Policy Prohibiting Sexual Harassment, Gender-Based Harassment and Sexual Misconduct

Title:  Policy Prohibiting Sexual Harassment, Gender-Based Harassment and Sexual Misconduct
Effective Date: August 2011
Revision Date: September 30, 2019
Responsible Office: Dean of Students/Compliance & Equity

Table of Contents:

I. Scope
II. Purpose
III. Definitions

IV. Reporting Matters

A. Internal Reports
B. Confidential Reports
C. Reports to External Agencies
D. Requests Not to Investigate
E. Amnesty from Student Discipline

V. Examples of Policy Violations
VI. Enforcement; Complaint/Investigation Procedures
VII. Approval and Amendment
VIII. Related Documents, Policies, and Procedures

I. Scope

This policy applies to William & Mary as a whole university, including the Virginia Institute of Marine Science. It applies to all members of the university community, including faculty and other employees and students.[1]  This policy also applies to contractors, vendors, and other third parties.[2]  It is William & Mary policy to prohibit acts of discrimination, harassment and retaliation as described herein and in the Discrimination, Harassment and Retaliation Policy and the Violence and Threat Management Policy.  Those policies and all related procedures collectively define conduct expectations for students, employees and third parties and provide notice of the applicable university response. 

Officially recognized organizations, such as student organizations, are subject to this policy provided that, to the extent permitted by law, social organizations such as fraternities and sororities may restrict membership to members of the same sex, and organizations whose primary purpose is religious or political may restrict their membership to those members of the university community who have similar beliefs or political affiliations.[3] 

This policy prohibits misconduct by students, employees and third parties when such conduct:

  • occurs on campus or property owned or controlled by the university (university property);
  • occurs in the context of a university employment or educational program or activity including, but not limited to, university-sponsored study abroad, research, or internship programs;
  • uses university resources, such as workplace telephones or e-mail; or
  • has continuing adverse effects on or poses a substantial risk of creating a hostile environment for members of the campus community while on university property or in any university program or activity.

This policy is not intended, and may not be applied, to abridge free speech or other civil rights of any individual or group. Speech and expressive conduct may, however, violate this policy; for example, offensive speech that creates a hostile environment may be prohibited sexual harassment.  This policy is not meant to prohibit academic freedom, including classroom discussion of controversial matters and research activities.[4]  

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II. Purpose

Our community of trust requires that its members treat one another with respect, dignity, and fairness. This policy is designed to foster a safe environment for the members of the William & Mary community.

This policy helps William & Mary comply with federal and state laws, including Title IX of the Higher Education Amendments of 1972,[5] which prohibits discrimination on the basis of sex (including sexual violence) in education programs or activities, Title VII of the Civil Rights Act of 1964,[6]] which prohibits employment discrimination on the basis of sex, and the Violence Against Women Reauthorization Act of 2013 (VAWA), which amended the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (the Clery Act) and requires institutions to prohibit dating violence, domestic violence, sexual assault and stalking.[7]  It also helps implement William & Mary’s Discrimination, Harassment and Retaliation Policy, by defining in detail sexual violence and certain other types of sexual harassment, and the Violence and Threat Management Policy.

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III. Definitions

The university is committed to maintaining an environment that is free from sex- or gender-based discrimination, harassment or violence and in which sexual and gender identity and the freedom to make individual choices regarding sexual behavior is respected by all.

Sexual harassment or sexual misconduct by anyone is prohibited.  It will be addressed in a prompt, equitable manner in accordance with this policy and the applicable procedure.

The university carefully defines the different types of sexual misconduct to help ensure compliance with the Clery Act, Title IX, and FERPA (the Family Educational Rights and Privacy Act) and the Code of Virginia.  The federal laws work together to specify when and what information the university can or must provide to students experiencing or accused of sexual misconduct.[8]  The Code of Virginia stipulates what information the university can share with local law enforcement, Commonwealth Attorneys, and on academic transcripts.

Sexual Harassment is unwelcome conduct based on sex. It includes unwelcome sexual advance, request for sexual favor, or other unwanted conduct of a sexual nature, whether verbal, non-verbal, graphic, physical or otherwise, when it either creates a hostile environment or constitutes “quid pro quo” harassment. 

Gender-Based Harassment includes harassment based on gender, sexual orientation, gender identity, or gender expression, which may include acts of aggression, intimidation, or hostility, whether verbal or non-verbal, graphic, physical or other, even if the acts do not involve conduct of a sexual nature when it either creates a hostile environment or constitutes “quid pro quo” harassment.

