Part B: Prohibited Conduct

Discriminatory harassment – defined as unwelcome conduct by any member or group of the community based on actual or perceived characteristics protected by this Policy or law – is a form of prohibited discrimination under college policy.

The College will act to remedy all forms of harassment based on sex or gender, and sexual harassment, when reported, whether or not the harassment rises to the level of creating a “hostile environment.” A hostile environment is one that unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities.¹ This discriminatory effects results from harassing verbal, written, graphic, and/or physical conduct that is severe and objectively offensive.²

When discriminatory harassment rises to the level of creating a hostile environment, the College may also impose sanctions on the Respondent through application of the appropriate resolution process.

In determining whether a hostile environment exists, the College will evaluate the totality of known circumstances include, but not limited to:

• Frequency, nature, and severity of the conduct
• Effect of the conduct on the Complainant
• Whether the conduct was directed at more than one person
• Whether the conduct arose in the context of other discriminatory conduct
• Whether the conduct unreasonably interfered with the Complainant’s educational or work performance and/or programs or activities access
• Whether the conduct implicates academic freedom or protected speech
• Other relevant factors that may arise from considerations of the reported facts and circumstances

The College reserves the right to address offensive conduct and/or harassment that:

1. Does not rise to the level of creating a hostile environment, or
2. That is of a generic nature and not based on protected status.
3. Addressing such conduct will not result in the imposition of discipline under college policy but may be addressed through respectful conversation, remedial actions, education, and/or effective alternate and informal resolution mechanism.

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of California regard sexual harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice.

Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.

Two definitions are required by federal law, and the other by state law. While they overlap, they are not identical, and they apply as noted.

The College has adopted the following definitions of sexual harassment to address the unique environment of an academic community.

This definition applies to all complaints within the College’s jurisdiction:³

1. unwelcome sexual advances, or
2. requests for sexual favors, or
3. other verbal, visual, or physical conduct of a sexual nature,
4. made by someone from in the work or educational setting,
5. under any of the following conditions:
   1. submission to the conduct is explicitly or implicitly made a term or condition of an individual’s employment, academic status, or progress, or
   2. submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual, or
   3. the conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment, or
   4. submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.

Sexual Violence, defined as:

1. physical sexual acts,⁴
2. perpetrated against a person without the person’s affirmative consent.

Title VII/FHA Sexual Harassment applies to situations where an employee is subjected to workplace sexual harassment, or where a situation involves a residential Complainant in College-provided housing.

1. unwelcome verbal, written, graphic, and/or physical conduct,
2. that is so severe or pervasive and objectively offensive,
3. on the basis of sex/gender, that
4. unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities.

Title IX Sexual Harassment, as an umbrella category, includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking. This definition applies to all formal complaints that fall within Title IX jurisdiction as determined by the Title IX Coordinator. Sexual harassment includes:

Conduct on the basis of sex,⁵ or that is sexual in nature, that satisfies one or more of the following:

