Sexual Misconduct Policy - Fact Finding Investigation
After both parties have submitted their statements, the Senior Associate Dean of Students/Director of Student Conduct will initiate a Fact-Finding Investigation, utilizing the College’s neutral investigators. It is the responsibility of the Investigator(s), not the parties, to gather the evidence relevant to the Complaint and the facts raised in the parties’ statement, to the extent reasonably possible. During the course of the investigation, the Investigator(s) may utilize some or all of the following procedures, in whatever order the Investigator(s) deems most appropriate. The scope of the Fact Finding Investigation will not be limited to information provided by the parties or to the violations outlined in the disciplinary complaint. In all cases, the Investigator(s) will conduct an adequate, reliable, and impartial investigation into the allegations of the disciplinary complaint, reviewing all evidence deemed to be relevant. Parties and witnesses will make themselves reasonably available to the Investigator(s). Refusal by a party or witness to cooperate with the Investigator(s) in the Fact Finding Investigation, as determined by the Senior Associate Dean of Students, may result in disciplinary action against the person refusing to cooperate. A refusal to cooperate does not preclude completion of the investigation.
Once statements have been submitted by the parties, the Investigator(s) will review the statements and all of the supporting material referenced. The Investigator(s) will then attempt to obtain any documents or other materials deemed relevant to the investigation. Any documents or information deemed to be material to the findings regarding the disciplinary complaint or any other violations will be disclosed to both parties for comment or rebuttal.
The Investigator(s) will interview the complainant and the respondent separately. This meeting is an opportunity for the participant to discuss his/her recollection of any event in question, supplement any written statements already submitted, voice any concerns, and work with the Investigator(s) to determine what information may be helpful in the investigation of the allegations. Parties may also discuss the impact that this experience has had on them. All of the materials provided to the Investigator(s) by either the complainant or the respondent will be disclosed to the other party in advance of their respective interviews, including the complete statement of the other party. The Investigator(s) may interview the parties more than once and as necessary. Both the complainant and respondent may have his/her Advisor (as defined hereinafter in this Policy) accompany them to the meetings between the Investigator(s) and the party being assisted by the Advisor, but such Advisor may not participate in the conversation. Prior to sitting in on any interviews, the Advisor will be required to sign a Confidentiality/Non-Retaliation Acknowledgment, agreeing not to disclose or discuss anything relating to the disciplinary complaint with anyone other than those authorized to see or hear such information under this process. At the conclusion of the interview, participants are permitted to make an optional closing statement.
The Investigator(s) will attempt to contact and interview any witnesses identified by the parties that the Investigator(s) deems to be relevant to the resolution of the disciplinary complaint. The Investigator(s) may also interview any other persons which they find to be potentially relevant to this matter. Witnesses may not bring Advisors to their interviews. Prior to being interviewed, a witness will be required to sign a Confidentiality/ Non-Retaliation Acknowledgement, agreeing not to disclose or discuss anything relating to the disciplinary complaint and their interview with anyone. Through this Acknowledgment, the witness will also agree to refrain from any retaliatory conduct against the parties or any witnesses in the matter, as discussed under Section IV.A.5 above “Retaliation”, and may be responsible for any retaliation by persons affiliated with them (i.e. a friend or family member). The Investigator(s) will employ best efforts to interview relevant witnesses who are no longer on campus or in the Schenectady area, attempting to contact them by phone or internet.
The Investigator(s) reserve the right to consult with any experts which the Investigator(s) deems helpful to the determination of the facts of this case. An expert witness could be consulted to review the allegations and information and provide a professional opinion or otherwise give input regarding information or evidence discovered in the Fact Finding Investigation.
Admissibility of Evidence
The fact finding investigation process is intended to arrive at the truth of the matter without the formalities associated with rules and procedures specifically designed by lawyers to manage courtroom litigation. Students can address issues and present documents to the Investigator without concerns about admissibility. It should be noted that if the Investigator determines that the issues raised and/or documents presented are relevant and suggest whether the alleged conduct occurred then, in the interest of fairness, that information will be disclosed to the parties at or before the time the Investigative Report is made available for review by the parties.
In general, a complainant’s prior sexual history is not relevant and will not be admitted as evidence at a hearing. Where there is a current or ongoing relationship between the complainant and the respondent, and the respondent alleges consent, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties. As noted in other sections of this policy, however, the mere fact of a current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Any prior sexual history of the complainant with other individuals is typically not relevant and will not be permitted.
Medical and Counseling Records
The use of medical and/or counseling records in the adjudication process is rare. Medical and counseling records are confidential documents that students will never be required to disclose in the process. Medical and counseling documents being privileged means that they cannot be shared with anyone other than the treating professional unless the patient agrees to disclosure. Students should be aware that there are legal implications to agreeing to produce privileged records. Students are encouraged to seek advice from a knowledgeable source about the possible consequences of releasing this information.
A complainant or respondent who, after due consideration, believes that his/her own medical or counseling records would be helpful in determining whether sexual misconduct occurred has several options for voluntarily presenting this information:
- The complainant or respondent can voluntarily decide to present their own medical or counseling records to the Investigator as part of the documents which they would like to have the fact finder consider in deciding the disciplinary complaint. Please note that if a party decides to produce such records, they must be produced in their entirety. The production of excerpts or selected documents is inappropriate and will not be considered.
- On occasion, the Investigator may ask the complainant or respondent to voluntarily agree to provide these records if the Investigator believes that such documentation exists and that it would be helpful in deciding the disciplinary complaint. A party is under no obligation to provide this information and may simply say “no” to this request. A party has a right to refuse to provide these records and that refusal is completely acceptable. Prior to responding to such a request, a party is encouraged to consult with their Advisor about the implications of agreeing or denying the request. Please note that if a party does decide to produce such records, they must be produced in their entirety. The production of excerpts or selected documents is inappropriate and will not be considered.
- The Investigator may ask a complainant or respondent to voluntarily provide a verification of therapeutic or medical services to confirm simply that such treatment occurred; however, the verification will not provide any details regarding that treatment.
On rare occasions, a person may be in possession of the medical and/or counseling records of another party or witness. Such records can only be presented to the Investigator under the following circumstances: (i) The person can show that the records are relevant to the pending disciplinary complaint; (ii) the person can document or otherwise prove that the records were legally obtained and may be disclosed to those not in possession of the records; and (iii) the records can be authenticated. Failure to meet any of these conditions means that the records will not be considered in the determination regarding sexual misconduct.