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U.Va. Revises Sexual Misconduct Policy; Goal to Become National Model

May 4, 2011 — In December, the University of Virginia launched the first major review of its sexual misconduct policy and procedures since 2005.

Today, the University posted its proposed new Policy and Procedures for Cases of Student Sexual Misconduct for review and comment by students and members of the University community. The site will take comments through May 20.

"Sexual misconduct has no place in the University's community of trust. Such behavior is devastating to individuals and leaves emotional scars long after the violence has occurred," said Patricia M. Lampkin, vice president and chief student affairs officer. "It is also detrimental and destructive to an environment in which young people should be free to concentrate on their studies and to develop themselves personally and socially."

Lampkin said that the revisions are aimed at providing the best care and support for victims, while at the same time being mindful of the due process and privacy rights of accused students. It is her hope, she added, that the University's new policy and procedures will become a model for other colleges and universities as they grapple with cases of sexual misconduct.

"We would be pleased to have our approach emulated," Lampkin said, "especially if it means that the review, investigation and adjudication of sexual misconduct cases around the country are handled with the greatest degree possible of sensitivity for victims and fairness for the accused."

In December, Lampkin charged a team – the members of which are well-versed in the complexities and sensitivities of sexual assault issues – to exhaustively review the University's existing policy and procedures. The group studied the University's experience with sexual misconduct complaints and investigations since 2005, consulted with numerous experts in the field, and paid close attention to the directives of an April 4 letter sent to all colleges and universities by the U.S. Department of Education's Office for Civil Rights. That letter, which arrived toward the end of the review process, provided specific guidance and clarification with respect to sexual misconduct under Title IX and requested immediate compliance.

Lampkin expressed deep gratitude for the thoughtful input and encouragement she received from colleagues around the country as she and her team worked to create the new policy.

"The commitment from those in our own community, combined with the expertise of those for whom this is a critically important issue, has resulted in what we believe is best-practice policy," she said. "We envision the revised policy fully and fairly supporting those students who are in any way involved with sexual misconduct."

In addition to inviting comments from students and community members, the University also sought feedback from national experts on sexual misconduct, as well as from the Office for Civil Rights in order to ensure that the new policy complies with its guidance.

Once final revisions are made, the new policy will go to U.Va. President Teresa A. Sullivan for approval and adoption. Lampkin said she expects the policy to be in place by July 1, just prior to summer orientation for incoming students.

The website contains the full text of the proposed policy and procedures, as well a summary of the changes. The summary includes the following 10 revisions.

1.    Emphasis on Assistance to Victims. The proposed policy begins by setting out, in clear terms, where a victim of sexual misconduct can turn to obtain immediate assistance and support.

2.    Definition of "Sexual Misconduct" Significantly Broadened. Under the proposed policy, "sexual misconduct" is a broad term that encompasses any unwelcome sexual behavior that occurs without effective consent. Sexual misconduct has therefore been revised to include "sexual harassment," which is broadly defined and may include instances of stalking, cyberstalking or relationship violence, and "sexual exploitation," which includes causing another's incapacitation, recording or transmitting sexual images, voyeurism and the knowing transmission of a sexually transmitted infection to another person.

3.    Clarification of the Definitions of "Effective Consent" and "Incapacitation." The concepts of "effective consent" and "incapacitation" play a central role in most sexual misconduct cases. Under the proposed policy, these terms have been elaborated and clarified.

4.    No Geographical Limit on Jurisdiction. Under the existing policy, jurisdiction is limited to conduct committed on University-owned or leased property or where a student, faculty member, employee or visitor resides within the city of Charlottesville or Albemarle County. The proposed policy removes geographical limits on jurisdiction. Although conduct that is alleged to have occurred far from the Grounds may prove difficult to investigate, the new policy covers sexual misconduct by a University student, wherever it occurs.

5.    No Time Limit on Invoking Procedures. Under the existing policy, complaints must be brought within one year of the alleged misconduct. There is no time limit under the proposed policy, as long as the accused is a University student at the time the complaint is made.

6.    Clarification of Intake Procedures. The new policy clarifies the initial steps in the process, from intake through the complainant's decision whether or not to pursue adjudication.

7.    Clarification of University's Response Where Complainant Does Not Wish to Pursue Adjudication or Insists on Confidentiality. In response to the Office of Civil Rights letter, the proposed policy clarifies how the University will respond when a complainant asks that her or his complaint not be investigated and pursued through adjudication or requests confidentiality of her or his complaint.

8.    Closed-Circuit Technology. Under the proposed policy, witnesses may testify by closed-circuit technology in appropriate cases.

9.    Evidentiary Standard Changed. In response to the Office of Civil Rights letter, the evidentiary standard in adjudication of sexual misconduct cases has been changed from "clear and convincing evidence" to a "preponderance of the evidence."

10.    Mediation Eliminated. In response to the Office of Civil Rights letter, traditional mediation between the parties is no longer available, although a complainant may choose between a formal and an informal process of adjudication.

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