SEXUAL MISCONDUCT POLICY

Appendix A to Hobart and William Smith Colleges Sexual Misconduct Policy

PROCEDURES FOR RESOLVING A SEXUAL MISCONDUCT COMPLAINT AGAINST A STUDENT

I. INTRODUCTION

The Colleges are committed to providing a safe and non-discriminatory environment for all members of the HWS community. The Colleges prohibit Sexual and Gender-Based Harassment, Sexual Assault, Sexual Exploitation, Intimate Partner Violence, Physical Assault, Stalking, and Retaliation (“Prohibited Conduct”). These forms of Prohibited Conduct are defined in the Colleges’ Sexual Misconduct Policy (“the Policy”). This accompanying Appendix (“the Procedures”) outlines the procedures for resolving Complaints of Sexual Misconduct against a student. The Colleges use prompt and equitable procedures to assess, investigate and adjudicate reports of Prohibited Conduct and to impose sanctions as appropriate and necessary.

II. NOTICE TO THE COMPLAINANT AND RESPONDENT OF ACTION BY THE COLLEGES

The Title IX Coordinator will promptly inform the Complainant of any action(s) undertaken by the Colleges to respond to a safety or well-being concern for the Complainant or the HWS community. The Colleges will promptly inform the Complainant and Respondent of a decision to proceed with an investigation.

The parties will be notified of their right to choose and consult with an Advisor of their choice. The Advisor may be any person, including an attorney, who is not otherwise a party or witness to the reported incident(s). Each party may be accompanied by their respective Advisor at any meeting or proceeding under this Policy and Procedures. While the Advisor may provide support and advice to the party at any meeting and/or proceeding, they may not speak on behalf of the party or otherwise participate in, or in any manner disrupt, such meetings and/or proceedings. At any meeting and/or proceeding the Colleges’ Title IX Coordinator and/or attorney may also present.

III. COMPLAINT RESOLUTION PROCESS

These Procedures offer two forms of resolution of Complaints of Prohibited Conduct: (1) Informal Resolution, which includes a variety of informal options for resolving Complaints and (2) Formal Resolution, which involves an investigation and adjudicatory hearing.

A. Informal Resolution

The Complainant or Respondent may seek Informal Resolution in place of an investigation and Formal Resolution. Informal Resolution will not be used to impose disciplinary action against the Respondent. The Title IX Coordinator or designee has the discretion to determine whether the nature of the reported conduct is appropriate for Informal Resolution, to determine the type of Informal Resolution that may be appropriate in a specific case, and to refer a report for Formal Resolution at any time. In addition, Informal Resolution may not be available where the Title IX Coordinator has determined that one or more of the safety factors is present. Informal Resolution is not available in cases involving Sexual Assault.

Participation in Informal Resolution (including any specific form of Informal Resolution) is voluntary. The Colleges will not compel a Complainant or Respondent to engage in Informal Resolution, will not compel the parties to directly confront each other, and will allow a Complainant or Respondent to withdraw from Informal Resolution at any time. The Colleges may decline the request for Informal Resolution in any particular case and may terminate an ongoing Informal Resolution process at any time. Pursuing Informal Resolution does not preclude later use of Formal Resolution if the Informal Resolution fails to achieve a resolution acceptable to the parties and the Colleges. Where the Complainant or the Respondent withdraws from Informal Resolution or Informal Resolution is otherwise terminated for any reason, any statements or disclosures made by the parties during the course of the Informal Resolution may be considered in a subsequent investigation and Formal Resolution.

Informal Resolution agreements may involve a host of interventions and remedies, such as actions designed to maximize access to educational, extracurricular, and/or HWS employment activities; increased monitoring, supervision, and/or security at locations or activities where the alleged Prohibited Conduct occurred or is likely to reoccur; targeted or broad-based educational programming or training for relevant individuals or groups; academic and/or HWS housing modifications; workplace modifications for employees; restorative remedies; and/or any other remedial or protective measures that can be tailored to the involved individuals to achieve the goals of the Policy.

Any form of Informal Resolution and any combination of interventions and remedies may be utilized. If an agreement acceptable to the Colleges, the Complainant, and the Respondent is reached through Informal Resolution, the terms of the agreement are implemented and the matter is resolved and closed. The matter may be referred for Formal Resolution if: an agreement is not reached, a Complainant requests investigation, either party withdraws their agreement to participate in Informal Resolution, or a Respondent fails to comply with the terms of the Informal Resolution.

