ATIXA Issues a New Position Statement on Consideration of Pattern Evidence in Campus Sexual Misconduct Allegations

BERWYN, Pa., July 18, 2018 /PRNewswire/ -- The ATIXA Leadership Team and Advisory Board have released a new position statement this week, Consideration of Pattern Evidence in Campus Sexual Misconduct Allegations. ATIXA issues this position statement to provide guidance to the field on the consideration of pattern evidence in sexual misconduct investigations and resolutions. Contradictory research, recent court opinions, and common questions regarding the existence and admission of pattern evidence suggest a need for clearer guidance for the field. Below is an excerpt from the position statement:

First, it is important to establish what is meant when a pattern is referenced. ATIXA defines an alleged pattern to include allegations or other evidence that one person has engaged in two or more substantially similar incidents or behaviors toward one or more targets. A confirmed pattern exists when a preponderance of the evidence supports that the alleged acts actually occurred. The similarity can be in the type of act, commonality of chosen victims, location, consistency of premeditation, and/or signature or modus operandi (method of operation) of the perpetration.

Second, it is important to recognize that under Title IX, an investigation can occur within three different frameworks: incident, pattern, or climate/culture. When one behavior by one individual is being investigated, you are investigating an incident. When more than one similar behavior by one individual is being investigated, you are investigating a possible pattern. And, when an entity, institution, department, and/or the actions of multiple individuals are being investigated, you are usually investigating the potential for a hostile climate or culture.

This taxonomy of investigation types is crucial to understand, because it is important to recognize the framework for your investigation at the outset, when possible. You may be working with more than one framework at a time, and, as an investigation unfolds, you may need to shift frameworks. What starts with an investigation of an incident can become an investigation of a pattern or climate (or vice-versa) as you learn more and more incidents become known. Or, you may start off thinking you have a pattern, but it turns out to be only an incident. Similarly, initial information about a pattern can turn into a larger investigation of a climate, and vice-versa.

While certainly an inexact science, recognizing patterns within the evidence of good faith reports involving the same responding party requires thorough investigation. Only through careful investigative methods is one able to identify repeat elements or details, if those details are sufficiently similar to create a pattern, represent a method or modus operandi, and/or, when considered in the aggregate, evidence an overarching scheme. This is pattern evidence. If pattern evidence is identified, you consider this evidence in two ways: in evaluating the information obtained in the current report (to aid in your credibility assessments and/or to aid in determining whether the evidence makes the current reported misconduct more likely to have occurred) and in assessing appropriate sanctions.

OCR alluded to pattern behavior in the 2001 guidance. For example, in discussing pattern as a basis for finding a hostile environment, OCR said to consider "[t]he type, frequency, and duration of the conduct. In most cases, a hostile environment will exist if there is a pattern or practice of harassment, or if the harassment is sustained and nontrivial."

Read the position statement in its entirety.

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SOURCE Association of Title IX Administrators