What is Sexual Harassment?

What is Sexual Harassment?

It is the policy of the St. Andrews to provide fair, equitable, reliable, and compassionate responses to any type of sexual discrimination or violence of which it is aware to prevent members of the campus community from being subjected to any form of unlawful discrimination, including sexual discrimination (sexual harassment, sexual misconduct, sexual violence, retaliation, and domestic violence, dating violence, or stalking).

Harassment, Including Sexual Harassment

For the purpose of this policy, “harassment” is defined as unwelcome conduct that a reasonable person would find both subjectively and objectively offensive, as well as severe or pervasive, based on a person’s race, color, national origin, sex, sexual orientation, gender identity, sex stereotypes, pregnancy or related conditions, parental status, disability, age, religion, veteran status, or any other characteristic or status protected by applicable local, state, or federal law.   Sexual Harassment includes all forms of harassment based on sex, sexual orientation, sex characteristics, sex stereotypes, gender, gender expression, gender identity, pregnancy or related conditions, or parental status.

Inappropriate and illegal verbal, physical or electronic conduct constitutes harassment when:

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, academic advancement, or campus involvement;
• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions, academic decisions, or residential and other campus involvement opportunities affecting such individual; or
• Such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance or creating an intimidating, hostile, or offensive living, working, academic, or campus involvement environment.

Harassment, including sexual harassment, while taking many forms, includes, but is not limited to, the following types of conduct:

Verbal: Inappropriate noises, remarks or jokes; negative stereotyping; unwelcome remarks about a person’s body, color, physical characteristics or appearance; sexual propositions; sexual innuendoes or sexual remarks about clothing, body or sexual activities.

Nonverbal: Demeaning or offensive pictures, posters, calendars, objects, cartoons, cards, inappropriate gestures or offensive notes or letters. This extends to all forms of social media as well. No messages with derogatory or inflammatory remarks about an individual’s or group’s race, religion, national origin, physical attributes, disability, age, gender, or sexual preference will be tolerated or transmitted; unwanted, protracted staring or leering are also forms of nonverbal sexual harassment.

Physical: Aggressive or violent touching, imitating or exaggerating another’s physical characteristics, threatening or intimidating behavior; touching, hugging, patting, or pinching that is uninvited and/or unwanted.

Retaliatory: Assigning low grades, changing work assignments, or refusing to cooperate with a person who has complained about or resisted harassment or discrimination; denying participation, membership; making retaliating verbal or physical threats to a person who has reported or resisted harassment or discrimination; imposing physical, social, or emotional sanctions on a person who has reported or resisted harassment or discrimination (see also section on Retaliation and Reprisals, below).

Harassment, including sexual harassment, includes harassment of women by men, men by women, women by women and men by men. It can occur between teachers and students, teachers and staff, staff and students, and those at different levels of management, as well as between persons of the same University status, i.e., student-student, faculty-faculty, and staff-staff. Harassment, including sexual harassment, can also occur between any St. Andrews community member (student, faculty, or staff) and a third party. It may be found in a single episode, as well as in persistent behavior. Many times, the person accused of harassment is unaware that behavior is inappropriate, coercive, or misunderstood.

Even the accusation of harassment can have a destructive impact on the academic community. As such, St. Andrews will not tolerate any form of discrimination or harassment, or false accusations of such. In the interest of protecting the campus community, St. Andrews has developed procedures to investigate and resolve harassment complaints. Those procedures are set forth in Section III of this policy.

What is Consent?

Consent must be informed, voluntary, and mutual, and can be withdrawn at any time. There is no consent when there is force, expressed or implied, or when coercion, intimidation, threats, or duress is used. Whether a person has taken advantage of a position of influence over another person may be a factor in determining consent. Silence or absence of resistance does not imply consent. Consent in terms of sexual conduct is freely and actively agreeing together, with clear understanding, to engage in mutually agreed upon sexual activities.

Persons who can never provide Consent include:

• Minors (in North Carolina, this is anyone under the age of 18);
• People with cognitive or social limitations that render them incapable of providing consent;
• Incapacitated persons: Incapacitation can occur through excessive alcohol or drug use or for other reasons such as unconsciousness, being asleep, or being otherwise physically unable to respond fully and effectively to the environment, such that they cannot make a knowing agreement to sexual activity. In the case of drugs, alcohol or other impairing substances, incapacitation is determined by how the person’s decision-making ability is affected and the ability of the person to make informed judgments. The relevant standard for review is whether the person alleged to have engaged in sexual misconduct should have known the reporting party was incapacitated.

Consent is dynamic and ongoing throughout any given sexual encounter. It can be revoked at any time by either party. It does not “carry over” to future encounters. If one person’s response is unclear or ambiguous, it is the other person’s responsibility to confirm Consent. Finally, intoxication is not the same as incapacitation. Thus, the use of alcohol or other drugs does not release anyone from the requirement to seek and provide Consent.

Other Forms of Sexual Discrimination

Sexual misconduct, violence, retaliation, dating violence, domestic violence, and stalking are forms of sexual discrimination. St. Andrews will not tolerate sexual discrimination in any form and, in the interest of protecting the campus community, St. Andrews has developed procedures to investigate and resolve such sexual complaints. Those procedures are set forth below, under Section III of this policy.

Unwelcome Sexual Experiences: Conduct is considered “unwelcome” if the recipient did not request or invite it and considers the conduct to be undesirable or offensive.

