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Sexual Misconduct Policy and Procedure

I.  INTRODUCTION

We encourage members of the campus community who experience any form of sexual misconduct discussed in this policy to contact one of the persons/offices listed in Section II below – regardless of when or where the act occurred.  These resources can assist the student in recovering from the experience and in deciding what options may be available, such as the student conduct process, the criminal justice system and the civil courts.  Some of these resources may also be available for non-students.

For more information on sexual misconduct, see the Sexual Assault Resources and Education website

As a recipient of federal funds, the College is required to comply with Title IX of the Higher Education Amendments of 1972, 20 U.S.C. § 1681 et seq., which prohibits discrimination on the basis of sex in education programs or activities. Sexual misconduct, as defined in this policy, is a form of sex discrimination prohibited by Title IX. 

In compliance with Title IX, the College provides a procedure (described below) for reporting, investigating and adjudicating sexual misconduct committed by students.  (Students experiencing sexual misconduct committed by a university employee or third party should contact the Dean of Students or the [[klboyc,College’s Title IX Coordinator]] for information about applicable complaint procedures.)  Although the College encourages students to use College procedures, students may also file a Title IX complaint with the Office of Civil Rights of the U.S. Department of Education.

Anonymity and Confidentiality; Students Who Do Not Want to Take Formal Action or Pursue Conduct Charges

Students or others who are not sure whether they want to make a complaint should still seek help from the resources listed below.  Contacting the Dean of Students Office or another campus resource does not mean that the student must file an official report with the College or report the assault to law enforcement.  These resources are provided to offer non-judgmental support and information to help the student decide what is best for him or her as he or she recovers. 

The College makes every effort to protect students’ privacy and confidentiality. Information reported will be shared only on a need-to-know basis, and after consultation with the reporting student.  The College also takes steps to protect students against further misconduct, including retaliation, as described below.  If a student (or other person) informs a campus resource of an incident of sexual violence or other form of sexual harassment, the College may need to investigate and take appropriate action to fulfill its Title IX obligation to provide a non-discriminatory environment, even if the student wishes to remain anonymous or not to pursue a conduct charge. [FN1]

Amnesty from Student Discipline for the Reporting Party

Assisting students who are reporting sexual misconduct is the College’s primary interest.  In order to facilitate reporting, the Dean of Students may choose not to charge students who report sexual misconduct and any material witnesses with Code of Conduct violations for behavior that otherwise would be considered violations (for example consuming alcohol underage or consuming illegal drugs).

Protecting Students Reporting Sexual Misconduct

When a student reports sexual misconduct to any campus resource, that resource will work with the Dean of Students Office to make sure the reporting student is protected (such as against further misconduct).  The Dean will consult with the reporting party regarding protective measures such as changes to College housing and/or academic schedules, removing the student’s information from the College directory, and issuing a “no contact order.”  The Office of the Dean of Students will enforce protective measures under the Code of Conduct.

II.    RESOURCES
On-Campus Resources

Senior Assistant Dean of Students, Donna Haygood-Jackson

  • Coordinates services and provides support for individuals who have been sexually assaulted.M/li>
  • Meets with sexual misconduct survivors or friends of survivors who have questions or need more information about sexual assault and intimate partner violence.
  • Provides written and online resources for students.
  • Phone: 757-221-2510
  • Email: [[dghayg]]

Residence Life (Resident Advisors, Hall Directors, and Area Directors)

  • Provide assistance and information regarding resources and options for students.

The Office of the Dean of Students [FN2]

  • Assists with the academic-related needs of students who have experienced sexual misconduct.
  • May provide changes to academic and living situations and will notify the student as to what changes are reasonably available.
  • Provides information about student conduct process, legal and criminal options, and other possible remedies.
  • Phone: 757-221-2510
  • Email: [[deanofstudents]]

William & Mary Police (WMPD)

  • Accept formal reports from persons alleging assault and attend to the person’s immediate safety concerns.
  • Provide referrals to appropriate resources such as counseling and academic support, and facilitate changes in living arrangements.

