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UVA (Proposed Base Document) Student Sexual Misconduct Policy: Public Comment Period Nov. 19 – Dec. 5

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http://www.virginia.edu/sexualviolence/policy/

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Student Sexual Misconduct Policy
Executive Summary of Proposed Revisions for Public Comment

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Nov 20
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(Nov 20 2014 9:13PM) : "The UVa community is invited to review and comment on the newly proposed Student Sexual Misconduct Policy. Reviewers are encouraged to read the Executive Summary before reading the full policy and submitting comments..." more
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November 19, 2014

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The University is posting its proposed new Student Sexual Misconduct Policy today for public review and comment. This Policy was last revised on July 8, 2011, following a similar public review and comment period. Many of the policy changes made in 2011 were made in response to the Dear Colleague Letter issued by the U.S. Department of Education's Office of Civil Rights (OCR) on April 4, 2011. A number of significant legal developments have occurred since then. On April 29, 2014, OCR issued additional guidance on Title IX and Sexual Violence to all colleges and universities. That guidance, consisting of 52 Questions & Answers, is posted here. On October 20, 2014, the Department of Education issued final regulations implementing changes to the federal Clery Act. These changes, required by the Violence Against Women Reauthorization Act of 2013 (VAWA), take effect on July 1, 2015. A summary of these changes is posted here. The University's proposed new Student Sexual Misconduct Policy (the "Proposed New Policy") complies with all the recent legal changes and reflects the University's experience in responding to student sexual misconduct reports and complaints over the last several years. Please take the time to read and comment on the University's Proposed New Policy. The public comment period ends on Friday, December 5, 2014.

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Summary of Proposed Revisions:

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  1. Length. The Proposed New Policy is significantly longer than the current policy, which is focused almost exclusively on the procedures for resolving student disciplinary complaints. Consistent with new federal guidance, the Proposed New Policy outlines all of a student's options following an incident of Sexual Misconduct, including how to obtain immediate and ongoing support and assistance, how to report an incident to the University and/or to Police, and how to file a University complaint. The University has also developed a separate infographic to ensure that students have a reference sheet containing all of this information. The infographic has been widely distributed throughout Grounds. It is also posted here.
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  3. "Intimate Partner Violence," "Domestic Violence" and "Stalking" Added as Defined Terms. The University's current policy addresses intimate partner violence, domestic violence, and stalking as forms of Sexual Harassment. The University's Proposed New Policy includes stand-alone definitions for these terms and treats each as a separate form of Sexual Misconduct. The Proposed New Policy adopts the definitions contained in the Clery Act, as amended by VAWA; the VAWA amendments now require colleges and universities to compile and report separate statistics for these three offenses.
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  5. Clarification of the Definitions of "Effective Consent" and "Incapacitation." The concepts of "Effective Consent" and "Incapacitation" continue to play a central role in student Sexual Misconduct cases. Under the Proposed New Policy, these terms have been further elaborated and clarified.
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  7. Revision of Sexual Harassment Definition; Explanation of "Hostile Environment." The Proposed New Policy clarifies the definition of Sexual Harassment and explains how the University evaluates the existence of a "Hostile Environment" from both a subjective and objective viewpoint. The Proposed New Policy lists several factors that the University considers in evaluating Hostile Environment claims, including whether the conduct in question is protected speech.
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  9. Complicity Added. The Proposed New Policy adds "Complicity" as a type of prohibited conduct. "Complicity" means any act that knowingly aids, facilitates, promotes or encourages another person to commit any other form of conduct prohibited by the Proposed New Policy.
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  11. Preservation of Evidence. The Proposed New Policy encourages students to preserve evidence of any act of Sexual Misconduct and outlines various methods for doing so. These methods include obtaining a confidential forensic examination by a sexual assault nurse examiner ("SANE Nurse") at the University's Emergency Department. Appendix I to the Proposed New Policy outlines how to obtain such an examination and what to expect at the Emergency Department.
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  13. Accessing Confidential Sources. The Proposed New Policy outlines where students can go to obtain confidential counseling and support in the aftermath of an incident of Sexual Misconduct. Appendix II to the Proposed New Policy lists the confidential resources available both inside and outside the University.
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  15. Assistance from the Office of the Dean of Students; Obtaining Interim Remedial Measures and Support. The Proposed New Policy provides students more detail about the many options for support and assistance available through the Office of the Dean of Students ("ODOS"), including the many types of remedial measures that ODOS can implement, following an incident of Sexual Misconduct.
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  17. Means for Reporting Sexual Misconduct to the University. The Proposed New Policy incorporates new means for reporting Sexual Misconduct to the University. Students may now report Sexual Misconduct via an online system (Just Report It) or they may report by disclosing information about Sexual Misconduct to any "Responsible Employee." The University adopted a new reporting policy on August 25, 2014, requiring all "Responsible Employees" to report student disclosures of Sexual Misconduct to the University's Title IX Coordinator. The Proposed New Policy incorporates and reflects this new reporting policy.
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  19. Explanation of University's Response When Reporting Student Does Not Wish to Participate in University Investigation or Disciplinary Action or Requests Confidentiality. The Proposed New Policy explains that such requests will be evaluated by a designated "Evaluation Panel," describes the specific factors the Evaluation Panel will consider, and describes the University's response in the event that such requests cannot be honored while ensuring the safety of the University community.
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  21. Changes in How Formal Complaints are Investigated. The University has hired two new full-time investigators in the Office of Equal Opportunity Programs to investigate student and employee complaints of discrimination and harassment. Complaints filed under the Proposed New Policy will be investigated by these investigators.
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  23. Changes in Formal Resolution of Complaints. Under the Proposed New Policy, the University investigator will prepare a report summarizing the evidence and recommending a finding of "responsibility" or "no responsibility," applying a "preponderance of the evidence" standard. This recommendation will be made only after the investigator has conducted a thorough investigation that includes equal and ample opportunity for each party to identify and respond to relevant witnesses and evidence. The investigator's recommended finding will be reviewed by a Standing Review Committee appointed by the Vice President and Chief Student Affairs Officer.
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  25. Changes in Role of Sexual Misconduct Board. Under the Proposed New Policy, the role of the Sexual Misconduct Board ("SMB") will be limited to conducting Hearings on Sanctions. Recent OCR guidance discourages schools from allowing students to serve on hearing boards in cases involving sexual violence. This guidance is inconsistent with the University's tradition of student self-governance. Under the Proposed New Policy, the SMB will continue to include student members unless either of the parties objects, in which case the SMB Hearing Panel for that case will consist solely of faculty and staff members.
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  27. Inclusion of List of Possible Sanctions. The Proposed New Policy includes a list of the range of sanctions that may be imposed by the SMB Hearing Panel. Consistent with the current policy, the Proposed New Policy requires the SMB Hearing Panel to consider a sanction of suspension or expulsion in every case.
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  29. Changes in Voluntary Informal Resolution. Certain types of cases are ineligible for voluntary information resolution under the Proposed New Policy. These include cases involving allegations of Sexual Assault (or the alleged use of Force or violence) or where, in the sole reasonable discretion of the Dean of Students, the allegations suggest an ongoing safety risk to the University community.
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  31. Description of Training, Education and Prevention Programs. The Proposed New Policy provides general descriptions of the training, education and prevention programs offered to University students, faculty, and staff. Appendix III to the Proposed New Policy describes the University's training, education and prevention programs in detail.
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http://www.virginia.edu/sexualviolence/policy/introduction.html