1. Quid Pro Quo:
   1. an employee of the recipient,
   2. conditions, implicitly or explicitly, the provision of an aid, benefit, or service of the recipient,
   3. on an individual’s participation in unwelcome sexual conduct.
2. Sexual Harassment - Hostile Environment:
   1. unwelcome conduct,
   2. determined by a reasonable person,
   3. to be so severe, and,
   4. pervasive, and
   5. objectively offensive,
   6. that it effectively denies a Complainant equal access to the College’s education program or activity.⁶
3. Sexual Assault, defined as:
   1. Any sexual act directed against a Complainant,⁷
   2. without their consent, or
   3. instances in which the Complainant is incapable of giving consent.
4. Incest:
   1. Non-forcible sexual intercourse,
   2. between persons who are related to each other,
   3. within the degrees wherein marriage is prohibited by California law.
5. Statutory Rape:
   1. Non-forcible sexual intercourse,
   2. with a person who is under the statutory age of consent (18 years of age in California).
6. Dating Violence, defined as:
   1. Violence,
   2. on the basis of sex,
   3. committed by a person,
   4. who is or has been in a social relationship of a romantic or intimate nature with the Complainant.
      1. The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of the relationship, and the frequency of interaction between the persons involved in the relationship. 
      2. For the purposes of this definition – (a) Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse, and (b) Dating violence does not include acts covered under the definition of domestic violence.
7. Domestic Violence,⁸ defined as:
   1. Violence,
   2. on the basis of sex,
   3. committed by a current or former spouse or intimate partner of the Complainant, 
   4. by a person with whom the Complainant shares a child in common, or
   5. by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
   6. by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of California, or
   7. by any other person against an adult or youth Complainant who is protected from that persons’ acts under the domestic or family violence laws of California.
8. Stalking⁹ defined as:
   1. Engaging in a course of conduct,
   2. on the basis of sex,
   3. directed at the Complainant, that
   4. would cause a reasonable person to fear for the person’s safety, or
   5. the safety of others; or
   6. suffer substantial emotional distress.
      1. For purposes of this definition – 
         1. Course of conduct means two or more acts, including, but not limited to acts in which the Respondent 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.
         2. Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
         3. Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

The College reserves the right to impose any level of sanction, ranging from a warning up to and including suspension or expulsion/termination, for any offense under this Policy. The most serious offenses are likely to result in suspension/expulsion/termination.

As used in this Policy, the following definitions and understandings apply:

1. Affirmative Consent:¹⁰¹¹
   1. Knowing (conscious), and
   2. voluntary, and
   3. clear permission
   4. by word or action
   5. to engage in sexual activity.

Individuals may perceive and experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity.

• If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.
• For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Consent is evaluated from the perspective of what a reasonable person would conclude are mutually understandable words or actions.
• Reasonable reciprocation can be implied consent. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.
• Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, sexual activity should cease within a reasonably immediate time.
• Silence or the absence of resistance alone should not be interpreted as consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.
• Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse).
• A current or previous intimate relationship is not sufficient to constitute consent.
• If a person expresses conditions on their willingness to consent (e.g., use of a condom) or limitations on the scope of their consent, those conditions and limitations must be respected. 
• If a sexual partner shares the clear expectation for the use of a condom, or to avoid internal ejaculation, and those expectations are not honored, the failure to use a condom, removing a condom, or internal ejaculation can be considered acts of sexual assault.
• Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on the College to determine whether its Policy has been violated. The existence of consent is based on the totality of the facts and circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced.
• Going beyond the boundaries of consent is prohibited. Thus, unless a sexual partner has consented to slapping, hitting, hair pulling, strangulation, or other physical roughness during otherwise consensual sex, those acts may constitute dating violence or sexual assault.¹²

Force

Force is the use of physical violence and/or physical imposition to gain sexual access. Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Force is conduct that, if sufficiently severe, can negate consent.

Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” which elicits the response, “Okay, don’t hit me. I’ll do what you want.”). 

Coercion

Coercion is unreasonable pressure for sexual activity. Coercive conduct, if sufficiently severe, can render a person’s consent ineffective, because it is not voluntary. When someone makes clear that they do not want to engage in sexual activity, 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. Coercion is evaluated based on the frequency, intensity, isolation, and duration of the pressure involved.

Incapacitation

Incapacitation is a state where a person is incapable of giving consent. An incapacitated person cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, and how” of their sexual interaction). A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep or unconscious for any reason, including because of alcohol or other drug consumption.

This Policy covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating substances.

Incapacitation is determined through consideration of all relevant indicators of a person’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.

If the Respondent neither knew or should have known the Complainant to be physically or mentally incapacitated, the Respondent is not in violation of this Policy. “Should have known” is an objective, reasonable person standard that assumes that a reasonable person is both sober and exercising sound judgment.

In addition to the forms of sexual harassment described above, which are covered by Title IX, the College additionally prohibits the following offenses as forms of discrimination that may be within or outside of Title IX when the act is based upon the Complainant’s actual or perceived protected characteristic.

