Procedure For Sexual Misconduct Investigations At Western Michigan University
Sexual misconduct allegations in a university setting are serious, and can have serious, life-long consequences. It is important to understand what is going to happen during the course of these investigations, and to ensure that you put yourself in the best possible position to avoid a finding of responsibility for sexual assault or sexual harassment.
At Western Michigan University, the office that investigates allegations of sexual misconduct is called the Office of Institutional Equity, which is headed by the Title IX Coordinator. Discipline is imposed by the Director of the Office of Student Conduct.
The following is a description of the procedure that is utilized by Western Michigan University in investigating an allegation of sexual misconduct and in imposing discipline:
A complaint is made.
A sexual misconduct investigation begins when a complaint is made to the Title IX coordinator. The complaint can be made directly to the Title IX coordinator, or to another university employee who will then make a report to the Title IX coordinator. Anonymous reports can also be made online.
The complaint can be made by the “complainant,” or the person who claims to have been subjected to or have been the victim of a sexual assault or sexual harassment. A complaint can be made by a third party who has knowledge of an alleged sexual assault or alleged sexual harassment.
A complaint can be made by a “Responsible Employee.” A responsible employee is an employee of Western Michigan University who is required by their sexual misconduct policy to act as a mandatory reporter of sexual misconduct. This means that if an employee of Western Michigan University, which includes nearly all faculty and staff of the university, learns about allegations of sexual misconduct by either a student or other faculty, they are required to report it to the Title IX coordinator or face termination of their employment. The only exceptions to this are confidential reporting sources, such as counselors or medical staff employed by the university.
An initial Title IX assessment is conducted.
After a complaint is made to the Title IX coordinator, an initial Title IX assessment is completed. The Title IX coordinator will decide how to proceed regarding the reported incident based on considerations including the nature of the report, the wishes of the complainant, and the safety of the complainant and the university community.
After the initial assessment is completed, the Title IX Coordinator will determine whether to proceed in one of three ways:
- If the report constitutes a policy violation other than sexual misconduct, the Title IX Coordinator can refer the matter to the office of Student Conduct, or another appropriate administrative office.
- The Title IX Coordinator can seek an informal or voluntary resolution that does not involve disciplinary action against the accused student.
- The Title IX Coordinator can initiate an investigation to determine whether or not there has been a policy violation, and if so, what sanction to impose against the accused student.
What happens if the matter is referred to Student Conduct or another administrative office?
If the Title IX Coordinator receives a report of misconduct by a student that does not constitute sexual misconduct, but still may be a violation of the Western Student Code, then the matter will be referred to Student Conduct. They will make a determination of whether a policy violation has occurred, and impose the appropriate sanction under the Student Code, rather than under the Sexual Misconduct Policy.
An accused student is likely to get a far better outcome in this scenario, compared to a sexual misconduct investigation that results in sanctions.
What happens if the reported matter goes to informal or voluntary resolution?
If the Title IX Coordinator believes that the matter is appropriate for informal or voluntary resolution, they will forego the formal investigation process. This generally happens in circumstances where the complainant does not wish to participate in an investigation, or wishes to remain anonymous. Also, there are some circumstances in which the accused student and the complainant will be permitted to engage in mediation regarding a resolution to the allegations.
Formal sanctions cannot be imposed by Western Michigan University through this informal process, but the parties can reach agreement on appropriate remedies.
This process is highly preferable for an accused student. While you don’t want during this process to admit to any wrongdoing that constitutes illegal conduct, nearly any other remedies proposed in this context are preferable to formal sanctions being imposed by Western Michigan University.
What happens if an investigation is initiated?
In cases where sexual misconduct is reported in violation of the university’s policy, and the complainant is willing to participate in the investigation and does not wish to proceed with an informal resolution, the Title IX Coordinator will initiate a formal investigation. The steps of that investigation are described below.
The university will designate an investigator.
If an investigation is initiated by the Title IX Coordinator after the initial assessment, an investigator will be designated by the university. The investigator is usually an employee of the Office of Institutional Equity. However, the university can designate another university employee or an outside investigator if they believe that another investigator would be more appropriate under the circumstances.
The designated investigator will conduct an investigation.
An investigator will complete an interview with the accused student, an interview with the complainant, as well as any other witnesses they wish to interview. These witnesses may be witnesses that the investigator has discovered in their own investigation, or whose names have been provided to them by the accused student or the complainant. The investigator will choose which witnesses they want to interview, and which witnesses they do not.
