WSR 15-14-095
[Filed June 30, 2015, 8:12 a.m., effective June 30, 2015, 8:12 a.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: Immediate adoption of the University of Washington's new section WAC 478-120-137 Supplementary provisions regarding sexual misconduct, is necessary to comply with the amendments to the student assistance general provisions regulations issued under the Higher Education Act of 1965, as amended (HEA), to implement the changes made to the Clery Act by the Violence Against Women Reauthorization Act of 2013 (VAWA) (Pub. L. 113-4). These provisions are also necessary to comply with the state legislature's recent adoption of statutes and amendments related to campus sexual violence, chapter 92, Laws of 2015.
Statutory Authority for Adoption: RCW 28B.20.130.
Other Authority: UW Board of Regents Governance, Standing Orders, Chapter 8.
Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: These amendments (34 C.F.R. Part 668.46) go into effect July 1, 2015, and apply to the University of Washington as a recipient of federal funds. The amendments to state law go into effect July 24, 2015. This new section to chapter 478-120 WAC, Student conduct code for the University of Washington, confirms that the University of Washington prohibits sexual misconduct (sexual assault, sexual harassment, sexual exploitation, stalking, relationship or dating violence, and domestic violence); clearly defines sexual misconduct and "consent"; clarifies the steps under the University of Washington's disciplinary process that apply in cases involving an allegation of sexual misconduct; and makes clear that protective interim measures can be implemented following an allegation of sexual misconduct.
Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 1, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: June 12, 2015.
Rebecca Goodwin Deardorff
Director of Rules Coordination
WAC 478-120-137 Supplementary provisions regarding sexual misconduct.
(1) By way of clarification only, it is hereby affirmed that sexual assault, sexual harassment, indecent exposure, sexual exploitation, stalking, domestic violence, and relationship violence all as defined herein (collectively "sexual misconduct") are prohibited conduct and any student who has engaged in sexual misconduct may be subject to the imposition of disciplinary sanctions as described in WAC 478-120-040.
(2) Notwithstanding any other provision of this conduct code, a student may be subject to disciplinary proceedings in connection with any allegation of sexual misconduct that occurs off campus if the university reasonably determines that a significant university interest is affected.
(3) Notwithstanding any other provision of this conduct code, "exceptional circumstances" shall be deemed to exist in all cases involving an allegation of sexual misconduct, and such cases shall be subject to the following supplementary provisions:
(a) The initiating officer will concurrently serve both the accused student and any complainant(s) with a copy of the initiating officer's initial order. For the purposes of this section, "complainant" means a student or another member of the university community who believes that an act of sexual misconduct has been committed against him or her in violation of this conduct code.
(b) Either a complainant or the accused student may appeal such initial order in accordance with WAC 478-120-075, and both the accused student and any complainant shall receive notice of any appeal and notice of any hearing before the faculty appeal board.
(c) If a timely appeal of an initial order issued by the initiating officer is submitted and a request for a formal hearing is made, the faculty appeal board shall conduct a formal hearing in accordance with WAC 478-120-100 and 478-120-115 and the following supplementary provisions shall apply:
(i) Both the accused student and any complainant will have the right to participate as a party in the hearing, including to be represented by counsel and/or be accompanied by an advisor, to call witnesses, to cross-examine witnesses, and to submit documentary evidence. A complainant (with or without counsel and/or an advisor) may attend the formal hearing in its entirety, regardless of whether the complainant decides to participate as a party.
(ii) An accused student and the complainant may not ask questions of each other directly, but may submit written questions to the chair, who will ask any relevant and appropriate questions submitted by these parties. The chair has discretion to accept, reject, or rephrase any question submitted by the accused student or a complainant.
(iii) At the discretion of the chair, and where the rights of the parties will not be prejudiced thereby, all or part of any formal hearing, including the testimony of witnesses, may be conducted by telephone, video, or other electronic means.
(iv) Both the accused student and any complainant shall be concurrently served with all orders issued by the faculty appeal board.
(d) In any matter involving an allegation of sexual misconduct, any complainant shall have the same rights as the accused student to participate as a party in any administrative review under WAC 478-120-105, to appeal a faculty appeal board's initial order to the president of the university under WAC 478-120-125, to participate as a party in any appeal to the president, and to seek reconsideration of a final order under WAC 478-120-135. In the event that a complainant appeals in a timely manner an initial order, such order shall not become final until that appeal is resolved. Any notices or orders issued by the president shall be concurrently served on the accused student and any complainant(s).
(e) Except as otherwise provided in this section, matters involving allegations of sexual misconduct will be subject to all the other applicable provisions of this conduct code.
(4) For the purposes of this section, "sexual misconduct" includes sexual assault, sexual harassment, indecent exposure, sexual exploitation, stalking, domestic violence, and relationship violence, all as defined in subsections (5) through (11) of this section.
(5) For the purposes of this student conduct code "sexual assault" means any sexual contact with another person without (or that exceeds) that person's consent.
(a) For the purposes of this definition, "sexual contact" includes:
(i) Any touching of another person for the purpose of sexual gratification; or
(ii) Any penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ, of another person.
