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IX. Sexual Misconduct Violations Under This Policy

Conduct under this policy is prohibited regardless of the sexual orientation, gender, gender identity, or gender expression of the Complainant or Respondent. Sexual Misconduct Violations include the following specifically defined forms of behavior: Sexual Assault, Sexual Exploitation, Relationship Violence, Stalking, Sexual or Gender-Based Harassment, Complicity, and Retaliation.

 2 These forms of Sexual Misconduct Violations are a subset of the behaviors prohibited for students under the Norms for Community Living in the Student Handbook.

A.  Sexual Assault 3

3 The College uses the term Sexual Assault to refer to a broad range of behavior.  These behaviors may also meet the criteria for statutorily-defined terms in the penal code, including rape.

Sexual assault consists of 1. Sexual Contact and/or, 2. Sexual Intercourse that occurs without, 3. Consent.

1. Sexual contact is:

  • Any intentional sexual touching
  • With any object or body part (as described below)
  • Performed by a person upon another person.

Sexual Contact includes (a) intentional touching of the breasts, buttocks, groin or genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; and (b) making another touch you or themselves with or on any of these body parts.

2. Sexual intercourse is:

  • Any penetration
  • However slight
  • With any object or body part (as described below)
  • Performed by a person upon another person.

Sexual Intercourse includes (a) vaginal penetration by a penis, object, tongue, or finger; (b) anal penetration by a penis, object, tongue, or finger; and (c) any contact, no matter how slight, between the mouth of one person and the genitalia of another person. 

3. Consent is:

  • Informed (knowing)
  • Voluntary (freely given)
  • Active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity 

Please see section VIII for the complete definition of Consent.

B.  Sexual Exploitation

Sexual Exploitation is purposely or knowingly doing any of the following:

  • Causing the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give or deny Consent to sexual activity;
  • Allowing third parties to observe private sexual activity from a hidden location (e.g., closet) or through electronic means (e.g., Skype or live-streaming of images);
  • Engaging in voyeurism (e.g., watching private sexual activity without the consent of the participants or viewing another person’s intimate parts (including genitalia, groin, breasts or buttocks) in a place where that person would have a reasonable expectation of privacy);
  • Recording or photographing private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent;
  • Disseminating or posting images of private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent;
  • Prostituting another person; or
  • Exposing another person to a sexually transmitted infection or virus without the other’s knowledge.
  • Non-consensual removal of a condom or other form of birth/disease control by a sex partner, sabotage to a condom or other form of birth/disease control by a sex partner without the other’s knowledge or consent, or false representation of the use of a condom or other form of birth/disease control.

C.  Relationship Violence 4

 4 Relationship Violence includes “dating violence” and “domestic violence” as defined by VAWA. 

Relationship Violence, also referred to as Dating Violence, Domestic Violence or Intimate Partner Violence, includes any act of violence or threatened act of violence against a person who is, or has been involved in, a sexual, dating, domestic or other intimate relationship with that person. The College will evaluate the existence of an intimate relationship based upon the Complainant’s statement and taking into consideration the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

Relationship Violence can encompass a broad range of behavior, including, but not limited to, physical or sexual violence or emotional/psychological abuse and economic abuse in the form of threats, assault, property damage or other violence.  Relationship Violence affects individuals of all genders, gender identities, gender expressions, and sexual orientation and does not discriminate by racial, social, or economic background.  Relationship Violence may include any form of Sexual Misconduct Violation under this policy.

Physical violence is the intentional use of physical force with the potential for causing death, disability, injury, or harm.  Physical violence includes, but is not limited to, scratching; pushing; shoving; throwing; grabbing; biting; choking; shaking; aggressive hair pulling; slapping; punching; hitting; burning; use of a weapon; and use of restraints or one’s body, size or strength against another person.  Physical violence also includes coercing other people to commit any of the above acts.

Emotional/Psychological abuse involves a persistent pattern or prolonged climate of dominating or controlling behavior, often involving the use of verbal and non-verbal communication with the intent to harm another person mentally or emotionally, and/or to exert control over another person.  Emotional/Psychological abuse can include expressive aggression (e.g., name-calling, humiliating); coercive control (e.g., limiting access to transportation, money, friends, and family; excessive monitoring of whereabouts); threats of physical or sexual violence, control of reproductive or sexual health (e.g., refusal to use birth control; coerced pregnancy termination); exploitation of perpetrator’s vulnerability; and presenting false information with intent of making them doubt their own memory or perception (e.g., mind games). 

D.  Stalking

Stalking occurs when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear bodily injury or experience substantial emotional distress.

Course of conduct means two or more acts including but not limited to unwelcome acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, 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.

Stalking includes “cyber-stalking,” a particular form of stalking in which a person uses electronic media such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact.

