Definitions of Prohibited Conduct Under the College of the Holy Cross Sexual Misconduct Policy
The following are the definitions of conduct that is prohibited under the College’s Sexual Misconduct Policy. If you have any questions about the definition or application of any of these terms, the Sexual Misconduct Policy in general, or the resources available to you as a member of the College community, please contact the Title IX Coordinator or a Deputy Title IX Coordinator. The contact information for these individuals, as well as other individuals at the College who can provide support is provided in Sections IV and V.
Any individual, regardless of gender, sexual orientation, or gender identity, can experience or commit a violation, and these behaviors can occur between people of the same or different gender.
Sex Discrimination. An intentional or unintentional act that adversely affects employment and/or educational opportunities because of a person’s sex, marital or parental status, sexual orientation or gender identity. Discrimination may be classified as either disparate impact (facially neutral practices that fall more harshly on one group than another and cannot be justified by business necessity) or disparate treatment (treatment of an individual that is less favorable than treatment of others based upon unlawful discriminatory reasons.)
Sexual harassment consists of two basic types:
Quid Pro Quo Harassment: Any action in which submission to or rejection of unwelcome conduct of a sexual nature is made either explicitly or implicitly a term or condition of an individual’s education, grades, recommendations, extracurricular programs or activities, or employment opportunities.
Inappropriate Environment Based on Sex: Any unwelcome conduct of a sexual nature that is severe, persistent, or pervasive, and creates an intimidating, hostile or offensive living, working or educational environment, or has the purpose or effect of unreasonably interfering with an individual’s employment, academic performance, education, or participation in extracurricular programs or activities.
In either type of sexual harassment noted above, the effect will be evaluated from both a subjective perspective, as well as the objective perspective of a reasonable person in the position of the person who experienced the conduct.
Other Inappropriate Sexual Behavior. Unwelcome conduct of a sexual nature that does not rise to the level of severe, persistent, or pervasive but is unreasonable in a living, working or educational environment. If Other Inappropriate Sexual Behavior is the only alleged violation of the Sexual Misconduct Policy with respect to a Responding Party, the Title IX Coordinator may determine, in his/her sole discretion, whether to conduct an investigation and if a violation is found, no sanction may be imposed other than warning, training or counseling.
Forms of Sexual Harassment: In some cases, sexual harassment is obvious and may involve an overt action, a threat, or reprisal. In other instances, sexual harassment is subtle and indirect, with a coercive aspect that is unstated. Some examples include the following:
- Sexual harassment can occur between persons of equal power status (e.g., student to student, staff to staff) or between persons of unequal power status (e.g., faculty member to student, coach to student-athlete). Although sexual harassment often occurs in the context of the misuse of power by the individual with the greater power, a person who appears to have less or equal power in a relationship can also commit sexual harassment.
- Sexual harassment can be committed by or against an individual or by or against an organization or group.
- Sexual harassment can be committed by an acquaintance, a stranger, or people who shared a personal, intimate, or sexual relationship.
- Sexual harassment can occur by or against an individual of any sex, gender identity, gender expression, or sexual orientation.
Examples of behavior that might be considered sexual harassment include, but are not limited to:
- Unwanted sexual innuendo, propositions, sexual attention or suggestive comments and gestures; inappropriate humor about sex or gender-specific traits; sexual slurs or derogatory language directed at another person’s sexuality, gender, gender identity, sexual orientation or gender expression; insults and threats based on sex, gender, gender identity, sexual orientation or gender expression; and other oral, written or electronic communications of a sexual nature that an individual communicates is unwanted and unwelcome.
- Written graffiti or the display or distribution of sexually explicit drawings, pictures, or written materials; sexually charged name-calling; or the circulation, display, or creation of e-mails, text messages, or web sites of a sexual nature.
- Display or circulation of written materials or pictures degrading to an individual or gender group where such display is not directly related to academic freedom, or an educational/pedagogical, artistic, or work purpose.
- Unwelcome physical contact or suggestive body language, such as touching, patting, pinching, hugging, kissing, or brushing against an individual’s body.
- Physical coercion or pressure of an individual to engage in sexual activity or punishment for a refusal to respond or comply with sexual advances.
- Use of a position of power or authority to: (1) threaten or punish, either directly or by implication, for refusing to tolerate harassment, for refusing to submit to sexual activity, or for reporting harassment; or (2) promise rewards in return for sexual favors.
- Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex, sexual orientation, gender identity, or sex-stereotyping.
Sexual Violence. Physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent. Physical sexual acts include, but are not limited to, vaginal or anal penetration, however slight, with a body part or object, or oral copulation by mouth-to-genital contact. This definition includes rape, sexual assault, sexual battery, and sexual coercion and includes assault with the specific intention to commit such an act. Sexual violence may involve individuals who are known to one another or have an intimate and/or sexual relationship (relationship violence), or may involve individuals not known to one another.
Other Inappropriate Sexual Contact. Having or attempting to have sexual contact of any kind other than that defined as “Sexual Violence” with another individual without consent. Other inappropriate sexual contact may include kissing, touching, or making other inappropriate contact with the breasts, genitals, buttocks, mouth, or any other part of the body that is touched in a sexual manner and without permission.
