Title: Student Harassment and Misconduct Grievance/Complaint Procedure
Effective Date: August 2011
Revision Date: October 20, 2017
Responsible Office: Dean of Students/Compliance & Equity
III. Reporting, Retaliation, and Other Initial Matters
IV. Timeline and Other General Procedural Issues
V. Initial Assessment of Report
VI. Investigation and Determination of Policy Violation
VIII. Approval, Amendment and Interpretation
A. Purpose. The purpose of this procedure is to provide a fair and effective investigation and adjudication process. This procedure helps the university implement two important policies relating to sexual harassment, sexual assault, and other forms of violence:
- The Policy on Discrimination, Harassment, and Retaliation, which defines prohibited discrimination including sexual harassment and states that sexual violence is a form of sexual harassment; and
- The Policy on Sexual Harassment and Misconduct, Dating and Domestic Violence, and Stalking (the Sexual Misconduct Policy), which defines the different forms of sexual misconduct and explains reporting options.
This procedure also helps William & Mary comply with Title IX of the Educational Amendments of 1972, which prohibits discrimination based on sex, and other federal and state anti-discrimination laws, by providing a fair, prompt process to respond to complaints, reports, and grievances.
B. Summary of Procedure and Timelines. Under this procedure, reports are assessed initially by a Title IX Review Team to determine the appropriate course of action. For reports investigated under this procedure, annually trained investigators interview the parties and relevant witnesses and collect and analyze evidence (such as emails, pictures, medical records). The investigators prepare a preliminary investigation report, which is shared with the parties for review and response. After any additional investigation or modifications to the investigation report, the report is finalized. The final investigation report is submitted to the Dean of Students. Each party may submit a statement to the Dean, prior to the Dean making a determination. The Dean decides whether a policy violation occurred based on the preponderance of the evidence, and imposes sanctions. Either party may appeal the determination or sanctions (if any) to the Provost. The Provost’s decision is final.
The university seeks to resolve matters promptly, within approximately 60 working days (excluding appeals). Timelines may be extended for a variety of reasons (see Section IV(A)). The time frames for key process stages are as follows:
- Day 1 – actionable report received/investigation authorized (note that in some cases, such as where a survivor’s identity is unknown or where he or she initially requests no investigation, significant time may elapse from the date when a report is initially received and the day when an investigation is authorized)
- Day 9 – initial meetings with parties completed
- Day 30 – preliminary investigation report provided to parties for review and response
- Day 35 – parties submit any response(s) to report
- Day 40 – final investigation report submitted to Dean for consideration with copy to parties
- Day 45 - parties submit any response(s) to final report and/or personal statements to Dean
- Day 55 – pre-determination meetings concluded
- Day 60 - decision issued by Dean
- Day 65 – appeals due
- Day 68 – final date for parties to submit appeals/responses to other party’s appeal (if any)
- Day 83 – Provost appeal decision issued
This procedure applies to William & Mary, including the Virginia Institute of Marine Science (the university).
This is the procedure for investigating any conduct prohibited by the Sexual Misconduct Policy. A different procedure is used for addressing complaints and concerns of discrimination and harassment by employees or third parties (including but not limited to vendors, contractors, alumni/ae, visitors or local residents); the Dean of Students can assist students with such complaints or concerns.
This procedure also may be used, in the discretion of the Dean of Students, for investigation and adjudication of other reported violations of the Student Code of Conduct, particularly:
- reported violations related to the reported sexual harassment or misconduct and alleged to have been committed by the same student or student group,
- any other type of discrimination prohibited by the Policy on Discrimination, Harassment, and Retaliation (the Discrimination Policy), which is reported, or suspected to have been committed by a student (regardless of enrollment status) or student group, each as defined in Section I of the Student Code of Conduct, and
- other reported violations of the rights of others, particularly those requiring significant investigation, such as allegations of hazing.
In this procedure, discrimination, harassment, sexual harassment, sexual misconduct, or other reported violations investigated under this procedure are referred to as “misconduct.” Sexual harassment is defined in the Discrimination Policy. Definitions of sexual misconduct (including sexual assault and other forms of sexual violence), relationship violence, and stalking, can be found in the Sexual Misconduct Policy.
This policy applies to misconduct of a student, regardless of where the misconduct occurred.
A. Who May Report a Violation. Any person may file a report of misconduct under this procedure. Most reports are made by university students who have experienced misconduct. Reports also may be made by someone who is aware of but has not directly experienced misconduct, and may be made by non-students.
Reporting Party Not the Person Who Experienced Misconduct. This procedure assumes that the person reporting the misconduct is the person who was harassed, assaulted, or otherwise personally and directly experienced the misconduct. However, reports also may be made by people who witnessed misconduct or were told about it or are otherwise aware of misconduct. In those cases, the reporter typically will not have the rights and role of the “reporting party” under this procedure; instead, the person who experienced the misconduct will be treated as the reporting party, if he or she is willing to participate in the procedure. See Section V of the Sexual Misconduct Policy for a discussion of confidentiality, anonymity, and investigations without reporting party involvement and Section V of this procedure for information about how requests of reporting parties/those experiencing misconduct are considered in deciding whether to proceed with an investigative process.
Reporting Party Not a Member of the William & Mary Community. Visitors, guests, and other people who experience misconduct from a William & Mary student may report using this procedure. Certain parts of the process outlined in this procedure will not apply; for example, many of the interim measures are ones that may only be taken for a William & Mary student, and privacy laws may prevent the university from giving a third party access to information about students that otherwise would be shared with the reporting party under this procedure. The university will modify its process in these situations, depending on the specific facts and circumstances.
B. How & Where to File a Report. Students are encouraged to report incidents of misconduct directly to the Dean of Students. Full information about reporting options is provided in the Discrimination Policy and the Sexual Misconduct Policy, including:
- the types of reporting available (criminal, internal investigative, written, in-person, confidential, anonymous, with request not to investigate),
- how to report, and
- protections for reporting parties, including amnesty policies and protections from retaliation.
