WSR 14-07-084
PROPOSED RULES
WASHINGTON STATE UNIVERSITY
[Filed March 18, 2014, 8:31 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 14-03-129.
Title of Rule and Other Identifying Information: Chapter 504-26 WAC, Standards of conduct for students.
Hearing Location(s): Lighty 403, WSU Pullman, Pullman, Washington, on April 22, 2014, at 4:00 p.m.
Date of Intended Adoption: May 9, 2014.
Submit Written Comments to: Ralph Jenks, Rules Coordinator, P.O. Box 641225, Pullman, WA 99164-1225, e-mail prf.forms@wsu.edu, fax (509) 335-3969, by April 22, 2014.
Assistance for Persons with Disabilities: Contact Deborah Bartlett, (509) 335-2005, by April 18, 2014.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To update, edit, and clarify the standards of conduct for students. Changes in federal law, specifically the 2013 reauthorization of and amendments to the Violence Against Women Act of 1994, 42 U.S.C. Section 13925, require updates to this chapter.
Statutory Authority for Adoption: RCW 28B.30.150.
Rule is necessary because of federal law, 42 U.S.C. 13925.
Name of Proponent: Washington State University, public.
Name of Agency Personnel Responsible for Drafting: Adam Jussel, Director, Student Standards and Accountability, Lighty Services 260, Pullman, WA 99164-1064, (509) 335-4532 or Kimberly Anderson, Director, Office for Equal Opportunity, French Administration 225, Pullman, WA 99164-1022, (509) 335-8288; Implementation: Melynda Huskey, Assistant Vice-President and Dean of Students, Office of the Dean of Students, French Administration 134, Pullman, WA 99164-1013, (509) 335-2193; and Enforcement: John Fraire, Vice-President, Student Affairs and Enrollment, Lighty Services 360, Pullman, WA 99164-1066, (509) 335-5900.
No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule has no impact on small business.
A cost-benefit analysis is not required under RCW 34.05.328. The university does not consider this rule to be a significant legislative rule.
March 18, 2014
Ralph T. Jenks, Director
Procedures, Records, and Forms
University Rules Coordinator
AMENDATORY SECTION (Amending WSR 11-11-031, filed 5/11/11, effective 6/11/11)
WAC 504-26-200 Jurisdiction of the ((university)) standards of conduct for students.
The ((university)) standards of conduct for students shall apply to conduct that occurs on university premises, at university sponsored activities, and to off-campus conduct that adversely affects the university community and/or the pursuit of its objectives. Each student is responsible and accountable for his/her conduct from the time of application for admission through the actual awarding of a degree, even though conduct may occur before classes begin or after classes end, as well as during the academic year and during periods between terms of actual enrollment. These standards shall apply to a student's conduct even if the student withdraws from school while a disciplinary matter is pending. Definitions from these standards are incorporated into the Washington State University's Executive Policy 15, which prohibits discrimination, sexual harassment, and sexual misconduct. The university has sole discretion to determine what conduct occurring off campus adversely impacts the university community and/or the pursuit of university objectives.
AMENDATORY SECTION (Amending WSR 06-23-159, filed 11/22/06, effective 12/23/06)
WAC 504-26-204 Abuse of self or others.
Physical abuse, threats, intimidation, and/or other conduct which threatens or endangers the health or safety of any person, including one's self including, but not limited to, domestic or intimate partner violence.
AMENDATORY SECTION (Amending WSR 06-23-159, filed 11/22/06, effective 12/23/06)
WAC 504-26-220 Discrimination and discriminatory harassment.
((Discrimination on the basis of race, color, religion, ancestry, national or ethnic origin, age, gender, marital status, veteran status, sexual orientation, gender identity, or mental, physical, or sensory disability is prohibited in conformity with federal and state laws.)) Discrimination or discriminatory harassment on the basis of race; sex/gender; sexual orientation; gender identity/expression; religion; age; color; creed; national or ethnic origin; physical, mental, or sensory disability (including disability requiring the use of a trained service animal); marital status; genetic information; and/or status as an honorably discharged veteran or member of the military; and as defined in Washington State University's Executive Policy 15, which prohibits discrimination, sexual harassment, and sexual misconduct.
AMENDATORY SECTION (Amending WSR 06-23-159, filed 11/22/06, effective 12/23/06)
WAC 504-26-221 Sexual misconduct.
(1) Sexual misconduct is ((any sexual activity with another that is unwanted and nonconsensual. Sexual misconduct includes physical contact as well as voyeurism)) an egregious form of sex discrimination/sexual harassment. A number of acts may be regarded as sexual misconduct including, but not limited to, nonconsensual sexual contact (including sexual intercourse) and sexual exploitation. Sexual misconduct includes sexual assault and other sexual violence.
