Student Conduct Standard Operating Procedures Regarding Sexual Misconduct, Sexual Harassment, and Unwanted Sexual Contact
Consistent with Section 1(III)(1), the director of Student Conduct and Community Standards (Director) has developed these procedures to implement the Student Conduct Code as it relates to allegations of sexual misconduct and certain allegations of harassment and unwanted contact.
Specifically, these procedures should be followed when the underlying allegations relate to any form of sexual harassment, including sexual assault, dating or domestic violence, gender-based harassment and bullying, stalking and any other conduct that, if true, implicates Title IX (Sexual Misconduct). These procedures also apply to retaliation claims arising out of complaints that fall under these procedures. Note: sexual harassment is a form of discrimination on the basis of sex. These procedures should be construed as consistent with applicable code sections. If there is a conflict between the Student Conduct Code and these procedures, the Student Conduct Code controls. These procedures shall be interpreted and applied consistent with the Violence Against Women Act, Title IX, their implementing regulations and relevant agency guidance, and other controlling state and federal law.
The below procedures apply to sexual misconduct allegations initiated on or after January 4, 2016. Matters already under investigation are subject to the previous procedures, without the October 13, 2016 amendments, unless the Title IX Coordinator determines that there is good cause to use the new procedures and using the new procedures will not result in substantial prejudice to either party. Appeals filed on or after October 13, 2016 will be subject to the new process for appeals described at Section (14) below.
Pursuant to guidance from the Office of Civil Rights, the timelines of the conduct process are generally consistent with a 60 calendar day timeframe, with reasonable breaks when school is not in session (weekends, holidays). The word “day” in these standard operating procedures means “business day” between 8:00am and 6:00pm unless specified otherwise. When a deadline or due date falls on a weekend or holiday, the deadline or due date will be considered to be the following business day.
Subject to being notified of a potential Sexual Misconduct violation, the Title IX Coordinator shall notify the Director. Reports can be made by contacting the Title IX Coordinator at firstname.lastname@example.org or by calling (541) 346-SAFE. For information regarding confidential reporting options, please see https://safe.uoregon.edu/services. For anonymous reporting options, please visit https://police.uoregon.edu/anonymous-sexual-assault-report.
The University provides students access to interim measures and confidential resources regardless of whether or not a student decides to move forward with making a report to the university, and interim measures and/or accommodations are available to both parties. These measures include, but are not limited to, counseling services, academic accommodations, housing accommodations and other support services. The following link identifies confidential resources, further explains options for reporting Sexual Misconduct to the university and to law enforcement, and details other services and interim measures provided by the university: https://safe.uoregon.edu/services. Students who have questions about reporting, interim measures, or other services provided by the university may also contact the Title IX Coordinator at email@example.com.
The Director, in consultation with the Title IX Coordinator and other qualified campus community members, will determine whether emergency action procedures should be implemented. If emergency action is required, the Director or the Director’s designee will follow the procedures outlined in Student Conduct Code Section 6 to implement the action or actions. The parties will have an opportunity to respond, as appropriate. As stated in Section 6 of the Student Conduct Code, both parties have the right to appeal emergency action decisions. In determining whether to issue an emergency action procedure, the Director or the Director’s designee can consider the Risk Factors described in Section 4.
Either party may request a No Contact Order. If a No Contact Order is issued, it shall apply to both parties. A violation of a No Contact Order is a separate student conduct violation, and should be immediately reported to the Director or the Title IX Coordinator. In some instances, violations of a No Contact Order may also result in retaliation charges under these SOPs. In that event, the retaliation charge may, at the discretion of the Decision-Maker, be added to an ongoing investigation or may result in a new matter being initiated.
The violation of the No Contact Order may be considered in determining whether to issue an emergency action and/or in determining sanctioning. If either party has questions regarding whether certain actions would or would not violate a No Contact Order, they should contact the Director.
A complainant may request that personally identifying information not be shared with the Accused Student, that no investigation be pursued, and/or that no disciplinary action be taken. The Title IX Coordinator and other persons that the Title IX Coordinator identifies as possessing relevant knowledge or skills will consider the following factors in evaluating such request(s): (1) the totality of the known circumstances; (2) the potential impact of such action(s) on the complainant and/or other members of the university community; (3) any information showing that the accused student made statements of admission or otherwise accepted responsibility for the underlying conduct; (4) the existence of any independent or potentially exculpatory information regarding the underlying conduct; (5) any other available and relevant information including the interests of the University community; and (6) the presence of any risk factors, described below.
· Whether the Accused Student has prior convictions, is the subject of prior reports and/or complaints of any related form of prohibited conduct under the Code, or has any history of violent behavior.
· Whether the Accused Student has a history of failing to comply with any university No Contact Order or Emergency Action, other university protective measures, and/or any judicial protective order.
· Whether the Accused Student has threatened to commit violence or any form of Sexual Misconduct.
- Whether the underlying conduct involved multiple Accused Students or multiple potential complainants.
- Whether the reported Sexual Misconduct involved physical violence. “Physical violence” means exerting control over another person through the use of physical force. Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking and brandishing or using any weapon.
- Whether the report reveals a pattern of Sexual Misconduct (e.g., by the Accused Student, by a particular group or organization, around a particular recurring event or activity, or at a particular location).
- Whether the reported Sexual Misconduct was facilitated through the use of “date-rape” or similar drugs or intoxicants.
- Whether the reported Sexual Misconduct occurred while the Complainant was unconscious, physically helpless or unaware that the Sexual Misconduct was occurring.
- Whether the Complainant is (or was at the time of the Sexual Misconduct) a minor (under 18); and/or whether any other aggravating circumstances or signs of predatory behavior are present.
