JMU prohibits sexual and gender-based harassment including sexual assault and other forms of inter-personal violence. The responsibility for overall coordination, monitoring and information dissemination about JMU’s Title IX program is assigned to the Title IX Coordinator. The Title IX Office oversees and conducts the investigation from Formal Complaints arising out of alleged violations of the Sexual Misconduct policy.
The information contained in this section of the Handbook is only applicable for those participating in the Sexual Misconduct Accountability Process as a result of alleged violation(s) of the Sexual Misconduct policy. For cases not alleging a Sexual Misconduct policy violation, see the “Individual Accountability Process” or the “Title IX Sexual Harassment Adjudication Process” sections within this Handbook.
For purposes of Sexual Misconduct, the Sexual Misconduct Policies and Procedures set forth in the Sexual Misconduct Accountability Process apply when a Responding Party is a student as defined in the “Definitions” section of this Handbook.
Definitions
The Case Coordinator is a trained person who is assigned to a case and has the main responsibility for coordinating the administrative and technical aspects of the Sexual Misconduct Accountability Process for that case. This includes communication with parties, Support Persons, witnesses, decision-makers, and any other relevant participants; creation and distribution of the case file; scheduling of Guide Appointments, the Case Review, and the Appeal Review, if applicable; making case-related decisions; and any other necessary tasks. Typically, the Case Coordinator is the Director or an Associate Director of OSARP; however, circumstances may require other trained individuals to serve as the Case Coordinator. The Case Coordinator does not also serve as the decision-maker for a specific case.
Among other duties, the chairperson is the person designated during an Appeal Review that has the responsibility of carrying out the stated procedures of the process and upholding the Rules of Decorum. This person also has the authority to determine relevancy of questions, prohibit information from being shared or instruct the Appeal Board to disregard information shared that violates the rights of a party, is not allowed by the process, or bears no relevancy to the hearing of the case.
Decision-maker(s) include OSARP Case Administrators and University Case Administrators (UCAs), when applicable.
This is a full-time professional staff member in OSARP who has received training to hear Sexual Misconduct-related cases. The OSARP Case Administrator serves as the decision-maker for Sexual Misconduct Case Reviews and is responsible for making determinations regarding findings on policy and, if applicable, assigning outcomes. They are also responsible for the written rationale for the determinations.
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An OSARP Process Guide is a full-time OSARP staff member or designee assigned to a Reporting Party or Responding Party to provide procedural information and respond to questions about the Sexual Misconduct Accountability Process. The OSARP Process Guide solely provides procedural information and does not provide the party with advice on how to present their case.
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This position will be referred to as “OSARP Guide” throughout the Sexual Misconduct Accountability Process.
A term for any individual participating in the Sexual Misconduct Accountability Process.
A term for the Responding Party or Reporting Party.
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the outcome of the case. Relevant evidence includes evidence concerning the credibility of a party or witness.
A Reporting Party is a person who reports that they experienced alleged behavior committed by a JMU student that is covered by the Sexual Misconduct policy. A Reporting Party presents information regarding alleged policy violation(s) to the Title IX Office in a Formal Complaint, and it is their interaction with a Responding Party that led to an alleged policy violation(s) being placed by OSARP. Reporting Parties participate in the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, as outlined in the Handbook. The availability of a Reporting Party is reasonably considered when OSARP schedules a Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, as outlined in the Handbook. OSARP confers the rights outlined in the Responding & Reporting Party - Responsibilities and Rights- Sexual Misconduct to those who meet this definition.
Reporting Party and Responding Party Witnesses are individuals who provide a report, statement, evidence, or other information to the Title IX Office during the Sexual Misconduct Formal Complaint Investigation Process and who is called by a Reporting Party or Responding Party, respectively, to participate in the Sexual Misconduct Accountability Process. They may provide their information to the decision-maker(s) in accordance with any rights and restrictions as listed in the Student Handbook. During a Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, witnesses for the Reporting Party or Responding Party can provide information relevant to the case, including what they know directly about the alleged incident or behavior and/or what they have been told about the alleged incident or behavior. They may not provide their perspective on what they feel the appropriate decision or outcome(s) in the case should be at any time during the process. Their availability is reasonably considered when OSARP schedules a Sexual Misconduct Case Review and/or a Sexual Misconduct Appeal Review, if applicable. OSARP confers the rights below to those serving in these roles.
A Responding Party is a student who receives notification of an alleged policy violation(s), including at least one alleged violation of Sexual Misconduct, and is afforded rights and a Sexual Misconduct Accountability Process by OSARP to respond to all of the alleged policy violation(s). Responding Parties participate in the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, as outlined in the Handbook. The availability of a Responding Party is reasonably considered when OSARP schedules a Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, as outlined in the Handbook. OSARP confers the rights outlined in the Responding & Reporting Party - Responsibilities and Right – Sexual Misconduct to those who meet this definition.
SMAP
An acronym for the Sexual Misconduct Accountability Process.
SMAR
An acronym for the Sexual Misconduct Appeal Review.
SMCR
An acronym for the Sexual Misconduct Case Review.
UCAs are faculty/staff members who have received training to hear Sexual Misconduct-related cases. As outlined in the Sexual Misconduct Accountability Process, UCAs may:
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Serve on a panel of three UCAs in the Sexual Misconduct Appeal Process who form the Appeal Board. One of the panel members will be assigned by OSARP as the chairperson. In addition to serving as a voting member of the panel, the chairperson is responsible for administering the Appeal Review process and creating the rationale of the outcome.
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Serve as the single decision-maker in Sexual Misconduct Case Reviews that occur as a result of a new Sexual Misconduct Case Review being ordered from a Sexual Misconduct Appeal Review. They are responsible for making determinations regarding findings on policy and, if applicable, assigning outcomes. They are also responsible for the written rationale for the determinations.
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Serve as the single decision-maker in initial Sexual Misconduct Case Reviews in necessary circumstances, as determined by the Case Coordinator or designee.
A University Witness is not called as a witness by a Responding Party or Reporting Party but is called as a witness by the university as an individual who has relevant information for hearing of the case. The availability of a University Witness is reasonably considered when OSARP schedules a Sexual Misconduct Case Review. University Witnesses do not have the right to be accompanied by a Support Person at a Sexual Misconduct Case Review.
Participants' Roles, Rights, and Restrictions
Procedural Responsibilities of the Office of Student Accountability and Restorative Practices
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OSARP will provide a fair and impartial process with an unbiased decision-maker(s) that presumes the Responding Party not responsible for violating policy.
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OSARP will use a preponderance of the evidence standard to determine if a Responding Party is responsible for violating policy.
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OSARP will not restrict the rights protected under the U.S. Constitution, including the First Amendment, Fifth Amendment, and Fourteenth Amendment.
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OSARP will notify the Reporting Party of the outcomes of the case related to the alleged violation(s) of the Sexual Misconduct policy in accordance with FERPA and its implementing regulations.
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OSARP will not permit, or deem relevant, questions and evidence about the party's sexual predisposition, current sexual behavior, or prior sexual behavior from discussion during the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, unless such questions and evidence about the party’s prior sexual behavior are offered to prove that someone other than the Responding Party committed the conduct alleged by the Reporting Party, or if the questions and evidence concern specific incidents of the Reporting Party’s prior sexual behavior with respect to the Responding Party and are offered to prove consent.
Rights Granted in the Sexual Misconduct Accountability Process
Responding Parties and Reporting Parties in the Sexual Misconduct Accountability Process have the following rights:
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The right to receive notification of the alleged violation(s) of the Sexual Misconduct policy and the behavior(s) leading to those alleged policy violation(s) via their official JMU email address.
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The right to be notified of the date, time, and location of the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, via their official JMU email address at least three days prior to the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable.
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The right for one Support Person of their choice to accompany them at any meetings in OSARP, provided that Support Person’s schedule allows them to attend. A Support Person attending a Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, may not communicate for or speak on behalf of a party, but may provide support or advice on how to present their case. At the party’s request, OSARP may copy one Support Person on electronic communication pertaining to the party’s case; the Support Person must agree to adhere to guidelines and restrictions related to confidential information as set forth by OSARP.
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Upon request, the right to have reasonable safety measures, including but not limited to a partition or police presence, in place during the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, if the parties are physically present in the same geographic location; such request will be implemented at the university’s discretion.
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The parties may request the process be conducted in person for cause, which will be granted or denied at the discretion of the Case Coordinator or designee. Requests for the case review to be conducted in person for cause may include but not be limited to an accommodation through the Office of Disability Services. If a party is unable to secure a private location for their virtual Sexual Misconduct Case Review or requires an in-person case review as an accommodation, the party should contact OSARP immediately upon receiving the notification email to let OSARP know of the concern and request, which will be granted or denied at the discretion of the Case Coordinator or designee.
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The right to receive an electronic copy of, and respond to, all information in the Case File during the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable.
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The right to participate in the entire Sexual Misconduct Case Review, as outlined in the Sexual Misconduct Accountability Process.
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The right to relate their account of the alleged incident and the right to share information during the Sexual Misconduct Case Review to be used in the case; the right to not answer questions or provide information to be used in the case.
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The right to have witnesses who provided information in the Sexual Misconduct Formal Complaint Investigation Process participate at the Sexual Misconduct Case Review, provided the witness is willing and able to attend.
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The right to question the other party and all witnesses present at the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable; parties will be permitted to ask questions of the other party and witnesses called by the other party in the case through the single decision-maker or chairperson, as applicable.
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The right to not be asked questions that attempt to elicit information from conversations protected by a legal privilege. Relationships providing legal privilege include, but are not limited to attorney-client, doctor-patient, clergy-confessional, etc. A party may share their own privileged conversations. If a party provides information during the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review, if applicable, that is from privileged conversations, this information is able to be questioned by the decision-maker(s) and by the other party. However, the questions must focus solely on the information that the party consented to share and may not attempt to elicit new information.
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If a party has a written closing statement they intend to read, but is unable to do so, the statement may be read aloud for the record by the single decision-maker or chairperson, as applicable.
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The right to be notified via email on the tenth business day after the date of the Sexual Misconduct Case Review with the availability and instructions to access the findings, rationale, and outcomes, if applicable, rendered at the Sexual Misconduct Case Review.
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The right to receive a recording of the Sexual Misconduct Case Review, which will be made available with access to the findings, rationale, and outcomes, if applicable.
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The right to submit a written appeal of the decision rendered as a result of the Sexual Misconduct Case Review within four days of OSARP sending notification of the outcome of the case review on any of the following grounds. When referenced below, “affected the outcome of the matter” refers to the entirety of the decision rendered including the determination regarding responsibility or outcomes assigned, if applicable.
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Procedural irregularity that affected the outcome of the matter.
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New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter.
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The Title IX Coordinator, Investigator(s), or Decision-Maker(s) had a conflict of interest or bias for or against Reporting Parties or Responding Parties generally or the individual Reporting Party or Responding Party that affected the outcome of the matter.
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In Appeal Reviews submitted on the grounds of new evidence, the right to attend, present the new evidence or respond to the new evidence if the Appeal Board determines that the submitted evidence is considered new, as defined in the process.
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When a Sexual Misconduct Appeal Review is held, the right to receive final decision, order for a new Sexual Misconduct Formal Complaint Investigation Process, or order for a new Sexual Misconduct Case Review rendered by the Appeal UCAs in writing. If the Appeal UCAs render a finding and outcomes, this notification is the final decision in the case and will include whether or not the Appeal UCAs found the Responding Party responsible for the relevant violation(s), the UCA’s rationale and, if applicable, the relevant outcomes(s). The notification will be sent by OSARP via email on the fifth business day after the date of the Sexual Misconduct Appeal Review.
