Title IX

Prevention and Education

 

Title IX Lexicon

Sexual Misconduct Policy Definitions
Sexual misconduct describes varying degrees of discrimination and wrongdoing based on an individual’s sex, gender, sexual orientation, gender identity, and/or gender expression. Any sexual contact or activity that occurs without the informed and Affirmative Consent of any individual involved is considered sexual misconduct. The Colleges’ Sexual Misconduct Policy prohibits all sexual misconduct including:

  • Sex or Gender-Based Harassment
  • Sexual Assault
  • Sexual Intercourse
  • Sexual Contact
  • Sexual Exploitation
  • Intimate Partner Violence
  • Physical Assault
  • Stalking
  • Retaliation

Sexual Harassment
Any unwelcome sexual advance, request for sexual favors, or other unwelcome conduct of a sexual nature whether verbal, non-verbal, graphic, physical or other, when conditions (1) and/or (2), below, are present:

Gender-Based Harassment
Any act of aggression, intimidation, or hostility, whether verbal, non-verbal, graphic, physical, or otherwise, even if the act does not involve conduct of a sexual nature, when the acts are based on the sex, gender, sexual orientation, gender identity or gender expression and conditions (1) and/or (2), below, are present:

(1) submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment, academic standing or participation in any HWS program and/or activity or used as the basis for decisions affecting the individual (quid pro quo harassment);

2) such conduct creates a hostile environment. A hostile environment exists when the conduct is sufficiently severe, pervasive or persistent that it unreasonably interferes with, limits, or deprives an individual from participating in or benefitting from the Colleges’ education or employment programs and/or activities. The conduct must be deemed severe, pervasive or persistent under both a subjective and objective standard.

The determination of whether an environment is “hostile” must be based on the totality of known circumstances, including:

  • the frequency, nature and severity of the conduct;
  • whether the conduct was physically threatening;
  • the effect of the conduct on the Complainant’s mental and/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 speech or conduct unreasonably interfered with the Complainant’s educational or work opportunities or performance including study abroad, HWS-controlled living environment, work opportunities, or performance; and
  • whether the conduct implicates concerns related to academic freedom or freedom of speech A hostile environment can be created by persistent or pervasive conduct or, if sufficiently severe, by a single incident. The more severe the conduct, the less need there is to show a repetitive series of incidents to create a hostile environment, particularly if the harassment is physical.

Sexual Assault
Sexual Assault is having or attempting to have sexual intercourse or sexual contact with another individual without Affirmative Consent.

Sexual intercourse is any vaginal or anal penetration, however slight, with any object or by a penis, tongue, finger, or other body part performed by an individual upon another individual. Sexual intercourse also includes any contact, however slight, between the mouth of one individual and the genitalia of another individual.

Sexual contact is any intentional sexual touching, however slight, of the breasts, buttocks, groin, or genitals, whether clothed or unclothed, with any object or body part performed by another individual upon another individual. Sexual contact includes making an individual touch another individual with or on the breasts, buttocks, groin, or genitals.

Affirmative Consent
Affirmative Consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, gender, sexual orientation, gender identity, or gender expression. The following are essential elements of Affirmative Consent:

  • Informed and reciprocal: All parties must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting and a willingness to do the same thing, at the same time, in the same way. Pursuant to New York state law, an individual less than 17 years of age is incapable of giving Affirmative Consent.
  • Freely and actively given: Affirmative Consent cannot be obtained through the use of force, coercion, threats, intimidation, or pressuring or by taking advantage of the incapacitation of another individual. Coercion, force, or threat of either invalidates Affirmative Consent.
  • Mutually understandable: Communication regarding Affirmative Consent consists of mutually understandable words and/or actions that indicate an unambiguous willingness to engage in sexual activity. In the absence of clear communication or outward demonstration, there is no Affirmative Consent. Affirmative Consent may not be inferred from silence, passivity, lack of resistance or lack of active response. An individual who does not physically resist or verbally refuse sexual activity is not necessarily giving Affirmative Consent. Mutually understandable Affirmative Consent is best achieved through clear, verbal communication. Do not rely solely upon non-verbal communication.
  • Not indefinite: Affirmative Consent may be initially given but withdrawn by any party at any time. Recognizing the dynamic nature of sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate throughout all stages of sexual activity. An individual who seeks to withdraw Affirmative Consent must communicate, through clear words or actions, a decision to cease the sexual activity. Once Affirmative Consent is withdrawn or can no longer be given, the sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated Affirmative Consent before continuing further sexual activity.
  • Not unlimited: Affirmative Consent to one form of sexual contact does not constitute Affirmative Consent to all forms of sexual contact, nor does Affirmative Consent to sexual activity with one person constitute Affirmative Consent to activity with any other person. Each participant in a sexual encounter must consent to each form of sexual contact with each participant.
  • Affirmative Consent must exist from the beginning to the end of each instance of sexual activity and for each form of sexual contact. Even in the context of a current or previous intimate relationship, each party must consent to each instance of sexual contact, each time.
  • Affirmative Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
  • Affirmative Consent cannot be given when a person is incapacitated.