The Title IX Coordinator or designee will seek to honor the complainant’s request(s) if it is possible to do so while also protecting the health and safety of the complainant and the university community. If it is not possible to honor a complainant’s request for no action, the UO will move forward with the process and the student will be treated as Non-Participating Complainant, meaning that the student does not have to participate in the process. While a Non-Participating Complainant does not have to participate in the process, a Non-Participating Complainant can still exercise certain rights. For example, a Non-Participating Complainant has the right to access the Notice of Findings and may file an appeal, as provided for in Section 14. UO will not take disciplinary action against Non-Participating Complainant for refusing to participate in the process.
In instances where a Complainant requests confidentiality, the university will take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation, and where the university cannot pursue further investigation because of a Complainant’s insistence on confidentiality, it will pursue other steps to limit the effects of the alleged harassment or misconduct and prevent its recurrence.
To encourage reporting, neither a Complainant nor a witness in an investigation of sexual misconduct will be subject to disciplinary sanctions for a violation of university policy at or near the time of the sexual misconduct, unless the Complainant’s or witness(es)’ conduct placed the health or safety of another person at risk, or was otherwise egregious. This means that students who are actively supporting a student reporting sexual misconduct or responding to an incidence of sexual misconduct or participating in the resolution of sexual misconduct, will not be subject to allegations relating to their use of drugs or alcohol in connection with that incident.
Accused Students will similarly not be subject to disciplinary sanctions for a violation of the university’s policy relating to the use of drugs or alcohol for acts that occurred at or near the time of the underlying incident unless the Accused Student’s conduct placed the health or safety of another person at risk, or was otherwise egregious.
In all instances involving parties and witnesses, the university may initiate an educational discussion or pursue other educational remedies regarding alcohol or other drugs.
As explained below, the use of alcohol or drugs will never function as a defense for engaging in sexual misconduct.
Alcohol and drug amnesty do not apply to conduct that involves plagiarism, cheating, or academic dishonesty.
The student conduct process is not a criminal process nor do violations of the Student Conduct Code necessarily constitute violations of Oregon’s criminal code; however, the two processes are not always mutually exclusive. Therefore, sometimes a violation of the Student Conduct Code may also constitute a violation of the criminal code. If the underlying act may constitute a violation of both the Student Conduct Code and the criminal code, students have the right to file a criminal complaint and/or a student conduct complaint or neither.
If the criminal process is initiated, at the request of law enforcement the University may temporarily defer all or part of the investigation until after the active fact-gathering stage of the law enforcement investigation. The decision to suspend the student conduct process will be made by the Title IX Coordinator in consultation with the relevant law enforcement agency, in consideration for the health and safety of the campus community, and in accordance with state and federal law. If the student conduct process is suspended, in most instances, it will promptly resume as soon as the active fact-gathering stage is complete. The Decision-maker will communicate with the parties, consistent with the law enforcement request and the University’s obligations, regarding resources and support, procedural options, anticipated timelines and the implementation of any necessary interim measures for the safety and well-being of the affected individuals.
In cases where there are concurrent criminal and conduct charges, the investigation of both may proceed concurrently and Decision-makers may conduct joint interviews with law enforcement as appropriate.
In most cases, the Director of Student Conduct, or the Director’s designee, in consultation with the Title IX Coordinator, will within three business days of receiving information sufficient to constitute a complaint of possible Sexual Misconduct, (1) determine whether the complaint or notice contains information that, if true, would violate the Student Conduct Code, and (2) determine whether the university has jurisdiction over the underlying allegations. If a decision is made to issue charges, the Complainant will be notified by the Director of Student Conduct. If allegations are not issued, the Director shall send a notice to the Complainant explaining why allegations were not issued.
If the Director and Title IX Coordinator have made the determination to issue student conduct charges, the Director will send a Notice of Allegations to the Accused Student and Complainant, as set forth in Student Conduct Code Section 3(II)(2). The Notice will include information regarding the underlying allegations, interim measures and the University’s policy prohibiting retaliation against individuals who file discrimination complaints or cooperate in the University’s investigation of discrimination complaints, information regarding these procedures and information regarding the relevant timeframes. The Director may designate an appropriate university representative to investigate the case, and make a decision regarding the allegations (Decision-maker). If a designation is made, the designee’s contact information will be set forth in the Notice of Allegations.
The Director and Decision-makers shall receive annual training on how to handle sexual violence complaint investigations and implement these procedures. For more information on the type of training required, please view www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf, page 40. Decision-makers shall also receive training on how to conduct a trauma-informed investigation and an Administrative Conference in a manner that protects the safety and rights of Complainant, Accused Student and witnesses and promotes accountability.
In order to help ensure that timelines are prompt for both parties, the Accused Student has seven days from receipt of the Notice of Allegations to set up a meeting with the Decision-maker to discuss the allegations set forth in the notice. If notices are sent via email, notices will be considered received on the date that they are sent. If notices are sent via first-class mail, they will be considered received three days after they are sent. If the Accused Student does not respond within seven days of receiving the Notice of Allegations, the Decision-maker may proceed as set forth in Student Conduct Code Section 3(II)(3).
Accepting Responsibility: If a Student wishes to accept responsibility for the allegations stated in the Notice of Allegations, a student may choose to waive the administrative process and conference. If a student chooses to accept responsibility, the Decision-maker will gather the statement of the Accused Student and issue a Notice of Findings within 10 days from the date of the waiver of administrative process. The Notice of Findings will include a summary of the information gathered, an analysis of the underlying information and rationale, and will identify any sanction being imposed. The Decision maker will consult with the Title IX Coordinator and the Director, to the extent the Director is not the Decision-maker, regarding sanctioning. In the case that a student accepts responsibility under this provision, the parties will retain a limited right of Appeal to challenge any sanction issued pursuant to the rules for Appeals (14). For more information regarding sanctioning, please see Student Conduct Code Section 1 (VI). The Notice of Findings will be provided to both parties at the same time. The Notice may be redacted to protect the privacy of individuals as necessary.