C. Initial Intake of Report; Immediate Services and Support Offered. Students are encouraged to report incidents of sexual misconduct to the Dean of Students. If a student reports to another university employee or faculty member (other than a confidential resource), that employee or faculty member will follow specified steps, including notifying the Title IX Coordinator. Whenever W&M receives a report that a student has experienced sexual misconduct, whether the offense occurred on or off campus, a Title IX staff member will provide the student with a written explanation of the student’s rights and options.
If a student is ready to make a report for possible investigation under this procedure, the Director of Student Conduct or a designee will meet with the reporting party to:
- provide him or her with information about the process and his or her rights and options and available resources,
- explain the protections against retaliation, and
- discuss interim measures to protect the student against retaliation and provide him or her with support services.
This meeting may occur before or after the initial assessment by the Title IX review team described in Section V, and may be combined with the initial meeting described in Section VI(A). More information about interim measures and support services is provided in Section V(C).
D. Timing of Reports and Availability of Procedures. There is no time limit to invoking this procedure. The university encourages reporting misconduct as soon as possible in order to maximize the university’s ability to respond promptly and effectively. Special circumstances are:
- If the misconduct (i) occurs when the university is not in session, (ii) occurs off-campus, and/or (iii) was not associated with a university sponsored program or activity, the Title IX Coordinator in consultation with the Dean of Students will determine whether the university has jurisdiction and/or authority to conduct an investigation. Even if the university does not have the ability to conduct an investigation or to take disciplinary action against the respondent, the university will take steps, when appropriate, to protect the reporting party’s rights to participate in and enjoy the university’s programs and activities such as by providing support for the reporting party and preventing recurrence.
- If the respondent is no longer a student or employee at the time of the complaint or report, the university may not be able to take disciplinary action against the respondent. The university will take steps, when appropriate, to protect the reporting party’s rights to participate in and enjoy the university’s programs and activities such as by providing support for the reporting party and address any
- Where the respondent is a degree candidate at the university, the reporting party is encouraged to consult with the Dean of Students concerning the respondent’s intended date of graduation and to file a report in a timely manner to avoid loss of authority over the student due to graduation. In no circumstances will the university permit an impending graduation to compromise the processes for resolution. The Dean of Students Office will cause the registrar to hold a degree, if necessary, until resolution of any misconduct case.
E. Retaliation. Under the Policy on Discrimination, Harassment, and Retaliation, it is a violation to retaliate against any person making a report of misconduct or against any person cooperating in the investigation (including serving as a witness). Retaliation (as defined in that Policy and in Sexual Misconduct Policy) should be reported promptly to the Director of Student Conduct or investigator and may result in disciplinary action independent of the sanction or interim measures imposed in response to the underlying allegations of misconduct. Interim measures are discussed in more detail in Section V(C).
Examples of conduct that may be retaliation include:
- spreading rumors, engaging in a “smear campaign”
- damaging property.
Retaliation is a serious violation that can subject the offender to discipline, up to and including expulsion, independent of the merits of the underlying allegation. For more information about retaliation generally, including more examples, please visit William & Mary’s Compliance website.
F. Effect of Criminal Proceedings. Because misconduct may constitute both a violation of university policy and criminal activity, the university encourages people who have experienced sexual misconduct to report promptly to law enforcement. The university also reports certain matters directly to law enforcement and/or the prosecutor with jurisdiction, as described in Section V below.
The standards for finding a violation of criminal law are different from the standards for finding a violation of university policy. This means that conduct may violate university policies even if it is not a crime or law enforcement agencies lack sufficient evidence of a crime and therefore decline to prosecute.
This procedure is independent of any criminal investigation or proceeding. The university generally will not wait for the conclusion of any criminal investigation or proceedings to commence its own investigation and take interim measures to protect the reporting party and the university community, although the university will consider law enforcement requests to delay temporarily (generally no more than seven days).
A. Timeline, Deadlines and Extensions. The university aims to conclude the investigation and adjudication, including notification of outcome, but not including any appeal(s), within a 60 day time period. The appeal period falls outside the 60-day time period; the timelines relating to appeals are specified in Section VII.
Scheduled or unscheduled breaks in university operations (including winter and spring break) may extend any time period or deadline in this procedure.
The timeline for resolution may begin with notice to a mandated reporter or the filing of a report with the Title IX Coordinator or the Dean of Students. But in situations where it is not initially clear that an investigation is desired or warranted, such as where the reporting party requests no investigation, where a party’s identity is unknown, or where a third party files a report and the reporting party has not yet been contacted, the timeline for resolution begins on the date when the investigation is authorized by the Title IX Review Team or the Title IX Coordinator. See Section V.
All time periods, unless otherwise specified, are in calendar days. If a deadline or end of period falls on a day the university’s administrative offices are not open for business, the deadline will be extended to the next working day.
Time periods may be extended as necessary by the Title IX Coordinator or the Dean of Students with notice to the parties. Extensions will be made to ensure the integrity and completeness of the investigation and/or for appropriate cause, such as: compliance with a request by law enforcement; availability of witnesses or parties; scheduled or unscheduled university closings or breaks (including winter and spring breaks); vacations; complexities of a specific case including the number of witnesses and volume of information collected; and health or other emergencies.
B. Roles/Conflicts. The individuals specified in this process may recuse themselves, delegate their roles to others as necessary to ensure impartiality or to accommodate leave or professional or personal conflicts. A party may request recusal or substitution of an investigator or advisor through the Title IX Coordinator or the Dean of Students by specifying the nature of the conflict. The Title IX Coordinator or the Dean of Students will consider the request, the alleged conflict, and determine the appropriate steps for managing any conflict that exists.
Reporting Party Withdrawal of Participation or Request to Halt Investigation. If a reporting party wishes to cease involvement in the process, or no longer wants the process to continue, the Title IX Coordinator will consider carefully whether the university is obligated to proceed forward or whether the party’s wishes may be respected, based on the factors described in Section V of the Sexual Misconduct Policy.
C. Combined or Multiple Violations or Complaints.
1. Multiple complaints or allegations: The university typically will investigate and adjudicate multiple allegations (potential policy violations) at one time if they stem from the same incident or are based on a pattern of behavior close enough in time or related sufficiently by their nature to be reasonably resolved in a single proceeding. Questions about the use of a single proceeding to resolve multiple charges will be decided by the Director of Student Conduct.
