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CSBSJU Sexual Misconduct Complaint Procedures - PART II

for

The College of Saint Benedict and Saint John's University

 

TABLE OF CONTENTS

PART I 
I. Introduction
II. Responsibility
III. Policy Statement
IV. Definitions
V. Institutional Response
VI. General Provisions

 

 

PART II
VII. Procedure
A. Complaint Procedure for Complaints in which the Respondent is a Student
B. Complaint Procedure if the Respondent is a Faculty or Staff Member
B1. Complaint Procedure for Complaints of Sexual Assault, Dating Violence, Domestic Violence, and Stalking
B2. Complaint Procedure for all other Complaints of Sexual Misconduct
C. Complaint Procedure if the Respondent is an Associate or Third Party
VIII. External Complaints
IX. Contact Information


 

 

VII.     PROCEDURE 

The procedure followed by CSB and SJU to resolve sexual misconduct complaints will vary depending on the status of the respondent. Procedure VII. A. will be followed in all cases in which the respondent is a student. Procedure VII.B. will be followed in all cases in which the respondent is a member of the faculty or staff. Procedure VII.C. will be followed in cases where the respondent is an associate/third party.

A. Complaint Procedure for Complaints in which the Respondent is a Student


The following constitutes the steps which make up the complaint process when the respondent is a student.

Step 1: Initiation of Complaint Proceeding

Any member of the community may initiate a complaint proceeding. The complaint proceeding may be initiated at the request of the complainant upon making a report to a Dean of Students, SJU Life Safety, or CSB Campus Security. Students at the SJU School of Theology·Seminary may alternately submit their report to the Rector or Dean of the School of Theology·Seminary, who will then refer the matter to the Dean(s) of Students. The report should contain sufficient detail to enable the Dean(s) of Students to make a determination as to whether the complaint falls within the Policy. When a complaint proceeding is initiated, the institution(s) may ask that the reporting party verify a written summary of an oral report. Reporting forms are available on the CSB and SJU Sexual Misconduct web page.

Upon receiving a report of a violation of the Policy, the institution(s) will seek the alleged victim's cooperation to proceed with a complaint proceeding using the Procedures set forth herein. In addition, circumstances may arise in which a complaint proceeding may be initiated (even without the alleged victim's participation) to protect the safety, integrity and welfare of the community as a whole. Generally, the Lead Title IX Coordinator(s) or designee(s) will make a determination of whether a complaint proceeding should be initiated. If the institution(s) decide that it has an obligation to move forward with a complaint proceeding regarding the alleged Policy violation, prior to proceeding with the complaint process, they will notify the alleged victim of their decision and of the option to have the institution(s) inform the respondent that the alleged victim did not want to initiate the complaint process.


The institution(s) will accept anonymous complaints, but the institution(s) may be limited in their ability to investigate an anonymous complaint.  See Sexual Misconduct Policy, Section III.A.4. - Anonymous Reporting.

Options for Resolution

When a complainant chooses to initiate a complaint proceeding, there are two avenues for resolution: formal and informal resolution. The complainant has the option to proceed informally, except in cases of sexual assault which always require the use of the formal resolution process. If the complainant proceeds informally, either the complainant or respondent has the option to move the complaint to the formal process at any time. The Dean(s) of Students of the institution(s) of the parties involved in the complaint proceeding will explain the informal and formal resolution procedures.

In addition, the Dean(s) of Students of the involved institutions has discretion move the complaint to the formal resolution process or to refer the matter to other institutional disciplinary procedures. The referral option will generally be used when: (1) the alleged behavior does not fall within the Policy or (2) the alleged behavior applies to another disciplinary procedure. If the Dean(s) of Students of the involved institutions determines that the report or complaint, even if substantiated, would not violate the Policy, he/she/they may close the matter or refer it to another, applicable, disciplinary procedure. The parties will be notified of that determination and the complainant will be informed of other procedures for resolving the complaint and of other resources that may be available to complainant.

Every attempt should be made to determine the option for resolution within five (5) business days of the submission of the complaint.


Option A:  Informal Procedure and Resolution

If the complainant, the respondent and the institution(s) all agree that an informal resolution should be pursued, the Dean of Students shall attempt to facilitate a resolution of the conflict that is agreeable to all parties.

The complainant and respondent each have the option to discontinue the informal process and request a formal investigation by notifying the Dean of Students in writing. The institution(s) always has/have the discretion to bypass or discontinue the informal process and move forward with a formal investigation. If at any point during the informal process, the complainant, the respondent, or the institution(s) wish to cease the informal procedure and to proceed through the formal procedure, the formal procedure outlined below will be invoked.

The informal resolution must adequately address the concerns of the complainant, as well as the rights of the respondent and the overall intent of the institution(s) to stop, remedy, and prevent Policy violations. The recommended resolution may include a variety of institutional responses or requirements, including, but not limited to, the following: warning, behavioral contracts, community service hours, restitution, required attendance at educational programs, required assessment and/or counseling, restriction of privileges, inclusion in the respondent's education record of a finding that the Policy was violated, parental notification and/or probation.

If all parties to the complaint agree in writing to the terms and conditions of the recommended resolution within five (5) business days, the case will be resolved without further process under these Procedures. If all parties to the complaint do not agree in writing to the terms and conditions of the recommended resolution within five (5) business days, the complaint will move to the formal procedure.

If the complaint is referred to the formal process, the time spent attempting to reach an informal resolution generally will not be counted as part of the 60-day time frame discussed in the "Timing" section above.

 

Option B:  Formal Procedure

If the complaint is not resolved through the informal procedure outlined above, the complaint shall be processed according to the formal procedure (Steps 2 through 5) outlined below. The Deputy and/or Lead Title IX Coordinator(s) of the involved institutions shall ensure that all officials involved in the complaint procedure have received annual training on the Policy, these Procedures, issues relating to sexual misconduct, the rights of complainants and respondents, and applicable law. 

