A college’s sexual harassment grievance process must provide for a live hearing with cross-examination of parties and witnesses. The parties may bring an advisor of their choice to conduct the cross-examination. Should a party not have an advisor, the college must provide an advisor at no cost. Parties must be notified of a scheduled hearing at least ten (10) instructional days prior to the hearing through an approved method of notification that shall include the date, time, and location of the hearing.
At the live hearing, advisors of the parties shall cross-examine parties and witnesses who have provided information relevant to the complaint or response thereto. The decision-maker does not have to allow witnesses who are solely character witnesses. The decision-maker must allow the advisor for each party to ask the other party and any witnesses relevant questions and follow-up questions. Such cross-examination must be conducted directly, orally, and in real time by the party’s advisor of choice and may occur with the parties in separate rooms using technology that enables participants to simultaneously see and hear the person answering questions. Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a question while under cross-examination or otherwise, the decision-maker must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
Questions for cross-examination may be presented in advance to the decision-maker so that relevancy may be determined prior to the hearing. However, providing cross-examination questions in advance does not preclude the advisor(s) from asking additional questions not provided in advance to the decision-maker. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
At the request of either party, the college must provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decisionmaker and parties to simultaneously see and hear the party or the witness answering questions. An audio or visual recording or a transcript of the hearing must be created and made available for review and inspection.