Appendix E: Sexual Violence and Sexual Harassment Student Adjudication Procedures

EFFECTIVE DATE:  January 4, 2016
 
These procedures implement the University of California (UC) Policy on Sexual Violence and Sexual Harassment, which should be read in conjunction with these procedures.
 
I. PREFACE

UC San Francisco (UCSF and/or University) is committed to creating and maintaining a community where all individuals who participate in University programs and activities can work and learn together in an atmosphere free of sexual violence and sexual harassment. Consistent with its legal obligations under Title IX of the Education Amendments of 1972, the Violence Against Women Reauthorization Act of 2013, and California Education Code section 67386, the University responds promptly and effectively to reports of sexual violence and sexual harassment, and takes appropriate action to prevent, to correct, and when necessary, to discipline behavior that violates the University’s policy on Sexual Violence and Sexual Harassment.

The University’s student disciplinary procedures emphasize education, personal growth, accountability, and ethical behavior — upholding standards of responsible conduct to protect the welfare of the University community. When formal fact-finding procedures are used, the procedures are designed to provide a prompt, fair, and impartial resolution of the matter. The University disciplinary process is an internal administrative procedure that is separate and distinct from external legal processes that may be available, civil or criminal.

Under these policies and procedures, the University will consider the effects of off-campus conduct when evaluating whether there is a hostile environment on campus, or in an off-campus education program or activity.

For purposes of these procedures, Complainant and Respondent are defined as follows:

A. Complainant: A Complainant is any person who files a report of sexual harassment or sexual violence or any person who has been the alleged subject of prohibited conduct, as defined in these procedures and the University of California Sexual Violence and Sexual Harassment Policy. For purposes of these procedures, the University will consider any alleged victim of prohibited conduct a Complainant whether or not he or she makes a report or participates in the investigation or resolution process outlined in these procedures.

B. Respondent: A Respondent is a student alleged to have engaged in a prohibited conduct and about whom a report of sexual violence, sexual harassment, or retaliation is made.

The following describes the University’s procedures, which may be amended periodically, for resolving complaints of sexual violence and sexual harassment where the Respondent(s) are students, including the discipline of students found in violation of University policy. These procedures implement the University’s Policy on Sexual Violence and Sexual Harassment, which should be read in conjunction with these procedures. In the event of conflicts between this and any other policies or procedures published by the University of California and/or UCSF, including but not limited to the Policies Applying to Campus Activities, Organizations, and Students (PACAOS), these procedures take precedence. Students facing multiple allegations of misconduct will, at the discretion of the University, be subject to the applicable policies and due process procedures for each of the respective violations (including, but not limited to, academic, professional, student conduct, and/or discrimination, harassment and other sexual violence). These processes may occur concurrently and may result in additional and different outcomes and sanctions.

To encourage reporting, neither a student Complainant nor student witness who participates in an investigation of sexual violence will be subject to disciplinary sanctions for a violation of the relevant University conduct policy at or near the time of the incident that was disclosed as a result of reporting, unless the violation placed the health or safety of another at risk; involved plagiarism, cheating, academic dishonesty, or was otherwise egregious.

Both the University and federal law prohibit retaliation against any person who reports sexual harassment or sexual violence, assists someone with a report of sexual harassment or sexual violence, or participates in any manner in an investigation or resolution of a sexual harassment or sexual violence report. Retaliation includes, but is not limited to, harassment, threats, intimidation, reprisals, and/or adverse actions related to employment or education. Any acts of retaliation, or concerns about possible retaliatory conduct, should be reported immediately to the University’s Title IX Coordinator. Allegations of acts of retaliation will be investigated by the University under the same processes and standards outlined in these procedures.

At all stages of the process, all written communications, including responses and submissions outlined in these procedures, will be via UCSF email or other electronic means deemed appropriate by the University, unless other arrangements have been made in advance with the Title IX Coordinator or assigned investigator.

II. RESOURCES RELATING TO SEXUAL VIOLENCE AND SEXUAL HARASSMENT

The University has a Title IX office, the Office for the Prevention of Harassment and Discrimination (OPHD), which is responsible for receiving and responding to reports of sexual violence and sexual harassment.

Confidential resources are also available both before and after a person communi­cates with OPHD about potential violations of the Sexual Violence and Sexual Harassment policy. Confidential resources include the CARE Advocate (for Complainants only), Ombuds (for Complainants and Respondents), and licensed counselors in Student Health and Counseling (for Complainants and Respondents). These resources can provide confidential advice and counseling. Confidential information obtained through use of these resources will not be disclosed to OPHD or law enforcement without the student’s consent, unless there is a credible threat of serious harm to an individual or others or a legal obligation that requires disclosure to law enforcement or an outside agency (such as suspected abuse of a minor).

