SEXUAL MISCONDUCT POLICY

V. PROHIBITED CONDUCT

This Policy prohibits specifically defined forms of behavior: Sexual or Gender-based Harassment, Sexual Assault, Sexual Exploitation, Intimate Partner Violence, Physical Assault, Stalking, and Retaliation. Prohibited Conduct is determined without regard to the sex, gender, sexual orientation and/or gender identity/expression of the Complainant or the Respondent.

This section also includes definitions and a discussion of key terms, including Affirmative Consent and Incapacitation. The concept of Affirmative Consent is integral to the definition of Sexual Assault, expectations of the HWS community, and guidance for those who are involved in the implementation of the procedures, including the assessment, investigation and adjudication of Prohibited Conduct.

A. Sexual or Gender Based Harassment

Sexual Harassment

Sexual Harassment is 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

Gender-Based Harassment is 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. (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. (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.

B. 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 an individual upon another individual. Sexual contact includes making an individual touch another individual with or on the breasts, buttocks, groin or genitals.

1. Affirmative Consent

Affirmative Consent is a knowing, voluntary and mutual decision among 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.

Affirmative Consent cannot be obtained through force, including physical force, threats, intimidation, or coercion. Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity against their will. Intimidation is an implied threat that menaces or causes reasonable fear in another individual. Coercion is the improper use of pressure to compel another individual to initiate or continue sexual activity against that individual’s will. 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 existed, the Colleges will consider: (i) the frequency of the application of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the duration of the pressure.

Affirmative Consent cannot be obtained by taking advantage of the incapacitation of another individual where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated. Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity. An individual is incapacitated if the individual lacks conscious knowledge of the nature of the act or is physically helpless, asleep, unconscious, or otherwise unaware that sexual activity is occurring. An individual may be incapacitated as a result of the consumption of alcohol or other drugs or due to a temporary or permanent physical or mental health condition.

In evaluating Affirmative Consent in cases of alleged incapacitation, the Colleges ask two questions: (1) Did the person initiating sexual activity know that the other party was incapacitated? And if not, (2) should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “yes,” Affirmative Consent was absent.

Consent is required to be obtained regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.

2. Evaluating Affirmative Consent and 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.

Common and obvious warning signs can show that a person may be incapacitated or approaching incapacitation. 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?”

In general, sexual contact while under the influence of alcohol 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 Consent throughout the encounter. An individual who does not initially appear to be incapacitated may become incapacitated as the effects of alcohol 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 or other drugs is not a defense to a violation of this Policy.

3. Guidance on Affirmative Consent

A person who wants to engage in a specific sexual activity is responsible for obtaining Affirmative Consent for that activity. Silence and/or passivity do not constitute Consent. Lack of resistance does not constitute Consent. Consent is active, not passive. The Colleges offer the following guidance on Affirmative Consent:

  • 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.
  • Consent may be withdrawn by any party at any time. An individual who seeks to withdraw Affirmative Consent must communicate, through clear words or actions, a decision to cease the sexual activity. Once consent is withdrawn, the sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before continuing further sexual activity.
  • Consent to one form of sexual activity does not, by itself, constitute Consent to another form of sexual activity. Consent to sexual activity on one occasion does not constitute consent to sexual activity on other occasions. Consent to sexual activity with one person does not constitute consent to sexual activity with any other person. Each participant in a sexual encounter must consent to each form of sexual activity with each participant.
  • Each party must consent to each instance of sexual contact each time. Prior consensual sexual activity does not, by itself, constitute consent to future sexual activity. In cases of prior relationships between the parties, the manner and nature of prior communications between the parties and the context of the relationship may have a bearing on the presence of Affirmative Consent.
  • In New York, an individual less than 17 years old is incapable of giving 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. Participants are encouraged to talk with one another before engaging in sexual activity. If confusion or ambiguity arises during sexual activity, participants are encouraged to stop and clarify a mutual willingness to continue that activity.

C. 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 infections 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.

D. 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 taking into consideration the length of the relationship, the type of relationship, and the frequency of interaction between the individuals involved in the relationship.

E. Physical Assault

Physical Assault is threatening or causing physical harm or engaging in other conduct that threatens or endangers the health or safety of any person. The Colleges will address Physical Assault under this 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.

F. 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 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.

G. 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 this Policy.

Retaliation may occur even where there is a finding of “not responsible” under this 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 this Policy and Procedures.

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