G. Formal Resolution

The Formal Resolution may only be pursued after a formal complaint has been filed. The Title IX Coordinator will identify the potential violations and prepare the initial notification of investigation outlining the charges to be investigated and assessed. At the completion of the investigation and any appeal of the Title IX assessment, the complaint will be addressed through either the Investigator Resolution (non-Title IX) or the Hearing Resolution (Title IX). Both parties will have the opportunity to appeal the decision regarding responsibility and any sanctions imposed. The College may delay granting a diploma otherwise earned until the completion of all phases of a Formal Resolution, including completion of an appeal and/or any sanctions imposed. 

G.1.  Investigation

The parties and their advisors will receive written notice that an investigation has been initiated. The notice of investigation will include:

  • the identities of the parties involved; 

  • the specific section/s of the policy allegedly violated; 

  • the precise conduct alleged to constitute the potential violation/s;

  • the approximate date, time, and location of the alleged incident; 

  • a statement indicating that the respondent is presumed not responsible for the alleged conduct;

  • a statement that the determination of responsibility will be made at the conclusion of a Formal Resolution;

  • a notice that parties have the right to an advisor of their choice;

  • the result of an initial assessment to determine whether the allegations suggest a potential violation of “Sexual Harassment - Title IX,” with an indication that this decision will be reviewed again when the investigators prepare their report;

  • the name of the investigators and the ability to challenge their participation for conflict of interest or actual bias;

  • the appropriate policy language prohibiting a party from knowingly making false statements or knowingly submitting false information; and

  • notice that Retaliation is prohibited. 

The notice shall be provided reasonably in advance of any interview with the investigators, with sufficient time for meaningful preparation. The Title IX Coordinator, in consultation with the investigators, may amend the charges as part of the investigative process. The Title IX Coordinator will, if appropriate, issue amended charges to both parties. 

The Title IX Coordinator will designate two investigators to conduct an adequate, reliable and impartial investigation, one of which will typically be a College employee. The College may engage an external investigator as one or both of the two assigned investigators. In complex situations, the Title IX Coordinator may engage additional trained investigators to assist in gathering the information that will be considered by the primary investigators. The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the College and not the parties. The interviews will be recorded by the investigators.

The parties will have an equal opportunity to present witnesses, including expert witnesses, and to submit evidence. The investigators will also gather any available physical evidence, including documents, communications between the parties, and other electronic records as appropriate and available. The parties may submit questions to be asked of parties and witnesses. Investigators will review submitted questions and, in their discretion, may choose which questions are necessary and appropriate to the investigation and conduct any follow-up, as they deem relevant. All parties and witnesses are expected to provide truthful information. Knowingly providing false or misleading information is a violation of College policy and can subject a student or employee to disciplinary action. Making a good faith report to the College that is not later substantiated does not constitute false or misleading information. 

The Title IX Coordinator may combine multiple complaints that arise out of the same set of facts or circumstances into one investigation. Where multiple complainants or respondents are involved in the same investigation, the parties will only be provided with the appropriate portion(s) of the investigative documents that relate to the complaint(s) in which they are a party.

A person’s medical, counseling/psychological, and similar treatment records are privileged and confidential documents that a party will not be required to disclose. Where a party provides their written permission to share medical, counseling/psychological, and similar treatment records as part of the investigation, only the portion of the records directly related to the allegations raised in the formal complaint will be included in the case file for review by the other party and for use in the investigative process.

Evidence related to the prior sexual history of the complainant is generally not relevant to the determination of a policy violation and will only be considered in very limited circumstances. For example, to prove that someone other than the respondent committed the alleged conduct, or where the existence of consent is at issue, the sexual history between the parties may be relevant to help understand the manner and nature of communications between the parties and the context of the relationship. However, even in the context of a relationship, consent to one sexual act does not, by itself, constitute consent to another sexual act, and consent on one occasion does not, by itself, constitute consent on a subsequent occasion. 

Information regarding other acts by a party will be permitted as relevant where the nature and means of those other acts may affect credibility of the assertions in the current case. It is not required that the party have been found responsible for policy violations related to those other acts for them to be included in the current case. Any party seeking to introduce information about prior sexual history or other acts of the other party should bring this information to the attention of the investigators at the earliest opportunity.                                       

If the Title IX Coordinator determines that reports of other acts by a party may be relevant, the Title IX Coordinator may, in their discretion, offer the information to the investigators for their consideration to determine whether it may be relevant. The investigators may determine, in their discretion, whether and how to follow up on that information within the scope of their current investigation. It is ultimately the decision-maker’s discretion to determine whether the information is relevant in the current case.