Hostile Environment exists when the conduct is sufficiently severe, persistent or pervasive such that it unreasonably interferes with, limits, or deprives an individual from participating in or benefiting from the university’s education programs and/or activities[9].  Conduct must be deemed severe, persistent, or pervasive from both a subjective and an objective perspective.  In evaluating whether a hostile environment exists, the university will consider the totality of known circumstances, including, but not limited to:

  • The frequency, nature and severity of the conduct;
  • Whether the conduct was physically threatening;
  • The effect of the conduct on the Complainant’s mental or emotional state;
  • Whether conduct was directed at more than one person;
  • Whether the conduct arose in the context of other discriminatory conduct;
  • Whether the conduct unreasonably interfered with the Complainant’s educational or work performance and/or University programs or activities; and
  • Whether the conduct implicates concerns related to academic freedom or protected speech.

Quid Pro Quo Harassment is when submission to or rejection of sexual conduct is a term or condition of a person’s employment, academic standing, or participation in any university education programs and/or activities or is used as the basis for decisions affecting the individual.

Sexual Misconduct is actual or attempted:

  1. Sexual assault
  2. Relationship violence (domestic or dating violence)
  3. Sexual exploitation
  1. Stalking[10]

In many cases, sexual misconduct is a form of sexual harassment.[11] Certain forms of sexual misconduct constitute “sexual violence” for purposes of state laws requiring reporting and transcript notations.[12]  Certain forms of sexual misconduct are also crimes.  This policy sets a standard above that demanded by criminal law.    

For additional guidance regarding the types of misconduct prohibited by this policy, please review the examples provided in Section V. 

  1. Sexual Assault most commonly is non-consensual sexual intercourse or fondling. Certain sexual acts prohibited by Virginia law -- namely, statutory rape[13] and incest[14] – also are sexual assault. 

                       a. Non-Consensual Sexual Intercourse is anal or vaginal penetration, no matter how slight, by   any body part or object, without effective consent; oral penetration by a penis, without effective consent.  

                       b. Fondling is touching, massaging, caressing, stroking or rubbing of a person’s intimate body     parts (including genitalia, groin, breast or buttocks, or clothing covering any of those areas) for the purpose of sexual gratification, without effective consent.[15] Using force or threat of force to cause a person to touch that person’s own or another person’s intimate parts is also fondling.[16]

  1. Relationship violence is physical or sexual violence or the threat of such violence[17],[18] between people who are in or have been in a romantic, intimate, or familial relationship or a pattern of abusive behavior used by an intimate partner to gain or maintain power and control over the other intimate partner.  Patterns of behavior can be in the form of psychological, emotional/verbal, financial, academic, and/or technological abuse.    Domestic violence[19]  and dating violence[20] are the two forms of relationship violence.
  2. Sexual Exploitation is taking sexual advantage of another person without effective consent by causing the incapacitation of another person for a sexual purpose; causing the prostitution of another person; electronically recording, photographing, or transmitting intimate or sexual information about a person; allowing third parties to observe sexual acts; engaging in voyeurism; distributing intimate or sexual information about another person; exposing one’s genitals; inducing another to expose their genitals; and/or knowingly transmitting a sexually transmitted infection, including HIV, to another person.[21]
  3. Stalking is defined as engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
                       a. Fear for the person’s safety or the safety of others; or
                       b. Suffer substantial emotional distress. Such distress does not have to be severe enough to require medical or other professional treatment or counseling in order to be substantial emotional distress.

 

Stalking requires two or more acts, including but not limited to, acts in which the stalker directly, or through third parties, by any action, method, device, or means follows, monitors, surveils, threatens, or communicates, to or about, a person, or interferes with a person’s property.  Examples of behaviors that may, by themselves or with other behaviors, constitute stalking include:

  • following or pursuing
  • waiting or showing up uninvited at a person’s workplace or home
  • surveillance, whether physically or through electronic means
  • non-consensual communications including social networking site postings.
  1. Related Definitions: Consent, Force, Incapacitation, Retaliation

Members of the university community 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.  Appendix A provides guidance on obtaining consent and exercising caution when consumption of alcohol or drugs occurs.   

Consent is Active, Voluntary, Informed:

  • Active – through clear words or actions, a person has indicated permission to engage in mutually agreed upon sexual activity. Sex is something you participate in -- not something that happens to you.
  • Voluntary – freely given.
  • Informed – knowing and aware.

