ATIXA's OPEN Center Responses

(1)        Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity;

In this sentence, does “reasonable person” modify only severe, pervasive, and objectively offensive only, or the effective denial clause as well? To clarify, can an effective denial be something a reasonable person would experience, even if there is not evidence to show that the Complainant was effectively denied?

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If a 4^th grader is enrolled in a college-sponsored summer camp, and is sexually harassed and complains in the college process, does the college apply live hearing and cross-examination, or use the K-12 procedures for written exchange of questions and answers?

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*Note that this is a follow up question to the 5/22/2020 Sexual Assault Definition Answer.

So please clarify further, as the UCR does not define forcible and non-forcible sex offenses, NIBRS does.

If the intent is to use the UCR/SRS definition of rape, and the NIBRS definitions otherwise, the applicable definitions appear to be the below. Can OPEN please confirm.

Sex Offenses, Forcible—Any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent. 

(For the balance of 2020) Forcible Rape — Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

(As of 2021 or if/when SRS is shelved) Forcible Rape—(Except Statutory Rape) The carnal knowledge of a person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity. 

Forcible Sodomy—Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity. 

Sexual Assault With An Object—To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity. 

Forcible Fondling—The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity. 

Sex Offenses, Nonforcible—Unlawful, nonforcible sexual intercourse. 

Incest—Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

Statutory Rape—Nonforcible sexual intercourse with a person who is under the statutory age of consent.

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On the assumption that a witness must be questioned thoroughly about their statements at the hearing for those statements to be considered by the decision-maker, we pose this question:

If a party truly has no questions to ask via their advisor in cross-examination, can they ask something to the effect of “Is everything in your statement in the report accurate?” If the answer is yes, is the statement then able to be considered? If no, then follow-up questions can be asked. Or do they still need to ask questions based on key facts to allow credibility to be fully assessed about each individual statement?

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Are recipients allowed to place holds (transcript, registration, graduation) on a Respondent’s account while the formal complaint process is pending or would that be considered an impermissible sanction prior to the final determination of responsibility? These are interim actions that can be reversed.

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Should the investigator avoid making a recommendation in their report as to whether policy was violated and/or avoid making a finding? Or is it enough that any finding or recommendation by the investigator is non-binding on the decision-maker? If the answer is that investigators should avoid making a finding or recommendation, but at the hearing the investigator somehow states a finding or recommendation, how should a recipient handle that?

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Let’s suppose a Complainant hires me as an expert witness. I give a statement as a witness during the investigation. I am called as a witness at the hearing. I testify, and then am questioned by the Complainant. The Respondent’s advisor strategically refuses to cross-examine me, and the decision-maker has no questions for me. Assuming my testimony is relevant, is my statement admissible even though I was not cross-examined, because I was willing to submit to it?

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The regs are clear that no inferences are to be drawn solely from non-participation of a witness or party, but the regulations also say OCR will not will not second-guess the recipient’s determination regarding responsibility, which may rely on an improperly drawn inference. How does OCR reconcile these seemly oppositional provisions?

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The complainant and her family decide they don’t want to file a formal complaint (too complex and lengthy). The K-12 school offers supportive measures and asks the school to resolve the allegations under its code of conduct instead. The school agrees and resolves outside of 106.45 using its conduct process. Is this permissible?

Further, the complainant changes her mind as the conduct investigation unfolds, and decides to file a formal Title IX complaint. Now, does the K-12 have to stop its conduct process and redo its entire investigation in a way that complies with the regulations?

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For recipients that are elementary and secondary schools, the regulations provide that before reaching a determination regarding responsibility for sexual harassment, the decision-maker “must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness” and “provide each party with the answers.” 

1. Do the regulations prohibit the decision-maker from relying on relevant statements of a party in making the findings of fact supporting its determination regarding sexual harassment if that party refuses to answer written, relevant questions? 
2. Even if the answer to Question 1 is no, do the regulations permit a school district to adopt a policy prohibiting the decision-maker from relying on relevant statements of a party in making the findings of fact supporting its determination regarding sexual harassment if that party refuses to answer written, relevant questions?
3. Do the regulations permit a school district to adopt a code of conduct requiring students to answer written, relevant questions of a party to the process of making the findings of fact supporting a decision-maker’s determination regarding responsibility for sexual harassment?  If so, do the regulations permit a school district to discipline a student for violating such a code of conduct without engaging in the processes prescribed by 106.45?
4. May a decision-maker draw an inference about the determination regarding a party’s responsibility based on a party’s refusal to answer written, relevant questions?
5. May a decision-maker draw an inference about the determination regarding a party’s responsibility based solely on a party’s refusal to answer written, relevant questions?

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