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/
Student Sexual Misconduct Policy
Executive Summary of Proposed Revisions for Public Comment
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November 19, 2014
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.
Summary of Proposed Revisions:
- 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.
- "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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
http://www.virginia.edu/sexualviolence/policy/introduction.html
Introduction
A. Overview and Purpose
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.
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
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.
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.
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.
B. Governing Laws; Notice of Non-Discrimination; Title IX Coordinator
1. Governing Laws
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.
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.
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.
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.
2. Notice of Non-Discrimination
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:
- 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.
- 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.
- 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.
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).
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.
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.
3. Title IX Coordinator(s)
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.
The Title IX Coordinator and Deputy Title IX Coordinators can be contacted by telephone, email, or in person during regular office hours:
Darlene Scott-Scurry, Title IX Coordinator
Director, Equal Opportunity Programs
Office of Equal Opportunity Programs
Washington Hall, East Range
PO Box 400219
[email protected]
(434) 924-3200 (office)
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
[email protected]
(434) 924-3200 (office)
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
[email protected]
(434) 924-7133 (office)
Jane Miller, Deputy Title IX Coordinator for Athletics
Senior Associate Athletics Director for Programs
Department of Athletics
McCue Center, Third Floor
PO Box 400845
[email protected]
(434) 982-5152 (office)
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.
2. See: http://www.virginia.edu/justreportit/sexualmisconduct.
3. The Reporting Policy is posted at https://policy.itc.virginia.edu/policy/policydisplay?id=HRM-040.
4. See Appendix II of this Policy for a list of these confidential resources.
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).
6. See 20 U.S.C. § 1092(f), and its implementing regulations at 34 CFR 668.46.
7. See 20 U.S.C. § 1092(f), and its implementing regulations at 34 CFR 668.46.
8. See 20 U.S.C. § 1232(g), and its implementing regulations at 34 CFR 99.
http://www.virginia.edu/sexualviolence/policy/scope.html
Scope of Policy: What, Who, Where and When
A.WHAT conduct is covered by this Policy?
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.
B.WHO is subject to this Policy?
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.
C.WHERE must Prohibited Conduct occur in order to be covered by this Policy?
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.
D.WHEN does this Policy apply?
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.
http://www.virginia.edu/sexualviolence/policy/definitions.html
Definitions of Prohibited Conduct
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.
A. Sexual Assault
Sexual Assault consists of (1) Sexual Contact and/or (2) Sexual Intercourse that occurs without (3) Effective Consent.
- any intentional sexual touching
- however slight
- with any object
- performed by a person upon another person
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.
- any sexual intercourse
- however slight
- with any object
- performed by a person upon another person
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:
- informed (knowing)
- voluntary (freely given)
- active (not passive), meaning that
- through clear words or actions
- the parties have indicated permission to engage in mutually-agreed upon sexual activity
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.
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.
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.
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.
- 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.
- 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."
- Intimidation is an implied threat that menaces or causes reasonable fear in another individual.
- 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.
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.
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.
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
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.
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.
Rules to Remember:
- The party desiring to initiate sexual activity is responsible for obtaining Effective Consent.
- In order to obtain Effective Consent, permission must be given prior to or contemporaneously with the sexual activity in question.
- 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.
- 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.
- A prior sexual relationship or prior sexual activity does not constitute Effective Consent to subsequent sexual activity. Past consent does not imply future consent.
- 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.
B. Sexual Exploitation
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:
- Causing or attempting to cause the Incapacitation of another person in order to gain a sexual advantage over such other person
- Causing the prostitution of another person
- Non-consensual recording or photographing of private sexual activity and/or an individual's intimate parts (including genitalia, groin, breasts or buttocks)
- 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)
- Allowing third parties to observe private sexual activity from a hidden location, (e.g., a closet)
- 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
- Knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection, including HIV
- Exposing one's genitals in non-consensual circumstances or inducing another person to expose their genitals
C. Sexual Harassment
Sexual Harassment consists of unwelcome verbal, written, physical or other conduct that is sex or gender-based, when:
- 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
- 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.
In evaluating whether a Hostile Environment exists, the University will consider the totality of known circumstances, including, but not limited to:
- The frequency, nature and severity of the conduct
- Whether the conduct was physically threatening
- Whether the conduct was humiliating
- The effect of the conduct on the alleged victim's mental or emotional state
- Whether the conduct was directed at more than one person
- Whether the conduct arose in the context of other discriminatory conduct
- Whether the conduct unreasonably interfered with the complainant's educational or work performance and/or University programs or activities
- Whether the conduct is protected speech under the First Amendment to the U.S. Constitution
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.
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.
D. Intimate Partner Violence
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.
E. Domestic Violence
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
F. Stalking
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.
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.
G. Retaliation
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.
H. Complicity
Complicity means any act that knowingly aids, facilitates, promotes or encourages the commission of an incident of Prohibited Conduct by another person.
I. Other Related Misconduct
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.
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.
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
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
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."
http://www.virginia.edu/sexualviolence/policy/options.html
Options Available to Students Following an Incident of Sexual Misconduct
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
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
A. Immediate Assistance and Preservation of Evidence
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.
1. Seeking Emergency Medical Attention and Preserving Forensic Medical Evidence
Students are urged to seek immediate medical attention at the University's Emergency Department after an incident of sexual violence.
U.Va. Medical Center Emergency Department
1215 Lee Street, Charlottesville
(434) 924-2231
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.
2. Reporting to Police in the Immediate Aftermath of Sexual Misconduct
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.
- Police Emergency: "911"
- Albemarle County Police: (434) 977-9041
- City of Charlottesville Police: (434) 970-3280
- University Police: (434) 924-7166
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, [email protected]).
3. Confidential Crisis Counseling
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.
- U.Va. Women's Center (daytime)
- Charlotte Chapman (434) 982-2903
- Email: [email protected]
-
U.Va.
Counseling and Psychological Services ("CAPS"):
- (434) 234-243-5150 (daytime)
- (434) 972-7004 (evenings and weekends)
- Sexual Assault Resource Agency ("SARA"): (434) 977-7273
- Shelter for Help in Emergency ("SHE"): (434) 293-8509
- Family Violence and Sexual Assault Virginia Hotline:
- Call: (800) 838-8238
- Text: (804) 793-9999
4. Preserving Other Evidence in the Immediate Aftermath of Sexual Misconduct
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.
B. Ongoing Confidential Assistance and Support
1. Confidential Disclosures to a "Confidential Employee" within the University
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.
2. Confidential Counseling and Support
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.
C. Assistance from Office of the Dean of Students ("ODOS"); Obtaining Interim Remedial Measures and Support
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.
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.
To contact ODOS during regular business hours, students may call, email, or visit ODOS in person, at:
Office of the Dean of Students
Peabody Hall, Second Floor
[email protected]
(434) 924-7429 or (434) 924-7133
To contact ODOS after regular business hours, students may call (434) 924-7166 and ask for the "Dean on Call."
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
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.
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.
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.
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.
D. Reporting Sexual Misconduct
1. Reporting Sexual Misconduct to the Police; Obtaining a Protective Order
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.)
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.
- 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.
- 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.
2. Reporting Sexual Misconduct to the University
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.
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
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.
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 a "Preliminary Review" in order to identify any immediate concerns for the safety of the Reporter, the victim (if other than the Reporter) and/or the University community, and (3) take preliminary action, if warranted, in order to address any immediate concerns for the safety of the Reporter, the victim (if other than the Reporter) and/or the University community. These actions by ODOS are described in more detail, below.
