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Article XII – Sex/Gender-Based Misconduct Policy (Updated 08/24/2021)

Members of the College community, guests and visitors have the right to be free from all forms of gender and sex-based discrimination, examples of which can include acts of sexual violence, sexual harassment, intimate partner violence, and stalking. All members of the campus community are expected to conduct themselves in a manner that does not infringe upon the rights of others. College believes in a zero-tolerance policy for gender-based misconduct. When an allegation of misconduct is brought to an appropriate administration’s attention, and a responding party is found to have violated this policy, serious sanctions will be used to reasonably ensure that such actions are never repeated. This policy has been developed to reaffirm these principles and to provide recourse for those individuals whose rights have been violated. This policy is intended to define community expectations and to establish a mechanism for determining when those expectations have been violated.

OVERVIEW OF POLICY EXPECTATIONS WITH RESPECT TO PHYSICAL SEXUAL MISCONDUCT

The expectations of our community regarding sexual misconduct can be summarized as follows: In order for individuals to engage in sexual activity of any type with each other, there must be clear, knowing and voluntary consent prior to and during sexual activity. Consent is sexual permission. Consent can be given by word or action, but non-verbal consent is not as clear as talking about what you want sexually and what you don’t. Consent to some form of sexual activity cannot be automatically taken as consent to any other form of sexual activity. Silence–without actions demonstrating permission– cannot be assumed to show consent.

Additionally, there is a difference between seduction and coercion. Coercing someone into sexual activity violates this policy in the same way as physically forcing someone into sex. Coercion happens when someone is pressured unreasonably for sex.

Because alcohol or other drug use can place the capacity to consent in question, sober sex is less likely to raise such questions. A person will be considered unable to give valid consent if they cannot fully understand the details of a sexual interaction (who, what, when, where, why, or how) because they lack the capacity to reasonably understand the situation. Individuals who consent to sex must be able to understand what they are doing. Under this policy, “No” always means “No,” and “Yes” may not always mean “Yes.” Anything but a clear, knowing and voluntary consent to any sexual activity is equivalent to a “no.”

 OVERVIEW OF POLICY EXPECTATIONS WITH RESPECT TO CONSENSUAL RELATIONSHIPS

There are inherent risks in any romantic or sexual relationship between individuals in unequal positions (such as teacher and student, supervisor and employee). These relationships may be less consensual than perceived by the individual whose position confers power. The relationship also may be viewed in different ways by each of the parties, particularly in retrospect. Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome. Even when both parties have consented at the outset to a romantic or sexual involvement, this past consent may not remove grounds for a later charge of a violation of applicable sections of the faculty/staff handbooks. The College does not wish to interfere with private choices regarding personal relationships when these relationships do not interfere with the goals and policies of the College. For the personal protection of members of this community, relationships in which power differentials are inherent (faculty-student, staff-student, administrator-student) are generally discouraged.

Consensual romantic or sexual relationships in which one party maintains a direct supervisory or evaluative role over the other party are unethical. Therefore, persons with direct supervisory or evaluative responsibilities who are involved in such relationships must bring those relationships to the timely attention of their supervisor, and will likely result in the necessity to remove the employee from the supervisory or evaluative responsibilities, or shift the student out of being supervised or evaluated by someone with whom they have established a consensual relationship. This includes RAs and students over whom they have direct responsibility. While no relationships are prohibited by this policy, failure to self-report such relationships to a supervisor as required can result in disciplinary action for an employee.

SEXUAL VIOLENCE — RISK REDUCTION TIPS

Risk reduction tips can often take a victim-blaming tone, even unintentionally. With no intention to victim-blame, and with recognition that only those who commit sexual violence are responsible for those actions, these suggestions may nevertheless help you to reduce your risk experiencing a non-consensual sexual act. Below, suggestions to avoid committing a non-consensual sexual act are also offered:

  • If you have limits, make them known as early as possible.
  • Tell a sexual aggressor “NO” clearly and firmly.
  • Try to remove yourself from the physical presence of a sexual aggressor.
  • Find someone nearby and ask for help.
  • Take affirmative responsibility for your alcohol intake/drug use and acknowledge that alcohol/drugs lower your sexual inhibitions and may make you vulnerable to someone who views a drunk or high person as a sexual opportunity.
  • Take care of your friends and ask that they take care of you. A real friend will challenge you if you are about to make a mistake. Respect them when they do.