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Nov 20
Dan Doernberg

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(Nov 20 2014 9:15PM) : End of Executive Summary, beginning of full (proposed) policy.
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Introduction

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A. Overview and Purpose

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The University of Virginia prides itself on being an academic community based on caring and trust. Any act of sexual misconduct stands in stark opposition to these core values and will not be tolerated within our community.

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Sexual Misconduct, as defined by this Policy, is a broad term that encompasses several forms of Prohibited Conduct. Sexual Misconduct includes Sexual Assault, Sexual Exploitation, Sexual Harassment, Intimate Partner Violence, Domestic Violence, and Stalking. Sexual Misconduct is a form of discrimination under federal civil rights laws. Most of its forms also constitute crimes in Virginia and throughout the United States.1

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The University is committed to fostering a culture of reporting with respect to Sexual Misconduct so that it can respond, promptly and equitably, whenever an incident occurs. This Policy is premised on that commitment, and is intended to serve as a roadmap for students so that they are aware of all their options for support and assistance and know how the University will respond when it receives a report or complaint of Sexual Misconduct.

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The University has undertaken several, separate initiatives aimed at ensuring the effectiveness of this Policy. The University has developed an online system for reporting Sexual Misconduct.2 This system includes the option for reporting information anonymously. The University also has adopted a separate Reporting Policy, requiring certain employees to report disclosures of Sexual Misconduct made to them by students.3 Recognizing that there may be societal, cultural, and individual barriers to reporting Sexual Misconduct, the University also has designated a number of confidential sources for students to access, both inside and outside the University.4 The purpose of all these initiatives is to ensure that students receive the support, assistance, and information they need in the aftermath of any incident of Sexual Misconduct.

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This Policy also outlines how the University endeavors to raise awareness of, and prevent, Sexual Misconduct through its many education, training and prevention programs. The University expects all members of its community to take part in preventing acts of Sexual Misconduct. Creating a safe, non-discriminatory environment is the responsibility of all members of this community, both individually and collectively.

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B. Governing Laws; Notice of Non-Discrimination; Title IX Coordinator

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1. Governing Laws

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This Policy is governed by a number of laws, including Title IX of the Education Amendments of 1972 ("Title IX"), the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act of 1990 ("Clery Act"), and the Violence Against Women Reauthorization Act of 2013 ("VAWA"). Title IX prohibits discrimination on the basis of sex in federally funded education programs and activities, and prohibits retaliation against any individuals associated with a report or complaint of such discrimination.5 The Clery Act requires institutions of higher education to comply with certain campus safety and security-related requirements,6 including, as amended by VAWA, the compilation of statistics for incidents of domestic violence, dating violence, sexual assault, and stalking, and the publication of certain policies, procedures, and programs related to these incidents, 7 as a condition of participating in federal student financial aid programs. Because the University accepts federal funding for its education programs and also participates in federal student financial aid programs, this Policy must comply with Title IX, the Clery Act, and VAWA.

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As a public institution, the University is required and committed to providing due process to students accused of Prohibited Conduct under this Policy. Consistent with due process, a student is presumed "not responsible" of Prohibited Conduct until proven otherwise under this Policy.

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The University is also required and committed to upholding the First Amendment of the United States Constitution. Nothing in this Policy is intended to abridge the rights or freedoms guaranteed by the First Amendment.

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The University is also committed to maintaining the privacy of all individuals involved in a report or complaint of Sexual Misconduct, as required by the Family Educational Rights and Privacy Act ("FERPA").8 Information contained in a report of Sexual Misconduct will be shared only with the Title IX Coordinator and those University officials who "need to know" in order to assist in the University’s review of, and response to, the reported incident. Information contained in any complaint of Sexual Misconduct will be shared only with those University officials involved in the investigation and resolution of the complaint. Under the Clery Act, the University must issue timely warnings to the University community about certain crimes that have occurred and may continue to pose a serious or ongoing threat to students and employees. Consistent with the Clery Act, the University withholds the names and other identifiable information of victims when issuing timely warnings to the University community.

