Sexual Misconduct includes Sexual Harassment and Gender-Based Harassment.
Sexual Harassment is Unwelcome Conduct of a sexual nature, including but not limited to unwelcome sexual advances; requests for sexual favors; or other verbal or nonverbal conduct of a sexual nature, including but not limited to Rape, Sexual Assault, Sexual Violence and Sexual Exploitation. In addition, Dating Violence, Domestic Violence, and Stalking may also constitute Sexual Harassment.
Gender-Based Harassment is Unwelcome Conduct of a nonsexual nature based on a victim’s actual or perceived sex, including conduct based on gender identity, gender expression, and nonconformity with gender stereotypes.
Unwelcome Conduct is conduct that the victim did not request or invite and that the victim considered to be undesirable or offensive.
Unwelcome Conduct may take various forms, including name-calling, graphic or written statements (including the use of cell phones or the Internet), or other conduct that may be physically threatening, harmful, or humiliating. Unwelcome Conduct does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Unwelcome conduct can involve persons of the same or opposite sex.
Participation in the conduct or the failure to complain does not always mean that the conduct was welcome. The fact that a victim may have welcomed some conduct does not necessarily mean that a victim welcomed other conduct. Also, the fact that a victim requested or invited conduct on one occasion does not mean that the conduct is welcome on a subsequent occasion.
A Hostile Environment exists when the Sexual Misconduct is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the College’s programs or which negatively impacts the work environment for a faculty or staff member.
A Hostile Environment can be created by anyone involved in a College’s program or activity (e.g., administrators, faculty members, students, and campus visitors).
In determining whether Sexual Misconduct has created a Hostile Environment, the College considers the conduct in question from both a subjective and objective perspective. It will be necessary, but not enough, that the conduct was Unwelcome Conduct with respect to the student, faculty or staff member who was harassed. But the College will also need to find that a reasonable person in the victim’s position would have perceived the conduct as undesirable or offensive in order for that conduct to create or contribute to a Hostile Environment.
To make the ultimate determination of whether a Hostile Environment exists, the College considers a variety of factors related to the severity, persistence, or pervasiveness of the Sexual Misconduct, including:
- The type, frequency, and duration of the conduct;
- The identity and relationships of persons involved;
- The number of individuals involved;
- The location of the conduct and the context in which it occurred; and,
- The degree to which the conduct affected one or more student’s education.
The more severe the Sexual Misconduct, the less need there is to show a repetitive series of incidents to find a Hostile Environment. A single instance of Sexual Assault may be sufficient to create a Hostile Environment. Likewise, a series of incidents may be sufficient even if the Sexual Misconduct is not particularly severe.
Sexual Assault crimes are defined over a number of statutes in Chapter 31 of the Pennsylvania Crimes Code. The Sexual Assault statutes cover a broad range of activities, including everything from offensive sexual touching to rape. Violations of these laws can carry hefty prison sentences and many result in serious Megan’s Law consequences. In addition to Sexual Assault crimes defined by law, under this Policy Sexual Assault includes, but is not limited to:
- Non-consensual Sexual Contact, which may be defined as follows:
- Intentional touching of another person’s intimate parts without that person’s Consent; or
- Other intentional sexual contact with another person without that person’s Consent; or
- Coercing, forcing, or attempting to coerce or force a person to touch another person’s intimate parts without that person’s Consent; or
- Non-consensual Sexual Intercourse, which may be defined as follows:
- Penetration (anal, oral or vaginal) by a penis, tongue, finger or an inanimate object without the Consent of both parties.
Sexual Violence refers to physical sexual acts perpetrated against a person’s will or where a person did not or cannot give Consent (e.g., due to age, use of drugs or alcohol, or because an intellectual disability prevents the person from having the capacity to Consent). A number of different acts fall into the category of Sexual Violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual Violence includes acts constituting all forms of rape or sexual assault as defined by the Crimes Code of Pennsylvania.
Consent must be informed, voluntary, and mutual, and can be withdrawn at any time. There is no Consent when there is force, expressed or implied, or when coercion, intimidation, threats, or duress is used. Whether a person has taken advantage of a position of influence over another person may be a factor in determining consent. Silence or absence of resistance does not imply consent. Past consent to sexual activity with another person does not imply ongoing future consent with that person or consent to that same sexual activity with another person.
If a person is in a state of Incapacitation or impaired so that such person cannot understand the fact, nature, or extent of the sexual situation, there is no consent; this includes impairment or incapacitation due to alcohol or drug consumption that meets this standard, or being asleep or unconscious.
Incapacitation means the physical and/or mental inability to make informed, rational judgments. States of Incapacitation include, without limitation, sleep, blackouts, and flashbacks. Where alcohol [or other drug] is involved, one does not have to be intoxicated or drunk to be considered Incapacitated. Rather, Incapacitation is determined by how the alcohol consumed impacts a person's decision-making capacity, awareness of consequences, and ability to make informed judgments. The question is whether a sober, reasonable person in the position of the accused person should have known that the complainant was Incapacitated. Because Incapacitation may be difficult to discern, persons are strongly encouraged to err on the side of caution; i.e., when in doubt, assume that another person is Incapacitated and therefore unable to give Consent. Being intoxicated or drunk is never a defense to a complaint of Sexual Misconduct under this Policy.
Sexual Exploitation occurs when a person takes sexual advantage of another person for the benefit of anyone other than that person without that person’s Consent. Examples of behavior that could rise to the level of sexual exploitation include:
- Prostituting another person;
- Recording images (e.g., video, photograph) or audio of another person’s sexual activity, intimate body parts, or nakedness without that person’s Consent;
- Distributing images (e.g., video, photograph) or audio of another person’s sexual activity, intimate body parts, or nakedness, if the individual distributing the images or audio knows or should have known that the person depicted in the images or audio did not Consent to such disclosure and objects to such disclosure; and,
- Viewing another person’s sexual activity, intimate body parts, or nakedness in a place where that person would have a reasonable expectation of privacy, without that person’s Consent, and for the purpose of arousing or gratifying sexual desire.
Dating Violence means 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; and (iii) the frequency of interaction between the persons involved in the relationship.
Dating Violence may constitute Sexual Harassment under this policy.
Domestic Violence is defined as set forth in 42 Pa. C.S. § 1726.2. Domestic Violence includes any of the offenses or crimes set forth in Title 18 (relating to crimes and offenses), where the alleged perpetrator and victim have one of the relationships set forth in the definition of “family or household member” in 23 Pa. C.S. § 6102 or are persons who reside or resided temporarily or permanently in the same dwelling. “Family or household members” include spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners, or persons who share biological parenthood.
Domestic Violence may constitute Sexual Harassment under this policy.
Stalking is defined as set forth in 18 Pa. C.S. § 2709.1. A person commits the crime of stalking when the person either: (1) engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person; or (2) engages in a course of conduct or repeatedly communicates to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person.
Stalking may constitute Sexual Harassment under this policy.