2021-2022 Undergraduate Catalog > Student Affairs Policies > Sexual Harassment Policy > Investigation Procedures and Protocol

Investigation Procedures and Protocol

Commencement and Timing

After the written notice of Formal Complaint is transmitted to the parties, the Title IX Coordinator or an investigator selected by the Title IX Coordinator (“investigating officer”) will undertake an investigation to gather evidence relevant to the alleged misconduct, including inculpatory and exculpatory evidence. The investigating officer will conduct interviews with the Complainant, Respondent, and witnesses. The investigating officer will also collect any non- testimonial evidence including, physical and electronic and will preserve evidence in a manner that protects the quality of the evidence. The burden of gathering evidence sufficient to reach a determination in the adjudication lies with the College and not with the parties.

The investigation will culminate in a written investigation report that will be submitted to the adjudicator during the hearing process. Although the length of each investigation may vary depending on the totality of the circumstances, the College strives to complete each investigation within sixty (60) calendar days of the transmittal of the written notice of Formal Complaint.

During an investigation, the investigating officer may receive counsel from College administrators or other parties as needed.

Equal Opportunity

The College will conduct a prompt, fair, and thorough investigation of all Formal Complaints. During the investigation and any related adjudication, the Complainant and Respondent shall have equal rights, including:

• Respect, dignity, and sensitivity throughout the process.
• An equal opportunity for the parties to be interviewed, to present witnesses (including fact and expert witnesses), and to present other inculpatory and exculpatory evidence.
• Similar and timely access to all information considered by the investigating officer.
• Equal opportunity to review any statements or evidence provided by the other party.
• Equal access to review and comment upon any other information independently developed by the investigating officer. This includes the right to review the investigation report and provide comments on it, if desired, before a hearing.
• The right to receive written notice in advance of any meetings or hearings so that they have sufficient time to prepare for meaningful participation.

Notwithstanding the foregoing, the investigator retains discretion to limit the number of witness interviews the investigator conducts if the investigator finds that testimony would be unreasonably cumulative, if the witnesses are offered solely as character references and do not have information relevant to the allegations at issue, or if the witnesses are offered to render testimony that is categorically inadmissible, such as testimony concerning sexual history of the Complainant. The investigator will not restrict the ability of the parties to gather and present relevant evidence on their own.

The investigation is a party’s opportunity to present testimonial and other evidence that the party believes is relevant to resolution of the allegations in the Formal Complaint. The investigating office may require the production of information by the parties by a certain date in order to facilitate a timely resolution. A party that is aware of and has a reasonable opportunity to present particular evidence and/or identify particular witnesses during the investigation, and elects not to, will be prohibited from introducing any such evidence during the adjudication absent a showing of mistake, inadvertence, surprise, or excusable neglect.

Documentation of Investigation

The investigator will take reasonable steps to ensure the investigation is documented. Interviews of the parties and witnesses may be documented by the investigator’s notes, audio recorded, video recorded, or transcribed. The particular method utilized to record the interviews of parties and witnesses will determined by the investigator in the investigator’s sole discretion, although whatever method is chosen shall be used consistently throughout a particular investigation.

Access to the Evidence

At the conclusion of the evidence-gathering phase of the investigation, but prior to the completion of the investigation report, the Investigating Officer will transmit to each party and their advisor, in either electronic or hard copy form, all evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including evidence the College may choose not to rely on at any hearing and inculpatory or exculpatory evidence whether obtained from a party or some other source. Thereafter, the parties will have ten (10) business days in which to submit to the investigator a written response, which the investigator will consider prior to completing the investigation report.

The parties and their advisors are permitted to review the evidence solely for the purposes of this grievance process and may not photograph or disseminate the evidence to the public.

Investigation Report

After the period for the parties to provide any written response to the evidence, the investigator will complete a written investigation report that fairly summarizes the various steps taken during the investigation, summarizes the relevant evidence collected, lists material facts on which the parties agree, and lists material facts on which the parties do not agree. When the investigation report is complete, the investigator will transmit a copy to the Title IX Coordinator. The investigator will also transmit the investigation report to each party and their advisor, in either electronic or hard copy form.

Pending Criminal Investigation

Mercy College of Ohio will comply with law enforcement requests for cooperation when appropriate. Such cooperation may require the College to temporarily suspend the fact-finding aspect of the Title IX investigation while the law enforcement agency is in the process of gathering evidence. The criminal investigation, however, does not relieve the College of its responsibilities under Title IX. The College will promptly resume its investigation as soon as notified by the law enforcement agency that it has completed the evidence gathering process of its investigation. The parameters of what information may or may not be shared with law enforcement are outlined in Memoranda of Understanding (MOU) with local law enforcement.

Advisor of Choice

Both the Complainant and Respondent may ask a support person/advisor to accompany him or her at all stages of the process. The advisor may be, but is not required to be, an attorney.

Except for the questioning of witnesses during the hearing, the advisor will play a passive role and is not permitted to communicate on behalf of a party, insist that communication flow through the advisor, or communicate with the College about the matter without the party being included in the communication. The support person/advisor must agree to maintain the confidentiality of the process.

In the event a party’s advisor of choice engages in material violation of the parameters specified in these procedures, the College may preclude the advisor from further participation, in which case the party may select a new advisor of their choice.

In the event a party is not able to secure an advisor to attend the hearing and requests the College to provide an advisor, the College will provide the party an advisor, without fee or charge, who will conduct questioning on behalf of the party at the hearing. The College will have sole discretion to select the advisor it provides. The advisor the College provides may be, but is not required to be, an attorney.

The College is not required to provide a party with an advisor in any circumstance except where the party does not have an advisor present at the hearing specified in these procedures and requests that the College provide an advisor.