Incapacitation
An individual who is under the influence of alcohol and/or other drugs may be incapacitated, and therefore unable to consent. Consumption of alcohol or other drugs alone is insufficient to establish incapacitation. Incapacitation is a state beyond drunkenness or intoxication. The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol and/or other drugs impacts an individual’s:

  • decision-making ability;
  • awareness of consequences;
  • ability to make informed judgments; and capacity to appreciate the nature and the quality of the act.

Although every individual may manifest signs of incapacitation differently, 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 who you are with?”

In general, sexual contact while under the influence of alcohol and/or other drugs poses a risk to all parties. Alcohol and drugs impair a person’s decision-making capacity, ability to communicate clearly, awareness of the consequences, and ability to make informed judgments. Individuals engaging in sexual activity should continually evaluate Affirmative Consent throughout the encounter. An individual who does not initially appear to be incapacitated may become incapacitated as the effects of alcohol and/or other drugs increase. If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity. Being impaired by alcohol and/or other drugs is not a defense to a violation of the Sexual Misconduct Policy.

Sexual Exploitation
Sexual exploitation is purposely or knowingly:

  • observing or allowing third parties to observe an individual’s genitalia, groin, breasts or buttocks or private sexual activity without the knowledge and consent of the participants, including through a hidden location or through electronic means in a place where there is a reasonable expectation of privacy;
  • recording or photographing an individual’s genitalia, groin, breasts or buttocks or private sexual activity without consent;
  • disseminating recordings or photographs of an individual’s genitalia, groin, breasts or buttocks or private sexual activity without consent;
  • exposing genitals or inducing another to expose their own genitals without Affirmative Consent;
  • exposing another individual to a sexually transmitted infection without the other’s knowledge;
  • causing incapacitation of another individual through alcohol, drugs, or any other means, for the purpose of compromising that individual’s ability to consent to sexual activity; or
  • assisting or otherwise facilitating any act of Prohibited Conduct.

Intimate Partner Violence
Intimate Partner Violence includes any act of violence or threatened act of violence against a person who is, or has been involved in, a relationship of a sexual, dating, domestic, or other intimate nature with the Respondent. Intimate Partner Violence is not a distinct form of Prohibited Conduct. Intimate Partner Violence can encompass a broad range of behavior and may include Sexual or Gender-Based Harassment, Sexual Assault, Sexual Exploitation, Physical Assault, Stalking, and Retaliation.

The Colleges will evaluate the existence of the relationship based upon the Complainant’s statement and take into consideration the length of the relationship, the type of relationship, and the frequency of interaction between the individuals involved in the relationship.

Physical Assault
Physical assault is threatening or causing physical harm or engaging in other conduct that threatens or endangers the health and safety of any person. The Colleges will address Physical Assault under the Sexual Misconduct Policy when it occurs in the context of Intimate Partner Violence or is based upon the sex, gender, sexual orientation and/or gender identity or expression of the Complainant.

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 for fear for the person’s safety or safety of others or to suffer substantial emotional distress.

  • Course of conduct means two or more acts, including but not limited to, acts in which an individual directly, indirectly or through third parties, by any action, method, device or means follows, monitors, observes, surveils, threatens or communicates to or about another individual, or interferes with another individual’s property.
  • Substantial emotional distress means significant mental suffering or anguish.
  • Reasonable person means a reasonable person under similar circumstances and with similarities to the victim.
  • Stalking includes cyber-stalking, a particular form of stalking in which an individual uses electronic media such as the internet, social networks, blogs, cell phones, texts or other similar devices or forms of contact.

Retaliation
Retaliation is any adverse action taken against an individual because they were involved in the reporting, investigation or resolution of a report of Prohibited Conduct. Retaliation includes threats, intimidation, harassment, coercion, violence or any other conduct that would discourage a reasonable person from engaging in activity protected under the Sexual Misconduct Policy. Retaliation may occur even where there is a finding of “not responsible” under the Sexual Misconduct Policy. Good faith actions lawfully pursued in response to a report of Prohibited Conduct are not Retaliation. Retaliation should be promptly reported to the Title IX Coordinator and will be investigated and resolved under the Sexual Misconduct Policy and Procedures.

Contact Us

Safety Exit

Office of Title IX Programs & Compliance
603 S. Main Street (Lake Level) Geneva, NY 14456

Phone: (315) 781-3922
Hours: Monday-Friday 8:30 a.m.-5:00 p.m.

For assistance after hours and on weekends contact Campus Safety at (315) 781-3333

TitleIX@hws.edu


Susan Lee

Susan Lee
Title IX Coordinator

Tremayne D. Robertson

Tremayne D. Robertson
Deputy Title IX Coordinator

Katie Stiffler

Katie Stiffler
Prevention and Education Coordinator

Kelly Crawford

Kelly Crawford
Administrative Support Assistant for the Hobart Deans Office and the Title IX Office

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Hobart and William Smith Colleges
Geneva, NY 14456
(315) 781-3000

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