The Director of Student Conduct or the Title IX Coordinator may at their discretion choose to initiate a conversation with either party after the conclusion of the Administrative Process, or pursuant to an informal resolution agreement.
Informal Resolutions: Pursuant to the restrictions set forth in Section 5 of the Student Conduct Code, informal or alternative dispute resolutions may be useful for addressing concerns when a Complainant does not want an investigation or is not seeking discipline; when a formal investigation would not result in a satisfactory resolution, such as when a report is made anonymously, or conditions exist that do not violate the policy but if left unattended may lead to policy violations or conditions exist that do not violate the policy but nonetheless are impacting the Complainant; or when education and training, mediation, or other cooperative processes are appropriate to resolve the matter.
Informal or alternative processes may be used at any time during the resolution process, including prior to and during the investigation stage. Informal or alternative processes include but are not limited to facilitated dialogue, mediation, and restorative justice. In all cases, informal or alternative processes may only be used when both the Complainant and the Accused Student (where an Accused Student is identified) voluntarily agree to pursue an informal or alternative resolution. Additionally, before allowing parties to use informal or alternative processes, the Director of Student Conduct and the Title IX Coordinator must determine that an informal or alternative approach is consistent with the University’s obligations – under the law, institutional policies, and institutional values – to stop the behavior, end the harassment, prevent the harassment from happening again, and address or remedy its effects. If parties do not reach an agreement in an informal or alternative process, they may pursue whatever formal process was initially available to them. In other words, they do not waive their right to pursue formal resolution simply by participating in an informal or alternative process.
Informal or alternative processes will not be used to resolve allegations or matters of sexual assault or sexual violence. Requests for informal resolutions may be directed to the Director of Student Conduct or the Title IX Coordinator.
Administrative Conference Process:
All parts of the fact-gathering and conference process described in the Sexual Misconduct Standard Operating Procedures implement Section III of the Student Conduct Code and form part of the overall Administrative Conference. Therefore, the fact-gathering, review of record, administrative conference and appeal all form part of the overall Administrative Conference process. The Administrative Conference process is not a criminal or civil action. That means that it is not subject to the rules of evidence, the rules of civil procedure or other rules that apply to court and court-like proceedings.
If student conduct allegations are issued, the Director or designated Decision-maker will initiate the administrative process, which is intended to be a fair, neutral and equitable process for all parties involved. In most instances, the administrative process will proceed according to the following timeframes: (1) Fact-gathering investigation (40 days from date the Notice of Allegations are received by the parties); (2) Review of Record (the record shall be posted for the parties to review not less than ten days before the administrative conference.); (3) Administrative Conference (no less than 10 days after the close of fact-gathering; (4) Issuance of the Notice of Findings (within 7 days from the Administrative Conference.) These timeframes may be altered for good cause which may include school breaks and concurrent law enforcement processes. If a party wishes to extend the timeframes, the party should file a petition with the Decision-maker. Both parties will be allowed to respond to a petition to alter timeframes. If the Decision-maker needs to alter the timeframes, the Decision-maker will consult with the Title IX Coordinator and, if necessary, send notices to the parties extending these timeframes.
(8) Fact-gathering Investigation:
The Decision-maker will conduct an investigation of the allegations. This will include interviewing the parties and other witnesses and reviewing any other material that the Decision-maker considers relevant to the allegations. Relevant material may include, but is not limited to, texts, photos, emails or other electronic communication, written documents, medical information, and proposed written questions that a party requests be asked of parties or witnesses. The Decision-maker may follow-up with the Complainant, the Accused Student and witnesses at any time during the investigation, as needed and appropriate.
At all stages of the resolution process, the responsibility is on the university to gather the relevant information to the extent reasonably possible to investigate a complaint, report or incident of sexual harassment or sexual violence of which the university has notice. However, to the extent the parties have information that they want the Decision-maker to consider the parties should provide relevant information and material to the Decision-maker within ten days of receiving the Notice of Allegations, or as soon as the material is available to and/or information is known to the parties. This helps to ensure that the Decision-maker has adequate time prior to the conference to gather and assess relevant information and provide it to the parties during the Review of Record.
The Decision-maker will not draw any adverse inference if a party chooses to remain silent during the investigation or Administrative Conference. However, the Decision-maker is free to draw appropriate inferences for selective participation, for example, choosing to answer some questions but not others or choosing to participate in some portions of the process but not others. Following a Notice of Allegations, non-participation by the Accused Student or witnesses will not prevent the process from moving forward. If a party or witness does not participate during fact-gathering and only provides information during the administrative conference, subject to the limitation on providing new information as addressed in Section 9, the information provided may have limited weight due to the inability to corroborate the information.
If the information gathered or provided as part of the investigation supports additional conduct allegations against either party and those allegations arise from the same underlying incident, the Decision-maker has the discretion to consider those allegations as a part of the underlying matter or to initiate a new case. Under either scenario, appropriate notice of the new allegations will be provided to the parties and timelines adjusted as necessary to ensure a full opportunity to respond. If after the Complainant has had the opportunity to speak with the Decision-maker and submit relevant information and witnesses, the Decision-maker determines that even if the information is viewed in the light most favorable to the complainant, there is not enough information to prove that it is more likely than not that the Accused Student violated the Student Conduct Code, the Decision-maker may dismiss the case prior to posting the Record or holding the conference as described in sections 9 and 10. In this instance, the Decision-maker will send a notice to both parties indicating that the case is being dismissed and stating the basis for the dismissal. If the Notice of Allegation includes conduct covered by the Violence Against Women Act, both parties will have access to all of the information relied upon by the Decision-maker. The dismissal may be appealed as stated in section 14. Subject to a party’s right to remain silent during an investigation or Administrative Conference, a party or witness who refuses or fails to cooperate with the Decision-maker may be subject to Student Conduct Code allegations.