Consent is NOT:

  • Merely a lack of protest or lack of resistance. Silence and/or passivity also do not convey consent.
  • Something to be assumed. Consent to sexual activity once does not imply consent another time. Nor does consent to one type of sexual activity mean consent to another.
  • Valid if any force is used. 
  • Valid if the person consenting is incapacitated. Someone who is incapacitated cannot consent.   

A person’s belief that another person consented is not valid when:

  • The belief arose from the person’s own intoxication or recklessness; or
  • The person knew the other person was incapacitated (as defined below; or
  • A reasonable person, in the circumstances, should have known that the other person was incapacitated (as defined below).

Consent is specificConsent to one form of sexual activity does not constitute consent to another form of sexual activity. For example:  

  • Consent to oral-genital contact does not constitute consent to vaginal or anal penetration;
  • Consent to sexual activity on one occasion does not, by itself, constitute consent to future sexual activity.

Consent is revocable

  • Consent may be withdrawn at any time, for any reason, even after sexual activity has begun.
  • Previously-given consent may be withdrawn by communicating through clear words or actions a decision to stop (or not engage in) the sexual activity.
  • Once consent is withdrawn, the other person must cease sexual activity immediately and may not apply undue pressure on the person who withdrew consent (coercion).

Consent obtained by force is invalid.

Force includes physical violence, threats, intimidation and/or coercion:

Physical violence includes hitting, punching, slapping, kicking, restraining, strangling, and brandishing or using any weapon.

Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples include threats to harm oneself or another person physically, to reveal private information to harm a person’s reputation, or to cause a person academic or economic harm.

Intimidation is an implied threat that causes reasonable fear in another person. A person’s size, alone, does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g., blocking access to an exit).

Coercion is an unreasonable amount of pressure on someone to:

  • participate in a particular form of sexual activity,
  • change their mind after they asked to stop or have indicated lack of consent previously,
  • change their mind about what point of sexual activity they are stopping at.

Coercion is more than an effort to persuade, entice, or attract another person to have sex. In evaluating whether coercion was used, the university will consider: (i) the frequency of the application of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, (iv) the duration of the pressure, and (v) any power differential between the parties.

Incapacitation.  Incapacitation is the physical and/or mental inability to make informed, rational judgments about whether or not to engage in sexual activity.  Someone who is incapacitated cannot give consent and any consent that is given is considered invalid due to incapacitation. 

An individual’s incapacitation may be due to:

  • Alcohol or drugs;
  • Sleep or unconsciousness; or
  • An intellectual or other disability.

Not all changes in emotional or mental state, however, constitute incapacitation. Someone who is upset, tired, or intoxicated (for example) may make different choices than they would when they were in a calm, rested, or sober state, but that does not mean that they lack capacity to give consent.  Alcohol consumption, particularly rapid consumption or consumption together with other drugs, can prevent the formation of long-term memories (“blackout”); someone who (temporarily) cannot form long-term memories may or may not have the capacity to consent.  

In situations where both parties raise concerns regarding consent due to incapacitation, the university evaluates factors such as: 

  • When and in what context the concerns were raised
  • How the sexual activity was initiated
  • The degree to which aggression was applied and/or
  • The level of a party’s control or capacity

If someone is incapacitated, any initiation of sexual activity by this person does not constitute consent. 

In evaluating consent in cases of alleged incapacitation, the university asks two questions: (1) Did the respondent know that the reporting party was incapacitated? and if not, (2) Would a sober, reasonable person in the same situation have known that the reporting party was incapacitated? If the answer to either of these questions is “YES,” consent was invalid and the conduct is likely a violation of this policy.

Retaliation is any adverse action taken by a respondent or allied third party against a person because the person made a good faith report of sexual or gender-based harassment or sexual misconduct, or the person is involved in or participated in an investigation or proceeding of such reported allegation under this policy.  Retaliation includes, but is not limited to, threatening, intimidating, harassing, coercing or any other conduct that would deter a reasonable person from engaging in activity protected under this policy. 

Retaliation is prohibited.  Separate disciplinary action shall be imposed if there is a finding of responsibility for retaliation.   Retaliation may be present even where there is a finding of “no responsibility” on the allegations of sexual or gender-based harassment or sexual misconduct. Retaliation does not include good faith actions lawfully pursued in response to a report of sexual or gender-based harassment or sexual misconduct or adverse actions taken for legitimate non-discriminatory purposes (e.g. employee discipline for tardiness, student honor code charges for separate plagiarism incident). 