III. REPORT OF SEXUAL VIOLENCE AND SEXUAL HARASSMENT

A. The University encourages anyone who experiences or becomes aware of an incident of sexual violence or sexual harassment involving a student to immediately report the incident to the University by contacting the University’s Title IX Officer by telephone, email, or in person during regular office hours: Cristina Perez-Abelson, Director & Title IX Officer, 3333 California Street, Suite S-16, Title9@ucsf.edu, (415) 502-3400.

B. The University has several resolution processes for addressing reports of sexual violence and sexual harassment, including procedures for Alternative/Early Resolution and Formal Investigation. Information on Alternative / Early Resolution may be found at Section IV, below.

C. Upon receipt of a report of or information about alleged sexual violence and/or sexual harassment, the Title IX Officer in OPHD will determine, consistent with the University’s policy on Sexual Violence and Sexual Harassment, whether a Formal Investigation should be initiated or Alternative/Early Resolution is an option.

D. For those Complainants who do not want to participate in an investigation, or request that the University not move forward with an investigation, the University will strive to honor the stated wishes of the Complainant concerning whether to move forward with an investigation. The University will seek to balance a Complainant's request for anonymity or to not participate in an investigation with its broader obligation to campus safety. There may be circumstances, however, in which the University may need to move forward against the Complainant’s wishes, or in which the University may determine that an investigation will not occur despite the Complainant’s wish to pursue an investigation.

E. Should the Title IX Officer determine that an investigation will not be conducted, the Title IX Officer will notify the Complainant in writing and explain the rationale for the determination, including a statement that should new information become available, the Complainant maintains his or her right to file a new complaint with the Title IX Officer at any time.

F. Throughout the resolution process, whether Alternative/Early Resolution or Formal Investigation, the University will offer and provide support services for Complainants through the CARE Advocate.

G. Throughout the resolution process, the University will offer student Respondents non-confidential services through the Student Success Liaison, who serves as the Respondent Services Coordinator.

H. The University will also consider and take interim measures as appropriate to ensure the safety, well-being, and equal access to University programs and activities of its students. Interim measures include, but are not limited to, the following: no contact orders; holds on University records, academic support and accommodations; and counseling. The University may impose an Interim Suspension as appropriate and consistent with the Policies Applying to Campus Activities, Organizations and Students (PACAOS) - 105.08. Determinations for graduation eligibility and degree conferral may be deferred until all allegations and any assigned sanctions and conditions have been fully resolved. Interim measures may be evaluated at any time, including to ensure that the measures are restrictive only to the minimum extent necessary.

Interim measures are available, as appropriate, regardless of whether Complainant seeks an investigation or formal resolution, and regardless of whether the Complainant or University seeks formal disciplinary action.

I. Upon being informed of an allegation of sexual violence or sexual assault, the University shall address the environment in an effort to eliminate any continuing effects of the alleged misconduct on education programs or activities and take reasonable steps to protect the community, even if a violation of policy and/or other misconduct is not found.

J. At all stages of the process, the Complainant and Respondent have the right to an Advisor and a Support Person of their choosing.

1. An Advisor is any individual accompanying a Complainant or Respondent throughout the investigation and resolution process. The Advisor may be any person, including an attorney or advocate, who is not otherwise a party or witness involved in the investigation. The parties may be accompanied by one Advisor at any meeting or proceeding related to the investigation or resolution outlined in these procedures. While the Advisor may provide support, guidance and advice to the parties, they may not speak on behalf of the parties or otherwise actively participate in, or in any manner disrupt such meetings and/or proceedings.

2. A Support Person is any individual accompanying a Complainant or Respondent throughout the process, and may be any person who is not otherwise a party or witness involved in the investigation. The Complainant and Respondent may be accompanied by a Support Person in addition to an Advisor at any meeting or proceeding related to the investigation or resolution outlined in these procedures. However, the role of the Support Person is only to provide support. The Support Person is not permitted to speak or otherwise participate in any meeting or proceeding related to the investigation or resolution outlined in these procedures.

3. Any fees and any costs associated with the presence of an Advisor and/or Support Person shall be the responsibility of the student. There is no cost or fee for support through the CARE Advocate or the Respondent Services Coordinator.

4. Complainants and Respondents must notify the University at least five (5) business days in advance, if they plan to be accompanied by an attorney at any stage of the process. If the Complainant or Respondent is accompanied by an attorney, University Counsel may also be present.

