V. Formal Resolution

Formal Resolution is commenced when:

• A Complainant reports that a Student has engaged in one or more Sexual Misconduct Violations and requests, at any time, an investigation; or
• Alternative Resolution does not resolve a reported Sexual Misconduct Violation and, in the Title IX Coordinator’s discretion, an investigation of the report of the Sexual Misconduct Violation is required; or
• At the conclusion of the assessment process described in Section IV of these Procedures, the Title IX Coordinator has determined, based upon a review of the totality of the circumstances, that investigation of the reported conduct is necessary to ensure the health and safety of the Complainant and/or other members of the College community, notwithstanding the Complainant’s request that personally identifying information not be shared with the Respondent, that no investigation be pursued, and/or that no disciplinary action be taken.

A.  Investigation

Whenever Formal Resolution is commenced, Investigation will proceed as follows:

1. As a first step, the Title IX Coordinator or Deputy Coordinator will meet with the Complainant and Respondent, separately, to describe the process and resources available.  Both the Complainant and the Respondent will be notified in writing (via email) of the nature of the complaint, a summary of the allegations in the complaint and the potential violations at issue.  This notice of investigation will typically be provided within five (5) business days after the conclusion of the initial assessment.
2. The Title IX Coordinator or Deputy Coordinator will assign an investigator to conduct a prompt, thorough, fair, and impartial investigation of the report.  Any individual designated as an investigator will receive annual training under Title IX and VAWA.  The Investigator may consult with the Title IX Coordinator, Deputy Coordinators, or others during the Investigation as necessary.  Both parties will be provided with the name of the assigned investigator.  The Complainant and Respondent should inform the College of any actual bias or conflicts of interest in the choice of investigator.
3. During the Investigation, the Complainant and Respondent will have an equal opportunity to be heard, to submit information and corroborating evidence, and to identify witnesses who may have relevant information. The investigator will notify and seek to meet with all involved parties separately (e.g., the Complainant, the Respondent, and identified witnesses) and also will gather other evidence and information relevant to the determination as to whether or not a Policy violation has occurred. Witnesses must have information deemed relevant to the Investigation, as determined by the investigator, and cannot be participating solely to speak about an individual’s character.
4. Medical and counseling records of a Complainant and Respondent are privileged confidential records that individuals are not required to disclose.  However, these records may contain relevant and material information and a party may voluntarily choose to share such records with the investigator.  Any records provided by a party become part of the file and are available to review by the other party.
5. Where there is evidence of a pattern of similar conduct by the Respondent or of violent acts or other related conduct, either before or after the conduct in question, regardless of whether there has been a prior finding of a Policy violation, this information may be deemed relevant to the determination of a Policy violation and/or in assigning a sanction.    The determination of relevance will be based on an assessment of whether the previous or subsequent incident was substantially similar to the conduct cited in the report, indicates a pattern of behavior and substantial conformity with that pattern, or is otherwise associated with the conduct cited in the report.  Prior or subsequent conduct of the Respondent also may be admissible to prove intent, motive, or absence of mistake.
6. A Complainant’s prior sexual history will never be considered as evidence of a person’s reputation or character.  Moreover, evidence related to prior sexual history is generally not relevant to the determination of a Policy violation and will be considered only in limited circumstances.   For example, where there is a current or ongoing relationship between the Complainant and the Respondent, and the Respondent alleges that consent was given, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties. As noted in the Policy, however, the mere fact of a current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent.  In addition, prior sexual history may be relevant to explain the presence of a physical injury or to help resolve another questions raised by the report.
7. The investigator has the discretion to determine the relevance of any evidence and may determine that certain types of evidence should be included or excluded in the determination of responsibility.  In the absence of good cause, information discoverable through the exercise of due diligence that is not provided to the investigator during the interview stage will not be considered at a hearing.  The investigator will communicate to the parties a deadline for submitting evidence.