Step 2: Investigation

The formal resolution process will include an investigation conducted by an appointed outside investigator, or at the institutions' discretion, SJU Life Safety or CSB Campus Security. The complainant and the respondent shall receive written notice of the name of the investigator appointed to conduct the investigation.  The complainant or respondent may request the removal of the investigator on the grounds of personal bias or conflict of interest by submitting a typewritten statement identifying the basis for the concern to the Dean(s) of Students no later than two (2) business days after receiving the notice of the investigator. The Dean(s) of Students will determine whether to accept or deny the request. If the request is accepted, a replacement investigator will be appointed to conduct the investigation. The decision of the Dean(s) of Students with regard to the request is final and is not appealable. If the complainant or respondent believes the new investigator should be removed because of personal bias or conflict of interest, the complainant or respondent may initiate the same process seeking removal of the newly-assigned investigator by submitting a typewritten statement no later than two (2) business days after receiving the notice of the newly-assigned investigator.

The investigator will interview the complainant, respondent and/or other witnesses and may request additional information from the complainant, respondent or others. In addition, the complainant and respondent will have an opportunity to advise the investigator of any witnesses they believe should be interviewed, and/or other evidence that they believe should be reviewed by the investigator.  The investigator, at his or her discretion, may decline to interview witnesses suggested by the parties and may interview witnesses who were not suggested by either party. Character or reputation evidence is generally considered to be irrelevant and will not be included as part of the investigation.  If a party suggests witnesses solely for the purpose of providing general character or reputation evidence, the investigator may choose not to interview such witnesses and/or to not include information related to a party's general character/reputation in the investigation report.  All interviews with the complainant, respondent, and other witnesses shall be recorded. The complainant and respondent shall receive timely notice of meetings at which the complainant or respondent or both will be present.

The parties will be notified of a close of evidence date.  The parties shall submit any and all information and evidence believed to be relevant to the complaint by the close of evidence date.  After the close of evidence date, the parties shall not be permitted to submit new or additional evidence that existed prior to the close of evidence date, unless the investigator determines otherwise.

Every attempt will be made to complete the investigation phase, including the issuing of the investigation report, within twenty-five (25) business days of the filing of the complaint or the referral from the informal process.

If a criminal complaint has been filed, CSB's and/or SJU's investigation may be temporarily delayed to allow law enforcement to gather evidence. Such delay may only occur at the request of law enforcement and shall not be any longer than necessary for law enforcement to complete the gathering of evidence. Guidance from the Department of Education directs that a school may not wait for the conclusion of a criminal investigation or proceeding to begin or complete the school's own investigation, therefore, in no case will CSB and SJU wait for the conclusion of a criminal investigation or criminal proceeding to begin their own investigation.

The investigator shall compile the investigation file, which shall consist of at least the complaint, the investigation written summary, and relevant documents, if any. The investigation written summary will include the names of all witnesses interviewed and dates on which interviews took place.  The investigator will present the facts gathered, but will not make credibility determinations or otherwise evaluate the facts.

 

Step 3:  Review of Investigation File in Cases Involving Sexual Assault, Dating Violence, Domestic Violence, and Stalking

Following the appointment of the adjudication panel, the investigation file will be made available for review by the complainant and respondent by making an appointment with their Dean of Students during regular business hours. The Dean(s) of Students will provide a five (5) business day review and response period for the parties to have access to review the investigation file and prepare a response to the investigation file, as discussed below. Information in the investigation file that cannot be shared with the complainant, respondent, or adjudicators may be redacted from the file in accordance with applicable law. The file cannot be photographed, copied, or removed from the Dean(s) of Students office(s) or other location provided for review purposes.  All parties (and their advisors) may take personal handwritten notes. 

Following review of the investigation file, both the complainant and respondent shall have the opportunity to provide a typewritten initial statement to add clarifying information and/or identify information previously given to the investigator that is not included in the investigation report that the party believes should have been included.  While the parties may be assisted by their advisors in preparation of the initial statement, the initial statement must be submitted by the party, must be the party's own statement, and may not be used to submit the statements of others on the party's behalf, including any external reports.  The initial statement shall not exceed 4,500 words. The initial statement must be submitted within the five (5) business days provided for review and response described above. Submissions must be made electronically by email to the Dean(s) of Students, and must be submitted directly from the complainant or respondent, and not through an advisor or other representative.

The complainant and respondent shall have an opportunity to review the initial statement submitted by the other party and, if desired, may submit a typewritten rebuttal statement not to exceed 1,300 words. The Dean(s) of Students will provide a three (3) business day review and response period for the parties to have access to review the initial statement and prepare a response to the initial statement, as discussed below.  The rebuttal statement may only be used to respond to arguments made in the other party's initial statement. While the parties may be assisted by their advisors in preparation of the rebuttal statement, the rebuttal statement must be submitted by the party, must be the party's own statement, and may not be used to submit the statements of others on the party's behalf, including external reports.  The parties have the option to read the rebuttal statement of the other party, but no further responses will be made by either party.

The institutions will ensure that the complainant and respondent have been given equal opportunities to present relevant information for consideration during the investigation process.

At any time during the investigation and review phases, the Deputy Title IX Coordinator(s) may review the investigation file, the parties' initial and rebuttal statements, and other information or evidence to determine whether additional investigation is necessary, statements and documents submitted by the parties are within the appropriate scope of the investigation, and/or information or other evidence contained in the investigation file and the parties' written statements should be removed or redacted.  In the event the Deputy Title IX Coordinator(s) request additional investigation, the parties shall be notified.


Step 4: Adjudication

a.  Appointment of Adjudication Panel.

Upon completion of the investigation, a three-person adjudication panel comprised of individuals selected by the involved institution(s) will be appointed on a case-by-case basis. In most instances, the panel will be comprised of faculty and/or staff selected by the Dean(s) of Students of the involved institution(s). The Deputy and/or Lead Title IX Coordinator(s) of the involved institutions may also be present at the meetings of the adjudication panel to oversee the process and will, if necessary, answer procedural questions, but shall not have a vote.

The adjudication panel shall be appointed within five (5) business days following the close of evidence date.  The complainant and the respondent shall receive written notice of the adjudication panel members appointed.

b. Process for Requesting Removal of Adjudication Panel Member.

The complainant or respondent may request the removal of a member of the adjudication panel on the grounds of personal bias or conflict of interest by submitting a typewritten statement identifying the basis for the concern to the Dean(s) of Students no later than two (2) business days after receiving the notice of the adjudication panel members. The Dean(s) of Students will determine whether to accept or deny the request. If the request is accepted, a replacement will be appointed to serve on the adjudication panel. The decision of the Dean(s) of Students with regard to the request is final and is not appealable. If the complainant or respondent believes a new member assigned to the adjudication panel should be removed because of personal bias or conflict of interest, the complainant or respondent may initiate the same process seeking removal of the newly-assigned panel member by submitting a typewritten statement no later than two (2) business days after receiving the notice of the newly-assigned adjudication panel member.

