The sexual misconduct hearing is the appropriate COD case resolution method to use in cases alleging sexual misconduct, sexual harassment, intimate partner violence, or stalking that do not meet the definition of Title IX Sexual Harassment when (i) either the complainant or the respondent do not agree with the recommended finding of responsibility and (ii) suspension, expulsion, or degree revocation for a student, or suspension of recognition or loss or recognition for a student organization, is possible if the respondent is found responsible. A sexual misconduct hearing involves an initial hearing for the purpose of determining whether the respondent is responsible for a policy violation and, if necessary, a subsequent optional post-hearing sanctioning panel to determine an appropriate sanction.
The following hearing procedures are generally followed for a sexual misconduct hearing. The COD reserves the right to adjust these procedures as the Chair deems appropriate.
A.The sexual misconduct hearing panel shall be comprised of three members of the sexual misconduct subcommittee. The Chair or Associate Chair and at least one Dean/Vice Chancellor’s representative must be on the panel; the third representative can be any member of the sexual misconduct subcommittee.
B. The scope of the sexual misconduct hearing is limited to the points in dispute that have relevance to the determination of whether or not a policy violation occurred. The sexual misconduct hearing is not a venue where the parties are expected to re-tell their narrative of the events that resulted in the complaint or reiterate points already made in interviews or written statements submitted to the investigator(s). The purpose of the investigation is for a trained and unbiased professional to assemble and present all of the relevant information. The purpose of the sexual misconduct hearing is to use the information in the investigation report and the statements of the complainant and respondent to determine whether or not a policy violation occurred.
Accordingly:
i. In general, documents that were not submitted to the investigator(s) during the investigation and included in the investigation report may not be presented to the COD prior to or at the sexual misconduct hearing.
a) The Chair may grant an exception to permit relevant documents to be submitted that were not part of the investigation upon a showing of good cause. Alternatively, the Chair can postpone the sexual misconduct hearing to permit time for the investigator(s) to consider the new information and incorporate it into the investigation report.
b) If such new documents are permitted, the OSCCS will provide access to the newly submitted documents to the COD panelists, the complainant, the respondent, and their respective advisors.
c) All parties are required to affirm that materials they submit to the COD are their own work. Outside collaborators, including an advisor, must be cited.
ii. In general, a complainant, respondent, or relevant witness who had the opportunity to participate during the investigation but elected not to participate will not be permitted to participate verbally in the hearing or submit documents prior to the hearing.
a. The Chair may permit a complainant, respondent, or relevant witness who did not participate in the investigation to participate in the hearing upon a showing of good cause. Exceptions of this nature are expected to be rare. The possibility or pendency of a law enforcement investigation or criminal court proceedings will generally not be considered good cause for an exception. Such request must be made at least three business days before the sexual misconduct hearing. Alternatively, the Chair can postpone the sexual misconduct hearing to permit time for the investigator(s) to consider the new information and incorporate it into the investigation report.
C. The sexual misconduct hearing is scheduled as soon as is reasonably possible after the investigation report and the responses of the complainant and respondent accepting or rejecting the recommended finding are received.
D. In cases where a student organization is the respondent, the governing council responsible for that student organization shall be notified of the pending case during the investigation and be invited to submit a letter about the case during the investigation.
E. The OSCCS will notify the complainant and respondent of the sexual misconduct hearing date, time, location, and participants in writing.
F. Sexual misconduct hearings will be conducted using videoconference or other distance method or technology so that the parties are not in the same room simultaneously at any time during the hearing but can otherwise see and hear the other hearing participants and fully participate in the hearing.
G. The sexual misconduct hearing usually proceeds as follows, although the Chair may vary the procedure at their discretion.
i. The Chair reads introductions and description of the hearing procedures to the parties.
ii. The Chair reads the alleged policy violation(s) and asks the respondent either to accept or deny responsibility.
iii. The complainant may make an opening statement followed by the opportunity of the respondent to submit questions to the COD Chair to be asked of the complainant. The Chair will only ask questions of the complainant submitted by the respondent that the Chair determines are relevant. Then the COD sexual misconduct hearing panel will have the opportunity to ask questions of the complainant.
iv. Any approved complainant’s witnesses may provide statements followed by the opportunity of the complainant and the respondent to submit questions to be asked of the witness by the COD Chair. Then the COD sexual misconduct hearing panel will have the opportunity to ask questions of the witnesses.
v. The respondent may make an opening statement followed by the opportunity of the complainant to submit questions to the COD Chair to be asked of the respondent. The Chair will only ask questions of the respondent submitted by the complainant that the Chair determines are relevant. Then the COD sexual misconduct hearing panel will have the opportunity to ask questions of the respondent.
vi. Any approved respondent’s witnesses may provide statements followed by the opportunity of the complainant and the respondent to submit questions to be asked of the witness by the COD Chair. Then the COD sexual misconduct hearing panel will have the opportunity to ask questions of the witnesses.
vii. The COD sexual misconduct hearing panel may ask questions of both parties and the parties may submit any final questions to be asked of the other party. The Chair will relay any relevant questions.
viii. The complainant may make a brief closing statement, followed by the same opportunity for the respondent.
ix. The Chair makes a closing statement, including when a decision is expected to be made.
x. The COD sexual misconduct hearing panel then meets in executive session to make a determination as to whether the respondent is responsible for a policy violation.
