Section UWS 17.153 - Sexual misconduct hearing(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, orb. 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.Wis. Admin. Code Board of Regents of the University of Wisconsin System UWS 17.153
Adopted by, CR 20-062: cr. Register May 2021 No. 785, eff. 6-1-21; correction in (4) (a) made under s. 35.17, Stats., Register May 2021 No. 785, eff. 6/1/2021