- Preliminary Outreach by ODOS. Upon receiving a report of Sexual Misconduct, ODOS will contact the Reporter (and/or the victim, if the Reporter is not him- or herself the victim of the reported incident of Sexual Misconduct) (1) to obtain any additional information that may be available about the underlying incident, (2) to offer immediate information, assistance and support (including Interim Remedial Measures, if appropriate), and (3) to ascertain whether the victim wishes to participate in a University investigation of the incident in question.
- Preliminary Review by ODOS. ODOS will then conduct a "Preliminary Review" of the facts disclosed in the report, together with any other information obtained from the Reporter (and the victim, if the Reporter is not the victim) in order to determine whether there is any immediate threat to the safety of the Reporter, the victim (if other than the Reporter), to witnesses or other third parties named in the report, or to the broader University community. In making this determination, ODOS will be guided by the Evaluation Factors (see below), together with any other relevant information in the University's possession, including the existence of a record of prior misconduct by the alleged perpetrator(s). If the Preliminary Review reveals the existence of such a safety threat, ODOS will coordinate with University officials to respond appropriately. Such response may include the immediate interim suspension by the Dean of the alleged perpetrator(s), pending resolution of a University complaint (see below).
- Other Preliminary Action by ODOS. If the victim wishes to pursue a University complaint, ODOS will meet with him or her in order to explain the University's investigation and resolution procedures and to help facilitate the filing of a Sexual Misconduct complaint under this Policy. If the victim instead makes a "Request for Confidentiality"—i.e., requests that the information contained in the report be maintained confidentially, that no investigation be conducted and/or that no disciplinary action be taken—ODOS will refer the matter to the Evaluation Panel (see below) for further evaluation. If the victim wishes to report the matter to the Police, ODOS will arrange and/or attend a meeting with the University Police Department's Victim/Witness Assistance coordinator for this purpose.
Regardless of whether the victim wishes to pursue a Police report and/or a University complaint, ODOS will offer to meet with the victim in order to offer support, assistance and accommodations, including, where appropriate, Interim Remedial Measures (see Section IV, C, above).
c) University Response to Anonymous Reports of Sexual Misconduct. Reporters (other than Responsible Employees) may report alleged Sexual Misconduct anonymously through Just Report It by omitting their names and contact information. In the case of anonymous reporting, ODOS will not be able to contact Reporters to obtain further information about the incident in question and, where the victim is the anonymous Reporter (or the victim is not named), ODOS also will not be able to offer information, support and/or Interim Remedial Measures. In addition, ODOS's Preliminary Review, and the University's ability to respond to the report, will be limited to the information provided. The University nevertheless encourages reporting of Sexual Misconduct, even anonymous reporting, and will make such use of the reported information as circumstances may allow.
d) Requests for Confidentiality; the Evaluation Panel. If the victim of an incident of Sexual Misconduct makes a Request for Confidentiality (e.g., that his or her name not be disclosed to the alleged perpetrator(s) or that no University investigation or disciplinary action be pursued), the University will attempt to honor the victim's request if it can do so without compromising the safety of the victim, third parties identified in the report, or the broader University community. In order to make this determination, the Title IX Response Team will refer such incidents to the University's Evaluation Panel, which will weigh the Request for Confidentiality against the University's obligation to provide a safe, non-discriminatory environment for the entire University community. Although rare, there are times when the University may not be able to honor a victim's Request for Confidentiality while still providing a safe, non-discriminatory environment for all students. When evaluating a Request for Confidentiality, the Evaluation Panel will meet to consider and weigh a range of factors, including the following (the "Evaluation Factors"):
- Evidence, if any, of the increased risk that the alleged perpetrator will commit additional acts of Sexual Misconduct or other misconduct, such as:
- whether there have been other Sexual Misconduct reports or complaints about the same alleged perpetrator
- whether the alleged perpetrator has a history of arrests or records from a prior school indicating a history of engaging in Sexual Misconduct
- whether the alleged perpetrator threatened further Sexual Misconduct or other misconduct against the Reporter or others
- whether the Sexual Misconduct was committed by multiple perpetrators
- whether the Sexual Misconduct was perpetrated with a weapon
- whether the victim is a minor (under the age of legal consent)
- whether the University possesses other means to obtain relevant evidence of the alleged Sexual Misconduct (e.g., security cameras or personnel, physical evidence)
- whether the report reveals a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group; and/or
- whether there is any other evidence suggesting predatory behavior by the alleged perpetrator(s)
Even when a victim has made a Request for Confidentiality, the presence of one or more of the Evaluation Factors could lead the Evaluation Panel to determine that the University should investigate the incident and, if appropriate, pursue disciplinary action against the alleged perpetrator by means of an Administrative Complaint initiated by the Dean (see Section IV, E, 2, below). If none of the Evaluation Factors is present, the Evaluation Panel will determine, in most cases, that the Request for Confidentiality should be honored. If the University honors such Request for Confidentiality, however, the victim should understand that the University's ability to meaningfully investigate the incident and pursue disciplinary action against the alleged perpetrator may be severely compromised. The University may nevertheless take steps to limit the effects of the alleged Sexual Misconduct and prevent its recurrence without undermining the Request for Confidentiality by, for example, increasing monitoring, supervision and/or security at locations or activities where the Sexual Misconduct was alleged to have occurred; providing training and education for students and employees; revising and publicizing the University's policies on Sexual Misconduct; and conducting climate surveys regarding Sexual Misconduct.
If the Evaluation Panel determines that the University cannot honor a Request for Confidentiality, the University will share the reported information only with (1) those individuals who are charged with handling the University's response, and (2) those individuals with whom the University must share information in order to conduct an effective investigation and/or implement an effective response so as to address any threat to the safety of the University community. In any case, the University will inform the victim, in advance, how the University intends to proceed, with whom the reported information will be shared, and whether and to what extent the victim's identity can be protected. In addition, the Evaluation Panel may recommend that the Dean (1) meet with the alleged perpetrator(s) to put him/her on notice of the alleged conduct and counsel him/her appropriately; (2) pursue disciplinary action against the alleged perpetrator(s) by means of an Administrative Complaint; (3) cause the University Registrar to place a "hold" on the University transcript of the alleged perpetrator(s), pending the resolution of formal disciplinary proceedings; and/or (4) impose an immediate, interim suspension against the alleged perpetrator(s), pending the resolution of formal disciplinary proceedings. If the report alleges Sexual Misconduct by a group (e.g., a sports team, a club or a Greek organization), the Evaluation Panel may recommend an investigation of such allegations in the context of such group, and/or focused educational programming for such group. The Dean will inform the victim of any recommendations that are pursued.
e. Protection from Retaliation. Retaliation (as defined above) against individuals who participate in the investigation of any Sexual Misconduct report (including the Reporter, the victim (if not the Reporter) and third-party witnesses) violates this Policy and will not be tolerated. The University will take appropriate measures to protect the well-being of victims and any other parties who participate, as witnesses or otherwise, in the investigation of Sexual Misconduct reports, including the imposition of Interim Remedial Measures and the prompt initiation of disciplinary proceedings to redress the Retaliation. This same protection is afforded persons who participate in the investigation of a Sexual Misconduct complaint (see Section IV, E, 2, below). Students who believe that they may be the subject of Retaliation should contact the Dean immediately.
f. Drug and Alcohol Violations Disclosed in a Good Faith Report of Sexual Misconduct
The University will not pursue disciplinary action against a Reporter, Complainant, or third-party witness for disclosure of illicit personal consumption of drugs or alcohol where such disclosure is made in connection with a good faith report and/or complaint or subsequent investigation of Sexual Misconduct. In such cases, the University may initiate educational discussion or pursue other educational remedies regarding alcohol or other drugs.
