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Harassment and Sexual Misconduct Policy
INTRODUCTION
The Harassment and Sexual Misconduct Board exists to ensure that all students, faculty, staff and guests can work, study, and enjoy the society of the College community without being subjected to harassment or sexual misconduct.
Harassment is a type of discrimination prohibited by college policy and by federal laws such as Title VII and Title IX. Hamilton College affirms every individual's right to freedom of expression, and fosters the culture of tolerance and civility necessary to fulfill its educational goals. The academic freedom of an educational institution can create a tension with the prohibition of harassing behaviors. Hamilton College is a community that values freedom of speech and expression. As conveyed by the federal Constitution, these rights have limitations, and the same is true here. Limitations on free speech include: 1) endangering or threatening someone, 2) inciting violence, using "fighting words" directed at an individual or group that directly provoke violence, 3) defamation, 4) obscenity, and 5) discrimination that limits someone's educational or employment access and/or opportunities. Hamilton College does not consider visual and/or aural demonstrations, depictions or conduct to be sexual harassment when there is a legitimate pedagogical context, such as material having an appropriate connection to course subject matter.
Hamilton College believes in a zero tolerance policy for sexual misconduct. When a respondent is found to have violated this policy, serious sanctions will be imposed. All members of the community are expected to conduct themselves in a manner that does not infringe upon the rights of others. The Hamilton College Harassment and Sexual Misconduct Policy has been developed to reaffirm these principles and to provide recourse for those individuals whose rights have been violated. This policy serves as a means to determine, after the fact, if behaviors trespass on community values. By encouraging a clear understanding of the College's expectations for sexual communication, the Board also hopes to prevent violations.
DEFINITION OF PROHIBITED CONDUCT
A. HARASSMENT
- Harassment is verbal or physical conduct based on a person's race, color, religion, creed, ethnicity, gender or gender identity, age, sexual and affectional orientation/associations, or mental/physical disabilities that is sufficiently severe, pervasive/persistent or patently offensive that it has the purpose or effect of unreasonably interfering with that person's work or academic performance, or that creates an intimidating, hostile, or offensive working, educational, or living environment, from both a subjective (the alleged victim's) and an objective (any reasonable person's) viewpoint.
- Sexual Harassmentis gender-based verbal or physical conduct that has the purpose or effect of unreasonably interfering with an individual's work or academic performance or that creates an intimidating, hostile, or offensive working, educational, or living environment. Quid pro quo sexual harassment exists when submission to or rejection of unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature results in adverse educational or employment action, or the threat of such adverse action, or when submission is made a condition of educational or employment advancement.
Zero tolerance extends to those who retaliate for complaints of harassment. Hamilton College views retaliatory harassment to be just as severe as the initial harassment itself.
B. SEXUAL MISCONDUCT
While the policy below is quite detailed and specific, the expectations of this community can be summarized in this simple paragraph. In order for individuals to engage in sexual activity of any type with each other, there must be clear consent. Consent is sexual permission. Consent can be given by word or action, but non-verbal consent is less clear than explicit verbal consent. Consent to some form of sexual activity cannot be automatically taken as consent to any other sexual activity. Silence--without actions demonstrating permission--cannot be assumed to show consent. There is a difference between seduction and coercion. Coerced sexual activity violates this policy just as much as physically forced sex does. Coercion happens when someone unreasonably pressures someone else for sex. Persons using alcohol or other drugs are considered unable to give valid consent if they cannot appreciate the who, what, when, where, why, or how of a sexual interaction. Individuals who consent to sex must be able to understand what they are doing. Under this policy, "No" always means "No," and "Yes" may not always mean "Yes."
- Non-Consensual Sexual Contact iis any intentional sexual touching, however slight, with any body part or object, by a man or a woman upon a man or a woman, without effective consent.
- Non-Consensual Sexual Intercourse is any sexual penetration (anal, oral, or vaginal), however slight, with any body part or object by a man or woman upon a man or woman, without effective consent.
Effective consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear that he or she does not want sex, wants it to stop, or does not wish to go past a certain point of sexual interaction, continued pressure beyond that point is coercive.
In order to give effective consent, one must be of legal age, which is 17 in New York State.
Someone who has sexual activity with someone whom they know to be -- or should know to be– mentally or physically incapacitated (alcohol or other drug use, unconsciousness or blackout) is in violation of this policy. This policy also covers someone whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of so-called "date rape" drugs. Possession, use and/or distribution of any of these substances (including Rohypnol, Ketomine, GHB, Burundanga and others) is prohibited, and administering any of these drugs to another for the purpose of inducing incapacity is a violation of this policy.