5. No one acting as an Advisor or Support Person to the Complainant or Respondent may also serve as a witness at any stage of the process. No person currently serving as an Appeal Body member may serve as an Advisor or Support Person to the Complainant or Respondent. (See Section VII(D) infra for the definition of Appeal Body.)

K. Neither the Complainant nor the Respondent is required to participate in the resolution process. The University will not draw any adverse inferences from a Complainant’s or Respondent’s decision to remain silent during the process. An investigator, decision-maker, or Appeal Body will reach findings and conclusions based on the information available. An investigator, decision-maker, or Appeal Body may draw adverse inferences when a student selectively participates in the process, such as choosing to answer some but not all questions posed. The failure by Complainant or Respondent to appear or respond to any parts of the proceeding by the stated deadlines will not be cause to delay, cancel, postpone, or reschedule, unless for good cause shown and approved by the Title IX Coordinator and/or Student Conduct Director (or designee).

L. The campus Case Management Team (CMT) will track all stages of the resolution process – from receipt of the report through the investigation and, if applicable, the University student discipline process.

M. All University officials involved in the resolution process will be trained to carry out their roles in an impartial manner in keeping with trauma-informed practices.

N. The standard of proof at all stages of the process is preponderance of the evidence (i.e., more likely than not).

O. All stages of the process are closed to the public. Complainants, Respondents, Support Persons, Advisors (including attorneys), and witnesses are not permitted to record any stage of the process.

P. The University will endeavor to complete all stages of the process, including all appeals, within 120 business days from the date of OPHD’s receipt of a report.

1. This 120 business days deadline and all deadlines contained in these procedures may be extended by the University, based on the totality of the circumstances and for good cause shown and documented.

2. Requests by a Complainant or Respondent for extensions of deadlines must be made in writing to the University.

3. Both the Complainant and the Respondent will be notified, in writing, of any extension(s) in accordance with applicable policies, laws and government guidance.

IV. ALTERNATIVE/EARLY RESOLUTION OF ALLEGATIONS OF SEXUAL VIOLENCE AND SEXUAL HARASSMENT

A. Alternative/Early Resolution may be used when a report is made by a third party or anonymously; when both parties want to resolve a matter cooperatively; when a formal investigation is unlikely to lead to a satisfactory outcome; or in cases involving less serious violations. While the University encourages Alternative/Early Resolution, the University does not require parties to participate in Alternative/Early Resolution. Moreover, some reports of sexual violence and sexual harassment may not be appropriate for alternative/early resolution and may require a formal investigation, which is at the discretion of the Title IX Officer.

B. Means for Alternative/Early Resolution are intended to be flexible and encompass a full range of possible, appropriate outcomes, including, but not limited to, the following:

1. Mediating an agreement between the parties (except in cases of sexual violence);

2. Separating the parties;

3. Implementing safety measures;

4. Referring the parties to a counseling program;

5. Conducting targeted educational and training programs; and

6. Conducting a follow-up review to ensure that the resolution has been implemented effectively.

C. The Complainant and Respondent have the right to end the early resolution process and instead request a formal investigation at any time.

V. FORMAL INVESTIGATION OF ALLEGATIONS OF SEXUAL VIOLENCE AND SEXUAL HARASSMENT 

A. When the University determines that a sexual violence and/or sexual harassment investigation will be conducted, the Title IX Officer and the Director of Student Conduct (or designee) will jointly send written notice of the charges to the Complainant and Respondent. The written notice will include:

1. A summary of the allegations and potential policy violations, along with the corresponding range of potential sanction(s);

2. The purpose of the investigation;

3. A statement that the investigative report, when issued, will make factual findings and a recommendation regarding whether there has been a violation of University policy;

4. A statement that the findings and recommendation will be based on a preponderance of the evidence standard (i.e., more likely than not);

5. A summary of the process, including the expected timeline; and

6. A summary of the rights of the Complainant and Respondent.

B. At any point during the investigation, the joint written notice of charges may be amended as new or additional information becomes available that alleges additional misconduct, including, but not limited to, academic violations, professional violations, student conduct code violations, and discrimination, harassment and/or violence in violation of University policies. Amendments may include additional potential policy violations, as well as the corresponding range of potential sanctions.

C. The Title IX Officer will oversee the investigation and will designate an investigator to conduct a fair, thorough, and impartial investigation.

D. During the investigation, the Complainant and Respondent will be provided an equal opportunity to meet with the investigator, submit information, and identify witnesses who may have relevant information.

