Powerpoint

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2016 ATIXA CIVIL RIGHTS INVESTIGATOR

TRAINING & CERTIFICATION LEVEL ONE COURSE
Presented by
W. Scott Lewis, JD - Partner, TNG, LLC
WScottLewis1@gmail.com
Housekeeping Items
Be s ure to s ign in b oth days
Certificates are d elivered via email within 7-10
business days following the conclusion of the
training
CEUs are granted on an individual basis by your
accrediting b ody
Materials s ite remains available for three months
after the training
Complimentary trial memberships for n on-
members; contact Ryan McDavis at ryan@atixa.org
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LEVEL 1 INVESTIGATIONS TRAINING

I. A Word about Terminology
II. Federal Laws Governing Sexual Harassment,
Discrimination and Misconduct
III. Legal Review: Gamechanger Cases
Day 1
IV. When Does IX Apply?

V. Title IX and Title VII Intersection
VI. Role of Title IX Coordinator
VII. Notice & Reporting
VIII. Structure of Investigative Model and Process
IX. Formal Investigation Process

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A Note About Terminology
Victim, Survivor, Complainant, Accuser Claimant =

Reporting Party.
Accused, Respondent, Perpetrator = Responding
Party
Gender pronoun sensitivity and awareness
Rape, sexual assault, sexual violence, and sexual
misconduct terms need specificity
Understand Law(crime) vs. campus policy.
Dating violence and Domestic violence/abuse =
Relationship/Interpersonal/Intimate Partner violence
.
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WHAT GOVERNS SEXUAL

HARASSMENT, DISCRIMINATION
& MISCONDUCT RESPONSES?
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A Crowded Arena
Activists
White
and
House
Advocates
Federal State
Courts Legislation
The Clery
DOJ Act &
VAWA 2013
Pending
Title IX
OCR Federal
Compliance
Legislation

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Federal Laws Specifically Addressing

Sex & Gender Misconduct on Campus
Title IX Applies t o entire campus, covers sex/gender
OCR Provides compliance guidance
OCR Guidance Document 2001
OCR DCL (April 4, 2011) OCR FAQ (April, 2014) 3 DCLs (April 24,
2016)
Title V II Limited t o employment only, covers sex, color, race,
religion and national origin
Case law
Gamechanger cases, North Haven (1982), Franklin (1992),
Gebser (1998), Davis (1999)
Clery Act/VAWA Sec. 304
Campus Sexual Assault Victims Bill of Rights (1992)
Violence Against Women (VAWA ) Act & SaVE Act (March,
2013)
Title IX
20 U.S.C. 1681 & 34 C.F.R. Part 106 (1972)
No person in the United States shall, on the

basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to
discrimination under any educational program
or activity receiving federal financial
assistance.
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Title IX Essential
Compliance Elements
Once a responsible employee h as either actual or
constructive n otice of s exual harassment/sexual
misconduct, the school must:
Take immediate and appropriate s teps to
investigate what occurred
Take p rompt and effective action to:
Stop the h arassment
Remedy the effects
Prevent the recurrence
NOTE: This is r egardless o f w hether o r n ot t he R eporting P arty makes a complaint o r asks t he
school t o t ake action.

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The IX Commandments
Investigation
Thorough Reliable Impartial (prompt & fair
VAWA Sec. 304)
Prompt Effective Equitable Process
Remedy the Remedies

End the Prevent its effects upon
Discrimination Recurrence the victim &
community
WHAT IS EQUITY AND

HOW DO WE GET THERE?
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Equity & Grievance Procedures

Preponderance of the Evidence
Various forms of Notice: Policies & Procedures,
Investigation, Hearing, Outcome (Finding &
Sanction), Meetings and opportunities to present
witnesses and provide evidence
Access to information
Advisor
Impartial investigators, investigation, hearing and
panelists
Remedies
Appeals

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Equality v. Equity
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Case law Trends

UE Study: Student Sexual Assault: Weathering the
Perfect Storm - Studied claims from 2006-2010
Accused b rought 5 4% of claims and accounted for
72% of financial loses ( legal fees and p ayments to
claimants)
96% Involved acquaintances
92% Involved alcohol or other d rugs
63% Accuser with n o clear memory of incident
33% Accuser with p rior mental health issues
63% Accuser was a first-year s tudent
Source: United Educators Student Sexual Assault: Weathering the Perfect Storm
LEGAL REVIEW Significant Cases

Intersection of Title
VII and Title IX
Title IX and VII
Inter-related
Investigations
VAWA Sec. 304

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Significant Cases
Franklin v. Gwinnett Public Schools

Gebser v. Lago Vista
Davis v. Monroe County Bd. of Education
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Franklin v. Gwinnett Public Schools

503 U.S. 60 (1992)
Christine Franklin alleged that during her junior year (1986),
an economics teacher, Andrew Hill, engaged her in sexually
explicit conversations, forced kissing, and coercive sexual
intercourse on school grounds.
District and Circuit Court of Appeals dismissed the case,
finding Title IX does not allow for award of monetary damages.
U.S. Supreme Court decided that sexual harassment

constituted sex discrimination under Title IX.
Gwinnett also provided a private right for recovery of monetary
damages under Title IX.
Gwinnett did not address issues concerning the educational
institutions liability.
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Gebser v. Lago Vista Indep. School

U.S. Supreme Ct. (June 22, 1998)
Case involved faculty/student sexual harassment.
Supreme Court created high standard that students

must meet to prevail on a sexual harassment claim
against institutions when an employee/student
consensual relationship is basis of claim.
Court said you cannot recover monetary damages

against the school unless the behavior has been
reported to someone with power to alter the situation
(actual notice) and deliberate indifference has been
demonstrated by the school.
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Gebser v. Lago Vista Indep. School

524 U.S. 274 (1998)
Three-part standard:
1. An official of the educational institution must have
had actual notice of harassment;
2. The official must have authority to institute

corrective measures to resolve the harassment
problem; AND
3. The official must have failed to adequately

respond to the harassment and, in failing to
respond, must have acted with deliberate
indifference.
Davis v. Monroe County Bd. of Ed.

526 U.S. 629 (1999)
Prolonged pattern of student/student sexual

harassment of a fifth-grade girl by a classmate.
Parents complained to three teachers and principal.
The school took no action until the boy was charged

with and pled guilty to sexual battery.
Filed Title IX action, alleging that persistent harassment

and deliberate indifference resulted in her inability to
attend school and participate in activities.
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Davis v. Monroe County Bd. of Ed.

