Definitions of Prohibited Conduct
Sexual Misconduct is an umbrella term used to encompass the full range of unacceptable conduct of a sexual nature that may be adjudicated at Colby. It includes Sexual Harassment, Sexual Assault, Sexual Exploitation, Intimate Partner Violence, Stalking, Sexual or Gender-Based Harassment, Complicity in the commission of any act prohibited by this policy, Retaliation, and any other acts of misconduct of a sexual nature.
Sexual Assault under Colby policy consists of (1) Sexual Contact and/or (2) Sexual Intercourse that occurs without (3) Affirmative Consent.
- Sexual Contact is:
- Any intentional sexual touching,
- However slight,
- With any object or body part (as described below),
- Performed by a person upon another person.
Sexual Contact includes (a) intentional touching of the breasts, buttocks, groin,
genitals or mouth, whether clothed or unclothed, or intentionally touching another person with any of these body parts; and (b) making another person touch you or themselves with or on any of these body parts.
(2) Sexual Intercourse is:
- Any penetration,
- However slight,
- With any object or body part (as described below),
- Performed by a person on another person.
Sexual intercourse includes (a) vaginal penetration by a penis, object, tongue,
finger, or any body parts; (b) anal penetration by a penis, object, tongue, finger, or any body parts; and (c) any contact, no matter how slight, between the mouth of one person and the genitalia of another person.
(3) Affirmative Consent is:
- Voluntary (freely given),
- Active, meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity at the same time, in the same way. Silence, without articulable actions demonstrating permission, cannot be assumed to show consent.
A person who wants to engage in a specific sexual activity is responsible for obtaining Affirmative Consent for that activity. Affirmative Consent may be withdrawn by any party at any time and is not unlimited. A party withdrawing consent should clearly communicate the withdrawal by words or actions. Once Affirmative Consent is withdrawn, the sexual activity must cease immediately. Consent to one form of Sexual Contact or activity does not constitute consent to other or all forms of Sexual Contact or activity. Each person in a sexual encounter must consent to each form of Sexual Contact or activity with each participant. Having a previous relationship or sexual encounters does not imply consent for future Sexual Contact or activity. However, in cases of prior relationships, the manner and nature of prior communications between the parties and the context of the relationship may have a bearing on whether there has been Affirmative Consent.
Affirmative Consent cannot be obtained by Force. Force includes (a) the use of physical violence, (b) threats, (c) intimidation, and/or (d) coercion. These types of conduct also constitute Prohibited Conduct under this policy.
- Physical violence means that a person is exerting control over any person through the use of physical force. Examples include but are not limited to hitting, punching, slapping, kicking, restraining, choking, and brandishing or using a weapon.
- Threats are words or actions that would compel a reasonable person to submit unwanted sexual activity. Examples include but are not limited to threats to harm the person physically; to end a relationship unless they submit to sexual activity at that time; to reveal private information to harm a person’s reputation; to cause a person academic or economic harm; or threats to harm oneself or others.
- Intimidation is an implied threat that a reasonable person knows or should know menaces or causes fear in another person. A person’s size alone does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g. blocking access to an exit or phone).
- Coercion is the use of unreasonable pressure to gain sexual access. Coercion is more than a momentary effort to persuade, entice, or attract another person to engage in sexual activity. When a person makes clear a decision not to engage in sexual activity, or makes a decision to stop sexual activity, or a decision not to go beyond a certain sexual activity, continued pressure to engage can be coercive. In evaluating whether coercion was used, the College will consider: (i) the frequency of the application of pressure; (ii) the intensity of the pressure; (iii) the degree of isolation of the person being pressured; (iv) the duration of the pressure; and (v) any other similar or related conduct.
Incapacitation means that a person lacks the ability to make rational, reasonable judgments about whether or not to engage in sexual activity and give Affirmative Consent. Affirmative Consent cannot be gained by taking advantage of the Incapacitation of another person, where the person initiating sexual activity actually knew or reasonably should have known the person was incapacitated.
A person who is incapacitated is unable, temporarily or permanently, to give Affirmative Consent because of mental or physical helplessness, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. A person may be incapacitated as a result of the consumption of alcohol or other drugs, or due to a temporary or permanent physical or mental health condition.
Incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily “incapacitated” merely as a result of drinking or using drugs. The impact of alcohol and other drugs varies from person to person.
In evaluating Affirmative Consent in cases of alleged incapacitation, the College asks two questions (1) Did the person initiating sexual activity actually know that the other person was incapacitated? (2) If not, should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “yes,” Affirmative Consent was absent and the conduct is likely a violation of this policy.
One is not expected to be a medical expert in assessing incapacitation. One must look for the common and obvious warning signs that show a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, common signs include slurred or incomprehensible speech; unsteady gait; combativeness; emotional volatility; vomiting and/or incontinence. A person who is incapacitated may not be able to understand or answer some of the following questions in a clear manner: “Do you know where you are?”; “Do you know how you got here?”; “Do you know what is happening?”; “Do you know who you are with?”