E. The investigator will meet separately with the Complainant, Respondent, and third party witnesses who may have relevant information, and will gather other available and relevant evidence and information. The investigator may follow up with the Complainant or the Respondent as needed to clarify any inconsistencies or new information gathered during the course of the investigation. Participants in an investigation shall be advised that maintaining confidentiality of any information ascertained during the course of the investigation is essential to protecting the integrity of the Sexual Violence and Sexual Harassment policy and procedures. However, these procedures shall not prevent the Complainant or the Respondent from discussing the investigation with their advisor and/or support person.

F. The investigator may determine the relevance of any witness or other evidence to the findings and may exclude certain types of evidence or information that is irrelevant or immaterial. Specifically, character evidence is not relevant and will not be considered. Evidence of the Complainant's past sexual history will typically not be used in determining whether the conduct occurred, except where consent is at issue, in which case prior consensual activity between the two parties, while not determinative, may be relevant to determining whether consent was sought and given. In addition, past sexual history of the Complainant may be relevant under very limited circumstances, for example, to explain injury.

G. When a law enforcement agency is conducting its own investigation, the investigator will coordinate his or her fact-finding efforts with the law enforcement investigation. At the request of law enforcement, the investigation may be briefly delayed as needed to meet any specific needs of the criminal investigation. Such a delay may be cause for extending the timelines to complete the process and the delay will be communicated to the parties, as appropriate, and documented.

H. The investigator will prepare a written report that includes a statement of the allegations and issues, the positions of the parties, a summary of the evidence, findings of fact, and a recommendation regarding whether there are any policy violations. If the Complainant or Respondent offered witnesses or other evidence that was not considered by the investigator, the investigation report will include an explanation why it was not considered.

I. The investigation report will be retained and made available to the parties on request upon conclusion of the investigation, and may be redacted as necessary to protect individual privacy rights.

VI. DECISION ON RESPONSIBILITY AND DISCIPLINARY SANCTIONS

A. Upon completion of the Title IX Investigation, the Title IX Officer and Director of Student Conduct (or designee) will jointly send to the Complainant and the Respondent (a) written notice of the investigation findings and the investigator’s recommended determinations, and (b) a copy of the investigation report. The investigation report may be redacted if necessary to protect individual privacy rights.

B. The written notice of the findings and recommended determinations will include the following:

1. A statement of the factual findings and recommendations regarding whether the charge(s) have been substantiated, including whether policies have been more likely than not violated, and if so the range of potential sanctions;

2. An admonition against intimidation or retaliation;

3. An explanation of any interim measures that will remain in place;

4. A statement of the right to appeal that will be explained further in the notice of decision;

5. A statement that the Director of Student Conduct (or designee) will determine whether the charges have been substantiated and policies have been more likely than not violated and, if so, a statement that the Director of Student Conduct (or designee) will assess the disciplinary sanctions and inform the Complainant and Respondent of the sanctions within ten (10) business days of the notice of findings; and

6. A statement that the Complainant and/or Respondent may schedule a meeting with the Director of Student Conduct (or designee) and/or submit a statement in writing to be heard on the question of the findings of any policy violations and the discipline prior to the decision and the imposition of sanctions. This meeting is not an opportunity to present new or additional evidence; all evidence should be submitted to the investigator prior to the conclusion of the investigation.

a. The purpose of the meeting with the Director of Student Conduct (or designee) will be to address any administrative or procedural questions related to the procedures in section VI.C-E and section VII.

b. Either party may submit a written statement for review by the Director of Student Conduct (or designee) that may help inform sanctioning relative to the sanctioning guidelines in VI.C.1-4. Meetings with the Director of Student Conduct (or designee) must take place and/or written statements must be submitted within five (5) business days of the notice of findings.

C. If the Director of Student Conduct (or designee) determines that disciplinary sanctions are appropriate, the sanctions will be determined in accordance with the sanctioning guidelines that are included as an Appendix to these procedures and in accordance with definitions in the UC Systemwide Sexual Violence and Sexual Harassment Policy.

1. Disciplinary sanctions for sexual assault, domestic/dating violence, or stalking in which one or more of the following factors are present will result in a minimum sanction of Suspension for at least two years, up to dismissal:

a. force, violence, menace, or duress;

b. deliberately causing a person to become incapacitated or deliberately taking advantage of a person’s incapacitation; or

c. Recording, photographing, transmitting, viewing, or distributing intimate or sexual images without consent.

2. Disciplinary sanctions for sexual assault involving penetration, domestic/dating violence, or stalking will, absent exceptional circumstances, result in a minimum sanction of Suspension for two years, up to dismissal.