526 U.S. 629 (1999)
Finding for Davis, Supreme Court applied same standards to
find institution liable for damages as in the Gebser case: the
institution must have actual notice of the harassment;
and it must have responded to the harassment with
deliberate indifference. Additionally, court held that:
Harassment must be severe, pervasive, and
objectively offensive, and the indifference
systemic, to the extent that victim is deprived of
educational opportunities/services.
Justice OConnor added a framework to determine
deliberate indifference deliberate indifference
constitutes a response that is clearly unreasonable
in light of the known circumstances.
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Other Relevant Cases

DeJohn v. Temple University, 3rd Circuit Court of
Appeals, Aug. 2008.
Holcomb v. Iona, 2nd Circuit Court of Appeals, April 2008.
Jennings v. University of North Carolina at Chapel Hill,
4th Circuit Court of Appeals, April 2007.
Williams v. University of Georgia System et al., 11th

Circuit Court of Appeals, Feb. 2007.
Lisa Simpson, Anne Gilmore v. University of Colorado

Boulder, et al., 10th Circuit Court of Appeals, Sept. 2007.
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Civil Law Suits v. Administrative

Action &Title IX
Law Suit Administrative Action
File in Federal Court Initiated by OCR
Monetary damages, Voluntary compliance or
injunction
findings
Requires:
Requires: Actual OR Constructive
Actual Notice Notice (knew or should
have known)
Employee with
Investigate
authority to take action
End harassment
Deliberate Indifference Remedy Impact
Prevent recurrence
WHEN DOES TITLE IX APPLY?
IS IT A IX?
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When Does Title IX Apply?
Jurisdiction
OCR s ays Title IX, by its text, does n ot apply outside the
US, and will n ot enforce extraterritorial complaints
But see K ing et. al. v. EMU, which shows the courts
connect Title IX to federally funded educational
programs, even if they are overseas
The D avis standard is that jurisdiction is expected when
the institution h as
Control over the h arasser ( discriminator) AND
Control over the context of the h arassment
(discrimination)
Jurisdiction
This means we will b e taking off-campus jurisdiction
when:
Whenever our p olicy s ays
When the b ehavior occurs on p roperty we own or
control
When the b ehavior occurs in programs/events we
sponsor
When the d ownstream effects of p urely off-campus
conduct cause a discriminatory impact on campus
Covered Programs
All p rograms run by a Title IV-funded recipient
All p rograms u sing facilities funded b y federal
money ( e.g., camps u sing your fields/stadium)
It d oes n ot matter whether s ome of your programs
are explicitly federally funded or not, all institutional
programs are covered, as h as b een decided b y OCR
and the courts.

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Covered I ndividuals
Students When are they a student?
Faculty
Staff
Campers
Subcontractors, vendors
Guests, visitors, alumni
(all as b oth Reporting P arty and Responding Party)

Subject Matter
All unwelcome sex-based and gender-based
conduct
All sex discrimination (program equity)
All gender discrimination
Including gender identity discrimination and
Sexual orientation discrimination that
implicates gender
Pregnant and parenting student (employees-
FMLA) discrimination
Subject Matter
Any sex/gender-based:
Stalking
Hazing
Bullying
Arson
Vandalism
Theft
And any other policy violation that is sex/gender
based that causes a discriminatory effect

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SCENARIO DISCUSSION
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Sexual Misconduct Scenario
A group of male students sits in front of the

library in the nice weather and calls out ratings
to female students as they pass by. One female
student avoids having to pass by them and
misses appointments at the writing center as a
result.
Title IX related?
What if they call out ratings to everyone?
How would you address this?
Title IX and
Title VII
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Title IX Applies to Employees,

Too
No Person
Person = Everyone: students, employees,
visitors, agents...
US Supreme Court holds Employment
discrimination comes within Title IXs
prohibition (North Haven Bd. of Education v.
Bell, 452 U.S. 512 (1982))
Employees = Staff, Administration & Faculty
Equitable, prompt and impartial requirements
apply to employee grievance processes
Title VII
Prohibits discrimination in the terms, conditions

or privileges of employment on the basis of an
employees sex, race, ethnicity or religion
The statute also prohibits retaliation against
employees who engage in activities opposing
unlawful discrimination
42 U.S.C. 2000e-3(a)
Title VII of the Civil Rights Act of 1964
Intersection of Title VII and Title IX

Title IX consciously modeled on Title VI of the Civil Rights
Act of 1964 which covers race, color and national origin) and
borrowed heavily from the language of Title VII.
Courts generally apply standards established under Title VII
for guidance in how to establish a Title IX violation. Ex.
sexual harassment
Title IX prohibits sex-based discrimination
in the full range of activities related to the
recruitment, evaluation, classification, payment,
assignment, retention, or treatment of employees.
Individuals can use both statutes to pursue the same
violations if it involves an employee.
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Coordinating Title IX and Title VII

In Investigations
Consider:
Role of institutional equity/AA/EOP officer.
Human resources/faculty.
Coordinator of campus conduct.
Athletics.
Public safety.
Oversight of deputy coordinators/investigators. Who?
Merging/combining investigatory and hearing processes.
Coordination of remedies in student/employee and
employee/student grievances.
What happens when employee is a student or student is
an employee?
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VAWA SEC. 304 &

THE CLERY ACT
Overview of Clery
Campus Security Authority
VAWA Sec. 304
Crimes & Definitions
Mandatory Written Notice to Victims
Institutional Disciplinary Polices and
Procedures
Training Requirements
Resolution Process Training
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The Clery Act

Jeanne Clery Disclosure of Campus Security Policy and Campus
Crime Statistics Act (1990)
Crime reporting.
Campus crime log.
Campus Sexual Assault Victims Bill of Rights
Primary crimes (7+3).
Hate crimes (8 categories).
Policy and procedure disclosures.
Timely warnings & emergency notifications.
Sex offender information dissemination.
Enforcement and fines.
VAWA 2013 Section 304.
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Title IX and Clery

Title I X Clery
VAWA
Admissions Crime
Primary
& Financial Log
Crimes
Aid
Hate Crimes
Sexual
harassment Crimes of Drug, Alcohol
Sexual & Weapons
Violence Missing
Athletics Timely
Persons
Warning
Unequal
Education Emergency
Opportunities Notification
Violence Against Women

Reauthorization Act of 2013
VAWA 2013 Signed into law March 7, 2013.
Section 303: Grants to combat violent crime on

campuses.
Section 304:
Substantially amends the Clery Act.
Codifies some aspects of the April 4th , 2011
Department of Educations Dear Colleague Letter
(DCL).
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Recent Clery Amendment:

VAWA Reauthorization & Section 304
Section 304 significantly amends the Clery
Act.
Final Regulations released October 15, 2014.
Campus SaVE
Section 304:
Effective date of the law is July 1, 2015.

Extensive new policy, procedure, training,
education, and prevention requirements for:
Sexual assault.
Stalking.
Dating violence. The Big 4
Domestic violence.
Prohibits retaliation.

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The Role of the Title IX

Coordinator in the Investigation
Process

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Supervisor Of The
Investigation Structure
The Title IX Coordinator provides oversight of:
The appointment of investigators
Conducting or providing training for investigators,
hearing boards & appeals officers
Supervision of investigators and investigations
Strategizing investigations
Assurance of initial remedial actions
Timeline compliance
Communication and coordination of investigation teams
Institutional memory from prior cases to investigators
Supervisor Of
Investigation Process
The Title IX Officer or designee provides
oversight for:
Notice of investigation
Gatekeeping
Determining extent of investigation
Notice of charge
Notice of hearing
Notice of outcome
Duty to warn
Assurance of remedies
Recordkeeping of all activities

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NOTICE & REPORTING

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Notice Standard
OCR applies both an actual notice standard (as
applied by the courts in Title IX lawsuits) as well as
a constructive notice standard that is a broader
standard
This brings under its ambit all complaints about
which the university - through a responsible
employee - knew, or should have known
The OCR standard of knew or should have known
is more favorable to Reporting Party than the
actual knowledge standard used to determine
civil liability
Responsible Employee
A Responsible Employee includes any employee who:
Has the authority to take action to redress the
harassment;
Has the duty to report harassment or other types of
misconduct to appropriate officials; or
Someone a student could reasonably believe has this
authority or responsibility;
Institutions must ensure that employees are
! trained regarding their obligation to report

harassment to appropriate administrators.
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CASE STUDY:
COURTNEY & SHAWN
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Case Study: Courtney and Shawn

For the last two years, Shawn, a member of the mens b aseball
team, has been dating Courtney, a member of the womens
lacrosse team.
Last Friday, Courtney and Shawn got into a very loud and public
argument at breakfast in the athletes d ining hall. At the end o f the
argument, Courtney told Shawn s he was cancelling their plans for
that night and that they both needed some time to calm down;
Shawn agreed.
That night, Shawn and s ome of his teammates p layed X-b ox at
Shawns apartment and began drinking a few beers. Shawn made
himself a very strong whiskey and coke. His friends l eft for a party
and Shawn, who told his friends h e was just going to b ed,
continued drinking. As h e became very drunk, h e began to get
worried, frustrated and angry about the state of h is relationship
with Courtney. He felt he really needed to talk to h er.