E. Filing a University Complaint
Any person (the "Complainant") may file a complaint of Sexual Misconduct against a University student (the "Respondent"), regardless of whether the Complainant has previously reported the conduct to the University and/or the Police. The Complainant may elect "Formal Resolution" or (if certain conditions are met) "Voluntary Informal Resolution" of the complaint. These options are explained below. This Section of the Policy governs all aspects of the filing, investigation and resolution of complaints of Sexual Misconduct by the University.
1. Jurisdiction
a) Personal Jurisdiction; Deadline for Filing a University Complaint. Any person may file a complaint of Sexual Misconduct against a "University student" under this Policy. A "University student" means any student registered or enrolled for credit- or non-credit-bearing coursework at the University (in Charlottesville) (1) at the time of the alleged Sexual Misconduct (including Sexual Misconduct that is alleged to have occurred during any academic recess, provided that there is an expectation of such student's continued enrollment at the University), and (2) at the time that the Dean prepares and delivers to the Investigator a Sexual Misconduct complaint against such student (see below). So long as there is personal jurisdiction over the Respondent, there is no time limit for filing a complaint under this Policy.10 Students are nevertheless strongly urged to file a complaint as promptly as possible in order to maximize the University's ability to obtain evidence and otherwise conduct a prompt, thorough, fair, impartial and reliable investigation (described below).
b) Geographic Jurisdiction. Any person may file a complaint against a University student alleging an incident of Prohibited Conduct, wherever such conduct occurs (i.e., whether on- or off-Grounds). In the case of Sexual Misconduct that occurs a significant distance from the University, the ability of the University to obtain evidence and otherwise conduct a thorough investigation (described below) may be limited.
2. Filing a Complaint: Intake Meetings with the Dean; Transcript Hold; Administrative Complaint; Acceptance of Responsibility; Time for Completion
a) Intake Meeting(s) between the Dean and the Complainant; Election of Formal Resolution or Voluntary Informal Resolution; Interim Remedial Measures. When a student informs ODOS that he or she wishes to file a Sexual Misconduct complaint, the Dean will schedule an individual Intake Meeting with the student to discuss this Policy, to determine whether the student wishes to pursue Formal Resolution or (where available) Voluntary Informal Resolution, and to discuss Interim Remedial Measures.
i. Electing Formal Resolution; Referral to Investigator. If the Complainant wishes to pursue Formal Resolution, the Dean will prepare a complaint setting forth the Complainant's name, the Respondent's name, and the date, location and nature of the incident in question. The Dean will forward the complaint to the Investigator, who will commence an investigation (see below).
ii. Electing Voluntary Informal Resolution; Referral to the SMB Chair. Unless (A) the alleged Sexual Misconduct constitutes a form of Sexual Assault (or otherwise involves the use of Force or violence), or (B) facts alleged in the complaint or other information in the possession of the University (e.g., a history of prior misconduct) suggest, in the sole reasonable discretion of the Dean, an ongoing risk to the University community, the Complainant may elect to pursue Voluntary Informal Resolution. If the Complainant wishes to pursue Voluntary Informal Resolution, the Dean will refer the complaint to the SMB Chair for the initiation of Voluntary Informal Resolution proceedings.
iii. Interim Remedial Measures. At the Intake Meeting, the Dean and the Complainant will also discuss the need for any Interim Remedial Measures (or the extension and/or modification of any measures already in place). (See Section IV, C, above.)
b) Intake Meeting(s) between the Dean and the Respondent; Prohibition on Retaliation; Interim Remedial Measures. As soon as a complaint has been filed, the Dean will contact the Respondent to schedule an individual Intake Meeting in order to discuss the complaint; to explain what the Respondent can expect as the resolution process unfolds; to explain the University's prohibition on, and response to, Retaliation; and to discuss the need for any Interim Remedial Measures.
c) Appointment of Advisors at Intake Meetings. At its Intake Meeting with each of the parties, the Dean will inquire as to each party's preference for an advisor. A party may select a trained advisor provided by the University or any other person (including a friend, family member, University official, or attorney) of his or her choosing. An advisor's role is limited to providing support, guidance and/or advice to the parties throughout the investigation and resolution of the complaint.
d) Transcript Hold. When (A) a complaint is filed which alleges Sexual Assault (or otherwise involves the use of Force or violence), or (B) facts alleged in a complaint or other information in the possession of the University (e.g., a history of prior misconduct) suggest, in the sole reasonable discretion of the Dean, an ongoing risk to the University community, the Dean will request that the University Registrar place a "hold" on the transcript of the Respondent, pending the outcome of University disciplinary proceedings.e) Administrative Complaint. When the victim of reported Sexual Misconduct is unable or does not wish to pursue a University complaint, the Dean may file his or her own complaint, called an "Administrative Complaint," in appropriate circumstances. Such circumstances will be determined by the Dean, in his or her sole reasonable discretion, and may include, without limitation, (1) cases in which the Evaluation Panel has determined that information contained in a report raises a threat to the safety of individuals and/or the University community, and (2) cases in which the University otherwise becomes aware of information about an incident of Sexual Misconduct, whether or not reported, that raises a threat to the safety of individuals and/or the University community. Where the victim is unable or unwilling to cooperate in the investigation of the Administrative Complaint, the University's ability to investigate and respond to Sexual Misconduct may be severely limited. An Administrative Complaint will be handled in the same manner as an ordinary complaint, except that the Dean will be named as the Complainant.
f) Acceptance of Responsibility by Respondent. The Respondent, upon learning of the complaint (and at any time prior to the completion of the investigation and the receipt of the Investigator's Report), may elect to terminate the disciplinary process by accepting responsibility for the conduct alleged in the complaint. If the Respondent accepts such responsibility, the case will be referred to the SMB Chair, who will propose a sanction. If both the Complainant and the Respondent agree to such proposed sanction, the complaint is resolved and the sanction imposed. If either party objects to the proposed sanction, the case will be referred to the SMB for a Hearing on Sanction (see below). (Accepting responsibility in the context of Voluntary Informal Resolution is discussed in Section IV, F, 2, below.)
g) Time for Completion of Resolution Process. The University will attempt, if reasonably possible, to complete its investigation (or complete the Voluntary Informal Resolution process, if applicable), make a final determination of responsibility, and impose a sanction, if applicable, within 60 days from the date the complaint is filed.
F. University Complaint Resolution Procedures
1. Formal Resolution
a) Formal Resolution; Notice to Parties; Investigation; Investigator's Report; Standing Review Committee. When a Complainant elects Formal Resolution, his or her complaint will be forwarded by the Dean to the Investigator, who will provide written notice to the parties and commence a prompt, thorough, fair, impartial and reliable investigation. The "Investigator" is the person designated by the University's Office of Equal Opportunity Programs to conduct investigations under this Policy and who has received training that draws on relevant professional and expert resources for this purpose. At any time prior to the completion of the Investigator's Report (and if the conditions for electing Voluntary Informal Resolution are otherwise met), the Complainant may decide to change his or her election from Formal Resolution to Voluntary Informal Resolution, by so notifying the Investigator, in which case the matter will be referred to the SMB Chair for proceedings in accordance with Section IV, F, 2 below.
i. Notice to the Parties of Commencement of Investigation. The Investigator will notify the Complainant and the Respondent, in writing, of the commencement of an investigation. Such notice will (1) identify the Complaint and the Respondent; (2) specify the date, location and nature of the alleged incident; (3) identify the Investigator; (4) indicate that the Complainant has elected Formal Resolution; (5) include information about the parties' respective rights and responsibilities under this Policy; (6) explain the prohibition against Retaliation against either party or any witness in the investigation; (7) instruct the parties not to destroy any potentially relevant evidence (including electronic evidence and photographs) in any format; (8) inform the parties how to challenge participation by the Investigator (including on the basis of a conflict of interest)11; and (9) provide a copy of this Policy.
ii. Investigation. The Investigator will coordinate the gathering of information from the Complainant, the Respondent, and other individuals or entities with relevant information. To ensure that each party is afforded due process, the Investigator will provide each party equal opportunity to identify witnesses and other evidence that may be relevant to the complaint. In addition, the Investigator will ensure that each party has an equal opportunity to respond to the other party's statements and supporting evidence in separate meetings with the Investigator, before the Investigator's Report is finalized.
