The decision-maker, whether a single individual or a three-person Hearing Panel, has a number of tasks that must be completed as part of the resolution process.

First, the decision-maker(s) must work through the evidence and testimony.
The decision-maker(s) must review all of the evidence and testimony to determine relevancy.

• What is the policy definition of the alleged conduct?
• Will the evidence or testimony help the decision-maker(s) in some way to reach a fair and impartial decision, either by itself or in conjunction with other evidence and testimony?
• Does the evidence or testimony:
  • Make a fact more or less likely to be accurate than it would be without the evidence?
  • Tend to prove or disprove the allegation(s)?
  • Tip the balance for or against the Complainant or Respondent?
• Is the evidence or testimony vital to resolving the complaint?
• Evidence that a party hid or destroyed evidence or otherwise behaved as if they were being dishonest is usually considered relevant as an indication of the likelihood of that party to be untruthful
• Evidence regarding the following is not relevant unless the noted condition is met:
  • Complainant’s pre-disposition (fantasies, kinks, sexual preferences) or prior sexual behavior, unless offered to prove that someone other than the Respondent committed the policy violation (wrong person was charged with policy violation)
  • Complainant’s prior sexual behavior with respect to the Respondent specifically, unless it is offered to prove a pattern or practice of consent 
  • Incidents or behaviors of either party that are not directly related to the alleged conduct, unless it shows a pattern of related misconduct that is relevant
  • The character of the Complainant or Respondent such as a personality trait, a tendency to act a certain way, or a reputation, unless related to the tendency for the party to be truthful or is introduced to show a party’s habit, routine, or practice relevant to the allegations

Next, they must make credibility determinations. 
As a decision-maker, there are a number of components involved in determining credibility of the parties and witnesses.  Single decision-makers consider these components as they review the Investigative Report and Exhibits, as well as the written responses to the Report submitted by both parties, and may meet with the parties to discuss the allegations; Hearing Panelists review these same elements but also have exposure to the in-person testimony of the parties and witnesses.

• Patience
  • Waiting to make a determination until all testimony and evidence has been presented in a hearing
  • Thoroughly reviewing the Investigative Report and Exhibits as a single decision-maker before making a determination
• Active “Listening”
  • Staying focused on each party’s testimony and that of witnesses while in a hearing
  • Not being swayed by extraneous details such as the “likeability” of a party or witness, the emotional nature of the situation, or the number of witnesses testifying in support of a party
    • Relevancy of witnesses is more important than the number of witnesses
• Impartial Review
  • Acknowledging biases and the effect they may have on what is seen, heard, or reviewed
  • Focus is on the integrity of the process, not the outcome
  • Avoiding judgment based on subjective morals, values, or ethical beliefs
    • Even though a decision-maker may not agree with the personal choices made by a party or witness, they must stay focused on the truthfulness and accuracy of the testimony and the contributions of the party or witness to the relevant facts rather than the decision-maker’s feelings about their behaviors
  • Asking often, “How else could that person/action/situation be interpreted?”
• Consistency
  • Examining the testimony of parties and witnesses with a critical eye, looking for alignment with information provided to investigators and well as consistency with other witnesses regarding the same events
    • Are the differences related to relevant facts?
    • What importance should be placed on the discrepancies?
  • Considering whether the testimony seems overly consistent, as if rehearsed
    • If yes, what is more likely: 1) having gone over the events multiple times in preparation for the hearing, or 2) having consulted other witnesses to align testimony?
  • In considering testimony that involves secondhand information shared with the witness by one of the parties or another witness, being on the lookout for contradictions
• Plausibility
  • If the witness is providing firsthand testimony, are the facts as they present them plausible?
    • Could they see/hear the events based on their proximity and access, as well as the surrounding environment?
    • Do they seem to be filling in memory gaps rather than recalling events as they occurred?
  • Was there any reason the witness would have a diminished capacity to recall events?
    • Physical/mental disabilities
    • Incapacitation due to sleep, medication, alcohol, illicit drugs
    • Substantial length of time has elapsed
      • Information is often forgotten very quickly unless it is recalled frequently
    • Events were of minor significance to the witness at the time and never made it into long-term memory
    • Other similar events have occurred and may cause “interference”
• Witness Bias
  • To what extent might the background, education, and experiences of the witness affect their testimony?
    • Information may be limited, but decision-makers may consider what they have heard or read to give them context clues
  • What factors, if any, might reasonably contribute to any hostility displayed by a witness?
  • Does/did the witness have a close relationship, especially of an intimate or romantic nature, with a party or witness?
  • Did the witness express or indicate a belief that either party has a pattern or practice of being untruthful?
• Motive
  • To the knowledge of the decision-maker(s), did the witness:
    • Evade questions?
    • Decline to respond to questions asked, either in part or in whole?
    • Purposefully omit facts?
    • Provide incomplete responses?
    • Recant their earlier testimony to investigators, in full or in part?
    • Deliberately provide false testimony?
    • Make an admission of partial responsibility?
    • Have a personal interest in the outcome of the complaint?
  • If yes, what might have been the motivation?
    • Fear? Embarrassment?
    • A need to please?
    • Attempt to influence the outcome of the complaint?
    • To protect self or others?
    • To avoid punishment?
• Non-verbal Behaviors/Demeanor
  • Overall, did the testimony, body language, and emotional state of the witness align for the majority of their testimony?
  • Non-verbal behaviors and demeanor are considered as minimal cues to credibility.
  • When considering the delivery of testimony by a witness, the decision-maker takes into account how simply participating in the hearing might reasonably affect their body language and demeanor