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2. Notice of Non-Discrimination

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The University of Virginia does not discriminate on the basis of age, color, disability, gender identity, marital status, national or ethnic origin, political affiliation, race, religion, sex (including pregnancy), sexual orientation, veteran status, and family and genetic information, in its programs and activities as required by Title IX, the Americans with Disabilities Act of 1990, as amended, Section 504 of the Rehabilitation Act of 1973, Title VII of the Civil Rights Act of 1964, the Governor’s Executive Directive, and other applicable statutes, and University policies. The University maintains three policies consistent with this obligation:

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  1. Preventing and Addressing Discrimination and Harassment ("PADH"): The PADH policy prohibits discrimination and harassment based on the protected characteristics listed in the preceding paragraph and applies to all University students, employees and certain third-parties (e.g., University applicants, contractors and visitors). The Office of Equal Opportunity Programs ("EOP") administers the PADH policy.
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  3. Preventing and Addressing Retaliation policy ("PAR"): The PAR policy prohibits retaliation against any individual who reports conduct prohibited by the PADH policy or who cooperates in an investigation into a complaint of such conduct. EOP administers the PAR policy.
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  5. Student Sexual Misconduct Policy (this Policy) prohibits sex and gender-based discrimination consistent with the protections afforded by Title IX and describes the various options for support, assistance, and reporting available to students when an incident of Sexual Misconduct occurs. EOP administer this policy in coordination with the Division of Student Affairs.
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Students may report any incident of Sexual Misconduct via the options outlined in this Policy, regardless of the identity of the alleged perpetrator (e.g., student, faculty, staff or non-University member). The Interim Remedial Measures outlined in this Policy are available to students regardless of the identity of the alleged perpetrator (e.g., student, faculty, staff or non-University member).

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Students may file a complaint and pursue the resolution options outlined in this Policy only when the alleged perpetrator is a University student. Students may file complaints of sex or gender-based discrimination against faculty, staff, and certain third parties via the EOP Complaint Procedures outlined here.

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EOP investigates formal complaints filed against students under this Policy and complaints against faculty, staff, and certain third parties filed under the EOP Complaint Procedures. EOP investigators apply consistent terminology and investigatory procedures, including standard of proof (preponderance of evidence), regardless of whether a complaint of sex or gender-based harassment is brought under this Policy or the EOP Complaint Procedures.

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3. Title IX Coordinator(s)

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The Title IX Coordinator is the University official charged with administering this Policy and monitoring the University’s compliance with Title IX regulations. The Title IX Coordinator has responsibility for overseeing the University’s response to Sexual Misconduct reports and/or complaints and identifying and addressing any patterns or systemic problems revealed by such reports and complaints. To fulfill this oversight function, the Title IX Coordinator (together with Deputy Title IX Coordinators and other members of the Title IX Response Team) receives and reviews all reports of Sexual Misconduct.

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The Title IX Coordinator and Deputy Title IX Coordinators can be contacted by telephone, email, or in person during regular office hours:

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Darlene Scott-Scurry, Title IX Coordinator
Director, Equal Opportunity Programs
Office of Equal Opportunity Programs
Washington Hall, East Range
PO Box 400219
scottscurryd@virginia.edu
(434) 924-3200 (office)

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Bridget Maricich, Deputy Title IX Coordinator for Compliance
Equal Opportunity Officer for Policy & Legal Compliance
Office of Equal Opportunity Programs
Washington Hall, East Range
PO Box 400219
bmm4q@virginia.edu
(434) 924-3200 (office)

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Allen Groves, Deputy Title IX Coordinator for Student Sexual Misconduct
University Dean of Students
Office of the Dean of Students
Peabody Hall, Second Floor
PO Box 400708
DeanofStudents@virginia.edu
(434) 924-7133 (office)

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Jane Miller, Deputy Title IX Coordinator for Athletics
Senior Associate Athletics Director for Programs
Department of Athletics
McCue Center, Third Floor
PO Box 400845
jm2y@virginia.edu
(434) 982-5152 (office)

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Questions regarding Title IX may be directed to the University’s Title IX Coordinator, Deputy Title IX Coordinators, or to the U.S. Department of Education Office for Civil Rights (OCR): http://www2.ed.gov/about/offices/list/ocr/index.html.

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1. Underlined terms are defined in Section III of this Policy.
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2. See: http://www.virginia.edu/justreportit/sexualmisconduct.

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3. The Reporting Policy is posted at https://policy.itc.virginia.edu/policy/policydisplay?id=HRM-040.

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4. See Appendix II of this Policy for a list of these confidential resources.

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5. See 20 U.S.C. §§ 1681 et seq, and its implementing regulations at 34 CFR 106. The United States Department of Education enforces compliance with Title IX through its Office of Civil Rights ("OCR"). OCR has issued a number of guidance documents related to Title IX compliance, including the four documents referenced below. This Policy incorporates the guidance reflected in these documents:
(1) Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, issued on January, 19, 2001 ("2001 OCR Guidance") (Available here:
http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html );
(2) Dear Colleague Letter on Harassment and Bullying, issued on October 26, 2010 (Available here:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html);
(3) Dear Colleague Letter on Sexual Violence, issued on April 4, 2011 (Available here:
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf); and
(4) Questions and Answers on Title IX and Sexual Violence, issued on April 29, 2014 (Available here:
http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf).

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6. See 20 U.S.C. § 1092(f), and its implementing regulations at 34 CFR 668.46.

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7. See 20 U.S.C. § 1092(f), and its implementing regulations at 34 CFR 668.46.

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8. See 20 U.S.C. § 1232(g), and its implementing regulations at 34 CFR 99.

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http://www.virginia.edu/sexualviolence/policy/scope.html

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Scope of Policy: What, Who, Where and When

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A.WHAT conduct is covered by this Policy?

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This Policy covers all forms of Sexual Misconduct, a broad term that includes Sexual Assault, Sexual Exploitation, Sexual Harassment, Intimate Partner Violence, Domestic Violence and Stalking. All Sexual Misconduct is considered Prohibited Conduct under this Policy. Prohibited Conduct also includes Retaliation, Complicity and certain Other Related Misconduct. Each of these underlined terms is defined in Section III of this Policy.

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B.WHO is subject to this Policy?

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Every student who is registered or enrolled for credit- or non-credit-bearing coursework at the University (in Charlottesville) during or between any academic sessions (fall, spring, summer or January terms) is subject to this Policy.

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C.WHERE must Prohibited Conduct occur in order to be covered by this Policy?

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Because the University views all Prohibited Conduct, and especially Sexual Misconduct, as deeply inconsistent with a community of caring and trust and likely to have continuing effects within the community, wherever it occurs, this Policy applies both to on-Grounds and to off-Grounds conduct that falls within the definition of Prohibited Conduct.

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D.WHEN does this Policy apply?