(a) Documents and Records; Electronic Evidence; Photographs. In addition to reviewing any documents, records and other evidence (including electronic evidence and photographs) submitted by the parties, the Investigator will seek to obtain other relevant physical and/or electronic records and evidence, including, without limitation, documents, police records, electronic or other records of communications between the parties or witnesses (via text message, email, Facebook, Instagram, Snapchat, and other social media), photographs (including photographs stored on smartphones), voice-mail messages, and any other relevant information. The Investigator will also seek relevant medical evidence, subject to the consent of the applicable party. In obtaining any such evidence, the Investigator will comply with applicable laws and University policies.
(b) Site Visits. The Investigator may visit relevant sites or locations and record observations through written or photographic documentation.
(c) Interviews with Complainant and Respondent. The Investigator will interview the Complainant and the Respondent separately and may interview one or both of them more than once in the course of the investigation.
(d) Witness Interviews. The Investigator will make a good faith effort to contact and interview any witness that either party suggests may have information or evidence relevant to the complaint, as well as any witnesses that a review of relevant documents or records suggests may have relevant information or evidence, including those witnesses who are no longer University students or no longer residing in the local community. The Investigator may also interview any other individual that he or she believes has information that may be relevant to the allegations stated in the complaint. The Investigator will instruct each such witness about the University's prohibition on Retaliation.
(e) Experts. The Investigator may consult any expert that he or she determines is necessary to achieve a fuller understanding of matters raised in the complaint. The Investigator may also consult an expert witness informally, or for a professional opinion regarding information obtained through the investigation.
(f) Coordination with Law Enforcement. The Investigator will contact any law enforcement agency that is conducting its own investigation into the incident that is the subject of the complaint in order to inform such agency that a University investigation is also in progress; to ascertain the status of the criminal investigation in order to determine whether a temporary delay in the University's investigation is warranted (see Section IV, D, above); and to determine the extent to which any evidence collected by the Police may be available to the University in its investigation of the complaint.
(g) Role of Advisors during the Investigation. Advisors to the parties may be present during any meeting between the parties and the Investigator for the limited purpose of providing support, guidance and/or advice, but may not speak on behalf of the parties or otherwise directly participate in the investigation. The University may remove or dismiss advisors who become disruptive or fail to abide by the limitations on their participation.
iii. Investigator's Report. At the conclusion of the investigation, the Investigator will prepare a report (the "Investigator's Report"), addressed to the Vice President. The Investigator's Report will (1) state the factual findings of the Investigator; and (2) make a recommendation, applying a "preponderance of the evidence" standard, for a determination of "responsibility" or "no responsibility" for each alleged violation of this Policy. The Investigator's Report will summarize the evidence obtained through the investigation and will attach copies, where available, of relevant supporting documents, physical evidence, photographs, electronic evidence and forensic evidence, if any. The University's Office of the General Counsel will review the Investigator's Report for legal sufficiency before it is finalized.
iv. Final Statements by the Parties. Upon completion, the Investigator will make a copy of the final Investigator's Report available to each of the parties and their respective advisors, simultaneously. Each of the parties may submit a written statement to the Investigator within five (5) business days of the date on which the Investigator's Report was issued. The purpose of such statements is to allow the parties an opportunity to address any perceived factual errors or omissions in the Investigator's Report, and to disclose any relevant evidence that was not previously known or available to the Investigator. The Investigator will distribute copies of any such statements to both parties and their advisors, simultaneously.
v. Delivery to Vice President; Appointment and Review by Standing Review Committee; Decision Final. The Investigator will deliver the Investigator's Report, together with the statements of the parties (if provided), to the Vice President and Chief Student Affairs Officer (the "Vice President"). The Vice President will appoint a Standing Review Committee to review the Investigator's Report (together with such statements) on his or her behalf. The purpose of such review is to determine whether, in the reasonable opinion of the Standing Review Committee, (1) the investigation was conducted in a prompt, thorough, fair, impartial and reliable manner, (2) the factual findings of the Investigator are supported by the evidence, and (3) there is a rational basis, applying a "preponderance of the evidence" standard, for the Investigator's recommended finding(s) of responsibility or no responsibility. If it so determines, the Standing Review Committee will approve the Investigator's recommendations and, (1) in the case of one or more findings of responsibility, forward the case to the SMB for a Hearing on Sanction, or (2) in the case of a finding of no responsibility, issue the Final Outcome Letter, simultaneously to both parties (in the form and manner described below), within five (5) calendar days of completing its review. In reaching its decision, the Standing Review Committee may consult with the University's Office of the General Counsel, the Vice President, the Title IX Coordinator, the Dean, and/or the parties; may request that further investigation be undertaken by the same or another Investigator; and/or may request that a de novo investigation be conducted by another Investigator. The Standing Review Committee may not, however, conduct its own investigation or hearing. The decision of the Standing Review Committee is final, without further recourse or appeal by either party.
vi. Hearing on Sanction. The sole purpose of the Hearing on Sanction is to determine the sanction(s) for Prohibited Conduct as to which there has already been a finding of responsibility. The Hearing on Sanction will not re-visit the finding(s) of responsibility. Sanctions will be determined by the SMB Hearing Panel, as described in this paragraph. The SMB Hearing Panel will be appointed by the SMB Chair, who will also appoint the SMB Hearing Panel Chair. The SMB Hearing Panel will be comprised of students, faculty and staff members of the SMB unless either the Complainant or the Respondent objects to the inclusion of student members, in which case the SMB Hearing Panel will be comprised exclusively of faculty and staff members of the SMB. The SMB Chair will provide written notice to each of the parties stating (1) the date, time, and place of the Hearing on Sanction, and (2) the names of the SMB members selected to serve as the SMB Hearing Panel at the Hearing on Sanction. The parties are expected to cooperate in the scheduling of the Hearing on Sanction. If either party fails to appear at the scheduled Hearing on Sanction, the SMB Hearing Panel Chair may postpone the proceedings or may direct that the SMB Hearing Panel proceed and determine the sanction(s) (and other remedial measures, if applicable) on the basis of the Investigator's Report, provided that the absent party was duly notified in advance of the Hearing on Sanction. A party wishing to challenge participation by any member of the SMB Hearing Panel should so notify the SMB Hearing Panel Chair, in writing, within three (3) business days of receiving notice of the Hearing on Sanction, setting forth specific reasons for the objection. The SMB Hearing Panel Chair will determine whether the challenge has merit and, if it does, arrange for replacement of the SMB Hearing Panel member in question. Upon timely request prior to the date of the Hearing on Sanction, the SMB Panel Chair will arrange for either party to appear at the Hearing on Sanction via closed-circuit or other available technology.