One should be cautious before engaging in Sexual Contact or Sexual Intercourse when either party has been drinking alcohol or using other drugs. The introduction of alcohol or other drugs may create ambiguity for either party as to whether Affirmative Consent has been sought or given. If one has doubt about either party’s level of intoxication, the safe and sensible thing to do is to forego all sexual activity at that time.
Being impaired by alcohol or other drugs is not a defense to any violation of this policy.
Sexual Exploitation is purposely or knowingly doing any of the following:
- Causing the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of or with the result of compromising that person’s ability to give Affirmative Consent to sexual activity;
- Allowing third parties to observe private sexual activity from a hidden location (e.g. closet or window) or through electronic means (e.g. Skype or live-streaming of images);
- Engaging in voyeurism (e.g., watching private sexual activity without the consent of the participants) or viewing another person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent;
- Recording or photographing private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent;
- Disseminating or posting of images or recordings of private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent;
- Prostituting another person;
- Knowingly exposing another person to a sexually transmitted infection or virus without the other’s knowledge;
- Exposing one’s genitals or inducing a person to expose their genitals without consent;
- Any other similar conduct.
Intimate Partner Violence includes “dating violence” and “domestic violence” as defined by VAWA. Intimate Partner Violence includes any act of violence, threatened act of violence or imposition of substantial emotional distress (multiple acts that result in significant mental suffering or anguish) that occurs between individuals who are involved or have been involved in a sexual, dating, spousal, domestic or other intimate relationship. The College will evaluate the existence of an intimate relationship based on the complainant’s statement and taking into consideration the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. Intimate Partner Violence may include any form of Prohibited Conduct under this policy, including Sexual Assault, Stalking, and Physical Violence. Physical Violence is threatening or causing physical harm or engaging in other conduct that threatens or endangers the health or safety of any person. Physical Violence will be addressed under this policy if it involves Sexual or Gender-Based Harassment, Intimate Partner Violence, or is part of a course of conduct under the Stalking definition.
Stalking occurs when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear bodily injury or to experience substantial emotional distress. “Course of conduct” means multiple acts, including but not limited to acts in which a person (i) directly, indirectly, or through third parties, (ii) by any action, method, device, or means, (iii) follows, monitors, observes, surveils, threatens, or communicates to or about another person and/or takes, damages or withholds another person’s property. “Substantial emotional distress” means significant mental suffering or anguish.
Stalking includes “cyber-stalking,” a particular form of stalking in which a person uses electronic media such as the Internet, social networks or media, blogs, electronic devices, texts, or other similar devices or forms of contact. It also includes, but is not limited to, sending unsolicited communications about a person, or their friends, family or co-workers, or sending/posting unwelcome and unsolicited messages with another username.
Sexual or Gender-Based Harassment
Sexual Harassment is any unwelcome sexual advance, request for sexual favors, or other unwanted conduct of a sexual nature, whether verbal, non-verbal, graphic, physical or otherwise, when the conditions outlined in (1) and (2), below, are present.
Gender-Based Harassment includes harassment based on a person’s actual or perceived gender, sex, sexual orientation, gender identity or expression, or gender stereotypes which may include acts of aggression, intimidation, or hostility, whether verbal or non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature, when the conditions outlined in (1) and/or (2), below, are present.
- Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any College programs and/or activities, or is used as the basis for College decisions affecting the individual (often referred to as “quid pro quo” harassment); or
- Such conduct creates a hostile environment. A “hostile environment” exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits, or deprives an individual from participating in or benefiting from the College’s educational or employment programs and/or activities.
Conduct must be deemed severe, persistent, or pervasive from both a subjective and an objective perspective. In evaluating whether a hostile environment exists, the College will consider the totality of the known circumstances, including but not necessarily limited to:
- The frequency, nature and severity of the conduct;
- Whether the conduct was physically threatening;
- The effect of the conduct on the complainant’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 complainant’s educational or work performance and/or College programs or activities; and
- Whether the conduct implicates concerns related to academic freedom or protected speech.
A hostile environment can be created by persistent or pervasive conduct or by a single or isolated incident, if it is sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. A single incident of Sexual Assault, for example, may be sufficiently severe to create a hostile environment. In contrast, the perceived offensiveness of a single verbal or written expression, standing alone, is typically not sufficient to constitute a hostile environment.
Retaliation means any adverse action taken against a person either for making a good faith report of Prohibited Conduct, or participating in any investigation or proceeding under this policy (even if the report is later not proven). Retaliation includes threatening, intimidating, harassing, coercing or any other conduct that would discourage a reasonable person from engaging in activity protected by this policy, either by a respondent or any person connected with the respondent. Retaliation may be present even where there is a finding of “no responsibility” on the allegations of Prohibited Conduct. Retaliation does not include any good faith actions pursued in response to any report of Prohibited Conduct.
The College will take immediate action to a report of retaliation.
Complicity is any action taken by a person with the purpose of aiding, facilitating, promoting or encouraging the commission of an act of Prohibited Conduct by another person.
Colby College’s complete Sexual Misconduct Policy is in Colby’s Student Handbook.