Students participating in an investigation process or who have made a report are protected from retaliation and the university must guard against a report or allegation being used as a tool of retaliation or as a strategic effort to discredit or preempt another report. When both (or all) students involved in an incident report that the other violated their rights, for example, W&M will carefully assess both reports to determine the appropriate course of action. Because an investigation under this procedure is designed to collect evidence relevant to both parties’ perspectives, the appropriate course of action often will be to conduct a single investigation under this procedure. In determining which student will be treated as the reporting party and which as the respondent, the university will consider relevant factors including those specified in Section V of this procedure. The university also may initiate an investigation in which both (or all) students are respondents.
2. Alleged violations of different policies: Should an incident result in an allegation that a student has violated both the Sexual Misconduct Policy and another applicable policy, such as the Honor Code or the Student Code of Conduct, the allegation will be processed under this procedure to ensure compliance with federal law. A charged party may not face more than one proceeding to determine the final disposition of a single incident.
D. Students with Disabilities. The university is committed to providing reasonable accommodations for students with documented disabilities, in accordance with the Accommodation Policy and Procedure. Such accommodations may include, but are not limited to, administrative assistance, additional time, and/or an alternative to the formal adjudication process. Students with disabilities who need reasonable modifications to address a suspected violation of the Sexual Misconduct Policy are encouraged to meet with the Director of Student Accessibility Services (109 Campus Center) as early in the process as possible to identify and plan specific accommodations. Students typically will be asked to provide medical documentation. The Director of Student Accessibility Services will inform the Office of Student Conduct and any other administrators who have a need to know of appropriate accommodation(s).
E. Respondent/Witness Failure to Cooperate. If a student fails to appear for a scheduled appointment or otherwise refuses to cooperate, the student may be held responsible for conduct charges.
F. Notice. Proper notice will consist of an email sent to a student's official W&M email account, written notice delivered through either W&M or U.S. Mail to an address in the Registrar's records, or a letter delivered personally by university staff, including Residence Life student staff. In general, correspondence will be sent via email.
G. Witness Intimidation or Other Abuse of Process System. Students who contact witnesses or parties to intimidate them, influence or collaborate regarding testimony, harass, or circumvent the process in any way, may be responsible for retaliation or a charge of abuse of process. Students may not circumvent this provision by permitting advisors, friends or others to perform such actions on their behalf or for their benefit. In general, it is expected that the university will conduct the investigation pursuant to this procedure prior to and free from interference by any independent investigation by or on behalf of a party.
H. Past Sexual Histories/Evidence of Other Sexual Misconduct or Harassing Conduct. In general, parties’ prior sexual history, character or reputation is not relevant and will not be considered as evidence of character or reputation during the investigation. Where there was a relationship between the parties and consent is at issue, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties or to explain physical evidence. As specified in the Sexual Misconduct Policy, however, the mere fact of a current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent.
Evidence of prior sexual history of a party with other individual(s) may be prejudicial nature, and so will be included only after assessing its relevance (probative value) and prejudicial nature. Examples of evidence that may be admissible may be considered and included in the investigation report: (a) evidence of conduct similar in nature to the alleged misconduct by the respondent, (b) evidence of a pattern or to be considered together with the alleged misconduct in determining whether a hostile environment was created, (c) evidence relevant to proving intent, state of mind, injury, or identity. Such evidence may be considered regardless of whether there has been a finding of responsibility as to the other conduct, subject to the general determinations for admissibility of evidence described in Section J below.
I. Rules of Evidence. University proceedings are not judicial or policy procedures designed to enforce laws. They are internal, administrative processes designed to address reported violations of university policy. Universities do not conduct judicial proceedings and do not follow the rules of evidence employed by courts of law. Information that does not come from a first-hand source (hearsay) may be considered. Lie detector/polygraph evidence is not permissible. Except as specifically provided in this procedure, the university is not required to consider evidence and may decide which evidence to exclude or consider. Investigators exercise their professional judgment to determine what evidence is relevant and material to the case, and may exclude evidence that is unfairly prejudicial, that relates to collateral issues, or that is confusing, misleading, or needlessly cumulative. Investigators will also consider the process by which the evidence was collected and the source of the evidence; for example, notes made by a private investigator hired by a party typically are not considered reliable and unbiased enough to introduce as evidence. Witnesses (including parties) observations and opinions as to events or motivation may be considered as evidence; the decider is trained to evaluate such evidence appropriately and does not accept an opinion as a statement of fact.
If a party introduces evidence not considered in the investigation and documented in the investigation report, such as in a personal statement or an appeal, the Dean or Provost have discretion in determining whether to consider such evidence; evidence impermissible under this procedure may not be introduced or considered. The Dean or Provost may request additional information, guidance or investigation from the investigators or Title IX Coordinator regarding the evidence.
J. Interviews and Other Meetings. Interviews and any other meetings generally are conducted in person in university facilities. In-person interviews generally provide more effective communication of information than interviews conducted remotely using telephonically or using video technology. But remote interviews may be necessary, in certain circumstances, and/or may be conducted when necessary to provide prompt resolution.
1. Interviews with Parties. Typically, there is one main or primary interview with each party and one or more shorter, follow-up interviews. The main or primary interview is conducted in person unless (a) extenuating circumstances exist, (b) alternate arrangements are made as an accommodation (see paragraph E, above), as determined by the Title IX Coordinator, or (c) a party is not a W&M student (or employee). For parties who are not W&M students or otherwise obligated to cooperate, the university will make best efforts to conduct an in-person interview. If an in-person interview is not feasible, the general preference is to conduct an interview using video call technology rather than via phone.
A follow-up interview may be conducted in person or remotely, or investigators may submit questions in writing to the party for response, at the investigators’ discretion depending on the circumstances including the scope of the follow-up interview.
2. Interviews with Witnesses. While in person interviews remain the preference, interviews conducted telephonically or using video technology generally are more appropriate with witnesses than principal parties, although this depends on the importance of the witness – how much information he or she is believed to have or how relevant and significant to the allegation that information is believed to be.
