Amended Interim Sexual Misconduct Policy
I. Purpose and Statement of Intent
Sexual harassment, sexual assault, sexual exploitation, domestic and dating violence, stalking, and retaliation of any form are an affront to human dignity and fundamentally at odds with the values of Washington and Lee University. The University community has a responsibility to maintain an environment free from all forms of sexual misconduct. It is committed to taking all appropriate steps to eliminate prohibited conduct, prevent its recurrence, and address its effects.
The University is committed to fostering a climate free from sexual misconduct through clear and effective policies, a coordinated education and prevention program, and prompt and equitable procedures for resolution of complaints that are accessible to all. The University encourages all members of its community to participate in creating a safe, welcoming, and respectful environment on campus. Ultimately, all members of the community are expected to assume responsibility for their conduct, to report behaviors that may violate this policy, and to take reasonable and prudent actions to prevent acts of sexual misconduct.
This policy prohibits a broad continuum of behaviors, all of which constitute a form of sexual or gender-based harassment or discrimination, sexual assault or dating and domestic violence. Prohibited conduct that may violate this policy includes sexual harassment, sexual assault, sexual exploitation, domestic and dating violence, stalking, and retaliation. This document may use the term "sexual misconduct" to refer to any or all of those prohibited behaviors.
The University will respond according to the severity or pervasiveness of the offense and the threat it poses to an individual and the community. The University will conduct a complete and thorough investigation of alleged sexual misconduct. Individuals who are found responsible for violating this policy may face disciplinary sanctions up to and including dismissal and/or termination of employment.
The University will not tolerate retaliation against any individual who makes a report, participates in a resolution process, or assists as a bystander to prevent sexual misconduct. Retaliation destroys the sense of community and trust that is central to a quality environment. Community members engaging in retaliation will be subject to disciplinary action, whether such acts are implicit or explicit, or committed directly or indirectly.
The University will make every reasonable effort to stop retaliation immediately, to conduct a complete and thorough investigation of any alleged acts of retaliation in a timely manner, to provide remedies to victims of retaliation, and to sanction the perpetrators of retaliation as appropriate.
This policy provides community members with the structure, tools, and guidance to assist those who have experienced or been affected by sexual misconduct, whether as a complainant, a respondent, or a third party.1
II. Scope of Policy
This policy applies to all members of the Washington and Lee community, including students, faculty, staff, consultants, volunteers, vendors, and others engaged in business with the University.
This policy may be applied to conduct that takes place from the time a person enrolls at the University or accepts employment or volunteer duties; (including academic term breaks and periods between terms and semesters); and continues until the student withdraws or graduates, the employee ceases employment, or the volunteer ceases to perform duties for the University.
Visitors to and guests of Washington and Lee University are both protected by this policy and subject to its prohibitions. Visitors and guests may report violations of this policy committed against them by members of the W&L community. Visitors and guests may also be permanently forbidden from entering any part of the campus.
All Washington and Lee community members have a responsibility to adhere to University policies and to local, state, and federal law. Therefore, this policy applies to behaviors that take place on the campus, at University-sponsored events, and in the course of University-related travel and off campus programs, such as (but not limited to) domestic academic programs, domestic field trips, domestic spring term coursework, study-abroad programs, internship programs, work-related conferences, etc. This policy may also apply to other conduct has a continuing effect on the complainant's on-campus life and activities, map post a threat or danger to the members of the W&L community or University interests.
This policy also applies to behavior conducted online, including via e-mail. Postings on blogs, web page entries, social media sites, and other similar online postings can subject a community member to allegations of violations of this policy. Although, the University does not regularly search for this information but it may take action if and when such information is brought to the attention of the University.
III. Notice of Non-Discrimination and Statement of Compliance with Title IX
A. Notice of Non-Discrimination
Washington and Lee University is committed to establishing and maintaining a safe and nondiscriminatory educational and work environment in which all individuals are treated with respect and dignity. In compliance with Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and all other applicable non-discrimination laws, Washington and Lee does not discriminate on the basis of race, color, religion, national or ethnic origin, sex, sexual orientation, age, disability, veteran's status, or genetic information in its educational programs and activities, admissions, and with regard to employment.
This policy addresses all forms of sexual discrimination, including sexual harassment, sexual assault, stalking, and relationship violence. It prohibits these behaviors against W&L community members of any gender, gender identity, gender expression, or sexual orientation. This policy also prohibits failure to provide equal opportunity in admissions, employment, or athletics; reports of these types of discrimination should also be brought to the attention of a Title IX officer and will be addressed as appropriate.
W&L does not discriminate on the basis of sex in its educational, extracurricular, athletic, or other programs or in the context of employment. Sex discrimination is prohibited by Title IX of the Education Amendments of 1972, a federal law that provides:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.
Sexual harassment is also prohibited under Title VII of the Civil Rights Act of 1964, Virginia state law, and other applicable statutes.
The University, as an educational community, will promptly and equitably respond to reports of sexual harassment, sexual assault, domestic and dating violence, stalking, and retaliation in order to eliminate the misconduct, prevent its recurrence, and address its effects on any individual or the community.
B. The Role of the Title IX Coordinator
Lauren E. Kozak serves as the University's Title IX Coordinator. She is to be informed of all reports of sexual misconduct and will oversee the University's review, investigation, and resolution of those reports to ensure the University's compliance with Title IX and other applicable laws, and the effective implementation of this policy.
The Title IX Coordinator is:
- Responsible for the oversight of the resolution of all reports of sexual misconduct involving students, staff, and faculty as well as volunteers and third parties;
- Knowledgeable and trained in University policies and procedures and relevant state and federal laws;
- Available to advise any individual, including a complainant, a respondent, or a third party, about the courses of action available at the University, both informally and formally, as well as in the community;
- Available to provide assistance to any University employee regarding how to respond appropriately to a report of sexual misconduct;
- Responsible for monitoring compliance with all procedural requirements, record keeping and time frames outlined in this policy;
- Responsible for overseeing training, prevention and education efforts, and reviews of climate and culture and patterns of sexual misconduct; and
- Responsible for conducting or overseeing investigations of complaints against students.
The Title IX Coordinator is supported by Amy Diamond Barnes, Assistant Title IX Coordinator for Employment and Executive Director of Human Resources, and Elizabeth Knapp, Assistant Title IX Coordinator for Gender Equity in Athletics. Other individuals or offices that may be involved in addressing complaints may include the Director of Public Safety; the Vice President for Student Affairs and Dean of Students or a professional staff member of Student Affairs; Human Resources; the Provost's Office; and the Vice President for Finance and Administration and Treasurer. The individuals who will address complaints will be limited to a small circle of individuals who need to know in order to implement this policy.
Inquiries or complaints concerning the application of Title IX may be referred to the University's Title IX Coordinator and/or the United States Department of Education:
- Title IX Coordinator
Lauren E. Kozak
Elrod Commons 307
- U.S. Department of Education
Washington DC (Metro)
Office for Civil Rights
U.S. Department of Education
400 Maryland Avenue, SW
Washington, D.C. 20202-1475
C. Links to Relevant State and Federal Laws
Additional information about the federal and state laws referenced in this policy - Title IX; the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act); the Campus Sexual Violence Elimination Act (Campus SaVE Act); and the Family Educational Rights and Privacy Act (FERPA); and Virginia law effective July 1, 2015 - can be found at the following links:
- Title IX
- Clery Act
- Campus SaVE Act
- Va. Code § 23-9.2:18
- Va. Code § 23-9.2:15
IV. Privacy and Confidentiality
The University is committed to protecting the privacy of all individuals involved in a report of sexual misconduct. In any report, the University will make every effort to protect the privacy of all individuals involved in a manner consistent with the need for a careful assessment of the allegation and any necessary steps to eliminate the misconduct, prevent its recurrence, and address its effects.
Privacy and confidentiality have distinct meanings under this policy.
Privacy means that information related to a report of sexual misconduct will be shared only with a limited circle of individuals-those University employees who need to know in order to assist in the active review, investigation, or resolution of the report. While not bound by confidentiality, these individuals will be discreet and respect the privacy of all individuals involved in the process. W&L will involve only those University employees who have a legitimate need to know about individual conduct complaints pursuant to the Family Educational Rights and Privacy Act (FERPA) and applicable federal and state laws and will share information accordingly.
Confidentiality means that information shared by an individual with designated campus or community professionals cannot be revealed to any other person without express permission of the individual. Those professionals include medical providers, mental health care providers, ordained clergy, and off-campus rape crisis counselors, all of whom have privileged confidentiality recognized by law. These individuals are prohibited from breaking confidentiality unless there is an imminent threat of harm to self or others, the conduct involves suspected abuse of a minor under the age of 18, or as otherwise authorized by state and federal law.
Community members wishing to seek completely confidential assistance may speak with counselors in the Counseling Center, health service providers in the Student Health Center, local health providers, off-campus rape crisis resources, counseling resources available to employees through the Employee Assistance Program, or members of the clergy, all of whom will maintain confidentiality. More information about confidential resources can be found in Section VIII (B).
Reporting on Campus
It is important to understand that any University employee who is not designated as a confidential resource cannot maintain the confidentiality of a report or information concerning an alleged violation of this policy and all employees are expected to share any report of sexual misconduct with a Title IX Coordinator. More information about how to report to campus authorities can be found in Section IX (B).
Release of Information
No information shall be released from proceedings under this policy except as required or permitted by law and by University policy.
Pursuant to and as required by the Clery Act, if a report of misconduct indicates a serious and immediate threat to the campus community, the University will issue a timely notification to the community to protect its health or safety.
Pursuant to and as required by the Clery Act, anonymous statistical information must be shared with Public Safety. Annual Clery reporting to the U.S. Department of Education is required of educational institutions for certain offenses that have been reported at campus locations or certain off campus locations controlled by the institution. The information contained in the Clery report tracks the number of Clery-reportable offenses occurring at such locations and does not include the names or any other identifying information about the persons involved in the incident. The University may also share non-personally identifying information about reports received in aggregate form, including data about outcomes and sanctions.
Additionally, pursuant to and as required by Virginia law, the University must disclose information regarding a report of sexual misconduct to law enforcement if (1) it is a report of sexual violence, which means physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent; (2) the sexual violence is alleged to have been committed against a student attending the University, or may have occurred on certain locations as defined under Virginia law; (3) disclosure of the information is deemed necessary to protect the health or safety of the student or other individuals by the three‐person University Review Committee (the Review Committee is composed of the Title IX Coordinator, a representative from Student Affairs, and a representative from Public Safety). If the alleged act of sexual violence is a felony crime of sexual violence under Virginia law, disclosure will also be made to the Commonwealth Attorney without the release of any personally identifiable information (unless such information was deemed necessary by the Review Committee to be disclosed to law enforcement in accordance with the applicable law). See Va. Code § 23‐ 9.2:15. In the event of a disclosure, complainants retain the right to decline to participate in any investigation or to request that a criminal investigation not proceed.
Only as permitted by the Family Educational Rights and Privacy Act (FERPA) and/or other applicable law and University Policy will Washington and Lee notify the parents or guardians of students regarding any conduct situation, including disciplinary probation, loss of housing, suspension, and dismissal.
All University proceedings are to be conducted in compliance with the requirements of Title IX, the Clery Act, the Campus SaVE Act, FERPA, state and local law, and University policy. Links to these state and federal laws are provided in Section III (C) of this policy.
V. Prohibited Conduct
W&L prohibits and will not tolerate sexual misconduct in any form. Such violations are subject to any combination of sanctions, including suspension, dismissal, or termination of employment.
The following behaviors fall under the broad definition of sexual misconduct and are prohibited.
- Sexual Harassment
- Non-Consensual Sexual Intercourse
- Non-Consensual Sexual Contact
- Sexual Exploitation
- Domestic and Dating Violence
A. Sexual Harassment
Sexual harassment is any unwelcome conduct of a sexual nature (sexual advances, request for sexual favors, or other unwanted verbal or physical conduct of a sexual nature) or unwelcome conduct based on sex, sexual orientation, gender identity, or gender expression, when one or more of the following conditions are present:
- Submission to the unwelcome conduct is an expressed or implied condition of an individual's employment, evaluation of academic work, or any aspect of a University program or activity;
- Refusal to submit to unwelcome conduct resulted in a tangible academic or employment detriment; or
- The unwelcome conduct unreasonably interferes with an individual's work or academic performance, or creates an intimidating or hostile academic or work environment under both an objective (a reasonable person's view) and subjective (the complainant's view) standard.
