(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.
(11) “Stalking" means 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 12. Subchapter II – Procedures for Academic Staff Dismissal in Non-Title IX Cases of Chapter UWS 11 [precedes UWS 11.016] is created to read: UWS 11
SUBCHAPTER II
PROCEDURES FOR ACADEMIC STAFF DISMISSAL IN NON-TITLE IX CASES
Section 13. UWS 11.016 is created to read:
(1) “Complainant" means any individual who is alleged to be the subject of sexual harassment, sexual assault, dating violence, domestic violence, stalking, or sexual exploitation, as defined in this section.
(2) “Sexual harassment" means conduct on the basis of sex that satisfies one or more of the following:
(a) Quid pro quo sexual harassment.
1. An employee of the institution conditions the provision of an aid, benefit, or service of the institution directly or indirectly on an individual’s participation in unwelcome sexual conduct.
2. An employee of the institution either explicitly or implicitly conditions the provision of an academic, professional, or employment-related opportunity, aid, benefit, or service on an individual’s participation in unwelcome sexual conduct.
(b) Hostile environment sexual harassment.
1. 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 the legal “reasonable person” standard, is so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the institution’s education program or activity.
2. Unwelcome conduct of a sexual nature directed towards an individual that, when using the legal “reasonable person” standard, is so severe or pervasive and objectively offensive that it has the purpose or effect of unreasonably interfering with an individual’s academic or work performance or participation in an university sponsored or supported activity.
Section 14. UWS 11.02(1) and (2) is amended to read:
(1) Whenever the chancellor of an institution receives an allegation which concerns an academic staff member holding an indefinite appointment which appears to be substantial and which, if true, might lead to dismissal under s. UWS 11.01, the chancellor shall request within a reasonable time that the appropriate dean, director, or designee investigate the allegation. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the chancellor shall direct the Title IX Coordinator, or designee, to initiate an investigation in accordance with applicable policies. The dean, director, or designee shall offer to discuss it informally with the academic staff member, and, if the allegation involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, with the complainant and provide information of rights under this chapter. Both the academic staff member and the complainant shall have the right to be accompanied by an advisor of their choice at any meeting or proceeding that is part of the institutional disciplinary process. If such an investigation and discussion does not result in a resolution of the allegation and if the allegation is deemed sufficiently serious to warrant dismissal, the dean, director, or designee shall prepare a written statement of specific charges. A member of the academic staff may be dismissed only after receipt of such a statement of specific charges and, if a hearing is requested by the academic staff member, after a hearing held in accordance with the provisions of this chapter and the subsequently adopted procedures of the institution. If the staff member does not request a hearing, dismissal action shall proceed along normal administrative lines but the provisions of ss. UWS 11.02, 11.08, and 11.09 shall apply. In those cases where the immediate supervisor of the academic staff member concerned is a dean or director, the chancellor shall, to avoid potential prejudice, designate an appropriate administrative officer to act for the dean or director under this section. (2) Any formal statement of specific charges shall be served personally, by electronic means, or by certified mail, return receipt requested. If such service cannot be made within 20 days, service shall be accomplished by first class mail and by publication as if the statement of charges were a summons and the provisions of s. 801.11 (1) (c), Stats., were applicable. Such service by mailing and publication shall be effective as of the first insertion of the notice of statement of charges in the newspaper. If the formal statement of specific charges involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the formal statement shall be provided to the complainant upon request, except as may be precluded by applicable state or federal law. Section 15. UWS 11.05(1) and (2) is amended to read:
(1) Each institution shall develop policies and procedures to provide for a fair hearing upon request in the event of dismissal. A fair hearing for an academic staff member whose dismissal is sought under s. UWS 11.01 shall include all of the following: (a) A right to the names of witnesses and of access to documentary evidence upon the basis of which dismissal is sought.
(b) A right to be heard in his or her the academic staff member’s defense.
(c) A right to an advisor, counsel, or other representative, and to offer witnesses;
(d) A right to confront and cross-examine adverse witnesses. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the hearing committee may reasonably restrict the academic staff member and the complainant from questioning each other.
(e) A verbatim record of all hearings, which might be a sound recording, provided at no cost.
(f) Written findings of fact and decision based on the hearing record.
(g) Admissibility of evidence governed by s. 227.45 (1) to (4), Stats. (2) For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have all the rights provided to the academic staff member in s. UWS 11.05 (1) (a) to (g), except as may be precluded by applicable state or federal law. Section 16. UWS 11.06(1) and (2) is amended to read:
(1) The following requirements shall also be observed:
(a) Any person who participated in the investigation of allegations leading to the filing of a statement of charges, or in the filing of a statement of charges, or who is a material witness shall not be qualified to participate as a member of the hearing body.
(b) The hearing shall be closed unless the staff member under charges requests an open hearing, in which case it shall be open (see subch. V of ch. 19, Stats., Open Meeting Law Meetings of Governmental Bodies). (c) The hearing body shall not be bound by common law or statutory rules of evidence and may admit evidence having reasonable probative value but shall exclude immaterial, irrelevant, or unduly repetitious testimony, and shall give effect to recognized legal privileges.
(d) The burden of proof of the existence of just cause is on the administration or its representatives.
(dm) For complaints of sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the standard of proof shall be a preponderance of the evidence.
(e) If a staff member whose dismissal is sought has requested a hearing, discontinuance of the proceeding by the institution is deemed a withdrawal of charges and a finding that the charges were without merit.
(f) Nothing in this section shall prevent the settlement of cases by mutual agreement between the administration and the staff member, with the chancellor's approval, at any time prior to a final decision by the chancellor; or when appropriate, with the board's approval prior to a final decision by the board.
