VIII. PROHIBITED CONDUCT UNDER OLIN’S SEXUAL AND INTERPERSONAL MISCONDUCT POLICY

A. Definitions of Prohibited Conduct Under Olin's Sexual and Interpersonal Misconduct Policy

The College’s Sexual and Interpersonal Misconduct Policy governs incidents of sexual harassment, sexual assault, domestic violence, dating violence, and stalking (and any retaliation associated with these).  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.

The following are the definitions of conduct that is prohibited under Olin’s Sexual and Interpersonal Misconduct 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 Sexual and Interpersonal Misconduct 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, V, and VI.

Title IX Sexual Harassment:

Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following:

1. 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;
2. 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
3. “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).

 

Title IX Sexual Harassment is conduct occurring within a College education program against a person in the United States. An ‘‘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. Allegations of prohibited conduct that do not fall under this definition are handled under Non-Title IX definitions, policies, and procedures.

 

 

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.

Title IX 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 and includes:

 

1. Rape:
   • The carnal knowledge of a person (i.e., penile-vaginal penetration), without the consent of that person, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity;
   • Oral or anal sexual intercourse (i.e., penile penetration) with another person, without the consent of that person, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity;
   • To use an object or instrument (e.g., an inanimate object or body part other than a penis) to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of that person, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity;

    

2. Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of that person, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity (for purposes of this definition, "private body parts" includes breasts, buttocks, or genitals, whether clothed or unclothed);

    

3. Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; or

    

4. Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent.

Title IX Dating Violence for purposes of the Title IX Sexual Harassment definition is conduct on the basis of sex committed in an education program or activity of the College in the United States that constitutes violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant. The existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

 

For the purposes of this definition—

(A) Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.

(B) Dating violence does not include acts covered under the definition of domestic violence.

 

Title IX Domestic Violence for purposes of the Title IX Sexual Harassment definition is conduct on the basis of sex committed in an education program or activity of the College in the United States that constitutes a felony or misdemeanor crime of violence committed—

(A) By a current or former spouse or intimate partner of the victim;

(B) By a person with whom the victim shares a child in common;

(C) By a person who is cohabiting with, or has cohabited with, the victim as a spouse or intimate partner;

(D) By a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or

(E) 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 in which the crime of violence occurred.

Title IX Stalking for purposes of the Title IX Sexual Harassment definition is conduct on the basis of sex committed in an education program or activity of the College in the United States that constitutes engaging in a course of conduct directed at a specific person that would cause a reasonable person to

 

(A) Fear for the person’s safety or the safety of others; or

(B) Suffer substantial emotional distress.

 

     (ii) For purposes of this definition—

(A) Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, 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.

(B) Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.

(C) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

 

Examples of stalking behaviors or activities include, but are not limited to the following, if they occur in the context of stalking as defined above (i.e., the behaviors or activities would cause a reasonable person to fear for their  safety or the safety of others, or to suffer substantial emotional distress): (1) non-consensual communication, including face-to-face communication, telephone calls, voice messages, e-mails, text messages, written letters, gifts, or any other communications that are unwelcome; (2) use of online, electronic or digital technologies, such as posting pictures or text in chat rooms or on websites, sending unwanted or unsolicited e-mail or talk requests, posting private or public messages on Internet sites, social networks, and/or school bulletin boards, installing spyware on a person’s computer, or using Global Positioning Systems (GPS) or similar technology to monitor a person; (3) pursuing, following, waiting for, or showing up uninvited at or near a residence, workplace, classroom, or other places frequented by the person; (4) surveillance or other types of observation, including staring and voyeurism; (5) trespassing; (6) vandalism; (7) non-consensual touching; (8) direct verbal or physical threats against a person or a person’s family member, pet or personal property; (9) gathering information about a person from friends, family, or co-workers; (10) accessing private information through unauthorized means; (11) threats to harm self or others; (12) defamation and/or lying to others about the person; and (13) using a third party or parties to accomplish any of the above.