Sexually harassing behaviors differ in type and severity and can range from verbal harassment to unwelcome physical contact. A wide range of behaviors falls within the general definition of sexual harassment. Key determining factors are that the behavior is unwelcome, is gender-based or conduct of a sexual nature, and is reasonably perceived as offensive and objectionable under both a subjective and objective assessment of the conduct.
A single, isolated incident of sexual harassment alone may create a hostile environment if the incident is sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to create a hostile environment, particularly if the harassment is physical. The determination of whether an environment is hostile must be based on all the circumstances. These circumstances could include, but are not limited to:
- The frequency of the conduct;
- The nature and severity of the conduct;
- Whether the conduct was physically threatening;
- Whether the conduct was directed at more than one person;
- Whether the conduct arose in the context of other discriminatory conduct;
- Whether a statement is a mere utterance of an epithet that engenders offense in an employee or a student or offends by mere discourtesy or rudeness; and/or
- Whether the conduct deserves the protections of academic freedom.
- May be blatant and intentional and involve an overt action, a threat, or a reprisal, or may be subtle and indirect, with a coercive aspect that is unstated;
- Does NOT have to include intent to harm, be directed at a specific target, or involve repeated incidents;
- May be committed by anyone, regardless of gender, age, position, or authority. While there is often a power differential between two persons, perhaps due to differences in age, social, educational, or employment relationships, harassment can occur in any context;
- May be committed by a stranger, an acquaintance, or someone with whom the complainant has an intimate or sexual relationship;
- May be committed by or against an individual or may be a result of the actions of an organization or group;
- May occur by or against an individual of any sex, gender identity, gender expression, or sexual orientation; and/or
- May occur in the classroom, in the workplace, in residential settings, over electronic or social media (including the Internet, telephone, and text), or in any other setting.
Examples of conduct that may constitute sexual harassment as defined above may include a severe, persistent, or pervasive pattern of unwelcome conduct that includes one or more of the following:
- Physical conduct:
- Unwelcome touching, sexual/physical assault, impeding, restraining, or blocking movements
- Unwanted sexual advances
- Verbal conduct:
- Making or using derogatory comments, epithets, slurs, or humor
- Verbal abuse of a sexual nature; graphic verbal commentaries about an individual's body; sexually degrading words used to describe an individual; suggestive or obscene letters, notes, or invitations
- Offensive comments of a sexual nature, including sexually explicit statements, questions, jokes, or anecdotes
- Visual conduct:
- Leering; making sexual gestures; displaying suggestive objects or pictures, cartoons, or posters in a public space or forum
- Visual displays of suggestive, erotic, or degrading, sexually oriented images that are not pedagogically appropriate
- Written conduct: letters, notes or electronic communications, including social media, containing comments, words, or images described above
- Quid pro quo conduct:
- Offering employment or academic benefits in exchange for sexual favors
- Making submission to sexual advances an actual or implied condition of employment, work status, promotion, grades or letters of recommendation, including subtle pressure for sexual activity, an element of which may be repeated requests for private meetings with no academic or work purpose
- Making or threatening reprisals after a negative response to sexual advances
B. Non-Consensual Sexual Intercourse
Having sexual intercourse with another individual without effective consent.
Sexual intercourse includes vaginal or anal penetration, however slight, with a body part (e.g., penis, tongue, finger, hand) or object, or oral penetration involving mouth-to-genital contact.
C. Non-Consensual Sexual Contact
Having sexual contact with another individual without effective consent.
Sexual contact includes any intentional and non-accidental touching of the intimate parts of another, causing another to touch one's intimate parts, or disrobing or exposure of another without permission. Intimate parts may include the breasts, genitals, buttocks, groin, mouth, or any other part of the body that is touched in a sexual manner.
D. Sexual Exploitation
Taking advantage of the sexuality of another person without effective consent or in a manner that extends the bounds of effective consensual sexual activity for any purpose, including sexual gratification, financial gain, personal benefit, or any other non-legitimate purpose. Examples of sexual exploitation include:
- Observing another individual's nudity or sexual activity or allowing another to observe consensual sexual activity without the consent of all parties involved in a place where the individual being observed would have a reasonable expectation of privacy;
- Non-consensual streaming of images, photography, video, or audio recording of sexual activity or nudity, or distribution of such without the consent of all parties involved;
- Prostituting another individual; and/or
- Inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity.
E. Domestic and Dating Violence
Domestic violence means violence committed by:
- A current or former spouse or intimate partner of the complainant;
- A person with whom the complainant shares a child in common;
- A person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner;
- Any other person against a complainant who is protected from that person's acts under the domestic or family violence laws of Virginia (18.2-572, 18.2-61 et seq.), which includes parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents, grandchildren, and in-laws.
Dating violence means violence committed by a person:
- Who is or has been in a social relationship of a romantic or intimate nature with the complainant; and
- Where the existence of such a relationship shall be determined based on (1) the length of the relationship; (2) the type of relationship; and (3) the frequency of interaction between the persons involved in the relationship.
Domestic and/or dating violence includes sexual or physical abuse or the threat of that abuse.
Domestic and/or dating violence may involve one act or an ongoing pattern of behavior. Domestic and/or dating violence affects individuals of all genders, gender identities, gender expressions, and sexual orientation, and does not discriminate by racial, social, or economic background.
The University will not tolerate domestic or dating violence. The University recognizes that sexual harassment, sexual assault, stalking, and retaliation all may be forms of domestic or dating violence when committed by a person who is or has been involved in a sexual, dating, or other social relationship of a romantic or intimate nature with the complainant.
Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
- Fear for the person's safety or the safety of others; or
- Suffer substantial emotional distress.
"Course of conduct" means two or more acts.
Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
Examples of stalking may include, but are not limited to:
- Unwelcome/unsolicited communication including in-person communication, telephone calls, voice messages, text messages, e-mail messages, social networking site postings, instant messages, written letters, gifts or other communications;
- Following, pursuing, waiting or showing up uninvited at a workplace, place of residence, classroom, or other locations frequented by a complainant;
- Surveillance and other types of observation, whether by physical proximity or electronic means;
- Non-consensual touching;
- Direct physical and/or verbal threats against a complainant or someone close to the complainant;
- Gathering of information about a complainant from family, friends, co-workers, and/or classmates;
- Manipulative and controlling behaviors such as threats to harm oneself;
- Defamation or slander against the victim; or
- Using a third party or parties to accomplish any of the above.
Retaliation includes intimidating, threatening, coercing, or in any way discriminating against any person or group for exercising rights under this policy.
Actions are considered retaliatory if they
- are in response to a good faith disclosure of real or perceived University-related misconduct, participation in an investigation of University-related misconduct, engaging in bystander intervention of sexual misconduct, and
- would deter a reasonable person in the same circumstances from opposing practices prohibited by this policy or participating in the complain process under this policy.
Retaliation may be present even where this a finding of "Not Responsible" on the allegations of misconduct prohibited by this policy.
VI. Understanding Consent: Force, Coercion, Incapacitation, and Alcohol
Individuals who choose to engage in sexual activity of any type with each other must first obtain the consent of the other party. Consent is demonstrated through mutually understandable words and/or actions that clearly indicate a willingness to engage freely in sexual activity.
Additional Guidance about Consent:
- Consent to one form of sexual activity does not, by itself, constitute consent to engage in all forms of sexual activity.
- Consent consists of an outward demonstration indicating that an individual has freely chosen to engage in sexual activity. Consent may not be inferred from silence, passivity, lack of resistance, or lack of an active response alone. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent.
- A verbal "no" is a clear demonstration of the lack of consent.
- Individuals with a previous or current intimate relationship do not automatically give either initial or continued consent to sexual activity. Even in the context of a relationship, there must be mutually understandable communication that clearly indicates a willingness to engage in sexual activity.
- Either party may withdraw consent at any time. Withdrawal of consent should be outwardly demonstrated by words or actions that clearly indicate a desire to end sexual activity. Once withdrawal of consent has been expressed, sexual activity must cease.
- Consent is not effective if it results from the use or threat of physical force, intimidation, or coercion, or any other factor that would eliminate an individual's ability to exercise his or her own free will to choose whether or not to have sexual contact. See "Force" and "Coercion" for further discussion.
- An individual who is physically incapacitated from alcohol or other drug consumption (voluntarily or involuntarily) or is asleep, unconscious, unaware, or otherwise physically helpless is considered unable to give consent. See Paragraph (D) of this Section for further discussion.
- In the Commonwealth of Virginia, the age of majority is 18. Under state law, consent cannot be given for any individual under the age of 18 to participate in sexual activity with an individual over the age of 18. In addition, consent can never be given by minors under the age of 13.
Force is the use or threat of physical violence or intimidation to overcome an individual's freedom of will to choose whether or not to participate in sexual activity. There is no requirement that a party resists a sexual advance or request, but resistance will be viewed as a clear demonstration of non-consent.
Coercion is the use of unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual's will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail. Coercion may be emotional, intellectual, psychological, or moral. A person's words or conduct are sufficient to constitute coercion if they wrongfully impair another individual's freedom of will and ability to choose whether or not to engage in sexual activity. In evaluating coercion, the University will consider: (1) frequency of the application of pressure; (2) intensity of the pressure; (3) isolation of the person being pressured; and (4) duration of the pressure. Coercing an individual into engaging in sexual activity violates this policy in the same way as physically forcing someone into engaging in sexual activity.
An individual who is incapacitated lacks the ability to make informed, rational judgments and cannot consent to sexual activity. Incapacitation is defined as the inability, temporarily or permanently, to give consent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring.
In other words, a person may be considered unable to give valid consent due to incapacitation if the person is not able to understand the who, what, where, when, why and/or how of a sexual interaction. In evaluating whether effective consent was present in cases of alleged incapacitation, the University asks three questions: (1) Was complainant incapacitated?, (2) If so, did the respondent know that the complainant was incapacitated? and (3) If not, would a sober, reasonable person in the same situation have known that the complainant was incapacitated based on objectively and reasonably apparent indications of impairment.
An individual who engages in sexual activity with someone the individual knows or reasonably should know is incapable of giving effective consent is in violation of this policy.
1. Alcohol or Other Drugs
Where alcohol or other drugs are involved, incapacitation is a state beyond drunkenness or intoxication. The impact of alcohol and other drugs varies from person to person; however, common warning signs that a person may be incapacitated or approaching incapacitation as a result of alcohol or drug use or consumption may include slurred speech, vomiting, unsteady gait, odor of alcohol, incontinence, combativeness, or emotional volatility.
In general, the University considers sexual contact while under the influence of alcohol or other drugs to be risky behavior. Alcohol and drugs impair a person's decision-making capacity, awareness of consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person's level of intoxication. If there is any doubt as to the level or extent of the other individual's intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.
Being intoxicated or impaired by drugs or alcohol is never an excuse for sexual misconduct, and does not diminish one's responsibility to obtain effective consent.
VII. Prohibited Relationships by Persons in Authority
The faculty-student relationship is one of trust in the institution and the faculty member, who has the professional responsibility for being a mentor, educator, and evaluator. Faculty-student and employee-student romantic and/or sexual attention, interaction, or relationships, even mutually consenting ones, interfere with a student's unfettered pursuit of learning and the integrity of the academic and workplace environment.
Consensual relationships (defined in the Consensual Relationship Policy as a romantic and/or sexual relationship to which both parties have given their consent) between University employees and undergraduate students are prohibited.
Consensual relationships between law students and all employees within the Law School are prohibited.
Consensual relationships between law students and non-Law School employees of the University who have the potential to directly impact the student's academic or professional status or development now or in the future are prohibited.