3. Disciplinary sanctions for other sexual contact in violation of policy will, absent exceptional circumstances, result in a minimum sanction of Suspension for one year.

4. Failure to fulfill the requirements of a sanction may result in further disciplinary action and/or a hold being placed on the student’s account.

D. The Director of Student Conduct (or designee) may consult with the Title IX Officer in the Office for the Prevention of Harassment and Discrimination or other appropriate University officials at all stages of the process, including, but not limited to, at any point in the decision-making process.

E. Within ten (10) business days of receipt of the notice of findings and recommended determinations, the Director of Student Conduct (or designee) will send written notice to the Complainant and Respondent setting forth the decision on whether (1) the charges have been substantiated, (2) any policies have been violated, and (3) any sanctions are to be imposed. The written notice will include the following:

1. A description of the determinations as to whether the charges have been substantiated and any policies have been violated, and if so, a description of the sanctions, and a description of new or remaining interim measures, if applicable;

2. The rationale for the determinations[1] and the sanctions;

3. A statement of the right to appeal, the procedure that will be followed in hearing the appeal, the grounds upon which the appeal may be based, and the office to which the appeal may be submitted; and

4. An explanation that both the Complainant and Respondent will receive a copy of any appeal prior to an appeal hearing, should an appeal(s) be submitted. The Title IX investigation and the Director of Student Conduct’s (or designee’s) determination of responsibility and sanctions will be completed within 60 business days from OPHD’s receipt of a report absent an extension for good cause shown and documented. Appropriate parties will be notified in writing of any extension(s).

VII. APPEAL PROCESS

A. The Complainant and Respondent may contest the decision and/or the sanctions by submitting an appeal. Factual findings shall be based on a preponderance of the evidence (more likely than not). The appeal should identify the reason(s) why the party is challenging the outcome under one or more of the following grounds:

1. There was procedural error in the process that materially affected the outcome, such as the investigation was not fair, thorough or impartial;

2. The decision was unreasonable based on the evidence;

3. There is new, material information that was unknown and/or unavailable at the time the decision was made that should affect the outcome;

4. The disciplinary sanctions were disproportionate to the findings.

B. An appeal must be submitted in writing based on the grounds outlined in VII.A.1-3 to the Hearing Coordinator (or designee) within ten (10) business days following written notice of the decision and disciplinary sanctions, if imposed. The appeal must identify the grounds for appeal and contain a brief statement of the reasons supporting each ground for appeal.

C. If an appeal is submitted, any disciplinary sanctions ordinarily will not be imposed until the appeal process is completed. Interim measures, such as no contact orders, academic accommodations, etc. will remain in effect during the appeal process unless otherwise indicated by the University.

D. The appeal will be decided at a hearing by an Appeal Body composed of one to three individuals who may be University staff or academic appointees, or non-University officials, such as administrative law judges or experienced investigators. The Hearing Body will be appropriately trained. A Hearing Coordinator may assist the Appeal Body with the administration of the process, including the selection of the one to three Appeal Body panelists. The Hearing Coordinator may be present at the appeal hearing but will not have any vote in the appeals process.

1. To the extent practicable, selected Appeal Body panelists will be not known to the Complainant(s) and Respondent(s). Either the Complainant or Respondent may, for good cause, submit one written challenge of the assignment of a particular Panel Member to the Hearing Coordinator within two (2) business days of submitting an appeal and no less than ten (10) business days before the appeal hearing whichever comes first. No written challenges will be accepted beyond this timeframe. The Hearing Coordinator will provide a written decision within two (2) business days of receipt of the written challenge.

E. The Appeal Body will review the appeal(s) and decide whether they contain sufficient information concerning the permitted grounds for appeal and rationale in support of those grounds. The purpose of this review is not to decide the merits of the appeal(s), but to identify the nature and scope of the issues to be addressed in the appeal hearing. The Appeal Body will make a determination within five (5) business days of receipt of the appeal(s). The Appeal Body will attempt to reach consensus on a decision but the majority shall make the decision if consensus cannot be reached. If a written appeal is defective or incomplete, the appealing party will be given one opportunity to correct and resubmit the appeal within 2 business days, or on the original date the appeal would have been due, whichever is later. Delays will be communicated to the parties, as appropriate, and documented.