8. Throughout the process, the Complainant and Respondent have the right to be accompanied by an advisor of their choice (referred to in this policy as a “supporter”).  The supporter may be invited by the Complainant or Respondent to attend meetings, investigation interviews, and the hearing, and must follow the guidelines for supporters located in the Student Handbook (see https://handbook.hampshire.edu/node/208).  The supporter may be any person, including an attorney, who is not otherwise a party or witness to the reported incident(s).  While the supporter may be present, the supporter may not speak on behalf of a party, nor be disruptive to the meetings.
9. At the conclusion of the Investigation, the investigator will prepare an investigation report that summarizes the information gathered, outlines the contested and uncontested information, and includes a threshold determination as to whether the allegations, if proven, would provide sufficient information to establish a violation of the Policy by a preponderance of the evidence.  A threshold determination does not involve findings of fact or determinations of credibility. This report will include any other related and available documents such as campus police reports, statements, and other relevant materials.  The investigator has the discretion to determine the relevance of any evidence and may determine that certain types of evidence should be included or excluded in the investigation report.
10. Both the Complainant and the Respondent will be given the opportunity to review the investigation report, identify any additional information or witnesses, and provide feedback or comment to the report.
11. The Senior Director of Student Affairs will designate a reasonable time for review and response.  Upon receipt of any additional information or comments, the investigator will issue a final investigation report.
1. If the investigator determines that the threshold has been reached (i.e., that the allegations, if proven, would provide sufficient information to establish a violation of the Policy), the report will be submitted to the Senior Director or their designee, who will convene a hearing as described below in Section V.B.
2. If the investigator determines that the threshold has not been reached (i.e., that the allegations, if proven, would not provide sufficient information to establish a violation of the Policy), a copy of the report will be provided to the Senior Director.  The Senior Director will provide the Complainant and the Respondent an opportunity to review the report.  The Complainant may request that the Senior Director or their designee (the “Reviewer”) conduct an Administrative Review of the finding by making a written request for review within five (5) business days.  The Reviewer may affirm the threshold finding, reverse the finding, or remand the matter for additional investigation as warranted.  The Reviewer will render a decision in writing, to both parties, within ten (10) business days of receipt of the request for review.  The decision of the Reviewer is final.
12. Typically, the period from notice of an investigation through resolution (finding and sanction, if any) will not exceed sixty (60) calendar days. This time frame may be extended for good cause as necessary to ensure the integrity and completeness of the Investigation, to comply with a request by external law enforcement, to accommodate the availability of witnesses, to account for Hampshire College breaks or vacations, and to account for complexities of a case.  Any extension of the time frame for resolution, and the reason for the extension, will be communicated to the parties in writing.
13. At the request of law enforcement, the College may agree to defer its Title IX Investigation until after the initial stages of a criminal investigation.   The College will nevertheless communicate with the Complainant regarding the availability of remedial and protective measures and available courses of action under the Policy and these Procedures.  Hampshire College will promptly resume its Title IX Investigation as soon as it is notified by law enforcement of the completion of its initial fact-gathering.
14. The College expects all members of the College community to cooperate fully with an Investigation under these Procedures. It is understood that there may be circumstances in which a Complainant or Respondent wishes to limit their participation, and the College will respect the choice of the Complainant or Respondent as to how to engage in proceedings under these procedures. The College may, however, move forward with an Investigation and disciplinary action without the participation of a party or parties.  The College will not draw any adverse inference from a party’s decision not to participate in the Investigation or any form of resolution under this policy; however, the Complainant or Respondent should be aware that declining to participate in the Investigation may impact the timing and outcome of the case.