Then, the decision-maker(s) must assemble their findings on whether a policy violation occurred.
This last step results in a determination as to whether the Complainant’s allegations were more likely true than not.**

• The decision-maker(s) should not:
  • Make any decisions regarding the likelihood that a policy violation occurred based solely on whether a Complainant or Respondent participated in the investigation or resolution of a complaint; nor 
  • Assume at any time throughout the deliberation process that a policy violation has occurred, as the Respondent is presumed to be not responsible for any violation until a final determination has been made.
• The decision-maker(s) should objectively evaluate all relevant evidence, both inculpatory and exculpatory.
  
  • “Inculpatory evidence” supports the Complainant’s allegations and may establish responsibility for a policy violation.
  • “Exculpatory evidence” supports the Respondent’s position and decreases the likelihood that the Respondent will be found in violation of University policy.
• The decision-maker(s) should decide how much weight to assign to a piece of evidence or portion of testimony, considering the following, as well as other factors:
  • the circumstances surrounding the making of a statement;
  • any information about the person who made a statement or provided the piece of evidence;
  • how many times the information was passed on before being made known to the witness (first-hand/direct witness, second-hand/rumors, etc.);
  • the consistency of a statement with other reliable evidence;
  • the witness’ opportunity to observe the event(s);
  • the circumstances surrounding the event(s);
  • whether there is better evidence available and whether a reason was provided for not producing that evidence;
  • whether the witness is drawing reasonable inferences or is simply speculating;
  • whether the evidence is consistent or supported by other reliable testimony/evidence;
  • whether the evidence is self-serving or aligns with a personal motive;
  • the circumstances under which a piece of evidence came to be/was created;
  • the opportunity to cross-examine the person who found/created the piece of evidence;
  • whether some pieces of evidence or testimony provided by the witness has been found not to be credible;
  • whether the witness is biased;
  • attitude and demeanor of a witness;
  • the witness’ ability to recall events accurately;
  • the witness’ relationship to the Complainant and/or Respondent;
  • whether the witness has any interest in the outcome of the hearing;
  • whether the witness was present during the testimony of any party or other witness;
  • whether the witness had seen other evidence prior to testifying;
  • whether the testimony was gained through leading questions;
  • the extent to which the testimony is based on opinion and inference;
  • whether the facts which the witness relied on in forming an opinion have been established;
  • any other evidence which supports or contradicts the testimony of the witness; and
  • the content of the evidence.
• Once a full review is complete, the decision-maker(s) draft their determination as to each allegation.
  • The job of a decision-maker is balancing probabilities, or determining whether it was more likely than not that the alleged conduct occurred. This requires only that one party is able to support their position with evidence and credible testimony weighing “a feather” more than the other party’s evidence and credible testimony.  This is known as a “preponderance of the evidence” standard.

Issuing Sanctions (If Applicable)
If the decision-maker(s) determine that the Respondent did violate University policy, then they must also issue appropriate sanctions.**

Factors considered when sanctioning may include:

• The nature, severity of, and circumstances surrounding the violation;
• The disciplinary history of the Respondent;
• The need for sanctions/remedial actions to bring an end to the conduct;
• The need for sanctions/remedial actions to prevent the future recurrence of conduct;
• The need to remedy the effects of the conduct on the Complainant and the University community; and
• Any other information deemed relevant by the decision-maker(s).

For more information on sanctions that may be issued, visit Possible Sanctions – Title IX & Equity (link).

Finally, the decision-maker(s) must provide their determination to both parties.
The determination must be in writing and include the following:

• Identification of the allegations that align with one or more acts of prohibited conduct under University policy;
• A description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the Parties, interviews with Parties and witnesses, site visits, methods used to gather other evidence and hearings held;
• A list of facts in support of the determination;
• Conclusions regarding the application of University policy to the facts;
• A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions to be imposed on the Respondent, and whether remedies designed to restore or preserve equal access to the University’s education programs or activities will be provided by the University to the Complainant; and
• The procedures and permissible bases for the Complainant and the Respondent to appeal.

**If the Respondent is a faculty member, the final decision-maker will be the Provost, with recommendations from the initial decision-maker on the finding(s) and any applicable sanctions.