Consensual relationships between law students and University employees who believe they are exempted by the preceding sentence are strongly discouraged. Such employees who nevertheless choose to engage in a consensual relationship with a law student may not be defended or indemnified by the University if difficulties in the relationship arise (including, but not limited to, student claims of sexual harassment against the University or employee).
Failure to fully comply with the University's Consensual Relationship Policy could subject the person in authority to disciplinary action, up to and including dismissal from employment by the University.
Any individual may file a complaint alleging harassment or bias, including an aggrieved party outside the relationship affected by the perceived harassment or bias. Retaliation against persons who report concerns about consensual relationships is prohibited and constitutes a violation of this policy.
VIII. Resources for Complainants and Respondents
A first step for any complainant or third-party witness may be choosing how to proceed following an incident of sexual misconduct. The University provides two distinct institutional resources:
- Confidential Resources do not involve notifying the University of the incident unless the complainant requests such action.
- Reporting Resources notify the University of the incident and begin the Title IX assessment and ultimate resolution of the report through remedies-based resolution/informal resolution or investigation and potential disciplinary proceedings.
It is also important to note that emergency medical, W&L Public Safety, and/or local law enforcement assistance are available both on and off campus. All individuals are encouraged to contact law enforcement and seek medical treatment as soon as possible following an incident.
The University is committed to treating all members of the community with dignity, care, and respect. Any individual affected by sexual misconduct, whether as a complainant, a respondent, or a third party, will have equal access to support consistent with their needs and available University resources.
The University recognizes that deciding whether to make a report and choosing how to proceed can be difficult decisions. The University encourages any individual who has questions or concerns to seek the support of campus and community resources. These professionals can provide information about available resources and procedural options and other assistance to either party in the event that a report and/or disciplinary proceedings are pursued. Individuals are encouraged to use all available resources, regardless of when or where the incident occurred.
A. Emergency and Community Resources
The first priority for any individual should be personal safety and well-being. The University encourages all individuals who have experienced sexual misconduct to seek assistance by contacting W&L Public Safety, calling 911, contacting local law enforcement, and/or visiting a medical facility immediately after an incident of sexual misconduct.
All individuals are encouraged to make a prompt report to law enforcement and/or to seek immediate medical treatment in response to an incident in order to address immediate safety concerns and to allow for the preservation of evidence and an immediate investigative response. The University will assist in these reporting options by arranging for or providing transportation to the hospital, coordinating with local law enforcement (including assisting with filing a police report and obtaining a protective order), and informing a complainant about the University's resources and complaint processes.
In the event of an emergency, individuals may obtain 24-Hours support from any of the following:
- Lexington Police Department - 540.462.3705
- Rockbridge County Sheriff's Office - 540.463.7328
- W&L Public Safety - 540.458.8999
- W&L Student Health - 540.458.8401
- Carillion Stonewall Jackson Hospital - 540.458.3300
- Dean of Students Office / Dean on Call - 540.458.8754
- Campus Public Safety / Dean on Call 24/7 - 540.458.8999
- Project Horizon - 540.463.2594
(Domestic Violence and Sexual Assault)
- Augusta Health (Fishersville) - 800.932.0262
(This is the closest hospital that can conduct a forensic exam by a Sexual Assault Nurse Examiner. The purpose of a forensic exam is to document and collect evidence of sexual contact and/or physical trauma. When there is suspicion or concern that an assault may have been facilitated by the use of drugs, the forensic exam may also include the collection of urine and blood samples for toxicology testing. Individuals are not required to report an incident to law enforcement or the University in order to receive medical attention or a forensic exam. Both Project Horizon and W&L Public Safety can assist with transportation. An individual can coordinate transport from Public Safety through the Student Health Center.)
B. Confidential Resources and Support
For individuals who are seeking confidential consultation, several resources provide confidential support, both on campus and in the local community. The trained professionals designated below can provide counseling, information, and support under legally protected confidentiality. They may, however, submit non-identifying information about the incident for purposes of making a statistical report under the Clery Act.
Students wishing to obtain confidential support or resources on campus are encouraged to contact the University Student Health and Counseling Center. This center is staffed by medical, psychiatric, and psychological professionals who are bound by separate laws of confidentiality and will not share the report with other members of the University. These individuals are prohibited from breaking confidentiality unless there is an imminent threat of harm to self or others, the conduct involves suspected abuse of a minor under the age of 18, or as otherwise authorized by state and federal law.
Confidential Resources include any of the following:
- W&L Student Health Center
Counseling Services - 540.458.8590
Health Services - 540.458.8401
- Project Horizon - 540.463.2594
(Domestic Violence and Sexual Assault)
- Employee Assistance Program (EAP) - 800.992.1931
In addition to Project Horizon, employees wishing to make a confidential report are encouraged to contact the Employee Assistance Program, which is staffed by individuals who are bound by the same rules of confidentiality.
- Virginia State Domestic & Sexual Violence Hotline (VSDS) - 800.838.8238 (24-hour hotline)
The Virginia State Domestic & Sexual Violence Hotline can provide resources for survivors.
- National Domestic Violence Hotline (NDV) - 800.799.7233 (SAFE)
The National Domestic Violence Hotline can provide advocacy, resources, referral, and legal assistance to victims of dating or domestic violence.
- Rape, Abuse and Incest National Network (RAINN) - 800.656.4673
A confidential, anonymous national sexual assault hotline.
The University encourages all individuals to seek assistance from a medical provider and/or law enforcement immediately after an incident of sexual violence or dating or domestic violence, whether or not the individual plans to pursue criminal action. This is the best option to ensure preservation of evidence and to begin a timely response by law enforcement and/or the University.
The University supports victims of sexual misconduct and encourages all individuals or third-party witnesses to report any incident to the University, and to law enforcement if it involves potential criminal conduct.
Making a report means telling a Reporting Resource (someone in authority, see Section IX (B)) what happened-in person, by telephone, in writing, or by e-mail. At the time a report is made, a complainant does not have to decide whether or not to request any particular course of action, nor does a complainant need to know how to label what happened. Choosing to make a report, and deciding how to proceed after making the report, can unfold over time. The University provides support to each individual in making these important decisions, and to the extent legally possible, will respect an individual's autonomy in deciding how to proceed. In this process, the University will balance the individual's interest with its obligation to provide a safe and non-discriminatory environment for all members of the University community.
Any individual who reports sexual misconduct can be assured that the University will investigate all reports and resolve them in a fair and impartial manner. All individuals involved can expect to be treated with dignity and respect. In every report, the University will make an immediate assessment of any risk of harm to the University or to the broader campus community and will address those risks, including taking interim measures to provide for the safety of the individual and the campus community.
A. Reporting to Law Enforcement
The University encourages complainants to pursue criminal action for incidents of sexual misconduct that may also be crimes under state criminal statutes. Complainants have the right to notify or decline to notify law enforcement authorities. The University will assist a complainant, at the complainant's request, in contacting local law enforcement; filing a report; and obtaining a protective order. The University will cooperate with law enforcement agencies if a complainant decides to pursue the criminal process. Complainants have the right to participate or decline to participate in any investigation to the extent permitted under state or federal law.
The University's policy, definitions, and burden of proof may differ from Virginia criminal law. A complainant may seek resolution through the University's complaint process, may pursue criminal action, may choose one but not the other, or may choose both. Neither law enforcement's determination whether or not to prosecute a respondent nor the outcome of any criminal prosecution determine whether sexual misconduct has occurred under this policy. Proceedings under the University's Amended Interim Sexual Misconduct Policy may be carried out prior to, simultaneously with, or following civil or criminal proceedings off-campus.
Pursuant to and as required by Virginia law, the University must disclose information regarding a report of sexual misconduct to law enforcement if (1) it is a report of sexual violence, which means physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent; (2) the sexual violence is alleged to have been committed against a student attending the University, or may have occurred on certain locations as defined by Virginia law; (3) disclosure of the information is deemed necessary to protect the health or safety of the student or other individuals by the three‐ person University Review Committee (the Review Committee is composed of the Title IX Coordinator, a representative from Student Affairs, and a representative from Public Safety). If the alleged act of sexual violence is a felony crime of sexual violence under Virginia law, disclosure will also be made to the Commonwealth Attorney without the release of any personally identifiable information (unless such information was deemed necessary by the Review Committee to be disclosed to law enforcement in accordance with the applicable law). See Va. Code § 23‐9.2:15. In the event of a disclosure, complainants retain the right to decline to participate in any investigation or to request that a criminal investigation not proceed.
- Lexington Police Department - 540.462.3705
- Rockbridge County Sheriff's Office - 540.463.7328
- Virginia State Police - 804.674.2000
Project Horizon can provide legal information to complainants about criminal reporting, investigations, as well as civil and criminal court proceedings. Project Horizon Advocates may accompany complainants to court dates and appointments with law enforcement officers, the Commonwealth's Attorney, Court Services Unit, and other legal proceedings and answer questions about these processes. To speak with Project Horizon's legal advocate, call 540.463.8761.
B. Campus Reporting Resources
All W&L community members should report all incidents of sexual misconduct or retaliation directly to the Title IX Coordinator or Assistant Title IX Coordinator for employment.
The University recognizes that a student or employee may choose to report to any employee of the University. For example, a student may choose to confide in an associate dean, a resident adviser, a faculty member, a director, or a coach. Similarly, an employee may choose to confide in a supervisor or a colleague. No W&L employee may promise confidentiality (except in Student Health and Counseling), and all W&L employees are expected to share such information with the Title IX Coordinator or Assistant Title IX Coordinator for Employment.
W&L has identified certain groups of employees as "Responsible Employees" for purposes of complaints of sexual misconduct. Responsible Employees must refer reports of sexual misconduct under this policy to a Title IX Coordinator. Information brought to the attention of a Responsible Employee is not confidential. All Responsible Employees will be trained on how to identify sexual misconduct and on their duties:
The following Responsible Employees have the authority to redress complaints of sexual violence or sexual misconduct:
- Title IX Coordinator and Assistant Title IX Coordinator
- Student Resources: Identified at http://go.wlu.edu/OGC/ResourcesContactInfo
- Employee Resources: Identified at http://go.wlu.edu/OGC/ResourcesContactInfo
- Director and Officers of Public Safety
The following additional Responsible Employees must report complaints of sexual misconduct to a Title IX Coordinator (Note: These positions listed below are identified as Responsible Employees because students may reasonably believe them to have authority to redress or duty to report such complaints):
- Assistant Director of Campus Recreation
- Athletic Director, Associate and Assistant Athletic Directors
- Athletic Team Coaches, Assistant Coaches, and Athletic Trainers
- Director of Sustainability Initiatives and Education
- Directors of Legal Clinics
- Faculty and staff accompanying students on off-campus programs or other University-related trips, within and outside the United States
- Undergraduate Faculty Department Chairs and Program Chairs
- Law School Director of Academic Success
- Resident Advisers
- Shepherd Program-Coordinator for Student Service Leadership and Research, Associate Director of Community-Based Learning, and Co-Curricular Service Coordinator
Students and all other employees should report information about any incident of sexual misconduct to any of the Responsible Employees or to the reporting resources listed below.
All Campus Reporting Resources
Lauren E. Kozak, Title IX Coordinator
Elrod University Commons 307
Amy D. Barnes, Title IX Assistant Coordinator for Employment
Office of Human Resources
Two South Main 109
Elizabeth Knapp, Associate Provost and Director of the Johnson Program in Leadership and Integrity
Washington Hall 217
For complaints about gender equity in W&L athletic programs.
Office of Student Affairs
Elrod Commons 242
Students can report incidents directly to the Vice President for Student Affairs and Dean of Students or to a member of the professional staff.
Department of Public Safety
Heating/Cooling Plant, Denny Circle
Available 24 hours a day/7 days a week/365 days a year
Available to receive reports of incidents of sexual misconduct. Also available to arrange or provide transportation to the hospital or local law enforcement, and can reach the Student Affairs Dean on Call at any time.