Step 5: Determination

The adjudication panel will review the investigation file and written response and rebuttal statements provided by the complainant and respondent. The adjudication panel may, in their discretion, request additional investigation by the investigator or another appropriate individual. In the event that the adjudication panel requests additional investigation, the complainant and respondent shall be notified. The adjudication panel will use a preponderance of the evidence standard as directed by Title IX, to determine whether, based upon the information obtained from the investigation and any written statements provided by the complainant and respondent, it is more likely than not that the respondent violated the Policy. The Deputy and/or Lead Title IX Coordinator(s) are available for consultation, but will not participate in making a decision. Only the members of the adjudication panel and the Deputy and/or Lead Title IX Coordinator(s) may be present during deliberations. A simple majority of adjudication panel members is necessary to find that the respondent is responsible for a Policy violation.

The adjudication panel will communicate the decision to the Dean(s) of Students of the institutions of the parties.

The determination of the adjudication panel may be appealed as provided below. In the event that no appeal is filed within the time periods prescribed below, the decision of the adjudication panel will be final.

a. Determination of "Not Established Responsible"

If the adjudication panel concludes, based upon the information obtained through the investigation, that there is not sufficient basis to establish that it is more likely than not that a respondent violated the Policy, the adjudication panel will make a determination of "Not Established Responsible." This will be the decision if the panel concludes that it is more likely than not that a Policy violation did not occur or there is insufficient evidence to support a finding that it is more likely than not that the respondent violated the Policy. The complainant and respondent will be notified of the "Not Established Responsible" determination and of other steps that may be taken in response to the complaint such as "no contact" directives. The complainant will also be apprised of other resources that may be available.

b. Determination of "Responsible" and Imposition of Remedies and Sanctions

If the adjudication panel, based upon the information obtained through the investigation, that it is more likely than not that a respondent violated the Policy, the adjudication panel will make a finding of "Responsible" and the Dean(s) of Students of the institution(s) of the parties will determine appropriate sanction(s). The Dean(s) of Students' determination will include steps to stop the misconduct, prevent its recurrence, and as appropriate, address its effect on the complainant and the campus community. Sanctions imposed on a student depend on the severity of the violation,  time remaining until complainant graduates or is no longer a student, and any previous violations that resulted in a finding of "Responsible".  Sanctions may include a variety of institutional responses or requirements and can include any of the following: warning, writing a reflection paper, behavioral contracts, no-contact directives, administrative referrals, community service hours, restitution, required attendance at educational programs, required assessment and/or counseling, restriction of privileges, inclusion in the respondent's education record of a finding that the Policy was violated, probation, suspension and/or expulsion.

c. Written Notice of Outcome

The complainant and respondent shall receive a simultaneous written notice of outcome within twenty-five (25) business days after completion of the investigation (including completion of any additional investigation conducted at the request of the adjudication panel).

For complaints involving sexual assault, dating violence, domestic violence, or stalking: The written notice shall include the determination of the adjudication panel, any imposition of sanctions, and the rationales for the determination and sanctions. The written notice will also include information about the procedures for appeal, as set forth below, and when the result becomes final. In addition, the written notice shall include any other steps the institution(s) have taken to eliminate the conduct and prevent its recurrence. The complainant will also receive written notice regarding remedies offered or provided.

For all other complaints of sexual misconduct: The written notice shall include the determination of the adjudication panel. The respondent's written notice shall include any imposition of sanctions and the complainant's written notice shall include any imposition of sanctions that directly relates to the complainant. The written notice will also include information about the procedures for appeal, as set forth below, and when the result becomes final. In addition, the written notice shall include any other steps the institution(s) have taken to eliminate the conduct and prevent its recurrence and the complainant's written notice will contain remedies offered or provided to the complainant.


Step 6: Appeal

Following the determination, the complainant or respondent may request an appeal of the decision. For cases involving students from both institutions, the request for an appeal must be typewritten, may not exceed 1,300 words, and must be submitted electronically to the Vice Presidents for Student Development (or their designees) at [email protected] within three (3) business days of the party's receipt of the notice of determination.  For cases involving students from only one institution, the request for an appeal must be word processed, may not exceed 1,300 words, and must be submitted electronically to the Vice President for Student Development of that institution.  An extension will be granted only when exceptional circumstances cause delay. Failure to file an appeal or request an extension in a timely manner constitutes a waiver of any right to an appeal.

The basis for an appeal will be limited to the following:

•      New or newly discovered evidence that may substantially affect the outcome of the adjudication; or

•      There was a procedural error which substantially affected the outcome of the adjudication.

Disagreement with the finding of the Adjudication Panel does not constitute a procedural error and is not grounds an appeal.


Appeals should not be requested frivolously. An appeal represents a procedural safeguard for the complainant and respondent. In an appeal the burden of proof is on the appealing party to show that it is more likely than not that one or more of the above grounds for appeal are satisfied.

a. Determination of Whether Appeal Has Merit

The appeal request will be reviewed and considered by the Vice President(s) for Student Development of the institution(s) of the parties involved in the complaint. If the complaint involves parties from both institutions, the Vice President for Student Development who has received the appeal shall involve the Vice President for Student Development of the other institution and they shall consider and decide the outcome of the appeal. The Vice President(s) for Student Development will determine whether it is more likely than not that either or both of the above grounds for appeal are satisfied.

If, following review of the initial written appeal, there is not adequate reason to believe that one or more grounds for appeal has been satisfied, the Vice President(s) for Student Development may dismiss the appeal. This decision is final and is not appealable.

The Vice President(s) for Student Development will provide the complainant and respondent with simultaneous written notice of the outcome of the appeal request, within ten (10) business days of the filing of the appeal.

 
b. Determination on Remand.

If the Vice President(s) for Student Development of the institution(s) of the involved parties determine that the appealing party has demonstrated that it is more likely than not that one of the above grounds for appeal may have reasonably been satisfied, the Vice President(s) for Student Development will remand the matter for further investigation and/or deliberations. The Vice President(s) for Student Development will determine whether the matter should be remanded to the adjudication panel or whether a new adjudication panel should review the matter. The Vice President(s) for Student Development may not change the adjudication panel's determination or the Dean(s) of Students' imposition of sanctions. Only the adjudication panel reviewing the matter on remand from an appeal may change the determination of the original adjudication panel, and based upon the new determination only the Dean(s) of Students may modify any of the sanctions previously imposed.