If you find yourself in the position of being the initiator of sexual behavior, you owe sexual respect to your potential partner. These suggestions may help you to reduce your risk for being accused of sexual misconduct:

  • Clearly communicate your intentions to your sexual partner and give them a chance to clearly relate their intentions to you.
  • Understand and respect personal boundaries.
  • DON’T MAKE ASSUMPTIONS about consent; about someone’s sexual availability; about whether they are attracted to you; about how far you can go or about whether they are physically and/or mentally able to consent. If there are any questions or ambiguity then you DO NOT have consent.
  • Mixed messages from your partner are a clear indication that you should stop, defuse any sexual tension and communicate better. You may be misreading them. They may not have figured out how far they want to go with you yet. You must respect the timeline for sexual behaviors with which they are comfortable.
  • Don’t take advantage of someone’s incapacitation including drunkenness or drugged state, even if they did it to themselves.
  • Realize that your potential partner could be intimidated by you, or fearful. You may have a power advantage simply because of your gender or size. Don’t abuse that power.
  • Understand that consent to some form of sexual behavior does not automatically imply consent to any other forms of sexual behavior.
  • Silence and passivity cannot be interpreted as an indication of consent. Read your potential partner carefully, paying attention to verbal and non-verbal communication and body language.

In campus conduct proceedings, legal terms like “guilt,” “innocence” and “burdens of proof” are not applicable, but the College never assumes a student is in violation of College policy. Campus conduct proceedings are conducted to consider the totality of all evidence available, from all relevant sources.

The College reserves the right to take whatever measures it deems necessary in response to an allegation of sexual misconduct in order to protect students’ rights and personal safety. Such measures include, but are not limited to, modification of living arrangements, no contact orders, interim suspension from campus pending a resolution, and reporting the matter to the local police. Not all forms of sexual misconduct will be deemed to be equally serious offenses, and the College reserves the right to impose different sanctions, ranging from verbal warning to expulsion, depending on the severity of the offense. The College will consider the concerns and rights of both the reporting party and the responding party.

SEXUAL MISCONDUCT OFFENSES INCLUDE, BUT ARE NOT LIMITED TO:

  1. Sexual Harassment
  2. Non-Consensual Sexual Contact (or attempts to commit same)
  3. Non-Consensual Sexual Intercourse (or attempts to commit same)
  4. Sexual Exploitation

1. SEXUAL HARASSMENT

Sexual Harassment is:

  • unwelcome, gender-based verbal or physical conduct that is,
    • sufficiently severe, persistent or pervasive that it,
    • unreasonably interferes with, denies or limits someone’s ability to participate in or benefit from the College’s educational program and/or activities, and is
    • based on power differentials (quid pro quo), the creation of a hostile environment or retaliation

Three Types of Sexual Harassment:

A. Quid pro quo sexual harassment exists when there are:

  • unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; and
  • submission to or rejection of such conduct results in adverse educational or employment action

B. Retaliatory harassment is any materially adverse employment or educational action taken because of the person’s participation in an investigation or resolution of discrimination or sexual misconduct.

C. Hostile Environment includes any situation in which there is harassing conduct that is sufficiently severe, pervasive and objectively offensive it alters the conditions of employment or limits, interferes with or denies educational benefits or opportunities, from both a subjective (the reporting party’s) and an objective (reasonable person’s) viewpoint.

Examples include: an attempt to coerce an unwilling person into a sexual relationship; to repeatedly subject a person to egregious, unwelcome sexual attention; to punish a refusal to comply with a sexual based request; to condition a benefit on submitting to sexual advances; sexual violence; intimate partner violence, stalking; gender-based bullying.

2. NON-CONSENSUAL SEXUAL CONTACT

Non-Consensual Sexual Contact is:

  • any intentional sexual touching,
  • however slight,
  • with any object,
  • of a person upon another person,
  • that is without consent and/or by force

Sexual Contact includes:

  • Intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.

3. NON-CONSENSUAL SEXUAL INTERCOURSE

Non-Consensual Sexual Intercourse is:

  • any sexual intercourse
  • however slight,
  • with any object,
  • of a person upon another person,
  • that is without consent and/or by force.

Intercourse includes:

  • vaginal or anal penetration by a penis, object, tongue or finger, and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.

4. SEXUAL EXPLOITATION

Occurs when a student takes non-consensual or abusive sexual advantage of another for his/her own 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 student;
  • Non-consensual video or audio-taping of sexual activity;
  • Going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex);
  • Engaging in voyeurism;
  • Knowingly transmitting an STI or HIV to another student;
  • Exposing one’s genitals in non-consensual circumstances; inducing another to expose their genitals;
  • Sexually-based stalking and/or bullying may also be forms of sexual exploitation
  • Use of alcohol or other drugs will never function as a defense for any behavior that violates this policy.
  • The sexual orientation and/or gender identity of individuals engaging in sexual activity is not relevant to allegations under this policy.