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IV. Reporting Matters

A. Internal Reports

Reporting sexual misconduct allows William & Mary to take prompt, interim measures, to protect and support individuals in their educational or work environments. Interim measures may be taken even if the reporting party does not want to initiate a university administrative process or a criminal process.  Additional information about interim measures is provided in the relevant investigation procedures.[22]

Reports of sexual harassment, gender-based harassment and sexual misconduct may be made to:

Pamela Mason, J.D., CCEP 
Chief Compliance Officer/Title IX Coordinator
109 James Blair Hall 
William & Mary 
Williamsburg, VA 23185 
757-221-2743
equity@wm.edu

Employees (faculty, staff and certain student employees, e.g. resident assistants, teaching assistants) who are designated “Responsible Employees”[23] are required to report conduct prohibited by this policy directly to the Title IX Coordinator. Students or employees who have themselves experienced misconduct may, but are not required to, report sexual harassment, gender-based harassment or sexual misconduct to the Title IX Coordinator.  Methods of reporting include:

  1. Online reports

William & Mary's online reporting portal provides options for anyone to report a sexual harassment, gender-based harassment or sexual misconduct concern.

  • Reports involving a student as either a complainant or accused (e.g. student to student; student – employee/3rd party contractor; employee/3rd party contractor – student):

http://www.wm.edu/titleix/form.

  • Reports involving only employees/3rd party contractor as complainant and accused:
Coming soon

                 

  1. In-person or written reports (mail or email)

Reports relating to students:
Dean of Students
Campus Center, Room 109
William & Mary 
P.O. Box 8795
Williamsburg, Virginia 23187
deanofstudents@wm.edu

Reports relating to students or employees:  Office of Compliance & Equity
James Blair Hall Suite 110
William & Mary 
P.O. Box 8795
Williamsburg, Virginia 23187
equity@wm.edu

  1. Anonymous reports

Anonymous reports as well as partial disclosure reports of incidents involving students may be made by non-mandatory reporters online

Anonymous reports or partial disclosure reports of incidents involving students or employees made by non-mandatory reporters may be filed physically using the secure dropbox located outside of the Office of Compliance & Equity on the first floor of James Blair Hall.   

William & Mary Police may accept anonymous reports of sexual assault, which will be included in the university's crime statistics if appropriate under the Clery Act.   The Police can also assist survivors with the process of having physical evidence collected (PERK), anonymously, and maintained.  This gives survivors the option of later deciding whether and how to use such evidence.  Please note that if you provide the Police with specific information, such as names, they will be obligated to share that information with the Title IX Coordinator.  William & Mary Police dispatch can be contacted at (757) 221-4596 or in person at 201 Ukrop Way.

  1. Reports to the police

Sexual assault and some other forms of sexual misconduct are crimes, and may be reported to law enforcement for investigation.  The reports may be made instead of or in addition to reports made to the university administration.  A survivor may choose to pursue one or both options.   William & Mary staff members can help students file a criminal complaint, if desired.   

B. Confidential Reports 

For Students: 

Students who are not sure whether they want to make a formal complaint are encouraged to seek help from the Haven.  The Haven can provide confidential support, information and resources to help a survivor access mental health services and understand the options available to them.

The Haven
Campus Center 166
(757) 221-2449
thehaven@wm.edu

Liz Cascone, Director,

The Haven
Campus Center 167
(757) 221-7478
lizcascone@wm.edu

Other confidential resources for students on campus are: 

William & Mary Counseling Center
McLeod Tyler Wellness Center, 2nd Floor
(757) 221-3620 

Student Health Center
McLeod Tyler Wellness Center, 1st Floor
(757) 221-4386 

Graduate Ombuds (for graduate students)
Phil Daileader
James Blair 342
phdail@wm.edu

 

International Travel & Security Manager (for international students or students participating in international programs; Note, this person is not a confidential resource for sexual violence)

Nick Vasquez
Reves Center 222
(757) 221-1146
snvasquez@wm.edu   

For Employees:

The University Ombuds
Hornsby House 336
(757) 221-1941
ombuds@wm.edu

C. Reports to External Agencies

Individuals experiencing harassment or discrimination also have the right to file a formal grievance with government authorities.  Information about the different state and federal governmental agencies, which laws they enforce, and what types of complaints they handle is provided in Appendix B.

