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Definition of Terms

Tuesday, November 21, 2017

Complainant: Any party who makes a complaint/grievance against another student, employee, or campus visitor.

Respondent: The person(s) against whom a complaint has been made.

Definition of Status: A full-time employee will be considered as an employee, regardless of student status. A student who is a part-time employee will be considered a student unless the incident under consideration occurred in connection with employment.

Discrimination (general definition): Actions that deprive members of the community of educational or employment access, benefits or opportunities. Any distinction, preference, advantage for or detriment to an individual compared to others that is based upon an individual’s actual or perceived gender, race, color, age, creed, national or ethnic origin, physical or mental disability, veteran status, pregnancy status, religion or sexual orientation that is so severe, persistent or pervasive that it unreasonably interferes with or limits a person’s ability to participate in or benefit from the college’s educational programs or activities. There can be no discrimination related to pregnancy, child birth, false pregnancy, termination of pregnancy or recovery.

Discriminatory Harassment: Detrimental action based on an individual’s actual or perceived gender, race, color, age, creed, national or ethnic origin, physical or mental disability, veteran status, pregnancy status, religion, sexual orientation or other protected status that is so severe, persistent or pervasive that it unreasonably interferes with or limits a person’s ability to participate in or benefit from the college’s educational programs or activities.

Sexual Harassment: Sexual harassment is unwelcome, gender-based spoken, written or symbolic action or physical conduct that is sufficiently severe, persistent or pervasive that it has the effect of unreasonably interfering with, limiting or denying someone the ability to participate in or benefit from the college’s educational programs. The unwelcome behavior may be based on power differentials, the creation of a hostile environment or retaliation. Examples include an attempt to coerce an unwilling person into a sexual relationship; to repeatedly subject a person to egregious, unwanted sexual attention; to punish a refusal to comply; to condition a benefit on submitting to sexual advances; sexual violence; intimate partner violence; stalking; and gender-based bullying. Not all workplace or educational conduct that may be described as “harassment” affects the terms, conditions or privileges of employment or education. For example, a mere utterance of an ethnic, gender-based or racial epithet which creates offensive feelings in an employee or student would not normally affect the terms and conditions of their employment or education.

Hostile Environment: Any situation in which there is harassing conduct that is sufficiently severe, pervasive and objectively offensive that it alters the conditions of employment or limits, interferes with or denies educational benefits or opportunities, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint.

Quid pro Quo Sexual Harassment: Exists when there are unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature and submission to or rejection of such conduct results in adverse educational or employment action.

Retaliatory Harassment: Any adverse employment or educational action taken against a person because of the person’s participation in a complaint or investigation of discrimination or sexual misconduct. Intentional action taken by an accused individual or allied third party, absent legitimate non-discriminatory purposes, that harms an individual as reprisal for filing or participating in a complaint/grievance procedure.

Sexual Harassment of a Student by Another Student: Any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by a student toward another student that is so severe, persistent or pervasive that it unreasonably interferes with or limits a student’s ability to participate in or benefit from the college’s educational programs or activities.For example, a student repeatedly asks another student out on dates, even though he or she has turned down the invitation numerous times. It is harassment to repeatedly subject a person to egregious, unwelcome sexual attention.

Sexual Harassment of a Faculty/Staff Member by a Student or Another Employee: Any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature directed toward a faculty/staff member that is so severe, persistent or pervasive that it unreasonably interferes with employment or living conditions or deprives the individual of employment access or benefits. For example, a student appears at a faculty member’s house uninvited. It is harassment to repeatedly subject a person to egregious, unwelcome sexual attention.

Sexual Harassment of a Student by a Faculty/Staff Member/Campus Visitor: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by a faculty, staff member or campus visitor toward a student are held to constitute sexual harassment when:

  • Submission to such sexual conduct is made either explicitly or implicitly a term or condition of rating an individual’s educational development or performance; or
  • Such conduct is so severe, persistent or pervasive that it unreasonably interferes with or limits a student’s ability to participate in or benefit from the college’s educational programs or activities.

While a particular interaction must be offensive to both a reasonable person and to the victim to be defined as harassment, faculty or staff members and other persons of authority should be sensitive to questions about mutuality of consent that may be raised and to the conflict of interests that are inherent in personal relationships that result from professional and educational interactions.

Harassment is particularly damaging when it exploits the educational dependence and trust between students and faculty/staff. When the authority and power inherent in faculty/staff relationships with students, whether overtly, implicitly, or through misinterpretation, is abused in any way, there is potentially great damage to the individual student, to the accused individual, and to the climate of the institution. For example, a professor attempts to coerce an unwilling student into having sex with him/her in exchange for a good grade or some other benefit. This is harassment regardless of whether the student accedes to the request and regardless of the student’s final grade.

Non-Consensual Sexual Contact: Non-consensual sexual contact is any intentional sexual touching, however slight, with any object by a man or a woman upon a man or a woman that is without consent and/or by force.

Sexual Contact includes: Intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.

