February 15, 2019

General Principles of Investigation and Adjudication (Student Misconduct)

A.  General principles 

  1. Presumption of non-responsibility

The investigation is a neutral, fact-finding process. Reports are presumed made in good faith. Further, Respondents are presumed not responsible. This presumption is overcome only when a preponderance of the evidence establishes that the Respondent committed the prohibited conduct charged.

  1. Standard of proof

The standard of proof to find a violation of this policy is a preponderance of the evidence. Preponderance of the evidence means that based on the totality of evidence and reasonable inferences drawn therefrom, it is more likely than not that the Respondent committed the prohibited conduct charged.

Put another way, the preponderance of the evidence means such evidence that when weighed against that opposed to it, has the more convincing force and the greater probability of truth.

  1. Evidence

Rules of evidence and discovery used in state and federal proceedings are not applicable to the investigatory process for prohibited conduct. The investigation will consider information that is relevant, material, and temporally proximate to the conduct at issue; in other words, information that makes the existence of a fact or inference more or less likely.

Information that is not relevant or is not considered reliable may be excluded during the investigative or adjudicatory process. For instance, polygraph tests will not be considered in determining whether a fact exists.

(a)      Character evidence

Character witnesses, statements, or letters are not admissible as evidence and are not considered.

Examples of character evidence include statements, resumes, transcripts, and letters from friends, family, or faculty.

With the exceptions listed in (b) and (c) below, prior acts are not admissible to prove disposition to commit prohibited conduct. Prior acts of prohibited and non-prohibited conduct by a Respondent may be admissible to establish motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake/accident.

(b)       Prior sexual history

Generally, the sexual history of a Reporting Party, Respondent, or witness will not be admitted or considered as evidence unless directly relevant and temporally proximate to an issue.

Character or reputation regarding sexual activity is never relevant and will not be considered as evidence.

When is sexual history relevant?

(i) When there is evidence of substantially similar conduct by a Respondent, regardless of a finding of responsibility. This evidence may also be relevant to establish motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake/accident;
(ii) When there is prior sexual history between the parties and the Respondent states that the Reporting Party gave consent. Specifically, their prior sexual history may be relevant to assess how consent was communicated between the parties. However, the mere fact of a current or previous dating/sexual relationship does not constitute consent;
(iii) When sexual history may be relevant to prove a material fact. For example, to explain an injury or physical finding.

(b)       Prior acts of Intimate Partner Violence

Prior acts of intimate partner violence by a Respondent, regardless of a finding of responsibility, are admissible in determining responsibility in an investigation for the same or similar conduct.

Prior acts of intimate partner violence may also be relevant to establish determining motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake/accident.

B.  Procedural protections

During the process outlined in this policy, both the Reporting Party and the Respondent are granted the following procedural protections:

  • A summary of rights, investigation procedures, and avenue of appeal.
  • Equal treatment.
  • A fair, thorough, reliable, neutral and impartial investigation by a trained and experienced investigator.
  • Written notice of the alleged policy violation including the specific acts, the date/period of time, and location.
  • Written notice of the requirement to meet with the investigator. If the Respondent fails to respond to this notice and schedule an appointment with the Title IX Office, an administrative hold will be placed on the Respondent’s record prohibiting registration transactions until an appointment is completed. Restrictions may also be placed on registration transactions for good cause. An investigation may be conducted in absentia when a student fails to respond to initial notification. There may be times when the University may proceed with the investigation without the Reporting Party. See section VIII for a description of that process.
  • The opportunity to provide relevant information and names of relevant witnesses. Declining to present information or witnesses will not be considered an admission of responsibility.
  • The opportunity to inspect documents and/or relevant information gathered during the investigation. Medical and counseling records are confidential records that neither party is required to disclose.  However, if these records are disclosed to the investigator, the other party will be allowed to review the relevant portions.
  • A written, timely decision outlining the findings of fact and violation by the Title IX Office or adjudicator and any sanctions imposed by the Misconduct Sanctioning Panel. These reports are provided to the parties simultaneously. Information about the appellate process will also be provided. Notice will be emailed to the student’s email address of record in the Student Directory (typically, @usc.edu), unless otherwise arranged by the student. If a notice is mailed through the postal system, it is considered received three days after mailing.
  • For students facing severe disciplinary sanctions (defined as expulsion or actual suspension) and where the credibility of witnesses is central to the adjudication of the allegations, a live hearing in which the parties may indirectly cross-examine each other and those witnesses before an adjudicator who has the ability to assess credibility, find facts, and determine if the policy has been violated. See X. Findings, section B. Findings after a live hearing. The adjudicator is an individual other than the assigned investigator or the Title IX Coordinator.
  • The opportunity to appeal the findings of the Title IX Office, adjudicator, or the Misconduct Conduct Sanctioning Panel within 5 calendar days of receipt of the written decision. Following the appeal process, both parties will receive a written and timely decision regarding the outcome of the appeal, explaining the basis for the decision. See sections X and XI below for more information on the sanctioning and appellate process.

If the Reporting Party or Respondent identifies concerns about potential actual bias or conflict of interest in the investigatory, hearing, sanctioning, or appeal process, they should notify the Title IX Coordinator in writing as soon as possible. Actual bias is an articulated prejudice in favor of or against one party or position; it is not generalized concern about the personal or professional backgrounds, positions, beliefs, or interests of the decision makers in the process.

Where actual bias or conflict of interest is established, the affected investigation, sanctioning, or appeal will be managed by individuals identified by the university following established policy and procedures in a manner that eliminates the identified bias or conflict.