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There is no deadline for reporting Sexual Misconduct under this Policy, although delayed reporting may compromise the ability of the University to investigate and remedy the Sexual Misconduct in question. A complaint of Sexual Misconduct (discussed below) must be filed while the alleged perpetrator remains a University student.

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http://www.virginia.edu/sexualviolence/policy/definitions.html

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Definitions of Prohibited Conduct

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Sexual Misconduct is Prohibited Conduct under this Policy. Sexual Misconduct is a broad term that includes (A) Sexual Assault; (B) Sexual Exploitation; (C) Sexual Harassment; (D) Intimate Partner Violence; (E) Domestic Violence; and (F) Stalking. Prohibited Conduct also includes Retaliation, Complicity and certain Other Related Misconduct. Underlined terms are defined in this section.

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A. Sexual Assault

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Sexual Assault consists of (1) Sexual Contact and/or (2) Sexual Intercourse that occurs without (3) Effective Consent.

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1. Sexual Contact is:

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  • any intentional sexual touching
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  • however slight
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  • with any object
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  • performed by a person upon another person
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Sexual Contact includes (a) intentional contact with the breasts, buttocks, groin or genitals or intentionally touching another with any of these body parts, or (b) making another touch you or themselves with or on any of these body parts, or (c) any other intentional contact with/of/by any other body part that is made in a sexual manner.

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2. Sexual Intercourse is:

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  • any sexual intercourse
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  • however slight
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  • with any object
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  • performed by a person upon another person
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Sexual Intercourse includes (a) vaginal penetration by a penis, object, tongue or finger; (b) anal penetration by a penis, object, tongue, or finger; and (c) oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.

3. Effective Consent is:

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  • informed (knowing)
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  • voluntary (freely given)
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  • active (not passive), meaning that
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  • through clear words or actions
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  • the parties have indicated permission to engage in mutually-agreed upon sexual activity
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It is the responsibility of the person who wants to engage in a specific sexual activity to make sure that he or she has obtained Effective Consent before initiating that activity.1 Lack of protest or resistance does not constitute Effective Consent. Silence or passivity does not constitute Effective Consent. Relying solely on non-verbal communication during sexual activity can lead to misunderstanding and may result in a violation of this Policy. The University urges students to talk with one another before engaging in sexual activity to ensure they both wish to engage in the same activity.

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Effective Consent to one form of Sexual Contact or Sexual Intercourse does not constitute Effective Consent to another form of Sexual Contact or Sexual Intercourse. The University urges students to communicate with each other throughout any sexual encounter to ensure that any progression of sexual activity is done with Effective Consent.

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A person who has given Effective Consent to engage in Sexual Contact or Sexual Intercourse may withdraw Effective Consent at any time. It is the responsibility of the person withdrawing Effective Consent to communicate, through clear words or actions, that he or she no longer wishes to engage in the sexual activity. Once Effective Consent is withdrawn, the sexual activity must cease immediately.

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Effective Consent cannot be gained by Force. Force is (1) the use of physical violence to gain sexual access. Force also includes (2) threats; (3) intimidation and (4) coercion.

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  • Physical violence includes, but is not limited to, hitting, pushing, kicking, and/or restraining. Physical violence means that a person is exerting control over another person through physical force.
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  • Threats include any words or actions that would compel a reasonable person to engage in sexual activity that he or she would not ordinarily have engaged in. Example: "Have sex with me or I will hurt you."
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  • Intimidation is an implied threat that menaces or causes reasonable fear in another individual.
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  • Coercion means the application of an unreasonable amount of pressure to gain sexual access. Coercive behavior differs from seductive behavior. When someone makes clear that they do not want sex, that they want to stop, or that they do not want to go beyond a certain point of sexual interaction, continued pressure beyond that point can be coercive. In evaluating coercion, the University will consider: (a) frequency of the application of pressure; (b) intensity of the pressure; (c) isolation of the person being pressured; and (d) duration of the pressure.
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Effective Consent cannot be gained by taking advantage of the Incapacitation of another, where the person initiating sexual activity knew or reasonably should have known, of such Incapacitation.

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Incapacitation is a physical or mental state in which a person cannot make a rational, reasonable decision because they lack the ability to understand the consequences of their actions. Someone who is incapacitated lacks orientation to person, place, time and event. They may or may not be able to understand some or all of the following questions: "Do you know where you are?" "Do you know how you got here?" "Do you know what is happening?" "Do you know who you are with?" A person may be incapacitated as a result of the consumption of alcohol or other drugs, due to a temporary or permanent physical or mental health condition, or because they are asleep or otherwise unconscious.2 In all of these situations, a person is unable to provide Effective Consent to sexual activity, regardless of whether the person appeared to be a willing participant at the time the sexual activity occurred.

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Sometimes Incapacitation can be difficult to discern. This is especially true in cases of alcohol blackouts. Blackouts are periods of amnesia during which a person actively engages in behaviors (like walking and talking) but does not create memories for these events as they transpire. Depending on how much alcohol the person consumed and how impaired other brain functions are, a person in the midst of a blackout might appear incredibly drunk—or not overly intoxicated at all. Alcohol can produce blackouts by shutting down brain circuits that involve the hippocampus, a brain area that plays a central role in consolidating memories for what happens in our day-to-day lives. Blacking out is different from passing out, which involves states of sleep or unconsciousness. The most common form of blackout involves spotty memories for events, with islands of memories separated by missing memories in between.3

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Students are not expected to be medical experts in assessing Incapacitation under this Policy. In evaluating cases of alleged Incapacitation under this Policy, the University asks two questions: (1) Did the person initiating sexual activity know that his or her partner was Incapacitated? and, if not, (2) Should a sober, reasonable person in the same position have known that his or her partner was Incapacitated? If, based upon the totality of known circumstances, the answer to (1) or (2) is "YES," Effective Consent was not present during such sexual activity and this Policy was violated.

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The University urges students to exercise extreme caution before engaging in sexual activity when either or both parties have been consuming alcohol or using other drugs. The use of alcohol or other drugs can lower inhibitions and create confusion as to whether Effective Consent is present. If there is any doubt about the level or extent of one's own, or the other party's, impairment, the safest course of action is to forego or cease any sexual activity. Being impaired by alcohol or other drugs is no defense under this Policy.

