Definitions

Sexual Harassment is a collective term that includes more specific forms of Prohibited Conduct as follows:

a. Title IX Sexual Harassment is conduct on the basis of sex that satisfies one or more of the following:

          i. Actions by a University faculty or staff member conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct;

          ii. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity; or

          iii.  Sexual Assault, Dating Violence, Domestic Violence, and Stalking, as defined below.

b.  Other forms of Sexual Harassment: consistent with Title VII of the Civil Rights Act of 1964 and the recognition that Sexual Harassment may also occur in a wider variety of contexts, the University also defines Sexual Harassment to include any sexual advance, request for sexual favors, or other unwelcome conduct of a sexual nature, whether verbal, non-verbal, graphic, physical, electronic, or otherwise when one or more of the following conditions are present:

        i.  Submission to or rejection of such conduct is either an explicit or implicit term or condition of, or is used as the basis for decisions affecting, an individual’s employment or advancement in employment, evaluation of academic work or advancement in an academic program, or basis for participation in any aspect of a University program or activity (quid pro quo); or

     ii. The conduct is sufficiently severe, pervasive, or persistent that it has the purpose or effect of unreasonably interfering with, limiting or depriving an individual from participating in or benefiting from the University’s learning, working, or living programs under both an objective and subjective standard (hostile environment).

 In evaluating whether a hostile environment exists, the University will evaluate the totality of known circumstances, including, but not limited to:

a. the frequency, nature and severity of the conduct;

b. whether the conduct was physically threatening;

c.  the effect of the conduct on the Complainant’s mental or emotional state;

d.  whether the conduct was directed at more than one person;

e.  whether the conduct arose in the context of other discriminatory conduct;

f.  whether the conduct unreasonably interfered with the Complainant’s educational or work performance and/or University programs or activities;

g.  whether the conduct implicates academic freedom or protected speech; and,

h.  other relevant factors that may arise from consideration of the reported facts and circumstances. 

Sexual assault is having or attempting to have sexual contact with another individual without affirmative consent or where the individual cannot affirmatively consent because of age or temporary or permanent mental incapacity (see below for definition of affirmative consent and incapacitation).  Sexual contact includes:

a.  sexual intercourse (anal, oral, or vaginal), including penetration with a body part (e.g., penis, finger, hand, or tongue) or an object, or requiring another to penetrate themselves with a body part or an object, however slight;

b.  sexual touching of the private body parts, including, but not limited to, contact with the breasts, buttocks, groin, genitals, or other intimate part of an individual’s body for the purpose of sexual gratification; or

c.  attempts to commit Sexual Assault.

Dating and Domestic Violence includes any act of violence against a Complainant who is or has been involved in a sexual, dating, domestic, or other intimate relationship with the Respondent, or against a person with whom the Respondent has sought to have such a relationship, as follows:

a. Domestic Violence: includes any act of violence committed by a current or former spouse or intimate partner of the Complainant, by a person with whom the Complainant shares a child in common, by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the Complainant under New York state law, or by any other person against an adult or minor Complainant who is protected from that person’s acts under New York state law;

b. Dating Violence: includes any act of violence committed by a person:

i. who is or has been in a social relationship of a romantic or intimate nature with the Complainant; and

ii. where the existence of such a relationship shall be determined based on a consideration of the following factors:

a. The length of the relationship;

b. The type of relationship; and

c. The frequency of interaction between the persons involved in the relationship.

Dating or Domestic Violence may also include forms of Sexual Harassment under this policy, including Sexual Assault, Sexual Exploitation, and 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 their own safety or the safety of others or suffer substantial emotional distress.

Course of conduct means two or more instances including but not limited to unwelcome 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 a person, or interferes with a person’s property. Substantial emotional distress means significant mental suffering or anguish.

Stalking includes the concept of cyber-stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used.

Sexual Exploitation is any act where one person violates the sexual privacy of another or takes unjust or abusive sexual advantage of another without permission. Acts of Sexual Exploitation may include:

secretly observing another individual’s nudity or sexual activity or allowing another to observe sexual activity without the knowledge and permission of all parties involved;

recording, photographing, transmitting, showing, viewing, streaming, or distributing intimate or sexual images, audio recordings, or sexual information without the knowledge and permission of all parties involved; or

exposing one’s genitals or inducing another to expose their own genitals without Affirmative Consent.

In determining whether reported conduct violates this policy, the University will consider the totality of the facts and circumstances involved in the incident, including the nature of the reported conduct and the context in which it occurred. Prohibited Conduct can be committed by or against individuals of any sex or gender and can occur between individuals of the same sex/gender or different sexes/genders. Prohibited Conduct can occur between strangers or acquaintances, as well as persons involved in intimate, sexual, dating, domestic, or familial relationships.

Affirmative Consent (as defined by New York state law under Enough is Enough): 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 Affirmative Consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.

Guidance regarding Consent (under New York State Law)

• Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
• Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.

• Consent may be initially given but withdrawn at any time.
• Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity.
• Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
• Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
• When consent is withdrawn or can no longer be given, sexual activity must stop.

In evaluating whether consent has been freely sought and given, the University will consider the presence of any force, threat of force, threats, or coercion; whether the Complainant had the capacity to give consent; and, whether the communication (through words and/or actions) between the parties would be interpreted by a reasonable person as a willingness to engage in a particular act.

Incapacitation includes the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the activity is occurring.

The use of alcohol or other drugs can lower inhibitions and create an atmosphere of confusion about whether consent is effectively sought and freely given. When alcohol is involved, incapacitation is a state beyond drunkenness or intoxication. When drug use is involved, incapacitation is a state beyond being under the influence or impaired by use of the drug.

Alcohol and other drugs impact each individual differently and determining whether an individual is incapacitated requires an individualized assessment. The University does not expect community members to be medical experts in assessing incapacitation. Individuals should 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 is not always demonstrated by objective signs; however, some signs of intoxication may include clumsiness, difficulty walking, poor judgment, difficulty concentrating, slurred speech, vomiting, combativeness, or emotional volatility. 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?”

An individual’s level of intoxication may change over a period of time based on a variety of subjective factors, including the amount of substance intake, speed of intake, body mass, and metabolism. Because the impact of alcohol and other drugs varies from person to person, the amount of alcohol and/or drugs a person consumes may not be sufficient, without other evidence, to prove that they were incapacitated under this policy. Another effect of alcohol consumption can be memory impairment or forgetting entire or partial events (sometimes referred to as “black- out” or “brown-out”). A person may experience this symptom while appearing to be functioning “normally,” including communicating through actions or words that can reasonably be said to express an interest in engaging in sexual conduct. Whether sexual conduct with a person who is “blacked-out” constitutes prohibited conduct depends on the presence or absence of the observable factors indicating that a person is also incapacitated, as described above. Total or partial loss of memory alone, may not be sufficient, without other evidence, to prove that a person was incapacitated under this policy.

In evaluating consent in cases of reported incapacitation, the University asks two questions: (1) Did the Respondent know that the Complainant was incapacitated? and if not, (2) Should a sober, reasonable person in a similar set of circumstances as the Respondent have known that the Complainant was incapacitated? If the answer to either of these questions is “yes,” the Complainant could not consent; and the conduct is likely a violation of this policy. A Respondent’s voluntary intoxication is never an excuse for or a defense to prohibited conduct, and it does not diminish the responsibility to determine that the other person has given consent and has the capacity to do so.