vii. Role of the Parties and Advisors at Hearing on Sanction. The Complainant may present a statement describing how he/she has been impacted by the Prohibited Conduct and may voice his/her preferences regarding particular sanction(s) (the "Impact Statement"). The Respondent will have an opportunity to respond to the Impact Statement and present any other information relevant to the imposition of sanction(s). The SMB Hearing Panel is not bound by these statements in determining sanction(s). No other witnesses or third parties may address the SMB Hearing Panel, although the SMB Hearing Panel Chair reserves discretion to permit the presence of other persons at the Hearing on Sanction. Any question(s) either party has for the other party will be limited to matters relating specifically to the Complainant's Impact Statement and the Respondent's response, respectively. Questions relating to the Investigator's Report and/or finding(s) of responsibility will not be permitted. Questions will be directed, in writing, to the SMB Hearing Panel Chair; the SMB Hearing Panel Chair will ask any relevant and permitted questions submitted by the parties. Advisors to the parties may be present during the Hearing on Sanction for the limited purpose of providing support, guidance and/or advice, but may not speak on behalf of the parties or otherwise directly participate in the Hearing on Sanction. The SMB Hearing Panel Chair may remove or dismiss advisors who become disruptive or fail to abide by the limitations on their participation.
viii. Sanctions and Remedial Measures
(a) Range of Sanctions. The SMB Hearing Panel may impose any one or more of the following sanctions for any act(s) of Prohibited Conduct under this Policy:
- Community Service: A requirement that the Respondent undertake a stated number of hours of community service, of the kind, in the manner, and within the timeframes required by the SMB Hearing Panel;
- Completion of Educational or Training Programs: A requirement that the Respondent complete a particular educational or training program within the timeframes required by the SMB Hearing Panel;
- Evaluation by Health or Mental Health Professional: A requirement that the Respondent be evaluated by a health or mental health professional and comply with any treatment recommendations prior to returning to the University (if a period of suspension is imposed) or as a condition of continued enrollment at the University (if a period of suspension is not imposed);
- Financial Restitution: An order directing the Respondent to reimburse the Complainant for damages incurred as a result of the Prohibited Conduct;
- Suspension Held in Abeyance: Exclusion from classes and other privileges and activities or from the University for a specified period of time, such suspension to be held in abeyance unless and until the Respondent is found responsible for any subsequent violation of this Policy;
- Suspension: Exclusion from classes and other privileges and activities or from the University for a specified period of time; and
- Expulsion: Permanent termination of student status.
Although it retains the discretion to impose any one or more of the foregoing sanctions, the SMB Hearing Panel is required to consider a sanction of suspension or expulsion as to every violation of this Policy. In selecting a sanction or sanctions, the SMB Hearing Panel may consider any record of past incidents of misconduct, at the University or elsewhere, including violations of the Standards of Conduct, as well as the number, timing, nature and severity of such past incident(s). The SMB Hearing Panel will also consider, as part of its deliberations, whether a given sanction will (a) bring an end to the Policy violation in question, (b) reasonably prevent the recurrence of a similar violation, and (c) remedy the effects of the violation on the Complainant and the University community.
(b) Remedial Measures. In addition to imposing one or more sanctions, as described above, the SMB Hearing Panel may impose (or extend, modify, remove and/or replace) one or more remedial measures in order to ensure the safety and well-being of the Complainant and the University community. Such remedial measures may include the extension, modification, removal and/or replacement of any Interim Remedial Measures (including any No-Contact Order) previously arranged for or imposed against either of the parties by ODOS. Such remedial measures may also include measures directed at the broader University community, including, but not limited to, conducting educational, prevention or training programs focused on particular groups within the University community (e.g., a fraternity or sorority; an athletic team; a student organization; or a residence hall).
ix. Decision by the SMB Hearing Panel Final; Final Outcome Letter. The SMB Hearing Panel's decision on sanction(s) and remedial measures (if any, imposed against the Respondent or broader University community) shall be made by majority vote. The sanction(s) and remedial measures imposed will be announced to both parties, concurrently, by the SMB Hearing Panel Chair at the conclusion of the Hearing on Sanction. In addition, the SMB Hearing Panel Chair will provide a copy of the Final Outcome Letter (described below), to both parties, simultaneously, and to the Dean, the Vice President, and the Title IX Coordinator within five (5) calendar days following the Hearing on Sanction (or such longer time as the SMB Hearing Panel Chair may for good cause determine). The decision of the SMB Hearing Panel is final, without further recourse or appeal by either party.
x. Effective Date of Sanction(s). Sanctions are effective immediately, unless otherwise specified by the SMB Hearing Panel.
xi. Transcript Notation in Cases of Suspension or Expulsion. If the SMB Hearing Panel imposes a sanction of suspension or expulsion, the SMB Hearing Panel Chair will notify the University Registrar to place a notation on the Respondent's transcript reading "Disciplinary Suspension" or "Disciplinary Expulsion," as applicable.
xii. Privacy of the Hearing on Sanction; Final Outcome Letter. In order to comply with FERPA, the Hearing on Sanction is not open to the general public. Accordingly, the Investigator's Report and any other documents prepared by or for the SMB Hearing Panel in advance of the Hearing on Sanction may not be disclosed outside of the proceedings, except as may be required or authorized by law. In addition to complying with FERPA, the University is required to comply with the Clery Act. Under the Clery Act, both the Complainant and the Respondent must be informed, simultaneously, in writing, of the "result" of any disciplinary proceeding. The Clery Act defines "result" as "any initial, interim, and final decision by any official or entity authorized to resolve disciplinary matters within the institution." "Result" must include "any sanctions imposed by the institution, and notwithstanding FERPA, the rationale for the result and the sanctions." The Clery Act defines "proceeding" as "all activities related to a non-criminal resolution of an institutional disciplinary complaint, including, but not limited to, fact-finding investigations, formal or informal meetings, and hearings." 12
Consistent with these legal requirements, following a Hearing on Sanction, the SMB Hearing Panel Chair will simultaneously issue a written decision (the "Final Outcome Letter") to both the Complainant and the Respondent. The Final Outcome Letter will contain the name of the Respondent; the violation(s) of this Policy for which the Respondent was found responsible, as supported by the rationale contained in the Investigator's Report; the sanction(s) imposed against the Respondent; and the rationale for such sanction(s). The Final Outcome Letter will also identify any remedial measures implemented with respect to the Respondent or broader University community. The Final Outcome Letter will not contain any individual remedies provided to the Complainant. The University may not impose any restrictions on the re-disclosure of the Final Outcome Letter. The parties are free to share the contents of the Final Outcome Letter with whomever they choose.
2. Voluntary Informal Resolution
a. Election to Pursue Voluntary Informal Resolution. A Complainant may elect to pursue Voluntary Informal Resolution of a complaint under this Policy unless (A) the alleged Sexual Misconduct constitutes a form of Sexual Assault (or otherwise involves the use of Force or violence), or (B) facts alleged in the complaint or other information in the possession of the University (e.g., a history of prior misconduct) suggest, in the sole reasonable discretion of the Dean, an ongoing risk to the University community. In addition, at any time prior to the completion of an investigation, the Complainant may decide to change his or her election from Formal Resolution to Voluntary Informal Resolution (if the conditions for electing Voluntary Informal Resolution are otherwise met), by so notifying the Investigator, in which case the matter will be referred to the SMB Chair for proceedings in accordance with this Section. Voluntary Informal Resolution is an alternative resolution process; it is not mediation.
i. Purpose of Voluntary Informal Resolution; Proceedings before SMB Chair. Voluntary Informal Resolution provides an opportunity for the Complainant to confront the Respondent, in the presence of, and facilitated by, the SMB Chair, or his or her designee. Voluntary Informal Resolution allows the Complainant to communicate his or her feelings and perceptions regarding the alleged incident, and his or her wishes and expectations regarding protection in the future. The Respondent will have an opportunity to respond.