At about 1:00am, Shawn made his way over to the off-
campus apartment Courtney and her roommate were renting
nearby, banged on the living room window and yelled that he
wanted to talk to Courtney.
Courtney refused to let him in because he was both drunk
and angry. Shawn threatened to break down the door if she
did not let him in. Courtney told him to go home, go to bed
and they could talk in the morning. Shawn yelled and cursed,
then started to cry saying he couldnt live without Courtney
and he just needed to talk. Courtney still refused to let him
into the house and Shawn became very angry, punching a
window near the door and breaking it. Courtney told Shawn
he was out of control and she was going to call the police.

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She pulled out her phone, but before she could dial, Shawn
broke the rest of the window near the front door, reached in,
unlocked the door, threw it open and charged at Courtney
screaming at her to put the f-i ng phone down! Courtney
screamed and ran to her bedroom with Shawn chasing her.
Courtney tried to close the door, but Shawn managed to
wedge himself between the door and the jam and forced the
door back open, calling her a crazy bitch.
Courtney backed away and Shawn charged at her, reaching
for the phone, but Courtney kept her arm extended and away
from him. The two wrestled a bit as Shawn tried to reach the
phone and when he couldnt, Shawn reached for Courtneys
neck, and put his hand around the front of it, still trying to
get to the phone.

The two hit and toppled onto the bed, with Shawn on top, his
hand still on her neck, reaching for the phone with his other
hand. Shawn tightened his grip and Courtney could not
breathe well. Courtney slapped/punched Shawns face and
kicked him with her legs, which seemed to bring Shawn back
to his senses.
He quickly released Courtney, got off the bed and said he was
so sorry, that he did not know what came over him. He told
her that a phone call to the police would end his baseball
career and his time at the school. Courtney, sobbing,
screamed at Shawn that he needed help and he could not
keep doing this. Shawn, also sobbing, apologized again and
left.

Courtneys roommate, Jenna, who had barricaded herself
into her own bedroom when Shawn burst through the door
told Courtney to call the police. Courtney, however, called the
person she trusted the most her beloved psychology
professor, who is also a licensed counselor.
Her professor came over to the apartment and convinced

Courtney that Shawn needed help and Courtney gave her
professor permission to call the police.

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The police arrived, took statements, photos of the damage to
the house, the bruising and marks on Courtneys body and
arrested Shawn. The next day in conversation with the schools
Deputy Title IX Coordinator/Investigator, Courtneys professor
indicated, to the obvious surprise of the Deputy Coordinator,
that this was the third time Shawn has done something like
this; the previous two times the professor said she simply
worked the situation out using the professor as a mediator.
Is this a Title IX matter?
Identify the issues posed here
What violations of your policy would apply?
What represents your next steps?
Informal and Formal

Resolution Process
Some minor incidents can be
OCR endorses resolved through confrontation and/or
and encourages intervention.
informal
More significant discrimination can
resolution, and also be resolved informally, by
we believe it is process in which responding party
accepts responsibility, and/or by
a best practice,
some forms of ADR or conflict
when voluntary. resolution.
Mediation is not appropriate for
sexual assault.
THE INVESTIGATION

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Why Apply Investigation Model?

Sex/gender based misconduct is not only a campus
behavioral violation (i.e. student code of conduct or
employee handbook), but also a violation of federal
civil rights laws
Requires Title IX response (for students and
employees)
Civil Rights Investigation Model is the most effective
approach for victim-based violations
Investigation process involves strategic information
gathering, comprehensive investigation, credibility
information
Investigation model can stand alone or be grafted
onto and/or integrated into existing procedures
How is Investigation Different

Regarding Employees v. Students
?
Role of FERPA
Employee/Faculty Handbook
Collective Bargaining Agreements
At-will v. property interest
When Do You Investigate?

Receive complaint.
Actual notice or constructive notice.
How do rumors, gossip, social media, etc. fit in?
Once notice exists, the duty to investigate is
absolute.
Small i preliminary inquiry.
Big I comprehensive investigation.

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Who Should Investigate?

Investigations of sex discrimination must be impartial,
thorough, and reliable. Investigators could be
Title IX coordinator.
Standing panel of investigators.
Human resources or student services.
Administrators, faculty.
One investigator or two.
Outside investigator or legal counsel.
Coordinating investigation in multiple processes.
Should There Be More Than

One Investigator?
No specific requirement, but:
Investigation must be prompt, thorough, and impartial.
Investigator must collect the maximum amount of

relevant information available to make a determination.
A pool of investigators may help to ensure that your

investigation meets these requirements.
Team Investigations
Other benefits:
Who investigates may be strategic to each specific
case.
Ability to brainstorm investigation steps and lines of
questioning with co-investigators, and to co-facilitate
interviews.
Flexibility if there is any conflict with investigators and
parties.
Documentation.

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Role of Campus Law Enforcement

in Civil Rights Investigations?
Can Campus Law Enforcement be the Title IX
Investigatory arm?
Should it be?
Legal standards for criminal investigations are
different
Police investigations or reports may not be
determinative of whether harassment occurred under
Title IX and do not relieve the school of its duty to
respond promptly and effectively
Establish MOUs with campus police and other local
enforcement and update annually
Steps of a Civil Rights Investigation
1. Receive Notice or Complaint

2. Preliminary Investigation (initial strategy)(PPTV)
3. Gatekeeper Determination (by Title IX Officer)
4. Notice of Investigation to Responding Party and
Notice of Formal Allegation (Charge)(may vary in
time. May be two different letters)
5. Preliminary Strategy of the Investigation
Will continue throughout process
6. Formal Comprehensive Investigation
Witness Interviews
Evidence Gathering
7. Analysis of Evidence
8. Finding
Preliminary Inquiry Considerations
This is an initial inquiry to determine if a

comprehensive investigation is desired or
necessary.
Checking background, obvious patterns, indicia of
predatory, violent, or threatening behavior.
Push one Domino over at a time.
How much involvement does reporting party
want?
Can we remedy informally or without discipline?
Give reporting party as much control as possible
in the process.