F. Conducting the Appeal Hearing

1. Pre-Hearing Procedures

a. Not less than ten (10) business days before the appeal hearing, the Hearing Coordinator will send written notice to the Complainant and Respondent of the appeal hearing date, time, location and procedures. The notice will include a copy of the appeal(s) to be considered at the appeal hearing.

i. If circumstances warrant, the appeal hearing may be held at any time, including, but not limited to, during the summer session(s), or between academic terms.

ii. Requests to change the time, date, or place of the appeal hearing must be made in writing by the Complainant or the Respondent to the Hearing Coordinator no later than five (5) business days prior to the date of the appeal hearing. In the interest of expediency and fairness, appeal hearings shall not be delayed due to unavailability of an advisor, support person, or witnesses. The Appeal Body will grant or deny the request and will notify both Complainant and Respondent, in writing, of any change.

iii. Failure by the Complainant or Respondent to appear at the appeal hearing without approval for good cause by the Title IX Coordinator and/or Student Conduct Director (or designee), will not be cause to cancel, postpone, or reschedule the appeal hearing, and the appeal hearing will be conducted as scheduled and in accordance with these procedures. An appeal hearing that takes place absent one of the parties or with limited or no input from that individual will not, considered alone, be grounds for appeal.

iv. If the Complainant, Respondent, or any other witness is not available to attend the appeal hearing in-person, the Appeal Body may allow participation by video conferencing (e.g. Skype) or other means of communication. Requests to appear virtually must be made at least five (5) business days prior to the appeal hearing unless the Director of Student Conduct (or designee) grants an exception for good cause.

b. At least five (5) business days prior to the appeal hearing, the Complainant and Respondent will submit to the Hearing Coordinator the information they intend to present at the appeal, including all documents to be presented, the names of all witnesses, questions for the Appeal Body to ask of those testifying during the appeal hearing, and a brief summary of all witnesses’ expected testimony. Complainant and Respondent must also submit, if applicable, the name(s) of their one (1) advisor and/or one (1) Support Person who will be present at the appeal hearing, as well as any requests for physical or visual separation from the parties at least five (5) days prior to the appeal hearing.

c. At least two (2) business days prior to the appeal hearing, the Complainant and Respondent and Appeal Body will receive copies of all the information that will be considered at the appeal hearing, including the names of potential witnesses and a summary of the information they are expected to provide.

d. Prior to the appeal hearing and/or during the appeal hearing, the Appeal Body may:

i. Exclude information and/or witness testimony that is deemed irrelevant in light of the grounds for appeal, not in dispute, or unduly repetitive.

ii. Decide any procedural issues for the appeal hearing, including the mechanism for submitting additional questions prior to and/or during the appeal hearing.

iii. Make any other determinations necessary to ensure an orderly, productive, and procedurally proper appeal hearing.

2. Appeal Hearing Procedures:

a. The Title IX investigator will be present and may testify at the appeal hearing depending on the appeal grounds in question. The Director of Student Conduct (or designee) may be present and may testify at the appeal hearing depending on the appeal grounds in question. The Appeal Body may question any individual testifying at the appeal hearing. The investigation report and any supporting documents or materials will be entered as evidence at the appeal hearing.

i. Testimony, questioning, and other evidence will only pertain to the appeal grounds submitted.

ii. The Title IX investigator’s testimony will pertain to underlying facts relevant to the appeal ground(s), whereas the Director of Student Conduct (or designee’s) testimony will pertain to the rationale for making decisions regarding responsibility and sanctions.

b. The Appeal Body may allow the Complainant, Respondent, and/or witnesses to be visually or physically separated during the appeal hearing. This may include, but is not limited to, the use of a physical partition, a separate physical location, videoconference and/or any other appropriate technology. The Appeal Body must be able to see the Complainant, Respondent and any witnesses when they are presenting information.

c. The Complainant and Respondent will have the opportunity to present the information they submitted pursuant to Section VI.F.1.b (unless excluded by the Appeal Body pursuant to Section VI.F.1.d.).

i. Complainant and Respondent’s witnesses will be excluded from the appeal hearing except for when they are providing information to the Appeal Body.

d. The Complainant and Respondent have the right to hear all individuals who testify at the appeal hearing and to propose questions to be asked of all individuals who testify at the appeal hearing in accordance with the mechanism specified by the Appeal Body.

e. The Appeal Body will determine the order of questioning. Whenever possible, the Appeal Body will ask the questions as they are submitted by the Complainant and Respondent and will not rephrase or change them. The Appeal Body may, however, exclude questions that are unduly repetitive, clearly not relevant, inflammatory or offensive, or unduly time consuming.

f. The appeal hearing will be audio recorded by the University. At the conclusion of the appeal hearing, the Complainant and/or Respondent may request, in advance, to listen to the recording. The recording may be listened to in a location specified by the Hearing Coordinator (or designee) in the presence of a designated staff member.