Gender-Based Sex Discrimination: Unwelcome sexually discriminatory conduct based on a person’s actual or perceived sex, including conduct based on gender identity, gender expression, and nonconformity with gender stereotypes. Discriminatory acts on the basis of Gender Identity are considered “hate crimes”.

Sexual Misconduct

Sexual misconduct occurs in the absence of consent, including when the person is unable to refuse to participate, or despite a person’s refusal to participate in the activity. Sexual misconduct activities would include, but are not limited to:

• Giving sedative or “date rape” drugs such as GHB or Rohypnol to someone;
• Obscene or indecent behavior such as exposing one’s genitals/breasts without Consent

or despite refusal;

• Deliberate observation, photography, or other forms of recording of others for sex-related reasons, including posting such images without Consent or despite refusal;
• Possessing or distributing illegal or unwanted pornographic images;
• Intentional transmission of HIV or other sexually transmittable diseases (STDs);
• Prostitution;
• Being an accomplice in the commission of sexual misconduct;
• Attempting sexual misconduct.

Sexual Violence

In alignment with the U.S. Department of Justice, the St. Andrews defines sexual violence as occurring when someone is forced to take part in a sex act when this person has not provided consent, including when the person is unable to refuse to participate, or despite a person’s refusal to participate in the activity. “Force” includes the use of threatening words, gestures, or weapons to convey the intent to harm in order to intimidate someone into having sexual contact. Sexual Violence would include, but would not be limited to:

• Sexual Assault: Any offense that meets the definition of rape, fondling, incest, or statutory rape;
• Non-Consensual Sexual Intercourse: Sexual intercourse of any duration, using any object (animate or inanimate), imposed upon a person without their consent or despite their refusal. The FBI Summary Definition of rape is: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim”;
• Non-Consensual Sexual Touching: Also called “fondling”, any sexual touching (for example, of another person’s genitals/breasts/mouth) of any duration, including the use of an object (animate or inanimate), imposed upon a person without their consent or despite their refusal. This includes making one person sexually touch another person against her/his will;
• Continuing sexual activity of any sort after one person has clearly communicated, through words or actions that she/he does not wish to continue the sexual contact;
• Sexual contact with a minor or child;
• Being an accomplice to sexual violence; and
• Attempting acts of sexual violence

 Dating Violence

The U.S. Department of Justice and the University define Dating Violence as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; and where the existence of such a relationship shall be determined based on a consideration of the following factors: The length of the relationship

• The type of relationship
• The frequency of interaction between the persons involved in the relationship

“Dating Violence” is not explicitly defined in North Carolina state’s code. Under the Violence Against Women Act (2014), Dating Violence is defined as: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.

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 purpose of this definition—

1. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
2. Dating violence does not include acts covered under the definition of domestic violence.

Domestic Violence

The U.S. Department of Justice and the University define Domestic Violence as “a pattern of abusive behavior that is used by an intimate partner to gain or maintain power and control over the other intimate partner. Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”

A Domestic partner could include:

• A current or former spouse or intimate partner
•  A person related to you by blood or marriage such as a cousin, parent-in-law, etc…
• Any person who has lived in the same home with you as “part of the family”, including a roommate or boyfriend/girlfriend
• The parent of your child, even if you have never been married or lived together
• Incest
• Sexual intercourse between persons who are related within the degrees to which marriage would be prohibited by law.
• Statutory Rape
• Sexual intercourse with a person who is under the statutory age of consent. In North Carolina, the age of consent is 18.

Stalking

The U.S. Department of Justice and the University define stalking as a “pattern of repeated and unwanted attention, harassment, contact, or any other course of conduct directed at a specific person that would cause a reasonable person to feel fear” for their own or another’s safety or to experience emotional distress. Additionally, along with the State of Florida, the University identifies as stalker as a person who “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person”.

Retaliation and Reprisals

No individual will suffer any retaliation or reprisals for truthfully reporting any incidents or making any complaints of discrimination, including sexual discrimination (sexual harassment, sexual misconduct, sexual violence, dating violence, domestic violence, or stalking), or for participating in any investigation of incidents of discrimination or perceived discrimination. Acts of retaliation or reprisal under these circumstances are prohibited under Title IX, the Campus SaVE Act, and other state and federal laws and are strictly prohibited by the university.

Reprisal and retaliation, either through direct actions or as a third party, will result in disciplinary consequences. Examples of retaliations or reprisals include, but are not limited to:

• Assigning low grades, changing work assignments, or refusing to cooperate with a person who has complained about or resisted harassment or discrimination;
• Denying participation, membership, or relationship to a person who has reported or resisted harassment or discrimination;
• Imposing physical, social, or emotional sanctions on a person who has reported or resisted harassment or discrimination;
• Failing to comply with No Contact Directives, acting in ways that interfere with the process or outcome of an anti discrimination/anti-harassment investigation, or failing to respect the privacy and dignity of those involved in such an investigation.

A range of sanctions is possible, up to and including removal, suspension, or expulsion from the St. Andrews. Sanctions will be determined by the appropriate Title IX Officer in collaboration with other campus officials.

False Accusations

If an investigation results in a finding that the Reporting Party intentionally falsely accused another of sexual discrimination (including sexual harassment, sexual misconduct, or sexual violence), the Reporting Party will be subject to appropriate sanctions, as described below, including the possibility of expulsion, suspension and/or termination (in the case of employees). The fact that no action is taken as a result of the complaint against the Responding Party does not mean that the complaint was not false or malicious.