Witnesses: To the extent the parties have witnesses they want the Decision-maker to speak with, the parties should provide a list of witnesses to the Decision-maker within ten days of receiving the Notice of Allegations. For all witnesses, parties must provide the Decision-maker with contact information for the witness and a brief summary of the relevant information they expect the witness to provide. Parties should provide the Decision-maker with a list of witnesses they intend to have appear at the Administrative Conference at least 2 days prior to the date of the Administrative Conference.
The role of witnesses within this process is to provide information relevant to the underlying allegations. Witnesses should, for example, have direct knowledge of the allegations by having personally observed the incident or behaviors, or being someone in whom the party confided at the time or near the time of the incident or behaviors. Witnesses should not be suggested simply to provide information as to either party’s good/bad character or overall truthfulness. In addition, witnesses may not be called to the administrative conference simply to restate what is already in the Record, or to provide new information (unless a petition to submit new information has been granted or a party is planning to file such a petition at the conference).
Witnesses named by the parties are expected to participate in interviews with the Decision-maker upon request of the Decision-maker, and are expected to be forthcoming with requested information. Witnesses are also expected to attend the administrative conference when requested by the Decision-maker. If a witness chooses not to participate and therefore denies the Decision-maker and the parties the opportunity to understand the information that they may have relevant to the allegations, the witness may be subject to disciplinary action for a failure to comply. Please note that as stated above, UO will not take disciplinary action against a complainant (including a Non-Participating Complainant) or a respondent for refusing to participate in the process.
The Decision-maker will create a record of all relevant information obtained prior to or during the fact-gathering investigation (“Record”). The Record will be supplemented after the Administrative Conference as explained below. The Record will not include health and psychological information, treatment records or other protected health information without the written consent of the person to whom the records apply. Subject to applicable state and federal law, the Accused Student and the Complainant will be offered an opportunity to review the record for a period of no less than 10 days after the conclusion of the fact-gathering investigation.
The Record will be augmented to include the audio recording of the Administrative Conference and any new or additional information the Decision-maker allowed into the Record during or after the Administrative Conference.
The Administrative Conference is intended to provide a fair, ample and equal opportunity for each party to respond to the Record, including posing questions to the Decision-maker, the other party and witnesses. These rights are explained in detail below. The Administrative Conference is an administrative proceeding not comparable to a criminal trial; in connection with the fact-gathering process, it is the mechanism by which the University assesses and, as appropriate, takes formal disciplinary action regarding a violation of University policy. Except for exceptional circumstances (such as a non-participating Complainant), both parties are expected to be present either in person or virtually at the Administrative Conference, unless they have petitioned for and been granted a bifurcated hearing.
- Notice: The parties will be provided timely notice of the date of the Administrative Conference. The parties are responsible for notifying advisors and witnesses they wish to have attend the conference. Either party may petition to extend or shorten timeframes for good cause. If the Decision-maker changes any timeframes, both parties will be notified. Once the Administrative Conference is scheduled and barring any unforeseen circumstance that would prevent the Complainant or Accused Student from participating in the Administrative Conference, the absence or unavailability of either party, witnesses, or advisors shall not be considered good cause to cancel, postpone or reschedule the Administrative Conference.
- End of term/academic year: If the Administrative Conference must be heard at or after the end of the term or semester (law students) or academic year and/or if an Administrative Conference cannot reasonably be convened, the university may substitute an alternate method of adjudication at its discretion such as virtual appearances or bifurcated hearings. Both parties will be notified in advance should such a decision become necessary. Pursuant to Section 1(IV)(5) of the Code, the University retains jurisdiction over a party even if the party withdraws from the University prior to the conclusion of this formal resolution process. Therefore, if an Accused Student chooses not to participate, the University will move forward with the Administrative Conference and imposition of sanction, if any, in absentia.
- Accommodations: The University wants to ensure that all individuals have the full ability to access and participate in the administrative process. Individuals who require reasonable accommodations to ensure full access and participation should direct requests to the Accessible Education Center at 541-346-1155. Students who wish to request language interpretation or translation services should notify the Decision-maker of the request in writing as soon as possible during the process.
- Scope: As set forth in section (10) above, only witnesses or parties that participated in the fact-gathering investigation may provide testimony or information in an Administrative Conference. Participation in the fact-gathering investigation may include attending meetings requested by the Decision-maker, submitting witness names or information to the Record and attending the Administrative Conference, even if the party chooses not to speak.
Information or witnesses submitted to the Decision-maker after the conclusion of the fact-gathering process will generally not be considered and therefore will not become a part of the Record absent a showing of good cause.
Either party may file a petition at the beginning of the administrative conference requesting to submit new information or allow the testimony of a new witness. Such petitions will be granted if the Decision-maker determines that there is good cause to grant the petition. If a party only became aware of the need for certain information or a certain witness after reviewing the record, that may constitute good cause for admitting the new information or witness.
Petitions for admission of new information or witnesses should only be made at the conference if the new information or witnesses only became known on the day before the conference or the day of the conference. In all other circumstances, petitions for admission of new information or witnesses should be made as soon as the new information or witness became known, and in no event less than two days prior to the conference.