Typically Informal Resolution will be completed within thirty (30) calendar days. The Title IX Coordinator will maintain records of all reports referred for Informal Resolution.

B. Formal Resolution

Formal Resolution is commenced when:

  • A Complainant reports that a student has engaged in one or more instances of Prohibited Conduct and requests, at any time, an investigation and disciplinary action;
  • The Colleges are aware of allegations of one or more instances of Prohibited Conduct;
  • Informal Resolution does not resolve a reported incident of Prohibited Conduct; or
  • At the conclusion of the Intake Assessment process, the Title IX Coordinator has determined, based upon a review of the totality of the circumstances and guided by a consideration of the safety factors, that investigation of the reported conduct is necessary to ensure the safety and well-being of the Complainant and/or other members of the HWS community, notwithstanding the Complainant’s request that personally-identifying information not be shared with the Respondent, that no investigation be pursued, and/or that no disciplinary action be taken.

1. Relevance of Evidence

a. Prior or Subsequent Conduct

Prior or subsequent conduct of the Respondent may be considered in determining pattern, knowledge, intent, motive, or absence of mistake. For example, evidence of a pattern of Prohibited Appendix A to Hobart and William Smith Colleges Sexual Misconduct Policy Conduct by the Respondent, either before or after the incident in question, regardless of whether there has been a prior finding of a Policy violation, may be deemed relevant to the determination of responsibility for the Prohibited Conduct under investigation. The determination of relevance of the evidence will be based on an assessment of whether the previous or subsequent conduct was substantially similar to the conduct under investigation or indicates a pattern of similar Prohibited Conduct. The Title IX Coordinator will determine the relevance of this information and both parties will be informed if evidence of prior or subsequent conduct is deemed relevant.

b. Prior Sexual History

The sexual history of a Complainant or Respondent will never be used to prove character or reputation. Subject to federal and state law, evidence related to the prior sexual history of either of the parties is generally not relevant to the determination of a Policy violation and will be considered only in limited circumstances. For example, prior sexual history may be relevant to explain the presence of a physical injury or to help resolve another question raised by the report. The Title IX Coordinator will determine the relevance of this information and both parties will be informed if evidence of prior sexual history is deemed relevant.

2. Investigation

Whenever Formal Resolution is commenced, the Title IX Coordinator will designate one or more Investigators from the Colleges and/or an experienced external investigator to conduct a prompt, thorough, fair, and impartial investigation. All Investigators will receive annual training on issues related to Prohibited Conduct and on how to conduct an investigation that is trauma-informed, fair and impartial, provides parties with notice and a meaningful opportunity to be heard, and protects the safety of Complainants and the HWS community while promoting accountability.

a. Notice of Investigation

The Title IX Coordinator will notify the Complainant and the Respondent, in writing, of the commencement of an investigation. Such notice will (1) identify the Complainant and the Respondent; (2) specify the date, time (if known), location, and nature of the alleged Prohibited Conduct; (3) identify potential Policy violation(s); (4) identify the Investigator; (5) include information about the Student Bill of Rights; (6) inform the parties of the right to choose and consult with an Advisor, who can accompany the parties to any meeting or hearing under these Policy and Procedures; (7) explain the prohibition against Retaliation; (8) instruct the parties to preserve any potentially relevant evidence in any format; (9) inform the parties how to challenge participation by the Investigator on the basis of bias or a conflict of interest; and (10) provide a copy of the Policy and these Procedures.

b. Presumption of Non-Responsibility and Participation by the Parties

The investigation is a neutral fact-gathering process. The Respondent is presumed to be not responsible; this presumption may be overcome only where the adjudicator(s) concludes that there is sufficient evidence, by a Preponderance of the Evidence, to support a finding that the Respondent violated the Policy. Neither party is required to participate in the investigation or any form of resolution under these Procedures, and the adjudicator(s) will not draw any adverse inference from a decision by either of the parties not to participate.

c. Timing of Investigation

The investigation typically will be completed within thirty (30) calendar days. This period may be extended to account for a previous attempt, if any, at Informal Resolution, or for other good cause, as described in the section on Timeframe for Completion of Investigation and Adjudication; Extension for Good Cause. Any extension, other than for Informal Resolution, and the reason for the extension, will be shared with the parties in writing.

