Section 9. UWS 17.09 (4) to (16) are renumbered UWS (2) to (14).
Section 10. UWS 17.09(15) is created to read:
(15) Retaliation. Intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured in ss. UWS 17.17 to 17.21, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under ss. UWS 17.17 to 17.21. Section 11. UWS 17.10(1) is amended to read:
(1) The disciplinary sanctions that may be imposed for nonacademic misconduct, in accordance with the procedures of ss. UWS 17.11 to 17.13, and ss. 17.17 to 17.19, are any of the following: Section 12. UWS 17.11 is amended to read:
UWS 17.11 Disciplinary procedure.
(1) Process. The investigating officer may proceed in accordance with this section to impose, subject to hearing and appeal rights, one or more of the disciplinary sanctions listed in s. UWS 17.10 (1) for conduct defined in s. UWS 17.09. (2) Conference with Respondent. When the investigating officer concludes that proceedings under this section are warranted, the investigating officer shall promptly contact the respondent in person, by telephone, or by electronic mail to offer to discuss the matter, review the investigating officer's basis for believing that the respondent engaged in nonacademic misconduct, and to afford the respondent an opportunity to respond. If the respondent fails to respond to the investigating officer, the investigating officer may proceed to decide on the basis of the available information. A complainant shall have all the rights provided to the respondent in this subsection.
(3) Determination by the investigating officer that no disciplinary sanction is warranted. If, as a result of a discussion under sub. (2) or review of available information, the investigating officer determines that nonacademic misconduct did not in fact occur, or that no disciplinary sanction is warranted under the circumstances, the matter will be considered resolved without the necessity for further action. The investigating officer shall simultaneously notify the respondent. and the complainant of this outcome and offer to discuss it separately with either one. If the investigating officer determines that nonacademic misconduct did not occur or that no disciplinary sanction is warranted, the complainant may appeal this decision in accordance with s. UWS 17.13. (4) Process following determination by the investigating officer that nonacademic misconduct occurred.
(a) If, as a result of a discussion under sub. (2) or review of available information, the investigating officer determines that nonacademic misconduct did occur and that one or more of the disciplinary sanctions listed under s. UWS 17.10 (1) should be recommended, the investigating officer shall prepare a written report which shall contain all of the following:
1. A description of the alleged misconduct.
2. A description of all information available to the university regarding the alleged misconduct. Such information shall be available to the complainant and the respondent, except as may be precluded by applicable state or federal law.
3. Specification of the sanction sought.
4. Notice of the respondent's right to a hearing.
5. A copy of this chapter and of the institutional procedures adopted to implement this section.
(b) The written report shall be delivered simultaneously to the respondent and complainant, excluding any information that may be precluded by applicable state or federal law.
(c) A respondent who receives a written report under this section has the right to a hearing under s. UWS 17.12 to contest the determination that nonacademic misconduct occurred, the choice of disciplinary sanctions, or both.
1. Where the disciplinary sanction sought is one of those listed in s. UWS 17.10 (1) (a) to (g), and if the respondent desires a hearing, the respondent shall file a written request with the student affairs officer within 10 days of the date the written report is delivered to the respondent. If the respondent does not request a hearing within this period, the determination of nonacademic misconduct shall be regarded as final, and the disciplinary sanction sought shall be imposed.
2. Where the disciplinary sanction sought is one of those listed in s. UWS 17.10 (1) (h) to (j), the investigating officer shall forward a copy of the written report under par. (b) to the student affairs officer. The student affairs officer shall, upon receipt of the written report, proceed under s. UWS 17.12 to schedule a hearing on the matter. A hearing shall be conducted unless the respondent waives, in writing, the right to such a hearing.