Title IX Coordinator, Kiersten Boyce

  • Provides information about rights and responsibilities concerning discriminatory behavior, including the application of Title IX.
  • Answers questions about the university’s compliance with Title IX.
  • Address:
    108 James Blair Hall
    College of William & Mary
    P.O. Box 8795
    Williamsburg, Virginia
  • Phone: 757-221-2743
  • Email: [[klboyc]]

William & Mary Counseling Center

  • Assists the needs of students who have experienced sexual misconduct by providing personal counseling and support.
  • Phone:  757-221-3620

Student Health Center

  • Assists with the medical needs of students who have experienced sexual misconduct by providing examination, consultation, and treatment.
  • Phone:  757-221-4386
  • Email:  [[sthlth]]
Off-Campus Resources

Avalon: A Center for Women and Children

  • A local non-profit agency that assists survivors of sexual and intimate partner violence by providing free services such as counseling and emergency shelter.
  • Hotline:  757-258-5051 (24-hours/day)
  • Website: http://avaloncenter.org/

James City County Victim/Witness Assistance

  • Assists victims/witnesses involved in the criminal justice process by better educating them about court processes and available services as well as keeping them up-to-date and informed on the status of individual cases.
  • Phone:  757-253-8677
Hospital Emergency Roomfn

Sentara Regional Medical Center (Williamsburg) and Riverside Hospital (Newport News) are the nearest hospitals with a SANE Nurse (Sexual Assault Nurse Examiner) on staff.  If sexual misconduct occurred within the last 72 hours, a SANE Nurse can collect forensic evidence for use in a possible criminal investigation.  Having evidence collected does not mean that the student has to make a decision about whether to report the assault at that time.  The student can request an anonymous Physical Evidence Recovery Kit (PERK) and make the decision to report the assault when he/she is ready.  The PERK can be stored for a year while the student decides.  If the student decides to go to the hospital, he or she should consider contacting an advocate so that the student has the information needed to make the choices that are right for him/her.

III.    OVERVIEW AND PURPOSE OF SEXUAL MISCONDUCT POLICY.

Our community of trust requires that students treat one another with respect, dignity and fairness.  In an intimate relationship, these values are of paramount importance.  Sexual misconduct, as defined by this policy, includes a broad range of behavior such as inappropriate physical touching, sexual exploitation, and sexual intercourse without consent and other forms of sexual violence.  Sexual misconduct may be a crime.

The College is committed to maintaining an environment that is free from sexual violence and in which the freedom to make individual choices regarding sexual behavior is respected by all.  Sexual intimacy requires effective consent (as defined in Section III.B).  Sexual misconduct by anyone is unacceptable and will be addressed in a timely fashion and with serious consequences by the College.

This policy and procedure are the university’s grievance procedure required by Title IX.  This policy and procedure are designed to provide students charged with sexual misconduct with due process while ensuring a reporting party’s protections under Title IX and providing prompt and equitable resolution of charges.

A.    Violations
Sexual Misconduct is a category of behavior that includes actual or attempted

  1. Sexual harassment,
  2. Non-consensual sexual contact,
  3. Non-consensual sexual intercourse, and
  4. Sexual exploitation.

Sexual misconduct can occur between strangers or non-strangers, including people involved in an intimate or sexual relationship. Sexual misconduct can be committed by males or by females, and it can occur between people of the same or different sex. Sexual violence is also sexual misconduct.