Any party seeking to introduce information about prior sexual history or other acts by a party should bring this information to the attention of the investigators at the earliest opportunity. While the investigators may explore relevant areas of inquiry, the Title IX Coordinator has the discretion to make the final determination whether evidence of prior sexual history or other misconduct is relevant and should be included in the report.

If, at any time, the respondent agrees to a finding of responsibility to some or all of the charged conduct, the matter may be referred to a Formal Resolution (Section XI.G.) for adjudication, or if all parties agree, referred to Informal Resolution (Section XI.F.). The College will seek to complete the investigation in a reasonable timeframe from the notice of investigation, typically within 20 business days. This time frame may be extended for good cause with written notice to the parties of the delay and the reason for the delay. Good cause may be based on delays occasioned by the complexity of the allegations, the number of witnesses involved, the availability of the parties or witnesses, the effect of a concurrent criminal investigation, any intervening school break or vacation, or other circumstances, all of which will likely extend the length of time it takes to complete the investigation. The Title IX Coordinator will provide regular updates to all parties regarding the progress of the investigation.

G.2. Review of Evidence

The evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint will be made available to the parties and their advisors, including the evidence upon which the College may not rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence. The parties will have 10 calendar days to review the evidence. The parties will be offered the opportunity to review the evidence and provide a written response that will be submitted to the investigators for the completion of the Investigation Report. 

Due to the privacy of all those involved, evidence shared in an electronic format will not be printable, downloadable or electronically shareable by the parties or their advisors. Exceptions may be made in compliance with Section 504 of the Rehabilitation Act of 1973.

G.3. Investigation Report

Once the parties have reviewed the evidence and have submitted responses, or the time period to submit such responses has passed, the investigators will complete any follow up they deem necessary, and write the investigation report. The investigators will consider whether the conduct alleged, if demonstrated by a preponderance of the evidence, would constitute “Sexual Harassment - Title IX,” in light of the evidence gathered during the investigation, and make a recommendation to the Title IX Coordinator regarding the same. The Title IX Coordinator will review the recommendation of the investigators and make the final determination as to whether the conduct alleged, if demonstrated by a preponderance of the evidence, would constitute “Sexual Harassment – Title IX.” The Title IX Coordinator will notify the parties, in writing, of the final assessment and whether or not the complaint will proceed to a hearing or be decided by the investigators. 

The investigation report will include, but is not limited to, the following sections:

  • overview of the complaint made and summary of the investigative methodology;

  • summary of relevant information gathered, including:

    • timeline of incident being investigated;
    • complainant’s account of events;
    • respondent’s account of events;
    • witness accounts;
    • evidence gathered;
  • areas of agreement;

  • areas of disagreement;

  • assessment of whether or not the complaint meets one or more of the required elements of the definition of sexual harassment under Title IX, including rationale; and

  • appendix containing all of the collected evidence.

The investigation report will not include:

  • Information about the complainant’s sexual predisposition or prior sexual behavior, unless:

    • The information is to prove that someone other than the respondent committed the alleged conduct; or
    • The information concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent
  • Information that is protected by a legally recognized privilege; and

  • A party’s medical, counseling/psychological, and similar treatment records unless the party has given voluntary, written consent.

At the time the Title IX Coordinator shares the investigative report with the parties and their advisors, the Coordinator will include a cover letter detailing the final assessment of whether or not the conduct alleged, if demonstrated by a preponderance of the evidence, could constitute “Sexual Harassment - Title IX.” This decision may be appealed by either party. Instructions and grounds for the appeal will be shared by the Title IX Coordinator in the cover letter.  

Parties have 3 business days after receipt of the investigative report to submit in writing an appeal of the Title IX dismissal (see Section XI.G.4). When no appeal of the Title IX decision is filed, the parties have 10 calendar days beginning at the conclusion of the 3-day appeal window to submit their written response to the Investigation Report. The response may include an assertion that evidence not summarized in the report, but present in the case file, should be considered as relevant.

In a case with multiple charges, if any of the charges constitute “Sexual Harassment - Title IX,” all the charges in that case will be handled at the same time through the Hearing Resolution process. 