A witness called by a Reporting Party or Responding Party to participate in the Sexual Misconduct Accountability Process has the following rights:
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The right to be notified of the date, time, and place of the Sexual Misconduct Case Review at least three days prior to the case review via email.
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When called to present at a Sexual Misconduct Appeal Review, the right to be notified of the date, time, and place of the Sexual Misconduct Appeal Review at least three days prior to the Sexual Misconduct Appeal Review via email.
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The right to share information relevant to the case, including what they know directly about the alleged incident or behavior and/or what they have been told about the alleged incident or behavior; the right to not answer questions or provide information to be used in the case.
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The right for one Support Person to attend the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, in accordance with the restrictions outlined in the Sexual Misconduct Accountability Process.
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Participants (Reporting Parties, Responding Parties, Reporting Party Witnesses, and Responding Party Witnesses) may bring one Support Person of their choosing to any meeting, the Sexual Misconduct Case Review, and Sexual Misconduct Appeal Review, if applicable. Attorneys may serve as the Support Person, provided they follow the guidelines outlined in the Sexual Misconduct Accountability Process. The University does not provide those participating in the Sexual Misconduct Accountability Process with a Support Person.
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OSARP reasonably considers the availability of the Support Person for the Responding Party and Reporting Party when scheduling meetings, the Sexual Misconduct Case Review, or the Sexual Misconduct Appeal Review, if applicable, as outlined in the “Receipt of Title IX Investigative Report, Alleged Policy Violation(s) Notification, and Preparation for the Sexual Misconduct Case Review” section. OSARP cannot compel a Support Person to attend any meeting; it is the participant’s responsibility to coordinate their Support Person’s attendance. If a Support Person does not attend, the Sexual Misconduct Case Review will proceed with any necessary adaptations to the procedures.
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A Support Person may not also serve as a witness at the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, for the case.
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Prior to a Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, one Support Person may help the participant prepare for the case, which may include accompanying the Responding Party or Reporting Party to the Guide Appointment. A Support Person may also communicate with OSARP about the case and/or procedures with the permission of the Responding Party or Reporting Party. At the party’s request, OSARP may copy a Support Person on electronic communication directed to the party pertaining to the party’s case; the Support Person must agree to adhere to guidelines and restrictions related to confidential information as set forth by OSARP.
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OSARP will provide an electronic copy of the Case File to the Support Person prior to the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, after they agree to guidelines and restrictions related to confidential information as set forth by OSARP.
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During a Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, a Support Person accompanying a participant may not communicate for or speak on behalf of the participant. Responding Parties, Reporting Parties, and witnesses must present their statements or information themselves.
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During a Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, one Support Person may consult with the participant on how to present their statements or information by whispering, providing notes, electronically sending messages, or taking notes as long as it does not disrupt the adjudication of the case.
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During a Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, one Support Person may provide support by taking breaks with or requesting breaks on behalf of the participant they are accompanying.
Rules of Decorum
The process must be managed to ensure all participants receive a fair, impartial, and unbiased experience that allows the decision-maker(s) to gather information necessary to make a decision for the alleged violations in the case. During the process, all participants must adhere to the following expectations and the procedures in the Sexual Misconduct Accountability Process, outlined within the JMU Student Handbook at www.jmu.edu/handbook.
General Expectations
Responding and Reporting Parties must:
- Listen respectfully to the individual speaking without interruption.
- Wait to begin speaking until addressed by the single decision-maker or chairperson, as applicable.
- Avoid speaking over other participants.
- Use respectful language that is not demeaning, derogatory, or disrespectful.
- Avoid raising their voices.
- Remain seated in their predetermined locations.
- Refrain from making distracting or offensive gestures (e.g. rolling eyes, throwing arms in the air, etc.) or audible reactions (e.g. scoffing, speaking under their breath, etc.).
- For questions about the Rules of Decorum or procedures, a participant should request a break through the single decision-maker or chairperson, as applicable, to consult with the party’s Guide or Case Coordinator.
Designated Times When Parties Ask Questions:
Reporting Parties and Responding Parties, when asking questions of the other party or Witnesses (of any type):
- Must allow the single decision-maker or chairperson, as applicable, time to evaluate each question and verbally or non-verbally permit the participant to respond.
- May ask the single decision-maker or chairperson, as applicable, to reconsider a determination, but must refrain from arguing with the single decision-maker or chairperson, as applicable, if a question is deemed not to be answered and rationale was provided.
- Must pose questions that elicit information relevant to the investigated incident(s) in question.
- Must maintain a professional and respectful attitude towards the other party, witnesses, decision-maker(s), and any other participants in the process.
- Must refrain from repeating a question where a response has been provided by a participant.
A participant has the right not to answer questions or provide information to be used in the case.
Questions from Reporting Parties and Responding Parties are limited based on the following topics:
- Sexual predisposition of a party
- Current/prior sexual behavior of a party
- Unless such questions and evidence about the party’s prior sexual behavior are offered to prove that someone other than the Responding Party committed the conduct alleged by the Reporting Party, or if the questions and evidence concern specific incidents of the Reporting Party’s prior sexual behavior with respect to the Responding Party and are offered to prove consent.
- Legal privilege
- Questions may not attempt to elicit information from conversations protected by a legal privilege. Relationships providing legal privilege include, but are not limited to attorney-client, doctor-patient, clergy-confessional, etc.
- A party may admit their own privileged conversations. If a party provides information during the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review (if applicable) that is from privileged conversations, this information is able to be questioned by the decision-maker(s) and by the other party during appropriate times for questions. However, the questions must focus solely on the information that the party consented to share and may not attempt to elicit new information.
Violation of Expectations & Procedures
Determination regarding a participant’s violation of one of these expectations lies with the single decision-maker or chairperson, as applicable. If a participant violates an expectation of the Rules of Decorum or the procedures outlined in the Sexual Misconduct Accountability Process, the single decision-maker or chairperson, as applicable, will issue a verbal warning, identifying the expectation violated and how it was violated. This notice and rationale will be captured in both audio and video on the recording.
Should a participant continue to violate these expectations or procedures, the single decision-maker or chairperson, as applicable, will immediately call for a break. During the break, the single decision-maker or chairperson, as applicable, will address the problematic behavior directly. If the participant refuses to comply with the warning given by the single decision-maker or chairperson, as applicable, or causes additional problems, the single decision-maker or chairperson, as applicable, may decide to take one or more of the following actions:
- Implement other methods to address the problematic behavior, as determined by the single decision-maker or chairperson, as applicable, that allows the case to continue in a fair manner for all participants.
- Remove the participant from the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review (if applicable).
- End the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review (if applicable) and potentially reconvene at a later date, at the discretion of the Case Coordinator or designee, if the removed participant is the Reporting Party or Responding Party.
Participants may receive an alleged policy violation(s) for their behavior if they meet the definition of a JMU student as listed in the Student Handbook.
The process must be managed to ensure all participants receive a fair, impartial, and unbiased experience that allows the decision-maker(s) to gather information necessary to make a decision for the alleged violations in the case. During the process, all participants must adhere to the following expectations and the procedures in the Sexual Misconduct Accountability Process, outlined within the JMU Student Handbook.
General Expectations
Support Persons must:
- Listen respectfully to the individual speaking without interruption.
- Wait to begin speaking until addressed by the single decision-maker or chairperson, as applicable.
- Avoid speaking over other participants.
- Use respectful language that is not demeaning, derogatory, or disrespectful.
- Avoid raising their voices.
- Remain seated in their predetermined locations.
- Refrain from making distracting or offensive gestures (e.g., rolling eyes, throwing arms in the air, etc.) or audible reactions (e.g., scoffing, speaking under their breath, etc.).
- For questions about the Rules of Decorum or procedures, a participant should request a break through the single decision-maker or chairperson, as applicable, to consult with the party’s Guide or Case Coordinator.
Additional Expectations for Support Persons
In the Sexual Misconduct Accountability Process, a Support Person may:
- Not communicate for or speak on behalf of the participant. Responding Parties, Reporting Parties, and witnesses must present their statements or information themselves.
- Consult with the party on how to present their statements or information by whispering, providing notes, or taking notes as long as it does not disrupt the case.
- Provide support by taking breaks with or requesting breaks on behalf of the party they are accompanying.
A participant has the right not to answer questions or provide information to be used in the case.
Violation of Expectations & Procedures
Determination regarding a participant’s violation of one of these expectations lies with the single decision-maker or chairperson, as applicable. If a participant violates an expectation of the Rules of Decorum, or the procedures outlined in the Sexual Misconduct Accountability Process, the single decision-maker or chairperson, as applicable, will issue a verbal warning, identifying the expectation violated and how it was violated. This notice and rationale will be captured in both audio and video on the recording.
Should a participant continue to violate these expectations or procedures, the single decision-maker or chairperson, as applicable, will immediately call for a break. During the break, the single decision-maker or chairperson, as applicable, will address the problematic behavior directly. If the participant refuses to comply with the warning given by the single decision-maker or chairperson, as applicable, or causes additional problems, the single decision-maker or chairperson, as applicable, may decide to take one or more of the following actions:
- Implement other methods to address the problematic behavior, as determined by the single decision-maker or chairperson, as applicable, that allows the case to continue in a fair manner for all participants.
- Remove the participant from the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review (if applicable).
- End the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review (if applicable) and potentially reconvene at a later date, at the discretion of the Case Coordinator or designee, if the removed participant is the Reporting Party or Responding Party.
Participants may receive an alleged policy violation(s) for their behavior if they meet the definition of a JMU student as listed in the Student Handbook.
The process must be managed to ensure all participants receive a fair, impartial, and unbiased experience that allows the decision-maker(s) to gather information necessary to make a decision for the alleged violations in the case. During the process, all participants must adhere to the following expectations and the procedures in the Sexual Misconduct Accountability Process, outlined within the JMU Student Handbook.
Refer to the “Definitions” section of this process for more information pertaining to witnesses.
General Expectations
Participants must:
- Listen respectfully to the individual speaking without interruption.
- Wait to begin speaking until addressed by the single decision-maker or chairperson, as applicable.
- Avoid speaking over other participants.
- Use respectful language that is not demeaning, derogatory, or disrespectful.
- Avoid raising their voices.
- Remain seated in their predetermined locations.
- Refrain from making distracting or offensive gestures (e.g., rolling eyes, throwing arms in the air, etc.) or audible reactions (e.g., scoffing, speaking under their breath, etc.).
- For questions about the Rules of Decorum or procedures, a participant should request a break through the single decision-maker or chairperson, as applicable, to consult with the party’s Guide or Case Coordinator.
Designated Times When Parties Ask Questions of Witnesses:
Reporting Parties and Responding Parties, when asking questions of Witnesses (of any type):
- Must allow the single decision-maker or chairperson, as applicable, time to evaluate each question and verbally or non-verbally permit the participant to respond.
- May ask the single decision-maker or chairperson, as applicable, to reconsider a determination, but must refrain from arguing with the single decision-maker or chairperson, as applicable, if a question is deemed not to be answered and rationale was provided.
- Must pose questions that elicit information relevant to the investigated incident(s) in question.