d. Overview of Investigation

During the investigation, the parties will have an equal opportunity to be heard, to submit information and corroborating evidence, to recommend witnesses who may have relevant information, and to submit questions that they believe should be directed by the Investigator to each other or to any witness. The Investigator will notify and seek to interview separately the Complainant, the Respondent, and third-party witnesses, and will gather other relevant and available evidence and information, including, without limitation, electronic or other records of communications between the parties or witnesses (via voice-mail, text message, email and social media sites), photographs (including those stored on computers and smartphones), and medical records (subject to the consent of the applicable party).

e. Site Visit(s)

The Investigator may visit relevant sites or locations and record observations through written, photographic, or other means.

f. Expert Consultation(s)

The Investigator may consult medical, forensic, technological or other experts when expertise on a topic is needed in order to achieve a fuller understanding of the issues under investigation.

g. Preliminary Investigation Report; Review and Response Period

At the conclusion of the investigation, the Investigator will prepare a Preliminary Investigation Report summarizing the information gathered and outlining the contested and uncontested information. The Preliminary Investigation Report will not include any findings or credibility assessments, which are reserved for the adjudicator, but may note observations relevant to credibility. The Title IX Coordinator or designee will review the Preliminary Investigation Report and has the discretion to determine the relevance of any proffered evidence and to include or exclude certain types of evidence or to defer those decisions to the adjudicator(s). The Title IX Coordinator may redact statements of personal opinion, rather than direct observations or reasonable inferences from the facts, or statements as to any party’s general reputation for any character trait. The Complainant and the Respondent will have an opportunity to review the Preliminary Investigation Report, respond to it in writing, meet with the Investigator, submit additional comments and information to the Investigator, identify any additional witnesses or evidence for the Investigator to consider, and submit any further questions that they believe should be directed by the Investigator to the other party or to any witness. The Investigator will designate a reasonable time for this review and response by the parties, not to exceed seven (7) calendar days. The parties may submit information, witness names and any evidence during the investigation or designated review and response period. In the absence of good cause, information discoverable through the exercise of due diligence that is not provided to the Investigator during the investigation or designated review and response period will generally not be considered in the determination of responsibility for a viola

h. Final Investigation Report

Unless there are significant additional investigative steps required as identified by the Investigator, within seven (7) calendar days after receipt and consideration of any additional comments, questions and/or information submitted by the parties during the designated review and response period, the Investigator will prepare a Final Investigation Report. The Investigator will deliver the Final Investigation Report to the Title IX Coordinator. The Title IX Coordinator will notify both parties, simultaneously, that the Final Investigation Report is complete and available for review.

The Title IX Coordinator will review the Final Investigation Report to determine whether, taking all the information in the report in the light most favorable to the Complainant, an adjudicator could make a finding that a Policy violation occurred. Where the Title IX Coordinator, taking all the information in the report in the light most favorable to the Complainant, determines that an adjudicator could not make a finding that a Policy violation occurred, the Complainant and Respondent will be notified that the Complaint is closed. The Complainant or Respondent may submit to the Title IX Coordinator a written appeal explaining why they contest the Complaint closure. The Title IX Coordinator will ensure that the Complainant and Respondent have an opportunity to review and respond in writing to any such statement of appeal. The Title IX Coordinator will provide the Final Investigation Report, together with any statements by the parties, to the Appeal Panel (1) who will issue a decision on the appeal within seven (7) calendar days. If the Title IX Coordinator determines that an adjudicator could by a preponderance of the evidence make a finding that a policy violation occurred, a charge will be drafted and the Complainant and Respondent will be informed in writing.

