Relevance

The new regulations contain requirements about relevant evidence. But they do not explicitly define the term relevance. Generally, the regulations require that investigators and decision-makers objectively evaluate all relevant evidence, inculpatory and exculpatory, whether obtained by the IHE from a party or another source. (p. 30105).
A policy statement from DOE explains:
“The § 106.45 grievance process is designed to bring all relevant evidence concerning sexual harassment allegations to the decision-maker’s attention so that a determination regarding responsibility is reached fairly and reliably.” (p. 30226).

1. What do the words “inculpatory” and “exculpatory” mean?

   1. Title IX does not define these words.
   2. Black’s Law Dictionary definitions:
      1. inculpatory evidence: evidence showing or tending to show one’s involvement in a crime or wrong.
      2. exculpatory evidence: evidence tending to establish a criminal defendant’s innocence.

2. What does “relevance” mean?

   1. Merriam Webster Definition
      1. affording evidence tending to prove or disprove the matter at issue or under discussion.
   2. Legal Definition in Federal Rules of Evidence
      1. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Federal Rule of Evidence Rule 401.
   3. Relevance under Title IX
      1. Title IX regulations do not define relevance. But the preamble explains relevant evidence as “evidence pertinent to proving whether facts material to the allegations under investigation are more or less likely to be true.” (p. 30294). 33
      2. The following guidance on relevance also appears in the preamble:
         1. Different Evidence for Different Circumstances: Type and extent of evidence available will differ based on the facts of each incident. (p. 30247).
         2. The final regulations do not define relevance, and the ordinary meaning of the word should be understood and applied. (p. 30247, fn. 1018).
         3. A layperson’s determination that a question is not relevant is made by applying logic and common sense, but not against a backdrop of legal expertise. (p. 30343).
         4. Objective or corroborating evidence is not required. Some situations have no eyewitnesses and completing plausible narratives. Such situations still must be evaluated through objective evaluation of relevant evidence regardless of whether the available relevant evidence consists of the parties’ own statements, statements of witnesses, or other evidence. (p. 30247).

3. Title IX excludes certain types of evidence and questions as not relevant:

   1. A. Rape Shield Provisions
      1. All questions and evidence of a complainant’s sexual predisposition are irrelevant, with no exceptions;
      2. Questions and evidence about a complainant’s prior sexual behavior are irrelevant, unless:
         1. The questions and evidence are offered to prove that someone other than the respondent committed the conduct alleged; or
         2. 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.
            § 106.45(b)(6)(i).

4. IV. What do the terms sexual predisposition and prior sexual behavior mean?

   1. The regulations do not define these terms. But the preamble explains that Title IX’s rape shield provisions are patterned after Federal Rule of Evidence 412. And the preamble references Rule 412’s Advisory Committee Notes to explain the scope of the rape shield provisions:
      1. Sexual behavior connotes all activities that involve actual physical conduct, i.e., sexual intercourse and sexual contact, or that imply sexual intercourse and sexual contact, including the victim’s use of contraceptives, evidence of the birth of a child, and sexually transmitted diseases. Sexual behavior also includes “the behavior of the mind.”
         1. Behavior of the mind includes “fantasies or dreams.” Federal Rule of Evidence 412; Herchenroeder v. Johns Hopkins Univ. Applied Physics Lab., 171 F.R.D. 179, 181 (D. Md. 1997).
         2. Sexual predisposition includes the victim’s “mode of dress, speech, or lifestyle.”
   2. (p. 30350, fn. 1343 citing Advisory Committee Notes, Federal Rule of Evidence 412).

5. Bar Against Other Types of Evidence

   1. A. Title IX bars the following types of evidence as irrelevant or otherwise excluded from consideration in a grievance process:
      1. information protected by a legally recognized privilege, unless waived, § 106.45(b)(1)(x);
      2. any party’s medical, psychological, and similar records unless the party has given voluntary, written consent, § 106.45(b)(5)(i); and
      3. statements of a party or witness who has not been subjected to cross-examination at a live hearing. § 106.45(b)(6)(i).(p. 30293, fn. 1147).