- Must maintain a professional and respectful attitude towards the other party, witnesses, decision-maker(s), and any other participants in the process.
- Must refrain from repeating a question where a response has been provided by a participant.
A witness for either party has the right not to answer questions or provide information to be used in the case.
Questions from Reporting Parties and Responding Parties are limited based on the following topics:
- Sexual predisposition of a party
- Current/prior sexual behavior of a party
- Unless such questions and evidence about the party’s prior sexual behavior are offered to prove that someone other than the Responding Party committed the conduct alleged by the Reporting Party, or if the questions and evidence concern specific incidents of the Reporting Party’s prior sexual behavior with respect to the Responding Party and are offered to prove consent.
- Legal privilege
- Questions may not attempt to elicit information from conversations protected by a legal privilege. Relationships providing legal privilege include, but are not limited to attorney-client, doctor-patient, clergy-confessional, etc.
- A party may admit their own privileged conversations. If a party provides information during the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review (if applicable) that is from privileged conversations, this information is able to be questioned by the decision-maker(s) and by the other party during appropriate times for questions. However, the questions must focus solely on the information that the party consented to share and may not attempt to elicit new information.
Violation of Expectations & Procedures
Determination regarding a participant’s violation of one of these expectations lies with the single decision-maker or chairperson, as applicable. If a participant violates an expectation of the Rules of Decorum, or the procedures outlined in the Sexual Misconduct Accountability Process, the single decision-maker or chairperson, as applicable, will issue a verbal warning, identifying the expectation violated and how it was violated. This notice and rationale will be captured in both audio and video on the recording.
Should a participant continue to violate these expectations or procedures, the single decision-maker or chairperson, as applicable, will immediately call for a break. During the break, the single decision-maker or chairperson, as applicable, will address the problematic behavior directly. If the participant refuses to comply with the warning given by the single decision-maker or chairperson, as applicable, or causes additional problems, the single decision-maker or chairperson, as applicable, may decide to take one or more of the following actions:
- Implement other methods to address the problematic behavior, as determined by the single decision-maker or chairperson, as applicable, that allows the case to continue in a fair manner for all participants.
- Remove the participant from the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review (if applicable).
- End the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review (if applicable) and potentially reconvene at a later date, at the discretion of the Case Coordinator or designee, if the removed participant is the Reporting Party or Responding Party.
Participants may receive an alleged policy violation(s) for their behavior if they meet the definition of a JMU student as listed in the Student Handbook.
Steps in the Sexual Misconduct Accountability Process
Some incidents may involve conduct that is prohibited under Policy 1346: Title IX Sexual Harassment, and other conduct that is prohibited under Policy 1340: Sexual Misconduct. When both policies apply for different conduct arising out of the same incident or pattern of incidents, the university may investigate and hear all allegations simultaneously under each policy. If the university consolidates the investigation and hearing under both policies, then the procedures applicable to the Title IX Sexual Harassment policy will apply. Alternatively, the university may choose to investigate and hear the conduct separately under each policy.
Formal complaints alleging (1) sexual harassment on the basis of hostile environment under Policy 1340: Sexual Misconduct (conduct that is sufficiently severe, persistent, or pervasive, and objectively offensive in a manner that interferes with, limits, or denies the person the ability to participate in or benefit from the institution’s education programs or activities) and (2) sexual harassment under Policy 1346: Title IX Sexual Harassment on the basis of 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 university’s education program or activity, may be investigated and heard simultaneously under both policies. If the university consolidates the investigation and hearing under both policies, then the procedures applicable to the Title IX Sexual Harassment policy will apply. The decision-maker will decide on the allegations under both the Sexual Misconduct and Title IX Sexual Harassment policies, providing a written rationale for allegations under each policy. Alternatively, the university may choose to investigate and hear the conduct separately under each policy.
The Sexual Misconduct Accountability Process is the process used to hear cases of alleged violations of the Sexual Misconduct policy. JMU reserves the right to impose any outcome, ranging from educational outcomes up to and including suspension or expulsion, for any violation of the Sexual Misconduct policy. JMU considers acts of sexual violence to be the most serious and therefore typically imposes the most severe outcomes when a Responding Party is found responsible for such offenses, including suspension or expulsion. However, suspension and expulsion are potential outcomes for any case.
In cases where a Responding Party is found responsible and suspended or expelled for sexual violence, defined as physical sexual acts perpetrated against a person’s will or against a person incapable of giving consent, a notation will be placed on the Responding Party’s transcript for the duration of the suspension or expulsion. If a Responding Party withdraws while under investigation for an allegation of sexual violence, a notation will be placed on the Responding Party’s transcript until a final decision in the case is rendered. Such notations will read, as applicable:
- Expelled for violation of Student Standards of Conduct
- Suspended for violation of Student Standards of Conduct
- Withdrew while under investigation for violation of Student Standards of Conduct
Students receiving a transcript notation for a suspension will have it automatically removed by the Office of the Registrar once the suspension period has ended. After a period of three years, students may contact OSARP to request removal of a notation for good cause shown.
In order for OSARP to hear a case involving student behavior that allegedly violates the Sexual Misconduct policy, the Title IX Office must complete the Sexual Misconduct Formal Complaint Investigation Process and provide their investigation materials to OSARP. The Sexual Misconduct Formal Complaint Investigation Process conducted by the Title IX Office is the only opportunity for the Reporting Party and Responding Party to submit evidence, information, personal statements, names of witnesses, and witness statements in the Sexual Misconduct Accountability Process.
If the Reporting Party decides to withdraw the Formal Complaint after OSARP has received the investigation materials from the Title IX Office, the Reporting Party must notify the Title IX Coordinator in writing of their decision to withdraw the Formal Complaint. OSARP should be copied on this written notification for the purposes of planning the process. The process will continue until OSARP receives notification of the dismissal from the Title IX Coordinator.
The investigation materials received from the Title IX Office at the conclusion of the Sexual Misconduct Formal Complaint Investigation Process will indicate the alleged policy violation(s) in the case resulting from the information shared during the investigation process. The Sexual Misconduct Accountability Process is then initiated when the Responding Party is a student as defined in the Student Handbook and the Reporting Party meets the criteria required by JMU Policy 1340. During the last three weeks of the semester, the decision to proceed or postpone the Sexual Misconduct Accountability Process will be determined by OSARP. For any Responding Party who receives an immediate suspension or expulsion from JMU, regardless of academic year, the immediate suspension or expulsion from JMU will be deemed effective for the current semester or, if it is rendered for a graduating senior, for the most recent semester the student attended, which may mean a loss of academic credits for that semester. Further, after a final decision in the case has been rendered, the effective date of an immediate suspension or expulsion from JMU will be the date of the initial case review. The removal from university owned or operated property associated with a decision of immediate suspension or expulsion does not go into effect until the decision in the case is final, unless the Responding Party is under an Emergency Removal that provides for this removal until the final decision in the case.
In circumstances where the Title IX Coordinator signed the Formal Complaint without the authorization of the Reporting Party, OSARP will initiate the Sexual Misconduct Accountability Process. In these cases, OSARP may alter the Sexual Misconduct Accountability Process and procedures as necessary to allow for a fair hearing of the case. In addition, the Sexual Misconduct Accountability Process may be altered to allow for multiple Reporting Parties and/or Responding Parties if OSARP receives a consolidated Formal Complaint Report with multiple Reporting Parties and/or Responding Parties where the allegations of sexual misconduct arise out of the same facts or circumstances.
Further, if the investigation materials received from the Title IX Office at the conclusion of the Sexual Misconduct Formal Complaint Investigation Process indicates alleged policy violations other than the Sexual Misconduct policy or the alleged behavior does not meet the threshold for the Sexual Misconduct policy, OSARP reserves the right to initiate the Individual Accountability Process to hear these alleged violations even if the Sexual Misconduct Formal Complaint is dismissed.
Circumstances that may lead to mandatory dismissal of a formal complaint of Sexual Misconduct may be found in Policy 1340. The Title IX office is responsible for informing the Complainant and Respondent of the dismissal of a formal complaint under Policy 1340 as applicable. A mandatory dismissal, as outlined in Policy 1340, does not preclude action under another university policy or procedure. When the mandatory dismissal of a formal complaint occurs, the alleged conduct and complainant are referred to OSARP. The Individual Accountability Process will be used if the alleged conduct within the dismissed formal complaint constitutes an alleged violation of university policy, as outlined in the Student Handbook. In certain circumstances, a restorative process may be used with the agreement of the parties and/or university.
If there is evidence included in the investigation materials received from the Title IX Office at the conclusion of the Sexual Misconduct Formal Complaint Investigation Process regarding the personal consumption of drugs or alcohol, where such disclosure is made in conjunction with a good faith report made to the Title IX Office by the Reporting Party, a Reporting Party Witness, or a Responding Party Witness, OSARP will not initiate the Individual Accountability Process and pursue alleged violations of these policies against these parties.
The rights of a Responding Party and Reporting Party participating in the Sexual Misconduct Accountability Process are delineated in the "Responding & Reporting Party - Responsibilities and Rights – Sexual Misconduct".
OSARP may initiate the Sexual Misconduct Accountability Process in accordance with the procedures listed in the Student Handbook. The Sexual Misconduct Accountability Process will typically be conducted virtually in a manner in which participants simultaneously see and hear each other; instructions will be provided via email for accessing the Sexual Misconduct Case Review. Parties may request the process be conducted in person for cause, which will be granted or denied at the discretion of the Case Coordinator or designee. Requests for the case review to be conducted in person for cause may include but not be limited to an accommodation through the Office of Disability Services. If a party is unable to secure a private location for their virtual Sexual Misconduct Case Review or requires an in-person case review as an accommodation, the party should contact OSARP immediately upon receiving the notification email to let OSARP know of the concern and request, which will be granted or denied at the discretion of the Case Coordinator or designee. Anticipated timelines, deadlines, restrictions, or procedures listed within the Sexual Misconduct Accountability Process will not be altered except when good cause is provided by either party, as determined by the Case Coordinator or designee; or in unexpected and unavoidable circumstances in order to uphold the intent of the process, as determined by the Case Coordinator or designee, or with the agreement of the party(ies), as approved by the Case Coordinator or designee. Good cause may include but is not limited to the absence of a party or a witness, concurrent law enforcement activity, or the need for language assistance or accommodation of disability(s). If a delay or extension is granted at the request of a party and that impacts the other party, OSARP will communicate the reason(s) in writing for the extension to both parties. OSARP reserves the right, for cause, to postpone the Sexual Misconduct Accountability Process and return the investigation materials received from the Title IX Office at the conclusion of the Sexual Misconduct Formal Complaint Investigation Process to the Title IX Office for further investigation under the Sexual Misconduct Formal Complaint Investigation Process.
Both parties will simultaneously be notified of the beginning of the Sexual Misconduct Accountability Process to hear the case for the alleged policy violation(s).
In accordance with JMU Policy 1209, proper notification shall consist of an email to the student’s official JMU email address. The notice will be considered received the day after the notice is sent via email. This notification will include the allegation(s), including sufficient details such as date and location of the alleged violation(s), the contact information of the party’s OSARP Guide, and the date, time, and location of the initial appointment with the OSARP Guide. This notice will inform parties that suspension and expulsion are potential outcomes for violations of the Sexual Misconduct policy in circumstances where the Responding Party is found responsible; additionally, rights afforded to parties as a result of the potential for these two outcomes will be included. Specifically, this email will provide information about the rights for the parties to submit one Support Person and any Witnesses to OSARP within four days of receiving this notification email, according to the restrictions in the process as provided below. This notice will also include information on the academic, mental health, personal well-being, and campus resources available to students at James Madison University, which can be found at: https://www.jmu.edu/osarp/resources/index.shtml.