3. Adjudication

The Colleges have two adjudication options: (1) Administrative Conference before the Associate Dean of Students or other appropriate administrator designated by the Title IX Coordinator and (2) Hearing by a single external decision-maker or panel of external decision-maker(s). All persons serving as an adjudicator must be impartial and free from actual bias or conflict of interest. All adjudicators are trained at least annually on non-discrimination; the dynamics of sexual misconduct; the factors relevant to a determination of credibility; the appropriate trauma-informed manner in which to receive and evaluate sensitive information; the manner of deliberation; evaluation of consent and incapacitation; the application of the preponderance of the evidence standard; sanctioning; and the Colleges’ Sexual Misconduct Policy and these Procedures.tion of the Policy, and will not be considered by the adjudicator(s) or the Appeal Panel.

a. Administrative Conference

Either party may request an Administrative Conference or the Title IX Coordinator may determine that such a conference is appropriate. In an Administrative Conference, the Title IX Coordinator’s designee will meet with the parties to determine responsibility and sanction, if appropriate. The Final Investigative Report will serve as the primary evidence in making a determination of responsibility. An Administrative Conference is particularly appropriate when the Respondent has admitted to the Policy violation(s), or there is no discernible dispute in the relevant facts of the Final Investigative Report. The process in an Administrative Conference is likely to be less formal in nature. The Title IX Coordinator has ultimate discretion to determine whether resolution by an Administrative Conference is appropriate.

b. Hearing by External Adjudicator(s)

An external adjudicator is an individual or panel selected by the Title IX Coordinator or designee who is a neutral person(s) external to the Colleges trained to conduct a Hearing according to the Policy and these Procedures.

c. Notice and Timing of Hearing

Typically, a Hearing will be held within forty-five (45) calendar days from the date of the Notice of Investigation, subject to extension for good cause. The Title IX Coordinator will notify the parties in writing of the specific charge, the date, time, and location of the Hearing, the name(s) of the adjudicators, and how to challenge participation by any adjudicator(s) for bias or conflict of interest.

d. Postponement of Hearing

The Colleges may postpone the hearing at the discretion of the Title IX Coordinator. Good cause for extension may include the unavailability of the parties, the timing of semester breaks or HWS holidays, or other extenuating circumstances. Any extension, including the reason for the extension, will be shared with the parties in writing. The Complainant or the Respondent may seek to postpone the hearing. Permission to postpone a Hearing may be granted provided that the request to do so is based on a compelling emergency and communicated to the Title IX Coordinator prior to the time of the Hearing.

e. Acceptance of Responsibility

The Respondent may, at any time, elect to resolve the Formal Resolution process by accepting responsibility for the Prohibited Conduct, in which case the Title IX Coordinator will refer the matter for Administrative Conference.

f. Hearing Format

The Hearing is an opportunity for the parties to address the adjudicator in person about issues relevant to the finding of responsibility. The parties may address any information in the Final Investigation Report and the supplemental statements submitted in response to the Final Investigation Report. Each party has the opportunity to be heard, to identify witnesses for the adjudicator’s consideration, and to respond to any questions of the adjudicator. The parties may not directly question each other or any witness, although they may proffer questions for the adjudicator, who may choose, in their discretion, to pose appropriate and relevant questions to the parties and/or any witnesses. A typical hearing may include brief opening remarks by the Complainant and/or Respondent, with follow-up questions posed by the adjudicator, information presented by the parties or witnesses deemed relevant by the adjudicator, with follow-up questions of the parties or witnesses by the adjudicator, and brief concluding remarks by the Complainant and Respondent.

g. Participation in Hearing

Both the Complainant and the Respondent have a right to be present at the Hearing. Either party may be accompanied in the Hearing by an Advisor of their choice and must provide the name of their Advisor to the Title IX Coordinator at least three (3) days prior to the Hearing.

Either party may also request alternative methods for participating in the Hearing that do not require physical proximity to the other party, including participating through electronic means. This request should be submitted to the Title IX Coordinator at least three (3) calendar days prior to the Hearing.

If, despite being notified of the date, time, and location of the Hearing, either party is not in attendance, the Hearing may proceed and applicable sanctions may be imposed. Neither party is required to participate in the Hearing in order for the Hearing to proceed.

h. Participation by Witnesses

The parties may submit to the Title IX Coordinator a list of witnesses they believe have relevant information to the outcome of the hearing. The adjudicator will review the parties’ requested witnesses and consider any other witnesses. The adjudicator has discretion to determine which witnesses are relevant and may decline to hear from witnesses where they conclude that the information is not necessary for the review. Witnesses will only be permitted inside the Hearing location during their own testimony.