Sexual Harassment is defined by University policy as unwelcome  conduct,[FN3] including sexual violence, when

  • Submission to such conduct is made or threatened to be made a term or condition of employment, education, or participation in a College activity, such as admission into a class or program;  or
  • Submission to or rejection of such conduct is used or threatened to be used as a factor in a decision affecting employment, education, or participation in a College activity, such as a student’s grade.[FN4]

Another form of sexual harassment is unwelcome conduct based on sex or gender that unreasonably interferes with a student’s academic (or work) performance or living conditions, or creates an intimidating, hostile, or offensive environment.  This form of harassment may include conduct based on sex that is not sexual in nature.  Each situation is considered in context to determine if sexual harassment has occurred.  Conduct must be severe or pervasive in order to create a hostile environment; conduct may be inappropriate, offensive or hurtful yet not be sexual harassment.  

Non-Consensual Sexual Contact is either of the following without effective consent (see below for the definition of consent):

  • deliberately touching a person’s intimate parts (including genitalia, groin, breast or buttocks, or clothing covering any of those areas), or
  • using force or threat of force to cause a person to touch his or her own or another person’s intimate parts.

Non-Consensual Sexual Intercourse is the penetration (anal, oral or vaginal) by a penis, tongue, finger, or an inanimate object without effective consent. 

Sexual Exploitation is taking sexual advantage of another person without effective consent and includes, without limitation, causing the incapacitation of another person for a sexual purpose; causing the prostitution of another person; electronically recording, photographing, or transmitting intimate or sexual utterances, sounds or images of another person; allowing third parties to observe sexual acts; engaging in voyeurism; distributing intimate or sexual information about another person; and/or knowingly transmitting a sexually transmitted infection, including HIV, to another person.

B.    Effective Consent and Incapacitation

Effective Consent for Sexual Activity
Students choosing to engage in any form of sexual activity – from touching or kissing to intercourse – must obtain consent from their partner(s) prior to engaging in such activity. 

Consent for sexual activity can only be obtained in situations where all people involved have equal power in deciding what will and will not happen during an encounter.  Getting consent is an active process that involves clearly communicating intentions and desires.  Consent for sexual activity is based on the mutual understanding and respect of all people involved for the desires and wishes of their partner(s).  Consent is informed, with all people involved having the information relevant to the sexual activity in question.  Consent:

  • Is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested an understandable agreement between them to do the same thing, in the same way, at the same time and with one another[FN5]
  • Is not merely the absence of a verbally stated “no”
  • Is never final or irrevocable
  • Is time-limited and situation-specific; even if someone obtained consent from a partner(s) in the past, this does not mean that consent is automatically granted again
  • Can only be given by someone who is free from verbal or physical pressure, coercion, intimidation, threat, or force
  • Can only be given by someone in an unimpaired state of mind who is able to understand what is happening; consent is not valid if the party from whom consent is sought is impaired by the use of alcohol or drugs, if the party is asleep, passed out or unconscious.

The use of drugs or alcohol is not an excuse for failing to obtain consent for sexual activity. 

Incapacitation
One who is incapacitated cannot provide effective consent.  Incapacitation is the physical and/or mental inability to make informed, rational judgments. States of incapacitation include, without limitation, sleep, and blackouts. Where alcohol or drugs are involved, incapacitation is a state beyond drunkenness or intoxication, and is defined with respect to how the alcohol consumed impacts a person’s decision-making capacity, awareness of consequences, and ability to make fully informed judgments.[FN6]