K. Confidentiality, Need-to-Know, and Records Retention
This procedure specifies notification or consultation with various offices and individuals. In addition, other internal disclosures may be made, including:
- to the Office of University Counsel, for the purposes of obtaining legal advice.
- to obtain approval for or implement interim measures and prevent retaliation.
- mandatory reporting by the Department of Education for the Annual Security Report, in response to subpoenas or Freedom of Information Act requests, with proper/required redaction of personally identifiable information.
Records produced or collected pursuant to this procedure shall be maintained in accordance with federal and state law, including the Records Retention Schedules of the Library of Virginia, which implement the Virginia Public Records Act.
Precautions are taken to protect sensitive, confidential information including the investigation report and related communications, such as use of secure file transfer technology and incident management software systems. Additional steps may be taken when sharing information with people who are not university employees or students, such as providing access to documents rather than copies.
Upon receipt of a report of sexual misconduct, the Title IX Coordinator or designee will notify the other members of the Title IX Review Team, which shall meet within 72 hours in the case of a reported act of sexual violence and as soon as practicable in all other cases, to:
- conduct a threat assessment and make any mandated reports,
- determine the appropriate procedure(s) and whether an investigation is warranted,
- develop interim measures, if appropriate, and
- make internal referrals as appropriate.
The Title IX Review Team is the Title IX Coordinator or designee, the Chief of William & Mary Police or designee, and the Dean of Students or designee. The review team may include a representative from Human Resources or the Office of the Provost, if staff or faculty may be involved in the reported matter. The review team operates pursuant to Va. Code §23-9.2:10 and has access, under Virginia law, to certain otherwise confidential information, including law enforcement records and criminal history information, as provided in Va. Code §19.2-389 and §19.2-389.1; health records, as provided in Va. Code §32.1-127.1:03; university disciplinary, academic and/or personnel records; and prior reports of misconduct maintained by the Title IX Coordinator. The review team will have access to all available facts and circumstances and may seek additional information about the reported incident through any other legally permissible means.
A. Threat Assessment and Mandated Reports. The Title IX Review Team will review the report and any other available relevant information to assess the threat posed by the reported misconduct and to determine whether external reports are required. The review team will make this determination based upon the following factors (the “Risk Factors”):
- Any known preferences or requests of the reporting party;
- Whether the respondent has prior arrests, reports and/or complaints related to sexual harassment or misconduct or has any history of violent behavior;
- Whether the respondent has a history of failing to comply with university protective measures, and/or any judicial protective order;
- Whether the respondent has threatened to commit violence or any form of sexual misconduct;
- Whether the reported misconduct involved multiple respondents;
- Whether the reported misconduct involved physical violence. Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking and brandishing or using any weapon;
- Whether the report reveals a pattern of sexual misconduct (e.g., by the respondent, by a particular group or organization, around a particular recurring event or activity, or at a particular location);
- Whether the sexual misconduct was facilitated through the use of “date-rape” or similar drugs or through provision of alcohol;
- Whether the sexual misconduct occurred while the reporting party was unconscious, physically helpless or unaware that the sexual misconduct was occurring;
- Any indications that the report was made in bad faith, such as retaliation or in anticipation of a complaint being filed against the reporting party (see Section IV(K)), or is baseless;
- Whether the reporting party is (or was at the time of the reported incident) a minor (under 18);
- Whether any other aggravating circumstances or signs of predatory behavior are present; and
- Applicable law, policy and procedure.
Upon completion of the threat assessment, the appropriate member of the Title IX Review Team will make any mandated reports:
- If the review team determines that disclosure of the report to the law enforcement agency that would be responsible for investigating the alleged act of sexual violence is necessary to protect the health or safety of the reporting party or other persons, the W&M Police representative will immediately make such disclosure.
- If the alleged act of sexual violence would constitute a felony violation of Section 18.2-61 of the Virginia Code, the W&M Police representative shall inform the other members of the review team and, within 24 hours, consult with the attorney for the Commonwealth or other prosecutor responsible for prosecuting the alleged act of sexual violence. This consultation will not include personally identifiable information, unless such information was disclosed as described under Paragraph 1 above. If this consultation does not occur and any other member of the review team concludes that the alleged incident would constitute a felony violation, he or she will make the same consultation, within 24 hours.
- If the reported incident involves abuse (including sexual violence against) of a minor (or someone who was a minor at the time of the incident), the review team will designate a team member to report the matter to the Department of Social Services within 24 hours and inform the other team members once the report has been made.
If any external report is made under this Section, the Title IX Coordinator will notify the reporting party promptly.
B. Determination as to Appropriate Procedure and Investigation. Upon completion of the threat assessment and consideration of the requests of the reporting party, as described below, the Title IX Review Team will determine the appropriate course of action:
- No further action under this procedure. No action may be appropriate for reports that do not include sufficient information to initiate an investigation, reports where the person reported to have experienced the misconduct has requested no action and the review team’s assessment concludes that this request may be honored, reports that do not allege conduct that violates applicable university policy, or reports of matters for which the university does not have jurisdiction.
- Remedial, but not disciplinary action. Remedial actions may include remedies offered to the reporting party as well as actions designed to address possible areas of concern such as educational or awareness activities, targeted training, increased supervision or oversight of specific clubs or organizations or individuals, or warnings or directions to specific individuals. This course of action may be appropriate for reports that do not have sufficient information to initiate an investigation or reports where the person reported to have experienced the misconduct has requested no investigation and the team’s assessment concludes that this request may be honored. It may also be appropriate for reports that do not allege conduct that violates applicable university policy but do allege conduct not consistent with university expectations, such as harassing conduct that has not become severe or pervasive enough to create a hostile environment; the university may take action to prevent such harassing conduct from continuing or repeating and creating a hostile environment.
- Further action under this procedure (or the procedure used for reports of misconduct by faculty, staff or third parties, as applicable).
If a reporting party has requested an investigation or disciplinary measures and the review team has determined that the information available does not provide a reasonable basis for conducting an investigation under this procedure or that this procedure is not applicable, the Title IX Coordinator will notify the reporting party promptly.
