Current through August 26, 2024
(1) The university
shall have the right to decide whether a hearing examiner or hearing committee
shall hear the matter.
(2) The
university shall take the necessary steps to convene the hearing and shall
schedule it within 15 days of the distribution of the final investigative
report. The hearing shall be conducted within 45 days of the distribution of
the final investigative report, unless a different time period is mutually
agreed upon by the complainant, respondent and university or is ordered or
permitted by the hearing examiner or committee.
(3) No less than 10 days in advance of the
hearing, the hearing examiner or committee shall obtain from the investigating
officer, in writing, the final investigative report and any additional
available information of the type described in s. UWS 17.152(4).
(4) The hearing shall be conducted in
accordance with all of the following guidance and requirements:
(a) The hearing process shall further the
educational purposes and reflect the university context of nonacademic
misconduct proceedings. The process need not conform to state or federal rules
of criminal or civil procedure, except as expressly provided in this
chapter.
(b) Both the complainant
and respondent shall have the right to question adverse witnesses, the right to
present information and witnesses, the right to be heard on their own behalf,
and the right to be accompanied by an advisor of their choice. The advisor may
be a lawyer. In accordance with the educational purposes of the hearing, the
complainant and respondent are expected to respond on their own behalf to
questions asked of them during the hearing.
(c) The hearing examiner or committee:
1. Shall admit information that has
reasonable value in proving the facts, but may exclude immaterial, irrelevant,
or unduly repetitious testimony.
2.
May not permit questions and evidence about the complainant's sexual
predisposition or prior sexual behavior unless:
a. Such questions and evidence about the
complainant's prior sexual behavior are offered to prove that someone other
than the respondent committed the conduct alleged by the complainant,
or
b. The questions and evidence
concern specific incidents of the complainant's prior sexual behavior with
respect to the respondent and are offered to prove consent.
3. Shall observe recognized legal
privileges including those described in s. UWS 17.152(4) (e).
4. May take reasonable steps to maintain
order and adopt procedures for the questioning of parties or witnesses
appropriate to the circumstances of the testimony, provided the advisors for
the complainant and respondent are allowed to effectively cross-examine any
party or witness.
(5) The party's advisors shall conduct cross
examination directly, orally, and in real time by the party's advisor. A party
may not personally conduct cross examination. The following conditions shall
apply:
(a) If a party does not have an advisor
at the hearing to conduct cross-examination, the university shall provide
someone, without fee or charge, who may or may not be an attorney, to conduct
cross-examination.
(b) Before a
party or witness answers a cross-examination or other question, the hearing
examiner or committee shall first determine whether a question is relevant or
not and explain any decision to exclude those questions as not
relevant.
(c) The hearing examiner
or committee may not draw an inference regarding responsibility based solely on
a party's or a witness's absence from the hearing or refusal to answer
cross-examination questions.
(d) At
hearings involving Title IX misconduct, if a party or a witness does not submit
to cross-examination at the hearing, then the hearing examiner or committee may
not rely on any statement of that party or witness made prior to or during the
hearing in reaching a determination regarding responsibility.
(6) If a party fails to appear at
a scheduled hearing and to proceed, the hearing examiner or committee may issue
a decision based upon the information provided except as described in sub. (5)
(d).
(7) The hearing examiner or
committee shall make a record of the hearing. The record shall include a
verbatim record of the testimony, which may be a sound recording, and a file of
all evidence presented at the hearing. The respondent and the complainant may
access the record, except as may be precluded by applicable state or federal
law.
(8) The hearing examiner or
committee shall prepare written findings of fact and a written statement of its
decision based upon the record of the hearing, using the preponderance of the
evidence standard. The written report shall include all of the following:
(a) Identification of the allegations
potentially constituting sexual misconduct.
(b) A description of the procedural steps
taken from the receipt of the initial complaint through the determination,
including any notifications to the complainant and respondent, interviews with
the complainant and respondent and witnesses, site visits, methods used to
gather other evidence, and hearings held.
(c) Findings of fact supporting the
determination.
(d) Conclusions
regarding the application of this chapter to the facts.
(e) A statement of, and rationale for, the
result as to each allegation, including a determination regarding
responsibility under this subchapter, including any Title IX misconduct, any
disciplinary sanctions the university imposes on the respondent, and whether
remedies designed to restore or preserve equal access to the university's
education program or activity shall be provided by the university to the
complainant.
(f) One or more of the
disciplinary sanctions listed in s. UWS 17.085(1), if imposed by the hearing
examiner or committee.
(g)
Procedures and permissible bases for the complainant and respondent to
appeal.
(9) The decision
of the hearing examiner or committee shall be prepared within 14 days of the
hearing, and delivered simultaneously to the respondent and the complainant,
excluding information that may be precluded by state or federal law. If an
appeal is filed, the decision regarding responsibility becomes final on the
date the university provides the complainant and respondent with the written
determination of the result of the appeal. If no appeal is filed, the decision
regarding responsibility becomes final once the last date to appeal
passes.
(10) Disciplinary hearings
are subject to s.
19.85, Stats.,
Wisconsin Open Meetings of Governmental Bodies, and may be closed if the
respondent or complainant requests a closed hearing or if the hearing examiner
or committee determines it is necessary to hold a closed hearing. Deliberations
of the committee shall be held in closed session, in accordance with s.
19.85, Stats. As such,
proper notice and other applicable rules shall be followed.