The failure to record all or part of an appeal hearing, including, but not limited to, if a recorder malfunctions, will not be grounds for invalidating the appeal hearing or grounds for appeal.

g. Formal rules of evidence will not apply. The Appeal Body may consider the form in which information is presented, as well as the credibility of any party or witness, in weighing the information and reaching findings.

G. Appeal Decision:

1. The Appeal Body will deliberate in private and reach a decision within five (5) business days of the appeal hearing, based on a preponderance of the evidence standard (i.e. more likely than not). The Appeal Body shall attempt to reach consensus on a decision, but the majority shall make the decision if consensus cannot be reached.

2. The Appeal Body shall take into account the record developed by the investigator and the evidence presented at the appeal hearing, and may make its own findings and credibility determinations based on all of the evidence before it.

3. The Appeal Body may:

a. Uphold the findings and disciplinary sanctions;

b. Overturn the findings or sanctions; or

c. Modify the findings or sanctions.

4. The Appeal Body will summarize its decision in a written report that includes the following:

a. A statement of the grounds for the appeal;

b. A summary of the process undertaken by the Appeal Body;

c. A summary of the information considered by the Appeal Body; and

d. The decision of the Appeal Body and the rationale for the decision including, where the findings or sanctions are overturned or modified, an explanation of why the findings were not reasonable or the sanctions were disproportionate, either at the time they were made or in light of the evidence considered by the Appeal Body. The decision will also include an explanation of any interim measures that will remain in place.

5. Within two (2) business days of receiving the appeal hearing report, the Hearing Coordinator will send the Appeal Body’s written decision to Complainant and Respondent.

a. If the findings and the sanctions are upheld, the Hearing Coordinator will inform the Respondent and Complainant that the matter is closed with no further right to appeal.

b. If the findings or sanctions are overturned or modified, the Hearing Coordinator will inform the Respondent and Complainant of the right to submit a written appeal to the Vice Chancellor of Student Academic Affairs (or designee) within five (5) business days based on:

i. Procedural error that materially affected the outcome of the appeal, or

ii. A sanction that is disproportionate to the findings.

c. If an appeal is submitted, the other party will receive a copy of the written appeal within two (2) business days and may choose to submit a written statement as well within five (5) business days.

6. The Vice Chancellor of Student Academic Affairs (or designee) will issue a written decision to the Complainant and Respondent, normally within ten (10) business days. This review is documentary in nature and there is no hearing and no in person meetings. There is no further right to appeal.

The appeal process described above, including the appeal hearing and any appeal to the Vice Chancellor of Student Academic Affairs (or designee), will normally be completed within 60 business days of the date of the notice of decision and sanctions (where imposed). All deadlines contained herein may be extended by the University for good cause shown to appropriate parties and documented. Appropriate parties will be notified of any extension in accordance with applicable policies and laws and/or government guidance.

[1] If the Director of Student Conduct (or designee) adopts the investigator’s recommended determinations, the notice may incorporate the investigation report by reference as the rationale for the decision. If the determinations differ from the investigator’s recommendations, then the notice will explain the rationale for that decision.

 


APPENDIX:  DISCIPLINARY PROCESS FOR STUDENT SANCTIONS

 

I. INTRODUCTION

These standards are intended to ensure the consistent application of disciplinary sanctions by the University of California in responding to conduct that violates the University's Policy on Sexual Violence and Sexual Harassment and the University’s Policies Applying to Campus Activities, Organizations, and Students (PACAOS) Section 100 (Policy on Student Conduct and Discipline).*  The following describes the University's procedures for assigning disciplinary sanctions when the respondent is a student.

*For alleged violation(s) of the University of California Policy on Sexual Violence and Sexual Harassment (http://policy.ucop.edu/doc/4000385/SHSV) (including sexual assault, domestic violence, dating violence, and stalking of a sexual nature, etc.), discipline and adjudication procedures detailed in PACAOS Appendix E: Sexual Violence and Sexual Harassment Student Adjudication Framework (https://studentlife.ucsf.edu/appendix-e-sexual-violence-and-sexual-harassment-student-adjudication-procedures) apply. In the event of conflicts between Appendix E and any other policies or procedures published by the University of California and/or UCSF, including but not limited to the Policies Applying to Campus Activities, Organizations, and Students (PACAOS), Appendix E takes precedence. In these matters, the Office for Prevention of Harassment and Discrimination (OPHD) makes determinations for investigations and the Student Conduct Office makes determinations for responsibility of those charged, and assigns disciplinary sanctions, if applicable, in accordance with Appendix E.  Students facing multiple allegations of misconduct will, at the discretion of the University, be subject to the applicable policies and due process procedures for each of the respective violations (including, but not limited to, academic, professional, student conduct, and/or discrimination, harassment and other sexual violence). These processes may occur concurrently and may result in additional and different outcomes and sanctions.