B. Hearing 

The Hearing and Appeal process consists of:  (1) Pre-Hearing Steps;  (2) a Hearing; and  (3)  a Determination of Violation and Sanctions.

1. Pre-Hearing Steps

1. The Senior Director or their designee will receive and review the investigation report. The Senior Director may accept the report as rendered or may request that an investigator (1) conduct additional interviews or (2) seek out other evidence as deemed to be appropriate.  The Senior Director may consult with the Title IX Coordinator as needed. Any additional Investigation, and a supplemental report, will be completed within seven (7) business days.  This time period may be extended for good cause at the discretion of the Senior Director.
2. Convening of Hearing Panel: The hearing will be adjudicated by a three-person panel of Hampshire College faculty and/or staff selected by the Senior Director, which may include faculty or staff members trained to serve on the Community Review Board (“CRB”).  (The three-person panel is referred to here collectively as the “Adjudicator”.)   All persons serving as an Adjudicator must receive training under Title IX and VAWA and must also be impartial and free from actual bias or conflict of interest.  The Complainant and Respondent will be notified of the composition of panelists and must advise the College of any actual bias or conflicts of interest.  Panelists may also recuse themselves. The College may make alternative arrangements in Adjudicator assignment as appropriate.
3. Notice of Hearing:  The Complainant and Respondent will be notified in writing of the date, time, and location of the hearing as well as the specific charges to be reviewed by the Adjudicator.  In general, the hearing will be scheduled within ten (10) business days of the date of the Notice of Hearing.  This time frame may be extended for good cause at the discretion of the Senior Director.  Good cause may include the availability of the parties,  the timing of semester breaks, or any other extenuating circumstances.
4. Pre-Hearing Review of Documents:  The Complainant and Respondent will each have the opportunity to review the final Investigation report, including any supplemental report, and any relevant documents that will be provided to the Adjudicator.  The Adjudicator will be provided with the same set of materials before the hearing.  Either party may also submit to the Adjudicator at least one (1) business day in advance of the hearing a statement outlining the impact it has had on them and what they would like to see in terms of sanctioning outcomes if the Adjudicator finds a violation did occur and sanctions are warranted.
5. Request to Postpone Hearing: Permission to postpone a hearing may be granted provided that the request to do so is based on a compelling emergency and where possible is provided to the Senior Director at least 36 hours prior to the time of the hearing.

2. Hearing

1. Timing:  Typically a hearing will be held within fifty-five (55) calendar days from the date of the initiation of the Investigation.  This timeframe may be extended for good cause as necessary to ensure the integrity and completeness of the Investigation, to comply with a request by external law enforcement, to accommodate the availability of witnesses during the investigation phase, to account for Hampshire College breaks or vacations, to account for complexities of a case, including the number of witnesses and volume of information provided by the parties, or to address other legitimate reasons.  Any extension of this timeframe, and the reason for the extension, will be shared with the parties in writing.
2. Hearing Guidelines:  At any hearing under these Procedures, the following guidelines below will apply:

• Supporters:  Both the Complainant and Respondent have the right to be accompanied at the hearing and any meetings by a supporter of their choice who is not otherwise a party or witness involved in the Investigation.  While the supporter may be present, the supporter may not speak on behalf of a party, may not address the Adjudicator or pose questions, and must not be disruptive to the hearing.
• Presence at Hearing: The parties are not required to participate in person at the hearing in order for the hearing to proceed, but are strongly encouraged to participate.  A Complainant or Respondent may request alternative options that do not require physical proximity to the other party, including appearing in person at different times at the hearing or appearing via a remote electronic method.   This request should be made no less than five (5) business days prior to the hearing.  If, despite being notified of the date, time, and location of the hearing, the Respondent or Complainant is not in attendance, the hearing may proceed and the adjudicator may determine outcomes, including sanctions.  In doing so, the Adjudicator will consider the available evidence.  In the absence of clear evidence that emergency circumstances beyond the control of the Complainant or Respondent prevented such person from being present, the decision of the Adjudicator will stand.
• Questioning: The Complainant and Respondent will not be permitted to directly question one another, but will be allowed to propose questions to the Adjudicator who will screen the questions for appropriateness and relevance, in consultation with the Senior Director.
• Hearing Format: The Hearing is an opportunity for the parties to address the Adjudicator about any information in the Investigation Report and any impact and mitigation statements.  Each party has the opportunity to be heard, to identify issues or information for the Adjudicator’s consideration, and to respond to any questions of the Adjudicator. A typical hearing may include information presented by the investigator, with follow-up questions by the Adjudicator of the investigator; brief remarks by the Complainant and/or Respondent, with follow-up questions posed by the Adjudicator; and brief concluding remarks by the Complainant and/or Respondent.  Absent compelling circumstances, it is not anticipated that witnesses will appear at the Hearing.  The Senior Director has the discretion to determine the specific hearing format.

3. Determination of Violation and Sanctions; Notice of Outcome

At the conclusion of the hearing, the Adjudicator will determine whether there is sufficient information, by a preponderance of the evidence, to support a finding of responsibility for a violation of the Policy.  After consulting with the Senior Director or their designee, the Adjudicator will (1) determine if there is a violation and (2) if so, the Adjudicator will determine the appropriate sanction(s).  Prior to making their decision final the Adjudicator’s determinations of responsibility and sanctions may be reviewed by the Title IX Coordinator and/or a Deputy Coordinator to advise the Adjudicator with regard to consistency and proportionality in sanctions and sufficient action to eliminate the Sexual Misconduct Violation, prevent its recurrence and remedy its effects.