G.4. Appeal of Title IX Dismissal

Parties have 3 business days after receipt of the investigative report to submit in writing an appeal of a determination regarding whether the conduct constitutes “Sexual Harassment - Title IX.” The appeal will be considered by an appropriately trained staff member designated by the Title IX Coordinator. The appeal decision will be communicated in writing to the parties, their advisors, and the Title IX Coordinator. The decision will also indicate the path for complaint resolution: Hearing Resolution or Investigator Resolution. From the date the appeal decision letter is shared with the parties, the parties have 10 calendar days to submit a written response to the Investigation Report. The written response will be included for consideration by the Hearing Chair/Panel or the investigators in the resolution process. 

G.5. Investigator Resolution (Non-Title IX) 

The Investigation Resolution process will be used to resolve cases that do not include a charge of “Sexual Harassment - Title IX.” The investigators will make a determination, by a preponderance of the evidence, whether there is sufficient information to support a finding of responsibility. The investigators’ finding, and the rationale for the finding, will be included in the final investigative report that will be shared with the parties by the Title IX Coordinator.

The investigators should first evaluate the quality of the evidence. The investigators should consider all of the evidence regardless of who provided it. Any evidence the investigators find to be of high quality should be given more weight than any evidence the investigators find to be of low quality. Quality may, or may not be identical with quantity, and sheer quantity alone should not be the basis for a finding of responsibility. The testimony of a single party or witness may be sufficient to establish a fact.

The investigators will evaluate all admissible, relevant evidence for weight or credibility. Credibility is not based solely on observing demeanor, but also considers detail, interest or bias, corroboration where it would reasonably be expected to exist, the circumstances of the disclosure, and the nature of the relationship. The degree o which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the investigators, after having the opportunity to ask questions of parties and witnesses, and to observe how parties and witnesses answer the questions posed by the other party. Corroborating evidence is not required.

The Investigators will not consider or rely on:

  • Information about the complainant’s sexual predisposition or prior sexual behavior, unless:

    • The information is to prove that someone other than the respondent committed the alleged conduct; or
    • The information concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent
  • Information that is protected by a legally recognized privilege; and

  • A party’s medical, counseling/psychological, and similar treatment records unless the party has given voluntary, written consent.

A party’s answers to questions can and should be evaluated by the investigators in context, including taking into account that a party may experience stress while trying to answer questions, or other factors that may affect the party’s ability to recall the specific details of an incident in sequence. 

If the investigators determine by a preponderance of the evidence that there is insufficient information to find the respondent responsible for violating this or other policies, the complainant may appeal this outcome following the procedures set forth in Section XI.I.

If the investigators determine, by a preponderance of the evidence, that there is sufficient information to find the respondent responsible for violating this or other policies, the matter will be referred to an Adjudicator to determine the appropriate sanction. The Title IX Coordinator will notify the Registrar to place a hold on the respondent’s transcript until the sanction has been issued by the Adjudicator.

Adjudication 

The Adjudicator is determined by the status of the respondent:

  1. For reports against students or student groups, the Adjudicator is typically the Director of the Office of Student Rights and Responsibilities.

  2. For reports against staff, the Adjudicator is typically the Director of Human Resources or, if the Director of Human Resources is unable to serve, the Director of Student Rights and Responsibilities.

  3. For reports against faculty, the Adjudicator is typically the Provost or, if the Provost is unable to serve, the Director of Human Resources.

When the typical or alternate Adjudicator is unable to serve, or is not otherwise designated in this policy, the Title IX Coordinator will select a trained individual to be the Adjudicator with notice to the parties.

The Adjudicator must be a neutral and impartial decision-maker. The parties will be informed, in writing, of the specific Adjudicator assigned to determine sanction. Within 1 calendar day of receiving the notice of the designated Adjudicator, a party may submit a written request to the Title IX Coordinator to replace the named Adjudicator, if there are reasonable articulable grounds to establish bias, conflict of interest or an inability to be fair and impartial. The designated Adjudicator will only be replaced if the Title IX Coordinator determines that their bias precludes impartiality or constitutes conflict. Additionally, an Adjudicator who has reason to believe they cannot make an objective determination must recuse them self from the process.

For a range of possible sanctions and factors considered by the Adjudicator see Section XI.H.

Timeframe for Resolution

The College will seek to complete the adjudication (imposition of sanction) within 10 calendar days of the notice of referral to adjudication, but this time frame may be extended for good cause with written notice to the parties of the delay and the reason for the delay.

