Part B: Prohibited Conduct

Discrimination is different treatment with respect to an individual’s employment or participation in an education program or activity based, in whole or in part, upon the individual’s actual or perceived protected characteristic. Discrimination also includes allegations of a failure to provide reasonable accommodations as required by law or policy, such as for pregnancy or pregnancy-related conditions.

Discrimination can take two primary forms:

• Disparate Treatment Discrimination
• Disparate Impact Discrimination

Any intentional differential treatment of a person or persons that is based on an individual’s actual or perceived protected characteristic(s) and that:

• Excludes an individual from participation in (except as permitted by law),
• denies the individual benefits of, or
• otherwise adversely affects a term or condition of an individual’s participation in a Saint Mary’s College program or activity.

Disparate impact occurs when policies or practices that appear to be neutral unintentionally result in a disproportionate impact on a protected group or person that:

• Excludes an individual from participation in (except as permitted by law),
• denies the individual benefits of, or
• otherwise adversely affects a term or condition of an individual’s participation in a Saint Mary’s College program or activity.

• Unwelcome conduct on the basis of actual or perceived protected characteristic(s), within the scope of this Policy, that
• based on the totality of the circumstances,
• is subjectively and objectively offensive, and
• is so severe or pervasive,
• that it limits or denies a person’s ability to participate in or benefit from Saint Mary’s College’s education program or activity.

Sex-Based Harassment is a form of sex discrimination and means sexual harassment and other harassment on the basis of sex,¹ including sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; sexual assault, dating violence, domestic violence, and stalking.

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 a protected characteristic. 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 Informal Resolution mechanisms.

• An employee agent, or other person authorized by the College,
• to provide an aid, benefit, or service under the College’s education program or activity,
• explicitly or impliedly conditions the provision of such aid, benefit, or service, 
• on a person’s participation in unwelcome sexual conduct.

• Unwelcome sex-based conduct, that
• based on the totality of the circumstances,
• is subjectively and objectively offensive, and
• is so severe or pervasive,
• that it limits or denies a person’s ability to participate in or benefit from the College’s education program or activity.

• Penetration, no matter how slight,
• of the vagina or anus,
• with any body part or object, or
• oral penetration by a sex organ of another person,
• without the consent of the Complainant.

• The touching of the private parts (breasts, buttocks, groin) of the Complainant,
• for the purpose of sexual gratification,
• without the consent of the Complainant,
• including instances where the Complainant is incapable of giving consent because of their age or because of a temporary or permanent mental incapacity.

• Sexual intercourse,
• between persons who are related to each other,
• within the degrees wherein marriage is prohibited by California law.

• Sexual intercourse,
• with a person who is under the statutory age of consent, which is 18 in California.

• Violence,
• on the basis of sex,
• committed by a person,
• who is, or has been, in a social relationship of a romantic or intimate nature with the Complainant.
  • 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. For purposes of this definition – 
    • Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
    • Dating violence does not include acts covered under the definition of domestic violence.

• Violence,
• on the basis of sex,
• 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, or
• by a person who is cohabitating¹ with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
• by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of California, or
• by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of California.

^{1 To categorize an incident as Domestic Violence under this Policy, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.}

• Engaging in a course of conduct,
• on the basis of sex,
• directed at the Complainant, that
  • would cause a reasonable person to fear for the person’s safety, or
  • the safety of others; or
  • suffer substantial emotional distress.

For the purpose of this definition – 

• ‘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.
• ‘Reasonable person’ means a reasonable person under similar circumstances and with familiar identities to the Complainant.
• ‘Substantial emotional distress’ means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

Sexual Exploitation:¹

• A person taking non-consensual or abusive advantage of another, that does not constitute Sex-Based Harassment as defined above,
• for the benefit of the Respondent or for the benefit of anyone other than the person being exploited.

Examples of Sexual Exploitation include, but are not limited to:

• Sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed)
• 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
• Taking pictures, video, or audio recording of another in a sexual act, or in any other sexually related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity; or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures/videos without the photographed/videoed person’s consent), including making or posting of non-consensual pornography
• Prostituting another person
• 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, other 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)
• Forcing a person to take an action against that 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
• Engaging in the sex trafficking of another person
• Knowingly creating, possessing, or disseminating child sexual abuse images or recordings, or other such material
• Creating or disseminating synthetic media, including images, videos, or audio representations of individuals doing or saying sexually related things that never happened, or placing identifiable real people in fictitious pornographic or nude situations without their consent (i.e., Deepfakes)

• 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 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 process 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.

• 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
• Publicly disclosing institutional work product that contains personally identifiable information without authorization or consent

^{Nothing in this section restricts the ability of the Parties to obtain and present evidence, including by speaking to witnesses (as long as it does not constitute retaliation under this Policy), consult with their family members, confidential resources, or Advisor; or otherwise prepare for or participate in the Resolution Process.}

• Intentional failure to comply with the reasonable directive of the Title IX Coordinator, or a 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 Resolution Process, including but not limited to:
  • Destruction of or concealing of evidence; and/or
  • Actual or attempted solicitation of knowingly false testimony or providing false testimony or evidence; and/or
  • Intimidating or bribing a witness or party

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

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

• 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.

For the purposes of this definition:

• It is not necessary that a person’s initiation or continued relationship is contingent upon participation in the activity, or that the activity was sanctioned or approved by the student group or student organization, for an allegation of hazing to be upheld.
• It shall not constitute an excuse or defense to a hazing allegation that the participants took part voluntarily, gave consent to the conduct, voluntarily assumed the risks or hardship of the activity, or that no injury was suffered or sustained.
• The actions of alumni, active, new, and/or prospective members of a student group or student organization may be considered hazing.
• Hazing is not confined to the student group or student organization with which the person subjected to the hazing is associated.

Consent^{1, 2} is defined as:

• Knowing (conscious), and
• voluntary, and
• clear permission
• by word or action
• 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 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.³

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 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 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/or 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.