SANCTIONING FOR SEXUAL MISCONDUCT

Any person found responsible for violating the policy on Non-Consensual Sexual Contact (where no intercourse has occurred) will likely receive a sanction ranging from probation to expulsion, depending on the severity of the incident, and considering any previous disciplinary violations. *

Any person found responsible for violating the policy on Non-Consensual Sexual Intercourse will likely face a recommended sanction of suspension or expulsion (student) or suspension or termination (employee). *

Any person found responsible for violating the policy on sexual exploitation or sexual harassment will likely receive a recommended sanction ranging from warning to expulsion or termination, depending on the severity of the incident, and considering any previous disciplinary violations. *

*The decision-making body reserves the right to broaden or lessen any range of sanctions in the case of serious mitigating circumstances or egregiously offensive behavior. Neither the initial hearing officers nor any appeals body or officer will deviate from the range of recommended sanctions unless compelling justification exists to do so.

OTHER MISCONDUCT OFFENSES (WILL FALL UNDER TITLE IX WHEN SEX OR GENDER- BASED)

  1. Threatening or causing physical harm, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of any person;
  2. Discrimination, defined as actions that deprive other members of the community of educational or employment access, benefits or opportunities on the basis of gender;
  3. Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another;
  4. Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the College community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity (as defined further in the Hazing Policy);
  5. Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally (that is not speech or conduct otherwise protected by the 1st Amendment).
  6. Violence or emotional abuse between those who are in or who have been in an intimate relationship to each other;
  7. Stalking, defined as repetitive and/or menacing pursuit, following, harassment and/or interference with the peace and/or safety of a member of the community; or the safety of any of the immediate family of members of the community.

SANCTIONS

The sanctions may be imposed upon any member of the community found to have violated the Sex/Gender-based Misconduct Policy. Factors considered in sanctioning are defined on page 43.

CONFIDENTIALITY, PRIVACY AND REPORTING POLICY

Confidentiality and Reporting of Offenses Under This Policy

All College employees (faculty, staff, and administrators) are expected to report actual or suspected discrimination or harassment to appropriate officials, though there are some limited exceptions. In order to make informed choices, it is important to be aware of confidentiality and mandatory reporting requirements when consulting campus resources. On campus, some resources may maintain confidentiality – meaning they are not required to report actual or suspected discrimination or harassment to appropriate College officials – thereby offering options and advice without any obligation to inform an outside agency or individual unless you have requested information to be shared. Other resources exist for you to report crimes and policy violations and these resources will progressive forward when you report victimization to them.

The following describes the two reporting options at the College:

Confidential Reporting

If a reporting party would like the details of an incident to be kept confidential, the reporting party may speak with:

  • On-campus licensed professional counselors,
  • Campus health service providers,
  • Campus Victim Advocates
  • Off-campus:
    • Licensed Professional Counselors
    • Local rape crisis counselors
    • Domestic violence resources,
    • Local or state assistance agencies
  • On or off-campus members of the clergy/chaplains

All of the above employees will maintain confidentiality except in extreme cases of immediacy of threat or danger or abuse of a minor. Campus counselors are available to help free of charge and can be seen on an emergency basis during normal business hours. These employees will submit quarterly, anonymous statistical information for Clery Act purposes unless they believe it would be harmful to their client, patient or parishioner.

Formal Reporting Options

All College employees have a duty to report, unless they fall under the “Confidential Reporting” section above. Reporting parties may want to consider carefully whether they share personally identifiable details with non-confidential employees, as those details must be shared by the employee with the Title IX Coordinator and/or Deputy Coordinators. Otherwise, employees must share all details of the reports they receive. If a reporting party does not wish for their name to be shared, does not wish for an investigation to take place, or does not want a formal resolution to be pursued, the reporting party may make such a request to the Title IX Coordinator or Deputy Coordinators, who will evaluate that request in light of the duty to ensure the safety of the campus and comply with federal law.

In cases indicating pattern, predation, threat, weapons and/or violence, the College will likely be unable to honor a request for confidentiality. In cases where the victim requests confidentiality and the circumstances allow the College to honor that request, the College will offer interim supports and remedies to the victim and the community, but will not otherwise pursue formal action. A reporting party has the right, and can expect, to have reports taken seriously by the College when formally reported, and to have those incidents investigated and properly resolved through these procedures.