Parties may submit their Support Person to OSARP.
Each party has the right to one Support Person in the Sexual Misconduct Case Review. Each party must submit their Support Person's name and contact information within four days of the party's notification email being received in order for OSARP to reasonably consider the Support Person's schedule when scheduling the Sexual Misconduct Case Review. Parties may submit their Support Person after this deadline, but OSARP may not be able to consider their schedule when scheduling the Sexual Misconduct Case Review. Additional information regarding the role of a Support Person in the Sexual Misconduct Accountability Process can be found in the “The Role of a Support Person” section.
Witnesses will be determined by OSARP and/or submitted by either party.
OSARP will determine the University Witnesses to be called in the case; both the Responding Party and Reporting Party will be informed of the University Witnesses being called in the case. University Witnesses may not also serve as a Support Person at the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable.
Each party has the right to submit to OSARP the name and contact information for any person they intend to have speak as a witness at the Sexual Misconduct Case Review via formal submission up to four days after the party’s notification email being received in order for OSARP to reasonably consider the Witness’s schedule when scheduling the Sexual Misconduct Case Review. Formal submission instructions will be included in the party’s notification email. Parties may submit their Witnesses after this deadline, but OSARP may not be able to consider their schedule when scheduling the Sexual Misconduct Case Review. Persons are not considered a witness for either party until they are formally submitted to OSARP as a witness; only persons who directly provided information during the Sexual Misconduct Formal Complaint Investigation Process conducted by the Title IX Office are eligible to serve as witnesses in the Sexual Misconduct Accountability Process.
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Once the deadline for formal witness submission has passed, the Responding Party and Reporting Party will be informed of the witnesses submitted to the Sexual Misconduct Accountability Process.
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Witnesses who speak at the Sexual Misconduct Case Review can provide a verbal statement about the alleged incident or behavior. Witnesses who speak at the Sexual Misconduct Case Review may not provide their perspective on what they feel the appropriate decision or outcome(s) in the case should be, or information that violates the rights of either party. Witnesses may not also serve as a Support Person at the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable.
OSARP reserves the right to pursue alleged violations for any reported alleged behavior by the student Reporting Party, the Responding Party, or other students directed at a Reporting Party, Responding Party, Reporting Party Witness, Responding Party Witness, University Witness, or Support Person that may violate Interference or Retaliation in a University Process or other policies as listed in the Student Handbook. OSARP may pursue an alleged violation of Interference or Retaliation in a University Process if it receives information that a student Reporting Party or Responding Party discusses the case before the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review with a decision-maker involved in the case.
Parties will be notified of OSARP No Contact Orders.
In the notification email outlining the alleged policy violation(s), parties will be notified to have no direct or indirect contact with specific members of the university community including but not limited to the other party and the decision-maker(s) involved in the case. Prohibited contact includes but is not limited to verbal or non-verbal contact in person, through electronic means, or through a third party.
A violation of this notice may result in an alleged policy violation for parties that meet the definition of a JMU student as listed in the Student Handbook, of Noncompliance and/or Interference or Retaliation in a University Process, which may result in immediate suspension or expulsion.
OSARP will not pursue alleged violations of a no contact order issued by the University when the contact occurs through a third party for the purposes of conducting lawful activity during a pending criminal or civil case, or other specific extenuating circumstances as determined by OSARP, unless the contact may have violated policy Interference or Retaliation in a University Process or other policies as listed in the Student Handbook.
OSARP reserves the right to pursue alleged violations for any reported alleged behavior by the student Reporting Party, the Responding Party, or other students directed at a Reporting Party, Responding Party, Reporting Party Witness, Responding Party Witness, University Witness, or Support Person that may violate Interference or Retaliation in a University Process or other policies as listed in the Student Handbook. OSARP may pursue an alleged violation of Interference or Retaliation in a University Process if it receives information that a student Reporting Party or Responding Party discusses the case before the Sexual Misconduct Case Review or Sexual Misconduct Appeal Review with a decision-maker involved in the case.
A Responding Party or Reporting Party in the Sexual Misconduct Accountability Process is not prohibited from discussing their case with a person they are calling as a witness, a Support Person, or witness Support Person; contact is also not prohibited through third parties for purposes of conducting lawful activity during a pending criminal or civil case, or other specific extenuating circumstances as determined by OSARP.
These OSARP No Contact Orders will remain in place until a final decision is rendered as outlined in the Sexual Misconduct Accountability Process.
OSARP Guides will be assigned, and a Guide appointment will be set for both parties.
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Both Reporting Parties and Responding Parties will be assigned separate OSARP Guides to explain the Sexual Misconduct Accountability Process, to serve as a point of contact in OSARP, and to help them understand the rights afforded to them. An OSARP Guide does not help either party prepare how to present their case; OSARP Guides are employed and/or designated by OSARP.
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OSARP will set the time of the Guide appointment around the academic schedule(s) of the Responding Party and Reporting Party if they are enrolled in classes at JMU. If the Responding Party and/or Reporting Party are not enrolled in classes at JMU, their availability will be considered, and reasonable efforts will be made to ensure the Guide appointment is at a time they can participate. At the Guide appointment, the Reporting Party and Responding Party will meet individually with their OSARP Guide to ensure that they understand the Sexual Misconduct Accountability Process and the rights afforded to them. Responding Parties and Reporting Parties may have one Support Person of their choice accompany them to this Guide appointment if the Support Person’s schedule permits their attendance.
Both parties will have access to the Case File.
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The Case File to be used by OSARP in the hearing of the case consists of all investigation materials received from the Title IX Office at the conclusion of the Sexual Misconduct Formal Complaint Investigation Process, excluding information redacted during the Sexual Misconduct Formal Complaint Investigation Process and any redactions done in accordance with the OSARP process. It should be noted that the Case File will include investigation materials even if they were not deemed relevant by the Title IX Office during the Sexual Misconduct Formal Complaint Investigation Process.
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Prior to the Sexual Misconduct Case Review and Sexual Misconduct Appeal Review, if applicable, the Responding Party, Reporting Party, their respective Support Person, and decision-maker(s) will be provided an electronic version of the Case File.
OSARP will schedule the Sexual Misconduct Case Review.
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Typically, OSARP schedules the Sexual Misconduct Case Review to occur within twenty business days of the Responding Party’s Guide appointment in OSARP. However, the circumstances surrounding the case may make it necessary for the university to shorten or extend that timeline.
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OSARP reasonably schedules the Sexual Misconduct Case Review around the availability of the decision-maker(s), OSARP Staff, Support Persons, Witnesses, and the University Witnesses as outlined in the Handbook. If the Sexual Misconduct Case Review is to occur when the Responding Party and/or Reporting Party are enrolled in classes at JMU, the Sexual Misconduct Case Review will reasonably be scheduled around their academic schedule(s). If the Sexual Misconduct Case Review is to occur when the Responding Party and/or Reporting Party are not enrolled in classes at JMU, it will be reasonably scheduled around their availability. The availability or academic schedules of witnesses called by either party or a Support Person for either party will reasonably be considered in scheduling the Sexual Misconduct Case Review provided they are formally submitted to OSARP by the deadlines provided in the Sexual Misconduct Accountability Process.
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OSARP has no mechanism to compel any party or witness of any type to attend and/or participate in the Sexual Misconduct Case Review. If a Responding Party or Reporting Party does not attend, the Sexual Misconduct Case Review will proceed based on the information included in the Case File and information shared at the Sexual Misconduct Case Review by the participants in attendance; the procedures for the case review will be adapted to accommodate their absence. It is the responsibility of the Responding Party or Reporting Party to ensure their witnesses and Support Person attend the Sexual Misconduct Case Review. If any witness or Support Person does not attend, the Sexual Misconduct Case Review will proceed with any necessary adaptations to the procedures.
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The decision to postpone a Sexual Misconduct Case Review is solely at the discretion of the Case Coordinator or designee.
The Sexual Misconduct Accountability Process involves the objective evaluation of all relevant evidence and utilizes a preponderance of evidence standard to determine whether a student is responsible or not responsible for a violation(s).
The definition of relevant evidence used is:
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the outcome of the case. Relevant evidence includes evidence concerning the credibility of a party or witness.
The definition of preponderance of the evidence used is:
Preponderance of the evidence means that there is greater than a fifty percent likelihood that the Responding Party violated the policy.
Responding Parties and Reporting Parties may request that reasonable safety measures, including but not limited to police presence, be put in place during the Sexual Misconduct Case Review, if the parties are physically present in the same geographic location. Such a request will be implemented at the university’s discretion.
In Sexual Misconduct Case Reviews, Responding Parties and Reporting Parties have a right to one Support Person of their choice in accordance with the restrictions stated in the Sexual Misconduct Accountability Process.
The Sexual Misconduct Case Review will be conducted by an OSARP Case Administrator, who will serve as the sole decision-maker. The OSARP Case Administrator is a professional full-time staff member in OSARP who has been trained to hear Sexual Misconduct cases. A trained University Case Administrator will serve as the sole decision-maker for Sexual Misconduct Case Reviews when determined necessary by the Case Coordinator and when a new Sexual Misconduct Case Review is ordered as a result of the appeals process. The decision-maker is to have no conflict of interest or bias for or against Reporting Parties or Responding Parties generally or an individual Reporting Party or Responding Party. If the decision-maker feels that their previous contact with the case or the parties involved will prevent them from rendering a fair decision, the decision-maker shall recuse themself from the Sexual Misconduct Case Review. Responding Parties and Reporting Parties will be informed of the decision-maker assigned to their case. Upon receiving notification of the assigned decision-maker, a Responding Party or Reporting Party may request that the decision-maker be replaced if the student can show a bias on the part of the decision-maker. To make such a request, a Responding Party or Reporting Party must contact the Case Coordinator or designee immediately, setting forth their reasons in writing. The Case Coordinator or designee will review all requests. Any decision to remove a decision-maker is at the discretion of the Case Coordinator or designee.
If a Responding Party, Reporting Party, Responding Party Witness, or Reporting Party Witness fails to appear at a Sexual Misconduct Case Review after being properly notified of its date and time, the Sexual Misconduct Case Review will proceed; the determination on whether or not the Responding Party is responsible for violating policy will be rendered on the basis of the Case File and the information provided by those in attendance at the Sexual Misconduct Case Review. If a University Witness fails to participate at a Sexual Misconduct Case Review, the Sexual Misconduct Case Review will generally proceed without the University Witness. The decision to postpone a Sexual Misconduct Case Review for cause is at the discretion of the Case Coordinator or designee and will be communicated to each party.
For virtual case reviews, OSARP will have a staff member in the Zoom meeting to manage the administrative and technical aspects of Zoom so the decision-maker can focus solely on the case. The OSARP staff member will not participate in the case.
The start time of the case review includes the decision-maker meeting with each participant to discuss procedural information and answer questions from the participants. The length of these meetings cannot be predetermined.
Sexual Misconduct Case Reviews will be audio and/or video recorded; no party may make their own recordings of the Sexual Misconduct Case Review.