C. Anonymous Reporting
Any individual may make an anonymous report concerning incidents of sexual misconduct. Individuals may report the incident without disclosing their name, identifying the respondent, or requesting any action. Depending on the extent of information available about the incident or the individuals involved, however, the University's ability to respond to an anonymous report may be limited. The Anonymous Reporting Form can be found at: http://go.wlu.edu/ReportCrime
The Title IX Coordinator or the Assistant Title IX Coordinator will receive the anonymous report and will determine any appropriate steps, including individual or community remedies as appropriate and in compliance with all federal and state legal obligations.
The University encourages all community members to take reasonable and prudent actions to prevent an act of sexual misconduct. Taking action may include direct intervention when safe to do so, enlisting the assistance of friends, contacting law enforcement, or seeking assistance from a person in authority. Community members who choose to assist under these circumstances will be supported by the University and protected from retaliation. The University provides mandatory bystander training through Bringing in the Bystander® for all entering students. Anyone interested in additional training should contact the Director of Health Promotion, Jan Kaufman at email@example.com.
E. Reporting Considerations
1. Timeliness of Report, Location of Incident
Complainants and third-party witnesses are encouraged to report incidents of sexual misconduct as soon as possible in order to maximize the University's ability to respond promptly and effectively. However, there is no time limit on reporting violations of this policy. If the respondent is no longer a student or employee, the University may not be able to take disciplinary action against the respondent, but it will still seek to comply with its Title IX obligation by providing support for a complainant and taking steps to end the harassment, prevent its recurrence, and remedy its effects.
An incident does not have to occur on campus to be reported to the University. Off-campus conduct that occurs in connection with University programs or events may also be covered, as may off-campus conduct that may have a continuing effect on the complainant's on-campus life and activities, may pose a threat or danger to the members of the W&L community, or may adversely impact University interests. The University will process all Title IX complaints regardless of where the conduct occurred to determine whether the conduct occurred in the context of its educational program or has continuing effects on campus or in an off-campus program or activity.
2. Amnesty for Personal Use of Alcohol or Other Drugs
The University seeks to remove any barriers to reporting. It is in the best interest of this community that all individuals who have been the subject of sexual misconduct report the behavior to the University, and that witnesses share what they know. To encourage reporting, complainants, third-party witnesses, or respondents will not be subject to disciplinary action by the University for their own personal consumption of alcohol or drugs at or near the time of the incident, provided that any such violations did not and do not place the health or safety of any other person at risk.
3. Statement Against Retaliation
Retaliation is a violation of University policy and will result in disciplinary action. See Section V. (G) above for more information.
4. False Reporting
The University takes the validity of information very seriously, as a charge of sexual misconduct may have severe consequences.
A complainant who makes a report that is later found to have been intentionally false or made maliciously without regard for truth, or anyone proven to have intentionally given false information during the course of an investigation or disciplinary proceeding may be subject to disciplinary action under the University's Honor System or disciplinary action under the appropriate employee disciplinary policy and may also violate state criminal statutes and civil defamation laws. This provision does not apply to reports made in good faith, even if the facts alleged in the report are not substantiated by an investigation.
5. Protection of Minors and Mandatory Reporting of Suspected Child Abuse
Under Virginia law, any persons employed by the University who, in their professional or official capacity, have reason to suspect that a child is an abused or neglected child, are required to report the matter immediately to child protective services. Under this policy and W&L's Protocol for Mandatory Reporting of Suspected Child Abuse/Neglect, the University also requires that the information be immediately shared with the Director of Campus Safety so that the University can ensure timely compliance with this law and enhance the protection of children.
The University will report all suspected child abuse and neglect, including sexual assault, to law enforcement and/or to the Virginia Department of Human Services. The toll-free child abuse and neglect hotline is 800.522.7096.
The University intends to act quickly regarding all suspected child abuse. For the purposes of this reporting obligation, a child is any individual under the age of 18, and the suspected abuse may involve physical, sexual, or other forms of abuse or neglect, regardless of the identity of the suspected perpetrator. The duty to report is triggered by reasonable suspicion or belief. There is no requirement that you have actual evidence of abuse, nor is it the responsibility of any employee, student, or volunteer to investigate suspected child abuse. This is the role of child protective services and law enforcement authorities, who are best positioned to do so.
A report should be made as follows:
- If a child is in immediate danger, call the police (911).
- If there is no immediate danger, call W&L Office of Public Safety at 540.458.8999
This individual will assist in making the mandated child protective services report to:
- Local Department of Social Services: Rockbridge-Buena Vista-Lexington Area: 540.4637143
- Virginia Department of Social Services' toll-free child abuse/neglect hotline: 800.552.7096
In the event that the abuse was not alleged to have occurred in Virginia, Public Safety can help identify the correct jurisdiction for reporting.
X. Title IX Review, Complainant Request Not to Proceed, and Interim Measures
Although a report may arrive through many sources, the University is committed to ensuring that all reports are referred to the Title IX Coordinator or Assistant Title IX Coordinator for Employment, who will ensure consistent application of the policy to all individuals and allow the University to respond promptly and equitably to eliminate the harassment, prevent its recurrence, and remedy its effects.
A. Title IX Assessment
Upon receipt of a report of sexual misconduct, the University will conduct an initial Title IX assessment. The goal of this assessment is to provide an integrated and coordinated response to reports of sexual misconduct. The assessment will consider the nature of the report, the safety of the individual and of the campus community, the complainant's expressed preference for resolution, and the necessity for any interim remedies or measures.
As part of the initial assessment of the facts the University will:
- Assess the nature and circumstances of the allegation;
- Address immediate physical safety and emotional well‐being;
- If applicable, notify the complainant of the right to contact law enforcement and seek medical treatment;
- Notify the complainant of the importance of preservation of evidence;
- If applicable, have the report entered into the University's daily crime log;
- Assess the reported conduct for the need for a timely warning under the Clery Act;
- Provide the complainant with information about on‐ and off‐campus resources;
- Notify the complainant of the range of interim measures and remedies;
- Provide the complainant with an explanation of the procedural options, including remedies‐based/informal resolution and disciplinary resolution/formal complaint;
- Assess for pattern evidence or other similar conduct by respondent;
- Discuss the complainant's expressed preference for manner of resolution and any barriers to proceeding;
- Explain the University's policy prohibiting retaliation; and
- Determine whether the allegation is one of "sexual violence" and may have been committed against a student attending the University or may have occurred on certain locations defined in Va. Code § 23‐9.2:15. If so, the Title IX Coordinator will convene the three‐person University Review Committee (which includes the Title IX Coordinator, a representative from public safety and a representative from student affairs) to meet to determine whether disclosure must be made to law enforcement to protect the health and safety of the student or other individuals pursuant to Va. Code § 23‐9.2:15. This committee will meet within 72 hours of the initial report to the Title IX Coordinator to make this determination.
The initial review will proceed to where a reasonable assessment of the safety of the individual and of the campus community can be made. At the conclusion of the initial assessment, if the complainant has expressed a desire to proceed with an investigation or a formal complaint (in a case against a nonstudent), the University will begin the investigation or formal complaint process. If the complainant has requested confidentiality, or requested not to proceed with an investigation or formal complaint, the Title IX Coordinator or Assistant Title IX Coordinator for Employment, in coordination with others as necessary, will determine the appropriate manner of resolution for the particular report following the guidelines in Paragraph C of this section, which may include remedies‐based or informal actions or the initiation of an investigation or formal complaint.
B. Interim Measures
Upon receipt of a report of sexual misconduct, the University will impose reasonable and appropriate interim measures designed to eliminate the reported hostile environment, prevent its recurrence, and remedy its effects. Interim measures may be imposed regardless of whether formal disciplinary action is sought by the complainant or the University, and regardless of whether or not the complainant chooses to report to local law enforcement in order to ensure the preservation of the complainant's educational, work or volunteer experience and the overall University environment.
A complainant or respondent may request separation or other protection, or the University may choose to impose interim measures at its discretion to ensure the safety of all parties, the broader University community, and/or the integrity of the investigative and/or resolution process. The imposition of an interim measure assumes no determination of responsibility and is not a form of discipline.
All individuals are encouraged to report concerns about the failure of another individual to abide by any restrictions imposed by an interim measure. The University will take immediate action to enforce a previously implemented measure. The University can impose disciplinary sanctions for failing to abide by a University-imposed measure. For employees or volunteers, discipline will be handled by the Executive Director of Human Resources, the Provost's office, or a department head. For students, discipline may be handled by the Vice President for Student Affairs and Dean of Students or other Student Affairs personnel, other administrative measures, or by referral for a formal conduct charge.
2. Range of Measures
The University, at its discretion, will implement interim measures. Potential measures, which may be applied to the complainant and/or the respondent to the extent reasonably available and warranted by the circumstances, include but are not limited to:
- Access to counseling services and assistance in setting up initial appointment, both on and off campus;
- Imposition of a no-contact directive;
- Rescheduling of exams and assignments;
- Providing alternative course-completion options;
- Change in class schedule, including the ability to transfer course sections or withdraw from a course without penalty;
- Change in work schedule or job assignment;
- Change in student's University-sponsored or University-controlled housing;
- Assistance from University support staff in completing housing relocation;
- Limit of an individual's or organization's access to certain University facilities or activities pending resolution of the matter;
- Voluntary leave of absence;
- Providing an escort to ensure safe movement between classes and activities;
- Providing medical services;
- Providing academic support services, such as tutoring;
- Working in conjunction with student affairs to impose a behavioral agreement with the respondent; and/or
- Any other remedy that can be tailored to the involved individuals to achieve the goals of this policy.
3. University-Imposed Interim Administrative Leave of Absence
If the Title IX Coordinator, after consultation with the Vice President of Student Affairs and Dean of Students, Director of Public Safety, and/or others, as advisable, decides at any point that the health and safety of a student or of the community is at stake, an interim administrative leave of absence may be imposed on a student who is suspected of violating this policy. In addition, interim administrative leave of absence may be used to preserve University property; pursue an investigation and/or disciplinary proceeding; and prevent disruption of, or interference with, the normal operations of the University. Interim administrative leave of absence will be used for short periods of time pending resolution of a report, and assumes no determination of responsibility.
During an interim administrative leave of absence, a student may be denied access to University housing, which includes Residence Halls, Theme Houses, and Greek Housing, and/or the University's campus or programs. As determined appropriate by the Title IX Coordinator (or designee), this restriction includes classes and/or all other University activities or privileges for which the student might otherwise be eligible.
At the discretion of the Title IX Coordinator, and with the approval of, and in collaboration with, the appropriate Dean(s), alternative coursework options may be pursued to ensure as minimal an impact as possible on the respondent.
Similarly, if at any point in a complaint process, the Co-Chair for the Investigation and Review Officers believes that an employee who is suspected of violating this policy represents a danger to individuals or disruption to campus operations, the employee may be placed on administrative leave with pay pending the outcome of the complaint and appeals. Such leave will be structured at the University's discretion.
C. Complainant Autonomy and Request to Not Proceed
The University will seek action consistent with a complainant's request where possible. If, during the initial assessment, a complainant wishes to proceed with an investigation or formal complaint, the University will take action consistent with the complainant's request. Where a complainant makes a report but requests that a name or other identifiable information not be shared with the respondent, or that no formal action be taken, the University will balance this request with its dual obligation to provide a safe and non‐discriminatory environment for all W&L University community members and to remain true to principles of fundamental fairness that require notice and an opportunity to respond before action is taken against a respondent.
In the event that a complainant does not wish to proceed with an investigation, Student Faculty Hearing Board hearing, or formal complaint (in cases involving nonstudents), the Title IX Coordinator or Assistant Title IX Coordinator for Employment will determine, based on the available information whether the investigation, Student Faculty Hearing Board hearing, or formal complaint should nonetheless go forward. The Title IX Coordinator or Assistant Title IX Coordinator for Employment will assess any barriers to proceeding, including retaliation, and will inform the complainant that Title IX prohibits retaliation and that the University will take strong responsive action to protect the complainant.
In determining whether the University can comply with a complainant's request not to proceed, the Title IX Coordinator or Assistant Title IX Coordinator for Employment will consider a range of factors, including:
- The severity and impact of the conduct, including whether a weapon was used;
- Whether the complainant is a minor under the age of 18;
- Whether the respondent has a pattern of similar conduct;
- Whether the respondent threatened further violence or other violence against the complainant or others;
- Whether the university possesses other means to obtain relevant evidence of the alleged sexual misconduct (security cameras, video recordings, photographs or other evidence); and
- The extent of prior remedial methods taken with the respondent.
