Frequently Asked Questions about the Sexual Discrimination and Misconduct Policy

Why were changes made to the Sexual Discrimination and Misconduct Policy?

In June 2014, President Ruscio introduced the Interim Sexual Harassment and Misconduct Policy and, a year later, approved the Amended Interim Sexual Misconduct Policy to address ongoing and evolving legal developments. These versions of the policy were labeled "interim" for several reasons. First, the legal and regulatory environment has been constantly changing, along with expectations and the development of "best practices" based on the experiences of many colleges and universities. We have followed those developments closely and have remained flexible in responding to those expectations. Second, we also thought that it was important to allow the University community the opportunity to provide input on some of the major structural changes that we were exploring in response to the recent guidance and other best practices. The Interim and Amended Policies were designed to allow W&L to adapt quickly to the changing legal landscape while gathering input from the community in order to spend the time to thoughtfully examine how we should to address sexual misconduct on our campus and to develop our policy.

This Sexual Discrimination and Misconduct Policy is the result of two years of review and analysis. After two years of holding discussions with various groups around campus, reviewing policies from other colleges and universities, and analyzing recent litigation and OCR resolution agreements, we made some substantive changes to the policy. We believe these changes align with Washington and Lee's culture, values and principles and take into account all legal requirements. This policy therefore reflects what we are required to do by law, as well as what we deem to be practices that are appropriate for Washington and Lee given our commitment to establishing a community in which all people are treated with respect. It also incorporates processes that are fair and effective when there are allegations that an individual has not met the standards of our community.

As we routinely do with all of our conduct processes, we will continually examine our sexual misconduct policies and procedures each year to ensure that our policies are fair, effective, and compliant with all relevant legal requirements.

Why don't all of these cases go to the police? Why does the University handle cases of sexual violence at all?

The University informs any individual who reports behavior that may constitute a crime under Virginia law that he or she has the option to notify or decline to notify law enforcement. W&L Public Safety is available to assist with filing a criminal report; the University will always cooperate fully with any police investigation and has entered into a Memorandum of Understanding with the local and state police departments for these purposes.
Additionally, pursuant to new Virginia law, the University is required to disclose information about a reported incident of sexual misconduct to law enforcement when deemed necessary to protect the health or safety of the student or other individuals. (See below: "Will my complaint be reported to the police?")

Regardless of whether or not law enforcement is notified, and regardless of whether or not an individual decides to participate in a law enforcement investigation, federal law requires that schools respond to all reports of sexual harassment or violence. Even when there is an active law enforcement investigation, a school must still take steps to end the misconduct, prevent its recurrence, and remedy its effects. This is largely because Title IX is not a substitute for the criminal justice system, but instead is a civil rights law with a focus on protecting equal rights. This includes providing supportive and protective measures such as no contact orders, changes in classes or housing, counseling services, academic adjustments, and initiating various prevention and education programs, even when an individual does not pursue the University disciplinary process. In contrast, the criminal justice system's primary - and often the only - remedy is punishment of the perpetrator.

If a University disciplinary process is pursued, the University's procedures, definitions, and burden of proof differ from Virginia criminal law. The goal of a University disciplinary process is not to determine whether a crime has been committed. Instead, a University disciplinary proceeding determines whether University policy has been violated and, if so, what discipline and remedies are appropriate. Neither law enforcement's determination whether or not to prosecute a person accused of misconduct nor the outcome of any criminal prosecution determines whether sexual misconduct has occurred under University Policy.

Who must report incidents of sexual misconduct to the University?

All University employees outside of University Counseling and Student Health are expected to report incidents of sexual misconduct to the Title IX Coordinator. Some employees are "mandatory reporters." These employees are defined by federal and state law as "responsible employees." A mandatory reporter who becomes aware of any facts that might lead to a violation of the Sexual Discrimination and Misconduct Policy must report that conduct to the Title IX Coordinator. This is required by both federal law (Title IX) and Virginia state law (Va. Code 23-9.2:15). W&L's responsible employees, or mandatory reporters, are:

  • 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
  • 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 and Program Chairs
  • Law School Director of Academic Success
  • Resident Advisers / Community Assistants
  • Shepherd Program-Coordinator for Student Service Leadership and Research, Associate Director of Community-Based Learning, and Co-Curricular Service Coordinator

A student or employee who would like to speak with someone confidentiality can use the confidential resources available. These include Student Health and Counseling and Project Horizon. The University has entered into a Memorandum of Understanding with Project Horizon to ensure that all students and employees have immediate access to a confidential, independent advocate who can provide a trauma-informed response that includes an explanation of options for moving forward.