A Sexual Misconduct Case Review will proceed in accordance with the procedures below; however, the decision-maker may ask additional questions at any time. Any participant, including the decision-maker, may request a break at any point during the Sexual Misconduct Case Review. Additionally, the phrase “through the decision-maker” used throughout the Sexual Misconduct Case Review procedures refers to the decision-maker confirming or denying a Reporting Party, Responding Party, Reporting Party Witness, or Responding Party Witness’s ability to respond to a question; this confirmation or denial may be verbal or non-verbal. The decision-maker has the authority to prohibit information from being shared that violates the rights of a party, is not allowed by the Sexual Misconduct Accountability Process, or bears no relevancy to the case. The decision-maker will disregard information that violates the rights of a party, is prohibited by the Sexual Misconduct Accountability Process, or bears no relevancy to the case. Adaptations to the process may be made to ensure the fair review of cases including, but not limited to, if OSARP initiated the Sexual Misconduct Accountability Process without the authorization of the Reporting Party or to allow for multiple Reporting Parties and/or Responding Parties; if this occurs Reporting Party(ies) and the Responding Party(ies) will be notified of the adaptations prior to the Sexual Misconduct Case Review. Any participant may be removed by the decision-maker if they violate the Rules of Decorum or procedures outlined in the Student Handbook.
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The decision-maker meets with each participant to discuss procedural information and answer questions.
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The decision-maker and participants are introduced.
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The statement of the alleged policy violation(s) is presented by the decision-maker.
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Procedures for the Sexual Misconduct Case Review are explained; participants state any questions they have concerning rights or procedures.
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The Reporting Party is allotted 3 minutes to make an opening statement that outlines the main points of their allegations.
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The Responding Party is allotted 3 minutes to make an opening statement that outlines the main points of their response to the allegations.
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University Witnesses will be called individually and provided an opportunity to share a verbal statement regarding the allegations.
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The decision-maker will ask questions they have for each University Witness.
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The Reporting Party will be allotted time to question each University Witness.
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The Responding Party will be allotted time to question each University Witness.
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The decision-maker may request that an University Witness return at a later point in the Case Review for further clarification.
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Step #7 repeats until all University Witnesses have participated.
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A scheduled 5-minute break will occur unless all parties agree to continue without a break.
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The Reporting Party is allotted time to share a full verbal statement which may include information regarding the allegations in this case. This is also the Reporting Party’s opportunity to respond to any information or evidence included in the Case File or that has been shared up until this point in the case review.
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The Responding Party is allotted time to share a full verbal statement which may include information regarding the allegations in this case. This is also the Responding Party’s opportunity to respond to any information or evidence included in the Case File or that has been shared up until this point in the case review.
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A scheduled 10-minute break will occur unless all parties agree to continue without a break.
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The decision-maker will ask any questions they have for either the Responding Party or the Reporting Party.
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A scheduled 5-minute break will occur unless all parties agree to continue without a break.
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The Responding Party will be allotted time to question the Reporting Party through the decision-maker.
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A scheduled 5-minute break will occur unless all parties agree to continue without a break.
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The Reporting Party will be allotted time to question the Responding Party through the decision-maker.
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A scheduled 5-minute break will occur unless all parties agree to continue without a break.
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The Reporting Party will call their witnesses individually.
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Each witness called by the Reporting Party will be allotted time to make a verbal statement regarding the alleged incident or behavior.
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At the conclusion of the statement shared by the Reporting Party’s witness, the Reporting Party will be allotted time to question their witness.
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At the conclusion of the Reporting Party’s questions for their witness, the Responding Party will be allotted time to question the Reporting Party’s witness through the decision-maker.
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At the conclusion of the Responding Party’s questions for each witness called by the Reporting Party, the decision-maker will ask any questions they have of the witness.
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Witnesses called by the Reporting Party can provide information relevant to the case, including what they know directly about the alleged incident or behavior and/or what they have been told about the alleged incident or behavior. Witnesses called by the Reporting Party may not provide their perspective on what they feel the appropriate decision or outcome(s) in the case should be.
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The decision-maker may request that a witness for the Reporting Party return at a later point in the Case Review for further clarification.
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Step #18 repeats until all Reporting Party Witnesses have participated.
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A scheduled 5-minute break will occur unless all parties agree to continue without a break.
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The Responding Party will call their witnesses individually.
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Each witness called by the Responding Party will be allotted time to make a verbal statement regarding the alleged incident or behavior.
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At the conclusion of the statement shared by the Responding Party’s witness, the Responding Party will be allotted time to question their witness.
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At the conclusion of the Responding Party’s questions for their witness, the Reporting Party will be allotted time to question the Responding Party’s witness through the decision-maker.
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At the conclusion of the Reporting Party’s questions for each witness called by the Responding Party, the decision-maker will ask any questions they have of the witness.
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Witnesses called by the Responding Party can provide information relevant to the case, including what they know directly about the alleged incident or behavior and/or what they have been told about the alleged incident or behavior. Witnesses called by the Responding Party may not provide their perspective on what they feel the appropriate decision or outcome(s) in the case should be.
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The decision-maker may request that a witness for the Responding Party return at a later point in the Case Review for further clarification.
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Step #20 repeats until all Responding Party Witnesses have participated.
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A scheduled 5-minute break will occur unless all parties agree to continue without a break.
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Any University Witnesses asked by the decision-maker to return later will be brought in individually, if applicable.
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The Reporting Party may ask questions, followed by the Responding Party, and then the decision-maker’s opportunity to ask any remaining questions they have of the University Witness.
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The University Witnesses will then be dismissed from the Sexual Misconduct Case Review.
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Step #22 repeats until all University Witnesses have participated.
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Any Reporting Party Witnesses asked by the decision-maker to return later will be brought in individually, if applicable.
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The Reporting Party may ask questions, followed by the Responding Party through the decision-maker, and then the decision-maker’s opportunity to ask any remaining questions they have of the Reporting Party Witness.
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The Reporting Party Witnesses will then be dismissed from the Sexual Misconduct Case Review.
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Step #23 repeats until all Reporting Party Witnesses have participated.
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Any Responding Party Witnesses asked by the decision-maker to return later will be brought in individually, if applicable.
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The Responding Party may ask questions of their witness, followed by the Reporting Party through the decision-maker, and then the decision-maker’s opportunity to ask any remaining questions they have of the Responding Party Witness.
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The Responding Party Witnesses will then be dismissed from the Sexual Misconduct Case Review.
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Step #24 repeats until all Responding Party Witnesses have participated.
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A scheduled 5-minute break will occur unless all parties agree to continue without a break.
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The Reporting Party will be allotted time to make a statement that responds to anything shared by the Responding Party in the Case File or during the Sexual Misconduct Case Review.
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The Responding Party will be allotted time to make a statement that responds to anything shared by the Reporting Party in the Case File or during the Sexual Misconduct Case Review.
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A scheduled 5-minute break will occur unless all parties agree to continue without a break.
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The Responding Party will be allotted time for final questions of the Reporting Party through the decision-maker.
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The Reporting Party will be allotted time for final questions of the Responding Party through the decision-maker.
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A scheduled 5-minute break will occur unless all parties agree to continue without a break.
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The decision-maker will ask any final questions they have for either the Responding Party or the Reporting Party.
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A scheduled 20-minute break will occur unless all parties agree to continue without a break.
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The Reporting Party will be allotted 10 minutes to make a closing statement.
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A closing statement is not permitted to introduce new evidence or information but is an opportunity to summarize what the Reporting Party has already shared, their final thoughts, their thoughts moving forward, and any impact on the Reporting Party related to the allegation(s) of Sexual Misconduct.
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If the Reporting Party has a written closing statement they intend to read, but is unable to do so, the statement may be read aloud for the record by the decision-maker.
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The Responding Party will be allotted 10 minutes to make a closing statement.
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A closing statement is not permitted to introduce new evidence or information but is an opportunity to summarize what the Responding Party has already shared, their final thoughts, their thoughts moving forward, and any impact on the Responding Party related to the allegation(s) of Sexual Misconduct.
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If the Responding Party has a written closing statement they intend to read, but is unable to do so, the statement may be read aloud for the record by the decision-maker.
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All participants will be dismissed from the Sexual Misconduct Case Review. The decision-maker will evaluate evidence to determine the finding on the alleged policy violation(s). Determinations are based on a preponderance of the evidence.
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If the decision-maker finds the Responding Party responsible for violating policy, they will determine the outcomes to be rendered for the case.
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If the decision-maker finds the Responding Party not responsible for violating policy, no outcomes will be assigned.
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OSARP will concurrently contact the Responding Party and Reporting Party via email on the tenth business day after the date of the Sexual Misconduct Case Review with the availability and instructions to access the decision and, if applicable, outcomes rendered at the Sexual Misconduct Case Review. This will include the decision-maker’s rationale for each finding on policy(ies), outcomes rendered, if applicable, and a recording of the Sexual Misconduct Case Review.
Once the decision-maker has rendered a decision at the conclusion of the Sexual Misconduct Case Review, the Sexual Misconduct Accountability Process will continue through the final decision, regardless of enrollment status of either party.
If neither party submits an appeal of the decision-maker’s decision within the timeline set by the procedures listed in the Student Handbook, the decision-maker’s decision in the case is final on the next calendar day following the appeal deadline. OSARP will communicate that final decision simultaneously to both parties, including any information for completing required outcomes. Failure to complete, schedule, attend, or be on time for programs/meetings, failing to complete related assignments, or failing to follow program expectations may result in a $50 fine per program/meeting not completed by the deadline and a student account hold, which prevents class registration and is typically only removed once outstanding outcome(s) are verified as completed by OSARP. Repeated failure may result in an alleged policy violation of Failure to Comply with an Outcome.
OSARP may initiate the Individual Accountability Process if a student knowingly provides falsified or misleading information at a Sexual Misconduct Case Review for alleged violation of the Interference or Retaliation in a University Process policy. An employee may be charged with misconduct under relevant university policies.
OSARP may initiate the Individual Accountability Process against a Reporting Party or Responding Party if it receives information that a party discusses the case with a decision-maker prior to the Sexual Misconduct Case Review for alleged violation of the Interference or Retaliation in a University Process policy. An employee may be charged with misconduct under the relevant university policies.
Sexual Misconduct Case Reviews are closed meetings; the University will maintain confidentiality of all information related to the case, unless legally required or permitted by law to disclose the information. The Responding Party and Reporting Party shall receive notice of all rights they are guaranteed through the Sexual Misconduct Accountability Process. In Sexual Misconduct Case Reviews, the technical rules of evidence applicable in civil and criminal cases do not apply.
Responding Parties and Reporting Parties have the right to submit a written appeal of the decision rendered at a Sexual Misconduct Case Review within four days of receiving the decision rendered at the Sexual Misconduct Case Review. Responding Parties and/or Reporting Parties must submit their appeal themselves; no one is permitted to submit an appeal on their behalf.
Once a decision has been made at the conclusion of the Sexual Misconduct Case Review, the Sexual Misconduct Accountability Process will continue through the final decision regardless of the enrollment status of either party.
Either party may submit an appeal of the decision made at a Sexual Misconduct Case Review on one or more of the following grounds. When referenced below, “affected the outcome of the matter” refers to the entirety of the decision rendered including the determination regarding responsibility or remedies and outcomes assigned, if applicable.
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Procedural irregularity that affected the outcome of the matter.
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New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter.