Notice of Outcome

The Adjudicator’s written determination of the outcome, the sanction and the rationale for each will be provided to each party and their advisor. The parties will be informed of any sanctions, the date by which the requirements must be satisfied (if applicable), and the consequences of failure to satisfy the requirements.

The outcome letter will also provide each party with their appeal options. If, under extenuating circumstances, there are any changes to the outcome, both parties will be simultaneously notified at the earliest possible time. The College may also notify appropriate College officials, including a direct supervisor of a sanction, as necessary to implement the outcome and/or sanctions.

G.6. Hearing Resolution (Sexual Harassment - Title IX)

A Hearing Resolution will be used to resolve cases that include charges of “Sexual Harassment - Title IX.” If such cases also include other charges, all the charges in that case will be handled at the same time through the Hearing Resolution process. A Hearing Resolution includes a pre-hearing conference, a live hearing, decisions about responsibility and sanctioning by the Hearing Chair or Panel, and an optional appeal process. 

A single Hearing Chair will typically conduct the live hearing. The Title IX Coordinator chooses a trained, impartial Hearing Chair. In some cases, at the discretion of the Title IX Coordinator, a 3-person Hearing Panel will be convened to conduct the hearing, whose members are selected by the Title IX Coordinator. When a 3-person Hearing Panel is convened, one of the panelists will serve in the role of the Hearing Chair and a majority vote is required to make the determination of responsibility. The Hearing Chair and Hearing Panelists cannot be the individual assigned in the role of the Title IX Coordinator for the case, nor can they have acted in the role of an investigator or served in any other function that would pose a potential conflict of interest.  

Pre-Hearing Conference

Each party will have their own pre-hearing conference. The Title IX Coordinator will communicate to the parties, their advisors, and the Hearing Chair the date, time, and format for their Pre-Hearing Conference. The Title IX Coordinator, the Hearing Chair, and the advisor must be in attendance. While the parties are strongly encouraged to attend, they are not required to do so.

During the Pre-Hearing Conference, the advisors must share with the Hearing Chair their list of witnesses to appear at the hearing, the identity of any requested witnesses that were not questioned during the investigation, the request for any new evidence to be considered that was not submitted previously to the investigators, and the availability of the advisor and the party for hearing dates. 

Evidence and witnesses may only be presented at the hearing if they were submitted to the investigators and made available to the parties for review, unless they were unavailable at the time of the investigation or the relevance was unknown until the investigative report was submitted. The Hearing Chair will address any requests to present new evidence and new witnesses at the Pre-Hearing Conference. 

The advisor is strongly encouraged to discuss lines of questioning with the Hearing Chair at the Pre-Hearing Conference to obtain guidance from the Hearing Chair on relevancy prior to the hearing. The Hearing Chair will discuss the expectations and guidelines for appropriate behavior and decorum during the hearing. 

After reviewing each party’s witness list, the Hearing Chair may, at their discretion, add names of other witnesses contained in the report for the purpose of appearing at the hearing and submitting to cross-examination. 

After the conclusion of the Pre-Hearing Conferences, the Title IX Coordinator will provide each party and their advisor with written notice of the date, time, and manner for the hearing, which will typically occur no less than 5 business days after the conclusion of the final pre-hearing conference. 

Live Hearing

The live hearing may be conducted with all parties physically present in the same geographic location or, at the College’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually. Regardless of format, the hearing will be recorded, and the recording will be the property of Kenyon College, and will be made available to the parties for review and inspection upon their request during the pendency of the process.

Those persons present during the entirety or at designated portions of the hearing include: complainant, complainant’s advisor; respondent, respondent’s advisor; Hearing Chair/Panel; Title IX Coordinator; witnesses; other appropriate individuals at the discretion of the Title IX Coordinator (for example, an interpreter).

The Hearing Chair will provide an introduction detailing the purpose of the hearing, have those present identify themselves and their role, remind all parties of the expectation to be candid and honest in their response, and provide a brief overview of the procedure and the anticipated order of the hearing.

The advisors will be responsible for orally asking relevant questions, including those questions which challenge credibility, to the other party or parties and any witnesses directly, in real-time and in a manner that, in the Hearing Chair’s sole discretion, is not inappropriate, harassing, intimidating, irrelevant, or redundant. Cross-examination will never be conducted by a party personally. Only relevant questions may be asked of a party or witness. Relevant questions are those tending to prove or disprove a fact at issue. Questions that are not relevant include:

  • Repetition of the same question;

  • Questions related to information about the complainant’s sexual predisposition or prior sexual behavior, unless:

    • The information is to prove that someone other than the respondent committed the alleged conduct; or
    • The information concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent
  • Questions related to information that is protected by a legally recognized privilege; and

  • Questions related to a party’s medical, counseling/psychological, and similar treatment records unless the party has given voluntary, written consent.

