V. Formal Resolution

Formal Resolution is commenced when: 

• A Complainant reports that a Respondent 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 reported 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 Title IX 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 Title IX 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 Title IX 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 chose 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 other 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 recommended determination of whether there is sufficient information, by a preponderance of the evidence, to support a finding of responsibility for a violation of the Policy.  In reaching this determination, the investigator may consult with the Title IX coordinator and human resources. This report will include any other related and available documents such as campus police reports, statements, and other relevant materials.
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 investigator 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.
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 wish 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. Determining Responsibility and Sanctions

1. If the investigator determines that there is not sufficient information, by a preponderance of the evidence, to support a finding of responsibility for a violation of the Policy, the Complainant may accept or contest the recommended finding(s) by notifying the Title IX Coordinator, in writing. If the Complainant accepts the recommended finding(s) of no responsibility, the process is concluded. If the Complainant contests one or more of the recommended finding(s), the Complainant may submit to the Title IX coordinator a written statement explaining why the Complainant contests such finding(s), within three (3) business days of receiving the investigation report. The Title IX coordinator will share the Complainant’s statement with the Respondent, who will have three (3) business days to respond in writing to any such statement. The Title IX coordinator will provide the final investigation report, together with any statements by the parties, to the Adjudicating Panel for further proceedings outlined below.
2. If the investigator determines that there is sufficient information, by a preponderance of the evidence, to support a finding of responsibility for a violation of the Policy, the Respondent may accept or contest the recommended finding(s) by notifying the Title IX coordinator, in writing. If the Respondent contests one or more of the recommended finding(s), the Respondent may submit to the Title IX coordinator a written statement explaining why the Respondent contests such finding(s), within three (3) business days of receiving the investigation report. The Title IX coordinator will share the Respondent’s statement with the Complainant, who will have three (3) business days to respond in writing to any such statement.  The Title IX coordinator will provide the final investigation report, together with any statements by the parties, to the Adjudicating Panel for further proceedings as outlined below.
3. The investigation report and any contesting statements and responses thereto made by the parties will be assigned to an Adjudicating Panel that will determine (1) whether the concerns of a contesting party raise substantial doubt about the thoroughness, fairness, and/or impartiality of the investigation; and, if not, (2) whether there is sufficient evidence to support the investigator’s recommended finding(s) by a preponderance of the evidence.
4. Adjudicating Panel members will be designated as follows:
1. In the case of a faculty Employee Respondent, the Adjudicating Panel will include the Vice President for Academic Affairs and Dean of Faculty and one or more School Deans, who will jointly determine appropriate sanctions in consultation with Human Resources. In making the determination, they may meet with the investigator, Complainant, Respondent, and other individuals who may have relevant information as appropriate.
2. In the case of a non-faculty Employee or Third Party Respondent, the Adjudicating Panel will include the Vice President for Finance and Administration and a designated department head, who will jointly determine appropriate sanctions in consultation with Human Resources. In making the determination, they may meet with the investigator, Complainant, Respondent, and other individuals who may have relevant information as appropriate.
5. 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 Adjudicator assignment and must advise the College of any actual bias or conflicts of interests.  Adjudicators may also recuse themselves.  The College may make alternative arrangements in Adjudicator assignment as appropriate.
6. Prior to making a final decision, the sanctions  will be reviewed by the Title IX Coordinator and/or a Deputy Coordinator to provide advice with regard to consistency and proportionality in sanctions and sufficient action to eliminate the Sexual Misconduct Violation, prevent its recurrence, and remedy its effects.
7. Sanctions for Employee and Third Party Respondents include, but are not limited to, verbal or written Warning, Censure, Education, Training, Removal of Privileges, No Contact Directive, Suspension, and/or Termination from Hampshire College employment.  This list is not progressive and any sanction or combination of sanctions may be imposed.  Any Employee or Third Party found responsible for Sexual Assault involving Sexual Intercourse will face a minimum sanction of suspension or termination from employment at Hampshire College.  Sanctions are effective immediately, unless otherwise specified.
8. In determining the appropriate sanction(s), the College will consider a number of factors, including:
1. The nature of the conduct at issue, including whether it involved violence;
2. The impact of the conduct on the Complainant;
3. The impact or implications of the conduct on the Hampshire College community;
4. Any previous misconduct by the Respondent, at Hampshire College or elsewhere;
5. Whether the Respondent has accepted responsibility for the conduct;
6. Maintenance of a safe and respectful environment conducive to learning; and
7. Any other mitigating, aggravating, or compelling circumstances to reach a just and appropriate resolution in each case.

C. Notice of Outcome

The Complainant and Respondent will be notified simultaneously in writing with an Outcome Letter (which may include email) from either the VPAA/DOF (for faculty Employees) or the VPFA (for non-faculty Employees) within five (5) business days following the decision.  The Title IX Coordinator may also provide written notice to a Third Party Respondent, as appropriate.  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 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.

D. 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.

E. Effect of a Pending Complaint on an Employee or Third Party Respondent

If the Employee Respondent separates employment or Third Party Respondent changes the nature of their relationship with the College for any reason after a report of a Sexual Misconduct Violation has been received, the College’s Appendix B 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 separated 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.