XVI. Title IX Sexual Harassment Hearing Procedures

The Title IX Sexual Harassment hearing is the appropriate COD case resolution method to use in cases alleging Title IX Sexual Harassment.

The following hearing procedures are generally followed for a Title IX Sexual Harassment hearing. The COD reserves the right to adjust these procedures as the Chair deems appropriate and as permitted by law. If a complaint of Title IX Sexual Harassment also includes allegations of conduct that would violate other policies in addition to the Title IX Sexual Harassment policy, these procedures will apply to the resolution of the complaint in its entirety.

A. The Title IX Sexual Harassment 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. At the Chair’s discretion, the Title IX Sexual Harassment hearing panel may also include a qualified professional (who may be external to MIT) hired by MIT to serve as a Co-Chair and to participate as a decision-maker in all issues before the hearing panel. For purposes of this Section, references to “the Chair” include the Chair and the Co-Chair, if any.

B. 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.

C. 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 Title IX Sexual Harassment hearing.

i. 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 Title IX Sexual Harassment hearing to permit time for the investigator(s) to consider the new information and incorporate it into the investigation report.
 
ii. 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.
 

D. 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 other than a written response to the investigation report prior to the hearing.

i. 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 Title IX Sexual Harassment hearing. Alternatively, the Chair can postpone the Title IX Sexual Harassment hearing to permit time for the investigator(s) to consider the new information and incorporate it into the investigation report.
 

E. The Title IX Sexual Harassment hearing will be scheduled as soon as reasonably possible, but no sooner than ten days after the parties receive the final investigation report.

F. The OSCCS will notify the complainant and respondent of the Title IX Sexual Harassment hearing date, time, location, and participants in writing with sufficient time for the parties to prepare to participate.

G. At the request of either party, Title IX Sexual Harassment 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.

H. The Title IX Sexual Harassment hearing usually proceeds as follows, although the Chair may vary the procedure at their discretion and as permitted by law.

i. The Chair reads introductions and a description of the hearing procedures to the parties.
 
ii. The Chair reads the alleged policy violation(s), states that there is a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the hearing, and asks the respondent either to accept or deny responsibility.
 
iii. The complainant may make an opening statement followed by the opportunity of the COD Chair and members of the Title IX Sexual Harassment hearing panel to ask questions of the complainant. The respondent’s advisor will then have the opportunity to conduct cross-examination of the complainant.
 
iv. The respondent may make an opening statement followed by the opportunity of the COD Chair and members of the Title IX Sexual Harassment hearing panel to ask questions of the respondent. The complainant’s advisor will then have the opportunity to conduct cross-examination of the respondent.
 
v.  Witnesses who provided statements or other evidence during the investigation may provide statements followed by the opportunity of the COD Chair and members of the Title IX Sexual Harassment hearing panel to ask questions of the witnesses. The complainant’s advisor and the respondent’s advisor will then have the opportunity to conduct cross-examination of the witnesses.
 
vi. During cross-examination, the Chair must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. The cross-examination must be conducted directly, orally, and in real time by the party’s advisor and never by a party personally. Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the Chair must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
 
a.  Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
 
b. The Chair and the hearing panel may not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
 
vii. The complainant may make a brief closing statement, followed by the same opportunity for the respondent.
 
viii. The Chair makes a closing statement, including when a decision is expected to be made.
 
ix. The COD Title IX Sexual Harassment hearing panel then meets in executive session to make a determination as to whether the respondent is responsible for a policy violation and the appropriate sanction.
 

I. Witnesses:

i.  The Title IX Sexual Harassment hearing panel is prohibited from relying on any statement of a witness in reaching a determination regarding responsibility if the witness does not submit to cross-examination at the Title IX Sexual Harassment hearing. As a result, witnesses who provided statements or other evidence during the investigation are expected to appear at the Title IX Sexual Harassment hearing.
 
ii. Character witnesses are not permitted.
 
iii. 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.
 

J. Chair's (including any Co-Chair) 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. 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. Before a complainant, respondent, or witness answers a cross-examination or other question, the Chair must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
 
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.
 

K. COD Title IX Sexual Harassment Hearing Panel Deliberations and Decision

i. Once the Chair concludes the hearing, the COD Title IX Sexual Harassment 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. If a respondent is found responsible, the hearing panel will then decide what is the appropriate sanction or sanctions to impose.
 
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.
 
b. If a party or witness does not submit to cross-examination at the live hearing, the hearing panel must not rely on any statement of that party or witness in reaching a determination regarding responsibility. The hearing panel cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
 
c. In reaching its determination, the hearing panel may not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
 
d. In deliberations on sanctions, the COD Title IX Sexual Harassment hearing panel may review the parties’ impact letters, if any, and any prior findings of responsibility of the respondent. The sanctions available are described in Section XI.
 
ii. The Chair will issue a written determination regarding responsibility, including any sanctions. The written determination must include the following:
 
a. Identification of the allegations potentially constituting Title IX Sexual Harassment;
 
b. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
 
c. Findings of fact supporting the determination;
 
d. Conclusions regarding the application of MIT’s policies, including the Title IX Sexual Harassment policy, to the facts;
 
e. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions MIT imposes on the respondent, and whether remedies designed to restore or preserve equal access to MIT’s education program or activity will be provided by MIT to the complainant; and
 
f. The procedures and permissible bases for the complainant and respondent to appeal.
 

The written determination can also include findings, sanctions, or rationale for any violations of policies other than the Title IX Sexual Harassment policy. In reaching a determination on violations of policies other than the Title IX Sexual Harassment policy, the hearing panel is not prohibited from relying on statements of a party or witness who did not submit to cross-examination.

iii. The Chair must provide the written determination to the parties simultaneously.
 

This written determination will be copied to MIT officials as appropriate and permitted by law. The determination regarding responsibility (including any sanction) becomes final either on the date that MIT provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

iv. The Chair or the OSCCS will offer to meet with the respondent and complainant.
 

L. Appeals

i.  Either the complainant or the respondent may appeal the decision reached at a Title IX Sexual Harassment hearing, regardless of the finding of responsibility or the severity of the sanction. The appeal procedure is described in Section XII.
 

M. Record Keeping

i.  The COD will create an audio or audiovisual recording, or transcript, of any Title IX Sexual Harassment hearing and make it available to the parties for inspection and review. No recording devices may otherwise 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 evidence submitted at the hearing, (3) the written determination; and (4) the recording or transcript of the hearing. This record will be maintained for at least seven years.
 

 

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