Prohibited Conduct and Definitions

 

 

 

Alleged Victim is a person who perceives that she/he has been the victim or survivor of Sexual Misconduct as defined in this Policy.  An alleged victim may also be a Complainant.


Accused is a person who has been accused of Sexual Misconduct.  An accused may also be a Respondent. 


Complainant is one who submits an informal or formal grievance based on Sexual Misconduct set forth in this Policy to the College Grievance Officers identified in this Policy.


Conflicts of Interest: All employees must avoid situations involving actual or potential conflicts of interest including personal or romantic involvement with a competitor, supplier, or subordinate employee of the College, which impairs an employee's ability to exercise good judgment on behalf of the College or creates an actual or potential conflict of interest.

A conflict of interest shall also be deemed to exist whenever an employee has a financial interest, direct or indirect, in a student, parent, supplier, or other principal dealing with the College and that interest is of such extent or nature that it might reasonably affect his/her judgment or decisions exercised on behalf of the College.  If there is conflict of interest, the College and the employees involved in a romantic relationship will have to decide who may stay at the College. Such conflicts might require dismissal from the College. (Whittier College Human Resources Manual, 2013). 


Consent is fully defined in California Penal Code §261.6.  It is positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. 

A person 17 years old or younger cannot give consent to a sexual act.  A person cannot consent if he or she is unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated, has violated the Policy.

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 dating relationship is not sufficient to constitute consent. The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. Silence or the absence of resistance alone is not consent. A person can withdraw consent at any time during sexual activity by expressing words or actions that he or she no longer wants the act to continue, and, if that happens, the other person must stop immediately.

It is not an excuse that the person accused of  sexual misconduct was intoxicated and, therefore, did not realize the incapacity of the other. Incapacitation is defined as a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g. to understand the “who, what, when, where, or how” of their sexual interaction). This Policy also covers a person whose incapacitation results from mental disability, involuntary physical restraint and/or the taking of incapacitating drugs.


Dating Violence and Domestic Violence: “Domestic violence” means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, “cohabitant” means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. (Cal. Penal Code §13700) “Dating Violence” is the same but involves violence that occurs within a “dating relationship” which means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.  (Cal. Family Code § 6210).  When used in this Policy, dating violence and abuse will be included within the term domestic violence and abuse.


False Reports: Because the College takes each report seriously, it will not tolerate the filing of false reports. If a good-faith complaint results in a finding of not responsible, the party reporting will not be held responsible. If a person is found to have filed a false report with malicious intent, it is a violation of College Policy and the Code of Student Rights and Responsibilities.  It may also violate criminal statues and civil defamation.


Harm to Others includes words or types of conduct that threaten or endanger the health and safety of any person including physical or verbal abuse, threats, intimidation, and/or harassment. Acts which constitute harm to others that are a form of sexual misconduct or domestic or dating violence or stalking, will be resolved under this Policy.


Non-Consensual Sexual Contact is any intentional sexual touching without consent from the person being touched, however slight, by a person upon another person, with or without an object.  Sexual touching includes any bodily contact with the breasts, groin, genitals, mouth, or any other bodily orifice of another individual, or any other bodily contact in a sexual manner.  Non-consensual sexual conduct occurs when the act is committed without intent to harm another and where, by failing to correctly assess the circumstances, a person believes unreasonably that effective consent was given without having met his/her responsibility to gain effective consent.  Whether the belief that consent was given is considered “unreasonable,” is determined based on what a reasonable person in the same circumstances, considering the totality of the circumstances, would believe.


Respondent is anyone accused of misconduct defined in this document and against whom an informal or formal grievance has been submitted to the College grievance officers identified in this Policy.


Retaliation is when any member of the College community retaliates against any person who has filed an informal or formal complaint or sought advice on the process described in this Policy.  Retaliation is a violation of this Policy, and it includes retaliation against anyone who has participated in any manner in the process.  This applies to the Complainant, Respondent, and all witnesses.  It also includes retaliation against the Alleged Victim by the Accused or by the Accused’s friends or others who are sympathetic to the Accused.