Section 13. UWS 17.12(1), (3), and (4) are amended to read:
(1) A respondent who requests a hearing, or for whom a hearing is scheduled under s. UWS 17.11 (4) (c) 2. for conduct defined in s. UWS 17.09, shall have the right to decide whether the matter will be heard by a hearing examiner or a hearing committee. In cases of sexual assault, dating violence, domestic violence, stalking, or sexual harassment the university shall have the right to decide whether the matter will be heard by a hearing examiner or a hearing committee. (3) No less than 5 days in advance of the hearing, the hearing examiner or committee shall obtain from the investigating officer, in writing, a full explanation of the facts upon which the determination of misconduct was based, and shall provide the respondent and the complainant with access to or copies of the investigating officer's explanation, together with any other materials provided to the hearing examiner or committee by the investigating officer, including any additional available information of the type described in s. UWS 17.11 (4) (a) 2.
(4) The hearing shall be conducted in accordance with all of the following guidance and requirements:
(a) The hearing process shall further the educational purposes and reflect the university context of nonacademic misconduct proceedings. The process need not conform to state or federal rules of criminal or civil procedure, except as expressly provided in ch. UWS 17.
(b) The respondent shall have the right to question adverse witnesses, the right to present information and witnesses, the right to be heard on his or her their own behalf, and the right to be accompanied by an advisor of the respondent's choice. The advisor may be a lawyer. In cases where the recommended disciplinary sanction is identified in s. UWS 17.10 (1) (a) to (h), the advisor may counsel the respondent but may not directly question adverse witnesses, present information or witnesses, or speak on behalf of the respondent except at the discretion of the hearing examiner or committee. In cases where the recommended disciplinary sanction is identified in s. UWS 17.10 (1) (i) or (j), or where the respondent has been charged with a crime in connection with the same conduct for which the disciplinary sanction is sought, the advisor may question adverse witnesses, present information and witnesses, and speak on behalf of the respondent. In accordance with the educational purposes of the hearing, the respondent is expected to respond on his or her their own behalf to questions asked of him or her them during the hearing. The complainant shall have all the rights provided to the respondent in this subsection. (c) The hearing examiner or committee:
1. Shall admit information that has reasonable value in proving the facts, but may exclude immaterial, irrelevant, or unduly repetitious testimony.
2. Shall observe recognized legal privileges.
3. May take reasonable steps to maintain order, and to adopt procedures for the questioning of a witness appropriate to the circumstances of that witness's testimony, provided, however, whatever procedure is adopted, the complainant and respondent are is allowed to effectively question the witness.
(d) The hearing examiner or committee shall make a record of the hearing. The record shall include a verbatim record of the testimony, which may be a sound recording, and a file of the exhibits offered at the hearing. The respondent and the complainant may access the record, except as may be precluded by applicable state or federal law.
(e) The hearing examiner or committee shall prepare written findings of fact and a written statement of its decision based upon the record of the hearing.
(f) A hearing examiner's or committee's finding of nonacademic misconduct shall be based on one of the following:
1. Clear and convincing evidence, when the sanction to be imposed is one of those listed in s. UWS 17.10 (1) (h) to (j).
2. A preponderance of the evidence, when the sanction to be imposed is one of those listed in s. UWS 17.10 (1) (a) to (g).
(g) The hearing examiner or committee may impose one or more of the disciplinary sanctions listed in s. UWS 17.10 (1) (a) to (g) that differs from the recommendation of the investigating officer. Sanctions under s. UWS 17.10 (1) (h) to (j) may not be imposed unless previously recommended by the investigating officer.
(h) The hearing shall be conducted by the hearing examiner or committee, and the university's case against the respondent shall be presented by the investigating officer or their designee.
(i) The decision of the hearing examiner or committee shall be prepared within 14 days of the hearing, and delivered to the respondent, excluding information that may be precluded by state or federal law. The decision shall become final within 14 days of the date on the written decision unless an appeal is taken under s. UWS 17.13.
(j) If the respondent fails to appear at a schedule hearing and to proceed, the hearing examiner or committee may issue a decision based upon the information provided.