The parties will receive timely access to view any information and documents-not already provided to the parties during the investigation and initial adjudication phases-that will be used to adjudicate matter on remand.

 


B. Complaint Procedure if the Respondent is a Faculty or Staff Member

Any member of the community who has a concern about potential sexual misconduct by a faculty or staff member should meet with the Associate HR Director (or in the case of a student's concern, may also meet with the Dean(s) of Students) to discuss his or her concerns, determine options going forward, and learn about other resources available. To make a complaint under these Procedures, the following steps will generally be followed. For complaints involving a respondent who is a faculty or staff member, Procedure B.1 will be used for complaints of sexual assault, dating violence, domestic violence, and stalking and Procedure B.2 will be used for all other complaints of sexual misconduct.

 


B.1.: Complaint Procedures for Complaints of Sexual Assault, Dating Violence, Domestic Violence, and Stalking

Step 1: Initiation of Complaint

Any member of the community may initiate a complaint proceeding. The complaint proceeding may be initiated at the request of the complainant upon submitting a report to the Associate HR Director, a Dean of Students, SJU Life Safety or CSB Campus Security. Students at the SJU School of Theology·Seminary may alternately submit their complaint form to the Rector or Dean of the School of Theology·Seminary, who will then refer the matter to the Dean(s) of Students and/or the Associate HR Director. The report should contain sufficient detail to enable the Associate HR Director (and in cases involving students, the Deans of Student(s) to make a determination as to whether the complaint falls within the Policy. When a complaint proceeding is initiated, the institution(s) may ask that a reporting party verify a written summary of an oral report. any report be confirmed in a written and signed form. Reporting forms are available on the CSB and SJU Sexual Misconduct web page.

Upon receiving a report of a violation of the Policy, the institution(s) will seek the alleged victim's cooperation to proceed with a complaint proceeding using the Procedures set forth herein. In addition, circumstances may arise in which a complaint proceeding may be initiated (even without the alleged victim's participation) to protect the safety, integrity and welfare of the community as a whole. Generally, the Lead Title IX Coordinator(s) or designee(s) will make a determination of whether a complaint proceeding should be initiated. If the institution(s) decide that it has an obligation to move forward with a complaint proceeding regarding the alleged Policy violation, prior to proceeding with the complaint process, they will notify the alleged victim of their decision and of the option to have the institution(s) inform the respondent that the reporting party did not want to initiate the complaint process.

The institution(s) will accept anonymous complaints, but the institution(s) may be limited in their ability to investigate an anonymous complaint.  See Sexual Misconduct Policy, Section III.A.4. - Anonymous Reporting.

The Associate HR Director and the Dean(s) of Students of the involved institutions, when the complaint involves a student, has discretion to refer the matter to other institutional procedures. This referral option will generally be used when: (1) the alleged behavior does not fall within the Policy or (2) the alleged behavior applies to another institutional procedure. If the Associate HR Director and the Dean(s) of Students of the involved institutions, in cases involving a student, determines that the report or complaint, even if substantiated, would not violate the Policy, he/she/they may dismiss the matter. The party will be notified of that determination and the complainant will be informed of other procedures for resolving the complaint and of other resources that may be available to the complainant.

Step 2: Investigation

The investigation will be conducted by an appointed outside investigator, or at the institutions' discretion, SJU Life Safety or CSB Campus Security. The complainant and the respondent shall receive written notice of the name of the investigator appointed to conduct the investigation.  The complainant or respondent may request the removal of the investigator on the grounds of personal bias or conflict of interest by submitting a typewritten statement identifying the basis for the concern to the Associate HR Director and/or Dean of Student(s) no later than two (2) business days after receiving the notice of the investigator. The Associate HR Director will determine whether to accept or deny the request. If the request is accepted, a replacement investigator will be appointed to conduct the investigation. The decision of the Associate HR Director with regard to the request is final and is not appealable. If the complainant or respondent believes the new investigator should be removed because of personal bias or conflict of interest, the complainant or respondent may initiate the same process seeking removal of the newly-assigned investigator by submitting a typewritten statement no later than two (2) business days after receiving the notice of the newly-assigned investigator.

The investigator will interview the complainant, respondent and/or other witnesses and may request additional information from the complainant, respondent or others. In addition, the complainant and respondent will have an opportunity to advise the investigator of any witnesses they believe should be interviewed, and/or other evidence that they believe should be reviewed by the investigator.  The investigator, at his or her discretion, may decline to interview witnesses suggested by the parties and may interview witnesses who were not suggested by either party. Character or reputation evidence is generally considered to be irrelevant and will not be included as part of the investigation.  If a party suggests witnesses solely for the purpose of providing general character or reputation evidence, the investigator may choose not to interview such witnesses and/or to not include information related to a party's general character/reputation in the investigation report.  All interviews with the complainant, respondent, and other witnesses shall be recorded. The complainant and respondent shall receive timely notice of meetings at which the complainant or respondent or both will be present.

The parties will be notified of a close of evidence date.  The parties shall submit any and all information and evidence believed to be relevant to the complaint by the close of evidence date.  After the close of evidence date, the parties shall not be permitted to submit new or additional evidence that existed prior to the close of evidence date, unless the investigator determines otherwise.

Every attempt will be made to complete the investigation phase, including the issuing of the investigation report, within twenty-five (25) business days of the filing of the complaint or the referral from the informal process.

If a criminal complaint has been filed, CSB's and/or SJU's investigation may be temporarily delayed to allow law enforcement to gather evidence. Such delay may only occur at the request of law enforcement and shall not be any longer than necessary for law enforcement to complete the gathering of evidence. Guidance from the Department of Education directs that a school may not wait for the conclusion of a criminal investigation or proceeding to begin or complete the school's own investigation, therefore, in no case will CSB and SJU wait for the conclusion of a criminal investigation or criminal proceeding to begin their own investigation.

The investigator shall compile the investigation file, which shall consist of at least the complaint, the investigation written summary, and relevant documents, if any. The investigation written summary will include the names of all witnesses interviewed and dates on which interviews took place.  The investigator will present the facts gathered, but will not make credibility determinations or otherwise evaluate the facts.