i. Post-Finding Written Impact and Mitigation Statements

Where there is a finding of responsibility on one or more of the charges, both parties may submit a written statement to the Title IX Coordinator for consideration by the adjudicator in determining an appropriate sanction. The Complainant may submit a written statement describing the impact of the Prohibited Conduct and expressing a preference about the sanction(s) to be imposed. The Respondent may submit a written statement explaining any factors that the Respondent believes should mitigate or otherwise be considered in determining the sanctions(s) imposed. The parties may submit their statements to the Title IX Coordinator prior to the hearing but no later than 24 hours after the close of the Hearing. The Title IX Coordinator will ensure that each of the parties has an opportunity to review any statement submitted by the other party. The Title IX Coordinator will only provide such statement(s) to the adjudicator upon a finding of responsibility.

j. Sanctions

Where a student is found responsible for a violation of the Sexual Misconduct Policy, the adjudicator, in consultation with the Associate Dean of Students or other appropriate administrator (designated by the Title IX Coordinator prior to the Hearing) will determine the appropriate sanction(s). The Colleges may impose any of the below possible sanctions:

  • Probation;
  • Conduct warning;
  • Suspension;
  • Expulsion/permanent separation;
  • Organizational sanctions including probation and rescinding recognition; and/or
  • Any other educational and/or remedial measures to eliminate, prevent or address the Prohibited Conduct.

In general:

  • Any student who is found responsible for Sexual Assault (involving sexual intercourse) will receive a sanction ranging from suspension to expulsion.
  • Any student who is found responsible for Sexual Assault (involving sexual contact) will receive a sanction ranging from conduct warning to expulsion.
  • Any student who is found responsible for any other form of Prohibited Conduct will receive a sanction ranging from conduct warning to expulsion.
  • When any group (student group, student organization or team) is determined to have acted in violation of this Policy, the group will receive a sanction ranging from probation to loss of recognition or status.

The adjudicator may broaden or lessen any range of recommended sanctions based on mitigating or aggravating circumstances. A single sanction or a combination of sanctions may be issued. In considering the appropriate sanction within the recommended outcomes, the adjudicator will consider the following factors:

  • the Respondent’s prior discipline history;
  • how the Colleges have sanctioned similar incidents in the past;
  • the nature and violence of the conduct at issue;
  • the impact of the conduct on the Complainant;
  • the impact of the conduct on the HWS community;
  • any written impact and mitigation statements submitted by the parties;
  • whether the Respondent has accepted responsibility;
  • whether the Respondent is reasonably likely to engage in the conduct in the future;
  • location of incident;
  • whether the conduct reflects collusion with other individuals;
  • the need to deter similar conduct by others; and
  • any other mitigating or aggravating circumstances.

Absent justifications, if the Respondent has engaged in the same or similar conduct in the past, the sanction will be greater than the previous sanction.

The adjudicator will also consider other remedial actions that may be taken to address any Prohibited Conduct and prevent its recurrence, including strategies to protect the Complainant and any witnesses from retaliation; counseling for the Complainant; other steps to address any impact on the Complainant, any witnesses, and the broader student body; and any other necessary steps reasonably calculated to prevent future occurrences of Prohibited Conduct.

k. Final Outcome Letter

The adjudicator will simultaneously issue a written decision (the “Final Outcome Letter”) to both the Complainant and the Respondent, with a copy to the Title IX Coordinator, within seven (7) calendar days following the Hearing. The Final Outcome Letter will set forth the violation(s) of the Policy for which the Respondent was found responsible or not responsible, the rationale; the sanction(s) (if applicable) imposed against the Respondent; and the rationale for any sanction(s) imposed. The Final Outcome Letter may also identify protective measures implemented with respect to the Respondent or the broader HWS community. The Final Outcome Letter will not disclose any remedial measures provided to the Complainant.

4. Appeals

The Complainant and the Respondent may appeal the Final Outcome. An appeal must be filed with the Title IX Coordinator in writing within seven (7) calendar days of receiving the Final Outcome Letter.

The grounds for appeal are:

  • previously unavailable relevant evidence that could significantly impact the Final Outcome;
  • procedural error(s) that had a material impact on the Final Outcome; and
  • the sanction is grossly disproportionate to the conduct committed.

The appeal shall consist of a plain, concise, and complete written statement outlining the grounds for the appeal. Upon receipt of an appeal, the Title IX Coordinator will notify both parties and provide them with the written statement of appeal. Each party has an opportunity to respond in writing to the appeal. Any response to the appeal must be submitted to the Title IX Coordinator within seven (7) calendar days from receipt of the appeal.