If I experience sexual misconduct and someone else reports the incident to the University, what options do I have if I do not want anything to be done?

You may share your request not to proceed with the Title IX Coordinator or Assistant Title IX Coordinator for Employment. To the extent possible, the University will respect your decision. However, there may be circumstances when the University must proceed with an investigation despite your wishes due to its responsibility to provide a safe and non-discriminatory environment for all University community members. In making this determination, 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 (the individual who has been the subject of sexual misconduct) is a minor under the age of 18;
  • Whether the respondent (person accused of misconduct) 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, etc.); 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 pursue disciplinary action against the respondent. In this circumstance, you will never be required to participate in a University investigation or hearing process.

If the complaint involved sexual violence, the University may also need to report the incident to law enforcement and/or the Commonwealth's Attorney. (See below: "Will my complaint be reported to the police?") However, you maintain the right to decline to participate in any investigation or proceeding initiated as a result of any report to the extent permitted under law.

Regardless of whether or not you seek formal disciplinary action, interim measures are available to you and can include can include changes to academic, living and working conditions.

Will my complaint be reported to the police?

Pursuant to Virginia law, the University is required to disclose information about a reported incident, including personally identifiable information, to law enforcement if certain factors are met:

  • If 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; 
  • If the sexual violence is alleged to have been committed against a W&L student, or may have occurred on certain locations defined by Virginia law
  • If disclosure of the information is deemed necessary to protect the health or safety of the student or other individuals by the three-person Review Committee (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 be made to the Commonwealth's 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 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.

During the University resolution process can complainants and respondents have an attorney?

Yes. For complaints made against students, both complainants and respondents have the right, at their own expense, to have an Advisor of Choice once an investigation is initiated and throughout the disciplinary process. For employees, Advisors of Choice may only be used throughout the formal disciplinary resolution process if the matter involves sexual assault, dating and domestic violence, or stalking. An Advisor of Choice can be an attorney, friend, mentor, family member, or any other supporter. The advisor's role is to advise regarding policies and procedures, offer support, and provide information on additional resources. Advisors can accompany a party to any disciplinary meeting, including investigatory meetings, but may not present evidence or question witnesses. Students will also have access to Hearing Advisors, who are law and undergraduate students who have been trained to provide support and advice to parties in the student resolution process; employees can use a Discrimination Policy Adviser, who are faculty and staff members who have been trained to assist parties in the employee resolution process.

What are possible outcomes from a sexual misconduct disciplinary proceeding?

If a student respondent is found responsible for violating the Sexual Discrimination and Misconduct Policy, there are several potential sanctions.

  • Dismissal
  • Suspension
  • Community Service
  • Educational/Counseling Consultation
  • Loss of Privileges (denial of the use of certain University facilities or the right to participate in certain activities or to exercise certain privileges for a designated period of time
  • On-campus residential relocation
  • Changing academic schedule
  • Probation

If a student respondent is found responsible for engaging in nonconsensual sexual penetration, a mandatory sanction may apply. If the hearing panel finds a respondent responsible of nonconsensual sexual penetration "beyond a reasonable doubt," then the only sanction permissible is dismissal. If the hearing panel finds a respondent responsible of nonconsensual sexual penetration by a lesser burden of proof, then the panel may, but is not required, to dismiss the respondent from the University.

Pursuant to Virginia law, a notation will appear on a respondent's transcript regarding any dismissal, suspension, or withdrawal while under investigation for an offense of sexual violence.

If an employee respondent is found responsible for violating the Sexual Discrimination and Misconduct Policy, sanctions range from a warning to termination. A full list of possible sanctions can be found in Section XII of the Policy.