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The Title IX Coordinator, Investigator(s), or Decision-Maker(s) had a conflict of interest or bias for or against Reporting Parties or Responding Parties generally or the individual Reporting Party or Responding Party that affected the outcome of the matter.
If either party submits an appeal, the other party will be notified in writing that the appeal was submitted. OSARP reserves the right to redact information from the submitted appeal to be used by the Appeal Board that is prohibited by the Sexual Misconduct Accountability Process or that violates the rights of either party. If redactions are made, the party who submitted the appeal may challenge these redactions to the Case Coordinator or designee within two days of their receipt of the submitted appeal to be used by the Appeal Board.
After all challenges to redactions have been resolved or the deadline to challenge redactions has passed, the other party will then be notified in writing that the appeal submission is ready for review and provided four days to submit a response to the appeal.
OSARP reserves the right to redact information from the other party’s response submitted that is prohibited by the Sexual Misconduct Accountability Process or that violates the rights of either party. If redactions are made, the party who submitted the response may challenge these redactions to the Case Coordinator or designee within two days of their receipt of the submitted response to be used by the Appeal Board.
For appeals involving new evidence, if a party wishes to have witnesses participate at the Sexual Misconduct Appeal Review, they must submit their witnesses within two days of being notified that an Appeal Review regarding new evidence will occur where the parties are permitted to participate.
OSARP typically schedules Sexual Misconduct Appeal Reviews to occur within fifteen business days of notifying the parties in a case that a Sexual Misconduct Appeal Review will be held. However, the circumstances surrounding the case may make it necessary for the university to shorten or extend that timeline.
When applicable, OSARP reasonably schedules Sexual Misconduct Appeal Reviews around the availability of Appeal Board members, OSARP Staff, and University Witnesses. If a Sexual Misconduct Appeal Review is to occur when the Responding Party and/or Reporting Party are enrolled in classes at JMU, the Sexual Misconduct Appeal Review will reasonably be scheduled around their academic schedule(s). If a Sexual Misconduct Appeal Review is to occur when the Responding Party and/or Reporting Party are not enrolled in classes at JMU, it will be reasonably scheduled around their availability. The availability or academic schedules of witnesses called by either party or a Support Person for either party will reasonably be considered in scheduling a Sexual Misconduct Appeal Review.
Sexual Misconduct Appeal Reviews will be conducted by three voting faculty or staff decision-makers called University Case Administrators who form the Appeal Board; they are not employed by OSARP but have received training to hear Sexual Misconduct-related cases. One of the faculty or staff members, in addition to being a voting member, will also serve as the chairperson. The faculty or staff members serving as Appeal Board members will not be the Title IX Coordinator, Investigator(s) in the case, or the decision-maker from the Sexual Misconduct Case Review. If any of the Appeal Board members feel that their previous contact with the case or the parties involved will prevent them from rendering a fair decision, the decision-maker must request that they not be assigned to the Sexual Misconduct Appeal Review. Responding Parties and Reporting Parties will be informed of the Appeal Board assigned to the Sexual Misconduct Appeal Review. Upon receiving notification of the assigned Appeal Board, a Responding Party or Reporting Party may request that a decision-maker be replaced if the student can show a bias or conflict of interest on the part of the decision-maker. In order to make such a request, a Responding Party or Reporting Party must contact the Case Coordinator or designee immediately, setting forth their reasons in writing. The Case Coordinator or designee will review all requests. Any decision to remove a decision-maker and/or to postpone a Sexual Misconduct Appeal Review for cause is at the discretion of the Case Coordinator or designee.
OSARP may initiate the Sexual Misconduct Accountability Process in accordance with the procedures listed in the Student Handbook. The Sexual Misconduct Appeal Review for New Evidence will typically be conducted virtually in a manner in which participants simultaneously see and hear each other; instructions will be provided via email for accessing the Sexual Misconduct Appeal Review. Parties may request the process be conducted in person for cause, which will be granted or denied at the discretion of the Case Coordinator or designee. Requests for the appeal review to be conducted in person for cause may include but not be limited to an accommodation through the Office of Disability Services. If a party is unable to secure a private location for their virtual Sexual Misconduct Appeal Review or requires an in-person case review as an accommodation, the party should contact OSARP immediately upon receiving the notification email to let OSARP know of the concern and request; such concerns or requests will be granted or denied at the discretion of the Case Coordinator or designee.
Responding Parties and Reporting Parties may request reasonable safety measures, including but not limited to police presence, be put in place during the Sexual Misconduct Appeal Review, if the parties are physically present in the same geographic location; such request will be implemented at the university’s discretion.
The Appeal Board will review the Case File, a recording of the Sexual Misconduct Case Review, the submitted appeal with any appropriate redactions, any responses provided to the submitted appeal with any appropriate redactions, and, when applicable, the information provided by those in attendance at the Sexual Misconduct Appeal Review.
The decisions rendered at a Sexual Misconduct Appeal Review are based on a preponderance of the evidence and determined by a majority vote of the Appeal Board members. During the Sexual Misconduct Appeal Review the chairperson has the authority to prohibit information, and/or instruct Appeal Board members to disregard information, from being shared that violates the rights of a party, is not allowed by the Sexual Misconduct Accountability Process, or bears no relevancy to the grounds for appeal submission. Any participant may be removed by the chairperson if they violate the Rules of Decorum or procedures outlined in the Student Handbook.
At the conclusion of the Appeal Review process, the Appeal Board will provide a decision, including a rationale, to OSARP within five business days of the Sexual Misconduct Appeal Review. OSARP will concurrently notify the Responding Party and the Reporting Party of the final decision, rationale, and any outcomes rendered on the fifth business day from the scheduled Sexual Misconduct Appeal Review. Decisions rendered by the Appeal Board at an Appeal Review are considered final. As such, there is no mechanism for a Responding Party or Reporting Party to appeal the decision made by the Appeal Review Appeal Board.
If, as a result of an Appeal Review, the Appeal Board determines that the decision rendered at the Sexual Misconduct Case Review is final, OSARP will communicate that final decision simultaneously to both parties, including any information for completing required outcomes. Failure to complete, schedule, attend, or be on time for programs/meetings, failing to complete related assignments, or failing to follow program expectations may result in a $50 fine per program/meeting not completed by the deadline and a student account hold, which prevents class registration and is typically only removed once outstanding outcome(s) are verified as completed by OSARP. Repeated failure may result in an alleged policy violation of Failure to Comply with an Outcome.
In cases where both the Reporting Party and Responding Party submit an appeal for an Appeal Review, there will be one Sexual Misconduct Appeal Review to render decisions considering the arguments raised in both appeals.
If an appeal is submitted based on procedural irregularity that affected the outcome, by either one or both parties, the Sexual Misconduct Appeal Review will follow the procedures listed in “Procedures – Sexual Misconduct Appeal Review: Procedural Irregularity.” Neither the Reporting Party nor the Responding Party participate or attend this type of Sexual Misconduct Appeal Review.
If an appeal is submitted on grounds that the Title IX Coordinator, Investigator(s), or Decision-Maker(s) had a conflict of interest or bias for or against Reporting Parties or Responding Parties generally or the individual Reporting Party or Responding Party, by either one of both parties, the Sexual Misconduct Appeal Review will follow the procedures listed in “Procedures – Sexual Misconduct Appeal Review: Conflict of Interest or Bias.” Neither the Reporting Party nor the Responding Party participate or attend this type of Sexual Misconduct Appeal Review.
If an appeal is submitted based on new evidence that was not reasonably available at the time the original decision was made (i.e. Sexual Misconduct Case Review) that could affect the outcome of the case, by either one or both parties, the Sexual Misconduct Appeal Review will follow the procedures listed in “Procedures – Sexual Misconduct Appeal Review: New Evidence.” Both parties may choose to attend this type of Appeal Review only if the Appeal Board determines the appeal submission meets the criteria for new evidence, per the procedures outlined in the Handbook. The party who submitted the appeal may choose to present the new evidence to the Appeal Board and the party who submitted a response may choose to present their response to the Appeal Board.
If an appeal is submitted based on multiple grounds, by either one or both parties, one Sexual Misconduct Appeal Review will be held and follow the procedures listed in “Procedures - Sexual Misconduct Appeal Review: Multiple Grounds for Appeal.”
The Responding Party and the Reporting Party will be notified via email of the outcome of the Sexual Misconduct Appeal Review simultaneously by OSARP on the fifth business day after the date of the Sexual Misconduct Appeal Review. This notification will be to inform them that a new Sexual Misconduct Formal Complaint Investigation Process has been ordered, a new Sexual Misconduct Case Review has been ordered, or of the final decision in the case.
The Sexual Misconduct Appeal Review will generally follow the procedures below based on the reason(s) for appeal. Adaptations to the process may be made to ensure the fair review of cases including, but limited to, if OSARP initiated the Sexual Misconduct Accountability Process without the authorization of the Reporting Party or to allow for multiple Reporting Parties and/or Responding Parties; if this occurs, Reporting Party(s) and the Responding Party(s) will be notified of the adaptations prior to the Sexual Misconduct Case Review.
Procedures – Sexual Misconduct Appeal Review: Procedural Irregularity
Responding Parties and Reporting Parties are not present for and do not participate in Sexual Misconduct Appeal Reviews based on procedural irregularity. If both parties submitted this type of appeal, then each appeal submission and its response will be reviewed separately in the order they were received by OSARP using the following procedures. The Responding Party and the Reporting Party will be notified of the outcome of the Sexual Misconduct Appeal Review in accordance with the procedures listed in the Sexual Misconduct Accountability Process.
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For the first, or only, submitted appeal and response, the Appeal Board will determine whether a procedural irregularity occurred by considering the arguments made in the appeal and any response submitted.
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If the Appeal Board determines that no procedural irregularity occurred, the decision rendered at the Sexual Misconduct Case Review will stand.
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If the other party in the case also submitted an appeal based on procedural irregularity, then the Appeal Board will proceed to Step 3.
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If the Appeal Board determines that a procedural irregularity occurred, they will then determine if the procedural irregularity can reasonably be said to have affected the outcome of the case for the first, or only, party who submitted the appeal.
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If the Appeal Board determines that the procedural irregularity cannot reasonably be said to have affected the outcome of the case for the first party who submitted an appeal, the decision rendered at the Sexual Misconduct Case Review will stand.
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If the other party in the case also submitted an appeal based on procedural irregularity, then the Appeal Board will proceed to Step 3.
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If the Appeal Board determines that the procedural irregularity can reasonably be said to have affected the outcome of the case for the first party who submitted an appeal, the Appeal Board will either send the case to the Title IX Coordinator’s supervisor or designee (for procedural irregularit(ies) that occurred during the investigation) or to the OSARP Case Manager or designee (for procedural irregularit(ies) that occurred only during the case review). For cases that are sent to the Title IX Coordinator’s supervisor or designee, the Title IX Formal Complaint Investigation Process will be re-conducted which will also result in a rehearing of the Title IX Sexual Harassment Case Review. For cases that are sent to the OSARP Case Manager or designee, OSARP will conduct a new Sexual Misconduct Case Review.
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If the case is sent to the Title IX Coordinator’s supervisor or designee or the OSARP Case Manager or designee after review of the first appeal where a second appeal was submitted by the other party, the Appeal Board will review the second submission using the process as described in steps 3-4 of this section.
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For the second submitted appeal and response, the Appeal Board will determine whether a procedural irregularity occurred by considering the arguments made in the appeal and any response submitted.