There is no right to appeal or request reconsideration of a Title IX Review Team decision, but the Review Team may change its determination based on additional information or consideration, at any time.C. Interim Measures. Interim measures are steps taken by the university to prevent retaliation, prevent continuation or recurrence of the alleged misconduct, prevent the creation of (or remedy) a hostile or offensive environment, and ensure that the reporting party and others are able to participate in the university’s educational and other programs and activities. Interim measures typically are taken before investigation and may be taken even if the reporting party does not want an investigation
Interim measures do not reflect a determination or presumption that misconduct has occurred. The university seeks to take the least restrictive interim measures possible. The following are examples of possible interim measures:
- Issuing orders barring further contact (Campus No Contact Orders), either bi-lateral (directing both parties not to contact the other) or unilateral (directing one party not to contact the other)
- Providing the reporting party with an escort to ensure that he or she may move safely between classes and activities
- Providing counseling or medical services, including free services from the university Counseling Center or Student Health Center
- Making academic accommodations
- Relocating or rescheduling of classes
- Changing residence locations (reporting parties will not be moved without their consent)
- Restricting the respondent’s presence on campus at certain times or to certain areas of campus
- Issuing interim suspension of the respondent from residence, from the campus, and/or from any activities of the university to ensure the health or safety of members of the college community.
The university will maintain as confidential any accommodations or other interim measures provided to the reporting party, to the extent maintaining such confidentiality would not impair the ability to provide the accommodations or protective measures. (For example, no-contact orders must be disclosed to the affected student.)
Interim actions may be modified at any time.
Parties may request changes to interim measures by contacting the Dean of Students Office. Requests will be reviewed promptly, in consultation with the Review Team as appropriate.
D. Internal Referrals. The Title IX Review Team will refer to the university’s Threat Assessment Team those matters determined to warrant continued threat assessment or management beyond the interim measures and other steps specified by this procedure.
This Section specifies the process used to investigate a misconduct report, when the review team has decided an investigation is warranted (see Section V(B)). The initiation of an investigation is a decision to collect evidence regarding a report; there is no presumption of misconduct by any student.
A. Initial Meetings with Parties. Prior to the formal investigation beginning, the Director of Student Conduct or designee and/or another Title IX administrator meets or communicates separately with each of the parties. The timing of these meetings may vary depending on the manner in which the report was made and other factors. For example, the meeting with the reporting party may occur when he or she files a report or may occur subsequent to the review team’s initial assessment. In addition, there may be more than one meeting held or more than one communication made with each party in order to convey the required information.
During the meeting with the respondent or in the communication to the respondent, the administrator will provide written notification of:
- the allegations to be investigated, including the specific policy provision(s) at issue, the identify of the reporting party, and available information regarding the date and location of incident(s)(note that the allegations are subject to change based on information collected)
- the process to be used (this procedure) and his or her rights and duties and available resources
- the name and contact information of the administrative advisor available to assist him/her (see Paragraph B of this Section), and the scope of the advisor’s role
- warning against retaliation and witness contact/collaboration, direct or indirect
- his or her rights, including the right not to incriminate him- or herself, as defined by the Student Code of Conduct, and for silence not to be held against them
- the consequences of failing to appear or participate in the process, and
- interim measures. In some cases interim measures will have been put in place and communicated prior to this meeting. The university also may develop interim measures at a later date, depending on the circumstances, and may modify the measures at any time. See Section V(C).
An administrator will meet or communicate separately with the reporting party to provide him or her with written information about:
- the process and his or her rights and options and available resources, including counseling, health, mental health, victim advocacy, visa and immigration assistance, financial aid assistance and other services available within the institution and in the community
- the name and contact information of the trained advisor available to assist him or her (advisors are discussed in Paragraph B of this Section) and the scope of the advisor’s role
- the protections against retaliation and witness contact/collaboration, direct or indirect, and
- interim measures (see Section V(C))
- the importance of preserving evidence that may assist in proving that the alleged criminal offense and/or violation of policy occurred or is occurring or may be helpful in obtaining a protection order.
B. Resignation of Respondent. Within five days of the initial meeting, a respondent may request to resign permanently from the university. If approved, the Director of Student Conduct will direct that the student’s official records, including the transcript, will carry a notation as required by Section 23-9.2:18 of the Virginia Code. The student must certify, via a notarized letter, that the student understands that he or she will never seek or receive admission into any William & Mary program in the future, unless granted a waiver as described below. The student will not be able to be present on campus property and/or attend university-sponsored functions or activities. The student will leave the university with the status “not in good standing.”
Permanent resignation will result in no other disciplinary process being conducted with respect to the resigning student. The university may, however, investigate the matter as needed to determine whether a hostile environment existed and/or what remedial steps are warranted.
In exceptional circumstances, when definitive proof of a resigned student’s non-responsibility exists, he or she may request a waiver of resignation and readmission or a removal of the transcript notation. This request must be made to the Dean of Students. A not guilty verdict in a criminal court is not, in itself, definitive proof of non-responsibility, as courts apply different standards of proof, follow different evidentiary and procedural rules, and adjudicate legal violations with elements different from university policy. Similarly, a failure to prosecute does not constitute proof of non-responsibility. Examples of definitive proof include video recording or DNA evidence proving that a different person committed the alleged misconduct. The Provost will consider the petition and determine whether to resume the investigation and resolution process under this procedure or conduct an extra-procedural process of evaluating the petition, such as where the reporting party is not available to participate in the investigation process. The reporting party will be given the opportunity to respond and participate in the evaluation process, to the extent feasible.
C. Acceptance of Responsibility. The Respondent may, at any time, request to resolve the investigation process or resolve specific allegation(s) by accepting responsibility for the misconduct. The Title IX Coordinator will consider the request; if the request is granted, the Dean will determine the appropriate sanction(s). Notifications will be provided to all parties in accordance with Section VI(I).
D. Advisors for Reporting Party and Respondent. Each party may chose an advisor to support him or her through the administrative process, including advising on campus resources and services available to the student and accompanying the student to interviews and meetings.