C.    Examples of Sexual Misconduct [FN7]

  1. Angela and Aaron have been in an ongoing relationship for a year-and-a-half and have engaged in consensual sexual intercourse. One night while becoming intimate, Angela stops and says she doesn’t feel like having sex that night. Aaron continues to touch her, saying that she got him excited and it wasn’t fair of her to lead him on like that. Again Angela tells him she does not want to have sex, and then is silent. Aaron decides she has given in, and proceeds to have sexual intercourse with her. This is a violation of the Sexual Misconduct Policy. Aaron had sexual intercourse with Angela against her will. The fact that Angela has freely consented to sexual intercourse with Aaron in the past does NOT mean he has her consent in this situation.
  2. Sasha is dancing with Miguel, a student she knows from her chemistry class, at a crowded party.  After dancing for a while, Miguel kisses Sasha, and she kisses him back.  A short time later, Miguel moves his hands to Sasha’s buttocks. She tells him to stop, saying she doesn’t want to be touched in that way and that he should have more respect for her. He laughs, tells her she takes herself too seriously, and again begins to grope her. This is a violation of the Sexual Misconduct Policy. Miguel touched Sasha in a sexual way without her consent, and continued to do so after she told him to stop. Even though Sasha appears to have consented to kissing, this consent does not extend to other sexual contact.  This behavior is a form of non-consensual sexual contact.
  3. Kristen and Myra have been intimate for a few weeks. One night, Myra calls Kristen and asks her to come over. When she arrives, Myra kisses Kristen passionately and leads her into the bedroom. They each express their excitement and desire to “hook up,” and are soon making out heavily in Myra’s bed. After a while, Kristen tries to engage in oral sex with Myra. Myra tells Kristen that she really likes her, but that she doesn’t feel ready for that. Kristen tells Myra she’s just being shy, and ignores her when she repeats that she doesn’t feel ready. Finally, Kristen threatens to reveal on the Internet that Myra is a lesbian. Because Myra has not yet come out to her friends and family, she becomes frightened and silent. Kristen proceeds with oral sex. This is a violation of the Sexual Misconduct Policy. Because of Kristen’s manipulative and threatening arguments, Myra was afraid and unable to freely give her consent. Kristen did not receive consent from Myra and has committed non-consensual sexual intercourse.
  4. Liz and Kwan have been together for six months. She often tells her friends stories of Kwan’s sexual prowess, and decided to prove it to them. One night, she and Kwan engage in consensual sexual intercourse. Without Kwan’s knowledge, Liz sets up her digital camera to videotape them having sex. The next evening, she uploads the video to an online video-sharing site and discusses it with her friends online. This is a violation of the Sexual Misconduct Policy. Kwan’s consent to engage in sexual intercourse with Liz did NOT mean Liz had obtained his consent to videotape it. This is a form of sexual exploitation.
  5. Andrew and Felix have been flirting with each other all night at a party. Around 12:30 a.m., Felix excuses himself to find a bathroom. Andrew notices Felix slurring his speech. Andrew wonders if Felix went to the bathroom to vomit. When Felix returns, the two begin flirting more heavily and move to a couch. As the conversation continues, the two become more relaxed and more physically affectionate. Andrew soon suggests they go back to his room, and Felix agrees. As they walk down the stairs, Andrew notices that Felix looks unstable and offers his arm for support and balance. When they get back to his room, Andrew leads Felix to the bed and they begin to become intimate. Felix becomes increasingly passive and appears disoriented. Andrew soon begins to have sexual intercourse with him. The next morning, Felix thinks they had sex but cannot piece together the events leading up to it. This is a violation of the Sexual Misconduct Policy. Felix was clearly under the influence of alcohol and thus unable to freely consent to engage in sexual activity with Andrew. Although Andrew may not have known how much alcohol Felix had consumed, he saw indicators from which a reasonable person would conclude that Felix was intoxicated, and therefore unable to give consent. Andrew in no way obtained consent from Felix for sexual intercourse.
  6. Denise is an undergraduate teaching assistant in Paul’s economics class. She notes that he has not been performing well on take-home assignments and exams. Both of them have come to tailgate, each with their own group of friends. Denise has consumed one can of beer, while Paul is rather intoxicated. Denise sees Paul and approaches him. She flirts with him, telling him that she can help him improve his grades if he will hook-up with her. As Paul turns to walk away, Denise grabs his buttocks and squeezes them. This is a violation of the Sexual Misconduct policy. Denise, in a position of power over Paul as his teaching assistant, attempted to arrange a quid pro quo sexual relationship. Additionally, she did not seek consent from Paul to touch him, even if a reasonable person could conclude that Paul was not too intoxicated in order to provide consent. Denise has sexually harassed Paul.
IV.    PROCEDURAL CONSIDERATIONS

Who May Report an Alleged Violation.
Any person may file a report of sexual misconduct against a William & Mary student or student organization under this Policy. See Section I. of the Code of Conduct for information about the definition of “student.” If the report is alleging misconduct by a person who is not a student, the Dean of Students can provide assistance with reporting and addressing the alleged misconduct.

