A. Definitions of Prohibited Conduct Under Olin's Sexual Misconduct Policy
The College’s Title IX Policy governs incidents of sexual harassment (and any retaliation associated with it) occurring within a College education program or activity against a person in the United States. For the purposes of this policy, ‘‘education program or activity’’ includes locations, events, or circumstances over which the College exercises substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the College. The College’s policy applies regardless of a person’s sex, gender, gender identity, gender expression, sexual orientation, age, race, nationality, class status, ability, religion, or other protected status.
If the College determines that a formal complaint of sexual harassment or any other form of sexual misconduct does not meet the definition of sexual harassment under this policy or did not occur in a college education program or activity against a person in the United States, the Title IX Coordinator will dismiss the formal complaint. The college, however, reserves the right to address the dismissed behavior under applicable student, staff or faculty disciplinary policies.
The following are the definitions of conduct that is prohibited under Olin’s Title IX Policy, including attempts to commit and aiding or inciting others to commit these acts. If an individual has any questions about the definition or application of any of these terms, the Title IX Policy in general, or the resources available to all member of the Olin community, please contact the Title IX Coordinator. The contact information for the Title IX Coordinator, as well as other resources who can provide support is located in Section IV and V.
Sexual Harassment:
Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following:
- An employee of the College conditioning the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct;
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education program or activity; or
- “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).
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, employee to employee) or between persons of unequal power status (e.g., employee to student, supervisor to employee). 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.
- It does NOT have to include intent to harm.
Sexual Assault means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.
Sex Offenses – Forcible: Any sexual act directed against another person, forcibly and/or against that persons will; or not forcibly or against the persons will where the victim is incapable of giving consent.
- Forcible Rape - The carnal knowledge of a person, forcibly and/or against that persons will; or not forcibly or against that persons will where the victim is incapable of giving consent because of their temporary or permanent mental or physical incapacity (or because of their youth).
- Forcible Sodomy- Oral or anal sexual intercourse with another person, forcibly and/or against that persons will; or not forcibly against that persons will where the victim is incapable of giving consent because of their youth or because of their temporary or permanent mental or physical incapacity.
- Sexual Assault With An Object- The use of an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that persons will; or not forcibly against the persons will where the victim is incapable of giving consent because of their youth or because of their temporary or permanent mental or physical in capacity.
- Forcible Fondling - The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that persons will; or not forcibly or against that persons will where the victim is incapable of giving consent because of their youth or because of their temporary mental incapacity.
Sex Offenses - Non forcible Unlawful, non-forcible sexual intercourse.
- Incest - Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
- Statutory Rape- Non-forcible sexual intercourse with a person who is under the statutory age of consent.
Consent and Sexual 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 underage, unconscious, asleep, incapacitated, or impaired by intoxication or drugs. Consent requires an outward demonstration, through mutually understandable words or actions, indicating that an individual has chosen freely to engage in a sexual contact.
Sexual 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 Olin’s Sexual Misconduct Policy. Unreasonable pressure can be exerted through physical or emotional force, intimidation, misuse of authority, or outright threats. When someone makes it clear that they do not want to engage in sexual activity or do not want to go beyond a certain point of sexual interaction, continued pressure beyond that point may be considered coercive. Ignoring or dismissing the objections of another person may also be a form of coercion.
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.
Incapacitation is the inability, temporarily or permanently, to give consent, because the individual is mentally and/or physically helpless due to drug or alcohol consumption, taken either voluntarily or involuntarily, or the individual is unconscious, asleep or otherwise unaware that the sexual activity is occurring. In addition, an individual is incapacitated if they demonstrate that they are unaware of where they are, how they arrived at a location, or why or how they became engaged in a sexual interaction. Where alcohol is involved, incapacitation is a state beyond drunkenness or intoxication.
Domestic Violence - 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 receiving grant monies, 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.
Dating Violence - violence by a person who has been in a romantic or intimate relationship with the victim. Whether there was such relationship will be gauged by its length, type, and frequency of interaction.
Stalking - engaging in a course of conduct (e.g., repeatedly following, harassing, threatening or intimidating another by telephone, mail, electronic communication, social media, or any other action, device or method) 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 other emotional distress.