If the Decision-maker grants a petition requesting to submit new information or allow the testimony of a new witness, the Decision-maker shall have the authority to conduct any additional fact-gathering as may be necessary. In addition, if the Decision-maker grants a petition for new information or witnesses, the Decision-maker has the discretion to postpone the conference, or to reconvene the conference at a later time, as appropriate, to allow sufficient time for additional fact-gathering.
The Administrative Conference is a closed proceeding not open to the public. The individuals who may participate in the Administrative Conference are the Complainant; the Accused Student; an individual serving as an advisor to each party, any individuals appearing as witnesses, and other individuals the Decision-maker may deem necessary such as from the Office of General Counsel.
During the conference, witnesses will wait in a separate room outside of the conference room until they are called to provide information and then will be asked to leave the conference room. Generally, parties will be responsible for ensuring that any witnesses they want to attend are notified and present at the Administrative Conference. The Decision-maker will request the presence of any witnesses the Decision-maker deems critical, and the parties may request assistance from the Decision-maker in securing the presence of opposing or difficult witnesses.
- Alternative testimony options: The Administrative Conference will be held in a neutral conference room determined by the Decision-maker. All parties, witnesses and information will be presented to the Decision-maker in that conference room. However, Complainant or Accused Student may also request alternative testimony options that would not require physical proximity to the other party including allowing the Complainant or Accused Student to be present in a separate room and using relevant technology to facilitate simultaneous participation. The Decision-maker may also choose to designate additional rooms as necessary. While these options are intended to help make the Complainant or Accused Student more comfortable, they are not intended to work to the disadvantage of the other party.
- Bifurcated Hearings: Parties may also request a bifurcated hearing – involving a series of conference meetings held on different days - by filing a petition with the Decision-maker. Petitions for bifurcated hearings will only be granted in extraordinary circumstances and must be received at least five days prior to the Administrative Conference and should explain the basis for the request. Criteria for assessing whether a bifurcated hearing is appropriate includes anticipated harm to either party if the petition is not granted. If a party’s petition is granted, the Decision-maker will send out notices to the parties indicating what procedures will be used.
- Recording: Administrative Conferences will be recorded by the Decision-maker and become a part of the Record. Any audio, visual or electronic recording of the proceedings by the Complainant, the Accused Student, witnesses, advisors or any other person is not permitted. The failure by the university to record all or part of the hearing, such as due to a malfunctioning device, will not be grounds for invalidating the Administrative Conference or grounds for appeal. The recording made by the Decision-maker is the sole property of the university.
- Structure of the Administrative Conference: The Complainant and the Accused Student or their advisors may present a summary of the student’s information at the beginning of the Administrative Conference. If an advisor is presenting, the advisor’s presentation should be 5 minutes or less. This is the one and only time an advisor is permitted to advocate, represent or speak for a party.
The basic structure of the Administrative Conference follows this format:
- The Decision-maker will address the parties and provide information about the proceedings, expectations, roles and rules and will accept petitions;
- Complainant will be allowed an opening summary of information;
- Accused will be allowed an opening summary of information;
- Complainant will be asked to respond to the Record and to any questions posed by the Decision-maker or the Accused Student;
- Accused Student will be asked to respond to the Record and to any questions posed by the Decisions-maker or the Complainant;
- Witnesses will be asked to respond to questions posed by the Decision-maker, Complainant and Accused Student;
- Accused Student will be allowed a closing statement;
- Complainant will be allowed a closing statement.
If either party wishes to present information regarding any impacts on their academic experience, they will be afforded the opportunity to do so during the closing summary, which may be submitted orally or in writing to become part of the Record. The closing summary is an opportunity to provide impact information and any further comments to summarize the party’s perspective. The closing summary is not an opportunity to provide additional response to the Record.
The Decision-maker may pose his or her own questions to the Accused Student, Complainant, and witnesses. The parties may propose questions for the other party and for any witness. Each party must provide their proposed questions for the other party and proposed questions for any witness that party intends to call to the Decision-maker, in writing, not less than 2 days before the administrative conference. The Decision-maker will review the proposed questions and will determine whether the questions are relevant, and whether they are unduly harassing. Leading questions and questions that solicit information already in the Record will be considered unduly harassing. The Decision-maker will ask those questions that are determined relevant and not unduly harassing. The parties may not directly question the other party or witnesses during the Administrative Conference. The questions and response to the questions will become a part of the Record. Questions proposed by the parties but not asked by the Decision-maker will become part of the file available to the Appeals Officer, but will not become part of the Record. Parties may also submit additional questions during the conference if the additional questions pertain to information provided during the conference. At the conclusion of the presentation of all witnesses and information, the Complainant and the Accused Student will each be given a brief final opportunity to make a closing statement. Should good cause exist to consider new or additional information obtained during the Administrative Conference, the Decision-maker shall have the authority to conduct any such additional fact-finding as may be necessary.
Additionally, new information or new testimony that was available and could have been, but was not, provided to the Decision-maker during the fact-gathering investigation will not be allowed. “Response to the Record” means an argument or statement indicating why one part of the record is more or less persuasive than the other. For example, a response to the record may include a statement that witness one’s statement should not be believed because it contradicts witness 2’s statement. “New Information” means information submitted to provide corroboration for an argument or statement in the Record. For example, a text message to witness 2 that had not been previously submitted to the decision-maker. The text message is new information that requires a petition stating good cause for inclusion in the record. It is important to note that in determining good cause, the decision-maker will consider an argument that the party did not know the new information was relevant until he or she had the opportunity to review the record.
- Standard of review: The Decision-maker will determine an Accused Student’s responsibility by a preponderance of the evidence. This means that the Decision-maker will decide whether it is “more likely than not,” based upon the totality of all of the relevant information gathered, that the Accused Student is responsible for the alleged student conduct violation(s).