C.  Role of an advisor

Throughout the process, both the Reporting Party and the Respondent may use an advisor of their choice. The advisor may be any person – parent, friend mental health professional, certified victim’s advocate, attorney – or an individual provided by the university. An advisor may not be a witness or have any conflicting role in the process or with a party.

The role of the advisor is to provide support and assistance in understanding and navigating the investigation process. To protect the privacy of those involved, all advisors are required to sign a confidentiality agreement prior to attending an interview or otherwise participating in the university’s investigatory process.

The university’s duty is to the student, not the advisor. All communication is made directly with the student. The process will not be unreasonably delayed to accommodate the schedule of the advisor. An advisor must be familiar with university policy and may be required to meet with the Title IX Coordinator or other university administrator in advance of participation in university proceedings.

The advisor may not testify in or obstruct an interview, author written submissions, or disrupt the process. The Title IX Coordinator has the right to determine what constitutes appropriate behavior of an advisor and take reasonable steps to ensure compliance with this policy.

To limit the number of individuals with confidential information about the issues, each party may identify one advisor. Advisor changes may be made in exceptional circumstances and are permitted prior to Evidence Review only.

D.  Status of a Respondent during an investigation

In most cases, the status of a Respondent will not be altered upon receipt of a report or during an investigation.

In some cases, interim protective measures may be imposed when there is information that, if true, indicates the student or student organization poses a substantial threat: (i) to the safety or well-being of anyone in the university community; (ii) to the property within the university community; or (iii) of disruption or interference with normal university life or functions.

Some factors considered in determining whether to authorize interim protective measures include:

  • The nature and scope of the alleged conduct, including whether the reported behavior involved the use of a weapon or force;
  • The risk posed to any individual or to the campus community including the risk of additional violence or significant disruption of university life or function;
  • Whether there have been other reports of other prohibited conduct or other misconduct by the Respondent;
  • Whether the report reveals a pattern of misconduct related to prohibited conduct at a given location or by a particular group;
  • The university’s obligation to provide a safe and non-discriminatory environment;
  • The timing of the investigation in the academic calendar; and
  • The ability of an interim measure to reduce or mitigate the threat.

Interim protective action may include exclusion from all or part of university housing, exclusion from specified activities or areas of campus, or prohibition from representing the university in any capacity such as playing on an official team, serving in student government, and performing in an official band, ensemble, or production.

Interim protective measures may also include interim suspension which means exclusion from all classes, seminars and programs; prohibition of participation in university-sponsored activities; and exclusion from university premises.

A student or organization subject to interim protective measures is given prompt written notice of the charges and the interim measure. An opportunity for review of the measure is provided within 15 calendar days of the notice by the Vice President for Student Affairs or designee. Review of an interim protective measure may also occur if there is a change in the facts or circumstances providing the basis for the measure.

A review of an interim protective measure by the Vice President of Student Affairs does not evaluate the substance of the report or predict an investigative outcome. The single issue at review is whether less protective measures adequately reduce or mitigate the threat.

The imposition of interim protective measures does not relieve the student from financial obligations to the university.

E.  Other procedural matters

  1. Multiple Reporting Parties and/or Respondents

When incidents involve more than one Reporting Party and/or Respondent, the Title IX Coordinator will determine whether the investigations should be conducted separately or in one, consolidated investigation.

  1. Pending criminal investigations and/or proceedings

For cases in which criminal investigations are concurrent or pending, the university must proceed independently. The mere fact that a criminal investigation exists is not considered grounds for delay.

However, the Title IX Coordinator will coordinate with law enforcement to insure that university process does not interfere with the integrity or timing of the criminal investigation. At the request of law enforcement, the university may temporarily defer the fact-finding portion of its investigation.

If a criminal investigation is proceeding, the Title IX Coordinator will communicate with the parties about resources/accommodations, procedural options, anticipated timing, and the implementation of necessary interim interventions.

Neither a decision by law enforcement regarding arrest or prosecution, nor the outcome of a criminal proceeding, are determinative to an investigation proceeding or the determination thata policy violation has occurred.

  1. Group responsibility for student organizations

Student organizations may be held responsible for the acts of individual members. Acts that may hold a group responsible include the following types of circumstances:

(a) when a member of an organization is violating state law or university standards and other members present fail to indicate their disapproval, or by their continued presence without objection implicitly condone the behavior;
(b) when the acts grow out of or are directly related to the student organization’s activities or an environment created by the organization;
(c) when the acts are those of guests of an organization, or by persons authorized or permitted to represent themselves as connected with the organization;
(d) when an organization places prospective members in a subordinate status prior to achieving full membership, or imposes any kind of probationary period prior to full membership, and hazing occurs.

It is not the number of members involved that is critical to a determination of organizational responsibility. The test is whether the activity is related to a student organization through one of these four circumstances or a private activity by a person who happens to be a member of the same student organization. The factors considered include whether the activity is one normally considered part of student organization life and whether the atmosphere encourages or condones the prohibited conduct by its members. See SCampus, Part G, for more information on organizational liability.

  1. Timing

It is the university’s goal to complete misconduct investigations and review by the Misconduct Sanctioning Panel (see section X. below) within 60 calendar days. The Title IX Office will make every effort to complete the investigation in a timely manner by balancing principles of thoroughness, fairness, and promptness.

In some cases, the Title IX Coordinator may determine that good cause exists to extend the 60- day period to conduct a fair and complete investigation, to accommodate an investigation by law enforcement, to accommodate the availability of witnesses or delays by the parties, to account for university breaks or vacations, or due to the complexity of the investigation.

Any extension for good cause will be shared with the parties in writing, and will include the reason for the delay and anticipated timing of completion.