(k) Disciplinary hearings are subject to the Wisconsin open meetings law and may be closed if the respondent requests a closed hearing or if the hearing examiner or committee determines that it is necessary to hold a closed hearing, as permitted under the Wisconsin open meetings law. Deliberations of the committee shall be held in closed session, in accordance with s. 19.85, Stats. As such, proper notice and other applicable rules shall be followed.
Section 14. UWS 17.13(1) is amended to read:
(1) For conduct defined in s. UWS 17.09, wWhere the sanction prescribed by the hearing examiner or committee is one of those listed in s. UWS 17.10 (1) (h) to (j), the respondent may appeal in writing to the chief administrative officer within 14 days of the date of the written decision to review the decision of the hearing examiner or committee, based upon the record. In cases involving sexual assault, dating violence, domestic violence, stalking, or sexual harassment, the complainant shall be notified of the appeal. Section 15. UWS 17.13(3), (5), and (6) are repealed.
Section 16. UWS 17.14 is amended to read:
UWS 17.14 Discretionary appeal to the Board of Regents. For conduct defined in s. UWS 17.09, iInstitutional decisions under ss. UWS 17.11 to 17.13 shall be final, except that the board of regents may, at its discretion, grant a review upon the record, upon written request submitted by respondent within 14 days of the final institutional decision. In cases involving sexual assault, dating violence, domestic violence, stalking, or sexual harassment, the non-appealing party shall receive notice of the appeal. Section 17. UWS 17.15 is amended to read:
UWS 17.15 Settlement. For conduct defined in s. UWS 17.09, tThe procedures set forth in this chapter allow the university and a respondent to enter into a settlement agreement regarding the alleged misconduct, after proper notice has been given. Any such agreement and its terms shall be in writing and signed by the respondent and the investigating officer or student affairs officer. The case is concluded when a copy of the signed agreement is delivered to the respondent. The investigating officer shall confer with the complainant regarding the proposed settlement and provide notice of the outcome. Section 18. UWS 17.16 is renumbered to UWS 17.22.
Section 19. UWS 17.16 is created to read:
UWS 17.16 Sexual Misconduct subject to disciplinary action. In accordance with s. UWS 17.08, the university may discipline a student for engaging in, attempting to engage in, or assisting others to engage in any of the following types of nonacademic misconduct. Conduct, as defined in s. UWS 17.16 (“sexual misconduct”), shall use the disciplinary procedure, hearing, appeal, and settlement processes detailed in ss. UWS 17.17 to 17.21. (1)
Sexual Harassment. When on the basis of sex, unwelcome conduct of a sexual nature directed towards a student, an employee, or a person participating in a program or activity of the university that when using any of the following legal “reasonable person” standards: 1.
The conduct is so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the institution’s education program or activity.2.
The conduct is so severe, pervasive, or objectively offensive that it has the purpose or effect of unreasonably interfering with an individual’s academic or work performance or participation in an institution’s education program or activity, or creates an intimidating, hostile, or offensive academic, working, or program or activity related environment.(2)
Sexual assault. An offense that meets the definition of rape, fondling, incest, or statutory rape as defined below. 20 U.S.C. 1092(f)(6)(A)(v), 34 CFR 668.46(a). (a)
Rape: The penetration, no matter how slight, of the vagina or anus, with any body part or object, or oral penetration by a sex organ of another person, without the consent of the complainant. (b)
Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the complainant, including instances where the complainant is incapable of giving consent because of age or because of temporary or permanent mental incapacity. (c)
Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law (See s. 944.06, Stats.) (d)
Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent (See s. 948.02, Stats.) (3)
Dating violence. 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 a consideration of the following factors: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. (4)
Domestic violence. Felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a persons who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of Wisconsin, or by any other person against an adult or youth individual who is protected from that person’s acts under the domestic or family violence laws of Wisconsin. (See ss. 813.12(1)(am) and 968.075)