(2) Consent. Consent to any sexual activity must be clear, knowing, and voluntary. Anything less is equivalent to a "no." Clear, knowing, and voluntary consent to sexual activity requires that, at the time of the act, ((there are)) actual words or conduct ((demonstrating freely given agreement to sexual activity-silence)) demonstrate clear permission regarding willingness to engage in sexual activity and the conditions of such activity. Silence or passivity is not consent. Even if words or conduct alone seem to imply consent, sexual activity is nonconsensual when:
(a) Force or ((blackmail)) coercion is threatened or used to procure compliance with the sexual activity((; or)).
(i) Force is the use of physical violence, physical force, threat, or intimidation to overcome resistance or gain consent to sexual activity.
(ii) Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to obtain consent from another. When an individual makes it clear through words or actions that he or she does not want to engage in sexual contact, wants to stop, or does not want to go past a certain point of sexual interaction, continued pressure beyond that point may be coercive. Other examples of coercion may include using blackmail or extortion to overcome resistance or gain consent to sexual activity.
(b) The person is asleep, unconscious, or physically unable to communicate his or her unwillingness to engage in sexual activity; or
(c) The person lacks the mental capacity at the time of the sexual activity to be able to understand the nature or consequences of the act, whether that incapacity is produced by illness, defect, the influence of alcohol or another substance, or some other cause. When alcohol or drugs are involved, a person is considered incapacitated or unable to give valid consent if she or he cannot fully understand the details of the sexual interaction (i.e., who, what, when, where, why, and how), and/or he or she lacks the capacity to reasonably understand the situation and to make rational, reasonable decisions.
(3) Nonconsensual sexual contact is any intentional sexual touching, however slight, with any object or body part, by one person against another person's intimate parts (or clothing covering any of those areas), or by causing another person to touch his or her own or another person's intimate body parts without consent and/or by force. Sexual contact also can include any intentional bodily contact in a sexual manner with another person's nonintimate body parts. It also includes nonconsensual sexual intercourse.
(4) Sexual exploitation occurs when a person takes nonconsensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses explained above. Examples of sexual exploitation may include, but are not limited to:
(a) Causing or attempting to cause the incapacitation of another person to gain sexual advantage over such other person;
(b) Invading another person's sexual privacy;
(c) Prostituting another person;
(d) Engaging in voyeurism. A person commits voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, records, or films another person, without that person's knowledge and consent, while the person being viewed, photographed, recorded, or filmed is in a place where he or she has a reasonable expectation of privacy;
(e) Knowingly or recklessly exposing another person to a significant risk of sexually transmitted disease or infection;
(f) Exposing one's intimate parts in nonconsensual circumstances;
(g) Sexually based stalking and/or bullying.
(5) Use of alcohol or other drugs is not a valid defense to a violation of this policy.
AMENDATORY SECTION (Amending WSR 06-23-159, filed 11/22/06, effective 12/23/06)
WAC 504-26-222 Harassment (other than sexual harassment or discriminatory harassment).
Harassment is conduct by any means that is severe, persistent, or pervasive, ((or persistent,)) and is of such a nature that it would cause a reasonable person in the victim's position substantial emotional distress and undermine his or her ability to work, study, or participate in his or her regular life activities or participate in the activities of the university, ((and)) and/or actually does cause the victim substantial emotional distress and undermines the victim's ability to work, study, or participate in the victim's regular life activities or participate in the activities of the university.
AMENDATORY SECTION (Amending WSR 11-11-031, filed 5/11/11, effective 6/11/11)
WAC 504-26-223 Stalking.
((Intentionally and repeatedly harassing or following a person and intentionally or unintentionally placing the person being followed or harassed in fear of physical harm to one's self or property or physical harm to another person or another's property. This)) (1) Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
(a) Fear for his or her safety or the safety of others;
(b) Fear for harm to his or her property or the property of others; or
(c) Suffer substantial emotional distress.
(2) Stalking includes, but is not limited to, conduct occurring in person, electronically, or through a third party.
NEW SECTION
WAC 504-26-227 Sexual harassment.
Sexual harassment includes behavior defined in Washington State University's Executive Policy 15, which prohibits discrimination, sexual harassment, and sexual misconduct.
NEW SECTION
WAC 504-26-230 Retaliation.
Retaliation includes any act that would dissuade a reasonable person from making or supporting a complaint, or participating in an investigation, under the standards of conduct for students (this chapter). Retaliatory behavior includes action or threat of action that could negatively affect another's employment, education, reputation, or other interest. It also includes retaliation as defined in Washington State University's Executive Policy 15, which prohibits discrimination, sexual harassment, and sexual misconduct.