ii. Role of Advisors in Voluntary Informal Resolution. Advisors to the parties may be present during Voluntary Informal Resolution for the limited purpose of providing support, guidance and/or advice, but may not speak on behalf of the parties or otherwise directly participate in the proceedings. The SMB Chair may remove or dismiss advisors who become disruptive or fail to abide by the limitations on their participation.
iii. Voluntary Informal Resolution Where Respondent Accepts Responsibility. If, during the Voluntary Informal Resolution proceedings, the Respondent chooses to acknowledge his or her actions and accept responsibility for the alleged Prohibited Conduct, the Voluntary Informal Resolution will be concluded and the SMB Chair will propose a sanction. If both the Complainant and the Respondent agree to such proposed sanction, the complaint will be resolved without any further rights of appeal by either party. If either the Complainant or the Respondent objects to the proposed sanction, the SMB will convene a Hearing on Sanction. The outcome of this Hearing on Sanction will be final.
iv. Voluntary Informal Resolution Where Respondent Contests Responsibility. If, during the Voluntary Informal Resolution, the Respondent contests the complaint of alleged Sexual Misconduct, ODOS may nevertheless impose a No-Contact Order and other Interim Remedial Measures agreed upon by the parties, or (with or without such agreement) based on information derived from the Voluntary Informal Resolution, taken together with any other relevant information in the possession of the University.
v. Election of Formal Resolution. The University or the Complainant may, at any time prior to the conclusion of the Voluntary Informal Resolution, elect to end the Voluntary Informal Resolution proceedings and initiate Formal Resolution proceedings instead. In such cases, the SMB Chair will refer the case to the Investigator, who will commence an Investigation (or complete an Investigation, if one has already been commenced) and may consider, in preparing the Investigator's Report, any statements or disclosures made by the parties in the course of the Voluntary Informal Resolution proceedings.
vi. Privacy of Voluntary Informal Resolution. In order to promote honest, direct communication, information disclosed during the Voluntary Informal Resolution proceedings must remain private while the Voluntary Informal Resolution is pending, except where disclosure may be required by law or authorized in connection with duties on behalf of the University.
1 Because certain criminal offenses are subject to statutes of limitation under State law, there may be time-limits for the initiation of certain criminal charges.
2 For a detailed description of what to expect at the Emergency Department, including the administration of the forensic exam; support before, during, and following the forensic exam; payment options; release of evidence/information; follow-up care; and transportation to and from the hospital, see Appendix I to this Policy.
3 Causing or attempting to cause the Incapacitation of another person in order to gain sexual advantage is a form of Sexual Exploitation under this Policy and also constitutes a crime under various state and federal criminal statutes.
4 If a student does not wish to file a report with Police, any forensic evidence that was collected will typically be stored for at least 120 days. A Police officer will make a brief, anonymous report (i.e., a report that does not contain identifying information) and explain to the victim when, where and why the forensic evidence will be held. Decisions about whether and when to file a Police report reside with the victim.
5 The University has designated its mental-health and health-care professionals to serve as Confidential Employees. Disclosures to these individuals are protected as "privileged communications" by federal and state health care privacy laws. That privilege is subject to certain limited legal exceptions, however. Examples include: legal reporting requirements (e.g., abuse of a minor); communications when a patient likely will cause serious physical harm to self or others as a result of mental illness; and sharing information for purposes of treatment and related health care operations.
6 The information provided to ODOS may be as limited as the student's name and a statement that he or she has been the victim of conduct prohibited by this Policy. A No-Contact Order would require that the requesting party provide certain additional information, including the name(s) of the alleged perpetrator(s).
7 See A-5 in Questions and Answers on Title IX and Sexual Violence, issued on April 29, 2014 (Available here). This is the standard for OCR's administrative enforcement of Title IX and in court cases where parties are seeking injunctive relief. See 2001 OCR Guidance at ii-v, 12-13. The standard in private lawsuits for monetary damages is actual knowledge and deliberate indifference. See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643 (1999).
8 The University has adopted a separate policy ("Reporting by University Employees of Sexual Misconduct Disclosures Made by Students") that governs the reporting responsibilities of its employees. The Reporting Policy is available here.
9 Certain public disclosures (including disclosures during or in connection with public awareness events such as "Take Back the Night," candlelight vigils, protests and "survivor speak outs") and certain research-based disclosures (including disclosures by a University student during his or her participation as a subject in an Institutional Review Board-approved human subjects research protocol) of Sexual Misconduct are not reported to the Title IX Coordinator and are not considered notice to the University of Sexual Misconduct for the purpose of triggering its obligation to investigate.
10 Even if personal jurisdiction over the Respondent has been lost (e.g., the Respondent has graduated or transferred to another institution), the Complainant may obtain remedial measures from ODOS, as described in Section IV.C, above.
11 A party wishing to challenge the Investigator should notify the Title IX Coordinator, in writing, within three (3) days of receiving the Investigator's notice of the investigation, setting forth specific reasons for the objection. The Title IX Coordinator will determine whether the challenge has merit and, if it does, arrange for replacement of the Investigator.
12 See 34 CFR 668.46(k)(3)(iii-iv). "Proceeding" does not include "communications and meetings between officials and victims concerning accommodations or protective measures to be provided to a victim."
http://www.virginia.edu/sexualviolence/policy/recordkeeping.html
Record Keeping
The University will retain all records related to reports and/or complaints of Prohibited Conduct under this Policy in either secure data systems and/or in locked storage areas in the office(s) of University officials charged with responding to such reports and/or complaints. The University will retain such records for a period of ten (10) years, regardless of case outcome. Whenever a student is found responsible for violating this Policy, the University will retain records applicable to that case for a period of twenty (20) years. The University will destroy all case records after the applicable retention period.
http://www.virginia.edu/sexualviolence/policy/training.html
Training
The University provides extensive training opportunities to students, faculty and staff to ensure they understand this Policy and topics and issues related to it.
A. University Officials Involved in Implementing this Policy
The University offers on-line and in-person training to all officials charged with implementing this Policy, including the University's Title IX Coordinator, Deputy Title IX Coordinators, certain ODOS employees, University Investigators, the Standing Review Committee, and members of the Sexual Misconduct Board. This training varies by official and is based upon the role(s) the official is fulfilling under this Policy. Topics include working with and interviewing persons subjected to Sexual Misconduct; the particular types of conduct that constitute Prohibited Conduct under this Policy; issues related to Domestic Violence, Intimate Partner Violence, Sexual Assault, and Stalking; the proper standard of review for complaints under this Policy (preponderance of evidence); Effective Consent and the role alcohol or drugs can play in the ability to obtain Effective Consent, as defined by this Policy; the importance of accountability for individuals found to have violated this Policy, and the need for interim and other remedial actions for the Respondent, the Complainant, and the University community in such instances; how to determine credibility; how to evaluate evidence and weigh it in an impartial manner; how to conduct prompt, fair, impartial, and thorough investigations and hearings that ensure due process, protect the safety of victims, and promote accountability; confidentiality; the effects of trauma, including neurobiological change; and cultural awareness regarding how Sexual Misconduct may impact students differently depending on their cultural backgrounds.
University officials charged with implementing this Policy receive regular training on these and other topics on an annual basis. The University invites national experts to train on these topics on Grounds and frequently sends University officials to relevant local, regional, and national conferences.
