Role and Participation of Witnesses in the Investigation
Witnesses (as distinguished from the parties) who are employees of Iowa Wesleyan University are strongly encouraged to cooperate with and participate in the University’s investigation and resolution process. Student witnesses and witnesses from outside of Iowa Wesleyan are encouraged to cooperate with the University’s investigations and to share what they know about a complaint.
Although in-person interviews for parties and all potential witnesses are ideal, circumstances (e.g., study abroad, summer break) may require individuals to be interviewed remotely. Zoom, FaceTime, Google Meets, or similar technologies may be used for interviews if the Investigator(s) determine that timeliness, efficiency, or other reasons dictate a need for remote interviewing. The University will take appropriate steps to reasonably ensure the security/privacy of remote interviews.
Witnesses may also provide written statements in lieu of interviews or choose to respond to written questions, if deemed appropriate by the Investigator(s), though is not preferred. If a witness submits a written statement but does not intend to be and is not present for questioning at a hearing, their written statement may not be used as evidence.
Recording of Interviews
No unauthorized audio or video recording of any kind is permitted during investigation meetings. If Investigator(s) elect to audio and/or video record interviews, all involved parties should be made aware of [and consent to] audio and/or video recording.
Evidentiary Considerations in the Investigation
The investigation does not consider: 1) incidents not directly related to the possible violation, unless they evidence a pattern; or 2) the character of the parties; or 3) questions and evidence about the Complainant’s prior sexual behavior, 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.
Referral for Hearing
Provided that the complaint is not resolved through Informal Resolution, once the final investigation report is shared with the parties, the Title IX Coordinator will refer the matter for a hearing.
The hearing cannot be held less than ten (10) business days from the conclusion of the investigation, when the final investigation report is transmitted to the parties and the Hearing Panel Chair, unless all parties and the Chair agree to an expedited timeline.
The Title IX Coordinator will select appropriate Hearing Panel members from the Pool/Team depending on whether the Respondent is an employee, student employee or a student, and provide a copy of the investigation report.
Hearing Panel Composition
The Title IX Coordinator will designate a three-member Hearing Panel from the Pool/Team and appoint 0ne of the three members as Chair of the Panel.
The Hearing Panel will not have had any previous involvement with the investigation. The Title IX Coordinator may elect to have an alternate from the Pool/Team sit in throughout the hearing process in the event that a substitute is needed for any reason.
Those who have served as Investigators will be witnesses in the hearing and therefore may not serve as Hearing Panel members. Those who are serving as Advisors for any party may not serve as Panel members in that matter.
The Title IX Coordinator may not serve as a member or Chair of the Hearing Panel in the matter, but may serve as an administrative facilitator of the hearing if their previous role(s) in the matter do not create a conflict of interest. Otherwise, a designee may fulfill this facilitator role. The hearing will convene at a time and venue determined by the Chair or designee.
Evidentiary Considerations in the Hearing
Any evidence that the Hearing Panel determines is relevant and credible may be considered. The hearing does not consider: 1) incidents not directly related to the possible violation, unless they evidence a pattern; 2) the character of the parties; or 3) questions and evidence about the Complainant’s prior sexual behavior, 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.
Previous disciplinary action of any kind involving the Respondent may be considered in determining an appropriate sanction upon a determination of responsibility, assuming Iowa Wesleyan University uses a progressive discipline system. This information is only considered at the sanction stage of the process, and is not shared until then.
The parties may each submit a written impact statement prior to the hearing for the consideration of the Hearing Panel at the sanction stage of the process when a determination of responsibility is reached.
After post-hearing deliberation, the Hearing Panel renders a determination based on the preponderance of the evidence; whether it is more likely than not that the Respondent violated the Policy as alleged.
Notice of Hearing
No less than ten (10) business days prior to the hearing, the Title IX Coordinator or the Chair will send notice of the hearing to the parties. Once emailed and/or received in-person, notice will be presumptively delivered. The notice will contain:
- A description of the alleged violation(s), a list of all policies allegedly violated, a description of the applicable hearing procedures, and a statement of the potential sanctions/responsive actions that could result.
- The time, date, and location of the hearing.
- Description of any technology that will be used to facilitate the hearing.
- Information about the likelihood the live hearing will occur with the parties located in separate rooms using technology that enables the Hearing Panel and parties to see and hear a party or witness answering questions.
- A list of all those who will attend the hearing, along with an invitation to object to any Hearing Panel member on the basis of demonstrated bias or conflict of interest. This must be raised with the Title IX Coordinator at least two (2) business days prior to the hearing.
