Covered Sexual Harassment
For the purposes of this Title IX Grievance Policy, “covered sexual harassment” includes any conduct on the basis of sex that satisfies one or more of the following:
- An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);
- Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational institution’s education program or activity;
- Sexual assault (as defined in the Clery Act), which includes any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent;
- Dating violence (as defined in the Violence Against Women Act (VAWA) amendments to the Clery Act), which includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) The type of relationship; (iii) The frequency of interaction between the persons involved in the relationship.
- Domestic violence (as defined in the VAWA amendments to the Clery Act), which includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under Massachusetts domestic or family violence laws or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of Massachusetts.
- Stalking (as defined in the VAWA amendments to the Clery Act), meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to-- (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.
Note that conduct that does not meet one or more of these criteria may still be prohibited under the Norms for Community Living.
For the purposes of this Title IX Grievance Policy, “consent” means:
- 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
Consent cannot be obtained by Force. Force includes 1. the use of physical violence, 2. threats, 3. intimidation, and/or 4. coercion.
- Physical violence means that a person is exerting control over another person through the use of physical force. Examples of physical violence include hitting, punching, slapping, kicking, pushing, restraining, choking, and brandishing or using any weapon.
- Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples include threats to harm a person physically, to reveal private information to harm a person’s reputation or cause a person academic or economic harm.
- Intimidation is an implied threat that menaces or causes reasonable fear in another person. A person’s size, alone, does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g., blocking access to an exit).
- Coercion is the use of an unreasonable amount of pressure to gain sexual access. Coercion is more than an effort to persuade, entice, or attract another person to have sex. When a person makes clear a decision not to participate in a particular form of Sexual Contact or Sexual Intercourse, a decision to stop, or a decision not to go beyond a certain sexual interaction, continued pressure can be coercive. In evaluating whether coercion was used, the College will consider: (i) the nature of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the frequency and duration of the pressure. To constitute coercion, conduct must result in wrongfully impairing another individual’s freedom of will to participate in sexual activity.
Consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated. Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity.
A person who is incapacitated is unable, temporarily or permanently, to give Consent because of mental or physical helplessness, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. Mentally helpless means a person is incapable of appraising or controlling one’s own conduct. Physically helpless means a person is physically unable to communicate willingness or unwillingness to an act. A person may be incapacitated as a result of the consumption of alcohol or other drugs, even where voluntary, or due to a temporary or permanent physical or mental health condition.
The College offers the following guidance on Consent and assessing Incapacitation:
A person who wants to engage in a specific sexual activity is responsible for obtaining Consent for that activity. Lack of protest, lack of resistance, and silence and/or passivity do not constitute Consent. Relying solely on non-verbal communication before or during sexual activity can lead to misunderstanding and may result in a violation of this policy. It is important to not make assumptions about whether a potential partner is consenting. In order to avoid confusion or ambiguity, participants are encouraged to talk with one another before engaging in sexual activity. If confusion or ambiguity arises during sexual activity, participants should stop and clarify a mutual willingness to continue that activity.
Consent to one form of sexual activity does not, by itself, constitute Consent to another form of sexual activity. In addition, Consent to sexual activity on a prior occasion does not, by itself, constitute Consent to future sexual activity. In cases of prior or ongoing relationships, the manner and nature of prior communications between the parties and the context of the relationship may have a bearing on evaluating the presence of Consent, but any sexual activity must still be mutually agreed-upon.
Consent may be withdrawn at any time. An individual who seeks to withdraw Consent should communicate, through clear words or actions, a decision to cease the sexual activity. Once Consent is withdrawn, the sexual activity must cease immediately.
In evaluating Consent in cases of alleged incapacitation, the Colleges asks two questions:
- Did the person initiating sexual activity know that the other party was incapacitated? and if not,
- Should a sober, reasonable person under the same circumstances have known that the other party was incapacitated?
If the answer to either of these questions is “YES,” Consent was absent and the conduct is likely a violation of this policy.
Incapacitation is an extreme form of intoxication. Incapacitation can also be caused by certain medical conditions. A person is not necessarily incapacitated merely as a result of ingesting alcohol or other drugs. The impact of alcohol and other drugs varies from person to person; each individual may have a different level of tolerance or metabolism. One is not expected to be a medical expert in assessing incapacitation. Instead, one must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. A person’s level of intoxication can change rapidly, and a person can reach incapacitation within a short time span. Although every individual may manifest signs of incapacitation differently, typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?” “Do you know how you got here?” “Do you know what is happening?” “Do you know whom you are with?”
The introduction of alcohol or other drugs may create ambiguity for all involved as to whether Consent has been sought or given. If one has doubt about either party’s level of intoxication, the safe thing to do is to forego all sexual activity.
Being impaired by alcohol or other drugs is not a defense to any violation of this policy.
Education Program or Activity
For the purposes of this Title IX Grievance Policy, Hampshire College's “education program or activity” includes:
- Any on-campus premises
- Any off-campus premises that Hampshire College has substantial control over. This includes buildings or property owned or controlled by a recognized student organization.
- Activity occurring within computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of Hampshire College’s programs and activities over which the Hampshire College has substantial control.
The Five-College Consortium
Hampshire College has joined with Smith College, Mount Holyoke College, Amherst College, and the University of Massachusetts Amherst to form the Five Colleges. Any College community member, including Five-College students and Hampshire College students, who wishes to report concerning behavior that occurs at an institution other than their home campus may do so by contacting the Title IX Office at either: 1) their home institution; or 2) the institution where either: a) the behavior occurred or b) where the alleged perpetrator of the concerning conduct is enrolled. As appropriate, the Hampshire Title IX Office will coordinate with another institution in support of any persons affected by reported Title IX Prohibited Conduct.
For the purposes of this Title IX Grievance Policy, “formal complaint” means a document – including an electronic submission - filed by a complainant with a signature or other indication that the complainant is the person filing the formal complaint, or signed by the Title IX Coordinator, alleging sexual harassment against a respondent about conduct within Hampshire College education program or activity and requesting initiation of the procedures consistent with the Title IX Grievance Policy to investigate the allegation of sexual harassment.
For the purposes of this Title IX Grievance Policy, Complainant means any individual who has reported being or is alleged to be the victim of conduct that could constitute covered sexual harassment as defined under this policy.
Relevant evidence and questions
“Relevant” evidence and questions refer to any questions and evidence that tends to make an allegation of sexual harassment more or less likely to be true.
“Relevant” evidence and questions do not include the following types of evidence and questions, which are deemed “irrelevant” at all stages of the Title IX Grievance Process:
- Evidence and questions about the complainant’s sexual predisposition or prior sexual behavior unless:
- They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
- They concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 34 C.F.R. § 106.45(6)(i).
- Evidence and questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege.
- Any party’s medical, psychological, and similar records unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020).
For the purposes of this Title IX Grievance policy, Respondent means any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment as defined under this policy.
Privacy vs. Confidentiality
Consistent with the Norms for Community Living, references made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or college officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean Hampshire College offices and employees who cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. Hampshire College will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.
This Policy does not alter any institutional obligations under federal disability laws including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Process that do not fundamentally alter the Process. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the Parties, even where the Parties may be receiving accommodations in other institutional programs and activities.