B. Responsible Employees
The University offers on-line and in-person training to Responsible Employees to ensure they understand the conduct prohibited by this Policy and their reporting obligations under the University's separate Reporting Policy. This training includes practical information on how to prevent and identify Sexual Misconduct prohibited by this Policy; the behaviors that may lead to and result in Sexual Misconduct; the attitudes of bystanders that may allow Sexual Misconduct to continue; the potential for re-victimization by responders and its effects on students; appropriate methods for responding to a student who may have experienced Sexual Misconduct, including the use of nonjudgmental language; and the impact of trauma on victims. This training also includes an explanation of the Responsible Employee's reporting obligation, including how, what, and where to report; the consequences for failing to report; the procedure for responding to a student's Request for Confidentiality; how to inform students of their options for support and assistance in the aftermath of an incident of Sexual Misconduct; and the contact information for the University's Title IX Coordinator.
C. Students
The University offers on-line and in-person training to students to ensure they understand this Policy, including how to report incidents of Prohibited Conduct, and how to access confidential sources in the aftermath of any incident of Sexual Misconduct. Topics include Title IX and what constitutes Prohibited Conduct under this Policy; the definition of Effective Consent, including examples; how the University analyzes whether conduct was unwelcome and the existence of a hostile environment for purposes of Sexual Harassment; options for reporting Sexual Misconduct; the availability of confidential sources, on and off-Grounds; the University's resolution options for pursuing complaints under this Policy; the potential consequences/sanctions for violating this Policy; effects of trauma, including neurobiological changes; the role alcohol and drugs often play in incidents of Sexual Misconduct, including the deliberate use of alcohol and/or other drugs to perpetrate sexual violence; strategies and skills for bystanders to intervene to prevent possible sexual violence; how to report Sexual Misconduct to University Police or local law enforcement and the ability to pursue, simultaneously, a disciplinary and criminal complaint; and the protection against Retaliation afforded by this Policy.
http://www.virginia.edu/sexualviolence/policy/education.html
Education and Prevention
The University provides education and prevention programs to students when they first enroll and on an ongoing basis throughout their enrollment. These programs include (1) statements that the University prohibits Sexual Misconduct, as defined by this Policy, and the crimes of dating violence, domestic violence, sexual assault, and stalking, as defined by Virginia law; (2) the definitions of dating violence, domestic violence, sexual assault, and stalking under Virginia law; (3) the definitions of "Effective Consent," for purposes of this Policy, and "consent," as defined under Virginia law for purposes of sexual activity; (4) safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or intervene when there is a risk of dating violence, domestic violence, sexual assault, or stalking against a person other than the individual; (5) information on risk reduction to recognize warning signs of abusive behavior and how to avoid potential attacks; and (6) information about the procedures that victims should follow, and that the University will follow, after an incident of dating violence, domestic violence, sexual assault or stalking has occurred.
The University's education and prevention programs reflect comprehensive, intentional, and integrated programming, initiatives, strategies, and campaigns intended to end dating violence, domestic violence, sexual assault, and stalking that are culturally relevant, inclusive of diverse communities and identities, sustainable, responsive to community needs, and informed by research or assessed for value, effectiveness, or outcome. These programs are designed to consider environmental risk and protective factors as they occur on the individual, relationship, institutional, community, and societal levels.
The University's education and prevention programs include (1) awareness programs; (2) bystander intervention programs; (3) ongoing prevention and awareness campaigns; (4) primary prevention programs; and (5) education on risk reduction.
A. Awareness Programs
Awareness programs consist of community-wide or audience-specific programming, initiatives, and strategies that increase audience knowledge and share information and resources to prevent violence, promote safety, and reduce perpetration. The University's specific awareness programs are described in Appendix III to this Policy.
B. Bystander Intervention
Bystander intervention consists of safe and positive options that may be carried out by an individual or individuals to prevent harm or intervene when there is a risk of dating violence, domestic violence, sexual assault, or stalking. It also includes recognizing situations of potential harm, understanding institutional structures and cultural conditions that facilitate violence, overcoming barriers to intervening, identifying safe and effective intervention options, and taking action to intervene. The University's specific bystander intervention programs are described in Appendix III to this Policy.
C. Ongoing Prevention and Awareness Campaigns
Ongoing prevention and awareness campaigns consist of programming, initiatives, and strategies that are sustained over time and focus on increasing understanding of topics relevant to, and skills for addressing, dating violence, domestic violence, sexual assault, and stalking, using a range of strategies with audiences throughout the University. The University's specific ongoing prevention and awareness campaigns are described in Appendix III to this Policy.
D. Primary Prevention Programs
Primary prevention programs consist of programming, initiatives, and strategies informed by research or assessed for value, effectiveness, or outcome that are intended to stop dating violence, domestic violence, sexual assault, and stalking before they occur through the promotion of positive and healthy behaviors that foster healthy, mutually respectful relationships and sexuality, encourage safe bystander intervention, and seek to change behavior and social norms in healthy and safe directions. The University's specific primary prevention programs are described in Appendix III to this Policy.
E. Risk Reduction
Risk reduction consists of options designed to decrease perpetration and bystander inaction and to increase empowerment for victims to promote safety and to help individuals and communities address conditions that facilitate violence. The University's specific risk reduction programs are described in Appendix III to this Policy.
http://www.virginia.edu/sexualviolence/policy/amendments.html
Amendments
This Policy may be amended, in writing, by the President or the President's designee at any time.
http://www.virginia.edu/sexualviolence/policy/glossary.html
Glossary of Defined Terms
"Administrative Complaint" means a formal Sexual Misconduct complaint filed by the Dean.
"Blackouts" mean 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. (See 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).) (For a more detailed definition of "Blackouts," see Section III of this Policy.)
"Clery Act" means the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. Section 1092(f); 34 C.F.R. Part 668.46.
"Complicity" means any act that knowingly aids, facilitates, promotes or encourages the commission of an incident of Prohibited Conduct by another person.
"Complainant" means a University student or other individual who has filed a formal complaint with the University alleging Sexual Misconduct against a University student.
"Confidential Employee" means 1) any University employee who is a licensed clinical or mental-health professional (e.g., physicians, nurses, psychologists, professional counselors and social workers, and those performing such services under their supervision), when acting in his or her professional role in the provision of services to a patient who is a University student ("health care providers"); and (2) any University employee providing administrative, operational and/or related support for such health care providers in their performance of such services. A Confidential Employee will not disclose information about alleged Sexual Misconduct to the University's Title IX Coordinator without the Reporter's permission. The University's Confidential Employees are identified in the Confidential Resources Chart (see Appendix II to this Policy).
"Confidential Resources Chart" means the chart listing (and containing contact information for) an array of confidential resources that are available both on-Grounds and off-Grounds. (See Appendix II to this Policy.)
"Dean" means the Dean of Students and his or her designee. The Dean of Students is also the Deputy Title IX Coordinator for Student Sexual Misconduct.
"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.*
"Effective Consent" is consent which is:
- informed (knowing),
- voluntary (freely given),
- active (not passive), meaning that,
- through clear words or actions,
- the parties have indicated permission to engage in mutually-agreed upon sexual activity
Effective Consent cannot be gained by Force or by taking advantage of the Incapacitation of another, where the person initiating sexual activity knew or reasonably should have known, of such Incapacitation. (For a more detailed definition of "Effective Consent," together with examples and "Rules to Remember," see Section III of this Policy.)
"Evaluation Factors" means the list of factors that guide the Evaluation Panel in its evaluation of Requests for Confidentiality. The Evaluation Factors also guide ODOS in its Preliminary Review of reports of alleged Sexual Misconduct. (For a full list of the Evaluation Factors, see Section IV.D.2 of this Policy.)
"Evaluation Panel" means the three-person panel charged with evaluating Requests for Confidentiality. Such panel is comprised of the Title IX Coordinator, the Dean of Students and a member of the University's Threat Assessment Team.
"FERPA" means the Family Educational Rights and Privacy Act, 20 U.S.C. Section 1232g; 34 C.F.R. Part 99.