 

Step 3:  Review of Investigation File in Cases Involving Sexual Assault, Dating Violence, Domestic Violence, and Stalking

Following the appointment of the adjudicator, the investigation file will be made available for review by the complainant and respondent by making an appointment with the Associate HR Director and/or Dean(s) of Students during regular business hours. The HR Director and/or Dean(s) of Students will provide a five (5) business day review and response period for the parties to have access to review the investigation file and prepare a response to the investigation file, as discussed below. Information in the investigation file that cannot be shared with the complainant, respondent, or adjudicator may be redacted from the file in accordance with applicable law. The file cannot be photographed, copied, or removed from the Associate HR Director's office and/or the Dean(s) of Students office(s) or other location provided for review purposes.  All parties (and their advisors) may take personal handwritten notes. 

Following review of the investigation file, both the complainant and respondent shall have the opportunity to provide a typewritten initial statement to add clarifying information and/or identify information previously given to the investigator that is not included in the investigation report that the party believes should have been included.  While the parties may be assisted by their advisors in preparation of the initial statement, the initial statement must be submitted by the party, must be the party's own statement, and may not be used to submit the statements of others on the party's behalf, including any external reports.  The initial statement shall not exceed 4,500 words. The statement must be submitted within five (5) business days provided for review and response described above. Submissions must be made electronically by email to the Associate HR Director and Dean(s) of Students, and must be submitted directly from the complainant or respondent, and not through an advisor or other representative.

The complainant and respondent shall have an opportunity to review the initial statement submitted by the other party and, if desired, may submit a typewritten rebuttal statement not to exceed 1,300 words. The HR Director and/or Dean(s) of Students will provide a three (3) business day review and response period for the parties to have access to review the initial statement and prepare a response to the initial statement, as discussed below. 

The rebuttal statement may only be used to respond to arguments made in the other party's initial statement. While the parties may be assisted by their advisors in preparation of the rebuttal statement, the rebuttal statement must be submitted by the party, must be the party's own statement, and may not be used to submit the statements of others on the party's behalf, including external reports.  The parties have the option to read the rebuttal statement of the other party, but no further responses will be made by either party.

The institutions will ensure that the complainant and respondent have been given equal opportunities to present relevant information for consideration during the investigation process.

At any time during the investigation and review phases, the Deputy Title IX Coordinator(s) may review the investigation file, the parties' initial and rebuttal statements, and other information or evidence to determine whether additional investigation is necessary, statements and documents submitted by the parties are within the appropriate scope of the investigation, and/or information or other evidence contained in the investigation file and the parties' written statements should be removed or redacted.  In the event the Deputy Title IX Coordinator(s) request additional investigation, the parties shall be notified.

 

Step 4: Adjudication

In cases of alleged sexual misconduct by a staff member, the Director of Human Resources will generally serve as the adjudicator on issues of whether the Policy has been violated. In cases of alleged sexual misconduct by a faculty member, the Associate Dean will generally serve as the adjudicator on issues of whether the Policy has been violated. An alternative adjudicator may be appointed by the President or the President's designee in cases involving a conflict of interest, the appearance of a conflict of interest, or in other appropriate circumstances. The adjudicator will have received training on the Policy, the Procedures, issues relating to sexual misconduct, the rights of complainants and respondents, and applicable law before rendering any decision and may consult with the Associate HR Director and/or a Title IX Coordinator about such topics.

The adjudicator will review the complaint and investigation file. The adjudicator may, in his or her discretion, request additional investigation by the investigator or another appropriate individual. In the event that the adjudicator requests additional investigation, the complainant and respondent shall be notified.

The adjudicator will use a preponderance of the evidence standard to determine whether, based upon the information obtained from the investigation, it is more likely than not that the respondent is responsible for a Policy violation. The Associate HR Director and/or Title IX Coordinator shall be available to consult with the adjudicator, but will not participate in making the decision.

The determination of the adjudicator may be appealed as provided below. In the event that no appeal is filed within the time periods prescribed below, the decision of the adjudicator will be final.

     a. Determination of "Not Established Responsible"

If the adjudicator determines, based upon the information obtained through the investigation, that there is not sufficient basis to establish that it is more likely than not that a respondent violated the Policy, the adjudicator will make a determination of "Not Established Responsible." This will be the decision if the adjudicator determines that it is more likely than not that a Policy violation did not occur or there is insufficient evidence to determine that it is more likely than not that the respondent violated the Policy. The complainant and respondent will be notified of the "Not Established Responsible" determination and of other steps that may be taken in response to the complaint such as "no contact" directives. The complainant will also be apprised of other resources that may be available.

     b. Determination of "Responsible" and Imposition of Remedies/Sanctions

Faculty Respondent: If the adjudicator determines, based upon the information obtained through the investigation, that it is more likely than not that a faculty member respondent violated the Policy, the adjudicator will make a determination of "Responsible" and the matter will be referred to the Provost for appropriate sanctions. The adjudicator's determination will include steps to take to stop the misconduct, prevent its recurrence and, as appropriate, address its effect on the complainant and the community. Sanctions will be determined and administered in a manner consistent with the Faculty Handbook.  Sanctions may include a variety of institutional responses or requirements and can include any of the following: verbal warning, written warning, required training, no-contact directives, suspension, suspension of promotion and salary increments, suspension or withdrawal of faculty privileges, and dismissal. In referring a finding of a violation by a faculty member to the Provost for sanctions, the adjudicator shall state whether the evidence establishes a violation by "clear and convincing evidence" such that dismissal for cause may be considered as a possible sanction under Section 2.13.6.5 of the Faculty Handbook.

Staff Respondent: If the adjudicator determines, based upon the information obtained through the investigation, that it is more likely than not that a staff member violated the Policy, the adjudicator will make a determination of "Responsible" and the staff member's supervisor, in consultation with Human Resources and Divisional Vice President, shall determine the appropriate sanctions, which shall be determined and administered in a manner consistent with the Administrative and Support Staff Handbook. The adjudicator's determination will include steps to take to stop the misconduct, prevent its recurrence and, as appropriate, address its effects on the complainant and the community. Sanctions may include a variety of institutional responses or requirements and can include any of the following: verbal warning, written warning, written reprimand, required training, no-contact directives, reassignment, suspension, probation, demotion, and dismissal.

     c. Written Notice of Outcome

The complainant and respondent shall receive a simultaneous written notice of outcome within twenty-five (25) business days after completion of the investigation (including completion of any additional investigation conducted at the request of the adjudicator).