Certain Information is not relevant and therefore will not be considered by the decision-maker in issuing the notice of findings, as outlined below:
a. Relevancy: The Decision-Maker has the sole discretion to determine the relevancy of information submitted and to include or exclude certain information. In general, the decision-maker will not consider statements of personal opinion, rather than direct observations or reasonable inferences from the facts, or statements as to any party’s general reputation for any character trait.
b. Witnesses without knowledge of the underlying conduct or relevant facts: Witnesses who do not have knowledge or information relating to relevant facts, the underlying conduct or who are being called solely to testify to a particular character trait of a party or witness are generally not allowed. This prohibition covers witnesses with a specialty in a particular field, like expert witnesses. This section does not, however, preclude the decision-maker from consulting with a third party with specialized knowledge in a particular field in order to understand a relevant fact. If the decision-maker consults with a third party for these purposes, the information obtained by the decision-maker will, if relevant and relied upon, become a part of the Record and the parties will have the opportunity to respond to the information at the administrative conference.
c. Advisor statements: Advisors cannot be witnesses in the underlying matter. This means that statements submitted by Advisors will not be included in the Record without a petition requesting for those facts to be submitted. If that petition is granted, the party must pick a new advisor.
d. Prior Conduct: Subject to section (11)(e), prior or subsequent conduct of either party may be considered in determining pattern, knowledge, intent, motive, or absence of mistake. For example, information of a pattern of prohibited conduct by the Accused Student, either before or after the incident in question, regardless of whether there has been a prior finding of a code violation, may be deemed relevant to the determination of responsibility for the matter under investigation. The determination of relevance of pattern information will be based on an assessment of whether the previous or subsequent conduct was substantially similar to the conduct under investigation or indicates a pattern of similar conduct. Such prior or subsequent conduct may also constitute a violation of the student conduct code, in which case it may subject the Accused Student to additional sanctions. The Decision-Maker will determine the relevance of this information.
e. Prior Sexual Conduct of Either Party: Prior sexual history generally will not be admitted to prove character or reputation and typically will not be used in determining whether the conduct occurred. Exceptions to this rule include when consent is at issue, in which case prior consensual activity between the two parties, while not determinative, may be relevant to determining whether consent was sought and given; to explain an injury, motive or bias, or to establish a pattern or intent.
f. Polygraph examinations and test results: Polygraph examinations and test results generally will not be allowed and will not become a part of the Record, unless the Decision-maker determines that an offered polygraph examination contains pertinent facts relevant to making a decision. When allowed, polygraph test results will not substitute for the Decision-maker’s independent assessment of credibility. Parties may petition the Decision-maker to consider submission of a polygraph examination and test results.
g. Information submitted but excluded from the Record will be kept by the Decision-Maker and submitted to the Appeal’s Officer as necessary.
h. Parties requesting an exception to the rules relating to information should file a Petition with the Decision-maker as outlined in Section 20. The decision maker also reserves the right to grant an exception to these rules. In that event, the decision will inform the parties of the exception and the basis for the exception.
Elements of Explicit Consent Analysis
Incapacitation is a state beyond drunkenness or intoxication. An individual who is intoxicated may be able to consent to sexual activity. However, when an individual passes from intoxication to a state of incapacitation, they no longer have the ability to give consent under this policy. Some indications of incapacity include (but are not limited to):
- Slurred speech or other difficulty communicating
- Difficulty walking or standing
- Glassy or bloodshot eyes;
- Unable to keep eyes open
- Unusual behavior
- Confusion or lack of understanding
- Disorientation to place, time and/or location
These signs alone do not necessarily indicate incapacitation. An individual can be incapacitated without displaying any of these signs. For instance, in some circumstances, a person in a blackout state can appear to be conscious when they are actually incapacitated and unable to consent.
Engaging in sexual activity with someone a person knew or should have known was incapacitated is a violation of the Student Conduct Code regardless of whether the person appeared to be a willing participant. It is the responsibility of the individual who wants to engage in sexual activity to make sure that the other individual(s) involved is able to consent. Failure to do so could lead to disciplinary and/or legal action.
It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.
Being intoxicated or impaired by drugs or alcohol is never an excuse for sexual harassment, sexual assault, dating or domestic violence, gender-based harassment or bullying, and stalking and does not diminish one’s responsibility to obtain consent. Therefore, when assessing responsibility under the Code, Accused Students will be treated as reasonable persons not under the influence of drugs or alcohol.
Force: Force is determined by looking at whether there was any physical force/violence, threats, intimidation and/or coercion that may have made an individual do something they would not have otherwise done. If an individual used force to obtain sexual access, they did not obtain explicit consent.
Coercion: Coercion is the use of an unreasonable amount of pressure to gain sexual access. It is more than an effort to persuade, entice, or attract another person to have sex. An evaluation as to whether pressure for sexual access rises to the level of coercion should take into consideration: (i) the frequency of the application of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the duration of the pressure. A finding of coercion also generally involves either the use of physical force, or the threat of harm. Harm can include, but is not limited to physical harm, harm to social relationships or reputation, financial harm, harm to terms and conditions of employment or academic situation, or other types of leverage created from the explicit or implicit threat of harm.
Threat: A statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.
Intimidation: To force into or deter from some action by inducing fear.
Physical Force: Power, violence, or pressure directed against an individual consisting in a physical act.