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If the Appeal Board determines that no procedural irregularity occurred, the decision rendered at the Sexual Misconduct Case Review will stand.
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If the Appeal Board determines that a procedural irregularity occurred, they will then determine if the procedural irregularity can reasonably be said to have affected the outcome of the case for the second party who submitted the appeal.
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If the Appeal Board determines that the procedural irregularity cannot reasonably be said to have affected the outcome of the case for the second party who submitted the appeal, the decision rendered at the Sexual Misconduct Case Review will stand.
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If the Appeal Board determines that the procedural irregularity can reasonably be said to have affected the outcome of the case for the second party who submitted the appeal, the Appeal Board will either send the case to the Title IX Coordinator’s supervisor or designee (for procedural irregularit(ies) that occurred during the investigation) or to the OSARP Case Manager or designee (for procedural irregularit(ies) that occurred only during the case review). For cases that are sent to the Title IX Coordinator’s supervisor or designee, the Title IX Formal Complaint Investigation Process will be re-conducted which will also result in a rehearing of the Sexual Misconduct Case Review. For cases that are sent to the OSARP Case Manager or designee, OSARP will conduct a new Sexual Misconduct Case Review.
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If the appeal submission solely contained arguments for procedural irregularit(ies), then the appeal will end.
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If the appeal submission contained arguments for conflict of interest or bias, the appeal board will follow the procedures for reviewing those aspects of the appeal submission. If the appeal submission did not contain arguments for conflict of interest or bias, the appeal board will follow the procedures for reviewing the new evidence portion of the appeal, if applicable.
Procedures – Sexual Misconduct Appeal Review: Conflict of Interest or Bias
Responding Parties and Reporting Parties are not present for and do not participate in Sexual Misconduct Appeal Reviews based on grounds that the Title IX Coordinator, Investigator(s), or Decision Maker(s) had a conflict of interest or bias for or against Reporting Parties or Responding Parties generally, or the individual Reporting Party or Responding Party, that affected the outcome of the case. If both parties submitted this type of appeal, then each appeal submission and its response will be reviewed separately in the order they were received by OSARP using the following procedures. The Responding Party and the Reporting Party will be notified of the outcome of the Sexual Misconduct Appeal Review in accordance with the procedures listed in the Sexual Misconduct Accountability Process.
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For the first, or only, submitted appeal and response, the Appeal Board will determine whether a conflict of interest or bias occurred by considering the arguments made in the appeal and any response submitted.
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If the Appeal Board determines that no conflict of interest or bias occurred, the decision rendered at the Sexual Misconduct Case Review will stand.
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If the other party in the case also submitted an appeal based on alleged conflict of interest or bias, then the Appeal Board will proceed to Step 3.
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If the Appeal Board determines that a conflict of interest or bias occurred, they will then determine if the conflict of interest or bias affected the outcome of the case for the first, or only, party who submitted an appeal.
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If the Appeal Board determines that the conflict of interest or bias did not affect the outcome of the case for the first party who submitted an appeal, the decision rendered at the Sexual Misconduct Case Review will stand.
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If the other party in the case also submitted an appeal based on an alleged conflict of interest or bias, then the Appeal Board will proceed to Step 3.
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If the Appeal Board determines that the conflict of interest or bias affected the outcome of the case for the first party who submitted the appeal, the Appeal Board will either send the case to the Title IX Coordinator’s supervisor or designee (for bias by the investigator(s) or Title IX Coordinator) or to the OSARP Case Manager or designee (for bias of a decision-maker). For cases that are sent to the Title IX Coordinator’s supervisor or designee, the Title IX Formal Complaint Investigation Process will be reconducted. For cases that are sent to the OSARP Case Manager or designee, OSARP will conduct a new Sexual Misconduct Case Review.
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If the case is sent to the Title IX Coordinator’s supervisor or designee or the OSARP Case Manager or designee after review of the first submitted appeal in a Sexual Misconduct Appeal Review where a second appeal was submitted by the other party, the Appeal Board will review the second submission using the process as described in steps 3-4 of this section.
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For the second submitted appeal and response, the Appeal Board will determine whether a conflict of interest or bias occurred by considering the arguments made in the appeal and any response submitted.
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If the Appeal Board determines that no conflict of interest or bias occurred, the decision rendered at the Sexual Misconduct Case Review will stand.
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If the Appeal Board determines that a conflict of interest or bias occurred, they will then determine if the conflict of interest or bias affected the outcome of the case for the second party who submitted the appeal.
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If the Appeal Board determines that the conflict of interest or bias cannot reasonably be said to have materially affected the outcome of the case for the second party who submitted the appeal, the decision rendered at the Sexual Misconduct Case Review will stand.
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If the Appeal Board determines that the conflict of interest or bias affected the outcome of the case for the second party who submitted the appeal, the Appeal Board will either send the case to the Title IX Coordinator’s supervisor or designee (for bias by the investigator(s) or Title IX Coordinator) or to the OSARP Case Manager or designee (for bias of a decision-maker). For cases that are sent to the Title IX Coordinator’s supervisor or designee, the Title IX Formal Complaint Investigation Process will be reconducted. For cases that are sent to the OSARP Case Manager or designee, OSARP will conduct a new Sexual Misconduct Case Review.
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If the appeal submission solely contained arguments for procedural irregularit(ies)and/or conflict of interest or bias, then the appeal will end.
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If the appeal submission also contained arguments for new evidence, the appeal board will follow the procedures for reviewing the new evidence portion of the appeal.
Procedures – Sexual Misconduct Appeal Review: New Evidence
If an appeal submission included arguments based on new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter, the Appeal Board will first evaluate if the new evidence included in the appeal submission meets the stated criteria to be considered new evidence by conducting the following procedures. The Appeal Board will also have access to the case documentation, a recording of the Sexual Misconduct Case Review, the appeal submission and any responses to the submitted appeal, administrative items provided by OSARP, and the Respondent’s previous disciplinary history maintained by OSARP.
Per the SMAP, new evidence is defined as information that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter. When referenced here, “affected the outcome of the matter” refers to the entirety of the decision rendered including the determination regarding responsibility or remedies and outcomes assigned, if applicable.
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The Appeal Board will determine if the evidence was not reasonably available at the time the determination regarding responsibility or dismissal was made, based on the information in the first submitted appeal.
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If the Appeal Board determines that the evidence included in the first appeal submission does not meet the criteria for being new, they will keep the decision and outcomes and remedies, if applicable, rendered at the Sexual Misconduct Case Review.
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If there was not a second appeal submission based on new evidence, then the appeal board will conclude the Appeal Review.
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If there was a second appeal submission based on new evidence, then the appeal board will move to step 2.
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If the Appeal Board determines that the evidence included in the appeal submission does meet the criteria for being new, they will then determine if the evidence included in the appeal submission could have affected the outcome of the case.
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If the Appeal Board determines that the evidence included in the appeal submission could not have affected the outcome of the case, they will keep the decision and outcomes and remedies, if applicable, rendered at the Sexual Misconduct Case Review.
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If there was not a second appeal submission based on new evidence, then the appeal board will conclude the Appeal Review.
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If the Appeal Board determines that the evidence included in the appeal submission could have affected the outcome of the case, then one of the following will occur:
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If there was a second appeal submission based on new evidence, then the appeal board will move to step 2.
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If there was not a second appeal submission based on new evidence, and new evidence was the only grounds in the appeal submissions, then the Appeal Review will proceed using the procedures below. OSARP will schedule an Appeal Review to provide an opportunity for relevant participants to present and/or respond to the new evidence; this next step is considered to be the second stage of an Appeal Review involving new evidence.
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If there was not a second appeal submission based on new evidence, and it was already determined during the Appeal Review that a re-investigation or a new case review will need to occur based on prior decisions made on arguments of procedural irregularit(ies) and/or conflict of interest or bias, then the Appeal Review will end.
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If the new evidence was determined to meet the criteria for being new and it was determined that the new evidence could have affected the outcome of the case, then the new evidence and any response(s) to it will be given to the Title IX Coordinator’s supervisor or designee to be added to the new investigation or given to the OSARP Case Manager or designee to be added the Case File to be used in the new Sexual Misconduct Case Review.
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If the new evidence was not determined to meet the criteria for being new or it was not determined that the new evidence could have affected the outcome of the case, then the new evidence and any response(s) to it will not be given to the Title IX Coordinator’s supervisor or designee to be added to the new investigation or given to the OSARP Case Manager or designee to be added the Case File to be used in the new Sexual Misconduct Case Review.
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The appeal board will determine if the evidence was not reasonably available at the time the determination regarding responsibility or dismissal was made, based on the information in the second submitted appeal.
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If the Appeal Board determines that the evidence included in the second appeal submission does not meet the criteria for being new, they will keep the decision and outcomes and remedies, if applicable, rendered at the Sexual Misconduct Case Review and conclude the Appeal Review.
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If the Appeal Board determines that the evidence included in the second appeal submission does meet the criteria for being new, they will then determine if the evidence included in the second appeal submission could have affected the outcome of the case.
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If the Appeal Board determines that the evidence included in the second appeal submission could not have affected the outcome of the case, they will keep the decision and outcomes and remedies, if applicable, rendered at the Sexual Misconduct Case Review and conclude the Appeal Review.
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If the Appeal Board determines that the evidence included in the second appeal submission could have affected the outcome of the case, then one of the following will occur:
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If new evidence was the only grounds in the appeal submissions, then the Appeal Review will proceed using the procedures below. OSARP will schedule an Appeal Review to provide an opportunity for relevant participants to present and/or respond to the new evidence; this next step is considered to be the second stage of an Appeal Review involving new evidence.
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If it was already determined during the Appeal Review that a re-investigation or a new case review will need to occur based on prior decisions made on arguments of procedural irregularit(ies) and/or conflict of interest or bias, then the Appeal Review will end.
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If the new evidence was determined to meet the criteria for being new and it was determined that the new evidence could have affected the outcome of the case, then the new evidence and any response(s) to it will be given to the Title IX Coordinator’s supervisor or designee to be added to the new investigation or given to the OSARP Case Manager or designee to be added the Case File to be used in the new Sexual Misconduct Case Review.
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If the new evidence was not determined to meet the criteria for being new or it was not determined that the new evidence could have affected the outcome of the case, then the new evidence and any response(s) to it will not be given to the Title IX Coordinator’s supervisor or designee to be added to the new investigation or given to the OSARP Case Manager or designee to be added the Case File to be used in the new Sexual Misconduct Case Review.
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OSARP reasonably schedules the Sexual Misconduct Appeal Review on grounds of new evidence around the availability of Responding Parties, Reporting Parties, Appeal Board members, OSARP Staff, Support Persons, and Witnesses. If the Sexual Misconduct Appeal Review is to occur when the Responding Party, and/or Reporting Party are enrolled in classes at JMU, the Sexual Misconduct Appeal Review will reasonably be scheduled around their academic schedule(s). If the Sexual Misconduct Appeal Review is to occur when the Responding Party and/or Reporting Party are not enrolled in classes at JMU, it will be reasonably scheduled around their availability. The availability or academic schedules of witnesses called by either party or a Support Person for either party will reasonably be considered in scheduling the Sexual Misconduct Appeal Review.
In these types of Appeal Reviews, Responding Parties and Reporting Parties have a right to a Support Person in accordance with the restrictions stated in the Sexual Misconduct Accountability Process.