In determining the appropriate sanction(s), the Adjudicator will consider a number of factors, including:

• The nature of the conduct at issue, including whether it involved violence;
• The impact of the conduct on the Complainant;
• The impact or implications of the conduct on the Hampshire College community;
• Any previous misconduct by the Respondent, at Hampshire College or elsewhere;
• Whether the Respondent has accepted responsibility for the conduct;
• Maintenance of a safe and respectful environment conducive to learning; and
• Any other mitigating, aggravating, or compelling circumstances to reach a just and appropriate resolution in each case.

The Adjudicator may also consider restorative outcomes that, taking into account the safety of the Hampshire College community as a whole, allow a Respondent to develop insight about their responsibility for the behavior, learn about the impact of the behavior on the Complainant and the community, and may impose a combination of sanctions.

The potential sanctions for a violation of the Policy, as set forth in the Outcomes and Sanctions set forth in Code of Conduct, could include: Deferred Sanction Statuses, Disciplinary Probation, Removal from Campus Housing, Housing Relocation, Housing Lottery Restriction, No Contact Order, Restitution, Suspension, and Expulsion.  Any Student found responsible for Sexual Assault involving Sexual Intercourse will face a minimum sanction of suspension or expulsion.

Notification of Outcome: The Complainant and Respondent will be notified simultaneously in writing with an Outcome Letter (which may include email) within five (5) business days following the hearing.  The Outcome Letter will set forth the violation(s) of the Policy for which the Respondent was found responsible or not responsible; the rationale for the finding; any sanction(s) imposed against the Respondent; and the rationale for any sanction(s) imposed.  The Outcome Letter may also identify protective measures implemented with respect to the Respondent.  The Outcome Letter will not disclose any remedial measures provided to the Complainant. In order to protect the privacy of the parties, the College will make reasonable efforts to maintain confidentiality of the Outcome Letter and materials related to the investigation, subject to release by court order, search warrant or subpoena.

C.  Appeal

The Complainant or Respondent may appeal the determination by submitting a written appeal within five (5) business days of the date of the Outcome Letter to a senior administrator designated in the Outcome Letter. The designated senior administrator will have appropriate training and experience and will serve as an impartial decision-maker. The written appeal must include the specific grounds for the appeal and any information or argument in support of the appeal.  Grounds for an appeal are limited to (1) a material procedural error that substantially impacted the outcome, (2) previously unavailable relevant evidence that could affect the outcome; and/or (3) the sanction being substantially disproportionate to the violation.

The senior administrator will make a determination based on the written record.  Appeals are not intended to be a de novo review, i.e., they are not intended to be a review from the beginning.  The senior administrator can: 1) affirm the findings, or 2) alter the findings only where there is clear error based on the stated appeal grounds.  The senior administrator will make a final decision within ten (10) business days of receiving the appeal.  This timeframe may be extended for good cause as necessary to ensure the integrity and completeness of the review.  Any extension of the timeframe, and the reason for the extension, will be shared with the parties in writing.

D. Effect of a Pending Complaint on a Respondent

If the Respondent withdraws from Hampshire College after a report of a Sexual Misconduct Violation has been received, the College’s Appendix A Procedures will continue to apply to the extent necessary to ensure that the College has taken appropriate steps to eliminate, prevent and address any impacts of the reported conduct.  The College will complete the Initial Assessment, and based on the circumstances, the College may move forward with Alternative Resolution or an Investigation and Formal Resolution, regardless of whether the Respondent chooses to participate in the process.  In making the determination whether to pursue further action under these Procedures after a Respondent has withdrawn from the institution, the College will consider whether such action is necessary to eliminate, prevent or address any impacts of the reported conduct, or if those goals can be achieved through individual and community remedies or other College action.

When a Respondent withdraws after notice that a Sexual Misconduct Violation has been reported to the College, the Respondent’s transcript may reflect a withdrawal.  The College may also withhold a Respondent’s Hampshire College degree and transcripts pending conclusion of the Formal Resolution procedures and pending the fulfillment of any deferred sanction statuses or disciplinary sanctions.