The presence of one or more factors could lead the Title IX Coordinator or Assistant Title IX Coordinator for Employment to determine that the University should investigate the incident, and if appropriate, pursue disciplinary action against the respondent despite the complainant's request.
After evaluating the appropriate factors, if the complainant's request for confidentiality and/or not to proceed is granted, the University will take all reasonable steps to respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation or formal complaint, but its ability to do so may be limited based on the nature of the request by the complainant. Examples of potential non‐disciplinary responses are provided in paragraph B above. Other potential responses include targeted or broad‐based educational programming or training; in cases involving nonstudents, informal resolution as described in Section XII(B) below; and/or indirect action by the Title IX Coordinator, Assistant Title IX Coordinator for Employment, or other individuals brought in to handle indirect action with consent of the complainant.
Where the University is unable to take action consistent with the request of the complainant, the Title IX Coordinator or Assistant Title IX Coordinator for Employment will tell the complainant about the University's chosen course of action, which may include the University choosing to pursue action against a respondent on its own behalf. The University will not require a complainant to participate in any investigation or disciplinary proceeding. The course of action may also include steps to limit the effects of the alleged misconduct and prevent its recurrence that do not involve disciplinary action against a respondent or revealing the identity of the complainant.
A complainant who initially requests confidentiality or asks that the University not proceed with an investigation or disciplinary action may later request that a full investigation be conducted.
XI. Investigation and Resolution for Complaints against Students
A. Overview of Procedural Options
The following procedures will be used if the respondent is a degree-seeking student.
Following the Title IX assessment, the University may 1) seek a remedies-based resolution that does not involve disciplinary action against a respondent; or, 2) initiate an investigation to determine if a Student Faculty Hearing Board Hearing should be held. The goal of the investigation is to gather all relevant facts and determine if there is sufficient information to support a charge against a respondent.
Each resolution process is guided by the same principles of fairness and respect for all parties.
B. Remedies-Based Resolution
Remedies-based resolution is a non-disciplinary approach designed to eliminate a reported hostile environment without initiating potential disciplinary action against a respondent. Where the Title IX assessment concludes that remedies-based resolution is appropriate, the University will take immediate and corrective action through the imposition of individual and community remedies designed to maximize the complainant's access to the educational, extracurricular, employment or volunteer activities at the University. Examples of protective, non-disciplinary remedies are provided in Section X (B): Interim Measures. Other potential remedies include targeted or broad-based educational programming or training, supported direct confrontation of the respondent, and/or indirect action by the Title IX Coordinator or the University. Depending on the form of remedies-based resolution used, it may be possible to maintain anonymity.
The University will offer mediation or direct confrontation for appropriate cases, but it will not compel a complainant to engage in mediation or to directly confront the respondent. Mediation and direct confrontation, even if voluntary, may not be used in cases involving sexual assault.
Participation in remedies-based resolution is voluntary, and a complainant can request to end remedies-based resolution at any time and proceed with an investigation and potential disciplinary action.
The Title IX Coordinator will maintain records of all reports and conduct resolved by remedies-based resolution. If mediation or direct confrontation is used, it will typically be completed within forty-five (45) business days of the initial report, absent extraordinary circumstances.
To conduct an investigation, the University will designate an investigation team that has specific training and experience investigating allegations of sexual misconduct. The University will typically use a team of two investigators. Any investigator must be impartial and free of any conflict of interest. One of the investigators may be the Title IX Coordinator.
The investigation will begin twenty‐four (24) hours after an initial meeting with a respondent has taken place. At this initial meeting with the respondent, the respondent will be informed that allegations of prohibited conduct have been made and that such allegations will be investigated. The University's policies and procedures, as well as the respondent's rights and responsibilities will also be explained at this time.
During the pendency of an investigation and disciplinary proceeding, a complainant and respondent will be provided with a Hearing Advisor and, in addition, may have an Advisor of Choice (see paragraph G(3) of this section) present at any meeting or proceeding related to the investigative or disciplinary process.
The investigation team will conduct the investigation in a manner appropriate in light of the circumstances of the case. It will coordinate the gathering of information from the complainant, the respondent, and any other individuals who may have information relevant to the determination. It will also gather any available physical evidence, including documents, communications between the parties, and other electronic records as appropriate. The complainant and respondent will have an equal opportunity to be heard, to submit information, and to identify witnesses who may have relevant information. Witnesses must have observed the acts in question or have information relevant to the incident; they cannot be participating solely to speak about an individual's character.
The investigation is designed to provide a fair and reliable gathering of the facts. It will be thorough, impartial, and fair, and all individuals will be treated with appropriate sensitivity and respect. As described in Section IV, the investigation will be conducted in a manner that respects individual privacy concerns to the extent permitted by applicable law and University policy.
The University will seek to complete the investigation within thirty (30) calendar days of receiving the complaint, but this time frame may be extended depending on the complexity of the circumstances of each case. At the request of law enforcement, the University may agree to defer its Title IX fact-gathering until after the initial stages of a criminal investigation. The University will nevertheless communicate with the complainant and the respondent (if the respondent is aware of the complaint and/or law enforcement investigation), regarding Title IX rights, procedural options, and the implementation of interim measures to assure the safety and well-being of all affected individuals. The University will promptly resume its Title IX fact-gathering as soon as law enforcement has released the case for review following the initial criminal investigation.
Information the University gathers during the review or investigation will be used to evaluate the responsibility of the respondent, to provide for the safety of the complainant and the University community, and to take appropriate measures to end any misconduct, prevent its recurrence, and address its effects.
The Title IX Coordinator will retain copies of all reports generated as a result of investigations. The University will keep these records confidential to the extent permitted by law. Investigative meetings may not be audio or video recorded.
All witnesses, the complainant, and the respondent are expected to participate in the investigative process.
In order to protect the integrity of the investigation, no one involved in the investigation should discuss what they shared with investigators to any witness or potential witness during the pendency of the proceedings.
1. Review of Investigation Report
At the conclusion of the investigation, the investigation team will prepare a written report that summarizes the information gathered and synthesizes the areas of agreement and disagreement between the parties and any supporting information. The investigation team will review all facts gathered to determine whether the information is relevant and material to the determination of responsibility given the nature of the allegation. In general, the investigation team may redact information that is immaterial. The investigation team may also delete statements of personal opinion, rather than direct observations or reasonable inferences from the facts, and statements as to general reputation for any character trait, including honesty.
Before the team finalizes the report, it will give the complainant and respondent the opportunity to review the investigation report. The complainant and respondent may submit any additional comments, request changes, or request further investigation from the investigation team.
After giving the parties the opportunity to comment on the report orally or in writing, the team will make changes to the investigation report based on those comments at the discretion of the investigation team. The team will submit the report to the Chair of the Student Faculty Hearing Board.
2. Role of the Chair of the Student Faculty Hearing Board
The Chair of the Student Faculty Hearing Board is a specifically trained administrator appointed by the Vice President for Student Affairs and Dean of Students. Any Chair appointed must be impartial and free of any conflict of interest. The Chair issues the formal charge, selects and convenes a hearing panel of the Student Faculty Hearing Board, and oversees the Pre‐ Hearing Conference.
3. Determination to Proceed to Student Faculty Hearing Board
Based on the investigation report, the Chair of the Student Faculty Hearing Board will determine whether to formally charge the respondent and will notify the parties. A charge will be issued if the complainant's factual allegations plausibly and more than sheer possibility would constitute a violation of this policy. Absent extenuating circumstances, the decision whether to formally charge the respondent will be made within two (2) calendar days after the Chair receives the investigation report.
The formal charge(s) will state the subject matter of the complaint ("Retaliation," and/or "Sexual Misconduct"), the name of the complainant, and the approximate date and/or timeframe for the alleged conduct. The formal charge need not include details on the sub-categories of behavior within each charge. Thus, for example, in a given case, and without elaboration on the face of the charge, a charge of Sexual Misconduct may be deemed to encompass Nonconsensual Sexual Intercourse, Nonconsensual Sexual Contact, Sexual Exploitation, Stalking, Dating or Domestic Violence, and/or Sexual Harassment.
Charge for Conduct Unbecoming of a Washington and Lee Student: A charge of "conduct unbecoming" may accompany a charge for Sexual Misconduct.
University-issued e-mail is the primary means of communication used by the University. The Chair of the Student Faculty Hearing Board may deliver notice of the charge by one or more of the following methods:
- In person by the Chair of the Student Faculty Hearing Board or designated University administrator;
- Mailed to the local or permanent address of the individual as indicated in official University records; or
- E-mailed to the individual's University-issued e-mail account.
Once a formal charge has been issued, the respondent will answer the charge as "Responsible," "No Contest," or "Not Responsible." If the respondent answers "Responsible" or "No Contest," the charge goes to the Student Faculty Hearing Board to determine an appropriate sanction. The respondent must answer the charge before or during the Pre-Hearing Conference, which is held, absent extraordinary circumstances, within seven (7) calendar days after the issuance of the formal charge document.
4. Pre-Hearing Conference
The Chair will hold a Pre‐ Hearing Conference with the parties and their Advisors to address evidentiary or other matters before the investigation report is presented to the Student Faculty Hearing Board.
Parties may request in writing that additional investigation be conducted, which may include that witnesses be asked additional questions or that additional witnesses be interviewed, or that changes be made to the investigation report. Additionally, parties will be informed of the composition of the proposed hearing panel and be allowed to object to the appointment of hearing panel members. Absent extenuating circumstances, this Pre‐Hearing Conference will be held within seven (7) calendar days of issuance of the charge document.
D. Student Faculty Hearing Board (SFHB)
The Student Faculty Hearing Board is the body that determines responsibility and, if warranted, administers sanctions and/or discipline against a respondent.
The four-member SFHB hearing panel will make a finding, by a preponderance of the evidence and majority vote, as to whether the respondent is responsible for conduct in violation of this policy.
1. Composition and Selection of the Student Faculty Hearing Board
The SFHB is composed of four student members, four faculty members, and one administrator. The administrator serves as the Chair of the SFHB. The Chair does not vote on matters before the SFHB.
Following the procedures outlined in the Student Faculty Hearing Board Procedures, the Executive Committee of the Student Body (EC) shall appoint the four student members of the SFHB. The Provost shall appoint the four faculty members to three-year, staggered terms on the SFHB. All SFHB members are trained to adjudicate cases of sexual misconduct.
Following the formal charge, the SFHB Chair shall select and convene a hearing panel composed of five SFHB members, two faculty members, two student members, and the Chair. The remaining student and faculty members are alternates.
Each member of the hearing panel must be neutral and impartial. The complainant and respondent shall be informed of the hearing panel's composition at the Pre-Hearing Conference. Either party may object to the appointment of any member of the hearing panel if there are reasonable articulable grounds to suspect bias, conflict of interest, or an inability to be fair and impartial. The objection should be directed to the Chair at the Pre-Hearing Conference. The Chair will make the final determination on a member's ability to serve on the hearing panel. Additionally, any hearing panel members who have reason to believe they cannot make an objective determination must recuse themselves from the process.
2. Hearing Procedures
A hearing will be held in a timely manner; assuming no extraordinary circumstances, within fourteen (14) calendar days of issuance of the formal charge.
All hearings are closed to the public and may not be audio or video recorded. The complainant and the respondent have the right to be present during the hearing. Although both the complainant and respondent are entitled to be present throughout the hearing, if either party does not want to be present during the hearing, the party can participate through electronic means. A privacy screen will be erected unless both parties request otherwise.
The hearing panel will review the investigation report prior to the hearing. During the hearing, the hearing panel may question the complainant and respondent, question the investigators, and examine related information and evidence. The hearing panel shall restrict their questions to matters that the Chair deems relevant to the specific case.
