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 UWS 17.13(3), (5), and (6) are repealed.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)(5)
Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others; or suffer substantial emotional distress. (6)
Sexual Exploitation. Attempting, taking, or threatening to take nonconsensual sexual advantage of another person. Examples include, but are not limited to: (a)
Engaging in any of the following conduct without the knowledge and consent of all participants:1. Observing, recording, or photographing private body parts or sexual activity of one or more persons.
2. Allowing another person to observe, record, or photograph sexual activity or private body parts of one or more persons.
3. Otherwise distributing recordings, photographs, or other images of the same of one or more persons.
(b)
Masturbating, touching one’s genitals, or exposing one’s genitals in another person’s presence without the consent of that person, or inducing another person to do the same.(c)
Dishonesty or deception regarding the use of contraceptives or condoms during the course of sexual contact or sexual intercourse.(d)
Inducing incapacitation through deception for the purpose of making another person vulnerable to non-consensual sexual activity.(e)
Coercing another person to engage in sexual activity for money or anything of value.(f)
Threatening distribution of any of the following, to coerce someone into sexual activity or providing money or anything of value:1.
Photos, videos, or recordings depicting private body parts or sexual activity of one or more persons. 2.
Other information of a sexual nature, including sexual history or sexual orientation.Section 20. UWS 17.17 is renumbered to UWS 17.23.
Section 21. UWS 17.17 is created to read:
UWS 17.17 Sexual misconduct disciplinary procedure.
(a) 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 sexual misconduct defined in s. UWS 17.16, and conduct described in s. UWS 17.09 when consolidated with sexual misconduct charges pursuant to this section and consistent with s. UWS 17.08 (b) As required by 34 CFR Part 106, a sexual misconduct disciplinary procedure shall also be considered a “Title IX Complaint” when all of the following requirements are met: 1. A “formal complaint,” as defined in 17.02(8m), is either filed by a complainant or signed by the Title IX Coordinator.
2. The alleged conducts meets the definitions of sexual harassment as defined in s. UWS 17.16(1)(a) or sexual assault, dating violence, domestic violence, or stalking as defined in s. UWS 17.16 (2) to (5). 3. The alleged conduct occurred within a university “education program or activity,” as defined in s. UWS 17.02(7m). 4. The alleged conduct occurred against the complainant while in the United States.
5. The complainant is participating in or attempting to participate in the university’s education program or activity at the time they file the complaint.
(c) The university shall dismiss a Title IX Complaint that does not meet all the requirements of s. sub. (1) (a) 1. to 5.
(d) The university may dismiss a Title IX Complaint if any of the following conditions are met at any time during the disciplinary procedure or hearing:
1. The complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the Title IX complaint or any allegations therein.
2. The respondent is no longer enrolled by the university.
3. Specific circumstances prevent the university from gathering evidence sufficient to reach a determination as to the Title IX Complaint or allegations therein.
(e) Upon dismissal of a Title IX Complaint, the university shall promptly send written notice of the dismissal and reason therefore simultaneously to the complainant and respondent.
(f) Dismissal of a Title IX Complaint does not preclude other university action under ch. UWS 17. (g) The university may consolidate disciplinary procedures as to allegations of sexual misconduct, as defined in s. UWS 17.16, against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual misconduct arise out of the same facts or circumstances. (2) Notice of Investigation. When the investigating officer concludes that proceedings under this section are warranted, the investigating officer shall promptly distribute a written Notice of Investigation in person, by telephone or by electronic mail, to the complainant and respondent. The Notice of Investigation shall include all of the following:
(a) Details known at the time of issuing notice, including the following:
1.
The identities of the complainant and respondent involved in the incident, if known.2.
The conduct allegedly constituting sexual misconduct.3.
The date and location of alleged incident, if known.(b) Notice to the complainant and respondent that they may have an advisor of their choice, who may be an attorney.
(c) Notice to the complainant and respondent that they may inspect and review evidence collected during the investigation.
(d) Notice of s. UWS 17.09(9), false statement or refusal to comply regarding a university matter. (e) Notice that the respondent is presumed not responsible for the alleged sexual misconduct until a determination regarding responsibility is made at the conclusion of the disciplinary procedure.
(f) Notice if the sexual misconduct disciplinary procedure also involves a Title IX Complaint.
(g) Information about the nonacademic misconduct process available in ch. UWS 17 and about any available informal resolution process. (h) If, during the course of an investigation, the university decides to investigate allegations that are not included in the Notice of Investigation, the university shall send an amended Notice of Investigation with additional allegations.
(3) Investigation. During the investigation, the investigating officer shall meet all of the following requirements:
(a) Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
(b) Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
(c) Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties.
(d)Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.
(e) Not access, consider, disclose, or otherwise use a party's records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional's or paraprofessional's capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the university obtains that party's voluntary, written consent to do so for a grievance process under this section.
(4) Review of Evidence. Prior to completion of the final investigative report, as defined in sub. (5), the university shall provide the complainant and respondent and their advisors, if any, the evidence gathered during the university’s investigation that is directly related to the allegations of sexual misconduct in an electronic format or hard copy.
(a) The evidence subject to review includes information upon which the university does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.
(b) The complainant and respondent shall be afforded at least 10 days to submit a written response to the evidence, which the investigator shall consider prior to completion of the final investigative report.
(5) Final investigative report. The investigator shall create an investigative report that fairly summarizes relevant evidence.