For complaints involving sexual assault, dating violence, domestic violence, or stalking: The written notice shall include the determination of the adjudicator, any imposition of sanctions, and the rationales for the determination and sanctions. The written notice will also include information about the procedures for appeal, as set forth below, and when the result becomes final. In addition, the written notice shall include any other steps the institution(s) have taken to eliminate the conduct and prevent its recurrence. The complainant will also receive written notice regarding remedies offered or provided.

For all other complaints of sexual misconduct: The written notice shall include the determination of the adjudicator. The respondent's written notice shall include any imposition of sanctions and the complainant's written notice shall include any imposition of sanctions that directly relates to the complainant. The written notice will also include information about the procedures for appeal, as set forth below, and when the result becomes final. In addition, the written notice shall include any other steps the institution(s) have taken to eliminate the conduct and prevent its recurrence and the complainant's written notice will contain remedies offered or provided to the complainant.


Step 5: Appeal

Following the determination, the complainant or respondent may request an appeal of the decision.  A complainant or respondent who wishes to appeal shall submit a written statement of appeal, not to exceed 1,300 words, no later than three (3) business days after receiving the notice of outcome. The appeal shall be directed to the Lead Title IX Coordinator of the institution of the appealing party. The Lead Title IX Coordinator (in consultation with the Lead Title IX Coordinator of the institution of the non-appealing party when applicable), will be responsible for appointing an appropriate institutional official to oversee the appeal. Failure to file an appeal or request an extension in a timely manner constitutes a waiver of any right to an appeal.

The basis for an appeal will be limited to the following:

•     New or newly discovered evidence that may substantially affect the outcome of the adjudication; or

•     There was a procedural error which substantially affected the outcome of the adjudication.

Disagreement with the finding of the adjudicator does not constitute a procedural error and is not grounds an appeal.

Appeals should not be requested frivolously. An appeal represents a procedural safeguard for the complainant and respondent. In an appeal the burden of proof is on the appealing party to show that it is more likely than not that one of the above grounds for appeal are satisfied.

The Lead Title IX Coordinator(s) or their designee(s) will review the appeal statement to determine whether the appeal states a permissible ground for appeal (as set forth above), such that the appeal will be considered.

The Lead Title IX Coordinators will determine whether the appeal will be considered within three (3) business days of receipt of the appeal.  If it is determined that the appeal will be considered, the non-appealing party will be notified of the appeal. The non-appealing party may, if desired, submit a written response to the appeal, not to exceed 1,300 words.  The written response to the appeal must be submitted to appointed appeal officer within three (3) business days of receiving notice of the appeal.

 
      a.  Determination of Whether Appeal Has Merit


The Lead Title IX Coordinator (in consultation with the Lead Title IX Coordinator of the institution of the non-appealing party when applicable), will be responsible for appointing an appropriate institutional official to oversee the appeal. The appeal request will be reviewed and considered by the appointed appeal official. The appeal official will determine whether it is more likely than not that either or both of the above grounds for appeal are satisfied.

If, following review of the initial written appeal, there is not adequate reason to believe that one or more grounds for appeal has been satisfied, the appeal official may dismiss the appeal. This decision is final and is not appealable.

The appeal official will provide the complainant and respondent with simultaneous written notice of the outcome of the appeal request, within ten (10) business days of the filing of the appeal.

            b. Determination on Remand.

If the appeal official determines that the appealing party has demonstrated that it is more likely than not that one of the above grounds for appeal may have reasonably been satisfied, the appeal official will remand the matter for further investigation and/or deliberations. The appeal official will determine whether the matter should be remanded to the adjudicator or whether a new adjudicator should review the matter. The appeal official may not change the adjudicator's determination or sanctions. Only the adjudicator reviewing the matter on remand from an appeal may change the determination of the original adjudicator, and based upon the new determination only the Provost (in cases involving a faculty member) or Divisional Vice President (in cases involving a staff member) may modify any of the sanctions previously imposed.

The parties will receive timely access to view any information and documents-not already provided to the parties during the investigation and initial adjudication phases-that will be used to adjudicate matter on remand.



 B.2.: Complaint Procedure for all other Complaints of Sexual Harassment. The procedures for a complaint under B.2 are not subject to the same requirements as the procedures for a complaint under B.1.

Step 1: Initiation of Complaint

Any member of the community may initiate a complaint proceeding. The complaint proceeding may be initiated at the request of the complainant upon submitting a report to the Associate HR Director or a Dean of Students. Students at the SJU School of Theology·Seminary may alternately submit their complaint form to the Rector or Dean of the School of Theology·Seminary, who will then refer the matter to the Dean(s) of Students and/or the Associate HR Director. The report should contain sufficient detail to enable the Associate HR Director (and in cases involving students, the Dean(s) of Students) to make a determination as to whether the complaint falls within the Policy. When a complaint proceeding is initiated, the institution(s) may ask that a reporting party verify a written summary of an oral report.  Reporting forms are available on the CSB and SJU Sexual Misconduct web page.

Upon receiving a report of a violation of the Policy, the institution(s) will seek the alleged victim's cooperation to proceed with a complaint proceeding using the Procedures set forth herein. In addition, circumstances may arise in which a complaint proceeding may be initiated (even without the alleged victim's participation) to protect the safety, integrity and welfare of the community as a whole. Generally, the Lead Title IX Coordinator(s) or designee(s) will make a determination of whether a complaint proceeding should be initiated. If the institution(s) decide that it has an obligation to move forward with a complaint proceeding regarding the alleged Policy violation, prior to proceeding with the complaint process, they will notify the alleged victim of their decision and of the option to have the institution(s) inform the respondent that the alleged victim did not want to initiate the complaint process.

The institution(s) will accept anonymous complaints, but the institution(s) may be limited in their ability to investigate an anonymous complaint.  See Sexual Misconduct Policy, Section III.A.4. - Anonymous Reporting.