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Preliminary Inquiry
Considerations(cont.)
May help to determine if there is reasonable
cause to charge the responding party, and
what policy violations should be alleged as
part of the complaint.
Responding to anonymous reports:
Determine if a trend or pattern may be
apparent.
You may have a duty to attempt some form
of remedial response, even to an
anonymous report.
What is the Gatekeeping Function

and Why is it Essential?
Whether your goal is equity, due process, or essential
fairness, it is unfair for an accused individual to be
dragged through a process without substantiating
evidence.
Significant reputational harm can result from

allegations of sexual harassment, etc.
An allegation must be supported by reasonable cause

to permit its full pursuit.
Formal Comprehensive
Investigation
When you commence a thorough, reliable,
impartial, prompt and fair investigation you must:
Determine the strategy for the investigation.
Issues Presented, Policies violated
Witness interviews (Who? When?)
Evidence gathering.
Timeframe to complete the investigation.
Finding.
Presentation of finding.
Complete the investigation promptly, and without
unreasonable deviation from the timeline.

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Strategize When to Interview

Parties and Witnesses
Parties and witnesses should be interviewed as soon
as possible:
So that recollections are as fresh and accurate as
possible.
To secure necessary remedies in a timely manner.
Strategize notifying the Responding Party of the report:
Immediately upon receipt of the report or notice.
In other circumstances, interviewing witnesses and
accumulating evidence first may be the best practice.
Prompt Timeframes
for Resolution
The 60-day rule:
Could it be less than 60 days?
More than 60 days?
What about pending criminal/civil matters?
This is discussed in detail later
What about injunctions?
Evidence Gathering
Engage in the active accumulation of
evidence.
Timeliness is critical.
Document receipt of information and other materials as

they are obtained in the course of the investigation.
Consider verification of evidence.

Be thorough in your examination of factual,
circumstantial, and hearsay evidence, and ensure that
all evidence has been examined, and all leads
exhausted.

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Is a Hearing Necessary?
Only if your policy insists on using the traditional

student conduct process or adversarial hearing model.
Ask if there is a better way to honor equity through an

equitable process. There is.
In our experience, a well-conducted civil rights

investigation results in an accepted finding (no hearing)
in between 70 80 percent of cases.
Hearings can still occur, when necessary, and in a

more limited, less adversarial, more efficient fashion.
Who Renders the Finding?

Variations in role of decision process.
Investigator renders the finding.
Investigator recommends the finding to an
administrator or hearing panel.
Investigator only presents investigation
report to administrator or hearing panel
without findings.
This underscores the importance of the
investigation report.
Notifications
In a civil rights model, notice has many phases, some
or all of which may come to pass (equitably):
Notice of investigation and/or initial meeting.
Post-gatekeeper phase, notice of allegation (report).
Post-investigation, notice of hearing (if applicable).
Updates of status of investigation (ongoing).
Notice of outcome and sanctions.
Notice of appeal
Notice of final determination.

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CASE STUDY:
IVAN AND JUANITA
QUESTIONS?
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THANK YOU FOR A GREAT DAY!

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LEVEL 1 INVESTIGATIONS TRAINING

I. Details of the Interview VIII. Questioning Guidelines
Process IX. Interviewing Reporting
II. Pre-Interview Elements Party
III. Listening Skills X. The Reluctant Reporting
Day 2
IV. Interview Overview Party

V. Civil Rights Best XI. Trauma Informed
Practices Interviewing
A. Incident Timeline XII. Interviewing Responding
B. Scheduling Party & Witnesses
C. Five Documents XIII.Note-taking & Evidence
D. Witness Lists & Evaluation
Flowcharts XIV. Analysis of Evidence
Remember: As an
investigator, you have no
side other than the
integrity of the process!
IMPORTANT DETAILS OF
THE INTERVIEW PROCESS

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The Environment
Where will you do the interview?
Your office?
Conference room?
Skype, phone, and email interviews.
Important aspects:
Neutral environment.
Minimize distractions.
Sit in their chair.
Check your lobby/waiting area for distractions
and hidden messages.
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Incident Timeline
Timing also highly relevant in cases involving
physical evidence such as bruising, bite marks,
etc..
In stalking and non-physical sexual harassment

cases, times of communication between parties
may be important.
Establishing a reliable timeline is useful when

questioning witnesses such as bartenders and cab
drivers, and when searching for video footage.
Interview Scheduling
Try to anticipate how long each interview will take (e.g.,
How many times will you interview the witness? How
much time can the witness give you?).
Typically, back-to-back interviews should be avoided

because you may have underestimated the time youll
need to interview a witness, and youll need to run over
without having to reschedule the next interview.
Leave open an amount of time roughly equivalent to

the length of the interview for post-interview teamwork
with your co-investigator.

December 2 016
The Five Documents to Create

Post-Interview
1. Interview transcript in final form (to be verified by
witness).
2. Future Pointers document.
- New Witnesses.
- New Evidence.
- Future Questions to Ask.
- Witnesses to Go Back to With New Information.
3. Opinions & Perceptions.
4. The Drips Document.
5. Bulleted Key Takeaways from the Interview.
Witness List and Flowcharting

Best Practices
Keep freshly updated list of your witnesses as you learn
of them.
Identify which parties or witnesses led you to other
witnesses.
Keep track of whether witnesses are neutral, loyal and
biased, or loyal but objective.
In complex cases, use a flowchart to track witnesses the
reporting party leads you to, the witnesses responding
party leads you to, and the witnesses who are neutral.
Note in the flowchart where witnesses intersect in terms
of relationships to each other and/or potential loyalties to
parties.
Keeping Policy and Procedure

Copies
Each party should receive a copy of:
The policies alleged to have been violated.
The procedures that will be used to resolve the
complaint, including the rights that extend to the
parties.
Consider providing parties with your non-retaliation
provision.
The file should contain all policies and procedures
currently applicable.

December 2 016
Confidentiality of the Process

Privacy of the parties and witnesses names and
the allegations should be maintained to the
greatest extent possible.
Should you furnish the responding party with a

copy of the report without redaction or
summarizing?
What advice do we give a reporting party who

wants to share his/her story?
Focus on Remedies
Throughout process:
Investigation.
Stop harmful behavior.
Remediate impact (often not sanction-based).
Prevent re-occurrence:
Consider the effect of educational sanctions.
Second victim is both Title IX and negligence
concern.
Consider what education/training needs to be
implemented, changed, etc.
Prior Acts as Evidence
Previous conduct violations by the Responding Party

are not generally admissible in due process
proceedings.
They are essential (and legally required) considerations
in any civil rights investigation if it represents
substantially similar conduct.
Must be considered as evidence in a finding, not just of
sanction.
Previous good-faith allegations as well as convictions,
and campus policy findings must be considered.

December 2 016
PRE-INTERVIEW
ELEMENTS
Establish Pre-Interview
Ground Rules
Will you record? Can subject record?