Examples include but are not limited to:

  • Following an individual in close proximity
  • Repetitive verbal or written communications whether on paper or electronic
  • Sending or posting unwelcome messages under another username

E.  Sexual or Gender-Based Harassment

Sexual Harassment is any unwelcome sexual advance, request for sexual favors, or other unwanted conduct of a sexual nature, whether verbal, non-verbal, graphic, physical, or otherwise, when one or more of the following conditions outlined in (1) and/or (2), below, are present.

Gender-Based Harassment includes harassment based on gender, sexual orientation, gender identity, or gender expression, which may include acts of aggression, intimidation, or  hostility, whether verbal or non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature, when the conditions outlined in (1) and/or (2), below, are present.

(1) Submission to or rejection of such conduct is either an explicit or implicit term or condition of an individual’s employment, academic standing, evaluation of academic work or advancement in an academic program, or is used as the basis for College decisions affecting the individual (often referred to as “quid pro quo” or “this for that” harassment);

(2) Such conduct creates a hostile environment.  A “hostile environment” exists when the conduct has the purpose or effect of unreasonably interfering with an individual’s learning, working, or living environment, or limiting or depriving an individual of the ability to participate in or benefit from the College’s educational program and/or activities.  Conduct must be deemed severe, pervasive, or persistent as to create an intimidating, threatening, abusive, hostile, humiliating or sexually offensive learning, working, or living environment under both an objective (a reasonable person’s view) and subjective (the Complainant’s view) standard.

In evaluating whether a hostile environment exists, the College will consider the totality of the known circumstances, including, but not limited to:

  • The frequency, nature and severity of the conduct;
  • Whether the conduct was physically threatening;
  • The effect of the conduct on the Complainant’s mental or emotional state;
  • Whether the conduct was directed at more than one person;
  • Whether the conduct arose in the context of other discriminatory conduct;
  • Whether the conduct unreasonably interfered with the Complainant’s educational or work performance and/or College programs or activities; and
  • Whether the conduct implicates concerns related to academic freedom or protected speech. 5

5 In making this evaluation, the College should carefully consider its obligation to protect and uphold academic freedom and freedom of speech. Title IX does not reach curriculum or in any way prohibit or abridge the use of particular textbooks or curricular materials.  See 28 C.F.R. § 54.455; 34 C.F.R. § 106.42.  Furthermore, OCR’s 2001 Guidance stated, “Title IX is intended to protect students from sex discrimination, not to regulate content of speech… [T]he offensiveness of a particular expression as perceived by some students, standing alone, is not a legally sufficient basis to establish a sexually hostile environment under Title IX.” Department of Education, Office for Civil Rights, Revised Sexual Harassment Guidance (2001) at 22.  See also OCR Dear Colleague Letter on the First Amendment, July 28, 2003 (explaining that “OCR’s regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses.”).

In addition, conduct does not have to be directed at a particular person to constitute Sexual or Gender-based Harassment.

Examples of conduct that may constitute Sexual or Gender-Based Harassment include but are not limited to:

  • Unwelcome sexual advances, whether they involve physical touching or not;
  • Sexual innuendos, jokes, written or verbal references to sexual conduct, gossip regarding one’s sex life, comments on an individual’s body, discussion or inquiry about an individual’s sexual orientation, gender identity, activity, deficiencies, or prowess;
  • Displaying or circulating sexually suggestive objects, pictures, videos or cartoons, including via electronic communications;
  • Bullying or hazing based on sex or gender:

Bullying is the repeated use by one or more people of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a another person that: (i) causes physical or emotional harm to the victim or damage to the victim’s property; (ii) places the victim in reasonable fear of harm to self or of damage to personal property; (iii) creates a hostile environment at the College for the victim; (iv) infringes on the rights of the victim at the College; or (v) materially and substantially disrupts the education process or the orderly operation of the College.

Hazing is any conduct, including methods of initiation into student organizations, which willfully or recklessly endangers the physical or mental health of any person. Such conduct shall include whipping, beating, branding, forced calisthenics, exposure to the weather, forced consumption of any food, liquor, beverage, drug or other substance, or any other brutal treatment or forced physical activity which is likely to adversely affect the physical health or safety of any person, or which subjects the person to extreme mental stress, including extended deprivation of sleep or rest or extended isolation.

F.  Complicity 

Complicity is any act taken with the purpose of aiding, facilitating, promoting or encouraging the commission of a Sexual Misconduct Violation by another person.

G.  Retaliation

It is a violation of College policy to retaliate in any way against an individual or a group because the individual or group made a good faith report concerning a violation of this Policy, was the subject of a report, or otherwise participated in the College’s investigation of such a report. Retaliation includes threatening, intimidating, harassing or any other conduct that would discourage a reasonable person from engaging in activity protected under this policy.  Any individual who believes they have been the subject of relation should immediately report their concerns to the Title IX Coordinator.  The College will take immediate and appropriate action to any report of retaliation and may pursue disciplinary action as appropriate.  Retaliation may be present even where there is a finding of “no responsibility” on the allegations of a Sexual Misconduct Violation.  Retaliation does not include good faith actions lawfully pursued in response to a report of a Sexual Misconduct Violation.