The parties cannot verbally pose questions to each other. However, the parties may submit written questions to the Chair of the SFHB to ask on their behalf. After the Chair of the Student Faculty Hearing Board screens the questions for relevancy, the hearing panel will review the written questions submitted by the parties and will only ask those the hearing panel deems appropriate and relevant to the case.
Both a complainant and respondent have the right to provide relevant information during the hearing. However, parties cannot call witnesses or present information at the hearing that could reasonably have been provided during an investigation or during the Pre‐Hearing Conference. If information produced during the hearing discloses additional tangible evidence or witnesses with relevant information that could not have reasonably been provided during an investigation or Pre‐Hearing Conference, the Chair may obtain that evidence or call those witnesses to testify.
The hearing is confidential to protect the privacy interests of all involved. Any hearing panel member, the Chair, Investigators, Hearing Advisors, and Advisors of Choice are expected to maintain the confidentiality of the proceedings except where disclosure may be authorized or mandated by law or authorized in connection with duties on behalf of the University.
After considering all of the relevant information, the hearing panel will make a finding by a preponderance of the evidence as to whether the respondent is responsible for conduct in violation of this policy.
At any time during the hearing process, the respondent may choose to agree to a finding of responsibility relating to some or all of the charged conduct.
3. Imposition of Sanction
If the respondent is found "Responsible," the hearing panel will impose a sanction designed to eliminate the misconduct, prevent its recurrence, and remedy its effects, while supporting the University's educational mission and complying with the University's Title IX obligations.
The the complainant and respondent, and other affected parties, as appropriate, will each have the opportunity to present a written statement about the impact of the violation and/or requested sanctions. The hearing panel will review these statements only if the hearing panel finds the respondent responsible for one or more violations.
The hearing panel shall determine the appropriate sanction (or combination of sanctions) as contained in the Sanction Guideline Matrix. There is a mandatory sanction for a finding of Non-Consensual Sexual Intercourse - it will result in dismissal of the respondent from the University.
a. Sanction Guideline Matrix
|Prohibited Behavior||Range of Sanctions|
|Non-Consensual Sexual Intercourse||Dismissal|
|Non-Consensual Sexual Contact
Non-Physical Sexual Harassment
In considering the appropriate sanction, the hearing panel will consider the following factors:
- The respondent's prior discipline history;
- How the University has 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 community, its members, or its property;
- Whether the respondent has accepted responsibility;
- Whether the respondent is reasonably likely to engage in the conduct in the future;
- The need to prevent similar conduct by this respondent; and
- Any other mitigating or aggravating circumstances, including the University's values.
4. Notice of Outcome
Within two (2) calendar days of the decision, the Chair of the SFHB shall provide to the parties a copy of the written report of the hearing panel.
If applicable, the Chair will inform the respondent of any sanctions, the date by which the requirements must be satisfied, and the consequences of failure to satisfy the requirements. The Chair also will inform the complainant of any sanctions that directly relate to the complainant or are required by federal law to be disclosed to the complainant in the case of certain sexual offenses, including sexual assault, domestic/dating violence, and stalking.
The Chair will also provide each party with an outcome letter containing their appeal options.
The University may also notify appropriate University employees, as necessary to implement the outcome and/or sanctions.
A public notice will be posted that includes the nature of the conduct and each charge for which the party was found "Responsible" or "Not Responsible." If there is a finding of responsibility, the public notice will include the sanction imposed for the charge. The Office of the Vice President for Student Affairs will maintain copies of all public notices for 10 years.
5. Additional Remedies
Upon a finding of responsibility, additional remedies, in addition to the hearing panel's issued sanction, may be available to a complainant. Examples of potential remedies are provided in Section X(B). Other potential remedies include targeted or broad‐based educational programming and/or training. The Title IX Coordinator, in consultation with others as necessary, will determine any appropriate additional remedies.
E. Transcript Notations
Pursuant to and as required by Virginia law, for each student who has been suspended for, permanently dismissed for, or withdraws from the University while under investigation for an offense involving sexual violence (defined as physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent), the University will make or cause to be made a prominent notation on the academic transcript of each student. In cases of suspension and dismissal this transcript notation will read: "[Suspended or Dismissed] for a violation of W&L's set of standards." In cases of withdrawal, the notation will read: "Withdrew while under investigation for a violation of W&L's set of standards. This withdrawal as noted does not constitute a finding or admission of responsibility on the part of the student."
The University shall remove from a student's academic transcript any notation placed on such transcript due to a student's suspension if the student (1) completed the term of the suspension and any conditions thereof and (2) has been determined by the institution to be eligible to return to the University.
Either party may appeal the finding of a policy violation/non-violation and/or a sanction to the University Board of Appeals, in accordance with the policies that apply to that body, within seventy-two (72) hours of receipt of the written SFHB hearing report.
G. Additional Considerations for Complaints against Students
1. Time Frames for Resolution
Washington and Lee will make every effort to successfully resolve all reports within sixty (60) calendar days. The 60 day timeframe refers to the investigation process, hearing, and imposing sanctions and remedies. It does not include appeals. All time frames expressed in this policy are meant to be guidelines rather than rigid requirements. Circumstances may arise that require the extension of time frames, including extension beyond 60 days. Such circumstances may include, but are not limited to, the complexity of the allegations, the number of witnesses involved, the availability of the parties or witnesses, the effect of a concurrent criminal investigation, any intervening school break or vacation, or other unforeseen circumstances.
In general, a complainant and respondent can expect that the process will proceed according to these time frames:
- The investigation will be completed within thirty (30) calendar days of receiving the complaint.
- The Chair of the SFHB will decide whether to charge the respondent within two (2) calendar days after receiving the investigation report.
- Pre-Hearing conference will be held within seven (7) calendar days after formal charge.
- The Student Faculty Hearing Board hearing will be held within fourteen (14) calendar days after the formal charge.
- Notice of outcome will be provided within two (2) calendar days of the SFHB decision.
- If there is a request for appeal, the decision whether to grant or reject the request for appeal will be resolved within five (5) calendar days after the receipt of the request for an appeal.
- If a request for appeal is granted, the appeal will be resolved within ten (10) calendar days from the time the appeal was granted.
If the investigation and resolution exceed this time frame, the University will notify all parties of the reason for the delay and the expected adjustment in time frames. The University will use its best efforts to complete the process in a timely manner by balancing principles of thoroughness and fundamental fairness with promptness. All parties involved are entitled to periodic status updates on the progress of the complaint.
2. Group Infractions
When members of a student group, an organization, or a team, or individuals acting collusively act in concert in violation of this policy, they may be charged as a group or as individuals, and an investigation may proceed against the group as joint respondents or against one or more involved individuals as appropriate given the available information and the circumstances.
A student group, an organization, or a team's officers and membership may be held collectively and individually responsible when violations of this policy by the organization or its members take place at organization-sponsored events, have received the consent or encouragement of the organization or of the organization's leaders or officers, or were known or reasonably should have been known to the membership or its officers.
In any such action, individual determinations as to responsibility will be made and sanctions may be assigned collectively and individually in proportion to the involvement of each individual.
The term "Advisors" refer to both Hearing Advisors and an Advisor of Choice.
If an investigation of prohibited conduct is initiated, the complainant and respondent will be provided with one or two Hearing Advisors. Hearing Advisors are law and undergraduate students that have been trained to provide support and advice to complainants and respondents. In addition to the Hearing Advisor(s), both parties have the right to obtain assistance, at their own expense, from an Advisor of Choice. And Advisor of Choice can be a friend, mentor, family member, attorney, or any other supporter parties choose to advise them. Advisors of Choice are not trained by the University and are not University resources.
Complainants and respondents looking for legal counsel may with to contact the Virginia State Bar lawyer referral service by calling the VLRS toll-free number, 800.552.7977. More information about the service can be found here: http://www.vsb.org/vlrs/
The role of Advisors is to advise the complainant or respondent of applicable procedures including the appeal process, if applicable. Advisors are also available to offer support and to provide information on additional resources. While Advisors may accompany the complainant and respondent at meetings, they may not present evidence, question witnesses, or otherwise participate. Parties may request a brief recess to consult with their Advisors, which will be granted at the discretion of the Investigators or the Chair of the SFHB.
Any Advisor who does not follow the University's policies, procedures, or practices relating to the Advisor's role in the resolution process will be warned once. If the Advisor continues to disregard the University's policies, procedures, and practices or disrupts or otherwise fails to respect the limits of the role, such Advisor will be asked to leave the meeting, hearing, or other proceeding at the discretion of the Chair of the Student Faculty Hearing Board or the investigators. When an Advisor is removed from a meeting, hearing, or other proceeding, it will continue without the Advisor's presence.
Parties may choose to share the investigation report and other information with their Advisors. All Advisors are expected to maintain the confidentiality of any records shared with them. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by the University or by the applicable law. The University may seek to restrict the role of any Advisor who does not respect the sensitive nature of the process or who fails to abide by the University's confidentiality expectations.
The University expects all Advisors to adjust their schedule to allow them to attend University meetings when scheduled. The University does not typically change scheduled meetings to accommodate an Advisor's inability to attend. The University will, however, make provisions to allow an Advisor who cannot attend in person to attend a meeting by telephone, video and/or virtual meeting technologies as may be convenient and available.
The University will not recognize or enforce agreements between the parties reached outside of these procedures.
4. Prior Sexual History
In general, a complainant's prior sexual history is not relevant and will not be admitted as evidence during an investigation and/or hearing. However, where there is a current or ongoing relationship between the complainant and the respondent, and the respondent alleges consent, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties. As noted in other sections of this policy, however, the mere fact of a current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Any prior sexual history of the complainant with other individuals is typically not relevant and will not be permitted.
5. Pattern Evidence
Where there is evidence of a pattern or conduct similar in nature by a respondent, either prior to or subsequent to the conduct in question, regardless of whether there has been a finding of responsibility, this information may be deemed relevant and probative to the hearing panel's determination of responsibility. The determination of relevance will be based on an assessment of whether: (1) the previous incident was substantially similar to the present allegation; and (2) indicates a pattern of behavior and substantial conformity with that pattern by a respondent. Where there is a prior finding of responsibility for a similar act of sexual misconduct, there is a presumption of relevance. The Chair of the SFHB will make the determination as to whether or not the hearing panel will consider the pattern evidence and in doing so will carefully review the relevancy and reliability of the alleged similar conduct.
6. Consolidation of Investigation
The Title IX Coordinator may consolidate multiple reports against a single respondent or group of respondents into one investigation if the evidence related to each incident would be relevant and probative in reaching a determination on the other incident(s).
The Title IX Coordinator will retain records of all reports, allegations, and complaints. Complaints resolved by remedies-based resolution are not part of a student's conduct file or academic record.
Pursuant to Virginia law, the Title IX Coordinator and the Public Safety representative of the University's Review Committee will also retain independent records related to the Review Committee's considerations upon a report of sexual violence.
Affirmative findings of responsibility in matters resolved through a Student Faculty Hearing Board hearing 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. In general, the University will maintain records for the duration of the respondent's relationship with the University, and may retain them for no less than seven (7) years following the respondent's departure from the University. In allegations involving child abuse, the University may keep the records indefinitely.
If the SFHB hearing panel does not find the respondent responsible, the student's conduct file or academic record will reflect the finding.
XII. Investigation and Resolution for Complaints against Faculty, Staff, and Other Non-Students
Because the relationship of students, staff, and faculty to the University differ in nature, the procedures that apply when seeking disciplinary action necessarily differ in some respects. Each of the procedures, however, is guided by the same principles of fundamental fairness and respect for all parties, which require notice, an equitable opportunity to be heard, and an equitable opportunity to respond to a report.
The procedures set forth below will be applied when the respondent is a member of the faculty, staff, or other non-student.
A. Definitions of Terms and Acronyms
The Treasurer/Vice-President for Finance and Administration and the Provost will serve as Co-Chairs of the Investigation and Review Officers ("IROs"). As described fully below, the Co-Chairs, who are specially trained to carry out these procedures, receive formal complaints, appoint the Investigator(s), Review Panel, and Appeal Panel (as needed), communicate with the parties at various stages in a complaint proceeding, and determine the sanction when a policy violation is found. The Co-Chairs serve as advisors to the IROs on procedural matters.