The Hearing Chair/Panel will objectively evaluate all evidence to determine its relevance, materiality, weight and reliability.

Before a complainant, respondent, or witness answers a question by an advisor, the Hearing Chair will first determine whether the question is relevant and briefly explain any decision to exclude a question as not relevant, or request rephrasing of the question. The Hearing Chair is not required to give a lengthy or complicated explanation of a relevancy determination during the hearing. The Hearing Chair may later send to the parties any revisions to the explanation of relevance that was provided during the hearing.  

If a party or witness does not submit to cross-examination at the live hearing, the Hearing Chair/Panel must not rely on any statement of that party or witness in reaching a determination regarding responsibility. The Hearing Chair/Panel cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. However, video evidence showing the conduct alleged within a complaint may be considered, even if the party does not submit to cross-examination. Further, a respondent’s verbal or written conduct that is alleged to constitute the sexual harassment at issue is not considered to be the respondent’s “statement” and thus, information about or evidence of such conduct may be admitted even if the respondent does not submit to cross-examination.  

Decision/Finding/Sanctions 

Decisions regarding responsibility will be made by the Hearing Chair/Panel and communicated to the parties and their advisors in writing within 15 business days from the conclusion of the live hearing. When a 3-person Hearing Panel is convened, one of the panelists will serve in the role of the Hearing Chair and a majority vote is required to make the determination of responsibility. 

The Hearing Chair/Panel should first evaluate the quality of the evidence. The Hearing Chair/Panel should consider all of the evidence regardless of who provided it. Any evidence the Hearing Chair/Panel finds to be of high quality should be given more weight than any evidence the Hearing Chair/Panel finds to be of low quality. Quality may, or may not be identical with quantity, and sheer quantity alone should not be the basis for a finding of responsibility. The testimony of a single party or witness may be sufficient to establish a fact.

The Hearing Chair/Panel will evaluate all admissible, relevant evidence for weight or credibility. Credibility is not based solely on observing demeanor , but also considers detail, interest or bias, corroboration where it would reasonably be expected to exist, the circumstances of the disclosure, and the nature of the relationship. The degree to which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the Hearing Chair/Panel, after having the opportunity to ask questions of parties and witnesses, and to observe how parties and witnesses answer the questions posed by the other party. Corroborating evidence is not required.

The Hearing Chair/Panel will not consider or rely on:

  • Information about the complainant’s sexual predisposition or prior sexual behavior, unless:

    • The information is to prove that someone other than the respondent committed the alleged conduct; or
    • The information concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent
  • Information that is protected by a legally recognized privilege; and

  • A party’s medical, counseling/psychological, and similar treatment records unless the party has given voluntary, written consent.

A party’s answers to questions can and should be evaluated by the Hearing Chair/Panel in context, including taking into account that a party may experience stress while trying to answer questions, or other factors that may affect the party’s ability to recall the specific details of an incident in sequence. 

The Hearing Chair/Panel will also determine the sanctions. In determining the sanctions, the Hearing Chair/Panel will consult with the appropriate College staff member. For reports against students or student groups, the Director of the Office of Student Rights and Responsibilities; for reports against staff, the Director of Human Resources; for reports against faculty, the Provost. For a range of possible sanctions see Section XI.H.

The written decision will include the following: 

  • identification of the allegations potentially constituting policy violations; 

  • a description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications ot the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;

  • summary of statements made at the hearing, 

  • findings of fact supporting the determination;

  • conclusions regarding the application of the Policy to the facts;

  • a statement and rationale as to the finding for each allegation, including a determination regarding responsibility;

  • any disciplinary sanctions imposed on the respondent; 

  • whether additional remedies will be provided to the complainant designed to restore or preserve the complainant’s equal access to the College’s educational programs or activities; and

  •  the opportunity for appeal. 

The written decision will be provided to the parties simultaneously.

When remedies are provided, they will be determined and monitored by the Title IX Coordinator throughout the Complainant’s enrollment, employment, and/or engagement with the College. Availability of a particular remedy may depend on the College’s current relationships with the Complainant or Respondent.