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Rules to Remember:

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  • The party desiring to initiate sexual activity is responsible for obtaining Effective Consent.
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  • In order to obtain Effective Consent, permission must be given prior to or contemporaneously with the sexual activity in question.
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  • Effective Consent should never be assumed. Lack of protest or resistance does not constitute Effective Consent. "No" means no, but nothing (silence, passivity, inertia) also means no. A verbal "No," even if it sounds indecisive or insincere, should always be treated as a denial of Effective Consent.
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  • If there is confusion as to whether Effective Consent is present (e.g., words, gestures or other indications of hesitation or reluctance), the parties should stop the sexual activity immediately and verbally communicate with each other to resolve the confusion.
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  • A prior sexual relationship or prior sexual activity does not constitute Effective Consent to subsequent sexual activity. Past consent does not imply future consent.
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  • Although Effective Consent is generally evaluated on the basis of an objective standard ("What should a reasonable person have concluded?"), it may be evaluated on the basis of a subjective standard ("What did this specific person conclude?") in the context of certain long-term relationships where the evidence shows that the parties have an established pattern of communicating consent that deviates from the objective standard.
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B. Sexual Exploitation

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Sexual Exploitation occurs when a person takes non-consensual or abusive sexual advantage of another. "Non-consensual" means without Effective Consent, as defined above, under Sexual Assault. Examples of Sexual Exploitation include, but are not limited to:

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  • Causing or attempting to cause the Incapacitation of another person in order to gain a sexual advantage over such other person
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  • Causing the prostitution of another person
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  • Non-consensual recording or photographing of private sexual activity and/or an individual's intimate parts (including genitalia, groin, breasts or buttocks)
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  • Non-consensual distribution of recordings, photos, or other images of an individual's sexual activity and/or intimate parts (including genitalia, groin, breasts or buttocks)
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  • Allowing third parties to observe private sexual activity from a hidden location, (e.g., a closet)
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  • Viewing another person's sexual activity and/or intimate parts (including genitalia, groin, breasts or buttocks) in a place where that person would have a reasonable expectation of privacy
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  • Knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection, including HIV
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  • Exposing one's genitals in non-consensual circumstances or inducing another person to expose their genitals
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C. Sexual Harassment

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Sexual Harassment consists of unwelcome verbal, written, physical or other conduct that is sex or gender-based, when:

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  • Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of an individual's employment, academic standing, or participation in other University programs and/or activities (often referred to as "quid pro quo" harassment); or
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  • Such conduct creates a Hostile Environment. A Hostile Environment exists when the conduct is sufficiently severe, persistent or pervasive that it unreasonably interferes with, limits or deprives an individual from participating in or benefitting from the University's education or work programs and/or activities. The University evaluates the existence of a Hostile Environment from both a subjective (the complainant's perspective) and an objective (reasonable person's) viewpoint.
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In evaluating whether a Hostile Environment exists, the University will consider the totality of known circumstances, including, but not limited to:

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  • The frequency, nature and severity of the conduct
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  • Whether the conduct was physically threatening
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  • Whether the conduct was humiliating
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  • The effect of the conduct on the alleged victim's mental or emotional state
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  • Whether the conduct was directed at more than one person
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  • Whether the conduct arose in the context of other discriminatory conduct
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  • Whether the conduct unreasonably interfered with the complainant's educational or work performance and/or University programs or activities
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  • Whether the conduct is protected speech under the First Amendment to the U.S. Constitution
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A Hostile Environment can be created by persistent or pervasive conduct or by a single incident. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a Hostile Environment, particularly if the conduct is physical.

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Sexual Assault, Intimate Partner Violence, and Domestic Violence, all separate forms of Prohibited Conduct under this Policy, are also forms of Sexual Harassment. Other examples of Sexual Harassment include, but are not limited to, unwelcome sexual advances; requests for sexual favors; and lewd or sexually suggestive comments, jokes, innuendos or gestures. The perceived offensiveness of a single expression, standing alone, is not sufficient to constitute Sexual Harassment.  

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D. Intimate Partner Violence

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Intimate Partner Violence (also commonly referred to as "dating violence" and/or "relationship violence") is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship will be determined based upon the length of the relationship, the nature of the relationship, and the frequency of interaction between the persons involved in the relationship. Intimate Partner Violence includes, but is not limited to, sexual, physical or emotional abuse and/or the threat of such abuse. Intimate Partner Violence does not include acts covered under the definition of Domestic Violence.

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E. Domestic Violence

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Domestic Violence is a felony or misdemeanor crime of violence committed (a) by a current of former spouse or intimate partner of the victim; (b) by a person with whom the victim shares a child in common; (c) by a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner; (d) by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or (e) by any other person against an adult or youth victim who is protected from the person's acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.4

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F. Stalking

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Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to (a) fear for his or her personal safety or the safety of others; or (b) suffer substantial emotional distress. Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly or indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person's property. Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim. Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

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Stalking may involve individuals who are known to each other or who have a current or previous relationship or may involve individuals who are strangers. Stalking may include one or more of the following acts: sending an individual unwanted gifts, sending/leaving an individual unwanted messages, repeatedly following an individual, damaging or threatening to damage an individual's property, appearing at locations frequented by an individual (e.g., home, classes or job), or harassing an individual via the Internet or via other electronic means.

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G. Retaliation

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Retaliation means words or actions of intimidation, threats, coercion or discrimination in any form against an individual because such individual has (1) filed a report or complaint of Sexual Misconduct, (2) been the subject of a report or complaint of Sexual Misconduct, or (3) assisted or participated in any way, as Complainant, Respondent, witness or otherwise, in the investigation or resolution of an alleged violation of this Policy. Action is generally deemed retaliatory if it would deter a reasonable person in the same circumstances from assisting or participating in any way, as Complainant, Respondent, witness or otherwise, in the investigation or resolution of a good faith allegation of an incident of Sexual Misconduct or other Prohibited Conduct under this Policy. Retaliation may be present even where there is ultimately a finding of "no responsibility" on the underlying Sexual Misconduct charges. Retaliation may be committed by the Respondent or the Complainant or by any other individual or group.

