Prohibited Conduct Related to Sexual Misconduct

Sexual Assault

The University defines sexual assault as including non-consensual sexual intercourse and non-consensual sexual contact, which are further defined as:

Non-Consensual Sexual Intercourse:

• Any penetration (anal, oral, or vaginal), however slight, with any body part (e.g. penis, tongue, finger, hand) or object, by a person upon another person that is without Affirmative Consent or by force or coercion;
• Sexual intercourse with a person who is under the statutory age of consent (which under New York law is 17 years old); or
• Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law (incest).

Non-Consensual Sexual Contact:

• Any intentional touching, however slight, the intimate parts of another (including over clothing), causing another to touch one's intimate parts, or disrobing or exposure of another without Affirmative Consent. Intimate parts may include the breasts, genitals, buttocks, groin, mouth, or any other part of the body that is touched in a sexual manner;
• The same conduct not forcibly or against the person's will where the person is incapable of giving consent because of their youth or because of their temporary or permanent mental or physical incapacity.

Title IX Sexual Harassment

Under Title IX, any conduct on the basis of sex, which occurs within the University's education program or activity in the United States, that entails one or more of the following elements constitutes Sexual Harassment and will be subject to a Title IX Grievance Process upon the Filing of a Formal Complaint:

• A University employee conditioning the provision of a University aid, benefit, or service on an individual’s participation in unwelcome sexual conduct (so-called quid pro quo harassment);
• Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University's education program or activity;
• Sexual Assault (as defined by the Clery Act), which includes any sexual act directed against another person, without consent of the victim including instances where the victim is incapable of giving consent;
• Dating violence as defined in the Violence Against Women Act (“VAWA”) amendments to the Clery Act), which includes any 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 the relationship; (iii) the frequency of interaction between the persons involved in the relationship.
• Domestic violence (as defined by the VAWA amendments to the Clery Act), which includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under New York’s domestic or family violence laws or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of New York.
• Stalking (as defined by the VAWA amendments to the Clery Act) meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to – (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.

To the extent that reported conduct meets any of the above-described elements of the Title IX Sexual Harassment, but is not jurisdictionally subject to Title IX because it occurred outside of the University's education program or activity or outside of the United States, the University retains the authority to address such conduct and undertake responsive actions, including an investigation and adjudication under its Disciplinary Resolution Process.

Gender Based Harassment

This Policy also prohibits unwelcome verbal, written, online, and/or physical conduct that is sexual, sex-based, gender-based, based on gender identity, gender expression, and/or sexual orientation, which creates a hostile environment when:

• Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of an individual's employment, evaluation of academic work, or participation in any aspect of a University program or activity; or
• Submission to or rejection of such conduct by an individual is used as the basis for decisions affecting the individual; or
• Such conduct has the purpose or effect of unreasonably interfering with an individual's educational experience or creates an intimidating, or abusive educational environment. i.e. it is sufficiently serious, pervasive, or persistent as to create an intimidating, hostile, humiliating, demeaning, or sexually offensive working, academic, residential, or social environment.

A single isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. 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.

The fact that a person is offended is not alone enough to establish a violation of this policy. The University evaluates complaints based on a "reasonable person" standard, taking into account the totality of the circumstances, including the context of the interaction.

Examples of conduct that may constitute sexual harassment as defined above may include a severe, persistent, or pervasive pattern of unwelcome conduct that includes one or more of the following:

• Physical Conduct: Unwelcome touching, physical assault, impeding, restraining, or blocking movements, unwanted sexual advances within the employment context.
• Verbal Conduct: Making or using derogatory comments, epithets, slurs, or humor; graphic verbal commentaries about an individual's body; or sexually degrading words used to describe an individual.
• Visual Conduct: Leering; making sexual gestures; displaying of suggestive objects, pictures, cartoons, or posters in a public space or forum if deemed severe, persistent, or pervasive by a reasonable party.
• Written Conduct: Letters, notes, or electronic communications containing comments, words, or images described above.
• Quid Pro Quo (this for that): Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, by a person having power or authority over another, when submission to such sexual conduct is made either explicitly or implicitly a term or condition of rating or evaluating an individual's educational or employment progress, development, or performance. This includes when submission to such conduct would be a condition for access to receiving the benefits of any educational or employment program.

Sexual Exploitation

Sexual exploitation occurs when one person takes the non-consensual or abusive sexual advantage of others for self-serving advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses.

Examples of sexual exploitation include, but are not limited to:

• Invasion of sexual privacy;
• Prostituting another person;
• Non-consensual digital, video, or audio recording of nudity or sexual activity
• Unauthorized sharing or distribution of digital, video or audio recording of nudity or sexual activity;
• Engaging in voyeurism;
• Knowingly exposing someone to or transmitting an STI or blood born infection such as hepatitis or HIV to another person;
• Intentionally or recklessly exposing one's genitals in non-consensual circumstances, or inducing another to expose their genitals.

Intimate Partner Violence

Intimate-partner violence, also referred to as dating violence, domestic violence, and relationship violence, includes any act of violence or threatened act of violence or abuse against a person who is, or has been involved in, a sexual, dating, domestic, or other intimate relationship with an another person. It may involve one act or an ongoing pattern of behavior. Intimate-partner violence may take the form of threats, assault, or violence or threat of violence to one's self, one's sexual or romantic partner, or to the family members or friends of the sexual or romantic partner.

Dating Violence

The term "dating violence" means violence committed by a person:

1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
2. Where the existence of such a relationship shall be determined based on a consideration of the following factors:
   1. The length of the relationship.
   2. The type of relationship.
   3. The frequency of interaction between the persons involved in the relationship.

Domestic Violence

The term "domestic violence" includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.

Stalking

Stalking is defined as engaging in a course of conduct directed at a specific individual that would cause a reasonable person (under similar circumstances and with similar identities to the Complainant) to fear for their safety or the safety of others, or suffer substantial emotional distress.

Acts that together constitute stalking may be direct actions or may be communicated by a third party, and can include acts in which the stalker directly, 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" is significant mental suffering or anguish, whether or not medical or professional treatment or counseling is sought.

Prohibition Against Retaliation

The University prohibits retaliation against anyone for filing a complaint or participating in any manner in an investigation or hearing in response to an allegation of discrimination or harassment, including allegations of Sexual Misconduct. The University recognizes that retaliation can take many forms including intimidation, threats, coercion, or discrimination, and may be committed by an individual or a group against an individual or a group, and that a Respondent can also be the subject of retaliation by the Complainant or a third party.

Employee/Student Sexual Relationships

Students are not peers of University employees. Therefore, regardless of whether a sexual relationship between a student and a University employee is "consensual," and regardless of whether or not the relationship constitutes sexual harassment, such relationships are prohibited. All University employees, full and part-time, must refrain from entering into any inappropriate sexual relationships with students. Allegations of inappropriate University employee/student sexual relationships should be reported to the Office of Human Resources ((585) 385-8048; hr@sjf.edu) located in Kearney Hall 211. In cases where an employee of the University is a Respondent, the procedures detailed in the Employee Handbook [pdf] apply.