ATIXA announces the OCR OPEN Center Response Repository. ATIXA will update responses from the OCR OPEN Center as we receive them. Responses are listed in order of date starting with most recent. You may also search responses by topic areas at the top of the page. The OCR OPEN Center Blog responses are also linked below the Question/Answer section. If you have received a response from the OPEN Center and would like to add it to this repository, please email info@atixa.org.
Questions about Questioning (Response 8/13/2020)
ED promised technical assistance. Compliance is ten days out. Policies are being written now, and have to address these questions. How can recipients train hearing decision-makers when the rules are opaque? We have dozens of pending questions with you, but none more pressing than these. We have schools with hearings planned for two weeks from now, and we have no idea how to address the issues of questioning created by the regulations. Without your guidance on these, how can schools possibly offer due process when you have been entirely unclear on how to do so? Please timely respond to these questions. We are trying to get it right, but the conflicting and confusing explanations of the preamble do not offer clarity on the following ten questions. Please respond with meaningful, timely guidance…
- Does the witness/party have to be asked one question or all relevant questions about all statements made?
- Who has to ask?
- If the witness/party answers no questions from advisors, what is the effect?
- If the witness/party answers no questions from the decision-maker, what is the effect?
- If the witness/party answers only one question from the advisor, but not all, what is the effect?
- If the witness/party answers all questions of the advisor but one, what is the effect?
- If the witness/party answers only one question of the decision-maker, but not all, what is the effect?
- If the witness/party refuses to answer some/all questions of the advisors, but answers the same questions from the decision-maker, what is the effect?
- If the witness/party refuses to answer all questions of the advisor, and then refuses to answer all the same questions when posed by the decision-maker, what is the effect?
- Does it matter what order the witness/party is asked, the advisor first or the decision-maker first?
Attempted Offenses (Response 8/13/2020)
If a formal complaint alleges attempted sexual assault, would that be covered under 106.30, or would a recipient need to dismiss that complaint? Thank you.
When 106.45 Applies (Response 8/13/2020)
If an investigation is ongoing now for a complaint made June 1 (for conduct that occurred May 1), and the investigation ends on August 1, with a hearing scheduled for the 20th, does the recipient have to apply Section 106.45 compliant procedures to that case?
Reasonable Person (Response 8/13/2020)
(1) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity;
In this sentence, does “reasonable person” modify only severe, pervasive, and objectively offensive only, or the effective denial clause as well? To clarify, can an effective denial be something a reasonable person would experience, even if there is not evidence to show that the Complainant was effectively denied?
Minors In College Programs (Response 8/13/2020)
If a 4th grader is enrolled in a college-sponsored summer camp, and is sexually harassed and complains in the college process, does the college apply live hearing and cross-examination, or use the K-12 procedures for written exchange of questions and answers?
How Should Recipients Define Sexual Assault? (Response 8/13/2020)
*Note that this is a follow up question to the 5/22/2020 Sexual Assault Definition Answer.
So please clarify further, as the UCR does not define forcible and non-forcible sex offenses, NIBRS does.
If the intent is to use the UCR/SRS definition of rape, and the NIBRS definitions otherwise, the applicable definitions appear to be the below. Can OPEN please confirm.
Sex Offenses, Forcible—Any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent.
(For the balance of 2020) Forcible Rape — Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
(As of 2021 or if/when SRS is shelved) Forcible Rape—(Except Statutory Rape) The carnal knowledge of a person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity.
Forcible Sodomy—Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.
Sexual Assault With An Object—To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.
Forcible Fondling—The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.
Sex Offenses, Nonforcible—Unlawful, nonforcible sexual intercourse.
Incest—Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
Statutory Rape—Nonforcible sexual intercourse with a person who is under the statutory age of consent.
Cross Exam (Response 8/13/2020)
On the assumption that a witness must be questioned thoroughly about their statements at the hearing for those statements to be considered by the decision-maker, we pose this question:
If a party truly has no questions to ask via their advisor in cross-examination, can they ask something to the effect of “Is everything in your statement in the report accurate?” If the answer is yes, is the statement then able to be considered? If no, then follow-up questions can be asked. Or do they still need to ask questions based on key facts to allow credibility to be fully assessed about each individual statement?
Holds (Response 8/13/2020)
Are recipients allowed to place holds (transcript, registration, graduation) on a Respondent’s account while the formal complaint process is pending or would that be considered an impermissible sanction prior to the final determination of responsibility? These are interim actions that can be reversed.
Expert Testimony & Credibility (Response 8/13/2020)
Let’s suppose a Complainant hires me as an expert witness. I give a statement as a witness during the investigation. I am called as a witness at the hearing. I testify, and then am questioned by the Complainant. The Respondent’s advisor strategically refuses to cross-examine me, and the decision-maker has no questions for me. Assuming my testimony is relevant, is my statement admissible even though I was not cross-examined, because I was willing to submit to it?
Findings (Response 8/13/2020)
Should the investigator avoid making a recommendation in their report as to whether policy was violated and/or avoid making a finding? Or is it enough that any finding or recommendation by the investigator is non-binding on the decision-maker? If the answer is that investigators should avoid making a finding or recommendation, but at the hearing the investigator somehow states a finding or recommendation, how should a recipient handle that?