The Associate HR Director and the Dean(s) of Students of the involved institutions, when the complaint involves a student, has discretion to refer the matter to other institutional procedures. This referral option will generally be used when: (1) the alleged behavior does not fall within the Policy or (2) the alleged behavior applies to another institutional procedure. If the Associate HR Director and the Dean(s) of Students in cases involving a student, determines that the report or complaint, even if substantiated, would not violate the Policy, he/she/they may dismiss the matter. The party will be notified of that determination and the complainant will be informed of other procedures for resolving the complaint and of other resources that may be available to the complainant.

Step 2: Investigation

An investigation will be conducted by SJU Life Safety, CSB Campus Security, or, at the discretion of the institution(s), an appointed outside investigator. The complainant and the respondent shall receive written notice of the name of the investigator appointed to conduct the investigation.  The complainant or respondent may request the removal of the investigator on the grounds of personal bias or conflict of interest by submitting a typewritten statement identifying the basis for the concern to the Associate HR Director and/or Dean of Student(s) no later than two (2) business days after receiving the notice of the investigator. The Associate HR Director will determine whether to accept or deny the request. If the request is accepted, a replacement investigator will be appointed to conduct the investigation. The decision of the Associate HR Director with regard to the request is final and is not appealable. If the complainant or respondent believes the new investigator should be removed because of personal bias or conflict of interest, the complainant or respondent may initiate the same process seeking removal of the newly-assigned investigator by submitting a typewritten statement no later than two (2) business days after receiving the notice of the newly-assigned investigator.

The investigator will interview the complainant, respondent and/or other witnesses and may request additional information from the complainant, respondent or others. In addition, the complainant and respondent shall have an opportunity to advise the investigator of any witnesses they believe should be interviewed, and/or other evidence that they believe should be reviewed by the investigator. The investigator, at his or her discretion, may decline to interview witnesses suggested by the parties and may interview witnesses who were not suggested by either party. Character or reputation evidence is generally considered to be irrelevant and will not be included as part of the investigation. If a party suggests witnesses solely for the purpose of providing general character or reputation evidence, the investigator may choose not to interview such witnesses and/or to not include information related to a party's general character/reputation in the investigation report.

The parties will be notified of a close of evidence date.  The parties shall submit any and all information and evidence believed to be relevant to the complaint by the close of evidence date.  After the close of evidence date, the parties shall not be permitted to submit new or additional evidence that existed prior to the close of evidence date, unless the investigator determines otherwise.

Every attempt will be made to complete the investigation process within twenty-five (25) business days of the filing of the complaint. The investigator shall provide a written summary of the investigation to the Associate HR Director and to the Dean(s) of Students when the complaint involves a student. The investigator will present the facts gathered, but is not responsible for making credibility determinations or otherwise evaluating the facts.

Step 3: Adjudication

In cases of alleged sexual misconduct by a staff member, the Director of Human Resources will generally serve as the adjudicator on issues of whether the Policy has been violated. In cases of alleged sexual misconduct by a faculty member, the Associate Dean will generally serve as the adjudicator on issues of whether the Policy has been violated. An alternative adjudicator may be appointed by the President or the President's designee in cases involving a conflict of interest, the appearance of a conflict of interest, or in other appropriate circumstances. The adjudicator will have received training on the Policy, these Procedures, issues relating to sexual harassment, the rights of complainants and respondents, and applicable law before rendering any decision and may consult with the Associate HR Director and/or a Title IX Coordinator about such topics.

The adjudicator will review the complaint and investigation file. The adjudicator may, in his or her discretion, request additional investigation by the investigator or another appropriate individual.

The adjudicator will use a preponderance of the evidence standard to determine whether, based upon the information obtained from the investigation, it is more likely than not that the respondent violated the Policy. The Associate HR Director and Dean(s) of Students shall be available to consult with the adjudicator, but will not participate in making the decision.

The determination of the adjudicator may be appealed as provided below. In the event that no appeal is filed within the time periods prescribed below, the decision of the adjudicator will be final.

     a. Determination of "Not Established Responsible"

If the adjudicator determines, based upon the information obtained through the investigation, that there is not sufficient basis to establish that it is more likely than not that a respondent violated the Policy, the adjudicator will make a determination of "Not Established Responsible." This will be the decision if the adjudicator determines that it is more likely than not that a Policy violation did not occur or there is insufficient evidence to determine that it is more likely than not that the respondent violated the Policy. The complainant and respondent will be notified of the "Not Established Responsible" determination and of other steps that may be taken in response to the complaint such as "no contact" directives. The complainant will also be apprised of other resources that may be available.

     b. "Responsible" Determination and Imposition of Remedies/Sanctions

Faculty Respondent: If the adjudicator determines, based upon the information obtained through the investigation, that it is more likely than not that a faculty member violated the Policy, the adjudicator will make a determination of "Responsible" and the matter will be referred to the Provost for appropriate sanctions. The adjudicator's determination will include steps to take to stop the misconduct, prevent its recurrence and, as appropriate, address its effect on the complainant and the community. Sanctions will be determined and administered in a manner consistent with the Faculty Handbook. Appropriate sanctions include, but are not limited to verbal warning, written warning, required training, no-contact directives, suspension, suspension of promotion and salary increments, suspension or withdrawal of faculty privileges, and dismissal. In referring a finding of a violation by a faculty member to the Provost for sanctions, the adjudicator shall state whether the evidence establishes a violation by "clear and convincing evidence" such that dismissal for cause may be considered as a possible sanction under Section 2.13.6.5 of the Faculty Handbook.

Staff Respondent: If the adjudicator determines, based upon the information obtained through the investigation, that it is more likely than not that a staff member is violated the Policy, the adjudicator will make a determination of "Responsible" and the staff member's supervisor, in consultation with Human Resources and Divisional Vice President, shall determine the appropriate sanctions, which shall be determined and administered in a manner consistent with the Administrative and Support Staff Handbook. The adjudicator's determination will include steps to take to stop the misconduct, prevent its recurrence and, as appropriate, address its effects on the complainant and the community. Appropriate sanctions include, but are not limited to verbal warning, written warning, written reprimand, required training, no-contact directives, reassignment, suspension, probation, demotion, and dismissal.

     c. Written Notice of Outcome

The complainant and respondent shall receive a written notice of outcome within twenty-five (25) business days after completion of the investigation (including completion of any additional investigation conducted at the request of the adjudicator). The respondent's written notice shall include any imposition of sanctions and the complainant's written notice shall include any imposition of sanctions that directly relates to the complainant.

