Fiscal Estimate:
See attached Economic Impact Analysis and Fiscal Estimate.
Effect on small business:
The new rule will not have an economic impact on small businesses. The new rule applies specifically to University of Wisconsin System institutions only.
Agency contact person:
Sarah Harebo
Title IX and Clery Administrator
University of Wisconsin System Administration
1848 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin 53706;
Telephone 608-262-6497;
Public Comments:
The Board of Regents held a public hearing on November 30, 2020 preceded by a public comment period related to the final rule. During the comment periods, comments could be submitted to the agency in any of the following ways: (1) on the web at https://www.wisconsin.edu/regents/public-comment-form/ or adminrules.wisconsin.gov; (2) by email to compliance@uwsa.edu; (3) at the public hearing; or (4) by mail to Jess Lathrop, Executive Director, Office of the Board of Regents, 1860 Van Hise Hall, 1220 Linden Drive, Madison, Wisconsin. ------------------------------------------------------------------------------------------------------------
TEXT OF RULE
Section 1. Chapter UWS 4(title) is amended to read: UWS 4
PROCEDURES FOR FACULTY DISMISSAL AND FOR DISMISSAL AND DISCIPLINE IN TITLE IX CASES
Section 2. Subchapter I – General of Chapter UWS 4 [precedes UWS 4.01] is created to read: UWS 4
SUBCHAPTER I
GENERAL
Section 3. UWS 4.01(1) is amended to read:
UWS 4.01 Dismissal for cause.
(1) Any faculty member having tenure may be dismissed only by the board and only for just cause and only after due notice and hearing. Any faculty member having a probationary appointment may be dismissed prior to the end his/her the faculty member’s term of appointment only by the board and only for just cause and only after due notice and hearing. A decision not to renew a probationary appointment or not to grant tenure does not constitute a dismissal.
Section 4. UWS 4.01(3) is created to read:
(3) Faculty dismissal for cause and lesser discipline based on allegations of Title IX misconduct, as defined in s. UWS 4.11, shall be governed by ss. UWS 4.11 to UWS 4.24. Section 5. UWS 4.015(intro.), (2), (3), and (4) are repealed and recreated to read:
UWS 4.015 Definitions. In this chapter:
(2) “Complaint" means an allegation against a faculty member reported to an appropriate university official.
(3) “Consent” means words or overt actions by a person who is competent to give informed consent, indicating a freely given agreement to engage in sexual activity or other activity referenced in the definitions of sexual assault and sexual exploitation in this section. A person is unable to give consent if the person is in a state of incapacitation because of drugs, alcohol, physical or intellectual disability, or unconsciousness.
(4) “Consult" or “consulting" means thoroughly reviewing and discussing the relevant facts and discretionary issues.
Section 6. UWS 4.015(5) and (6) are amended to read:
(5) “Dating violence" means violence committed by an employee against another person with whom they are in a “dating relationship” as defined in s. 813.12 (1) (ag), Stats. 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, the frequency of interaction between the persons involved in the relationship. (6) “Domestic violence" means conduct defined as “domestic abuse” in ss. 813.12 (1) (am) and 968.075, Stats. 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 person 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 complainant who is protected from that person’s acts under the domestic or family violence laws of Wisconsin as per ss. 813.12(1)(am) and 968.075, Stats. Section 7. UWS 4.015(6m) created to read:
(6m) “Incapacitation” means the state of being unable to physically or mentally make informed rational judgments and effectively communicate, and may include unconsciousness, sleep, or blackouts, and may result from the use of alcohol or other drugs. Where alcohol or other drugs are involved, evaluation of incapacitation requires an assessment of how the consumption of alcohol or drugs affects a person’s decision-making ability; awareness of consequences; ability to make informed, rational judgments; capacity to appreciate the nature and quality of the act; or level of consciousness. The assessment is based on objectively and reasonably apparent indications of incapacitation when viewed from the perspective of a sober, reasonable person.
Section 8. UWS 4.015(8) is repealed.
Section 9. UWS 4.015(9) and (10) are repealed and recreated to read:
(9) “Sexual assault" means an offense that meets any of the following definitions:
(a)
“Rape” means 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 the complainant, without the consent of the complainant. (b)
“Fondling” means the touching of the private body parts of the complainant for the purpose of sexual gratification, without the consent of the complainant, including instances where the complainant is incapable of giving consent because of the complainant’s age or because of the complainant’s temporary or permanent mental incapacity. (c)
“Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law as provided in s. 944.06, Stats. (d) “Statutory rape” means sexual intercourse with a complainant who is under the statutory age of consent as provided in s. 948.02, Stats.
(10) “Sexual exploitation” means attempting, taking or threatening to take, nonconsensual sexual advantage of another person. Examples include:
(a) Engaging in the following conduct without the knowledge and consent of all participants:
1. Observing, recording, or photographing private body parts or sexual activity of the complainant.
2. Allowing another person to observe, record, or photograph sexual activity or private body parts of the complainant,
3. Otherwise distributing recordings, photographs, or other images of the sexual activity or private body parts of the complainant.
(b) Masturbating, touching one’s genitals, or exposing one’s genitals in the complainant’s presence without the consent of the complainant, or inducing the complainant to do the same.
(c) Dishonesty or deception regarding the use of contraceptives or condoms during the course of sexual activity.
(d) Inducing incapacitation through deception for the purpose of making the complainant vulnerable to non-consensual sexual activity.
(e) Coercing the complainant 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 the complainant.
2. Other information of a sexual nature involving the complainant, including sexual history or sexual orientation.
Section 9. UWS 4.015(11) is amended to read:
(11) “Stalking" means conduct defined in s. 940.32, Stats. engaging in a course of conduct directed at the complainant that would cause a reasonable person to fear for their safety or the safety of others; or suffer substantial emotional distress. Section 10. Subchapter II – Procedures for Faculty Dismissal and Discipline in Non-Title IX Cases of Chapter UWS 4 [precedes UWS 4.016] is created to read: UWS 4
SUBCHAPTER II