The investigator may also attempt to obtain other types of evidence, such as social media, text messages, photos, videos, or other electronic evidence. If there is a criminal investigation being conducted at the same time as the university investigation, the investigator may also request that law enforcement provide them with copies of their reports or other evidence collected by the police. The investigator may also complete a site visit at the location of the alleged incident, if possible.
The university endeavors to complete the investigation and impose discipline within 60 days. However, this will be extended for good cause, and many investigations ultimately exceed this timeline.
The accused student is not required to attend the interview with the investigator. As an accused student, you must be very careful in proceeding with the interview. Whenever there is an allegation of sexual misconduct, the possibility of criminal charges being brought is always present. Those criminal charges carry extremely serious penalties – some up to life in prison. Whatever you say during the course of the interview with the university investigators can also be used against you later in a criminal investigation. Even if you are not admitting to illegal conduct, any statements you make can later be twisted to be used against you, or you may confirm details of the complainant’s account of the incident that could not otherwise be confirmed.
There is a balancing act in participating in this interview, because on one hand, you want to do everything you can to avoid criminal charges that carry serious penalties, but on the other hand, you want to cooperate with the university to the extent that you can avoid serious academic discipline. Having an attorney to guide you through the process will help you navigate this balancing act.
During the investigation process, the accused student has the right to choose and consult with an advisor. This person can be your attorney, and your attorney can help to ensure that anything you say during the course of the interview is not going to cause you harm in the academic or criminal proceedings.
The investigator will complete a draft investigation report.
After the investigator has completed his or her investigation, they compile a summary of the interviews conducted and the evidence obtained during the course of the investigation.
The accused and the complainant review the draft investigation report.
When the summary of the interviews and evidence is completed, the investigator will make the summary available for review by the accused student and the complainant. The accused and the complainant will have the opportunity to review the summary with their chosen advisor. The accused student can bring a lawyer as their advisor to help them review the evidence.
The accused and the complainant may provide comments or additional evidence.
After the accused student and the complainant review the draft investigation report, they will both be given the opportunity to provide comment disputing part of the evidence, to provide the investigator with additional evidence that should be reviewed prior to a final determination being made by the investigator. This information must be provided to the investigator within five days of being given the opportunity to review the draft investigation report.
The investigator makes a determination and issues a final investigation report.
The investigator will then issue a final investigation report. The final investigation report will contain a summary of the interviews and evidence gathered by the investigator, as well as a determination by the investigator about whether or not the accused student is responsible for sexual misconduct by a preponderance of the evidence.
The results are distributed to the accused student and the complainant.
The Title IX coordinator will simultaneously notify the accused student and the complainant of the determination, and the rationale for the determination.
The final investigation report is provided to the Director of the Office of Student Conduct.
When there is a finding that, by a preponderance of the evidence, the accused student is responsible for sexual misconduct in violation of university policy, the final investigation report will be provided to the Director of the Office of Student Conduct.
The accused student can submit a mitigation statement, and the complainant will submit an impact statement.
Before the Director of the Office of Student Conduct makes a decision regarding the imposition of discipline, the accused student and complainant will both be able to submit written statements for the director to take into consideration in making their decision. The accused student and the complainant will be given the same amount of time to submit their statements.
The Director of the Office of Student Conduct imposes discipline.
The Director of the Office of Student Conduct will review the final investigation report, along with the impact and mitigation statements, and will decide what discipline to impose. The possible discipline includes a warning, reprimand, behavior contract, community service, attendance at educational programs, written assignments, loss of privileges, probation, suspension, expulsion, revocation of degree, and withholding degree.
The accused and complainant have the opportunity to file an appeal.
After the sanction has been issued, both the accused student and the complainant will have the opportunity to file an appeal of the sanction based on limited grounds. The only grounds available for appeal are (1) a procedural error occurred that significantly impacted the outcome of the finding, (2) to present new evidence that was not available during the original investigation that would substantially impact either the finding or the sanction, and (3) the sanctions imposed were excessively lenient or excessively severe.
An appeal must be submitted to the Office of Student Conduct within five business days of the accused student and complainant receiving notice of the sanction
If you have been accused of sexual misconduct at Western Michigan University, Keeley Blanchard is an experienced attorney representing students accused of sexual assault and sexual harassment in Title IX proceedings at the university and in criminal investigations and proceedings.