2. Advisors: Discrimination Policy Advisers and Advisors of Choice
Discrimination Policy Advisers: Discrimination Policy Advisers ("DPAs") are a group of 15-20 specially trained faculty and staff representing a cross-section of the University community. DPAs are peer-nominated, selected by the Co-Chairs, and then invited to serve by the President for three-year staggered terms. DPAs may be invited to serve additional terms without a lapse, but are subject to removal by the President at the request of either Co-Chair. The role of the DPAs is to provide procedural information and options to complainants and respondents regarding complaints against faculty, staff, or other non-students. DPAs can also work informally to resolve matters themselves or bring in others to assist with informal resolution, where appropriate.
Advisor of Choice: In addition to a DPA, when a formal complaint of sexual assault, domestic or dating violence, or stalking has been filed, both the complainant and the respondent have the right to select an Advisor of Choice, who may be an attorney. Advisors of Choice are authorized to be present with either party in University-related proceedings under this policy only when a formal complaint of sexual assault, domestic/dating violence, or stalking has been filed. These Advisors of Choice are not trained by the University and are not University resources.
Complainants and respondents looking for legal counsel may wish to contact the Virginia State Bar lawyer referral service by calling the VLRS toll-free number, 800.552.7977. More information about the service can be found here: http://www.vsb.org/vlrs/
Role of DPAs and Advisor of Choice: The role of the Advisors is to advise the complainant or respondent of applicable procedures, and to advise the complainant or respondent on the specifics of a written appeal, if applicable. Advisors are also available to offer support and to provide information on additional resources. While Advisors may accompany the complainant and respondent at meetings, they may not present evidence, question witnesses, or otherwise participate. Either party may request a brief recess to consult with their Advisor, which will be granted at the discretion of the Investigator(s) or the appropriate Co-Chair.
Advisors who do not follow the University's policies, procedures, and practices relating to their role in the resolution process will be warned once. If the Advisor continues to disregard the University's policies, procedures, and practices or disrupts or otherwise fails to respect the limits of the role, such Advisor will be asked to leave the meeting, hearing, or other proceeding at the discretion of the Co-Chair or the Investigator(s). When an Advisor is removed from a meeting, hearing, or other proceeding, it will continue without the Advisor's presence.
The University expects all Advisors to adjust their schedules to allow them to attend University meetings when scheduled. The University does not typically change scheduled meetings to accommodate an Advisor's inability to attend. The University will, however, make provisions to allow an Advisor who cannot attend in person to attend a meeting by telephone, video and/or virtual meeting technologies as may be convenient and available.
The University will not recognize or enforce agreements between the parties reached outside of these procedures.
3. DPA Coordinator
At the beginning of each academic year, the Co-Chairs will appoint one of the DPAs who has served as a DPA for at least two (2) years to serve as the DPA Coordinator. The DPA Coordinator may serve multiple consecutive years in this capacity if agreed to by the DPA Coordinator and the Co-Chairs. The DPA Coordinator is responsible for coordinating training and meetings of all DPAs and serves as an adviser to the DPAs on procedural matters related to complaints of sexual misconduct against faculty, staff, and other non-students. The DPA Coordinator is also responsible for collecting and submitting summary reports to the Title IX Coordinator on all matters referred to any DPA. In order for the DPA Coordinator to remain available to advise any DPA on the resolution process and procedural matters, the DPA Coordinator may not serve as a DPA for any party to a formal complaint.
4. Investigation and Review Officers
Investigation and Review Officers (IROs”) are a group of University administrators who are specially trained to investigate and review complaints of sexual misconduct against members of the faculty, staff, and other non-students. When a formal complaint of sexual misconduct is filed against a member of the faculty, staff, or other non-student under this policy, the Co-Chairs select the Investigator(s), an Investigation and Review Panel (“IRP”), and (if needed) an Appeal Panel from the pool of the available IROs. The IROs consist of the following administrators:
- Vice President for Student Affairs and Dean of Students
- Associate Provost
- Dean of the College
- Dean of the Williams School
- Dean of the School of Law
- Associate Deans of the College
- Associate Dean of the Williams School
- Assistant Dean of the Williams School
- Associate Dean for Administration and Student Affairs (Law School)
- Professor of Law and Associate Dean (Law School)
- Clinical Professor of Law and Director of Academic Success (Law School)
- Assistant Dean, Office of Career Strategy (Law School)
- Executive Director of Human Resources (Assistant Title IX Coordinator for Employment)
- Chief Technology Officer
- Director of Athletics
B. Informal Resolution
Where the Title IX assessment concludes that informal resolution is appropriate (see Section X(C), the University will take immediate and corrective action through the imposition of individual and community remedies designed to maximize the complainant’s access to the educational, extracurricular, employment or volunteer activities at the University.
DPAs, a Human Resources staff member (including the Assistant Title IX Coordinator for Employment), a staff supervisor or Dean (in his/her role as faculty supervisor), and/or the Title IX Coordinator may informally resolve concerns themselves or may bring in others (with the consent of the parties), as appropriate, to assist with resolution. Any of the individuals listed above may also refer the matter for informal resolution to another individual given authority to assist with informal resolution. Once a matter has been informally resolved, referred, or the complainant decides to pursue a formal complaint, the individual involved with the informal resolution will submit a written summary report to the Title IX Coordinator for review.
C. Formal Complaint
(Note: all time frames referenced in these formal complaint procedures are subject to extension by the appropriate Co-Chair for good reason.)
1. Initiation of Formal Complaint
A formal complaint against a member of the faculty, staff, or other non-student should be initiated through a DPA or the Title IX Coordinator. A complainant or any other concerned individual wishing to bring a formal complaint may contact a DPA or Title IX Coordinator directly, or may be referred to a DPA or the Title IX Coordinator by another resource. The complaint should be brought by bringing information or submitting a signed writing to a DPA or the Title IX Coordinator. If a complaint is initiated through a DPA, the DPA will then contact the DPA Coordinator to advise that the complaint is being initiated formally. The DPA Coordinator should notify the Title IX Coordinator that a formal complaint is being initiated.
In cases where a formal complaint has been initiated alleging sexual assault, domestic or dating violence, or stalking, the DPA or Title IX Coordinator through whom the formal complaint has been initiated should advise the complainant of the right to be supported by an Advisor of Choice in addition to a DPA, at all meetings at which a DPA otherwise would be present. If the complainant elects to use an Advisor of Choice the complainant will advise the DPA or Title IX Coordinator of the identity and contact information for such Advisor of Choice, and the DPA or Title IX Coordinator will provide that information to the DPA Coordinator, the Assistant Title IX Coordinator and/or Title IX Coordinator, and the appropriate IRO Co-Chair.
2. Submission of Complaint / Notification to Respondent
The DPA or Title IX Coordinator will submit the formal complaint to the appropriate IRO Co-Chair (Provost if the respondent is a faculty member; Treasurer/Vice President for Finance and Administration if the respondent is a staff member or other non-employee, subject to the exceptions set forth in paragraphs C(4) and C(5) below). The DPA Coordinator or Title IX Coordinator should submit a copy of the summary report, if any, outlining prior handling of the complaint through informal channels, to the appropriate Co-Chair, to be included with the record.
The appropriate Co-Chair will then promptly (within two (2) business days after being provided the complaint, if practicable) notify the respondent that a formal complaint has been initiated and make arrangements to meet with the respondent to provide the respondent with a verbal summary of the complaint and outline the complaint process. The Co-Chair will advise the respondent of the University's non-retaliation policy, and will inform the respondent of his/her right to choose a DPA (or, in cases alleging sexual assault, domestic or dating violence, or stalking, an Advisor of Choice) and to submit to the Investigator(s), if desired, a written statement regarding the complaint to be included in the record. If the respondent chooses to submit a written statement, the respondent should do so within three (3) business days after being given a verbal summary of the complaint.
3. Preliminary Actions by Co-Chair
The appropriate Co-Chair will promptly appoint an IRO to serve as the Investigator. In some cases, the Co-Chair may appoint a team of two Investigators as the Co-Chair deems appropriate. The Co-Chair will then make a preliminary selection of three (3) IROs to serve as the members of the three-person Investigation and Review Panel. If an IRO is the respondent or the complainant, the process operates as otherwise set forth in this policy, except that the IRO who is the respondent will not being involved in any capacity other than as a party.
4. Complaint by or against an IRO Co-Chair
If one of the Co-Chairs is the respondent or complainant, the President will serve in the role of that Co-Chair and the process will operate as otherwise set forth in this policy. In this situation, any appeal would go to the Chair of the Audit Subcommittee of the Finance Committee of the Board of Trustees ("Audit Subcommittee").
5. Complaint against the President and/or a Trustee
If the respondent is the President or a member of the Board of Trustees, a complaint must be filed directly with the Audit Subcommittee by delivery of a sealed written complaint to the Secretary of the University, Washington Hall 203, labeled "Complaint to the Audit Subcommittee under the Amended Interim Sexual Misconduct Policy." The Secretary of the University will deliver the sealed written complaint intact to the Chair of the Audit Subcommittee and the Audit Subcommittee will handle or direct all further proceedings.
6. Involvement of Assistant Title IX Coordinator for Employment in Formal Complaints
The Assistant Title IX Coordinator for Employment will be available to serve as a resource for the Co-Chairs, the Investigator(s), the DPAs, and/or the parties to a formal complaint, in order to address issues that arise during the complaint process. In the event that the Assistant Title IX Coordinator for Employment has had a substantive role in informal complaint resolution efforts prior to the initiation of the formal complaint, or acts as a resource beyond the resolution of purely procedural questions during the formal complaint process, the Assistant Title IX Coordinator will be disqualified from serving on any Investigation Review Panel or Appeal Panel in that case thereafter.
The investigation is conducted solely by the appointed Investigator(s), who will interview the parties and other witnesses as necessary. The complainant and respondent will have an equal opportunity to be heard, to submit information, and to identify witnesses who may have relevant information. A party's DPA (and/or Advisor of Choice in cases alleging sexual assault, domestic or dating violence, or stalking) may accompany the party during an interview if requested by the party as a support resource, but may not participate in the interview. The Investigator(s) will inform the parties and witnesses of the University's prohibition of retaliation against any person involved in a complaint process. In most cases, absent unusual circumstances, the investigation should be completed within twenty (20) business days after the Investigator receives the complaint.
E. Withdrawal of Complaint; Review of Parties' Proposed Resolution
1. Withdrawal of Complaint
At any time during the formal complaint process, the complainant may request of the Co-Chair to withdraw his/her formal complaint. Before approving a withdrawal of the complaint, the Co-Chair will meet with the complainant and his/her DPA and/or Advisor of Choice, if desired, to discuss the request. The Co-Chair retains the discretion to reject the request for withdrawal and to proceed with the formal process, with or without the further participation of the complainant, if the Co-Chair believes it prudent and appropriate to do so in the best interest of the University community, based on all relevant information. The Co-Chair will consider factors including: the severity and impact of the conduct, including whether a weapon was used; whether the complainant is a minor under the age of 18; whether the respondent has a pattern of similar conduct; whether the respondent threatened further violence or other violence against the victim or others; whether the university possesses other means to obtain relevant evidence of the alleged sexual misconduct (security cameras, video recordings, photographs or other evidence); and the extent of prior remedial methods taken with the respondent. Regardless of the Co-Chair’s decision a complainant is not required to participate in an investigation or hearing.
2. Review of Parties' Proposed Resolution
If, after the initiation of a formal complaint but before the issuance of the investigative report, the respondent acknowledges inappropriate conduct and proposes a resolution/sanction agreeable to the complainant, an IRP will be appointed to review the conduct acknowledged and the proposed resolution/sanction. If the IRP finds the resolution/ sanction reasonable, it will be recommended and sent to the appropriate Co-Chair for implementation. If the IRP finds the proposed resolution/sanction unreasonable given the nature and circumstances of the conduct acknowledged or alleged, it may reject the proposed resolution/sanction and conduct a normal IRP review after issuance of the investigation report.