(g) Adjournments shall be granted to enable either party to investigate evidence as to which a valid claim of surprise is made.
(2) If the institutional policies and procedures provide that dismissal cases be heard by a hearing committee, the following requirements shall be observed:
(a) The committee may, on motion of either party, and, if the complaint involves sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, on the motion of the complainant, disqualify any one of its members for cause by a majority vote. If one or more of the hearing committee members disqualify themselves or are disqualified, the remaining members may select a number of replacements equal to the number who have been disqualified to serve, except that alternative methods of replacement may be specified in the policies and procedures adopted by the institution.
(b) If the hearing committee requests, the chancellor shall provide legal counsel after consulting with the committee concerning its wishes in this regard. The function of legal counsel shall be to advise the committee, consult with them on legal matters, and such other responsibilities as shall be determined by the committee within the provisions of the policies and procedures adopted by the institution.
Section 17. UWS 11.07 is amended to read:
UWS 11.07 Recommendations to the chancellor. The hearing body shall send to the chancellor and to the academic staff member concerned, as soon as practicable after conclusion of a hearing, a verbatim record of the testimony and a copy of its report, findings, and recommendations. After reviewing the matter on record and considering arguments if submitted by the parties, the chancellor shall issue a decision. In that decision, the chancellor may order dismissal of the academic staff member, may impose a lesser disciplinary action, or may find in favor of the academic staff member. The academic staff member shall be notified of the chancellor's decision in writing. In cases involving sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall be notified of the chancellor's decision at the same time as the academic staff member. This decision shall be deemed final unless the board, upon request of the academic staff member, grants review based on the record. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have all rights provided to the academic staff member in this paragraph.
Section 18. UWS 11.08 is amended to read:
UWS 11.08 Suspension from duties. Pending the final decision as to dismissal, the academic staff member with an indefinite appointment shall not be relieved of duties, except where, after consulting with the appropriate administrative officer, the chancellor finds that substantial harm may result if the staff member is continued in his or her the staff member’s position. Where such determination is made, the staff member may be relieved of his or her the staff member’s position immediately, or be assigned to another administrative unit, but his or her the staff member’s salary shall continue until the chancellor makes a decision as to dismissal, unless the chancellor also makes the determinations set forth in s. UWS 11.105 11.32 (1) in which case the suspension from duties may be without pay and the procedures set forth in s. UWS 11.105 11.32 shall apply. Section 19. UWS 11.10 is amended to read:
UWS 11.10 Board review. A member of the academic staff on indefinite appointment who has been dismissed for cause by the chancellor following a hearing may appeal this action to the board. Any appeal must be made within 30 days of the date of the decision of the chancellor to dismiss. Upon receiving an appeal the board shall review the case on the record. Following such review the board may confirm the chancellor's decision, or direct a different decision, or approve a further hearing before the board with an opportunity for filing exceptions to the hearing body's recommendations or the chancellor's decision and for oral argument on the record. If further review with opportunity for oral argument on the record is provided, this review shall be closed unless the staff member requests an open hearing. (See subch. V of ch. 19, Stats., Open Meeting Law Meetings of Governmental Bodies.) All decisions of the board, whether after review on the record or after oral argument, shall be expressed in writing and shall indicate the basis for such decision. For complaints involving sexual harassment, sexual assault, dating violence, domestic violence, sexual exploitation, or stalking, the complainant shall have the same opportunity to appeal, file exceptions to the recommendations of the hearing committee or chancellor, and oral arguments, as provided to the academic staff member. Section 20. UWS 11.101 to 11.106 are renumbered to UWS 11.28 to 11.33 respectively and UWS 11.28; 11.29(1)(d), (3), and (4); 11.31(1), (3), (5), and (6); 11.30; 11.32(1)(intro.), (1)(a), (1)(c), and (3); and 11.33, as renumbered, are amended to read:.
UWS 11.28 Dismissal for cause in special cases - indefinite academic staff appointments. A member of the academic staff holding an indefinite appointment may be dismissed for serious criminal misconduct, as defined in s. UWS 11.102 11.29. (1)
(d) The academic staff member's fitness or ability to fulfill the duties of his or her their position is seriously impaired.
(3) Except as otherwise expressly provided, an academic staff member who has engaged in serious criminal misconduct shall be subject to the procedures set forth in ss. UWS 11.103 to 11.106 11.30 to 11.33. (4) Any act required or permitted by ss. UWS 11.103 to 11.106 11.30 to 11.33 to be done by the chancellor may be delegated to the provost or another designee pursuant to institutional policies forwarded to the Board of Regents under s. UWS 9.02. UWS 11.30 Reporting responsibility. Any academic staff member who is charged with, pleads guilty or no contest to, or is convicted of a felony of a type listed in s. UWS 11.102 11.29 (1) (a), in state or federal court, shall immediately report that fact to the chancellor. (1) Whenever the chancellor of an institution within the University of Wisconsin System receives a report under s. UWS 11.103 11.30 or other credible information that an academic staff member holding an indefinite appointment has pleaded guilty or no contest to, or has been convicted of a felony of a type listed in s. UWS 11.102 11.29 (1) (a), in state or federal court, the chancellor shall: (a) Within 3 working days of receipt of the report or information, inform the academic staff member of its receipt and, after consulting with appropriate institutional governance representatives, appoint an investigator to investigate the report or information and advise the chancellor as to whether to proceed under this section or ss. UWS 11.02 to 11.10 or ss. UWS 11.13 to 11.26. If the university knows the identity of an affected party, the university shall make a reasonable attempt to notify the affected party of the report or information at the same time as the academic staff member. For cases involving sexual assault, dating violence, domestic violence, or stalking, the complainant shall be notified by the chancellor of the receipt of the report or information at the same time as the academic staff member.