A.  Geographic Jurisdiction. This policy applies to any allegation of Sexual Misconduct against a student, regardless of where the alleged misconduct occurred.

B.   Timing of Reports and Availability of Procedures. As long as the College has jurisdiction over the reported student, there is no time limit to invoking this policy in cases of alleged sexual misconduct. Nevertheless, persons are encouraged to report alleged sexual misconduct as soon as possible in order to maximize the College’s ability to respond promptly and effectively. 

Where the charged party is a degree candidate, the reporting party is encouraged to consult with the Office of the Dean of Students concerning the charged party’s intended date of graduation and to file a report in a timely manner in cases where authority over the student would otherwise be lost due to pending graduation. In no circumstances will the College permit an impending graduation to compromise its processes for resolution. The conferral of a degree may therefore be held, if necessary, until proper resolution of any sexual misconduct charges, provided that a hearing opportunity will be scheduled for the earliest practicable date that can accommodate the parties and their witnesses.

C.  Retaliation.  It is a violation of College policy to retaliate against any person making a report of sexual misconduct or against any person cooperating in the investigation of (including testifying as a witness to) any allegation of sexual misconduct. “Retaliation” includes intimidation, threats, or harassment against any such reporting party or third party. Retaliation should be reported promptly to the Dean and may result in disciplinary action independent of the sanction or interim measures imposed in response to the underlying allegations of sexual misconduct.

For more information, including examples of retaliation, please visit the College’s Compliance website

D.  Standard of Proof.  The Department of Education’s Office of Civil Rights has interpreted Title IX to require schools to evaluate reports of alleged sexual misconduct under a “preponderance of the evidence” standard and that is the standard adopted by this Policy. A preponderance of the evidence exists when a reasonable person, after a careful balancing of available information, would conclude a violation has occurred and the student/organization charged is responsible for the violation.

E.  Sanctions. 

  1. Primary Sanctions for Sexual Harassment, Non-Consensual Sexual Contact and Sexual Exploitation range from probation to permanent dismissal.
  2. Primary Sanctions for Non-Consensual Sexual Intercourse range from Suspension to Permanent Dismissal.

F.  Related Misconduct.  In accordance with this Policy, the Sexual Misconduct Hearing Board is empowered to hear allegations of, and to impose sanctions for, sexual misconduct and any violations of the College’s Student Code of Conduct pending against the charged party directly related to the alleged sexual misconduct or any alleged violations of this Policy.

Students who appear before the Sexual Misconduct Hearing Board, whether as parties to the proceedings or as witnesses, are expected to provide truthful testimony in accordance with the College’s Honor Code.

G.  Effect of Criminal Proceedings.  Because sexual misconduct may constitute both a violation of College policy and criminal activity, the College encourages persons to report alleged sexual misconduct promptly to campus or local law enforcement agencies. Criminal investigations may be useful in the gathering of relevant evidence, particularly forensic evidence. Because the standards for finding a violation of criminal law are different from the standards for finding a violation of this Policy, criminal investigations or reports are not determinative of whether sexual misconduct, for purposes of this Policy, has occurred. In other words, conduct may constitute sexual misconduct under this Policy even if it is not a crime or law enforcement agencies lack sufficient evidence of a crime and therefore decline to prosecute. In such cases, the reporting party may not initially understand the results of the criminal investigation, the nature of criminal procedure, or the grounds for the law enforcement decision not to prosecute. The reporting party in such cases may request that the Dean identify a senior member of the Dean of Students Office to assist him or her in seeking and attending a meeting with the local prosecutor to gain an understanding of the decision to decline a prosecution.

