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March 7 Message from Lauren Kozak Re: Title IX Student Policies and Resources Communication to W&L students, faculty and staff.

Office of Student Affairs
March 7, 2023

I am writing today to ensure our community understands the resources available for reporting and responding to incidents of sexual misconduct. The University’s primary goal is to prevent all forms of sexual misconduct from occurring, and various offices, departments, and organizations collaborate toward that shared goal of promoting a safe and healthy community. But when misconduct does occur, we need fair and effective policies and processes to address it. These are largely governed by various laws and regulations, including Title IX of the Education Amendments of 1972 (Title IX), a federal law that prohibits gender and sex discrimination which includes sexual harassment and sexual assault, and the Family Educational Rights and Privacy Act (FERPA), a federal law that protects students’ privacy.

While I have summarized some important elements of our policy and approach below, I encourage all members of our community to familiarize themselves with W&L’s Interim Sexual Discrimination and Misconduct Policy, which governs the University’s actions and decisions in this area.

Reporting Sexual Misconduct

All incidents of sexual misconduct should be reported to the Title IX Office so that the University can provide support to the complainant and appropriately address the alleged conduct. Under Title IX laws and thus W&L policy, a report is different from a formal complaint and may be accompanied by a request for supportive measures, including academic adjustments, changes to residence, no-contact directives, and other steps designed to preserve both parties’ access to University programs and activities.

A report may lead to the filing of a formal complaint, which initiates the University’s resolution processes. These can take the form of an investigation and hearing process or informal resolution, which are explained in more detail below. It is also possible to report an incident but request no further action. While the University cannot guarantee that no action will be taken, the University respects the wishes of the complainant (the person making the report) to the extent that we are able.

The complainant does not have to decide how to proceed at the time the report is made. As the University’s Title IX Coordinator, I work closely with complainants in making these important decisions and inform them in writing of their available options, including the option to make a police report.

Importantly, while every report entitles the complainant to supportive measures, Title IX law prohibits the University from imposing discipline based on a report alone. Title IX law requires that before a University can legally impose discipline against a respondent (the person alleged to have committed the misconduct), there must be a formal complaint, an investigation, a hearing, and a subsequent finding of responsibility.

The Formal Complaint Process for Sexual Misconduct

After a formal complaint is filed, the University is committed to a thorough investigation of these sensitive, complex cases with appropriate time for the parties to review and respond to evidence and documents. This takes time. The Title IX regulations recognize that uncontrollable factors may extend the time it takes to complete the formal complaint process. As a result, they do not mandate a specific time for the formal complaint process to be completed but instead require that it be completed in a reasonable amount of time, given the circumstances. Supportive measures are available to both parties throughout the formal complaint process.

Formal complaints proceed with an investigation and a hearing before the Harassment and Sexual Misconduct Board (HSMB) unless they are dismissed or resolved through informal resolution. Informal resolution is a voluntary, collaborative process provided for in the Title IX regulations and intended to assist parties in resolving a report of misconduct. During informal resolution, with the assistance of a facilitator, the parties work to reach an agreement that may include sanctions agreed to by the respondent. The most common reason for the dismissal of a complaint is the respondent’s withdrawal from the University during the investigation. More information on the formal complaint process is available on our Sexual Misconduct Resources site.

Formal Complaints Regarding Sexual Misconduct Filed by the University

Whenever possible, we respect the complainant’s wishes in deciding how to proceed. If the complainant files a formal complaint, the University will always proceed according to the relevant resolution process. If a complainant chooses not to file a formal complaint, the University may deem it necessary to proceed on its own with a formal complaint based on the severity and impact of the conduct, the existence of other sexual misconduct reports against the respondent, the threat of further violence, and a number of other factors outlined in the Interim Sexual Discrimination and Misconduct Policy. When the Title IX Office files a formal complaint, the complainant is notified and can choose whether to participate in some or all of the resulting investigation.

Title IX Investigations vs. Criminal Investigations

A Title IX complaint and a criminal investigation of the same incident are independent and differ in several important ways:

  • When an allegation of criminal activity is filed with law enforcement, the police work to gather evidence to determine whether a crime has been committed. The University’s formal complaint process does not determine whether a crime occurred under Virginia or federal law but rather whether University policy was violated.
  • Title IX requires the University to conduct a fair and impartial investigation to protect the interests of all the parties involved.
  • University policy uses a “preponderance of evidence” standard to determine whether a violation of University policy has occurred — a lower standard of proof than the “beyond a reasonable doubt” standard used in the criminal justice process. Thus, an individual found “not guilty” of criminal charges or not prosecuted under the criminal standard may still be found to have violated University policy.

The HSMB makes an inquiry based on the evidence before it and remains cognizant that there is a difference between being charged with a crime and being convicted of one. The impact of pending criminal charges on the HSMB’s decision depends on the specific circumstances of the case.

Sexual Misconduct Reporting Obligations

All complainants are informed in writing of their option to pursue criminal action for incidents of sexual misconduct that may also be a crime. W&L Public Safety can assist in making a criminal report, and other resources are available on our Sexual Misconduct Resources site.

Generally, the University does not share reports of sexual misconduct with local law enforcement without permission from the complainant. However, certain circumstances may trigger mandatory reporting to law enforcement. These include all cases of felony sexual violence against a student, which are reported to the Commonwealth’s attorney without any personally identifiable information. The University also reports all cases of sexual violence to local law enforcement where disclosure with personally identifiable information is necessary for the safety of the community (e.g., second reports of sexual violence, instances where a weapon or drugs were used, and other circumstances described in the Interim Sexual Discrimination and Misconduct Policy). Whenever possible, complainants are notified if a report to law enforcement is made, and they may choose whether they wish to move forward with criminal proceedings.

More Resources

In the coming weeks, the Title IX Office will offer additional in-person educational sessions with individuals and student organizations. More details will be shared in Campus Notices. I am also happy to meet individually with any student who has questions or concerns about our policies and procedures. Please contact me at kozakl@wlu.edu to set up a time to meet. In the meantime, I share the following resources: