Wisconsin Legislature: UWS 17.152(1)(a)

History: CR 08-099: cr. Register August 2009 No. 644, eff. 9-1-09; CR 15-060: am. Register June 2016 No. 726, eff. 7-1-16; CR 20-062: am. Register May 2021 No. 785, eff. 6-1-21.

Subchapter III — Procedures for Student Nonacademic Discipline in Sexual Misconduct Cases

UWS 17.151 Sexual misconduct subject to disciplinary action under ss. UWS 17.152 to 17.156. 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. Sexual misconduct, as defined in this section, shall use the disciplinary procedure, hearing, appeal, and settlement processes detailed in ss. UWS 17.152 to 17.156.

(1) Sexual harassment. Conduct on the basis of sex that satisfies any of the following:

(a) Unwelcome conduct of a sexual nature directed towards a student, an employee, or a person participating in an education 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.

(b) 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 a university sponsored or supported activity.

(2) Sexual assault. An offense that meets any of the following definitions:

(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 as per s. 944.06, Stats.

(d) Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent as per 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 as per ss. 813.12 (1) (am) and 968.075, Stats.

(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:

(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 complainants.

2. Allowing another person to observe, record, or photograph sexual activity or private body parts of one or more complainants.

3. Otherwise distributing recordings, photographs, or other images of the same of one or more complainants.

(b) Masturbating, touching one’s genitals, or exposing one’s genitals in complainant’s presence without the consent of complainant, or inducing another person to do the same.

(d) Inducing incapacitation through deception for the purpose of making another person 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 the complainant 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.

History: CR 20-062: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (title) made under s. 13.92 (4) (b) 2., Stats., and correction in (intro.) made under s. 13.92 (4) (b) 7., Stats., Register May 2021 No. 785.

UWS 17.152 Sexual misconduct 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 17.085 (1), for sexual misconduct defined in s. UWS 17.151, and conduct described in s. UWS 17.09 may be consolidated with sexual misconduct charges pursuant to this section and consistent with s. UWS 17.08. When responding to sexual misconduct, the university may take the following actions:

(a) The university may consolidate disciplinary procedures as to allegations of sexual misconduct, as defined in s. UWS 17.151, 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.

(b) In consultation with the complainant, the university may choose to address allegations of sexual misconduct with non-disciplinary measures outside the procedures of this chapter. Non-disciplinary measures may include supportive measures and protective measures for complainant, which may or may not involve the respondent.

(2) Title IX misconduct. Either a complainant or the Title IX Coordinator may file the formal Title IX complaint as defined in s. UWS 17.02 (8m). Unless a formal Title IX complaint is dismissed under par. (a) or (b), sexual misconduct under this section shall also be considered “Title IX misconduct” and require associated process. Dismissals will be handled as follows:

(a) The university shall dismiss a formal Title IX complaint that does not meet all of the following requirements:

1. The alleged conduct is on the basis of sex and meets the definitions of sexual harassment, as defined in s. UWS 17.151 (1) (a), or sexual assault, dating violence, domestic violence, or stalking, as defined in s. UWS 17.151 (2) to (5).

2. The alleged conduct occurred within a university “education program or activity,” as defined in s. UWS 17.02 (7m).

3. The alleged conduct occurred against the complainant while in the United States.

4. The complainant is participating in or attempting to participate in the university’s education program or activity at the time the complaint is filed.

(b) The university may dismiss a formal 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 formal Title IX complaint or any allegations therein.

2. The respondent is no longer enrolled in the university.

3. Specific circumstances prevent the university from gathering evidence sufficient to reach a determination as to the formal Title IX complaint or allegations therein.

(c) Upon dismissal of a formal Title IX complaint, the university shall promptly send written notice of the dismissal and reason therefore simultaneously to the complainant and respondent. The complainant and respondent have the right to appeal the dismissal of a formal Title IX complaint under s. UWS 17.154 (1).

(d) Dismissal of a formal Title IX complaint does not preclude other university action under this chapter.

(3) 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) The details known at the time of issuing notice, including:

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 that making a knowingly false statement or refusing to comply regarding a university matter may violate s. UWS 17.09 (11) and could result in additional sanctions.

(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 Title IX misconduct.

(g) Information about the nonacademic misconduct process available under this chapter 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.

(4) Investigation. During the investigation, the investigating officer shall do all of the following:

(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; the university may, however, 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.

(5) Review of evidence. Prior to completion of the final investigative report, as described in sub. (6), the university shall provide the complainant and respondent and their advisors, if any:

(a) 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, regardless of whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. This shall include information upon which the university does not intend to rely in reaching a determination regarding responsibility as well as any inculpatory or exculpatory evidence.

(b) 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.

(6) Final investigative report. The investigator shall create an investigative report that fairly summarizes relevant evidence. The final investigative report may contain recommended determinations as to whether sexual misconduct occurred and specification of any sanction recommended. The final investigative report shall be delivered simultaneously to the respondent and complainant and their advisors, if any, for their review and response at least 10 days prior to a hearing. Upon distribution of the final investigative report to the complainant and respondent, the following conditions shall apply:

(a) The complainant and respondent have the right to a hearing under s. UWS 17.153 for a formal determination as to whether sexual misconduct occurred, potential disciplinary sanctions, or both.

(b) The university shall proceed under s. UWS 17.153 to schedule a hearing on the matter. A hearing shall be conducted unless the complainant and respondent waive, in writing, the right to such a hearing or otherwise voluntarily choose to proceed with a settlement agreement or informal resolution under s. UWS 17.156.

History: CR 20-062: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (2) (intro.) made under s. 35.17, Stats., and correction in (1) (intro.), (2) (c), (6) (a), (b) made under s. 13.92, (4) (b) 7., Stats., Register May 2021 No. 785; correction in (2) (a) 1. made under s. 35.17, Stats., Register July 2021 No. 787.

UWS 17.153 Sexual misconduct hearing.

(1) The university shall have the right to decide whether a hearing examiner or hearing committee shall hear the matter.

(2) The university shall take the necessary steps to convene the hearing and shall schedule it within 15 days of the distribution of the final investigative report. The hearing shall be conducted within 45 days of the distribution of the final investigative report, unless a different time period is mutually agreed upon by the complainant, respondent and university or is ordered or permitted by the hearing examiner or committee.

(3) No less than 10 days in advance of the hearing, the hearing examiner or committee shall obtain from the investigating officer, in writing, the final investigative report and any additional available information of the type described in s. UWS 17.152 (4).

(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 this chapter.

(b) Both the complainant and respondent shall have the right to question adverse witnesses, the right to present information and witnesses, the right to be heard on their own behalf, and the right to be accompanied by an advisor of their choice. The advisor may be a lawyer. In accordance with the educational purposes of the hearing, the complainant and respondent are expected to respond on their own behalf to questions asked of them during the hearing.

1. Shall admit information that has reasonable value in proving the facts, but may exclude immaterial, irrelevant, or unduly repetitious testimony.

2. May not permit questions and evidence about the complainant’s sexual predisposition or prior sexual behavior unless:

a. Such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or

b. The questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

3. Shall observe recognized legal privileges including those described in s. UWS 17.152 (4) (e).

4. May take reasonable steps to maintain order and adopt procedures for the questioning of parties or witnesses appropriate to the circumstances of the testimony, provided the advisors for the complainant and respondent are allowed to effectively cross-examine any party or witness.

(5) The party’s advisors shall conduct cross examination directly, orally, and in real time by the party’s advisor. A party may not personally conduct cross examination. The following conditions shall apply:

(a) If a party does not have an advisor at the hearing to conduct cross-examination, the university shall provide someone, without fee or charge, who may or may not be an attorney, to conduct cross-examination.

(b) Before a party or witness answers a cross-examination or other question, the hearing examiner or committee shall first determine whether a question is relevant or not and explain any decision to exclude those questions as not relevant.

(c) The hearing examiner or committee may not draw an inference regarding responsibility based solely on a party’s or a witness’s absence from the hearing or refusal to answer cross-examination questions.

(d) At hearings involving Title IX misconduct, if a party or a witness does not submit to cross-examination at the hearing, then the hearing examiner or committee may not rely on any statement of that party or witness made prior to or during the hearing in reaching a determination regarding responsibility.

(6) If a party fails to appear at a scheduled hearing and to proceed, the hearing examiner or committee may issue a decision based upon the information provided except as described in sub. (5) (d).

(7) 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 all evidence presented at the hearing. The respondent and the complainant may access the record, except as may be precluded by applicable state or federal law.