William & Mary trains a group of faculty and staff to serve as advisors, and assigns an advisor to each party based on advisor availability. A party may choose instead to use an advisor of his or her choice, such as a friend, family member, or lawyer. These outside advisors are not trained by the university. If a student uses an outside advisor, the student will continue to have access to the trained administrative advisor. In this situation, the trained administrator will serve as a consultant to the student, but only the outside advisor will be permitted to accompany the student to interviews or meetings. This avoids scheduling delay and disruption.
- An advisor may accompany the party he or she is advising to that party’s interviews and administrative meetings. An advisor may quietly and briefly confer with or advise the student he or she is advising, and will be provided a limited opportunity to ask questions or raise concerns during meetings or interviews. The university expects parties to speak on their own behalf; an advisor does not respond to questions on the party’s behalf. An advisor who disrupts a meeting, interview or proceeding will be required to leave the proceeding.
- Parties may share records and investigation communications with their advisor, if they and the advisor agree to consent and confidentiality requirements.
- Because of the importance of prompt processing of reports, advisors are expected to modify their schedules to attend meetings. The university typically will not reschedule interviews or grant extensions to accommodate advisor schedules. Arrangements may be made to allow participation by phone or other technologies.
- Parties who retain outside advisors are responsible for any costs associated with hiring such advisors.
- A party may change advisors during the process, but the university cannot ensure that a replacement advisor will be available or will have adequate time to gain familiarity with the matter.
Investigations typically consist of interviews of the parties and witnesses and collection and review of evidence such as documents, photographs, text messages, social media postings, and IT records such as emails. Students and employees are required to produce any relevant records upon request.
Investigators may visit relevant locations and record observations through photographs or other means. Investigators may seek information from university officials or others with relevant scientific or other specialized knowledge, to help understand evidence or determine a disputed issue.
- Introduction of Evidence. Each party may introduce evidence during the investigation. Parties are not required to themselves uncover and produce evidence; if a party has cause to believe certain evidence exists, he or she should discuss the issue with an investigator. See also Section IV(I) (“Rules of Evidence”).
- Witnesses. Parties may request witnesses – people able to provide relevant information regarding the allegations - to be interviewed. The investigator(s) determines who to interview, based on their professional judgment as to the likelihood of discovering relevant evidence. Character witnesses and witnesses who are suggested because they could offer information relevant to items that are not disputed or that have already been sufficiently supported through the investigation will not be interviewed. The need for prompt complaint resolution must also be considered.
- Questions for Other Party. Each party has the right to suggest issues to be explored with the other party, or questions to be asked. The investigators, exercising their professional judgment in accordance with Section IV(I), determine which issues or questions are relevant and the appropriate investigative method for acquiring information.
Third parties other than advisors are not permitted to be present during interviews; interviews are attended by the interviewee and the investigator(s), and a note-taker (in the discretion of the investigator(s)).
If allegations or evidence of retaliation or misconduct relating to the investigation itself (witnesses collaborating or destroying or concealing evidence, for example) arise during the course of the investigation, the investigator will consult with the Director of Student Conduct and/or the review team to determine whether interim measures are necessary to respond to the reported retaliation or misconduct, and to decide whether to address the reported retaliation or misconduct as a separate conduct matter or as part of the current investigation. If they are addressed as part of the current investigation, the investigation may take additional time to conclude.
F. Preliminary Investigation Report; Parties’ Right to Review and Respond. At the conclusion of the investigation, the investigator(s) will evaluate the information obtained during course of the investigation and prepare a preliminary investigation report. The report typically will:
- describe the allegations investigated including the elements of each alleged policy violation,
- provide relevant information regarding the parties, key witnesses (if any), and other contextual matters such as locations or specific events,
- describe the investigation, i.e., the witnesses interviewed and evidence collected,
- include a timeline of events, if useful,
- include relevant records, such photographs and text messages, or summaries or redacted copies of such records, and
- summarize the relevant evidence discovered, outlining which elements of each allegation are contested and relevant corroborating or contradicting evidence. As an example, a report may state that sexual contact was not disputed and that the only disputed issue is whether effective consent was given/received, then proceed to summarize the evidence found relevant to the existence of effective consent. The investigation report may include evidence of impact of the alleged misconduct on the reporting party, to the extent such evidence is relevant in determining whether the alleged misconduct occurred.
The preliminary investigation report will not include conclusions as to whether there has been a violation of law or policy, but may include the investigator’s assessment of the credibility of witnesses and strength of specific evidence.
The investigator(s) will provide a copy of the preliminary investigation report to the parties who will have five days to respond by:
- submitting written comments, corrections, or clarifications,
- refuting or challenging any assessments made by the investigator(s),
- submitting any additional information or evidence, or
- requesting further investigation or evidence collection, for example by requesting that the investigators contact additional witnesses or inquire into specific topics with existing witnesses .
G. Final Investigation Report; Parties Right to Review and Respond; Dean’s Review. After careful consideration of any comments, questions, or additional information submitted by the parties during the review period and any subsequent investigation, the investigator will prepare a final investigation report. It is in the discretion of the investigator to determine whether the additional evidence submitted by the parties is relevant and material to the investigation, whether any revisions should be made, or whether additional investigation should be conducted.
Upon completion, the investigator will submit the final report to the Dean of Students and the parties.
Each party has five days to provide a written response to the final report, which response should specify any concerns regarding the thoroughness or fairness of the investigation, and/or personal statement to the Dean.
The Dean will review the report, any responses and personal statements, and may request additional investigation or information by or from the investigator(s). The parties will be notified contemporaneously of any additional investigation or supplemental information provided.
H. Pre-Determination Meeting. Prior to the Dean making a determination, a member of the Dean of Students Office staff will meet separately with each party, provided that such meetings can be scheduled without delaying the determination process. A party’s advisor may join this meeting. The purpose of the meeting is to ensure that appropriate services are offered and to answer questions regarding the process going forward.