Who will attend? How many may attend?
Do you need to instruct advisers about their role
or your process before any meetings?
May witnesses be accompanied by more than
one adviser?
Explain how will records be kept
Be aware of FERPA/confidentiality issues/public
records and privacy of employees
Setting up Reasonable
Expectations
Ensure all the people involved, including the
witnesses, are treated objectively and fairly
Be sure the Reporting Party and the Responding
Party understand the parameters of the policy, what it
does and does not cover, how the process plays out,
and what the process can and cannot accomplish
Provide ample opportunity for the Reporting Party
and the Responding Party to ask questions
Keep the Reporting Party in the loop as to exactly
when notice will be given to the Responding Party

December 2 016
Demeanor of Investigator(s)
Work to establish a baseline of relaxed
conversation.
Maintain good eye contact.
Ask questions in a straightforward, non-
accusatory manner.
Nod affirmatively to keep party/witness
talking.
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Rapport Building
Understand the goals of an interview versus an
interrogation.
An interview is a conversation designed to elicit
information in a non-accusatory manner.
Shifting to an interrogation approach should not be
done lightly; you cannot go back not
recommended.
Is the person you are talking with comfortable that you

will handle the investigation fairly and objectively?
Team or peer-led investigations can help create a
rapport much easier.
d rights reserved.
2016, ATIXA. All 95
QUESTIONING SKILLS
& GUIDELINES

December 2 016
Questioning Guidelines
Prepare an outline of your
Take the
complaint from questions in advance.
start to finish Ask questions about the
through a allegations and the evidence and
process of the policy elements.
broad to Focus on areas of conflicting
narrow evidence or gaps of information.
questions and
issues that Drill down on timelines and
need to be details.
addressed. Dont leave a question or gap
unanswered.
The Art of Questioning

Listen carefully and adapt follow-up questions.
Avoid evaluative responses to a persons answers.
E.g.: thats too bad, Im glad you said that.
Do not moralize.
Do not victim-blame.
E.g.: Why didnt you hit him? Why didnt you leave? Why did
you get so drunk?
Victims responses to trauma are quite varied.
Seek to clarify terms and conditions that can have multiple
meanings or a spectrum of meanings such as hooked up,
drunk, sex, fooled around, and had a few drinks.
Interview Guidelines
Work from your outline of your interview questions but be
flexible
Discuss thoroughness and the need for completeness;
make sure parties don't leave facts out because they are
afraid of getting into trouble for alcohol/drug use etc.
Create comfort with language and sensitive subjects.
Ascertain who the individual is and their relation to the
other parties in the case.
Note whether individual is cooperative or resistant.
Be professional: gather the facts, make no judgments, and
make no statements about the parties.

December 2 016
Interview Guidelines (cont.)

Pay attention to alcohol/drug consumption and timing of
consumption (your horizontal timeline).
Be cognizant of the difference between what was
heard (rumor) and what was witnessed (facts).
Ask who else you should talk to and ask for any
relevant documentation (i.e., texts, emails, etc.).
Let parties know you may need to follow up with them
as the investigation progresses.
Recommend that the parties and witnesses not discuss
the investigation.
Discuss non-retaliation.
Discuss FERPA issues.
INTERVIEWING THE
REPORTING PARTY
Interviewing the Reporting Party

Acknowledge difficulty of reporting and thank them.
Acknowledge that they may have told this story multiple
times already.
Explain why you are taking notes and/or ask for
permission to record if applicable.
Provide a copy of your policies and procedures.
Ask them to share a complete account of what occurred.
Have them give full story without asking questions, then
drill down on details.
Ask whom they spoke to and told about the incident.
Ask about outcry witnesses and possible documentation
such as blogs or journals.

December 2 016

Remedies Issues:
Notify of their option to report to police; institution will
help facilitate report.
Emotional, academic, and/or physical impact.
Counseling and advocacy options (on and off-campus).
Retaliation prohibition and to whom to report.
Interim Remedies:
No-contact orders.
Course adjustments.
Housing adjustments.
Be professional: Gather information; make no

judgmental statements about the parties
Depending on your role, use caution with
extraneous comments that could be viewed as
partisan
He should never have said that to you
What she did was unacceptable
We will make this right
I want to apologize on behalf of the
institution
Specific Interview Elements for

The Reporting Party
Find out if their academics and/or work have
been affected
Ask how this has affected them emotionally and
/or physically
Advise that the complaint will be discussed with
the Responding Party and witnesses
Discuss other reporting options and on- and off-
campus Reporting Party services
Try to determine the Reporting Partys
motivation/desired outcome

December 2 016
THE RELUCTANT
REPORTING PARTY
Reluctance to Report
When a reporting Those reasons involving investigation
party is reluctant to or hearing process should be
make a formal addressed by the investigator. Those
complaint, or involving other issues should be
returns to withdraw addressed by support person.
a formal complaint,
investigators should A comprehensive investigation and/or
honor that request resolution should not automatically
and determine the involve the Reporting Party, as it may
reason for be conducted without that persons
reconsideration. involvement, if sufficient independent
evidence allows.
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The Reluctant Reporting Party

The college or university should explain to the
Reporting Party that:
Its responsive action may be limited based on
the level of privacy requested by Reporting Party
It cannot guarantee privacy if doing so would
jeopardize the safety of the Reporting Party or
others
Emphasize that only those with a need to know
will be informed
Train those who will be informed about
confidentiality expectations

December 2 016
The Reluctant Reporting Party

The Reporting Party should be notified as to their
options:
That the process will still be available to them,
regardless of how long they wait to initiate an action
That the institution will support them in any way it can
(housing, classes, no contacts, etc.) consistent with
their willingness to allow their identity to be known
That, if information is brought to the attention of the
institution that may involve a threat to the community,
the office may be forced to proceed with an
investigation, but that the Reporting Party will be
notified of this process
TRAUMA INFORMED
INTERVIEWING
Sexual Assault as Trauma
Considerations for Interviewing
2016
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Impact of Trauma on Functioning
Neurological
Emotional Biological
Trauma
Social Psychological
2016
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December 2 016
The Brains Response to Trauma

In response to the anticipated trauma of sexual
assault, hormones are released into body which
impact:
Ability to react physically

Ability to think rationally
Ability to consolidate or group memories
This is a neurobiological response, not a choice.
2016
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Interviewing Considerations
Be cognizant of why someone may have
responded in a counterintuitive manner.
Be mindful that recall is often difficult and slow
following trauma.
Use non judgmental/non-blaming language.
Avoid re-traumatization.
Prioritize developing rapport and building trust.
Emphasize transparency and predictability.
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A Trauma Informed Response Also:

Promotes safety.
Recognizes the impact of trauma on a cognitive,

physical, psychological, emotional, and neurobiological
level.
Understands how trauma can impact ones

academics/work/social life.
Recognizes need for support/positive relationships.
Honors choice with goal of empowerment.
Is respectful; considers boundaries and privacy.
2016
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December 2 016
What Might Shut a Victim Down

Unsupportive responses.
Avoid:
Taking control any more then you have to.
Escalating the situation.
Defining or labeling a victims experience.
Asking why questions.
Why did you . . . ?
Verbalizing judgment in the moment.
Telling victims they must press charges.
2016
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INTERVIEWING
RESPONDING PARTY
Interviewing the Responding

Party
Acknowledge difficulty of the situation and thank him or
her for meeting with you.
Provide a copy of your policies and procedures.
Ask the person to share a complete account of what
occurred. Avoid leading this discussion
Question the responding party as to the allegations
ask a combination of open and closed ended questions.
Get detailed do not leave a question unanswered.
Ask about witnesses and any other relevant information.
Ask about possible motivation for complaint.
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December 2 016
Interviewing the Responding

Party (cont.)
Let the Responding Party know next steps and when you
will be in touch.
Discuss counseling options if the individual is not already
connected.
Discuss non-retaliation and any intermediary steps such
as no-contact orders, housing moves, and exclusions.
If interim suspension/action is employed, review the
terms and provide a timeframe.
Encourage the person to maintain privacy of the
investigation.
INTERVIEWING
WITNESSES
Witness Interviews
Strategize contacting witnesses, ordering witness interviews,
and preventing contact between witnesses, where necessary.
Solicit a witness list from the Reporting Party.
Determine when you are going to question Responding Party.
Solicit a witness list from the Responding Party.
Consider this Order: Reporting party Reporting partys

witnesses Neutral witnesses Responding partys
witnesses Responding party Any additional witnesses
identified by Responding party Round 2 Round 3.