Retaliation: No member of the College community or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by this policy, Title IX, or 34 CFR Part 106, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by this policy, Title IX, or 34 CFR Part 106, will also be considered retaliation by the College. Retaliation can be committed by any individual or group of individuals, not just a Respondent or a Complainant. Retaliation may constitute a violation of Olin’s 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.
B. State Law Definitions
The following are excerpts compiled from the Massachusetts General Laws that describe how certain relevant behavior is defined in Massachusetts. These definitions are not identical to the definitions of conduct prohibited in Olin’s Sexual Misconduct Policy, but Olin considered these definitions in developing its Policy.
Sexual Assault (Rape, Indecent Assault & Battery): (Compiled from M.G.L. Ch. 265, § 13 & 22)
Sexual assault is defined under Massachusetts law as rape or indecent assault and battery.
Rape is defined as occurring when a person has “sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise…”
Indecent assault and battery occurs when one person touches another person in an “indecent” way. Examples of indecent assault and battery include touching a person’s buttocks, breasts, or genitals without consent. The Commonwealth must prove that the defendant touched the alleged victim without justification or excuse; and that the touching was “indecent;” and that the alleged victim did not consent.
An indecent act is one that is fundamentally offensive to contemporary standards of decency.
Stalking: (Compiled from M.G.L. Ch. 265, § 43)
The act of “willfully and maliciously engaging in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress and makes a threat with the intent to place the person in imminent fear of death or bodily injury.” Stalking includes, but is not limited to, acts or threats conducted by mail or by use of a telephonic or electronic communication device. Communications include, but are not limited to, electronic mail, internet communications, instant messages or facsimile communications.
Domestic and Dating Violence: (Compiled from M.G.L. Ch. 209A)
“Abuse” is defined as “the occurrence of one or more of the following acts between family or household members:
- Attempting to cause or causing physical harm;
- Placing another in fear of imminent serious physical harm; or
- Causing another to engage involuntarily in sexual relations by force, threat, or duress.”
Family or household members are defined as “persons who:
- Are or were married to one another;
- Are or were residing together in the same household;
- Are or were related by blood or marriage;
- Have a child in common regardless of whether they have ever married or lived together; or
- Are or have been in a substantive relationship, which shall be adjudged in consideration of the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.”
Consent: (not defined by M.G.L. in this context)
In Massachusetts, it is illegal to have sex under any circumstances with someone who is incapable of giving consent due to incapacity or impairment; incapacity or impairment may be caused by intoxication or drugs, or because a victim is underage, mentally impaired, unconscious, or asleep. For purposes of the Olin Sexual Misconduct Policy, consent is an explicitly communicated, reversible, mutual agreement to which all parties are capable of making a decision.
Massachusetts has several laws that define the age of consent and the additional penalties that attach if a person is under the age of 16 or 14. E.g., statutory rape laws, indecent and assault and battery on a person under the age of 14.
Retaliation: (Referenced by M.G.L. in various contexts, e.g., Chap. 151B.)
Other Definitions
Actual Knowledge means notice of sexual harassment or allegations of sexual harassment to the College’s Title IX Coordinator or any official of the College who has authority to institute corrective measures on behalf of the College. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the College with actual knowledge is also the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the College. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator.
Complainant means an individual who is alleged to be the victim of conduct that could constitute sexual harassment. At the time of filing a formal complaint, the complainant must be participating in or attempting to participate in the College’s education program or activity.
Education Program or Activity includes locations, events, or circumstances over which the College exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.
Formal Complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the College investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the College with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information listed for the Title IX Coordinator in this policy and by any additional method designated by the College. As used in this paragraph, the phrase “document filed by a complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the College) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party.
Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
Supportive Measures means non- disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the College’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the College’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The College will maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the College to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.
Student includes all persons taking courses at the College both full and part-time, pursuing undergraduate, graduate or professional studies; and those who attend post-secondary education institutions other than Olin College and who reside in College residence halls. Persons who are not officially enrolled for a term, but who have a continuing relationship with the College are considered students. Solely for purposes of this definition, the term “employee of the College” does not include students who are employed by the College through a work-study or similar program.