If a Responding Party, Reporting Party, Responding Party Witness, or Reporting Party Witness fails to appear at a Sexual Misconduct Appeal Review after being properly notified of its date and time, the Sexual Misconduct Appeal Review will proceed. The decision to postpone a Sexual Misconduct Appeal Review for cause is at the discretion of the Case Coordinator or designee and will be communicated to each party.
Sexual Misconduct Appeal Reviews on the grounds of new evidence will be audio and/or video recorded; the Appeal Board’s closed deliberation will not be recorded. No party may make their own recordings of the Sexual Misconduct Appeal Review.
For virtual case reviews, OSARP will have a staff member in the Zoom meeting to manage the administrative and technical aspects of Zoom so the Appeal Board can focus solely on the case. The OSARP staff member will not participate in the hearing process or be present while the Appeal Board deliberates.
The start time of the case review includes the chairperson meeting with each participant to discuss procedural information and answer questions from the participants. The length of these meetings cannot be predetermined.
A Sexual Misconduct Appeal Review will proceed in accordance with the procedures below; however, Appeal Board members may ask additional questions at any time. Any participant, including the Appeal Board members, may request a break at any point during the Sexual Misconduct Case Review. The chairperson has the authority to prohibit information from being shared that violates the rights of a party, is not allowed by the Sexual Misconduct Accountability Process, or bears no relevancy to the case. The chairperson also has the authority to instruct Appeal Board members to disregard information that violates the rights of a party, is prohibited by the Sexual Misconduct Accountability Process, or bears no relevancy to the case.
Adaptations to the process may be made for cases including, but limited to, if OSARP initiated the Sexual Misconduct Accountability Process without the authorization of the Reporting Party or to allow for multiple Reporting Parties and/or Responding Parties; if this occurs Reporting Party(s) and the Responding Party(s) will be notified of the adaptations prior to the Sexual Misconduct Appeal Review.
If only the Responding Party submitted an appeal based on new evidence, then Steps 7-10 will be eliminated in the procedures below. If only the Reporting Party submitted an appeal based on new evidence, then Steps 3-6 will be eliminated in the procedures below. If both parties submitted an appeal based on new evidence, then each appeal submission and its response will be reviewed separately using the entirety of the following procedures. The Responding Party and the Reporting Party will be notified of the outcome of the Sexual Misconduct Appeal Review in accordance with the procedures listed in the Sexual Misconduct Accountability Process.
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The chairperson meets with each participant to discuss procedural information and answer questions.
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The Appeal Board members and participants are introduced.
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Information is presented by the Responding Party solely about the new evidence in their appeal.
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The Appeal Board may ask questions about the new evidence presented in the Responding Party's appeal.
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The Reporting Party, through the chairperson, will be allotted time to question the Responding Party about the new evidence presented in the Responding Party’s appeal.
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If applicable, the Responding Party will call their witnesses individually.
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Each witness called by the Responding Party will be allotted time to make a verbal statement regarding the new evidence submitted in the appeal or response.
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At the conclusion of the statement shared by the Responding Party’s Witness, the Responding Party will be allotted time to question the Responding Party’s Witness.
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At the conclusion of the Responding Party’s questions for their witness, the Reporting Party, through the chairperson, will be allotted time to question the Responding Party’s Witness.
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At the conclusion of the Reporting Party’s questions for the witness called by the Responding Party, the Appeal Board will ask any questions they have of the witness.
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Witnesses called by the Responding Party may provide what they know directly about and/or what they have been told about the new evidence as it relates to the submitted appeal or response. Witnesses called by the Responding Party may not provide their perspective on what they feel the appropriate decision or outcome(s) in the case should be.
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The Appeal Board may request that a witness for the Responding Party return at a later point in the Appeal Review for further clarification.
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Section #4 repeats until all of the Responding Party’s Witnesses have participated.
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Information is presented by the Reporting Party solely about their response to the new evidence in the Responding Party’s appeal.
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The Appeal Board may question the Reporting Party about their response to the new evidence in the Responding Party’s appeal.
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The Responding Party, through the chairperson, will be allotted time for questions of the Reporting Party.
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If applicable, the Reporting Party will call their witnesses individually.
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Each witness called by the Reporting Party will be allotted time to make a verbal statement regarding the new evidence submitted in the appeal or response.
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At the conclusion of the statement shared by the Reporting Party’s Witness, the Reporting Party will be allotted time to question the Reporting Party’s Witness.
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At the conclusion of the Reporting Party’s questions for their witness, the Responding Party, through the chairperson, will be allotted time to question the Reporting Party’s Witness.
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At the conclusion of the Responding Party’s questions for the witness called by the Reporting Party, the Appeal Board will ask any questions they have of the witness.
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Witnesses called by the Reporting Party may provide what they know directly about and/or what they have been told about the new evidence as it relates to the submitted appeal or response. Witnesses called by the Reporting Party may not provide their perspective on what they feel the appropriate decision or outcome(s) in the case should be.
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The Appeal Board may request that a witness for the Reporting Party return at a later point in the Appeal Review for further clarification.
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Section #6 repeats until all of the Reporting Party’s Witnesses have participated.
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Information is presented by the Reporting Party solely about the new evidence in their appeal.
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The Appeal Board may ask questions about the new evidence presented in the Reporting Party's appeal.
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The Responding Party, through the chairperson, will be allotted time for questions of the Reporting Party.
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If applicable, the Reporting Party will call their witnesses individually.
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Each witness called by the Reporting Party will be allotted time to make a verbal statement regarding the new evidence submitted in the appeal or response.
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At the conclusion of the statement shared by the Reporting Party’s Witness, the Reporting Party will be allotted time to question the Reporting Party’s Witness.
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At the conclusion of the Reporting Party’s questions for their witness, the Responding Party, through the chairperson, will be allotted time to question the Reporting Party’s Witness.
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At the conclusion of the Responding Party’s questions for the witness called by the Reporting Party, the Appeal Board will ask any questions they have of the witness.
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Witnesses called by the Reporting Party may provide what they know directly about and/or what they have been told about the new evidence as it relates to the submitted appeal or response. Witnesses called by the Reporting Party may not provide their perspective on what they feel the appropriate decision or outcome(s) in the case should be.
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The Appeal Board may request that a witness for the Reporting Party return at a later point in the Appeal Review for further clarification.
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Section #8 repeats until all of the Reporting Party’s Witnesses have participated.
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Information is presented by the Responding Party solely about their response to the new evidence in the Reporting Party’s appeal.
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The Appeal Board may question the Responding Party about their response to the new evidence in the Reporting Party’s appeal.
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The Reporting Party, through the chairperson, will be allotted time for questions of the Responding Party.
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If applicable, the Responding Party will call their witnesses individually.
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Each witness called by the Responding Party will be allotted time to make a verbal statement regarding the new evidence submitted in the appeal or response.
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At the conclusion of the statement shared by the Responding Party’s Witness, the Responding Party will be allotted time to question the Responding Party’s Witness.
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At the conclusion of the Responding Party’s questions for their witness, the Reporting Party, through the chairperson, will be allotted time to question the Responding Party’s Witness.
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At the conclusion of the Reporting Party’s questions for the witness called by the Responding Party, the Appeal Board will ask any questions they have of the witness.
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Witnesses called by the Responding Party may provide what they know directly about and/or what they have been told about the new evidence as it relates to the submitted appeal or response. Witnesses called by the Responding Party may not provide their perspective on what they feel the appropriate decision or outcome(s) in the case should be.
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The Appeal Board may request that a witness for the Responding Party return at a later point in the Appeal Review for further clarification.
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Section #10 repeats until all of the Responding Party’s Witnesses have participated.
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Any Reporting Party Witnesses asked by the Appeal Board to return later will be brought in individually, if applicable.
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The Reporting Party may ask questions, followed by the Responding Party through the chairperson, and then Appeal Board. This is their opportunity to ask any remaining questions they have of the Reporting Party Witness.
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The Reporting Party Witnesses will then be dismissed from the Sexual Misconduct Appeal Review.
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Section #11 repeats until all of the Reporting Party’s Witnesses have participated.
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Any Responding Party Witnesses asked by the Appeal Board to return later will be brought in individually, if applicable.
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The Responding Party may ask questions of their witness, followed by the Reporting Party through the chairperson, and then Appeal Board. This is their opportunity to ask any remaining questions they have of the Responding Party Witness.
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The Responding Party Witnesses will then be dismissed from the Sexual Misconduct Appeal Review.
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Section #12 repeats until all of the Responding Party’s Witnesses have participated.
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The Appeal Board may ask final questions of the Responding Party and/or Reporting Party.
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The Responding Party, Reporting Party, and Support Persons will leave; the Appeal Board will enter closed deliberation.
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The Appeal Board will vote to determine if the new evidence and any response(s) are significant enough to alter the decisions made at the Sexual Misconduct Case Review, considering the totality of the evidence.
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If the Appeal Board determines that the totality of the evidence, including the new evidence and response(s), is not significant enough to alter the decision made at the Sexual Misconduct Case Review, the decision rendered at the Sexual Misconduct Case Review will stand.
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If the Appeal Board determines that the totality of the evidence, including the new evidence and response(s), is significant enough to alter the decision made at the Sexual Misconduct Case Review, they will render the decision of whether or not the Responding Party is responsible for violating policy and proceed to step 16.A or 16.B.
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If the Appeal Board finds the Responding Party not responsible for violating all policies, they will proceed to Step 18.
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If the Appeal Board finds the Responding Party responsible for violating policy, they will proceed to step 17.
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The Appeal Board will render outcomes for the case. If an appeal was only submitted by the Responding Party, the Appeal Board may not assign more severe outcomes than those assigned at the Sexual Misconduct Case Review.
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The Responding Party and the Reporting Party will be notified of the outcome of the Sexual Misconduct Appeal Review in accordance with the procedures listed in the Sexual Misconduct Accountability Process.
Procedures – Sexual Misconduct Appeal Review: Multiple Grounds for Appeal
If both parties submit an appeal based only on procedural irregularity and/or conflict of interest or bias that affected the outcome, the Appeal Board will first review appeal submissions regarding procedural irregularity and then appeal submissions regarding conflict of interest or bias, in the order in which they were received by OSARP.
If an appeal is based on multiple grounds, submitted by one or both parties, OSARP will schedule an Appeal Review where the Appeal Board will first evaluate the portions of the appeal on procedural irregularity, if applicable, then on conflict of interest or bias, if applicable, and then on new evidence, if applicable, proceeding as outlined in the related sections of the Handbook.
Information on Disability Accommodations in the Sexual Misconduct Accountability Process (SMAP)
JMU and OSARP are committed to providing programs that are equally inclusive and accessible to all participants. Participants may request accommodations in accordance with JMU Policy 1331. If you are a student who needs accommodation of a disability to support your participation in an OSARP process, submit your accommodation request to ODS via the Accommodate portal available in MyMadison (see also https://www.jmu.edu/ods/getting-started/index.shtml). You may send an email to the Office of Disability Services (ODS) at disability-svcs@jmu.edu asking for an expedited review in light of the timelines associated with the OSARP process. ODS and OSARP may consult to identify potentially reasonable accommodations to support effective participation in the OSARP process. ODS will communicate with OSARP about the identified accommodations and copy you on the written notice of accommodations. All requests must be communicated to OSARP at least three business days prior to a process, so please contact the Office of Disability Services immediately. For others who may need accommodations, contact the appropriate unit as indicated in JMU policy 1331.