 

Non-Title IX Misconduct

Non-Title IX Misconduct is Prohibited Conduct that falls within the scope of this policy and the definitions below but that does not fall within the definition of Title IX Sexual Harassment, either due to the nature of the conduct or because it did not reportedly occur within a program or activity of the College in the United States. Behavior that falls within the definition of Non-Title IX Misconduct violates College policy and is prohibited. Such conduct is defined for purposes of this policy as:

 

Non-Title IX Sexual Harassment is a form of sex discrimination that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the purpose or effect of substantially interfering with an individual’s work or academic performance or creating an intimidating, hostile, or offensive working, shared living, or educational environment, on the basis of sex. The College will determine whether conduct falls within this definition by using both an objective standard (that is, would a reasonable person experience the conduct as intimidating, hostile or offensive as defined here) and a subjective standard (that is, did the person actually perceive the conduct as intimidating, hostile or offensive as defined here).

 

Examples of sexual harassment include, but are not limited to the following, when such acts or behavior come within the above definition:

• touching or grabbing any part of a person’s body (in a manner that is sexual or offensive on the   basis of sex but that does not constitute “fondling”, which is a form of Title IX Sexual Assault or Non-Title IX Sexual Assault as defined above and below) after that person has indicated, or it is known or should be known, that such physical contact is unwelcome;  and the person knew or should reasonably have known that the other person did not or would not welcome such physical contact;

• continuing to ask a person to socialize on or off-campus when that person has indicated that they are not interested;

• displaying or transmitting sexually suggestive pictures, videos, objects, cartoons, messages, web links, posters or any other sexually suggestive content/media content or posters if it is known or should be known that the behavior is unwelcome;

• continuing to write sexually suggestive notes or letters if it is known or should be known that the person does not welcome such behavior;

• referring to or calling a person a sexualized name if it is known or should be known that the person does not welcome such behavior;

• regularly telling sexual jokes or using sexually vulgar or explicit language in the presence of a person if it is known or should be known that the person does not welcome such behavior;

• communicating derogatory or provoking remarks about or relating to a person’s sex, gender identity or sexual orientation;

• directing harassing acts or behavior against a person on the basis of their sex, gender identity or sexual orientation; or

• off-campus conduct which falls within the above definition and affects a person’s on-campus educational, shared living, or work environment.

 

Non-Title IX Sexual Assault is sexual assault (i.e., rape, fondling, incest or statutory rape) as defined in the Title IX Sexual Assault definition above that did not reportedly occur in a program or activity of the College in the United States, and attempts to commit such misconduct.

 

Non-Title IX Domestic Violence is domestic violence as defined in the Title IX Domestic Violence definition above that did not reportedly occur in a program or activity of the College in the United States.

 

Non-Title IX Dating Violence is dating violence as defined in the Title IX Dating Violence definition above that did not reportedly occur in a program or activity of the College in the United States.

 

Non-Title IX Stalking is stalking as defined in the Title IX Stalking definition above that did not reportedly occur in a program or activity of the College in the United States, or that otherwise fits within the definition of stalking but does not fall within the Title IX Stalking definition because the reported conduct is not directed at the complainant on the basis of sex.

 

Non-Title IX Sexual Exploitation occurs when a person takes sexual advantage of another person for the benefit of anyone other than that other person without that other person’s consent, and attempted sexual exploitation. Examples of sexually exploitative behavior include, but are not limited to: (1) video recording or photographing of sexual acts or nudity of another member of the College community without the consent of a person involved; (2) transmitting such video recordings or photographs without the consent of the person involved; (3) viewing or allowing or aiding others to view another person’s sexual activity, intimate body parts, or nudity without the person’s consent; and (4) sexual exhibitionism or exposure of one’s genitalia in the presence of others without their 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.


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 and Interpersonal 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.