D. Requests Not to Investigate

Typically, the university will not begin an administrative investigation or make a referral to law enforcement without the consent or involvement of the reporting party, but the university must consider its obligation to other students or employees and the campus community.[24] In addition, Virginia law requires the university to report sexual violence incidents to law enforcement and/or the relevant prosecutor, in certain circumstances.[25] 

The university makes every effort to protect the privacy and confidentiality of people who report or are named in a report of sexual misconduct. Information reported will be shared only on a need-to-know basis. The university also takes steps to protect members of its community against further misconduct, including retaliation.  Confidentiality and retaliation protections exist in part to help encourage people who experience misconduct to come forward.  For people who remain concerned about personal disclosures or who do not want investigation to occur there are options:

  • If you have experienced misconduct yourself, you can make an anonymous report (Section IV.A.3)
  • If you are a student who is not a mandatory reporter because of your student employment role (e.g. resident assistant, teaching assistant), you can make a report of misconduct that happened to someone else without disclosing the name of the survivor and/or offender.
  • A person may report sexual misconduct with names, but may request that the name of the survivor of the misconduct remain confidential.
  • A person may also request that the university not take action in response to a sexual misconduct incident of which it becomes aware. The university will consider this request carefully.[26]  
E. Amnesty from Student Discipline 

In order to facilitate full and truthful reporting and witness participation, the Dean of Students generally does not charge parties or material witnesses with Code of Conduct violations for drug or alcohol misconduct, such as consuming alcohol underage or consuming illegal drugs, unless such behavior relates directly to the sexual misconduct allegation.  An example of a Code of Conduct violation that relates directly to a sexual misconduct allegation would be provision of alcohol to an underage reporting party by a respondent, when there is an allegation that the respondent provided the alcohol as a means to facilitate a sexual assault. 

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V. Examples of Policy Violations[27]
  1. Joel is a junior at the university. Beth is a sophomore.  Joel comes to Beth’s room with some mutual friends to watch a movie.  Joel and Beth, who have never met before, are attracted to each other.  After the movie, everyone leaves, and Joel and Beth are alone.  They hit it off and are soon becoming more intimate.  They start to make out.  Joel verbally expresses his desire to have sex with Beth.  Beth, who has suffered from trauma since being sexually abused by a baby-sitter when she was five, is shocked at how quickly things are progressing and says nothing.  As Joel takes her by the wrist over to the bed, lays her down, undresses her, and begins to have intercourse with her, Beth has a severe flashback to her childhood trauma.  She wants to tell Joel to stop, but cannot.  Beth is stiff and unresponsive during the intercourse.  Is this a policy violation? This is a policy violation.  Joel would be held responsible in this scenario for Non Consensual Sexual Intercourse.  It is the duty of the sexual initiator, Joel, to make sure that he has mutually understandable consent to engage in sex.  Though consent need not be verbal, it is the clearest form of consent.  Here, Joel had no verbal or non-verbal mutually-understandable indication from Beth that she consented to sexual intercourse.  Of course, wherever possible, students should attempt to be as clear as possible as to whether or not sexual contact is desired, but students must be aware that for psychological reasons, or because of alcohol or drug use, one’s partner may not be able to provide clear, verbal consent. It is incumbent on Joel to be aware of the body language of Beth that does not signal consent.  As the policy makes clear, consent must be active, knowing and informed.
  2. 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 social media that Myra is a lesbian. Because Myra has not yet come out to her friends and family, she becomes frightened and relents. Kristen proceeds with oral sex. This is a policy violation. Consent cannot be obtained through Force, including threats to reveal private information. Because of Kristen’s manipulative and threatening arguments, Myra was afraid and unable to freely give her consent. Kristen threatened Myra and therefore did not receive effective consent from Myra.
  3. Avery and Kwan have been together for six months. Avery often tells their friends stories of Kwan’s sexual prowess, and decides to prove it to them. One night, they engage in consensual sexual intercourse. Without Kwan’s knowledge, Avery sets up a digital camera to videotape them having sex. The next evening, Avery uploads the video to an online video-sharing site and discusses it with their friends online. This is a policy violation. Kwan’s consent to engage in sexual intercourse with Avery did NOT mean Avery had obtained Kwan’s consent to videotape it. This is a form of sexual exploitation.
  4. Andrew and Felix have been drinking and flirting with each other all night at a party. Andrew notices Felix slurring his speech when he goes to the bathroom and wonders if Felix went there to vomit. When Felix returns, the two drink more alcohol and begin flirting more heavily, and as the conversation continues, the two become more physically affectionate. Andrew soon suggests they go back to his room, and Felix agrees. As they walk, 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. Andrew notices Felix becoming increasingly passive and appearing disoriented, although Felix is telling Andrew he is attracted to him. Andrew begins to have sexual intercourse with Felix. After Andrew climaxes, Felix rolls over and falls asleep almost instantly.