H. Witnesses
In general, because they have already been interviewed and their information incorporated into the investigation report, witnesses who participated in the investigation will not be permitted to appear in person at the sexual misconduct hearing.
i. The Chair may permit a witness to appear in person at the hearing upon a showing of good cause. Such request must be made at least three business days before the sexual misconduct hearing.
ii. The Chair may request a witness to appear in person without a request from either party if the Chair believes the presence of such witness will be useful to the COD subcommittee members involved in the case.
iii. Any witnesses who are permitted to participate in the hearing may only be present at the hearing during their presentation of information and response to questions. The Chair may ask that witnesses remain available following their presentation in case a witness needs to be recalled for additional information.
iv. Character witnesses are not permitted.
v. Unless the Chair decides otherwise in unusual circumstance, or the investigator(s) collected evidence from an expert witness during the investigation, expert witnesses are not allowed.
I. Chair’s Role (or Associate Chair, when applicable:
i. The Chair convenes and facilitates the hearing.
ii. The Chair may postpone or suspend a hearing.
iii. The Chair may call a brief recess at any time during the hearing.
iv. At any time, the Chair determines whether certain witnesses should appear and decides whether any particular question, statement, or information will be allowed during a hearing. Formal rules of evidence that apply to civil or criminal judicial processes are not applicable.
v. The Chair may call a particular witness.
vi. The Chair shall warn any participant deemed to be disruptive, harassing, or intimidating to any other participant and if appropriate, excuse any individual's presence at a hearing, or take any other action deemed necessary by the Chair to ensure an orderly hearing.
J. COD Sexual Misconduct Hearing Panel Deliberations and Decision
i. Once the Chair concludes the hearing, the COD sexual misconduct hearing panel meets in executive session to reach a decision whether the respondent is responsible for a policy violation, using a preponderance of the evidence standard and based on a majority.
a. In reaching a decision, the hearing panel shall conduct an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence. Credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.
ii. If a respondent is found not responsible, the COD sexual misconduct hearing panel is over. The Chair or the OSCCS will offer to meet with the respondent and complainant, and the Chair will send a written letter notifying both parties of the decision as soon as is reasonably possible after the hearing. This letter will be copied to MIT officials as appropriate.
iii. If a respondent is found responsible, the Chair or the OSCCS will offer to meet with the respondent and the complainant, and the Chair will send a written letter notifying both parties of the decision on responsibility as soon as is reasonably possible after the hearing. Neither the complainant nor the respondent will be permitted to appeal the finding of responsibility (see Section XIV.K.) until after a decision on sanctions is also reached.
iv. After a decision finding the respondent responsible, the complainant and respondent will each be invited to submit a letter, not to exceed five double-spaced pages, to the hearing panel. This letter is an opportunity for each party to comment on the impact of this situation on them, any aggravating or mitigating factors they believe should be taken into consideration, and any sanctions they would like to recommend. Both parties will be given three business days to submit this letter after receipt of the initial decision letter from the Chair. No additional material may be submitted at this time.
a. All parties are required to affirm that materials they submit to the COD are their work. Outside collaborators, including an advisor, must be cited.
v. The Chair will also offer the complainant and respondent the opportunity to participate in a limited post-hearing sanctioning panel, before the same sexual misconduct hearing panel that reached the decision on responsibility, limited to the question of the appropriate sanction. The post-hearing sanctioning panel cannot be used to revisit or reargue issues that were addressed during the initial hearing. The COD will schedule the post-hearing sanctioning panel as soon as is reasonably possible after receipt of any written statements from the parties.
vi. Submission of a written statement and/or participation in the post-hearing sanctioning panel are optional for both parties. If a party chooses not to submit a written statement within the deadline or chooses not to participate in the post-hearing sanctioning panel, the COD will make its sanctioning decision based on the available information before it.
vii. Once the Chair concludes the post-hearing sanctioning panel (or both parties decline the option to participate in a post-hearing sanctioning panel), the COD sexual misconduct hearing panel meets in executive session to decide what is the appropriate sanction or sanctions to impose. In deliberations on sanctions, the COD sexual misconduct hearing panel may review any prior findings of responsibility of the respondent. The sanctions available are described in Section XI.
viii. The Chair or the OSCCS will offer to meet with the respondent and complainant, and the Chair will send a written notice of the sanctioning decision to both parties as soon as is reasonably possible after the post-hearing sanctioning panel. This letter will be copied to MIT officials as appropriate.
K. Either the complainant or the respondent may appeal the decision reached at a sexual misconduct hearing, regardless of the finding of responsibility or the severity of the sanction. The appeal procedure is described in Section XII.
L. Record Keeping
i. No recording of any kind of a hearing is allowed. No recording devices may be used during a hearing by anyone present.
ii. A documentary record of the proceedings will be kept in the files of the COD. This record should consist of: (1) the investigation report, (2) all documents submitted at the hearing, and (3) the decision letter. This record does not summarize or otherwise attempt to preserve the hearing or deliberative discussions.
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