(13a) Notice of Findings:
Within7days after the Administrative Conference, the Decision-maker will issue a Notice of Findings to the Complainant and the Accused Student. The decision as to whether the Accused Student’s behavior, as set forth in the Notice of Allegations, violated the student conduct code will be based on whether information within the Record demonstrates that it is more likely than not that the conduct occurred. The Notice of Findings will include a summary of the information, an analysis of the underlying information and rationale, and will identify any sanction being imposed. The Decision maker will consult with the Title IX Coordinator and the Director, to the extent the Director is not the Decision-maker, regarding sanctioning. For more information regarding sanctioning, please see the below information regarding sanctioning and the Student Conduct Code. he Notice will be provided to both parties at the same time. The Notice may be redacted to protect the privacy of individuals as necessary. In general, the decision letter will be issued within 60 days of the date of receipt of the Notice of Allegations, as provided in section (7), unless there is good cause for delay.
The Notice of Findings will include information regarding the procedures to appeal. The Record, including the audio from the Administrative Conference and any additional information submitted during or after the Administrative Conference, will be posted within one day of issuance of the Notice of Findings and will remain open for review during the time period available for appealing a decision.
When a student has been found responsible for a violation of the student conduct code, the Decision Maker will assign sanctions using the following guidelines as a recommendation. It is important to note that sanctioning decisions are made on a case by case basis.
The sanctioning of students found responsible for sexual misconduct and sexual harassment (sex and gender-based stalking, sex and gender-based harassment and bullying, dating violence, and domestic violence) is a complex task that must take into account protecting the safety of the community and holding students found responsible accountable for their actions. In order to meet these goals, an appropriate combination of sanctions shall be issued for each case.
In sanctioning a student found responsible for sexual misconduct, specific factors of each case will serve as a guideline in the sanctioning decision.
Factors that will be considered can include but are not limited to:
a) Whether the student has a prior history of being found responsible for student conduct violations;
b) Whether the student has any history of violent behavior that has been adjudicated by the student conduct process;
c) Whether the Accused Student has a history of failing to comply with any university No Contact Order or Emergency Action, other university protective measures, and/or any judicial protective order;
- Whether the Sexual Misconduct involved physical violence. “Physical violence” means exerting control over another person through the use of physical force (see (12)(b). Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking and brandishing or using any weapon;
- Whether the conduct that the student was held responsible for reveals a pattern of Sexual Misconduct;
- Whether the reported Sexual Misconduct was facilitated through the use of “date-rape” or similar drugs or intoxicants;
- Whether the reported Sexual Misconduct occurred while the Complainant was unconscious, physically helpless or unaware that the Sexual Misconduct was occurring;
h) Whether the Complainant is (or was at the time of the Sexual Misconduct) a minor (under 18);
i) Whether the Accused Student failed or refused to participate in any University required trainings on sexual harassment, sexual violence prevention or related trainings;
j) Whether any other aggravating circumstances or signs of predatory behavior are present.
If a student is found to have violated the Student Conduct Code, appropriate sanctions are imposed following the appropriate disciplinary procedures affording parties a fair, equitable and neutral process. Sanctions for sexual misconduct, dating violence, domestic violence or stalking or bullying can include the following:
- Expulsion, individual suspension, negative notation on the transcript, disciplinary probation, educational activity, loss of privileges, conduct reprimand, and/or removal from UO residential and recreational facilities. Sanctions may be issued retroactively and any benefit conferred during the suspension may be impacted.
- Expulsion means a permanent separation of a student from the University of Oregon.
- A suspension from the University means a separation where the student is not allowed to enroll in courses, participate in University sponsored activities or be on university owned or operated property for one quarter or more.
- A negative notation on a transcript means a written statement on a student’s transcript that will be in place for a defined period, detailing the misconduct for which the student was found responsible.
- Any educational sanction must be approved by the Title IX coordinator, and will be case specific. An educational sanction will never be the lone sanction given in a case involving unwanted sexual penetration or other actions of physical violence.
Before reinstatement to the institution after a suspension, a student will generally need to meet with the Director of Student Conduct and Community Standards, and potentially other University administrators to ensure that the student does not present an ongoing safety risk to the campus community.
NOTE: Generally, students found responsible for unwanted sexual penetration or other acts of physical sexual violence will be sanctioned to a suspension of at least 2 years or more, or will face expulsion.
Either party can appeal a decision within 14 calendar days of the notice of findings or dismissal being received by the party by delivering a copy of the appeal to the Office of Student Conduct and Community Standards or by e-mailing the appeal to UOStudentConductAppeals@uoregon.edu. Learn more information regarding the appeals process.
As long as the presence of an advisor does not unreasonably delay the process, students may choose to have one individual advisor present throughout the process, including but not limited to during the period of fact-gathering investigation and the Administrative Conference. An advisor may be any person other than one who is a witness in the same matter, including but not limited to a representative of the Office of the Dean of Students, Office of Student Advocacy, Student Survivor Legal Services, an attorney, a union representative, another UO student, or a faculty member. The presence of an advisor does not affect the fact-finding process. If a student chooses to have an advisor, they must obtain an Advisor Designation Form from the Decision-maker, complete and submit the form to the Decision-maker. A student may designate an advisor at any point in the process by submitting this form. A student may also change advisors during the process by submitting a new Designation form.
A student may not designate an entire law firm as their advisor for this process. Only one attorney from that firm may be designated as the advisor at a time. However, to avoid unreasonable delays, if an attorney encounters a conflict in representation or scheduling, another attorney from that firm may replace temporarily the designated advisor. Only one designated advisor may accompany the student to related meetings or proceedings at any specific time during the process.
As soon as an advisor is designated, if the advisor is new to the UO administrative process, the advisor will need to contact the Office of General Counsel and the Title IX Coordinator to discuss the administrative process and the role of the advisor.