Sexual Assault is a crime which encompasses several types of sexual crimes.  All acts considered to be sexual assault are accomplished without the other’s consent, by force and/or by threats of bodily injury and involve penetration, however slight, of a person’s genitalia or anal openings in relation to the following: rape (penile-vaginal penetration defined as sexual  intercourse) sodomy (anal intercourse); forced oral copulation (oral-genital contact); rape by a foreign object (forced penetration by a foreign object, including a finger); and sexual battery (the unwanted touching of an intimate part of another person for the purpose of sexual arousal, sexual gratification or sexual abuse). It also includes situations in which the accused sexually assaults a complainant incapable of giving consent (and this is known or should be reasonably known by the perpetrator), does not have knowledge of the activity that is taking place, is unconscious or asleep, or when the complainant is prevented from resisting due to alcohol or drugs administered by or with the knowledge of the accused (California Penal Code: Sections 261, 261.5, 262, 286, 288a, 289, 243.4 and 261).

Generally speaking, the College considers non-consensual sexual intercourse involving the use of force or threats of intimidation to be the most serious violations, and therefore typically imposes the most severe sanctions including suspension or expulsion for students and termination of employees. However, the College reserve the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any act of sexual misconduct or other gender-based offenses, including dating or domestic violence, non-consensual sexual contact and stalking, based on the totality of the facts and circumstances of the particular grievance. Acts of sexual misconduct may be committed by any person upon another person regardless of the sex, gender, sexual orientation and/or gender identification of those involved.


Sexual Discrimination is any distinction, preference, advantage for or detriment to an individual compared to others that is based upon sex, gender, sexual orientation or gender orientation.


Sexual Harassment: 

Unwelcomed, gender-based verbal or physical conduct that is sufficiently severe, pervasive and objectively offensive that unreasonably interferes with, limits, or deprives someone of the ability to participate in or benefit from the College’s educational program based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation.  Examples include:  an attempt to coerce an unwilling person into a sexual relationship; to repeatedly subject a person to egregious, unwanted sexual attention; to punish a refusal to comply; to condition a benefit on submitting to sexual advances; sexual assault; domestic or dating violence, stalking; gender-based bullying.

There are three types of sexual harassment:

1.  Hostile environment includes any situation in which there is harassing conduct that is sufficiently severe, pervasive/persistent and patently/objectively offensive that it alters the conditions of education or employment, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint. The determination of whether an environment is “hostile” must be based on a combination of any of these circumstances. These circumstances include:

  • Frequency of the conduct;
  • Nature and severity of the conduct;
  • Whether the conduct was physically threatening;
  • Whether the conduct was humiliating;
  • Effect of the conduct on the alleged victim’s mental or emotional state;
  • 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 alleged victim’s educational or work performance;
  • Whether the statement is a mere utterance of an epithet which engenders offense in an employee or student, or offends by mere discourtesy or rudeness; and
  • Whether the speech or conduct deserves the protections of academic freedom or First Amendment protection.

2.  Quid pro quo sexual harassment:  This form of sexual harassment exists when:

a. There are unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; and

b. Submission to or rejection of such conduct results in adverse educational or employment action.

3.  Retaliatory harassment is any adverse employment or educational action taken against a person because of the person’s participation in a complaint or investigation of discrimination or sexual misconduct.


Sexual Misconduct:  Sexual misconduct as used in this Policy is intended to include sexual discrimination, sexual harassment, sexual assault, non-consensual sexual contact, domestic and dating violence, and stalking when done because of a person’s sex/gender, sexual/gender orientation.


Stalking is when a person willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family.  (Cal. Penal Code §646.9)  It is a pattern of behavior or conduct directed at a specific person that causes the victim to fear for his or her safety or for the safety of loved ones.  Stalking behaviors include such things as unwanted telephone calls, unwanted letters or emails, unwanted or threatening gifts, threats, damage to property, physical assault, or appearing without invitation at a place of residence, school or work. 

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