December 2 016
Sharing Information with Parties

and Witnesses During Investigation
Decide how much information you will share in
advance of each interview and have a rationale for
what information will be shared and what will not be
shared.
Explore only those facts that are relevant to the issue at
hand.
Start with broad questions, then move to narrow, more
pointed questions.
Can be difficult for the Responding Party to respond
effectively to broad-based or abstract allegations and
can diminish trust and hurt rapport building.
Feedback to Witnesses
Witnesses may ask or say:
Am I being investigated?
What are you really investigating?
How will you use the information you are given?
Is it confidential?
Will I get into trouble by giving you this information?
I dont want to cooperate.
Do I need my parents/lawyer present during interview?
Anticipating these questions and/or covering them in
advance can help ensure that you get complete
truthfulness.
Interviewing Witnesses
It may be helpful to not label the allegations as sexual
misconduct or sexual harassment but to describe the
behavior.
Ascertain relation to the other parties in the case.
Ask questions; address the need for complete

truthfulness.
Ask for opinions.
Ask if either party spoke about the incidents after they

happened.
Did they see any change in behavior?

December 2 016
Interviewing Witnesses (cont.)

Ask if they have been contacted already by one of the
parties.
Ask if they have made any previous statements, such as
to private investigators.
Ask if there is anything you should know that has not
been covered or if there is anyone else they think should
be contacted.
Discuss non-retaliation and give examples .
Discuss privacy and FERPA guidelines.
Ask all interviewees to contact you if they remember
anything else or want to add to their interview.
2016
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Case Study: Todd & Amy

Introduction Of Amy
2016
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CASE STUDY: Amys Statement

Reporting Partys Statement: Amy Craft
What follows is the account Amy provided to the police
On Friday, April 23rd, I went to an apartment near mine, over

by Target. I was doing a lot of drinking and dancing and
getting to know people. I had at least four drinks in the first
few hours I was there. Then, I met Todd, a guy I recognized
from my Human Services class. I remember that he came up
to me on the dance floor, and started to dance with me. He
was really good looking, and so was the other guy he was
with, Jeff, whom I had met at a different party the week
before.

December 2 016
We danced and had a lot of fun, and I remember drinking

some more and asking Todd to get me some Jell-O shots, which
were really strong and nasty, but I drank them anyway.
Unfortunately, they made me sick and I went into the
bathroom, feeling like I might throw up. The bathroom was
really crowded, and I went outside for some fresh air instead. I
sat on the stoop, feeling nauseated. I went over to the bushes
and got sick. Todd came over and helped me out. I asked him
to walk me home and I remember walking home with him he
offered to leave but I wanted him to stay. We started kissing,
but I dont know what happened after that because I dont
remember anything else.
When I woke up the next day, Todds name and number were
scrawled on a pad by my sofa with a note to give him a call, and
there was a condom wrapper and a used condom in the trash. I
got scared, and called him to find out what had happened. I
remembered most of what he said about the party, but when he
told me that we came back to my room and had sex, I started to
cry. I didnt remember any of it. Todd seemed confused and
said I asked him to stay and initiated the sex. He assured me he
wore a condom that he got from my room, and asked me out
again. I hung up and cried. I told everything to my roommate
Sarah, who was sitting on the sofa when I called Todd. She
suggested I call the campus police, so I did.
Group Discussion
What issues do you s ee h ere?

What d o you want to ask Amy?
Who else d o you want to talk to?
Why d id Amy report?
What other information should you look for?
2016 ATIXA All Rights Reserved 129

December 2 016
Understanding
The Force Incapacity Consent
Construct
AN ANALYTIC FOR SEXUAL

MISCONDUCT ALLEGATIONS

130 reserved
Begin With the Concept That

Consent Is
Voluntary (freely given)
Informed (knowing)
Overview of the Three Questions
1. Was force used by the accused individual to

obtain sexual access?
2. Did the accused individual know, or should
s/he have known that the alleged victim was
incapacitated (alcohol, other drugs, asleep,
etc.)?
3. What clear words or actions by the
complainant gave the accused individual
permission for the specific sexual activity that
took place?

December 2 016
Force
There are four types of force to consider:
Physical violence -- hitting, restraint, pushing, kicking, etc.
Threats -- anything that gets the other person to do
something they wouldnt ordinarily have done absent the
threat
Intimidation -- an implied threat that menaces and/or
causes reasonable fear
Coercion the application of an unreasonable amount of
pressure for sexual access.
Consider:
Isolation
Frequency
Intensity
Duration
Because consent must be voluntary (an act of free will),
consent cannot be obtained through any type of force
Incapacitation
Forms of Incapacitation:
Alcohol or Other Drugs
Rape drugs
Mental/cognitive impairment
Injury
Sleep
Incapacitation
To better understand and determine the relationship

between the use of alcohol and capacity its important
to understand there are multiple levels of effect of
alcohol, along a continuum
The lowest level is impairment, which occurs with
the ingestion of any alcohol. A synonym for
impairment is under the influence
The next level is intoxication, also called
drunkenness, similar to the states drunk driving
limit
A person can be drunk but still have the capacity
to give consent

December 2 016
Incapacitation
Incapacity is a higher level of alcohol consumption
in which an individual is incapable of
understanding information presented, appreciating
the consequences of acting or not acting on that
information and making an informed choice
Incapacitation is a state beyond drunkenness or
intoxication, where decision-making faculties are
dysfunctional.
Too intoxicated to consent or unable to consent
as a result of AOD are too limiting as policy
standards, because they cannot cover the
blackout situation where someone does consent to
sex, but does not know that they are.
Incapacitation
In order to consent effectively to sexual activity, you

must be able to understand Who, What, When,
Where, Why and How with respect to that sexual
activity.
Any time sexual activity takes place where the
complainant did not understand any one of these six
conditions, incapacity is at issue.
This is another way of stating the laws expectation
that consent be knowing or informed, and any time it
is not, consent cannot be effective.
To be more precise, an incapacitated person cannot
give a valid consent.
Incapacitation Question
Is there a preponderance of evidence that the

complainant was incapacitated by alcohol,
other drugs, injury, illness or sleep?
AND
Did the accused student know as a fact that the
complainant was incapacitated?
OR
Should the accused student have known from
the circumstances that the complainant was
incapacitated?

December 2 016
The Incapacitation Question
Should have known is an objective standard,

posing the question of whether a reasonable
person in the position of the accused student
would have known, given the context.
Not allowed to be willfully oblivious of the
obvious
A reasonable person is always sober, and
using good judgment. Thus, the fact that the
accused student is drunk is rarely material.
Create A Timeline
Must determine First by a more likely than not

standard if the complainant was incapacitated
This inquiry will likely be triggered by statement
such as:
The next thing I remembered was.
I woke up and
I dont remember anything after
That is your cue to start a timeline of the events
during the incident in order to make the first level
analysis of if the complainant was incapacitated
(Using a preponderance of the evidence standard)
Timeline Construct (cont)
Begin the timeline at the time the incident began,

starting at the time the Complainant b egan
consuming alcohol or engaged in recreational drug
consumption
Ask:
When did y ou eat? What did y ou eat?
What w ere y ou drinking (wine, beer, hard liquor?)
How much w ere y ou drinking? (shot, 12 oz., large cup?)
How many drinks did y ou have?
Were y ou using any recreational drugs?
Are y ou on any personal medications?

