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Rather, the scope of the "offered to verify consent" exception is determined in part by a recipient's definition of consent, which could be broad or slender at the recipient's discretion. Because of the overall flexibility recipients have beneath these closing restrictions to adopt a definition of consent, the Department disagrees that the scope of the 2nd exception to the rape shield protections is far too wide or favors respondents. The Department believes these provisions function regularly and logically as component of the § 106.45 grievance procedure, below which all proof is evaluated for whether it is specifically similar to the allegations, evidence summarized in the investigative report should be appropriate, and proof (and queries) presented in front of, and regarded as by, the decision-maker ought to be relevant. As observed previously mentioned, this indicates that where § 106.45(b)(5)(vi) calls for review and inspection of proof "directly relevant to the allegations" that universe of proof is not screened for relevance, but fairly is calculated by whether or not it is "directly relevant to the allegations." However, the investigative report need to Start Printed Page 30354 summarize "relevant" proof, and so at that position the rape protect protections would apply to preclude inclusion in the investigative report of irrelevant evidence. The remaining polices allow exchange of all proof "directly linked to the allegations in a formal complaint" during the investigation, but demand the investigator to only summarize "relevant" proof in the investigative report (which would exclude sexual background facts considered by these ultimate regulations to be "not relevant"), and call for the choice-maker to objectively examine only "relevant" evidence all through the hearing and when reaching the willpower pertaining to accountability.

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