- Information on how the hearing will be recorded and on access to the recording for the parties after the hearing.
- A statement that if any party or witness does not appear at the scheduled hearing, the hearing may be held in their absence, and the party’s or witness’s testimony and any statements given prior to the hearing will not be considered by the Hearing Panel. For compelling reasons, the Chair or Title IX Coordinator may reschedule the hearing.
- Notification that the parties may have the assistance of an Advisor of their choosing at the hearing and will be required to have one present for any questions they may desire to ask. The party must notify the Title IX Coordinator if they do not have an Advisor, and the University will appoint one. Each party must have an Advisor present. There are no exceptions.
- A copy of all the materials provided to the Hearing Panel about the matter, unless they have been provided already as part of the final investigation report.
- An invitation to each party to submit to the Chair an impact statement pre-hearing that the Hearing Panel will review during any sanction determination.
- An invitation to contact the Title IX Coordinator to arrange any disability accommodations, language assistance, and/or interpretation services that may be needed at the hearing, at least seven (7) business days prior to the hearing.
- Whether parties can bring mobile phones/devices into the hearing.
Hearings for possible violations that occur near or after the end of an academic term (assuming the Respondent is still subject to this Policy) and are unable to be resolved prior to the end of term will typically be held immediately after the end of the term or during the summer, as needed, to meet the resolution timeline followed by the University and remain within the 60-90 business day goal for resolution.
Alternative Hearing Participation Options
If a party or parties prefer not to attend or cannot attend the hearing in person, the party should request alternative arrangements from the Title IX Coordinator or the Chair at least five (5) business days prior to the hearing.
The Title IX Coordinator or the Chair can arrange to use technology to allow remote testimony without compromising the fairness of the hearing. Remote options may also be needed for witnesses who cannot appear in person. Any witness who cannot attend in person should let the Title IX Coordinator or the Chair know at least five (5) business days prior to the hearing so that appropriate arrangements can be made.
After any necessary consultation with the parties, The Chair will provide the names of persons who will be participating in the hearing, all pertinent documentary evidence, and the final investigation report to the parties at least ten (10) business days prior to the hearing.
Any witness scheduled to participate in the hearing must have been first interviewed by the Investigator(s) or have provided a written statement or answered written questions, unless all parties and the Chair assent to the witness’s participation in the hearing.
The same holds for any evidence that is first offered at the hearing. If the parties and Chair do not assent to the admission of evidence newly offered at the hearing, the Chair may delay the hearing and/or instruct that the investigation needs to be re-opened to consider that evidence.
The parties will be given a list of the names of the Hearing Panel at least five (5) business days in advance of the hearing. All objections to any Panel member must be raised in writing, detailing the rationale for the objection, and must be submitted to the Title IX Coordinator as soon as possible and no later than two (2) days prior to the hearing. Panel members will only be removed if the Title IX Coordinator concludes that their bias or conflict of interest precludes an impartial hearing of the allegation(s).
The Title IX Coordinator will give the Hearing Panel a list of the names of all parties, witnesses, and Advisors at least five (5) business days in advance of the hearing. Any Panel member who cannot make an objective determination must recuse themselves from the proceedings when notified of the identity of the parties, witnesses, and Advisors in advance of the hearing. If a Panel member is unsure of whether a bias or conflict of interest exists, they must raise the concern to the Title IX Coordinator as soon as possible.
During the ten (10) business day period prior to the hearing, the parties have the opportunity for continued review and comment on the final investigation report and available evidence. That review and comment can be shared with the Chair at a pre-hearing meeting (if scheduled) or at the hearing and will be exchanged between each party by the Chair.
The Chair may convene a pre-hearing meeting(s) with the parties and their Advisors and to invite them to submit the questions or topics they (the parties and/or their Advisors) wish to ask or discuss at the hearing, so that the Chair can rule on their relevance ahead of time to avoid any improper evidentiary introduction in the hearing or to provide recommendations for more appropriate phrasing. However, this advance review opportunity does not preclude the Advisors from asking a question for the first time at the hearing or from asking for a reconsideration on a pre-hearing ruling by the Chair based on any new information or testimony offered at the hearing. The Chair must document and share with each party their rationale for any exclusion or inclusion at a pre-hearing meeting.
The Chair, only with full agreement of the parties, may decide in advance of the hearing that certain witnesses do not need to be present if their testimony can be adequately summarized by the Investigator(s) in the investigation report or during the hearing.