The next morning, Felix wakes up in Andrew’s bed without any clothes on.  He thinks they had sex but cannot piece together the events leading up to it. This is a policy violation. Felix was clearly under the influence of alcohol, and 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 potentially incapacitated due to alcohol, and therefore could be unable to give consent. Andrew in no way obtained consent from Felix for sexual intercourse and Felix’s indication that he was attracted to Andrew does not equate to consent for sexual intercourse.

  1. 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 one 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 policy violation. 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 and fondled him.
  2. Jeff and Michael are neighbors in their residence hall. Michael learns that Jeff is undergoing the transition from identifying as male to female and prefers to be called Becca. Becca begins wearing women’s clothing and starts applying makeup on a regular basis. Michael has never known a transgender person or experienced someone transitioning and Becca makes him uncomfortable. Michael begins muttering slurs whenever they pass each other in the residence hall. Additionally, Michael starts telling his friends on other floors about the “freak living next door,” and tells them to take a look for themselves. They do, a few individually, a few as groups that murmur and snicker to each other when they see Becca.

Becca begins to dread leaving or returning to her room and starts to isolate herself to avoid Michael and his associates. Michael takes pictures of Becca occasionally and shares them with friends through a group chat, with mocking commentary. This is a policy violation. Not only have Michael and his associates created a hostile environment for Becca based on her identification, they also have stalked her.

  1. At a university social function, Jennifer, a campus employee, spends some time talking with her supervisor, Scott.  At one point in the conversation, Scott reaches out and puts his hand on Jennifer’s hip.  Jennifer freezes, completely uncomfortable but is not sure how to proceed.  After a few minutes, Scott takes his hand away and Jennifer ends the conversation and moves away.  Now Jennifer is scared that Scott may make further overtures. Is this a policy violation? A single act of unwelcome sexual conduct can constitute sexual harassment.  This particular act is not severe, but the power differential is an aggravating factor.  Unquestionably, it is inappropriate for a supervisor to touch an employee in this manner and the behavior needs to be stopped.  Depending on where Scott touched Jennifer, this may be fondling - a form of sexual assault.
  2. Shawn is a faculty member in the Biology department and Monica, a currently unemployed IT specialist, is his fiancée. Monica comes to the department chair, whom she has met socially, distraught by Shawn’s recent behavior. Monica says that Shawn has been losing his temper with her, to the point several times of throwing objects angrily.  Last night, she says, Shawn “lost it” and slammed her back against a wall, banging her head and wrenching her neck.  She is scared and doesn’t know what to do.  Has a policy violation occurred?  This behavior violates the policy definition of relationship violence, but may have occurred outside of the scope of the policy.   If Shawn slammed her against the wall on university property, it would be covered by the policy.  Regardless, the conduct as described is criminal.  
  3. Riley and Jordan live on the same hall. Riley is attracted to Jordan, but Jordan doesn’t feel the same way.  Riley pays attention to Jordan and eventually asks Jordan if they want to grab a pita for lunch.  Jordan tells Riley  they are  busy, hoping Riley will take the hint. The next week, Riley texts Jordan asking if they want a coffee.  Jordan ignores the text.  A few days later, a few residents including Jordan and Riley are in the residence lounge, watching videos and studying, and Riley leans in to Jordan, as if for a kiss.  Jordan pulls back and puts a hand up, a stop gesture.  Riley seems embarrassed and backs off.  Jordan raises the situation with their RA, a little concerned.  Is this a policy violation the RA needs to report?  Unwelcome sexual overtures can violate university policy, but not if someone stops when asked, as Riley appears to have done.  If Riley continues in their overtures, it could become pervasive enough to create a hostile environment for Jordan.  Before that happens, the RA or an Area Director could intervene to help Jordan and make sure Riley understands the need to respect Jordan’s choices.  Riley’s behavior also didn’t constitute stalking, because they didn’t cause Elena (or a reasonable person in their position) to fear for their safety or suffer severe emotional distress.