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H. Complicity

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Complicity means any act that knowingly aids, facilitates, promotes or encourages the commission of an incident of Prohibited Conduct by another person.

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I. Other Related Misconduct

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Other Related Misconduct means any violation of the University's Standards of Conduct that is directly related to alleged Sexual Misconduct or to any other alleged violation of this Policy. Other Related Misconduct may also include, without limitation, violations of any No-Contact Order or other Interim Remedial Measures, and any violation of the Standards of Conduct that occurred during or in connection with the alleged Sexual Misconduct.

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1. As used throughout this Policy, the pronouns "he" and "she" are intended to refer, interchangeably, to all individuals of any sexual- or gender-identification, including, without limitation, transgender individuals, transsexual individuals, and non-conforming-gender individuals.
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2. Some states, including Virginia, have criminal statutes that specify that individuals below a certain age lack capacity to provide legally effective consent. See Va. Code §§18.2-63, 18.2-370, 18.2-370.01 and 18.2-371.

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3. Aaron White, Ph.D., "Shining a Light on Alcohol Blackouts," The Spectrum,Vol. 6, Issue 2 (June 2014), National Institute on Alcohol Abuse and Alcoholism (NIAAA): http://www.spectrum.niaaa.nih.gov/archives/V6I2Jun2014/features/light.html

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For a deeper understanding of this topic, see White, A.M. (2003) "What happened? Alcohol, memory blackouts, and the brain." Alcohol Research & Health: The Journal of the National Institute on Alcohol Abuse and Alcoholism 27, 186-196. http://pubs.niaaa.nih.gov/publications/arh27-2/186-196.htm

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4. In Virginia, some of such domestic or family violence laws can be found as follows:
relating to stalking: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-60.3;
relating to family abuse: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+16.1-228 and www.dcjs.virginia.gov/victims/documents/domviobr.pdf; and
relating to rape: https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-61.
Applicable laws will vary depending upon where "the crime of violence occurred."

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http://www.virginia.edu/sexualviolence/policy/options.html

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Options Available to Students Following an Incident of Sexual Misconduct

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A. Immediate Assistance and Preservation of Evidence
B. Ongoing Confidential Assistance and Support
C. Assistance from the Office of the Dean of Students; Interim Remedial Measures & Support
D. Reporting Sexual Misconduct to the University and/or Police
E. Filing a University Disciplinary Complaint
F. University Complaint Resolution Procedures

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This section of the Policy describes all of a student's options following an incident of Sexual Misconduct—how to obtain assistance and ongoing support in the immediate aftermath; how to obtain a No-Contact Order and other Interim Remedial Measures; how to file a University and/or Police report; and how to file a University complaint. Students are encouraged to avail themselves of all of these options. Options are listed in the sequence in which they are usually considered and accessed, but students generally can avail themselves of any of these options in any sequence at any time.1

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A. Immediate Assistance and Preservation of Evidence

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The University recognizes that deciding whether or not to report Sexual Misconduct (to the University and/or to the Police) and deciding how to proceed if and when a report has been filed (including deciding whether and when to pursue a University complaint) can be a decision-making process that unfolds over time. Whatever steps a student ultimately decides to take, Sexual Misconduct can leave students feeling powerless, and they need support in its immediate aftermath in order to regain a sense of control. Students are therefore urged to seek immediate information, support and assistance, while they consider all of their other options. Seeking immediate assistance also ensures that available evidence can be obtained and preserved for use at a later time, if and when a University complaint and/or criminal charges are filed, and it increases the likelihood that students will continue to get the support and assistance they need.

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1. Seeking Emergency Medical Attention and Preserving Forensic Medical Evidence

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Students are urged to seek immediate medical attention at the University's Emergency Department after an incident of sexual violence.

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U.Va. Medical Center Emergency Department
1215 Lee Street, Charlottesville
(434) 924-2231

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The University's Medical Center is the only local hospital that employs Sexual Assault Nurse Examiners (also known as "SANE Nurses"). SANE Nurses assess patients for injuries that need treatment; evaluate patients for sexually-transmitted diseases, physical trauma and possible pregnancy; provide medical care (including medications to prevent infections and pregnancy); and, within the first 72 hours after an incident of sexual assault, administer a "forensic exam." The purpose of the forensic exam is to document and collect evidence of sexual contact and/or physical trauma (including injuries on the body and genitals), trace evidence, and identifiable DNA from the perpetrator of a sexual assault.2 When there is suspicion or concern that an assault may have been facilitated by the use of drugs,3 the forensic exam may also include the collection of urine and blood samples for toxicology testing. Students are not required to report an incident to Police in order to receive medical attention or a forensic exam.4 Students may have a support person present throughout the forensic exam; the Emergency Department ensures that an advocate from the Sexual Assault Resource Agency ("SARA") is available to all patients reporting sexual assault. Students may accept or decline the confidential services of the SARA advocate.

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2. Reporting to Police in the Immediate Aftermath of Sexual Misconduct

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Students are urged to report sexual violence immediately to the Police. The Police have legal power to issue search warrants to collect forensic evidence that may have been left at the scene or at other relevant locations, and are also able to assist students in seeking Emergency Protective Orders (see Section IV, D, 1 below). Students may make an immediate report to the Police in one of two ways: (1) they can report directly to the Police, either by calling "911" (or one of the other numbers listed below), or, (2) if they seek medical attention at the University Emergency Department, by asking an Emergency Department employee to call the Police on their behalf.

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  • Police Emergency: "911"
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  • Albemarle County Police: (434) 977-9041
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  • City of Charlottesville Police: (434) 970-3280
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  • University Police: (434) 924-7166
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Incidents that occurred on-Grounds fall within the jurisdiction of the University Police; incidents that occurred off-Grounds within the City of Charlottesville or within Albemarle County fall within those Police jurisdictions, respectively. Students will be directed to the appropriate Police Department when they call "911" or by contacting the University Police Department's Victim/Witness Assistance Program (Officer Rexrode, br7u@virgina.edu).