Sexual Exploitation. Any act committed through non-consensual abuse or exploitation of another person’s sexuality for the purpose of sexual gratification, personal benefit or advantage or any other illegitimate purpose. Sexual exploitation may involve individuals who are known to one another, have an intimate or sexual relationship, or may involve individuals not known to one another. Examples include, but are not limited to, observing another individual’s nudity or sexual activity or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved.
- Inducing Incapacitation: This includes the provision of alcohol or drugs to an individual, with or without that individual’s knowledge, for the purpose of causing impairment or intoxication to allow another person to take advantage of that individual’s impairment or intoxication.
- Media-Based Misconduct: Photographing or taping someone (via audio, video or otherwise) involved in sexual activity, or in a state of undress, without his or her knowledge or consent. Even if a person consented to sexual activity, photographing or taping someone without his or her knowledge and agreement goes beyond the boundaries of that consent. Dissemination of photographs or video/audio of someone involved in sexual activity, or in a state of undress, without his or her knowledge or consent constitutes a separate and additional act of sexual misconduct.
- Miscellaneous: The inappropriate behaviors listed above are not an exhaustive list. The College may consider any other conduct that has a sexual or gender-based connotation under the Sexual Misconduct Policy.
More than one instance of unwanted attention, harassment, physical or verbal contact, or any other course of conduct directed at an individual that could be reasonably regarded as likely to alarm or place that individual in fear of harm or injury, including physical, emotional, or psychological harm. This includes cyber-stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, texts or other similar forms of contact are used to pursue, harass, or make unwelcome contact with another person. Stalking and cyber-stalking may involve individuals who are known to one another or have an intimate or sexual relationship, or may involve individuals not known to one another.
Relationship Violence (Domestic Violence and Dating Violence).
Relationship violence is any intentionally violent or controlling behavior of one individual by a person who is currently or was previously in a relationship with that individual. Relationship violence may include actual or threatened physical injury, sexual violence, psychological or emotional abuse, and/or progressive social isolation.
Consent and Coercion.
Consent is the affirmative and willing agreement to engage in a specific form of sexual contact with another person who is capable of giving consent. Consent cannot be obtained through: (a) the use of coercion, or (b) by taking advantage of the incapacitation or impairment of another individual, including someone who is incapacitated or impaired by intoxication or drugs, is underage, is unconscious, or is asleep. Consent requires an outward demonstration, through mutually understandable words or actions, indicating that an individual has chosen freely to engage in a sexual contact.
Coercion is defined for purposes of this section as the application of unreasonable pressure to take part in sexual activity or in any of the prohibited conduct listed in the Sexual Misconduct Policy. Unreasonable pressure can be exerted through physical or emotional force, intimidation, misuse of authority, tricks, or outright threats. When someone makes it clear that he or she does not want to engage in sexual activity or does not want to go beyond a certain point of sexual interaction, continued unreasonable pressure beyond that point may be considered coercive.
Silence, passivity, or the absence of resistance does not imply consent.Relying solely on non-verbal communication may result in confusion about whether there is effective consent. It is important not to make assumptions. If confusion or ambiguity arises during a sexual interaction, it is essential that each participant stops and verbally clarifies the other’s willingness to continue.
Consent can be withdrawn at any time. When consent is withdrawn, sexual activity must cease. Prior consent does not imply current or future consent; even in the context of an ongoing relationship, consent must be sought and freely given for each instance of sexual contact. An essential element of consent is that it be freely given.
In evaluating whether consent was given, consideration will be given to the totality of the facts and circumstances including, but not limited to, the extent to which an individual affirmatively uses words or actions indicating a willingness to engage in sexual contact, free from intimidation, fear, or coercion; whether a reasonable person in the position of the individual alleged to have committed the conduct would have understood such person’s words and acts as an expression of consent; and whether there are any circumstances, known or reasonably apparent to the individual alleged to have committed the conduct, demonstrating incapacitation or fear.
Engaging in conduct that may reasonably be perceived to:
- adversely affect a person’s educational, living, or work environment because of their good faith participation in the reporting, investigation, and/or resolution of a report of a violation of the Sexual Misconduct Policy; or
- discourage a reasonable person from making a report or participating in an investigation under the Sexual Misconduct Policy, any other College policy, or any other local, state, or federal complaint process, e.g., filing a complaint with an entity like the U.S. Department of Education.
Retaliation includes, but is not limited to, acts or words that constitute intimidation, threats, or coercion intended to pressure any individual to participate, not participate, or provide false or misleading information during any proceeding under the Sexual Misconduct Policy. Retaliation may include abuse or violence, other forms of harassment, and/or making false statements about another person in print or verbally with intent to harm their reputation.
Retaliation can be committed by any individual or group of individuals, not just a Responding Party or a Complaining Party. Retaliation may constitute a violation of the Sexual Misconduct Policy even when the underlying report made did not result in a finding of responsibility. Retaliation, even in the absence of provable discrimination or harassment in the original complaint or charge, constitutes a serious violation of this Policy.
Engaging in other conduct which is prohibited by this Policy (e.g., recording the proceedings) or failure to comply with a duty or obligation set forth in, or imposed pursuant to, this Policy (e.g., duty of honesty, duty of cooperation or duty to report).