An advisor is someone who helps a student understand and navigate the investigation and resolution process. An advisor is not an investigator, advocate or representative of the party. An advisor may, on one occasion throughout the process, present a 5 minute or less brief summary of the student’s information at the beginning of the Administrative Conference. In all other instances throughout the resolution process, the advisor is a silent participant who may provide advice to a student but who may not advocate on behalf of a student, speak on behalf or instead of a student, or act in opposition to university policy during the course of the resolution of a complaint.
An advisor may not question witnesses, make statements, provide testimony or otherwise intercede in the proceedings. Rather, the student is expected to answer questions posed by the Decision-maker and otherwise respond to the allegations and other information presented. The Decision-maker reserves the right to remove any advisor from the process who distracts, derails, impedes or disrupts any part of the resolution process. If the Decision-maker determines that a student’s advisor has engaged in unreasonable, disruptive, harassing or retaliatory behavior, the Decision-maker may require the student to proceed without an advisor or require the student to identify a new advisor. For more information regarding advisors, please visit: https://uodos.uoregon.edu/Portals/0/Conduct/Advisors.pdf
The administrative process is a student centered process and as such, all communications from the Decision-maker will be directed to the student. All communications from advisors should include and/or copy the student. At the request of the student, communications from the Decision-maker will copy advisors as a courtesy. However, advisors will not be copied on communications sharing FERPA protected files directly with the student.
If a student believes a Decision-maker is biased, the student may make a request for a new Decision-maker as set forth in Student Conduct Code Section 2(5)(g) and Section 3(III)(2)(c). Petitions must be submitted to the Director of Student Conduct as soon as a party has reason to believe the designated Decision-maker is biased, and no later than one day prior to the relevant meeting or Administrative Conference. The fact that the Decision-maker investigates the allegations and also makes a final decision in the matter shall not be considered information that the Decision-maker is biased. The fact that the Decision-maker has previously or is currently investigating other cases involving the same party shall not be considered, by itself, to establish bias. The University may also determine that a Decision-maker or appeals officer is biased and appoint a new Decision-maker or appeals officer.
If a party or other participant in the process acting on behalf of the party (e.g. an advisor, private investigator) fails to comply with the procedures set forth in this policy and procedure, including through a breach of the privacy requirements set forth in Section 19, the university reserves the right to terminate the process and find an alternative means to resolve the matter, and/or to exclude a participant from further participation in the process. The Title IX Coordinator and/or the Director are responsible for interpreting this provision. The process will not be terminated nor will a participant be excluded without providing advance written notice and affording an opportunity to respond in writing. Nothing in this section is intended to remove the university’s obligation to end the harassment, prevent its recurrence and remedy its effects. This section shall not impact a student’s rights under controlling state or federal law.
Retaliation is not permitted under university policy or law. Retaliation is defined by the university’s complaint and response policy: https://policies.uoregon.edu/vol-5-human-resources/ch-11-human-resources-other/discrimination-complaint-and-response. Any act of retaliation against any individual participating in any part of this process may subject the party of participant engaging in retaliation to further disciplinary procedures. Examples of retaliation include, but are not limited to, contacting a witness or the other party in order to dissuade that person from participating in this process or excluding a witness or a party from an activity solely because the witness or party is participating in this process. Any act of retaliation should be reported to the Title IX Coordinator or the Director.
All parties and their advisors involved in an Administrative Conference are required to keep the information learned in preparation for the Administrative Conference and at the Administrative Conference private. Parties are allowed to select an advisor with whom they can discuss all aspects of the proceedings. The University understands that parties may seek advice and support from their families and friends as well. We expect that in so doing, parties will help their families and friends understand the importance of maintaining strict confidentiality, and if parties seek advice and support from friends or families it is expected that they will do so without revealing details of the proceedings or information that they have obtained as a result of the proceedings. No copies of documents provided are to be made, shared with any third parties, or posted publicly. No audio recording that is part of this process may be shared with any third parties or posted publicly. Any breach of this duty is subject to further disciplinary action by the university. The limitations set forth in this section shall not impact a student’s right under FERPA to access a student’s education records nor their rights under federal law to obtain a copy of the notice of findings.
Students may request exceptions to these procedures by submitting a petition to the Decision-maker. In order to be considered, petitions must provide a basis for the exception and be received by a date that gives the Decision-maker a reasonable amount of time to consider the request. In consultation with the Title IX Coordinator, Decision-makers have the discretion to deny or grant a student’s petition. For good cause and in consultation with the Title IX Coordinator, a Decision-maker may also make an exception to these procedures. If a party files a petition for an exception, like a petition to extend or shorten timeframes, the Decision-maker may notify the opposing party of the petition and provide an opportunity to respond. If exceptions are made, notices explaining the exceptions will be sent to the parties. All petitions should be directed to the Decision-maker unless specifically indicated otherwise in the standard operating procedures.
All parties and witnesses are obligated to be honest and forthright during the course of the investigation and Administrative Conference. Any person who knowingly makes a false statement in connection with the investigation and resolution of the matter may be subject to disciplinary action. False statements include statements that omit a material fact as well as statements made that the speaker knows to be untrue.
The University’s policy prohibiting sexual harassment specifically prohibits discrimination on the basis of sex or gender, sexual harassment, sexual violence, sexual assault, dating or domestic violence, sex or gender based stalking or bullying, and other gendered harassment. “Harassment” as defined under the Student Conduct Code will be interpreted to include sexual harassment as defined by the university’s discrimination complaint and response policy: policies.uoregon.edu/vol-5-human-resources/ch-11-human-resources-other/discrimination-complaint-and-response. Sexual harassment and sexual misconduct may be committed by any person upon any other person, regardless of the sex, gender, sexual orientation, and/or gender identify of those involved.
Updated October 13, 2016