Non-Consensual Sexual Intercourse: Non-consensual sexual intercourse is any sexual intercourse however slight, with any object by a man or woman upon a man or a woman that is without consent and/or by force.

Intercourse includes:

  • vaginal penetration by a penis, object, tongue or finger
  • anal penetration by a penis, object, tongue, or finger
  • oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact

Sexual Exploitation: Occurs when a person takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses.

Examples of sexual exploitation include, but are not limited to:

  • invasion of sexual privacy;
  • prostituting another person;
  • non-consensual video or audio-taping of sexual activity;
  • going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex);
  • engaging in voyeurism;
  • knowingly transmitting an STI or HIV to another person; or
  • exposing one’s genitals in non-consensual circumstances or inducing another to expose his or her genitals.

Sexually-based stalking and/or bullying may also be forms of sexual exploitation.

Consent: Consent is a clear, knowing and voluntary decision to engage in sexual activity. 

Because consent is voluntary, it is given without coercion, force, threats, or intimidation.  It is given with positive cooperation in the act or expression of intent to engage in the act pursuant to an exercise of free will.

Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent.  Consent can be given by words or actions, as long as those words or actions consist of an affirmative, unambiguous, conscious decision by each participant to engage in mutually agreed-upon sexual activity.

Consent is revocable, meaning consent can be withdrawn at any time.  Thus, consent must be ongoing throughout a sexual encounter.  Once consent has been revoked, sexual activity must stop immediately. 

Consent can be limited, meaning consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.  Further, previous relationships or prior consent cannot imply consent to future sexual acts.  

Consent cannot be given when a person is incapacitated, such as when a person is physically or mentally unable to make informed, rational judgments, or lacks the ability to understand the “who, what, when, where and how” related to the sexual activity.  States of incapacitation include, but are not limited to, unconsciousness and sleep.  Where alcohol or drugs are involved, incapacitation is determined by how the alcohol or other drugs have impacted a person’s decision-making capacity, awareness of consequences, and/or ability to make fully informed judgments.

Use of alcohol or other drugs will never function as a defense to a violation of this Policy.  

In sum:

  • Silence does not equal consent.
  • Lack of verbal resistance does not constitute consent.
  • Lack of physical resistance does not constitute consent.
  • There is no consent when there is force, coercion, intimidation, threats or duress.
  • Consent may be withdrawn at any time, and sexual activity must cease when consent is withdrawn unless or until additional consent is given.
  • Consent to one form of sexual activity does not indicate consent to another form of sexual activity.
  • A prior sexual relationship does not indicate current or future consent.
  • Minors cannot give consent.
  • Physically or mentally incapacitated persons cannot give consent.
  • Consent may be determined by whether the accused knew, or a reasonable person should have known, that the alleged victim was incapacitated.

Force: Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes overt threats, implied threats, intimidation and coercion that overcome resistance or produce consent. For example: “Have sex with me or I’ll hit you. Okay, don’t hit me; I’ll do what you want.”

Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.

NOTE: There is no requirement that a party resists the sexual advance or request, but resistance is a clear demonstration of non-consent.

There are inherent risks in any romantic or sexual relationship between individuals in unequal positions (such as teacher and student, or supervisor and employee). These relationships may be less consensual than perceived by the individual whose position confers power. The relationship also may be viewed in different ways by each of the parties, particularly in retrospect. Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome. Even when both parties have consented at the outset to a romantic or sexual involvement, this past consent may not remove grounds for a later charge of a violation of policy.

The college does not wish to interfere with private choices regarding personal relationships when those relationships do not interfere with the goals and policies of the college. However, for the personal protection of members of this community, relationships in which power differentials are inherent (faculty-student, staff-student, administrator-student or employee) are prohibited except in extraordinary circumstances which are approved in advance. Under no circumstance may a faculty member have an intimate relationship with one of his/her students. No employee may have an intimate relationship with a work-study student under his/her supervision.

Consensual romantic or sexual relationships in which one party maintains a direct supervisory or evaluative role over the other party are unethical. Therefore, persons with direct supervisory or evaluative responsibilities who are involved in such relationships must bring those relationships to the timely attention of their supervisors. This will likely result in the necessity to remove the employee from the supervisory or evaluative responsibilities, or will shift the student or employee out of being supervised or evaluated by someone with whom he or she has established a consensual relationship. Failure to self-report such relationships to a supervisor as required can result in disciplinary action up to and including termination for an employee.

Confidentiality

Subject to the other provisions of this policy and the requirements of law, every possible effort will be made to ensure that any information received as part of the College’s resolution and complaint procedures is treated discreetly. All parties to the complaint will be asked to assist in maintaining the privacy of the parties involved. Because of the college’s obligation to investigate allegations of misconduct, it is not possible to guarantee that complaints will be handled confidentially. Except as compelled by law, in the interest of fairness and problem resolution, disclosure of complaints and their substance and the results of investigations and complaint procedures will be limited to the immediate parties, witnesses and other appropriate administrative officials. Disclosure may also be necessary to conduct a full and impartial investigation.