I. Determination of Policy Violation. The Dean of Students or designee reviews the investigation file in order to determine whether university policy was violated. The Dean may request additional investigation or information by or from the investigator prior to making the determination. The parties will be notified contemporaneously of any additional investigation or supplemental information provided. Within fifteen days after receiving the final investigation report, the Dean of Students or designee will make a written determination as to whether university policy has been violated by the respondent, and impose appropriate sanctions if a violation has been found to have occurred. The determination will be sent to both parties at the same time. The determination notice also explains provide in this communication the written procedures for appealing the determination, the sanction, or both, as provided in Section VII of this procedure.
The Dean’s determination of whether a policy violation occurred will be based on the preponderance of the evidence. Preponderance of the evidence means that it is more likely than not that the misconduct occurred.
The Dean’s determination may be appealed to the Provost by either party. See Section VII for the appeal process.
K. Determination of Sanctions and Remedies. Sanctions are determined by the Dean of Students, after reviewing the final investigation report and making a determination of responsibility. The purpose of the sanctions is to prevent recurrence of similar conduct by the respondent or others and to eliminate a hostile environment for the reporting party and the campus. Sanctions are imposed within the range specified below for the violation, on a case-by-case basis considering the nature and specifics of the violation, any conduct or honor violation history of the respondent, institutional practice, and the university’s goals and mission.
The primary sanctions for Sexual Misconduct range from Disciplinary Probation to Permanent Dismissal. Non-Consensual Sexual Intercourse will result in a sanction of Disciplinary Suspension of at least two full semesters or Permanent Dismissal.
A student found responsible for Sexual Assault who had previously been found responsible for a sexual misconduct offense typically will be subject to Permanent Dismissal.
The potential primary and secondary sanctions are:
- Permanent Dismissal: an involuntary separation of the student from William & Mary without the possibility of future readmission in any program. The student must leave the campus and is not eligible to participate in classes or any university-sponsored or university-related activities. The student is not permitted on campus without prior written permission from the Dean of Students or designee. The sanction is noted permanently on the student's transcript.
- Indefinite Disciplinary Suspension: an involuntary separation from the university during which the student must leave the campus and is not eligible to participate in classes or any university-sponsored or university-related activities, with a date determined by a committee or administrative officer when the student may petition for reinstatement. In such instances, the student must first satisfy the committee or administrative officer by his/her conduct and record that he/she is in fact entitled to reinstatement. During the period of suspension, the student is not permitted on campus without prior written consent from the Dean of Students or designee. The sanction is noted on the student's transcript but is removed if the student is reinstated to good standing at the university.
- Disciplinary Suspension: an involuntary separation from the university for a period determined by the Dean of Students or designee during which time the student must leave the campus and is not eligible to participate in classes or any university-sponsored or university-related activities. The student is not permitted to return to the campus without prior written permission from the Dean of Students or designee. At the end of the period of suspension, the student automatically is eligible for readmission provided the student has completed all secondary sanctions and there is no other encumbrance upon his or her return. The sanction is noted on the student's transcript but is removed once the period of suspension has been completed.
- Disciplinary Probation with Loss of Privileges: continued enrollment but exclusion from participation in university, fraternal, intercollegiate athletics, and/or other student extracurricular activity for a specified period of time. Such probation also constitutes a warning that further misconduct or violation of university policy during the period of probation will be referred to the Office of Student Conduct and will most likely result in the student's separation or dismissal from the university.
- Disciplinary Probation: continued enrollment but with a warning that further misconduct or violation of university policy during the period of probation will be referred to the Office of Student Conduct and may result in the student's separation from the university.
- Loss or Restriction of Privileges: the limitation or removal of specified social or personal privileges including, but not limited to, loss or restriction of computer privileges, entertainment of guests in the private areas of a residence hall, participation in social activities sponsored by the university or a residence hall, and/or the right to operate an automobile on campus. In addition, a student's current or subsequent year's Housing Agreement may be terminated or special conditions attached to it, or the student may suffer a reduction in priority of a specified number of places in the room selection process of a subsequent year.
- Educational Requirement: the requirement that the student complete one or more specific educational activities directly related to the violation committed.
- Task/Service Participation: the requirement that the student participate in assigned tasks that are appropriate to the regulation violated or behavior displayed.
- Restitution: the requirement that the student reimburse the university, appropriate individual or organization for damage, personal injury, or misappropriation.
The Dean of Students, in consultation with the Title IX Coordinator, will also ensure that appropriate remedies are offered to the reporting party. The goal of remedies is to restore the reporting party’s ability to enjoy institutional programs, benefits, and activities, and to attempt to remedy harm. Potential remedies for reporting parties include:
- arranging for the reporting party to re-take a course or withdraw from a class(es) without penalty,
- extending any interim measures described in Section V(C), and
- determining if there is a causal connection between any previous disciplinary action taken against the reporting party and the misconduct and, if such a connection is found, modifying the original disciplinary action.
The Dean of Students or designee will notify both parties simultaneously in writing of the decision in the case and any sanction(s) imposed. If there are sanctions that do not directly relate to the reporting party, the reporting party will be informed of these sanctions to the extent permitted by federal law.
Sanctions typically are effective immediately upon being imposed by the Dean. If the sanction includes suspension or dismissal, however, the effective date of the sanction will be evaluated on a case-by-case basis. In those cases where sanctions are suspended pending appeal, if the Dean of Students determines that the continued presence of the student constitutes a risk to the educational process, to him/herself, or to the safety of others, the Dean of Students may continue to prohibit the student from attending classes.
The appeal is an objective, independent review designed primarily to detect any significant errors in the investigation or determination. The appeal is not a de novo review – the appeal officer does not review the case as if considering it for the first time. Instead, the appeal is made with deference to the Dean’s determination and to investigators’ actions, such as decisions regarding relevance of evidence, within the scope of this procedure. Both parties have the right of appeal. The Provost or designee reviews all appeals.
- Material procedural error. The appeal must specify the procedural provision that was violated and the impact of this violation; procedural or technical deviations will not be sufficient to sustain an appeal unless found to have denied the appealing party a fair process. If the Provost grants an appeal on the basis of procedural irregularity, he or she typically will remand the matter to remedy the irregularity, if appropriate.