The appeal will be conducted in an impartial manner by an Appeal Panel. In any appeal, the burden of proof lies with the party requesting the appeal, as the original determination and sanction are presumed to have been decided reasonably and appropriately. The appeal is not a new review of the underlying matter. The Appeal Panel will consider an appeal only on the basis of one or more of the three (3) grounds for appeal stated above, and will make a determination based on supporting information provided in the written request for appeal, the written response of both parties, the Final Investigative Report and the written record of the original hearing including the Final Outcome Letter. The Appeal Panel can dismiss the appeal for failing to state a grounds for appeal, affirm the original findings, or send the case back to the adjudicator for reconsideration.

Absent extenuating circumstances, the Appeal Panel will communicate the result of the appeal to the Complainant and the Respondent within ten (10) calendar days from the date of the submission of all appeal documents by both parties. Appeal decisions are final.

5. Timeframe for Completion of Investigation and Adjudication; Extension for Good Cause

Typically, the period from commencement of an investigation through resolution (finding and sanction, if any) will not exceed sixty (60) calendar days. This timeframe may be extended for good cause, which may exist if additional time is necessary to ensure the integrity and completeness of the investigation, to comply with a request by external law enforcement for temporary delay to gather evidence for a criminal investigation, to accommodate the availability of witnesses, to account for breaks or vacations in the HWS calendar, to account for complexities of a case, including the number of witnesses and volume of information provided by the parties, or for other legitimate reasons. The Title IX Coordinator will notify the parties in writing of any extension of this timeframe and the reason for such extension.

6. Transcript Notation

After a finding of responsibility, the Title IX Coordinator will direct the Colleges’ Registrar to make a notation on the Respondent’s transcript stating the student was "suspended after a finding of responsibility for a code of conduct violation" or "expelled after a finding of responsibility for a code of conduct violation." Notations following an expulsion are permanent. After one year, Respondents who have been suspended may appeal to the Appeals Panel, requesting the removal of the notation. A Respondent may appeal the notation regarding suspension no more than one time per year.

IV. WITHDRAWAL PENDING OUTCOME

The Title IX Coordinator will direct the Colleges’ Registrar to make a notation on the academic transcript of any student who withdraws from the Colleges while under investigation for Prohibited Conduct. The transcript will indicate “withdrew with conduct charges pending" where a Respondent chooses to withdraw from the Colleges prior to the conclusion of a Formal Resolution. Students who withdraw while conduct charges are pending may not apply for readmission to the Colleges.

V. RELEASE OF DOCUMENTS

Under federal privacy laws, the Final Investigation Report, statements of one party that are shared with the other party in the resolution process, and any documents prepared by the Colleges, including documents by or for the adjudicators in advance of the Hearing, constitute education records which may not be disclosed outside of the proceedings, except as may be required or authorized by law. The Colleges will not, however, impose any restrictions on the parties regarding re-disclosure of the incident, their participation in proceedings, or the Final Outcome Letter.

VI. RECORDS

The Title IX Coordinator will retain all records relating to reports of Sexual Misconduct for no fewer than eight years.

The Office of Student Affairs maintains conduct records relating to all student disciplinary matters. Reports resolved by Informal Resolution are not kept in a student’s conduct record. Findings of no responsibility are not kept in the student’s conduct record. Affirmative findings of responsibility are part of a student’s conduct record. Such records shall be used in reviewing any further conduct or in developing sanctions and shall remain a part of a student’s conduct record. The conduct files of students who have been suspended, expelled, or have withdrawn from the Colleges with conduct charges pending are maintained in the Office of Student Affairs for no fewer than eight years following a student’s departure from the Colleges.


(1) The Appeal Panel consists of the Vice President for Student Affairs or designee, the Director of Human Resources or designee, and the Provost or a faculty member designee. Appeal panel members are trained at least annually on non-discrimination; the dynamics of sexual misconduct; the factors relevant to a determination of credibility; the appropriate trauma-informed manner in which to receive and evaluate sensitive information; the manner of deliberation; evaluation of consent and incapacitation; the application of the preponderance of the evidence standard; sanctioning; and the Colleges’ Sexual Misconduct Policy and these Procedures.

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