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3. Confidential Crisis Counseling

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Students are encouraged to seek emotional support in the immediate aftermath of Sexual Misconduct. There are a number of confidential sources and "hotlines" for crisis counseling, both on- and off-Grounds.

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  • U.Va. Women's Center (daytime)
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  • Charlotte Chapman (434) 982-2903
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  • Email: cmc5nq@virginia.edu
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  • U.Va. Counseling and Psychological Services ("CAPS"):
    • (434) 234-243-5150 (daytime)
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    • (434) 972-7004 (evenings and weekends)
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  • Sexual Assault Resource Agency ("SARA"): (434) 977-7273
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  • Shelter for Help in Emergency ("SHE"): (434) 293-8509
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  • Family Violence and Sexual Assault Virginia Hotline:
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  • Call: (800) 838-8238
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  • Text: (804) 793-9999
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4. Preserving Other Evidence in the Immediate Aftermath of Sexual Misconduct

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Victims (and witnesses) of sexual violence are also urged to collect and preserve any other evidence of Sexual Misconduct that might prove helpful in a future investigation, whether by Police, by the University, or both. Such other evidence includes, but is not limited to, electronic exchanges (via text message, email, Facebook, Instagram, Snapchat and other social media, to the extent that they can be captured or preserved), photographs (including photographs stored on smartphones and other devices), voice-mail messages, and other physical, documentary and/or electronic data that might be helpful or relevant in an investigation. Electronic and photographic evidence may be lost through the upgrade or replacement of equipment (including smartphones), software and/or accounts or may simply be lost to the passage of time.

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B. Ongoing Confidential Assistance and Support

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1. Confidential Disclosures to a "Confidential Employee" within the University

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While students are strongly encouraged to report Sexual Misconduct as soon as it occurs, the University also recognizes that there may be barriers to reporting, both individual and cultural, and not every student will choose to report Sexual Misconduct (or make a report right away). Students who do not feel comfortable reporting Sexual Misconduct to the University and/or the Police are nevertheless encouraged to talk about what happened and they may do so, confidentially, on Grounds, with any "Confidential Employee." (See Appendix II to this Policy, which lists locations of Confidential Employees). Disclosures made to Confidential Employees are designated as "privileged communications." 5 Because these disclosures are confidential, it is important for students to understand that information shared with a Confidential Employee cannot be used to conduct an investigation or pursue disciplinary action. In order to trigger an investigation into Sexual Misconduct, a report must be filed, either with the University, with the Police, or both. These options are discussed below.

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2. Confidential Counseling and Support

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Whether or not a student is ready to report Sexual Misconduct to the University and/or the Police, confidential counseling and support will continue to be available on-Grounds at CAPS and the Women's Center and, off-Grounds, through SARA, SHE and/or the Family Violence and Sexual Assault Virginia Hotline, as set forth above. The Confidential Resources Chart (see Appendix II to this Policy) lists contact information for these agencies.

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C. Assistance from Office of the Dean of Students ("ODOS"); Obtaining Interim Remedial Measures and Support

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The Office of the Dean of Students (or "ODOS") can provide students with information, support, and assistance and can arrange for a broad range of Interim Remedial Measures (defined below) as soon as an incident of Sexual Misconduct occurs. ODOS representatives have received extensive training for this purpose and often serve as the main source of early and ongoing contact and support for students in the aftermath of Sexual Misconduct. ODOS's primary concern is student safety and well-being, from the moment an incident of Sexual Misconduct occurs.

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As discussed more fully below, students may initiate contact with ODOS at any time to request information, assistance and a broad range of support and accommodations, including Interim Remedial Measures (see below). Students are often initially referred to ODOS by a Confidential Employee, a friend or another third party. Upon referral, ODOS will discuss a student's current circumstances with him or her to determine whether certain forms of support, assistance or accommodations may be beneficial and appropriate at that time. ODOS will ensure that students also receive written notification of these options, regardless of whether a student chooses to report Sexual Misconduct to the Police or pursue a University complaint.

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To contact ODOS during regular business hours, students may call, email, or visit ODOS in person, at:

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Office of the Dean of Students
Peabody Hall, Second Floor
DeanofStudents@virginia.edu
(434) 924-7429 or (434) 924-7133

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To contact ODOS after regular business hours, students may call (434) 924-7166 and ask for the "Dean on Call."

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It is important for students to remember that ODOS representatives are "Responsible Employees" (see Section IV, D, 2, below) and, as such, they are required to report to the Title IX Coordinator any information students disclose to them about Sexual Misconduct. However, students are not obligated to disclose detailed information about an incident of Sexual Misconduct in order to obtain support and Interim Remedial Measures from ODOS.6

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The implementation of Interim Remedial Measures will be based upon the specific circumstances of each case. ODOS will consider a number of factors in determining which measures to take, including, for example, the specific needs expressed by the reporting student; the severity or pervasiveness of the allegations; any continuing effects on the reporting student; whether the reporting student and the alleged perpetrator share the same residence hall, dining hall, academic course(s), job or parking location; and whether other judicial measures have been taken to protect the reporting student (e.g., civil protective orders). When implementing such measures, ODOS will seek to minimize the burden on the reporting student. For example, if the reporting student and alleged perpetrator share the same class or residence hall, ODOS will not, as a matter of course, remove the reporting student from the class or residence hall while allowing the alleged perpetrator to remain without carefully considering all options and circumstances.

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Interim Remedial Measures mean the broad range of protective measures, assistance and accommodations that can reasonably be imposed or arranged by ODOS following an incident of Sexual Misconduct. Interim Remedial Measures may remain in place for as long as a student needs them, and they may be modified by ODOS as a student's circumstances change. Interim Remedial Measures may include, but are not limited to, the imposition of a No-Contact Order (see below); the arrangement of a meeting with University Police to discuss safety planning; the arrangement of access to counseling and/or medical services and assistance in setting up initial appointments for such services; the facilitation of changes in a student's academic, University housing and/or University employment arrangements and schedules; and any of the other accommodations that may be arranged by ODOS (to the extent reasonably available) to ensure the safety and well-being of a University student who has been affected by Sexual Misconduct. Academic accommodations may include, without limitation, the alteration of course schedules (including transfer to another section), permission to withdraw from and/or retake a class, permission to attend a class via alternative means (e.g., online or through independent study), the extension of assignment deadlines, and voluntary leaves of absence. University housing accommodations may include, without limitation, immediate temporary relocation to safe living quarters and/or permanent reassignment of University residence halls and/or assigned parking. University employment accommodations may include, without limitation, changes in work schedules, job assignments, work locations and/or assigned parking. In some cases, a report of Sexual Misconduct (or the investigation and resolution of University disciplinary proceedings or criminal charges) may cause a student to request a leave of absence or a reduced course load; these actions may, in turn, impact a student's immigration, visa and/or financial aid status. In these and other cases, ODOS will connect students with the applicable University department or unit so that they may obtain relevant information and assistance.