At any pre-hearing meeting with a party and their Advisor, the Chair will consider arguments that evidence identified in the final investigation report as relevant is, in fact, not relevant. Similarly, evidence identified as directly related but not relevant by the Investigator(s) may be argued to be relevant. The Chair may rule on these arguments pre-hearing and will exchange those rulings between the parties prior to the hearing to assist in preparation for the hearing. The Chair may consult with the Title IX Coordinator, or even legal counsel, or ask either or both to attend pre-hearing meetings.
The pre-hearing meeting(s) will not be recorded. The pre-hearing meetings may be conducted as separate meetings with each party/advisor, with all parties/advisors present at the same time, remotely, or as a paper-only exchange. The Chair will work with the parties to establish the format.
At the hearing, the Panel has the authority to hear and make determinations on all allegations misconduct under the jurisdiction of the 2020 Title IX regulations, and/or related retaliation and may also hear and make determinations on any additional alleged policy violations that have occurred in concert, even though those collateral allegations may not specifically fall under this jurisdiction.
Participants at the hearing will include the Chair, two (2) other Hearing Panel members, the Investigator(s) who conducted the investigation, the parties, one (1) Advisor per parties, any called witnesses, possibly a hearing facilitator and/or the Title IX Coordinator and anyone providing authorized accommodations, interpretation, and/or assistive services.
The Chair will answer all questions of procedure. Anyone appearing at the hearing to provide information will respond to questions on their own behalf.
The Chair will allow witnesses who have relevant information to appear at a portion of the hearing in order to respond to specific questions from the Hearing Panel and the parties, and then the witnesses will be excused.
In hearings involving more than one Respondent or in which two (2) or more Complainants have accused the same individual of substantially similar conduct, the default procedure will be to hear the allegations jointly.
However, the Title IX Coordinator may permit the investigation and/or hearings pertinent to each Respondent to be conducted separately if there is a compelling reason to do so. In joint hearings, separate determinations of responsibility will be made for each Respondent with respect to each alleged policy violation. When a student organization is the Respondent, no more than three (3) organizational representatives may be present at the hearing.
The Order of the Hearing: Introductions and Explanation of Procedure
The Chair explains the procedures and introduces the participants. This may include a final opportunity for challenge or recusal of Hearing Panel members on the basis of bias or conflict of interest. The Chair will rule on any such challenge unless the Chair is the individual who is the subject of the challenge, in which case the Title IX Coordinator will review and decide the challenge.
At the hearing, recording, witness logistics, party logistics, curation of documents, separation of the parties, and other administrative elements of the hearing process may be managed by a non-voting hearing facilitator appointed by the Title IX Coordinator. A hearing facilitator may attend to: logistics of rooms for various parties/witnesses as they wait; flow of parties/witnesses in and out of the hearing space; ensuring recording and/or virtual conferencing technology is working as intended; copying and distributing materials to participants, as appropriate, etc.
The Order of the Hearing: Investigator Presents the Final Investigation Report
The Investigator(s) will then present a summary of the final investigation report, including items that are contested and those that are not, and will be subject to questioning by the Hearing Panel and the parties (through their Advisors). The Investigator(s) will be present during the entire hearing process, but not during deliberations.
Neither the parties nor the Hearing Panel should ask the Investigator(s) their opinions on credibility, recommended findings, or determinations, and the Investigators, Advisors, and parties will refrain from discussion of, or questions for Investigators about these assessments. If such information is introduced, the Chair will direct that it be disregarded.
The Order of the Hearing: Testimony and Questioning
Once the Investigator(s) present(s) the report and are questioned, the parties and witnesses may provide relevant information in turn, beginning with the Complainant, and then in the order determined by the Chair. The Hearing Chair will facilitate questioning of parties and witnesses first by the Hearing Panel and then by the parties through their Advisors.
All questions are subject to a relevance determination by the Chair. The Advisor, who will remain seated during questioning, will pose the proposed question orally, electronically, or in writing (orally is the default, but other means of submission may be permitted by the Chair upon request, if agreed to by all parties and the Chair), the proceeding will pause to allow the Chair to consider the question (and state it if it has not already been stated aloud), and the Chair will determine whether the question will be permitted, disallowed, or rephrased.
The Chair may invite explanations or persuasive statements regarding relevance with the Advisors, if the Chair so chooses. The Chair will then state their decision on the question for the record and advise the party/witness to whom the question was directed, accordingly. The Chair will explain any decision to exclude a question as not relevant, or to reframe it for relevance.