December 2 016
Continue the first five questions up till the point

in time that Complainant indicates he/she
cannot remember anything
Note: If Complainant did not have anything to
drink, or only had a small amount you need to
consider if the Complainant was drugged. You
will need to ask:
Where were you when you were drinking?
Did you leave your drink at any time then resume
consuming?
Did anyone provide the drinks for you?
Knowledge Construct
How do you k now if someone is
incapacitated?
They are asleep
They are p assed out
They are incoherent
They are ill or mentally impaired
How else M IGHT y ou reasonably k now
someone is incapacitated?
Factors Indicating Incapacity
Evidence of incapacity will come from context clues, such as:

The accused may know how much the other party has consumed
Slurred speech
The smell of alcohol on the breath in combination with other factors
Shaky equilibrium; stumbling
Outrageous or unusual behavior (not making sense, appearing drunk)
Falling asleep
Throwing up
Disoriented
Unconsciousness (including Blackout)
Although memory is absent in a blackout verbal and motor skills are still
functioning.

December 2 016
Knowledge Construct
Then consider:
Did the Accused knew Complainant
previously?
If so, ask if Complainant was acting differently
from previous similar situations
Review what the Accused observed the
Complainant consuming (via your timeline)
Determine if Accused provided any of the
alcohol for the Complainant
Consider behavior cues
You will need to make an assessment if, based

on the preponderance of the evidence, the
Complainant was more likely than not
incapacitated
If the answer is No then you would proceed to
the Consent analysis.
If the answer is Yes then go to Part Two of
your analysis
Conduct the same timeline for the Accused,
superimposed on the Complainants timeline
THE TIMELINE LOOKS LIKE THIS

147 reserved

December 2 016
Creating a Timeline
Use the W ent to the the

Two 1oz s hots in
preponderance of room before
Alpha Phi O mega
party drank two
evidence standard. leaving for party s olo c ups of
mys tery punch
Use documentary
evidence such as a Eat half a piz z a
at the s tudent Smoked a joint
text to establish union building with G ina
where, why, when,
how, and who.
Match up as many 4pm 5pm 6pm 7pm 8pm
times and locations
as possible. G rabbed a quick
Caught up with
Steven at Delta
What did the other s hower and bite to Tau S igma
eat after practice
party observe? Two s olo c ups of
beer from the
keg at Delta Tau
Keg s tand and 2 1 beer and

Jello s hots another joint
with G reg
Dancing with Danced with

s ection mates Paul before he
walked me
home
9pm 10pm 11pm 12am 1am 2am 3am 4am

Arrived at Alpha Celebrated pong
champions hip W alked Carly
Phi O mega for Paul alleges Carly
with Carly on the home
beer pong as ked him to s tay
champions hips dance floor the night
Paul alleges Carly

W atched the end
cons ented to oral
Snorted s ome of Seth Myers
s ex and
Adderall
2016 ATIXA all rights reserved intercours 149e
BAC/BAL
One drink . 025 BAL

12 oz. beer
5 oz. w ine
1.5 oz. liquor (a t ypical shot)
Metabolic rate one drink per hour

.015/hr. (avg.)
Dependent on age, gender, height, w eight,
medications, genetics, experience w ith drinking etc.
Photo c ourtesy of: http://www.discus.org/responsibili ty/health/


December 2 016
Final Incapacity Analysis

If the alleged victim was not incapacitated, move on to the
Consent analysis.
If the alleged victim was incapacitated, but:
The accused individual did not know or could not have
reasonably known it move to Consent analysis.
If the alleged victim was incapacitated, and:
The accused individual knew it or caused it = policy
violation. Sanction.
The accused individual should have known it = policy
violation. You are done. Sanction accordingly.
Consent
Question 3 is the Consent question: What

clear words or actions by the complainant gave
the accused individual permission for the
specific sexual activity that took place?
Equity demands a pure consent-based policy,
defining what consent is rather than defining it
by what it is not (force, resistance, against
someones will, unwanted, someone unable to
consent, etc.)
Rules to Remember
No means no, but nothing also means no.

Silence and passivity do not equal permission,
consider tonic immobility (common trauma
response)
To be valid, consent must be contemporaneous
with the sexual activity
Consent can be withdrawn at any time, as long
as that withdrawal is clearly communicated by
the person withdrawing it

December 2 016
Case Study: Todd & Amy

Introduction of Todd
2016
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CASE STUDY: Todds Story

Responding Partys Statement: Todd Martin
On the night of Friday, April 2 3rd, I went to a party at a friends
apartment. There was a band, and a l ot of alcohol. I got to the
party at about 11:00 p m, and s lammed about three beers in the
first hour I was there. I t was very crowded, and people were
dancing. A l ot o f p eople already s eemed to be drunk. I h ung o ut
around the dance floor with my friend Jeff Kwik for a while, until I
noticed Amy Craft dancing. She was really cute, and I had noticed
her in one of my classes a few times. I went up to her and we
started talking. She seemed a little tipsy and i n a p retty loose
mood. We talked for a while, and d anced. We really h it it off.

Around midnight, somebody started passing out Jell-O shots
spiked with grain alcohol. I didnt want to mix them with the
beer, but Amy asked me to get her a few. I asked her if she
was sure but she assured me she had a high tolerance for
alcohol. We danced a lot and then she went off to the
bathroom, and after that I couldnt find her, and that really
bummed me out. I waited around to see if she would show
up again, but she didnt. I took off and started to walk back
to my apartment. As I left the party, I heard someone
vomiting. I looked over and saw Amy in the bushes, throwing
up. She asked me if I would walk her home, and she told me
where she lived and she leaned on my arm but she seemed
steady.

December 2 016

When we got to her apartment building, I walked her up the s tairs,
and was about to leave, but she asked m e to come in to h er
apartment. She gave me her key and I o pened the d oor for her, and
let her in. She asked me to get her a glass of water, and I d id. I
started to take off again, but she asked me not to go. When I turned
around, she kissed me and rubbed u p against me. We kissed for a
while and she said s he was tired. She lay d own together and we
kissed some more. I s tarted to m assage her back, and she fell
asleep. She woke up about 20 m inutes later, and she started to kiss
me really passionately and fondle me. She took off her shirt, and all
of my clothes. I asked h er if she had a condom, and she said s he had
one in her purse. I went to get it, and when I got b ack to the couch,
she was asleep again.

She woke up after about 20 minutes, and I suggested that she
just go back to sleep and we would get together tomorrow.
But, she said she was awake, and she started to give me oral
sex. After a while, she put the condom on me and we had sex.
It was great. She was really wild, and liked to be on top.
Afterward, we talked until the early morning, and I gave her my
number and left. The next day, she called me to ask me why
my name was on the pad by her sofa. I told her about meeting
her at the party, and about our evening together. She seemed
to get upset, and said she remembered meeting me at the
party, but nothing else. I asked if she wanted to get together
again, and she hung up on me.
Group Discussion
What are the issues p resented?