Sexual Exploitation, defined as:

1. A person taking sexual advantage of another person,
2. for the benefit of anyone other than that person,
3. without that person’s consent,
4. including, but not limited to, any of the following acts:

• the prostituting of another person,
• the trafficking of another person, defined as the inducement of a person to perform a commercial sex act, or labor or services, through force, fraud, or coercion,
• the recording of images, including video or photograph, or audio of another person’s sexual activity or intimate parts, without that person’s consent,
• the distribution of images, including video or photograph, or audio of another person’s sexual activity or intimate parts, 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 the disclosure, or
• The viewing of another person’s sexual activity or intimate parts, in a place where the other person would have a reasonable expectation of privacy, without that person’s consent, for the purpose of arousing or gratifying sexual desire.
• Invasion of sexual privacy (e.g., doxing)
• Knowingly making an unwelcome disclosure of (or threatening to disclose) an individual’s sexual orientation, gender identity, or gender expression
• Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or a sexually transmitted disease (STD) or infection (STI), without informing the other person of the virus, disease, or infection
• Causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity
• Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections (e.g., spoofing, using Deepfakes)
• Forcing a person to take an action against the person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity
• Knowingly soliciting a minor for sexual activity
• Knowingly creating, possessing, or disseminating child pornography

Retaliation:

• Adverse action, including intimidation, threats, coercion, or discrimination,
• against any person,
• by the College, a student, employee, or a person authorized by the College to provide aid, benefit, or service under the College’s education program or activity,
• for the purpose of interfering with any right or privilege secured by law or Policy, or
• because the person has engaged in protected activity, including reporting information, making a Complaint, testifying, assisting, or participating or refusing to participate in any manner in an investigation or Resolution Process under this Policy, including an Informal Resolution process, or in any other appropriate steps taken by the College to promptly and effectively end any sex discrimination in its education program or activity, prevent its recurrence, and remedy its effects.

The exercise of rights protected under the First Amendment does not constitute retaliation. It is also not retaliation for the College to pursue Policy violations against those who make materially false statements in bad faith in the course of a resolution under this Policy. However, the determination of responsibility, by itself, is not sufficient to conclude that any party has made a materially false statement in bad faith.

Unauthorized Disclosure:¹³

• Distributing or otherwise publicizing materials created or produced during an investigation or Resolution Process except as required by law or as expressly permitted by the College; or
• publicly disclosing institutional work product that contains personally identifiable information without authorization or consent.

Failure to Comply/Process Interference:

• Intentional failure to comply with the reasonable directive of the Title IX Coordinator, or designee, in the performance of their official duties, including with the terms of a No Contact Directive
• Intentional failure to comply with emergency removal or interim suspension terms
• Intentional failure to comply with sanctions
• Intentional failure to adhere to the terms of an agreement achieved through informal resolution
• Intentional failure to comply with mandated reporting duties as defined by this Policy
• Intentional interference with the Title IX Resolution Process, including but not limited to:
• Destruction of or concealing of evidence
• Actual or attempted solicitation of knowingly false testimony or providing false testimony or evidence
• Intimidating or bribing a witness or party

Bullying:¹⁴

• Repeated and/or severe aggressive behavior 
• that is likely to intimidate or intentionally hurt, control, physically, or mentally diminish the Complainant,
• that is not speech or conduct that is otherwise protected by the First Amendment.

Endangerment:

• Threatening or causing harm,
• extreme verbal, emotional, or psychological abuse, or
• other conduct which threatens or endangers the health or safety of any person or damages their property.

Hazing:

• Any act or action
• which does or is likely to endanger the mental or physical health or safety of any individual
• as it relates to an individual’s initiation, admission into, or affiliation with any Saint Mary’s College group or organization.

Violation of any other College policies may constitute Civil Rights Offense when a violation is motivated by actual or perceived protected characteristic(s), and the result is a discriminatory limitation or denial of employment or educational access, benefits, or opportunities.

Sanctions for the Other Prohibited Conduct range from warning through expulsion/termination.