6. Major Areas with Relevance Considerations

   1. Grievance process generally
   2. Investigation
   3. Hearing/cross-examination
   4. Appeal
   5. Training
   6. Effect of IHE violation of relevance rules

7. Excerpts from New Title IX Rules

   1. Grievance Process Generally
      1. The grievance process must require an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence – and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness. § 106.45(b)(1)(ii).
   2. Investigation
      1. Parties must have equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including: (1) the evidence upon which the IHE does not intend to rely in reaching a determination regarding responsibility and (2) inculpatory or exculpatory evidence whether obtained from a party or other source. § 106.45(b)(3)(vi). [emphasis added]
         1. “Directly Related” does not mean the same thing as “Relevant”: “Directly Related” may encompass a broader universe of evidence than evidence that is “relevant.” (p. 30304).
         2. “Directly Related” Definition: The Department declines to define certain terms in this provision such as . . . “evidence directly related to the allegations,” as these terms should be interpreted using their plain and ordinary meaning.” (p. 30304).
         3. Investigator’s production of evidence: investigator must provide all evidence that relates1 to the allegations and should not screen out related evidence that the investigator does not believe is relevant. (p. 30304).
            1. But, an IHE has some discretion to determine what evidence is directly related to the allegations in a formal complaint. (p. 30428).
         4. Redaction: Investigator may redact information that is not directly related to the allegations or that is otherwise barred from use under § 106.45. (p. 30304).
      2. Investigator must create an investigative report that fairly summarizes relevant evidence and send the report to each party and advisor at least 10 days prior to hearing. § 106.45(b)(3)(vii).
         1. Relevant Evidence Only: All evidence summarized in the investigative report must be relevant. (p. 30304).
         2. Redaction: May permit or require investigator to redact from the investigative report information that is not relevant. (p. 30304).
         3. Corrections: If a party disagrees with an investigator’s relevance determination, the party can make that argument in the written response to the investigative report and to the decision-maker at hearing. The decision-maker is obligated to objectively evaluate all relevant evidence and the parties have the opportunity to argue about what is relevant. (p. 30249).
      3. No “Gag Orders”: IHE may not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence. § 106.45(b)(5)(iii).
   3. Hearing and Cross-Examination
      1. At hearing, the decision-maker must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. § 106.45(b)(6)(i).
      2. Only relevant cross-examination and other questions may be asked of a party or witness. § 106.45(b)(6)(i).
      3. Before a party or witness answers a cross-examination or other question, the decision-maker must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. § 106.45(b)(6)(i).
         1. A decision-maker need not give a lengthy or complicated explanation of a relevancy determination; it is sufficient, for example, for a decision-maker to explain that a question is irrelevant because the question calls for prior sexual behavior information without meeting one of the exceptions in rule, or because the question asks about a detail that is not probative of any material fact concerning the allegations. (p. 30343).
      4. Decision-maker is under an obligation to objectively evaluate all relevant evidence, both inculpatory and exculpatory, and must therefore independently reach a determination regarding responsibility without giving deference to the investigative report. (p. 30308).
      5. Rules of Procedure and Decorum:
         1. IHE may adopt rules that specify a process for making objections to the relevance of questions and evidence, place reasonable time limitations on a hearing, and so forth. (p. 30361).
            1. Or IHE may adopt a rule preventing parties and advisors from challenging relevancy determinations (after receiving the decision-maker’s explanation) during the hearing. (p. 30343).
         2. IHE may adopt and apply codes of conduct and rules of decorum to ensure that parties and advisors conduct cross-examination in a respectful and non-abusive manner, and the decision-maker remains obligated to ensure that only relevant questions are posed during cross-examination. (p. 30340). 38
            1. IHE may also educate its community about what cross-examination during a Title IX grievance process will look like. (p. 30316).
         3. IHE may adopt rules of order or decorum to forbid badgering a witness and may fairly deem repetition of the same question to be irrelevant. (p. 30248).
      6. Rules of Evidence:
         1. IHE may not adopt evidentiary rules of admissibility that contravene those evidentiary requirements prescribed under § 106.45. For example, an IHE may not adopt a rule excluding relevant evidence because it may be unduly prejudicial, concern prior bad acts, or concern character evidence. (p. 30248).
            1. Where evidence is relevant but concerns a party’s character or prior bad acts, the decision-maker may objectively evaluate that evidence by analyzing whether it warrants a high or low level of weight or credibility. (p. 30337).
         2. IHE may not adopt rules barring certain types of relevant evidence, e.g. lie detector test results or rape kits. (p. 30294).
         3. Where evidence is duplicative of other evidence, a recipient may deem the evidence not relevant. (p. 30361).
   4. Appeal
      1. Grounds for appeal may involve relevance.
         1. Parties may appeal erroneous relevance determinations, if they affected the outcome. (p. 30343).
         2. Procedural irregularity, as grounds for appeal, could include an IHE’s failure to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence. (p. 30249).
   5. Training
      1. IHE must ensure that decision-makers receive training on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant. § 106.45(b)(1)(iii).
      2. IHE must ensure that investigators receive training on issues of relevance to create investigative report that fairly summarizes relevant evidence. § 106.45(b)(1)(iii).
   6. Effect of IHE violation of relevance rules
      1. Upon review, OCR may independently determine that evidence deemed relevant by the decision-maker was in fact irrelevant and should not have been relied upon. Such a violation may result in an IHE’s determination regarding responsibility being set aside by OCR. (p. 30221).