- The decision is inconsistent with the weight of the evidence. In reviewing an appeal based on this ground, the Provost does not replace the Dean of Students’ judgment with his or her own; he or she reviews the matter to determine whether the evidence presented appears sufficient to support a determination based on the preponderance of the evidence standard. If the Provost grants an appeal on this basis, he or she may modify the determination or may order further investigation.
- New material evidence that (a) is not merely corroborative or repetitive and (b) was previously unknown or unavailable to the party and pertinent to the case. The appealing student must provide an explanation as to why the evidence was unknown or unavailable. If the Provost grants an appeal on this basis, he or she typically will remand the matter for additional investigation or consideration.
- Inappropriate sanction. In reviewing an appeal based on this ground, the Provost does not replace the Dean of Students’ judgment with his or her own; he or she reviews the matter to determine whether the sanctions imposed are authorized under applicable policy and sufficient to preventing recurrence of similar conduct by the respondent or others and eliminate a hostile environment for the reporting party and the campus. If the Provost finds that the sanction was not authorized and/or was insufficient, he or she will determine a sanction that is appropriate given the facts and circumstances of the case and precedent.
Appeal Process and Timeline. Appeals must be submitted to the Office of Student Conduct within five days following written notification of the Dean’s determination. All appeals must be in writing and clearly cite the ground(s) for the appeal and the evidence supporting it. If a student files an appeal, the Director of Student Conduct or designee will promptly notify the other party and provide him or her with access to the appeal. The other party has three days to provide a written response to the appeal. The Director of Student Conduct or designee promptly will submit the appeal to the Provost or designee and provide the Provost with access to all relevant case records. The Provost or designee may confer with appropriate individuals, in order to obtain information necessary to make a fully-informed decision.
The Provost shall strive to render a determination on the appeal within fifteen days of the receipt of the appeal packet. Written notice of the appeal decision, including the reasons for the decision and that the decision is final will be provided contemporaneously to all parties. The Provost’s determination is final and not subject to further appeal.
This procedure was approved by the President effective February 6, 2015, by separating the procedure from the Sexual Misconduct Policy and making significant changes to the procedure important modifications and improvements to ensure compliance with applicable law and regulatory guidance.
This procedure was amended by the President, on an interim basis, effective September 16, 2015, to make various changes including to comply with Virginia law effective July 1, 2015, and change the process for making determinations of violations from a hearing panel model to an investigative/administrative resolution model. The procedure was finalized by the President effective September 23, 2016, with certain revisions. The procedure was amended by the President effective October 20, 2017, to modify time periods for investigation and resolution steps, to add a formal opportunity for both parties to respond to the final investigation report in writing, and to make clarifying modifications and additions.
The Title IX Coordinator, with notification to the President, may make minor or technical revisions to this procedure.
The Dean of Students and the Title IX Coordinator are responsible for interpreting this procedure.
 This summary is provided to help readers quickly understand the basic process. If there are any differences between this summary and the more detailed provisions in the body of this policy, the more detailed provisions apply.
 If, after review, the Title IX Coordinator determines (1) that the misconduct did not occur in the context of a William & Mary program or activity, (2) did not have a continuing effect on such a program or activity, and (3) did not have a continuing effect on campus, including by creating a hostile environment, William & Mary may, but is not required to, limit its response to providing support for the reporting party, including by implementing appropriate interim measures as described in Section V(C) of this procedure.
 Conflicts of interest are prohibited by William & Mary's Code of Ethics.
If the perceived conflict is with the Title IX Coordinator, the request may be made to the Provost.
 The practice of not initiating two separate, counter-investigations is also consistent with a general university practice of preserving institutional resources and reducing inefficiency by conducting fact-finding through a single, dedicated process rather than initiating multiple, potentially competing processes.
 Typically, this determination will be made by the Title IX Review Team. A possible outcome in this type of situation would be to conduct an investigation and, after a final determination made, re-consider the matter to decide whether a second investigation/disciplinary process should be initiated, with the parties reversed. In this situation, it is likely that most if not all of the relevant evidence would have already been collected during the initial investigation, so the second investigation would be completed promptly.
 This duty to cooperate respects a student’s right not to incriminate him- or herself. This right typically applies only to the respondent and is a limited right; the right does not excuse a respondent from refusing to attend an interview or from refusing to answer any and all questions.
 To prevent abuse of process, an interview with a student party will under no circumstances be conducted telephonically where the student is physically co-located with his or her advisor if that advisor is not assigned by the university.
 Members of the Title IX Collaborative Staff and other W&M employees generally are authorized to access student records under FERPA, as “school officials” with a “legitimate educational interest.”
 Under General Schedule GS-111, Series 1011173 and 1011174, student investigative or disciplinary records are to be retained for three years after the end of the academic year. Under General Schedule GS-103, Series 100479, investigative files relating to discrimination complaints against an employee are to be retained for three years.
 Sexual violence, for this purpose, is defined by Section 23-9.2:15 of the Virginia Code as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent.”
 If the Title IX Review Team cannot reach consensus, the W&M Police representative on the team shall make the determination with respect to the report to law enforcement, and the Title IX Coordinator shall make the determination with respect to an internal investigation. In all cases, the W&M Police representative makes the notification to law enforcement. In some instances, the notification would be in the form of an incident report to W&M Police.
 May be issued by the Dean of Students or designee, if relating to a student, the Provost, if relating to a faculty or staff member, or the Chief Human Resources Officer, if relating to a non-faculty employee.
 Redactions or summaries will be made to comply with law and policy, such as to summarize medical records or to redact irrelevant, sensitive personnel information (for example, a portion of a text message that is sensitive but not relevant to the case). If a party is not a currently enrolled student, access may be granted rather than a copy being disseminated.
 Redactions or summaries will be made in the copies disseminated to the parties to comply with law and policy, such as to summarize medical records or to redact irrelevant, sensitive personnel information (for example, a portion of a text message that is sensitive but not relevant to the case). If a party is not a currently enrolled student, access may be granted rather than a copy being disseminated.
 The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, the Family and Educational Rights and Privacy Act, and the Violence Against Women Reauthorization Act of 2013 each have provisions relating to disclosure of sanctions for sexual misconduct.