Formal reporting still affords privacy to the reporter, and only a small group of officials who need to know will be told including but not limited to: Campus Safety, Residence Life, Counseling Well-being staff and Student Life. Information will be shared as necessary with investigators, witnesses and the responding party. The circle of people with this knowledge will be kept as tight as possible to preserve a reporting party’s rights and privacy. Anonymous reports can be made by those impacted and/or third parties using the online reporting form on the College’s website or by clicking here. Anonymous reports may prompt a need for the institution to investigate.

Failure of a non-confidential employee, as described in this section, to report an incident or incidents of sex or gender harassment or discrimination of which they become aware, is a violation of College policy and is subject to disciplinary action ranging from a warning up to and including termination of employment.

Reports to the Title IX Coordinator can be made via email, phone or in person at the contact information below:

Melanie Smith
Title IX Coordinator
Ward Hall Room 302
(570) 945-8371
melanie.smith@keystone.edu

Rachel Smith
Deputy Title IX Coordinator
Hibbard Campus Center-Student Life Room 213
(570) 945-8288
rachel.smith@keystone.edu

The Title IX coordinator/deputy coordinator must respond when: (1) the College has actual knowledge of sexual harassment; (2) that occurred within the College’s education program or activity; (3) against a person in the United States. “Actual knowledge” includes notice to a College employee, and states that any person (e.g., the alleged victim or any third party) may report to a Title IX Coordinator in person or by e-mail, phone, or mail.  Supportive measures will be offered to every complainant, with or without a formal complaint.

The College must investigate every formal complaint (which may be filed by a complainant or by a school’s Title IX Coordinator). If the alleged conduct does not fall under Title IX, then a school may address the allegations under the school’s own code of conduct and provide supportive measures.

Federal Statistical Reporting Obligations

Certain campus officials have a duty to report sexual assault, domestic violence, dating violence and stalking for federal statistical reporting purposes (Clery Act). All personally identifiable information is kept confidential, but statistical information must be passed along to campus law enforcement regarding the type of incident and its general location (on or off-campus, in the surrounding area, but no addresses are given) for publication in the Annual Security Report. This report helps to provide the community with a clear picture of the extent and nature of campus crime, to ensure greater community safety. Mandated federal reporters include: student/conduct affairs, campus law enforcement, local police, coaches, athletic directors, residence life staff, student activities staff, human resources staff, advisors to student organizations and any other official with significant responsibility for student and campus activities. The information to be shared includes the date, the location of the incident (using Clery location categories) and the Clery crime category. This reporting protects the identity of the victim and may be done anonymously.

Federal Timely Warning Reporting Obligations

Those who experience sexual misconduct should also be aware that College administrators must issue immediate timely warnings for incidents reported to them that are confirmed to pose a substantial threat of bodily harm or danger to members of the campus community. The College will make every effort to ensure that a victim’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the danger.

Supportive Measures

In addition to the Interim Actions described in Article VI Formal Conduct Procedures Section D number 9, Complainants will be made aware of supportive measures which can be put in place while a complaint is being investigated. These measures include but are not limited to:

  • Assistance from College support staff in completing a room relocation;
  • Assistance with or rescheduling an academic assignment (paper, exams, etc.) or otherwise implementing academic assistance;
  • Taking an incomplete in a class;
  • Assistance with transferring class sections;
  • Temporary withdrawal;
  • Assistance with alternative course completion options;
  • Escorts to and from campus locations;
  • On or off-campus counseling assistance;
  • Transportation assistance or support;
  • Other accommodations for safety as necessary.

 

STUDENT RECORDS & CONFIDENTIALITY

All resolution proceedings are conducted in compliance with the requirements of FERPA, the Clery Act, Title IX, VAWA Section 304, and College policy. No information will be released from such proceedings except as required or permitted by law and College policy.

It is generally the policy of Keystone College to obtain consent from a student before releasing to parent’s information from a student’s education record, including the conduct proceedings of the College. However, when in the judgment of the College the release of such information to parents is appropriate and is not otherwise prohibited by FERPA or other applicable laws, the College reserves the right to release information without student consent. The College’s complete FERPA policy may be found on the College website.

Reporting to the College Community

Information regarding incidents of sexual misconduct is published annually in the Annual Security & Fire Safety Report (ASFSR) by the Department of Campus Safety and placed on the Keystone College website. For additional information or concerns, individuals may also contact the Department of Campus Safety.