in place of, the recommended sanctions.
Sanctions that may be imposed under this policy include, but are not limited to, the following:
- Warning: Notice, in writing, that continuation or repetition of prohibited conduct may be cause for additional disciplinary action.
- Censure: A written reprimand for violating faculty professional conduct standards or other college policy. This conduct status specifies a period of time during which the faculty member's good standing with the college may be in jeopardy. The party is officially warned that continuation or repetition of prohibited conduct may be cause for additional conduct action including probation, suspension, or termination from the college.
- Training: A requirement that the faculty member receive specific training within a designated time period and at their own expense to prevent further misconduct or discrimination or harassment. Failure to submit documentation of completion of the training within the specified time period may lead to further disciplinary action.
- Disciplinary Probation: Exclusion from participation in privileged activities for a specified period of time. Additional restrictions or conditions may also be imposed. Violations of the terms of disciplinary probation or any other college policy violations may result in further disciplinary action.
- Restitution: Repayment to an affected party, including the college, for damages resulting from a violation of this policy.
- Suspension: For a faculty member, suspension may mean a specified period of removal from some or all duties, with or without pay. Notice of this action will remain in the employment record. Conditions for return to work may be specified in the suspension notice.
- Termination: Permanent separation of the faculty member from the college. Other sanctions may be imposed instead of, or in addition to, those specified here. Service, education or research projects may also be assigned. More than one of the sanctions listed above may be imposed for any single violation. The Review Panel may also recommend remedies for the Reporting Party and remedies for the Oberlin community. On the conclusion of the Review Panel's work, the Title IX Coordinator is responsible for reviewing, adjusting, and implementing these remedies in order to eliminate the hostile environment and prevent its recurrence.
The Divisional Dean (or their designee) will issue an outcome letter simultaneously and in writing to the Reporting Party and Responding Party with the finding and any sanctions the Divisional Dean (or their designee) is determined to impose based on the recommendation of the Review Committee. The outcome letter will ordinarily be delivered within five business days of the Divisional Dean's (or their designee's) receipt of the review panel recommendation.
The letter to each party will include the outcome and the rationale for the outcome. It will also set forth each party's appeal rights, including the time frame for submitting an appeal. Any change in the outcome before it becomes final will also be communicated to the parties in writing. For reports involving sexual violence, the Reporting Party will be fully informed of any sanctions. For all other reports under this policy, the Reporting Party will be informed of only those sanctions that directly relate to the Reporting Party, consistent with all applicable law. Sanctions imposed are implemented immediately unless the divisional dean (or their designee) stays implementation in extraordinary circumstances, pending the outcome of the appeal.
Either party may appeal the outcome letter in writing to the Divisional Dean, who will refer the appeal to the other Divisional Dean (or their designee). This person will serve as the Appeals Officer. The appeal must be filed in writing within five business days of receiving the written outcome. The appeal shall consist of a plain, concise and complete written statement outlining the grounds for appeal and all relevant information to substantiate the basis for the appeal.
The Reporting Party and or Responding Party may appeal only the parts of the outcome directly relating to themselves. Dissatisfaction with the outcome of the review panel is not grounds for appeal. The only grounds for appeal are:
- A procedural or substantive error occurred that significantly affected the outcome of the review panel (e.g. substantiated bias, material deviation from established procedures, etc.).
- New evidence, unavailable to the original review panel or during the investigation despite the reasonable efforts of the party, that could substantially impact the original finding or sanction (a summary of this new evidence and its potential impact must be included).
- Sanctions were significantly disproportionate to the violation.
The receipt of the appeal will be acknowledged in writing (which can include email). The written appeal document will be shared with the other party, and each party will be given the opportunity to respond in writing should they choose to do so. Any response must be submitted to the Appeals Officer within 3 business days from receipt of the appeal. The appeals documents from each party will be considered together in one appeal review process.
In any request for an appeal, the burden of proof lies with the party requesting the appeal, as the original determination and sanction are presumed to have been decided reasonably and appropriately. The Appeals Officer shall first consider whether the appeal is timely filed and if so, whether the appeal is properly framed based on the three grounds. If the Appeals Officer determines that the appeal does not properly fit within one of the three grounds, the appeal will be denied.
If the appeal is based on procedural or substantive error, the Appeals Officer may return the report to the original Review Panel with instructions to cure the error, or in rare cases where the error cannot be cured, the Appeals Officer can ask that a new Review Panel be constituted. In the case of new and relevant information, the Appeals Officer can recommend that the case be returned to the original Review Panel to assess the weight and effect of the new information and render a determination after considering the new facts. Any reconsideration provided by the Review Panel will be communicated as a written recommendation to the original Divisional Dean (the issuer of the outcome letter), who will make any appropriate adjustments to the finding and sanctions. This decision is final.
Appeals are not intended to be full reexamination of the report. In most cases, appeals are confined to a review of the written documentation or record of the original Review Panel, and pertinent documentation regarding the grounds for appeal. This is not an opportunity for the Appeals Officer to substitute their judgment for that of the original Review Panel merely because they disagree with its finding and or sanctions. Appeals decisions are to be deferential to the original review panel, making changes to the finding only where there is clear error. The Appeals Officer can affirm or alter the original findings, depending on the basis of the requested appeal.
Sanctions imposed are implemented immediately unless the Appeals Officer stays implementation in extraordinary circumstances, pending the outcome of the appeal. In cases where the appeal results in reinstatement to the institution or of privileges, all reasonable attempts will be made to restore the party to their prior status, recognizing that some opportunities lost may be irretrievable in the short term.
The Appeals Officer will render a written decision on the appeal simultaneously to the Reporting Party and Responding Party within 15 business days from the date of the submission of all appeal documents by both parties. Appeal decisions are final.
The Title IX Coordinator will retain records of all reports, regardless of whether the matter is resolved by means of Title IX assessment, informal resolution or formal resolution. Reports resolved by means of Title IX assessment or informal resolution are not part of a faculty member's personnel record.
Affirmative findings of responsibility in matters resolved through formal resolution are part of an a faculty member's personnel record. Such records shall be used in reviewing any further conduct, or developing sanctions, and shall remain a part a faculty member's personnel record. When there is a finding of responsibility, the college may elect at its discretion to share this information in a reference or letter of recommendation or a request for verification of employment.