In addition to the issued sanction, other remedies may be available to a complainant. Examples of potential remedies include:

  • 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
  • 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 
  • Targeted or broad-based educational programming or training
  • Any other remedy that can be tailored to the involved individuals to prevent the recurrence of the misconduct and remedy its effects.

How will I know whether I am under investigation for a violation of the Sexual Discrimination and Misconduct Policy?

Prior to the start of an investigation against you, you will receive a notification from the University informing you that allegations have been made against you and that the allegations will be investigated. Students will be asked to have an initial meeting with the investigators for the Harassment and Sexual Misconduct Board (HSMB); employees will be asked to have an initial meeting with the appropriate Co-Chair of the Investigation and Review Officers (defined in Section XII of the Policy). These initial meetings will provide an opportunity to learn about the investigation process and your rights and responsibilities. The investigation will begin twenty four hours after you are notified of the allegations.

What can I expect after a report against a student is made to the University?

 

Process after report against a student is made to the University
  1. University Report
  2. The complainant (person who may have experienced misconduct) meets with the Title IX Coordinator to discuss options and/or make a report. They discuss possible supportive and protective measures and safety planning, along with what the process will look like.
  3. If the student does not choose to move forward with a disciplinary proceeding, the Title IX Coordinator considers a range of factors detailed in Section X (C) of the Policy and determines: can the University respect the complainant's request not to investigate?
  4. When student chooses to move forward with the disciplinary proceeding, the respondent (the person accused of misconduct) is notified of the complaint.
  5. After the respondent is notified of a report, there is an impartial investigation of complaint, including opportunity for both parties to submit evidence and witnesses to the investigators.
  6. Investigators prepare report that summarizes the information gathered; both parties review and comment on report.
  7. Report is submitted to the Chair of the Harassment and Sexual Misconduct Board. The Chair determines: should a charge of misconduct be issued?
  8. If no charge is issued then the case is closed.
  9. If a charge is issued, the report is provided to the parties with another opportunity to review and request additional investigation and changes.
  10. Hearing is held. The hearing panel can question the parties and the parties submit written questions to each other through hearing panel.
  11. The hearing panel determines by "preponderance of the evidence"-meaning it was more likely than not to have happened: is respondent responsible for sexual misconduct?
  12. If yes, then the hearing panel will impose sanctions. Sanctions can range with the most severe being dismissal. The respondent can appeal decision of responsibility and both parties can appeal the sanction.
  13. If no, the case is closed but the complainant can appeal the decision to Appeal Panel.

Additional Information:

  • Process will be resolved within 60 days, absent extenuating circumstances.
  • Supportive and protective measures available throughout the investigation.
  • Any form of retaliation will not be tolerated.

What is the role of the New Student Advisory Group?

A six-member, non-voting Student Advisory Group will advise the Title IX coordinator and HSMB on issues related to sexual misconduct and issues of student social dynamics. The Executive Committee will appoint students to the SAG for one-year terms and will make every effort to create diverse representation.

Retaining student input through the Student Advisory Group (SAG) is critical to both the efficacy of this policy and the spirit of student self-governance at Washington and Lee. The SAG will provide important student perspective without being involved in discussions or deliberations of detailed, sensitive and personal information regarding specific cases involving their classmates.

The student advisors will be responsible for training the HSMB on student social dynamics while also advising the Title IX Coordinator on issues related to sexual misconduct, including policy training and campus climate. Each year the SAG will participate in a working group to review the policy and will have the opportunity to recommend changes. Additionally, the SAG will be trained on the policy and procedures and will be a good resource for students to use to ask questions about the policy, resolution process, or how to make a report.

What about cases involving harassment or discrimination other than sex?

The University also prohibits discrimination or harassment on the basis of race, color, religion, national or ethnic origin, age, disability, veteran's status, and genetic information. The policies and procedures applicable to discrimination or harassment on the basis of any of these other protected categories are addressed under the University Policy on Prohibited Discrimination, Harassment, and Retaliation Other Than Sex.

Where should I go if I have any other questions about the Sexual Discrimination and Misconduct Policy?

The University's Title IX Coordinator, Lauren Kozak, is available to answer questions about the policy. She can be reached at 540-458-4055 or kozakl@wlu.edu. Her office is located in Elrod Commons 212.