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No Contact Order means an order issued by ODOS directing a party or parties (generally the alleged perpetrator(s)) to refrain from having in-person or electronic contact with a named person, directly or through proxies.

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A No-Contact Order is separately enforceable through the University's Standards of Conduct; violation(s) of any Interim Remedial Measures (including No-Contact Orders) violate the Standards of Conduct and may lead to additional disciplinary actions against the violator.

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D. Reporting Sexual Misconduct

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1. Reporting Sexual Misconduct to the Police; Obtaining a Protective Order

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Sexual Misconduct may constitute a criminal offense as well as a violation of this Policy. Students retain the right to decide whether or not to report Sexual Misconduct to the Police. (See Section IV, A, 2, above for contact information for local law enforcement agencies.)

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ODOS can arrange and/or attend a meeting between students and local law enforcement for purposes of filing a Police report. ODOS works closely with the University Police Department's Victim/Witness Assistance Program in these cases. Filing a Police report does not obligate a student to participate in the investigation or adjudication of any subsequent criminal charges that may be brought against the alleged perpetrator(s). The decision whether to pursue criminal charges in connection with an incident described in a Police report lies solely with the Commonwealth's Attorney.

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  • Interaction with University Investigation. Criminal investigations are entirely separate and independent from University investigations. If a student has filed a University complaint, the University will attempt to coordinate its investigation with that of the Police, to the extent possible. The University may delay its investigation temporarily while a law enforcement agency is gathering evidence, but the University will not wait for the conclusion of a criminal investigation or criminal proceedings before commencing (or completing) its own investigation. It is also important to remember that the definitions of Sexual Misconduct under this Policy and under the related criminal statutes are not the same, and that the burden of proof for a finding of responsibility under University Policy—a "preponderance of the evidence"—is much lower than the burden of proof for a finding of guilt under criminal law—"beyond a reasonable doubt." For these reasons, the outcome of any criminal investigation will not determine the outcome of any proceedings under this Policy, and vice versa. ODOS can help students understand the implications of reporting to the Police, filing a University complaint, and the interaction between Police and University investigations.
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  • Protective Orders. If an alleged perpetrator represents an ongoing threat to the health or safety of a victim of Sexual Misconduct, it may be possible for the victim to obtain a court-ordered Emergency or Preliminary Protective Order. These Protective Orders are temporary, and they may be issued if the judge believes that there is an immediate threat to health or safety. Later, after a full hearing, the court may agree to issue a "Permanent" Protective Order, in appropriate cases. A Permanent Protective Order may remain in place for up to two years under Virginia law and, in some cases, may be extended for an additional two years. "Protective Orders" are separate and distinct from "No-Contact Orders": Protective Orders may be obtained only from a court of law and are enforceable anywhere in the United States; their violation may result in criminal charges. No-Contact Orders may be obtained directly from ODOS and are enforceable through the University Standards of Conduct. ODOS can arrange and/or attend a meeting with the University Police Department's Victim/Witness Assistance coordinator, who can explain the process for seeking a Protective Order and can escort a student to the appropriate Police Department in order to initiate a petition seeking a Protective Order.
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2. Reporting Sexual Misconduct to the University

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The University strongly encourages students who have knowledge of, who have witnessed, or who have experienced Sexual Misconduct firsthand to report what occurred—both in order to get the support they need, and to enable the University to respond appropriately. Under Title IX, once an institution has notice of an act of Sexual Misconduct, it is required to (1) take immediate and appropriate steps to investigate what occurred; and (2) take prompt and effective action to (a) end any misconduct that occurred; (b) remedy its effects; and (c) prevent its recurrence.7 Although there is no time limit for the filing of a report of Sexual Misconduct, the University's ability to respond effectively may be compromised by the passage of time between the occurrence of an incident and the filing of a report.

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An incident of Sexual Misconduct may be (1) self-reported (including anonymously) by an affected individual (including a witness), or (2) reported by disclosing to a "Responsible Employee." 8

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a) Reporting Sexual Misconduct to the University; Self-Reporting and Reporting to a Responsible Employee. Any individual may report Sexual Misconduct to the University. Such reports may be made in either of two ways: (1) the Reporter may self-report the information (including anonymously, through Just Report It, by omitting his or her name and contact information), or (2) the Reporter may disclose the information to any Responsible Employee. A Reporter may or may not be the victim of the reported Sexual Misconduct. A Reporter may be any person who has experience or knowledge of Sexual Misconduct, including a third-party witness. Under the Reporting Policy, every Responsible Employee is required to report to the Title IX Coordinator (through Just Report It) all relevant details that have been disclosed to him or her about alleged Sexual Misconduct9—including the names of the parties involved, any witnesses identified by the Reporter, and any other relevant facts, including the date, time and specific location of the alleged incident.

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b) University Response to Identifiable Reports of Sexual Misconduct. Except in cases of anonymous reports (see below), all reports of Sexual Misconduct will be shared, concurrently, with members of the University's Title IX Response Team, consisting of the Title IX Coordinator, an ODOS representative, and a limited number of other specially-trained individuals in the Division of Student Affairs and Office of Equal Opportunity Programs. An ODOS representative on the Title IX Response Team will promptly (1) initiate outreach to the Reporter (and the victim, if the Reporter is not the victim) in order to obtain additional information about the reported incident, if available, and to offer support, assistance and, where appropriate, Interim Remedial Measures, (2) perform