II. PRINCIPLES

A. The administration of student discipline will be consistent with the UC PACAOS Policy on Student Conduct and Discipline.* (*See above.)

B. When a student is found responsible for violating the University’s Policy on Sexual Violence and Sexual Harassment and the UC PACAOS Policy on Student Conduct and Discipline, the University will assign disciplinary sanctions that are appropriate to the violation, taking into consideration the context and seriousness of the violation.

C. When a student is found not responsible for violating the University's Policy on Sexual Violence and Sexual Harassment and the UC PACAOS Policy on Student Conduct, the University is committed to taking reasonable efforts to assist any student who has been disadvantaged with respect to employment or academic status as a result of the unsubstantiated allegations.

D. Disciplinary sanctions are designed to hold a student accountable for violating University standards of conduct and to promote personal growth and development.  Disciplinary sanctions also serve the purpose of stopping the behavior that violated this policy and preventing its recurrence.

E. The University of California recognizes that acts of sexual violence and sexual harassment are contrary to its goals of providing an educational environment that is safe and equal for all students.

F. University of California campuses are permitted to inform other UC campuses of a student's disciplinary record for violating the University's Sexual Violence and Sexual Harassment Policy and the UC PACAOS Policy on Student Conduct and Discipline.

II. DISCIPLINARY SANCTIONS

A. University disciplinary sanctions include, but are not limited to:

1. Dismissal from the University of California,

2. Suspension from the campus,

3. Exclusion from Areas of the Campus or from Official University Functions,

4. Loss of Privileges and Exclusion from Activities,

5. Restitution,

6. Probation

7. Censure/Warning, and/or

8. Other actions as set forth in University policy and campus regulations.

B. The definitions of disciplinary sanctions are found in University of California PACAOS Section 105.00 (Types of Student Disciplinary Action) and local campus regulations.

C. The posting of disciplinary sanctions on academic transcripts will follow University policy as defined in University of California PACAOS, Section 106.00.

II. PROCESS

A. When a respondent has been found in violation, the University will provide written notice of the assigned disciplinary sanctions and a brief rationale for the sanctions.

B. Disciplinary sanctions will be assigned as follows:

1. Sexual assault, domestic/dating violence, or stalking in which one or more of the following factors are present will result in a minimum sanction of Suspension for at least two years, up to dismissal:

i. force, violence, menace, or duress;

ii. deliberately causing a person to become incapacitated or deliberately taking advantage of a person’s incapacitation; or

iii. recording, photographing, transmitting, viewing, or distributing intimate or sexual images without consent.

2. Sexual assault involving penetration, domestic/dating violence, or stalking will, absent exceptional circumstances, result in a minimum sanction of Suspension for two years, up to dismissal.

3. Other sexual contact in violation of policy will, absent exceptional circumstances, result in a minimum sanction of Suspension for one year.

C. Assigned disciplinary sanctions and the factors considered for each case will be documented and reported to the University of California Office of the President on a quarterly basis. The report is to ensure a reasonable level of consistency from campus to campus.

III. FACTORS CONSIDERED IN DETERMINING DISCIPLINARY SANCTIONS

A. In determining the appropriate sanction, the following factors may be taken into account:

1. Seriousness of violation: location and extent of touching; duration of conduct; single or repeated acts; multiple policy violations in connection with the incident; verbal or physical intimidation; presence of weapons, use of force, violence, physical injury.

2. Intent or motivation behind violation: no intent to cause harm; passive role in violation; pressured or induced by others to participate in the violation; use of authority to abuse trust or confidence; planned or predatory conduct; deliberately causing a person to become incapacitated or deliberately taking advantage of a person's incapacitation; recording, photographing, transmitting, viewing, or distributing intimate or sexual images without consent; hate or bias based on the complainant’s membership or perceived membership in a protected group as defined in UC PACAOS Section 104.90.

3. Response following violation: voluntarily acknowledged wrongdoing at early stage of the process; failure to follow no contact order; attempt to influence witnesses; obstructed or disrupted the process.

4. Disciplinary history: prior violations unrelated, prior violations related.

5. Impact on others: input from the complainant, protection or safety of the community.