(b) For the purposes of this definition, "consent" means that at the time of and throughout the sexual contact, there are actual words or conduct indicating freely given agreement between the parties to engage in the sexual contact. A determination of whether consent had been given in connection with an incident of sexual contact shall take into account the following:
(i) Past consent does not imply future consent;
(ii) Consent given to one person does not imply consent given to another person;
(iii) Consent to one sexual act does not imply consent to other sexual acts;
(iv) Lack of resistance to sexual contact does not imply consent;
(v) Consent can be withdrawn at any time.
(c) Consent cannot be given by a person who, at the relevant time, cannot understand the facts, nature, extent, or implications of the sexual contact for any reason including, but not limited to, being asleep, unconscious, mentally or physically impaired due to an intellectual or other disability, or mentally or physically incapacitated due to the effects of drugs or alcohol. Indications that a person may be incapacitated by alcohol or drugs and therefore cannot grant consent include, but are not limited to, stumbling, falling down, an inability to stand or walk on their own, slurred speech or incoherent communication, an inability to focus their eyes or confusion about what is happening around them, blacking out, or vomiting. A failure to exhibit any of these behaviors does not necessarily mean that a person is capable of giving consent or is not incapacitated.
(d) Sexual contact is not consensual when force or coercion is threatened or used to gain acquiescence. Force includes the use of physical violence, physical force, threats, or intimidation to overcome resistance or gain agreement to sexual contact. Coercion includes using pressure, deception, or manipulation to cause someone to agree to sexual contact against his or her will, without the use of physical force. Pressure can mean verbal or emotional pressure.
(e) Sexual assault also includes sexual contact with a person who is under the statutory age of consent in accordance with chapter 9A.44 RCW.
(f) Use of alcohol or other drugs is not a valid defense to an allegation of sexual assault.
(6) For the purposes of this conduct code, "sexual harassment" means unwelcome language or conduct of a sexual nature that is sufficiently severe, persistent, or pervasive such that it could reasonably be expected to create an intimidating, hostile, or offensive environment, or has the purpose or effect of unreasonably interfering with a person's academic or work performance or a person's ability to participate in or benefit from the university's programs, services, opportunities, or activities.
(7) For purposes of this conduct code, "indecent exposure" means the exposure of a person's genitals or other private body parts when done in a place or manner in which such exposure is likely to cause affront or alarm, or is against generally accepted standards of decency. Breast feeding or expressing breast milk is not indecent exposure.
(8) For the purposes of this conduct code, "sexual exploitation" includes:
(a) Taking nonconsensual or abusive advantage of another for one's own sexual benefit, or for the sexual benefit of anyone other than the one being exploited;
(b) Compelling another by threat or force to engage in sexual conduct or activity;
(c) Transmitting, distributing, publishing, or threatening to transmit, distribute, or publish photos, video, or other recordings of a private and sexual nature where such transmission, publication, or distribution is without the consent of the subject(s) and is likely to cause emotional distress to the subject(s);
(d) Taking or making photographs, films, or digital images of the private body parts of another person without that person's consent;
(e) Causing or attempting to cause the impairment of another person to gain nonconsensual sexual advantage over that person;
(f) Prostituting another person;
(g) Knowingly allowing another to surreptitiously watch otherwise consensual sexual activity; or
(h) Taking, making, or directly transmitting nonconsensual video or audio recordings of sexual activity.
(9) For purposes of this conduct code, "stalking" means engaging in a course of conduct that would cause a reasonable person to fear for his or her safety or the safety of others or to suffer substantial emotional distress. "Course of conduct" means two or more acts including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means (including electronic), follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person's property. "Substantial emotional distress" means significant mental suffering or anguish that may, but does not necessarily require medical or other professional treatment or counseling.
(10) For purposes of this conduct code, "domestic violence" means the infliction of physical harm, bodily injury, assault, or the fear of imminent physical harm, bodily injury or assault committed against a family or household member, including:
(a) A current or former spouse or intimate partner;
(b) A person with whom the person shares a child in common;
(c) A person with whom one is cohabitating or has cohabitated; or
(d) A person with whom one resides including a roommate, suitemate or housemate.
Domestic violence also includes sexual assault or stalking as defined herein of one family or household member by another family or household member.
(11) For the purposes of this conduct code, "relationship violence," also referred to as "dating violence," means violence, other than domestic violence as defined in subsection (10) of this section, committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be 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. For the purposes of this definition, relationship or dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
(12) As in all proceedings under this conduct code, the applicable standard of proof in cases involving sexual misconduct shall be the "preponderance of evidence" standard. This means that, in order for a student to be held responsible for a violation, it must be shown, based on all of the evidence in the record, that it is more likely than not that the student engaged in an act or acts of misconduct. The burden of proof in any hearing rests with the party seeking to establish that the violation occurred.
(13) Following receipt of a report of alleged sexual misconduct, the university may implement interim protective measures including, but not limited to:
(a) A "no-contact directive" prohibiting direct or indirect contact, by any means, with a complainant, an accused student, a reporting student, other specified persons, and/or a specific student organization;
(b) Reassignment of or removal from on-campus housing; or
(c) Changes to class schedules, assignments, or tests.
Interim protective measures will remain in place until an initial order becomes final or a final order is issued. Implementation of any interim measure does not assume any determination of, or create any presumption regarding responsibility for a violation under the student conduct code.