The filing of a report of sexual misconduct under this Policy is independent of any criminal investigation or proceeding, and (except that the College’s investigation may be delayed temporarily while the criminal investigators are gathering evidence) the College 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 College community, if necessary.

H.  Modified Procedures for Alleged Violations of the Sexual Misconduct Policy. With the exceptions below, the investigation and adjudication of reports of sexual misconduct is governed by the policies set forth in Section VI of the Code of Conduct.

i.    For sexual misconduct cases, the College’s investigation of the report (including all investigation required to prepare formal charges, if any) will be completed within 60 days, unless the Vice President for Student Affairs grants an extension for good cause.  If a case of alleged sexual misconduct is not resolved informally, the matter will be scheduled for a hearing before the Sexual Misconduct Hearing seBoard. 

ii.    The Sexual Misconduct Hearing Board is comprised of one student (one of the two Student Conduct Council co-chairs or, in the cases of a graduate or professional student, a graduate member of the Student Conduct Council) and two members of the administrative staff appointed by the Dean of Students or designee, one male and one female.

iii.    The reporting party may have a silent supporter of his/her choosing present at the hearing. The supporter will not participate in the hearing process and will be bound by the rules of confidentiality governing the hearing.

iv.    The reporting party is permitted, but not required, to be present throughout the hearing. The reporting party, the charged party, and case administrator may not ask repetitive questions of any witness. Upon prior consultation, either the reporting party or the case administrator may make summary comments in the hearing.

v.     Both parties have a right not to have their unrelated past sexual histories discussed in the hearing. The hearing officers or chair of the Conduct Board will determine whether proposed testimony regarding past sexual history between the parties is related to the case at issue and may be introduced during the hearing.

vi.    The reporting party may choose to be physically separated from the charged party during hearing proceedings. This choice should be made at least two working days prior to the hearing.

vii.    The Dean of Students will review all evidence submitted to the Sexual Misconduct Hearing Board to determine whether remedial or protective action (such as changes to a student’s on campus living arrangements) is appropriate.

viii.    The Dean of Students or designee will provide the reporting party with notification of the outcome of a conduct proceeding and any sanction(s) imposed at approximately the same time notice is provided to the charged party.

ix.        The reporting party has right of appeal (see Section VIII. of the Code of Conduct).

VI.     AMENDMENTS

This Policy may be amended, in writing, by the President.

This document is adapted with permission from the University of Virginia’s Policy and Procedures for Sexual Misconduct Complaints.

FN1: Title IX requires the College to provide a non-discriminatory environment for all students. Accordingly, if a reported act of sexual misconduct indicates that this environment may be compromised, the Dean of Students Office may conduct a preliminary investigation into the alleged sexual misconduct and may weigh a student’s request for anonymity against the following factors: the seriousness of the alleged conduct; whether there have been other complaints of sexual misconduct against the same student; and the  right of the student alleged to have committed sexual misconduct to receive information about the allegations if the information is maintained by the College as an “education record” under FERPA. The Dean of Students will inform the reporting party if the College cannot ensure absolute privacy.
FN2:
The Dean of Students acts as Deputy Title IX Coordinator in sexual misconduct matters involving students.
FN3: Conduct can be verbal, physical, or written, and if written, may be communicated in different ways such as email or text messaging.
FN4: This form of sexual harassment is known as “quid pro quo” harassment.
FN5: Sokolow, Brett A.  NCHERM The Sexual Misconduct Judicial Training Manual. 2001, p.55.
FN6:
Sokolow, Brett A., Lewis, W. Scott, Schuster, Saundra K., NCHERM Institute on Responding to Campus Sexual Misconduct. 2010, p. 49.
FN7: Examples are adapted with permission from Duke University’s Sexual Misconduct Policy.