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VI. Enforcement; Complaint/Investigation Procedures

Any person who is found to have violated this policy under the applicable procedure is subject to discipline, up to and including permanent dismissal or termination. Disciplinary action (sanctions) will be taken in accordance with the applicable procedure: 

Both procedures provide for a thorough investigation with equitable rights for all parties to the process.  Both procedures use a preponderance of the evidence (more likely than not) standard.  Appendix C provides important summary information about these procedures. 

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VII. Approval and Amendment

This policy was approved by the President, who has authorized the Title IX Coordinator to make minor, technical amendments to this policy, such as to update contact information.

The policy was amended

  • effective February 6, 2015, with the primary changes being to separate the policy from the procedure and (2) incorporate new definitions of certain types of sexual misconduct to comply with the Violence Against Women Reauthorization Act of 2013 (VAWA). This policy was amended on an interim basis by the President effective August 17, 2015, with the primary changes being (1) expansion of its application to faculty and staff and certain third parties and (2) modifications to the initial review of reports and employee reporting obligations, to comply with state law effective July 1, 2015.  The interim revisions were approved in final policy by the President effective August 19, 2016, in amendments that included revisions to certain definitions and various other minor revisions. 
  • by the President effective October 20, 2017, to revise to make clarifying revisions to the definitions of relationship violence, sexual harassment, consent, and retaliation, and to update contact information.
  • by the Title IX Coordinator April 25, 2018, to update contact information and add hyperlinks.
  • by the President effective August 22, 2018, to (1) expand the discussion of intoxication and consent, (2) modify the amnesty provision, (3) modify the description of interim measures, and (4) update contact information. 
  • by the President effective September 30, 2019 to (1) amend policy definitions of sexual or gender-based harassment, non-consensual sexual intercourse, and relationship violence; (2) clarify the definitions of consent and incapacitation and provide specific guidance in Appendix A.

VIII. Related Documents, Policies, and Procedures

Appendix A: Guidance on Obtaining Consent and Exercising Caution

Appendix B: External Reporting Options
Appendix C: How Complaints and Reports are Handled – Investigation Procedures

Discrimination, Harassment, Retaliation Policy

Violence and Threat Management Policy


[1] In this policy “faculty” has the meaning provided in the Faculty Handbook, and does not include professional faculty, and “student” has the meaning provided in the Student Code of Conduct, and includes any person taking courses at the university whether full-time, part-time, degree-seeking or not, undergraduate or graduate.

[2] Examples of other third parties include: university agents or volunteers, visiting scholars or scientists or others formally affiliated with William & Mary; visitors and guests, while on university property or engaged in or attending university activities, events, or programs.

See Section IV for enforcement of the policy against third parties.

[3] This provision reflects the rights granted by Section II of the Statement of Rights and Responsibilities and complies with Section 23.1-400 of the Code of Virginia.

[4] The procedure used to review and respond to reports of discrimination and harassment by faculty includes special protections designed to ensure academic freedom is respected.  See Employee Discrimination, Harassment, and Retaliation Grievance/Complaint Procedure Section VII(B) (faculty consultant assists investigators in cases involving academic issues; Faculty Hearing Committee Chair reviews investigation plan).

[5] Title IX appears in volume 20 of the U.S. Code, beginning at section 1681.  Implementing regulations are found in Title 34 of the Code of Federal Regulations, Part 106 and are enforced by the U.S. Department of Education’s Office of Civil Rights.

[6] Title VII appears in volume 42 of the U.S. Code, beginning at section 2000e.

[7] VAWA is known as Public Law 113-4.  The Clery Act is found in volume 20 of the U.S. Code, section 1092(f).  Implementing regulations are enforced by the U.S. Department of Education and will be published in Title 34 of the Code of Federal Regulations, part 668.46.

[8] VAWA establishes rights for the “accuser and accused” in disciplinary proceedings relating to sexual assault, dating and domestic violence, and stalking.  These rights include the right to notification of final results including any sanction(s) and the rationale.  Title IX establishes rights for “parties” to grievance procedures for resolving complaints of sex-based discrimination, including sexual harassment.  See footnote 8 for explanation of which forms of sexual misconduct constitute sexual harassment.

[9] University education programs or activities include, but are not limited to, admissions, financial assistance, majors or minors, housing, athletics programs, extracurricular activities, opportunities for employment in a particular field or profession.