F. Investigation Report; Party Responses; IRP Appointment
1. Investigation Report
Upon conclusion of the investigation, the Investigator(s) will prepare and submit to the appropriate Co-Chair a written investigation report, reaching an assessment on whether the facts present conduct that would constitute a violation of this policy by a preponderance of the evidence, or other University policies. The complainant and respondent will each be provided with a version of the report (the University reserves the right to redact witness names and personally identifiable witness statements), not to be copied or distributed, but which the party may share with his/her DPA (and/or Advisor of Choice in a case alleging sexual assault, domestic or dating violence, or stalking).
2. Party Responses to Investigation Report
The parties will each have three (3) business days from the day of their receipt of the investigation report to prepare and submit a written response to the appropriate Co-Chair for the record.
3. IRP Appointment
The appropriate Co-Chair will then promptly notify the parties of which IROs have been selected to make up the Investigation and Review Panel (IRP) and will designate one of them as IRP Chair. The parties must submit any concerns about the IRP composition to the Co-Chair in writing within one (1) business day of receipt of notice. The Co-Chair may follow-up with the parties and/or IRP members regarding any stated concerns, as needed. The Co-Chair will notify the parties and IRP members of any change to the composition of the IRP if the Co-Chair concludes that one or more of the designated IRP members should not serve on that panel. Note: see section C(6) above regarding participation of Executive Director of Human Resources/Assistant Title IX Coordinator for Employment when s/he has had any substantive role in efforts to informally resolve the complaint or the formal complaint process.
G. IRP Review
The IRP will review the investigation report and the related record regardless of whether the Investigator(s) concluded a violation occurred. In most cases, absent unusual circumstances, the IRP review should be completed within seven (7) business days of the date the IRP members receive the record from the Co-Chair.
The IRP may decide the case based on a thorough review of the entire record of the case including the investigation report and any written comments provided by either party. If the IRP has any questions, it may meet with the Investigator(s) in person and/or may request that the parties separately meet with the IRP (in which case, the parties' DPAs and/or Advisors of Choice in a case alleging sexual assault, domestic or dating violence, or stalking, if any, may be present but may not participate). If the IRP finds that any other follow-up is needed with witnesses, the Investigator(s) will conduct the follow-up and submit an addendum to the written investigation report, which will be sent to the IRP. In such instances, the parties will be given an opportunity to review the addendum, consistent with the parties' opportunity to review the original investigation report.
Once the IRP has determined that it has sufficient information to make a decision, it will discuss the matter outside the presence of the Investigator(s) and the parties. The IRP will then reach a decision on whether this policy was violated by a preponderance of the evidence, and (if so) will make a written recommendation of sanctions to the appropriate Co-Chair. The IRP may also make recommendations to the Co-Chair for appropriate follow-up actions (including training, counseling, or other educational opportunities) in the absence of a finding of a violation of this policy.
H. Co-Chair’s Notice to Parties of Final Decision, Sanction, and Remedies
The IRP's decision about whether this policy was violated is binding on the Co-Chair, but subject to appeal by either party. However, the Co-Chair has the discretion to determine the final sanction if the IRP has found a violation of this policy or to impose follow up actions in the absence of such a violation. The potential sanctions include:
- Verbal or written warning;
- Referral to the Employee Assistance Program or other mandatory conditions, which may include training, or some other professional development;
- A no contact directive;
- Modified employment duties;
- Suspension with pay;
- Suspension without pay;
- Nonrenewal or non-reappointment;
- Demotion in rank or pay;
- Loss of rank;
- Denial of salary increase;
- Transfer to another position;
- Relocation of office;
- Dismissal from academic course if respondent is taking a course at the University;
- Termination; and
- Trespassing respondent from the University.
If the respondent is a non-employee, sanctions include:
- Verbal or written warning;
- Trespassing the respondent from the University;
- Dismissal from academic course if respondent is taking a course at the University; or
- Modification or termination of the non-employee’s relationship with the University.
Sanctions may be imposed in combination with one another. If the individual found to have violated this policy is a faculty member and the Co-Chair concurs with an IRP sanction recommendation of termination, the case will proceed in accordance with the "for cause" dismissal proceedings set forth in the Faculty Handbook where applicable. In such a case, the Co-Chair (Provost) is ineligible to serve as the President's designee under the "for cause" dismissal process.
Upon a finding of responsibility, additional remedies, in addition to the issued sanction, may be available to a complainant. Examples of potential remedies are provided in Interim Measures, Section X(B). Other potential remedies include targeted or broad-based educational programming or training. The Title IX Coordinator, in consultation with others as necessary, will determine any appropriate additional remedies.
Within two (2) calendar days of the decision, the Co-Chair will provide simultaneous notification to the parties of the two page IRP report in the following manner: the first page (which contains the findings on the allegations of a policy violation) will be provided to each party; the second page (which contains the IRP-recommended sanction(s) or follow up actions and the Co-Chair's decision on sanction(s) or follow up actions) will be provided solely to the respondent, unless the sanctions or follow up actions are such that they directly involve the complainant (e.g. a "no contact" directive) or where required by federal law to be disclosed to the complainant in the case of certain criminal sexual offenses covered by the Campus Security Act, including sexual assault, domestic or dating violence, and stalking. Additionally, the Co-Chair will provide each party with an outcome letter. The outcome letter will review the prohibition against retaliation and the appeal process.
If, through informal resolution or Co-Chair decision upon a finding of no violation, a respondent has been advised to receive training, counseling, or some other professional development, or to take some other follow up action(s), the Co-Chair will oversee fulfillment of this obligation, though the Co-Chair may delegate coordination of the details to respondent's supervisor. If a respondent has been sanctioned for a violation of this policy, the appropriate Co-Chair will oversee fulfillment of the sanction.
If the respondent is taking courses at the University and part of the sanction mandates suspension or permanent dismissal, or where the respondent withdraws from taking courses while under investigation for a violation of this policy, a mandatory transcript notation law may apply. Pursuant to and as required by Virginia law, a prominent transcript notation will be included for any respondent who is taking or has taken a course at the University and has been suspended for, has been permanently dismissed for, or withdrawn from the course while under investigation for an offense involving sexual violence. Sexual violence is defined as physical sexual acts perpetrated against a person’s will or where the person is incapable of giving consent. In cases of suspension and dismissal this transcript notation will read: "[Suspended or Dismissed] for a violation of W&L's set of standards." In cases of withdrawal, the notation will read: "Withdrew while under investigation for a violation of W&L's set of standards. This withdrawal as noted does not constitute a finding or admission of responsibility on the part of the student."
I. Appeals Process
Either the complainant or respondent may appeal a finding of a violation or no violation of this policy and/or a sanction/follow up action of which they have been informed. Appeals must be in writing, specifying in detail why the IRP’s decision on the appealed aspect(s) of the decision lack a reasonable basis, and must be filed with the Co-Chair who issued the original decision within three (3) business days of receipt of that decision. An Appeal Panel (comprised of three IROs who were not involved in the original investigation or panel) will be appointed by the other Co-Chair (who was not involved in the original review or sanctioning process). The appeal review will then be conducted as soon as possible. In most cases, absent unusual circumstances, the Appeal Panel review should be completed within seven (7) business days of the date the panel members receive the record from the Co-Chair.
The Appeal Panel will not substitute its judgment for the IRP or Co-Chair if it finds there was a reasonable basis for the appealed aspect(s) of the decision. In making such a determination, the Appeal Panel may speak with the Investigator(s), the appropriate Co-Chair, or the parties as the Appeal Panel deems necessary (in which case, the parties' DPAs and/or Advisors of Choice in cases of sexual assault, domestic or dating violence, or stalking, may be present, but may not participate).
If the Appeal Panel fully affirms a "no-violation" finding made by the IRP with or without recommended follow up actions, or affirms a finding of a violation and/or the sanction, the Appeal Panel will issue a brief written decision to that effect using part one of the Appeal Panel Report and will submit it to the Co-Chair who issued the original decision, who will then promptly advise the parties of the Appeal Panel's decision, which is final.
If the Appeal Panel affirms a "no-violation" finding made by the IRP, but does not affirm recommended follow up actions (or absence of such actions), the Appeal Panel will explain the facts and analysis supporting its findings and recommendations in part two of the Appeal Panel Report. The Co-Chair issuing the original decision will then review the recommendations regarding any follow up actions and issue the final decision on such measures. The Co-Chair will then promptly advise the parties of the Appeal Panel's decision, which is final. The Co-Chair will advise only the respondent of any decision regarding follow up action(s) and will share part two of the Appeal Panel Report only with the respondent, except for any part of such action(s) that directly involve(s) the complainant or unless required by federal law to be disclosed to the complainant in the case of certain criminal sexual offenses covered by the Campus Security Act, including sexual assault, domestic or dating violence, and stalking. The Co-Chair's decision on such follow up actions is final.
If the Appeal Panel overturns a "no-violation" finding, the matter is sent back to the appropriate Co-Chair for the original review proceeding, who will then make a decision on the sanction and promptly advise the parties and share the two-part Appeal Panel Report. The first part (which contains the basis for the overturning of the "no-violation" finding) will be provided to both parties; the second part (which contains the Co-Chair's decision on sanction) will be provided only to the respondent, unless some part of the sanction directly involves the complainant or unless required by federal law to be disclosed to the complainant in the case of certain criminal sexual offenses covered by the Campus Security Act, including sexual assault, domestic or dating violence, and stalking. The Co-Chair's decision on sanction is appealable by respondent and complainant (if complainant was made aware of the sanction because it directly involved the complainant or required to be disclosed to the complainant in cases of certain sexual offenses) within three (3) business days of receipt of the sanction decision. Such an appeal must be in writing, filed with the Co-Chair who issued the decision, and must specify in detail the basis for the appeal.
If the Appeal Panel concurs with a violation finding but finds a sanction is without reasonable basis, the Appeal Panel should first consult the appropriate Co-Chair to review the sanction. If no consensus decision can be reached, both the Appeal Panel and the appropriate Co-Chair will submit their separate recommendations in writing to the President, who will make the final determination by accepting one of the two recommendations and signing off on that recommended sanction. Thereafter, the Co-Chair will promptly advise the respondent of the President's decision on the sanction(s) and will also advise the complainant when the sanction involves the complainant or when required by federal law in the case of certain criminal sexual offenses covered by the Campus Security Act, including sexual assault, domestic or dating violence, and stalking. The President's decision on the sanction(s) is final.
If the Appeal Panel overturns a violation finding, the matter is sent back to the appropriate Co-Chair for the original review proceeding, who will then remove the sanction(s) issued, decide any appropriate follow up action(s), and promptly share the two-part Appeal Panel decision with the parties. The first part (which contains the basis for the overturning of the violation finding) will be provided to both parties; the second part (which contains the Co-Chair's removal of sanction and decision on any follow up actions) will be provided only to the respondent, unless some part of the sanction directly involves the complainant or unless required by federal law to be disclosed to the Complainant in the case of certain criminal sexual offenses covered by the Campus Security Act, including sexual assault, domestic or dating violence, and stalking.
J. Confidentiality and Recordkeeping
The facts about individual cases and their dispositions are to remain confidential to the extent possible. In order to protect the integrity of the investigation, anyone involved in the investigation should not discuss what they shared with the Investigator(s) to any witness or potential witness during the pendency of the proceedings. Additionally, in order to protect the privacy of all involved, no one involved in a complaint process, besides the complainant and respondent, should discuss any information regarding the case except with those who have a legitimate need to know. Any member of the campus community who violates the confidentiality provisions of these procedures, and/or the confidentiality directives of the administrators handling complaints, will be subject to discipline.
The Title IX Coordinator will maintain the official written records of formal and informal complaints and resolutions under these procedures in accordance with applicable University record retention schedules.
1When used in this policy, a complainant refers to the individual(s) who has been the subject of sexual misconduct, regardless of whether that individual makes a report or seeks formal disciplinary action. A respondent refers to the individual(s) who has been accused of sexual misconduct. A third party refers to any other participant in the process, including a witness to the incident(s) and an individual who makes a report on behalf of someone else.
July 1, 2015 -- Revised.
August 12, 2015 -- Revised (Titles of IROs)