"Force" means (1) the use of physical violence to gain sexual access. Force also includes (2) threats, (3) intimidation, and (4) coercion. (For a more detailed definition of "Force," together with examples of physical violence, threats, intimidation and coercion, see Section III of this Policy.)
"Incapacitation" means 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. 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. Incapacitation can be difficult to discern, especially in the case of alcohol blackouts (separately defined). Students are not expected to be medical experts in assessing Incapacitation; rather, in all cases of Incapacitation, 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 on 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. Being impaired by alcohol or other drugs is no defense under this Policy. (For a more detailed definition of "Incapacitation," see Section III of this Policy.)
"InfoGraphic" means the quick-reference guide entitled "Student Sexual Misconduct: What You Need to Know," that has been widely-disseminated throughout the University community.
"Intake Meeting" means a meeting with ODOS to discuss the information, support and other Interim Remedial Measures that may be available. ODOS will contact victims of reported Sexual Misconduct for this purpose. ODOS will also arrange for a separate Intake Meeting with both the Complainant and the Respondent after a formal complaint of Sexual Misconduct has been filed.
"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; 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.
"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.
"Investigator" means the person(s) designated by the University's Office of Equal Opportunity Programs to conduct prompt, thorough, fair, impartial and reliable Sexual Misconduct investigations. Each Investigator will receive annual training that draws on relevant professional and expert resources.
"Investigator's Report" means the report issued by the Investigator at the conclusion of a Sexual Misconduct investigation, setting forth the Investigator's factual findings and recommendation for a finding of responsibility or no responsibility.
"Just Report It" means the University's website for online reporting through which anyone may report an allegation of Sexual Misconduct, including anonymously, by omitting their names and other contact information from the form. Just Report It can be accessed here Just Report It.
"No-Contact Order" means an order issued by ODOS directing the named parties (generally the victim and the alleged perpetrator(s)) to refrain from having in-person or electronic contact with one another, directly or through proxies. A No-Contact Order is separately enforceable through the University's Standards of Conduct.
"ODOS" means the Office of the Dean of Students, where certain members of the staff have been specially trained in Title IX response.
"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.
"Police" means the local police department and/or personnel (University Police, City of Charlottesville Police, or Albemarle County Police) with jurisdiction over the incident in question.
"Preliminary Review" means the initial review by ODOS of a report of Sexual Misconduct for purposes of responding to any immediate concerns for the safety of the Reporter, the victim and/or the broader University community.
"Prohibited Conduct" means Sexual Misconduct, Retaliation, Complicity, and Other Related Misconduct.
"Reporter" means an individual who reports an incident of Sexual Misconduct of which he or she has knowledge, has witnessed and/or has experienced firsthand. A Reporter may or may not be the victim of the alleged incident. A report may be made directly by the Reporter (including anonymously) or by disclosing the information to a Responsible Employee.
"Reporting Policy" means the separate University Policy, entitled "Reporting by University Employees of Sexual Misconduct Disclosures Made by Students." The Reporting Policy defines and describes the responsibilities of "Confidential Employees" and "Responsible Employees" with respect to disclosures of Sexual Misconduct, and describes the method for evaluation of Requests for Confidentiality, among other relevant topics.
"Request for Confidentiality" means a request that information contained in a report of Sexual Misconduct be maintained confidentially, that no investigation be conducted, and/or that no disciplinary action be taken.
"Respondent" means a University student against whom a complaint of Sexual Misconduct has been filed.
"Responsible Employee" means any University employee who is not a Confidential Employee. Except with respect to disclosures at public events and certain research-based disclosures, as described in the Reporting Policy, a Responsible Employee is required to report to the University's Title IX Coordinator all relevant details about an incident of alleged Sexual Misconduct—including the names of the Reporter, the victim, the alleged perpetrator(s), any witnesses, and any other relevant facts, (e.g., the date, time and specific location of the alleged incident)—that are disclosed to him or her.
"Sexual Assault" is a form of Sexual Misconduct consisting of (1) Sexual Contact and/or (2) Sexual Intercourse that occurs without (3) Effective Consent.
"Sexual Contact" is a form of Sexual Assault that consists of:
- any intentional sexual touching
- however slight
- with any object
- performed by a person upon another person
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.
"Sexual Exploitation" occurs when a person takes non-consensual or abusive sexual advantage of another. "Non-consensual" means without Effective Consent. Sexual Exploitation includes, without limitation, causing or attempting to cause the Incapacitation of another person in order to gain a sexual advantage over such other person; causing the prostitution of another person; non-consensual recording or photographing of private sexual activity and/or an individual's intimate parts (including genitalia, groin, breasts or buttocks); 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); allowing third parties to observe private sexual activity from a hidden location, (e.g., a closet); 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; knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection, including HIV; and/or exposing one's genitals in non-consensual circumstances or inducing another person to expose their genitals.
"Sexual Harassment" consists of unwelcome verbal, written, physical or other conduct that is sex- or gender-based, when:
- 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
- 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.
"Sexual Intercourse" is a form of Sexual Assault that consists of:
- any sexual intercourse,
- however slight,
- with any object,
- performed by a person upon another person.
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.
"Sexual Misconduct Board" or "SMB" means the standing group of students, faculty and staff appointed by the Vice President, who also appoints the SMB Chair.
The SMB Chair will ensure that all SMB members receive annual training in their responsibilities that draws on professional and expert resources.
"SMB Hearing Panel" means the panel of faculty, staff (and students, where both the Complainant and the Respondent consent to the inclusion of students on the SMB Hearing Panel) who make the sanctioning decision at a Hearing on Sanction. The SMB Chair selects the SMB Hearing Panel and appoints the SMB Hearing Panel Chair (or, if the SMB Chair is unavailable, the Vice President will select the SMB Hearing Panel and the SMB Hearing Panel Chair).
"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. 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. (For a more detailed definition of "Stalking," together with examples, see Section III of this Policy.)
"Standards of Conduct" means the University's Standards of Conduct, as enforced by the University Judiciary Committee.
"Standing Review Committee" means the University employees who have received appropriate training regarding Title IX and the implementation of this Policy and have been appointed by the Title IX Coordinator to review the Investigator's Report.
"Title IX Coordinator" means the person(s) identified in Section I.B of this Policy.
"Title IX Response Team" means the team responsible for responding to Sexual Misconduct reports received by the University. The Title IX Response Team consists of the Title IX Coordinator, an ODOS representative, and a limited number of other specially-trained individuals representing the University's Division of Student Affairs and Office of Equal Opportunity Programs.
"University student" means a 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). For purposes of personal jurisdiction under this Policy, a University student must have been so registered or enrolled (1) at the time of the alleged Sexual Misconduct (including Sexual Misconduct that is alleged to have occurred during any academic recess, provided that there is an expectation of such student's continued enrollment at the University), and (2) at the time that the Dean prepares and delivers to the Investigator a formal complaint against such student.
"Vice President" means the Vice President and Chief Student Affairs Officer and his or her designee.
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."
Added November 20, 2014 at 9:32pm
Title: Links to Related UVA Material (NowComment versions)
Appendices I-III (Obtaining A Forensic Exam at the University Medical Center, Confidential Resources, University Education & Prevention Programs)
VAWA Amendments to Clery (Clery Center for Security On Campus, Inc)
General Document Comments 0
What’s the “right” thing? I think we/UVA should ban any organization or individual which has a history of the kind of behavior outlined in the RS article and report the individual perpetrators to the police for full and complete investigation and prosecution. Peer groups which protect those who perpetuate this kind of behavior are not peers or worthy of membership in the UVA community.
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