Sexual misconduct is an act of violence prohibited, in separate ways, by New York State law and Hamilton College policy. Thus, offenders may be prosecuted under New York State criminal statutes, and subject to disciplinary action by the College. The College may choose to pursue disciplinary action while criminal action is pending, or even if criminal justice authorities choose not to prosecute.
- Sexual Exploitation occurs when a person takes non-consensual or abusive sexual advantage of another to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute another form of sexual misconduct. Examples of sexual exploitation include, but are not limited to, prostitution, non-consensual video or audio-taping of sexual or other private activity, exceeding the boundaries of consent (e.g. permitting others to hide in a closet and observe consensual sexual activity, videotaping of a person using a bathroom), engaging in voyeurism, or engaging in consensual sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) and without informing the other person of such infection.
CHOICE OF ACTIONS IN RESPONSE TO HARASSMENT AND SEXUAL MISCONDUCT
Individuals or groups who have been harassed, or are victims of sexual misconduct as defined above, have recourse through the grievance procedures of the College established by this Policy. These grievance procedures apply to complaints regarding incidents taking place either on the Hamilton College campus or at College-sponsored events off campus.
The Harassment and Sexual Misconduct Board stands ready to respond to complaints in a variety of ways. Anyone who wishes to discuss a concern may approach any individual member of the Board. The confidentiality of all parties to a complaint of harassment or sexual misconduct must be strictly observed by the Board and by supervisory College officers, except insofar as it interferes with the College's obligation to fully investigate the allegations and to record statistics in keeping with the law. Where confidentiality is not strictly kept, it will still be tightly controlled on a need-to-know basis. Dissemination of information and/or written materials to persons not involved in the complaint procedure is not permitted. Campus clergy and professionals in the Counseling and Health Centers, including emergency medical technicians (EMTs), are the only Hamilton College employees who can offer legally protected confidentiality.
The College will not inform students' parents or guardians of their involvement in a complaint of harassment or sexual misconduct unless they are in major medical, disciplinary, or academic jeopardy, but students are strongly encouraged to inform their parents or guardians. College officials will directly inform parents or guardians when requested to do so by a student.
For all complaints of harassment or sexual misconduct, the College officer will consult with the Chair of the Harassment and Sexual Misconduct Board. The Harassment and Sexual Misconduct Board lacks jurisdiction when a complaint involves an employee as respondent and that employee faces dismissal.
The complainant has the option of three levels of response by the Harassment and Sexual Misconduct Board, which are briefly described below.
A. Information
A member of the community may talk with any member of the Board about harassment or sexual misconduct. Complainants may, if they wish, have a friend or advisor accompany them when they discuss a problem with a Board member. Information about options available under this policy to address allegations of harassment or sexual misconduct and their possible outcomes will be discussed. No written records will be kept. The Board member will report to the Chair of the Board only that someone sought information regarding harassment or sexual misconduct, and identities will remain confidential. However, if a threat or danger to the victim or community is apparent, the College has the obligation to investigate a reported alleged violation of this policy.
B. Mediation
In the case of harassment a complainant may request a referral to a campus mediator (e.g. a member of the counseling center staff) who will try to facilitate understanding of the nature of the complaint by the respondent, clear up misunderstanding, and resolve the complaint while maintaining confidentiality. Mediation is particularly appropriate when the complainant wants help in addressing the issue without pursuing formal action.
Allegations of non-consensual sexual intercourse are not addressed through mediation.
A person who desires mediation should write a letter to the Chair and/or the appropriate College Officer outlining the complaint and requesting mediation. The Dean of Students will respond, with the Chair of the Board, to complaints brought by one student against another. The Dean of the Faculty will respond, with the Chair, to complaints against members of the faculty. The supervising College Officer will respond, with the Chair, to complaints brought against a member of the staff or administration. The Chair and College Officer will meet with the complainant and refer the complaint to a trained campus mediator. A person seeking mediation must agree to be identified to the respondent. A campus mediator will begin mediation efforts promptly and will report to the Chair that the mediation occurred. Complainants are strongly encouraged not to discuss the complaint with other members of the community except as required by the need for psychological counseling.
At the conclusion of a successful mediation, both parties will sign a statement agreeing that the mediation was successful. If the mediation is unsuccessful, the complainant can proceed to a formal complaint and hearing within six months of the mediation. A copy of the signed statement will constitute the record of the mediation.
C. Formal Complaint
AAn individual may file a formal complaint by submitting to the Chair a signed written statement, including the time, place and nature of the alleged offense and the name of the respondent, at a minimum.
This will activate procedures outlined in the Harassment and Sexual Misconduct Board Procedures and will involve the Chair of the Board, the appropriate College Officer and the Hearing Committee of the Board. The Dean of Students will respond, with the Chair of the Board, to complaints brought by one student against another. The supervising Officer will respond, with the Chair, to complaints involving members of the faculty, staff, or administration.
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