The Chair will limit or disallow questions on the basis that they are irrelevant, unduly repetitious (and thus irrelevant), or abusive. The Chair has final say on all questions and determinations of relevance. The Chair may consult with legal counsel on any questions of admissibility. The Chair may ask Advisors to frame why a question is or is not relevant from their perspective but will not entertain arguments from the Advisors on relevance before or once the Chair has ruled on a question.
If the parties raise an issue of bias or conflict of interest of an Investigator or Hearing Panel member at the hearing, the Chair may elect to address those issues, consult with legal counsel, and/or refer them to the Title IX Coordinator, and/or preserve them for appeal. If bias is not in issue at the hearing, the Chair should not permit irrelevant questions that probe for bias.
Refusal to Submit to Questioning and Inferences
Cross-examination is an all or nothing proposition, meaning that it any relevant question is refused, no statements of that party or witness are admissible. Only if a party or witness is willing to submit to cross-examination, and answers all questions, will their statements prior to or at the hearing be fully admissible. If a party or witness chooses not to submit to cross-examination at the hearing, either because they do not attend the meeting, or they attend but refuse to participate in questions, the Hearing Panel may not rely on any prior statement made by that party or witness at the hearing,
including those contained in the investigation report, in the ultimate determination of responsibility. The Hearing Panel must disregard all such statements. Evidence provided that is something other than a statement by the party or witness may be considered.
Whether a party of witness does or does not answer questions from the Hearing Panel, their statements will be admissible as long as they are willing to submit to cross-examination questions, even if they are not asked such questions. The Hearing Panel may not draw any inference solely from a party’s or witness’s absence from the hearing or refusal to answer cross-examination or other questions.
If collateral charges of policy violations other than sexual harassment are considered at the same hearing, the Hearing Panel may consider all evidence it deems relevant, may rely on any relevant statement as long as the opportunity for questioning is afforded to all parties through their Advisors, and may draw reasonable inferences from any decision by any party or witness not to participate or respond to questions.
If a party’s Advisor of choice refuses to comply with the University’s established rules of decorum for the hearing, Iowa Wesleyan University may require the party to use a different Advisor. If a University-provided Advisor refuses to comply with the rules of decorum, the University may provide that party with a different Advisor to conduct questioning on behalf of that party.
An Advisor may not be called as a witness at a hearing to testify to what their Advisee has told them during their role as an Advisor unless the party being advised consents to that information being shared. It is otherwise considered off-limits, and an Advisor who is a University employee is temporarily alleviated from mandated reporter responsibilities related to their interaction with their Advisee during the resolution process.
Hearings (but not deliberations of findings) are recorded by the University for purposes of review in the event of an appeal. The parties may not record the proceedings and no other unauthorized recordings are permitted.
The Hearing Panel, the parties, their Advisors, and appropriate administrators of the University will be permitted to listen to the recording or review a transcript of the recording in a controlled environment determined by the Title IX Coordinator, upon request. No person will be given or be allowed to make a copy of the recording without permission of the Title IX Coordinator.
The Order of the Hearing: Deliberation, Decision-making, and Standard of Proof
The Hearing Panel will deliberate in closed session to determine whether the Respondent is responsible or not responsible for the policy violation(s) in question. A simple majority vote is required to determine the finding. The preponderance of the evidence standard of proof is used. A hearing facilitator may be invited to attend the deliberation by the Chair, but is there only to facilitate procedurally, not to address the substance of the allegations.
When there is a finding of responsibility on one or more of the allegations, the Hearing Panel may then consider the previously submitted party impact statements in determining appropriate sanction(s).
The Chair will ensure that each of the parties has an opportunity to review any impact statement submitted by the other party(ies). The Hearing Panel may, at their discretion, consider the statements, but they are not binding.
The Hearing Panel will review the statements and any pertinent conduct history provided by the University and will determine the appropriate sanction(s), in consultation with other appropriate administrators, as necessary.
The Chair will then prepare a written deliberation statement and deliver it to the Title IX Coordinator, detailing the determination, rationale, the evidence used in support of its determination, the evidence not relied upon in its determination, credibility assessments, and any sanctions.
This report is typically three (3) to five (5) pages in length and must be submitted to the Title IX Coordinator within two (2) business days of the end of deliberations, unless the Title IX Coordinator grants an extension. If an extension is granted, the Title IX Coordinator will notify the parties.