The written notice will also include information about the procedures for appeal, as set forth below, and when the result becomes final.


Step 4: Appeal

Following the determination, the complainant or respondent may request an appeal of the decision.  A complainant or respondent who wishes to appeal shall submit a written statement of appeal, not to exceed 1,300 words, no later than three (3) business days after receiving the notice of outcome. The appeal shall be directed to the Lead Title IX Coordinator of the institution of the appealing party. The Lead Title IX Coordinator (in consultation with the Lead Title IX Coordinator of the institution of the non-appealing party when applicable), will be responsible for appointing an appropriate institutional official to oversee the appeal. Failure to file an appeal or request an extension in a timely manner constitutes a waiver of any right to an appeal.

The basis for an appeal will be limited to the following:

•      New or newly discovered evidence that may substantially affect the outcome of the adjudication; or

•      There was a procedural error which substantially affected the outcome of the adjudication.

Disagreement with the finding of the adjudicator does not constitute a procedural error and is not grounds an appeal.

Appeals should not be requested frivolously. An appeal represents a procedural safeguard for the complainant and respondent. In an appeal the burden of proof is on the appealing party to show that it is more likely than not that one of the above grounds for appeal are satisfied.

The Lead Title IX Coordinator(s) or their designee(s) will review the appeal statement to determine whether the appeal states a permissible ground for appeal (as set forth above), such that the appeal will be considered.

The Lead Title IX Coordinator(s) or their designee(s) will determine whether the appeal will be considered within three (3) business days of receipt of the appeal.  If it is determined that the appeal will be considered, the non-appealing party will be notified of the appeal. The non-appealing party may, if desired, submit a written response to the appeal, not to exceed 1,300 words.  The written response to the appeal must be submitted to the appointed appeal official within three (3) business days of receiving notice of the appeal.


      a.  Determination of Whether Appeal Has Merit


The Lead Title IX Coordinator (in consultation with the Lead Title IX Coordinator of the institution of the non-appealing party when applicable), will be responsible for appointing an appropriate institutional official to oversee the appeal. The appeal request will be reviewed and considered by the appointed appeal official. The appeal official will determine whether it is more likely than not that either or both of the above grounds for appeal are satisfied.

If, following review of the initial written appeal, there is not adequate reason to believe that one or more grounds for appeal has been satisfied, the appeal official may dismiss the appeal. This decision is final and is not appealable.

The appeal official will provide the complainant and respondent with simultaneous written notice of the outcome of the appeal request, within ten (10) business days of the filing of the appeal.

             b. Determination on Remand.

If the appeal official determines that the appealing party has demonstrated that it is more likely than not that one of the above grounds for appeal may have reasonably been satisfied, the appeal official will remand the matter for further investigation and/or deliberations. The appeal official will determine whether the matter should be remanded to the adjudicator or whether a new adjudicator should review the matter. The appeal official may not change the adjudicator's determination or sanctions. Only the adjudicator reviewing the matter on remand from an appeal may change the determination of the original adjudicator, and based upon the new determination only the Provost (in cases involving a faculty member) or Divisional Vice President (in cases involving a staff member) may modify any of the sanctions previously imposed.

 


    C. Complaint Procedure if the Respondent is an Associate or Third Party

Any member of the community who has a concern about potential sexual misconduct by an Associate or third party should report their concern to the Associate HR Director, Dean(s) of Students, and/or Lead Title IX coordinator(s).

Upon receiving a report of potential sexual misconduct by an associate or third party, the Associate HR Director and/or Dean(s) of Students will involve the appropriate administrative officials to make a determination of how to handle the complaint. The administrative official, in consultation with the Lead or a Deputy Title IX Coordinator, may exercise discretion to determine an appropriate investigative and adjudication process based on the facts and circumstances. The administrative official will document the report received, process used, and the outcome and will submit such information to the Lead Title IX Coordinator. CSB and/or SJU will notify the parties and, if applicable, employing entities that contract with CSB and/or SJU, of the outcome of the complaint. Associates and third parties may not appeal the decision made. A complainant or respondent with concerns about the process or outcome, however, should consult with the Lead Title IX Coordinator(s).

 

VIII. External Complaints

Nothing in the Policy or these Procedures is intended to interfere with the right of any individual to pursue other avenues of recourse which may include, but is not limited to, filing a complaint with the United States Department of Education's Office for Civil Rights (OCR). If you filed a complaint under the Policy and believe the institution(s)' response was inadequate, or you otherwise believe you have been discriminated against by the institution(s), you may file a complaint with the Office for Civil Rights (OCR) of the U.S. Department of Education based in Chicago or the Educational Opportunities Section (EOS) of the Civil Rights Division of the U.S. Department of Justice.



VIII. Contact Information

College of Saint Benedict

Chief of Staff
Lead Title IX Coordinator

Kathryn Enke, [email protected], 320-363-5070

Vice President for Student Development
Deputy Title IX Coordinator

Mary Geller, [email protected], 320-363-5601

Dean of Students
Deputy Title IX Coordinator

Jody Terhaar, [email protected], 320-363-5270

Associate HR Director
Deputy Title IX Coordinator

Judy Bednar, [email protected], 320-363-5071

Security Director

Darren Swanson, [email protected], 320-363-5000

Saint John's University (including School of Theology)

Chief of Staff
Lead Title IX Coordinator

Patti Epsky, [email protected], 320-363-2246

Vice President for Student Development
Deputy Title IX Coordinator

Doug Mullin, OSB, [email protected], 320-363-2737

Dean of Students
Deputy Title IX Coordinator

Michael Connolly, [email protected], 320-363-3171

Associate HR Director
Deputy Title IX Coordinator

Judy Bednar, [email protected], 320-363-5071

Life Safety Services Director

Shawn Vierzba, [email protected], 320-363-2144

Dean, School of Theology

·Seminary

Deputy Title IX Coordinator

Dale Launderville, OSB, [email protected] 320-363-3389

Seminary Rector 
Deputy Title IX Coordinator

Michael Patella, [email protected], 320-363-2108

 

As changes are made in the persons holding these positions, current information will be available on the CSB/SJU Title IX website (http://www.csbsju.edu/joint-student-development/title-ix). 

 

CSB/SJU Sexual Misconduct Complaint Procedures

 

Approved  September 2016

PART I