Access to evidence
Dismissal of Complaint
Responding to a Complaint
SWIHA will give both parties equal opportunity to inspect and review evidence obtained as part of the investigation and make all such evidence available at any hearing, so as to give the parties an opportunity to refer to such evidence during the hearing. Prior to completion of the investigative report, SWIHA will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or hard copy and give the parties at least ten calendar days to submit a written response, which the investigator will consider prior to completion of the investigative report. The evidence will also be made available for inspection and review at a hearing.
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SWIHA allows both parties an opportunity to appeal the decision-maker’s written determination regarding responsibility or the dismissal of a formal complaint. Respondents are not able to appeal the content of any disciplinary actions or remedies determined appropriate by the decision maker.
An appeal may be based on:
- Procedural irregularity that affected the outcome of the matter;
- New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
- Bias (for or against complainants or respondents generally or the individual complainant or respondent as well as a conflict of interest by the Title IX Coordinator, investigator(s), or decision-maker(s) that affected the outcome of the matter; and
- Additional bases identified by SWIHA and offered equally to both parties.
SWIHA will give both parties ten days to submit a written statement in support of, or challenging, the outcome. The appeal decision-maker must issue (simultaneous to the parties) a written decision describing the appeal result and rationale for the result. The appeal decision-maker may not be the same person as the decision-maker(s) that reached the determination of responsibility or dismissal, the investigators, or the Title IX Coordinator.
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When SWIHA learns that someone is alleged to be a victim of sexual harassment, SWIHA will
- Promptly contact the person and inform them of their right to request supportive measure, whether that person decides to file a formal complaint, or not.
- Consider the alleged victim’s wishes and offer appropriate supportive measures under the circumstances.
- Explain to complainants that they have an option and a process for filing a formal complaint.
- Never pressure an individual into filing a formal complaint, or into participating in a grievance process.
- Investigate every formal complaint
If the conduct alleged in the formal complaint does not constitute sexual harassment as defined in § 106.30 even if proved, did not occur in SWIHA’s education program or activity, or did not occur against a person in the United States, SWIHA must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under Title IX and its implementing regulations. Importantly, such a dismissal does not preclude action under another provision of SWIHA’s code of conduct.
SWIHA may also dismiss a formal complaint or allegations in a formal complaint during an investigation or hearing in three specific circumstances:
- The complainant requests in writing to withdraw the complaint or allegations;
- The respondent is no longer enrolled, under contract, or employed by SWIHA; or
- Specific circumstances prevent SWIHA from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
In these situations, SWIHA will promptly send written notice of the dismissal and reason(s) for the dismissal simultaneously to the parties.
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First, SWIHA is responsible for and carries the burden of gathering evidence sufficient to reach a determination regarding responsibility, and this burden does not rest on the parties (with limitations noted relating to obtaining medical information).
SWIHA will provide live hearings for formal complaints of sexual harassment. At the hearing itself, SWIHA will allow direct cross-examination by the parties’ advisors and never by a party personally. This means that a complainant may not directly cross-examine a respondent, and vice versa. In addition, if a party does not have an advisor present at the hearing, SWIHA will provide that party with an advisor of SWIHA’s choice to conduct cross-examination on behalf of the party and the advisor may or may not be an attorney.
If parties are not available for an in-person live hearing, hearings may be conducted with all parties physically present in the same geographic location or, at SWIHA’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.
During the live hearing, SWIHA will only allow relevant cross-examination or other questions to be asked of a party or witness and before an answer, the decision-maker of the panel will first determine whether the question is relevant and explain any decision to exclude questions as not relevant. It is important to note that questions and evidence about a complainant’s sexual predisposition or prior sexual behavior are not relevant except in limited and specified circumstances.
Further, in making a determination regarding responsibility, the decision-maker will not rely upon any statement made by a party or witness who does not submit to cross-examination at the hearing. Also, the decision-maker cannot draw a determination regarding responsibility based solely upon a party’s or witness’s absence from the hearing or refusal to answer questions or submit to cross-examination. SWIHA will also create an audio- or audio-visual recording or transcript of any live hearing and make it available to the parties.
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Prior to the hearing, SWIHA will:
- Prepare an investigative report that fairly summarizes relevant evidence and provide it to the parties at least ten days prior to a hearing, if a hearing is required, or other time of determination regarding responsibility for their review and written response.
- Provide equal opportunity for the parties to present witnesses – including fact and expert witnesses and other inculpatory and exculpatory evidence;
- Not restrict the ability of either party (e.g., through “gag orders”) to discuss the allegations under investigation or to gather and present relevant evidence;
- Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice; and
- Provide written notice to the parties when their participation is invited or expected or required for hearings, investigative interviews, or other meetings. The notice must describe include the date, time, location, participants, and include a description of the purpose of the hearing, interview or meeting.
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SWIHA will notify the parties of the allegations that potentially constitute sexual harassment once a complaint has been received. This initial notification will include the identities of the parties involved in the incident, sufficient details about the allegations, including the identities of the parties if known, the conduct allegedly constituting sexual harassment, and date and location of alleged incident, if known. This written notice will include the applicable grievance process and advise the parties that they may have an advisor of their choice and may inspect and review evidence obtained in the investigation. It also includes SWIHA’s code of conduct and institutional values prohibiting knowingly making false statements or knowingly submitting false information during the grievance process.
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With or without a formal complaint, SWIHA will respond promptly in a manner that is not deliberately indifferent. SWIHA will respond to initial complaints within 24 business hours of receipt of the written formal complaint.
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SWIHA will keep all records related to Title IX complaints and investigations for 7 years. This includes: formal, informal, disciplinary, evidence, training materials (which must be publicly available), supportive measures, basis for conclusions, notifications, and written determinations.
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After the hearing, the decision-maker will issue a written determination regarding the responsibility of the respondent and any sanctions to the parties. The decision will be issued to the parties simultaneously. The written determination will include:
- Identification of the allegations potentially constituting sexual harassment.
- A description of the procedural steps taken from the receipt of the 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.
- Findings of fact supporting the determination.
- Conclusions regarding the application of SWIHA’s code of conduct to the facts.
- A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions SWIHA imposes on the respondent, and whether remedies designed to restore or preserve equal access to SWIHA’s education program or activity will be provided by SWIHA to the complainant.
- SWIHA’s procedures and permissible bases for the complainant and respondent to appeal.
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Title IX Table of Contents