How d oes this impact your investigation strategy?
What else d o you want to know?
Who d o you want to talk to?
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December 2 016
CREDIBILITY &
EVIDENCE EVALUATION
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Credibility
To assess credibility is to assess the extent to which
you can rely on a witnesses testimony to be accurate
and h elpful in your u nderstanding of the case
Credible is n ot synonymous with truthful but may
involve lack of truthfulness
Memory errors d o n ot n ecessarily d estroy a
witness credibility
Refrain from focusing on irrelevant inaccuracies
and inconsistencies
Pay attention to the following factors
Factors to Consider for Credibility

Is the d escription of the incident plausible?
Logic/Consistency/Reasons to Avoid Specific Response
Ask Does this make sense?
Is the d escription corroborated? Corroborating
evidence is important
Did the witness report h is/her account to anyone
close to the time of the events?
Does the witness h ave a reason or motive to lie or
falsify information about the account?
Does the witness h ave a p ast record of behavior that
would either s ubstantiate or refute h is/her account?

December 2 016
Making Credibility Determinations

Look at consistency of s tory substance and
chronology of statements also if there are other exact
stories
Consider inherent p lausibility of all information given
Look for the amount of d etail ( facts) p rovided, factual
detail s hould be assessed against general allegations,
accusations, excuses or denials that h ave no supporting
detail
Pay attention to n on-verbal behavior ( i.e., d oes the
person s eem to be telling the truth), but dont read too
much into it
Understanding Evidence
Formal rules of evidence d o n ot apply. If the
information is considered relevant to prove or d isprove
a fact at issue, it should b e admitted. If credible, it
should b e considered
Evidence is any kind of information presented w ith the
intent t o prove what t ook place
Certain t ypes of evidence may be relevant to the
credibility of t he witness, but not t o the charges
Consider if drugs or alcohol played a role
If so, do you know what you need to know about the role of
alcohol on behavior? Timing? Incapacitation?
Look for evidence of prior planning
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Understanding Evidence (cont.)

You may assign weight to evidence based on:
Direct or testimonial evidence (e.g., personal observation or
experience).
Documentary evidence (e.g., supportive writings or
documents).
Electronic evidence (e.g., photos, text messages, and videos).
Real evidence (i.e., physical object).
Circumstantial evidence (i.e., not eyewitness but compelling)
Hearsay evidence (i.e., statement made outside the hearing but
presented as important information).
Character evidence (generally not relevant or acceptable).
Impact statements (should only be reviewed after a finding).

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ANALYSIS OF
EVIDENCE
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Analyzing The Information

Use your Policies in play to begin your analysis.
Examine only actions that have a direct relation to the
situation under review or a pattern of incidents.
Explore motivation, attitude, and behavior of reporting party,
responding party, and witnesses.
Apply relevant standards:
Force, incapacity, and consent.
Unwelcomeness, reasonable person, and discriminatory
effect.
Analyze the broadest violations first and make a
determination of each and every violation alleged, element by
element.
Analysis and Finding
List the evidence and what it shows (relevance).

Evaluate evidence/assess credibility of evidence and witness
statements as factual, opinion-b ased, or circumstantial.
Make determination, based on preponderance of the
evidence, whether a policy violation is m ore likely than n ot.
Cite concrete reasons for this conclusion in written report.
Refer complaint and findings to appropriate administrator for
implementation, sanctioning, and/or hearing. (discuss
variations)
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Details of Analysis Process
1. Assess evidence carefully. F or each piece of information

you have as a result of y our analysis and matching
process y ou need t o assess its evidentiary value:
What are the facts? They carry the most evidentiary weight.
What is the circumstantial evidence?
What are the opinions o r hearsay information? Theyre less
valuable than facts, b ut are probably the bulk of what youre
being told. Potentially are valuable when witnesses s hare
similar opinions. N ot worthless, but o nly suggestive rather than
probative (proving).
2. Put a + or next t o each element of evidence
3. How does t he evidence add up?
Analyzing The Information
! Withhold judgment until all the

evidence has been considered.
If Making a Finding
Review the institutional p olicies in play.
Parse the p olicy.
Specific findings for each policy and each
responding party.
Pose key q uestions.
Review the evidence and what it shows ( relevance).
Assess credibility of evidence and statements as
factual, opinion-based, or circumstantial.
Determine whether it is more likely than n ot policy
has b een violated.
Cite concretely the reasons for you conclusions.
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December 2 016
QUESTIONS?
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THANK YOU!
Questions?
W. Scott Lewis, JD
Partner, The NCHERM Group, L LC
Scott@ncherm.org
WScottLewis1@gmail.com
www.ATIXA.org

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December

2016 ATIXA CIVIL RIGHTS INVESTIGATOR

2016 ATIXA all rights reserved 2

LEVEL 1 INVESTIGATIONS TRAINING

IV. When Does IX Apply?

2 016, ATIXA. A ll r ights r eserved. 1

A Note About Terminology

Victim, Survivor, Complainant, Accuser Claimant =

WHAT GOVERNS SEXUAL

2016 ATIXA all rights reserved 6

2 016, ATIXA. A ll r ights r eserved. 2

Federal Laws Specifically Addressing

No person in the United States shall, on the

2016 ATIXA all rights reserved 9

2 016, ATIXA. A ll r ights r eserved. 3

Prompt Effective Equitable Process

Remedy the Remedies

2016 ATIXA all rights res erved 10

WHAT IS EQUITY AND

Equity & Grievance Procedures

2 016, ATIXA. A ll r ights r eserved. 4

Case law Trends

LEGAL REVIEW Significant Cases

2016 ATIXA all rights res erved 15

2 016, ATIXA. A ll r ights r eserved. 5

Franklin v. Gwinnett Public Schools

2016 ATIXA a. ll rights res erved 16

Franklin v. Gwinnett Public Schools

U.S. Supreme Court decided that sexual harassment

Gebser v. Lago Vista Indep. School

Case involved faculty/student sexual harassment.

Supreme Court created high standard that students

Court said you cannot recover monetary damages

2 016, ATIXA. A ll r ights r eserved. 6

Gebser v. Lago Vista Indep. School

2. The official must have authority to institute

3. The official must have failed to adequately

Davis v. Monroe County Bd. of Ed.

Prolonged pattern of student/student sexual

Parents complained to three teachers and principal.

The school took no action until the boy was charged

Filed Title IX action, alleging that persistent harassment

Davis v. Monroe County Bd. of Ed.

2 016, ATIXA. A ll r ights r eserved. 7

Other Relevant Cases

Williams v. University of Georgia System et al., 11th

Lisa Simpson, Anne Gilmore v. University of Colorado

Civil Law Suits v. Administrative

WHEN DOES TITLE IX APPLY?

2 016, ATIXA. A ll r ights r eserved. 8

When Does Title IX Apply?

When Does Title IX Apply?

When Does Title IX Apply?

2016 ATIXA all rights reserved 27

2 016, ATIXA. A ll r ights r eserved. 9

When Does Title IX Apply?

2016 ATIXA all rights reserved 28

When Does Title IX Apply?

When Does Title IX Apply?

2016 ATIXA all rights reserved 30

2 016, ATIXA. A ll r ights r eserved. 10

2016 ATIXA all rights

Sexual Misconduct Scenario