[10] Relationship violence and stalking are defined in accordance with the Clery Act, as amended by VAWA, and implementing regulations, and with Virginia law.

[11] Non-consensual sexual intercourse and fondling are forms of sexual harassment.  Sexual exploitation may, depending on the circumstances, the severity and frequency, and any other unwelcome conduct, constitute sexual harassment.  Domestic violence may constitute sexual harassment, if the violence is based on sex.  Dating violence typically will constitute sexual harassment.  Stalking may constitute sexual harassment, depending on the severity or frequency and whether the conduct was based on sex.

[12] Code of Virginia Sections 23.1-806 (regarding threat assessment and reporting to law enforcement) and 23.1-900 (regarding transcript notations) define sexual violence as physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent.  Sexual assault is a form of sexual violence.  Domestic violence may constitute sexual violence, if the criminal conduct is based on sex.  Dating violence typically will constitute sexual violence.  Sexual exploitation and stalking typically are not sexual violence.

[13] Sexual assault is a VAWA offense.  Statutory rape is defined under VAWA as “sexual intercourse with a person who is under the statutory age of consent.”  In Virginia, statutory rape is not a legal term.  There are several statutes that apply.  While the penalties vary depending on the age difference between the parties and the age of the younger party, these laws criminalize sexual intercourse between someone who is 18 years of age or older and someone who is younger than 18.

[14] Incest is defined under VAWA as “sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.”

[15] Contact with an intimate body part or other unwelcome contact that is not done for the purpose of sexual gratification would be considered as sexual harassment or as a violation of the rights of others (Student Code of Conduct).  The nature, purpose and context will be considered in determining whether to address such conduct as sexual misconduct or as a violation of the rights of others under the Student Code of Conduct.

[16] “Force” is defined under Section B.

[17] Acts of violence and threats are defined in W&M’s Policy on Campus Violence and Threat Management. Psychological, emotional, verbal, financial or academic abuse that does not rise to the level of a pattern of abusive behavior to constitute relationship violence may be considered as potential sexual harassment.

[18] In evaluating whether conduct constitutes relationship violence, the deciding official may consider whether the conduct is so severe or pervasive as to create a hostile environment, as defined in the Discrimination Policy.

[19] Domestic violence is violence committed by:

  • A current or former spouse or intimate partner of the victim or by someone else who has or had an intimate or familial relationship with the victim;
  • A person with whom the victim shares a child in common;
  • A person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner;
  • A parent, child, step-parent or step-child, sibling (full or half), grandparent or grandchild of the victim;
  • The victim’s mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law or sister-in-law, if he or she resides in the same home with the victim; or
  • Any other person who cohabits or, within the previous 12 months, cohabitated with the victim. Dep’t of Criminal Justice Servs, An Informational Guide for Domestic Violence Victims in Virginia, DCJS. Virginia.Gov, available at http://vscc.virginia.gov/informational-guide-domestic-violence-victims-virginia-english.pdf (last visited July 24, 2018).

[20] Dating Violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, other than Domestic Violence. The existence of such a relationship is determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

[21] In evaluating whether conduct constitutes sexual exploitation, the deciding official may consider whether the conduct is so severe or pervasive as to create a hostile environment, as defined in the Discrimination Policy.

[22] Student Sexual Misconduct Procedure or Employee Discrimination Grievance Procedure

[23] Under the Policy on Discrimination, Harassment, and Retaliation, all faculty, supervisors, and managers are considered "responsible employees" and required to report all incidents of discrimination, harassment, or retaliation of which they become aware.  Sexual misconduct is a form of harassment

[24] “Reporting party” typically refers to the victim or person experiencing the sexual misconduct, but may be a third party.  If it is a third party, the wishes of the victim/person experiencing the sexual misconduct will also be considered.

[25] https://law.lis.virginia.gov/vacode/title23.1/chapter8/section23.1-806/

[26] For example, if a student tells a faculty member that they have been assaulted and the faculty then reports this as required to the Title IX Coordinator, but the student did not want any investigation.

[27] Certain examples are adapted with permission from Duke University’s Sexual Misconduct Policy.

[28] For classified and operational staff, the State Standards of Conduct (DHRM Policy 1.60); for professional staff, the Policy on Appointments and Termination for Professionals and Professional Faculty; for executive employees, the Employment Policy for Executives; for faculty, the Faculty Handbook.