PROHIBITED CONDUCT AND DEFINITIONS
Advisor of Choice: An advisor of choice is a person selected by the Complainant or Respondent to advise and accompany them throughout the investigation and adjudication process, as well as meetings with the Title IX Coordinator or designee. An advisor of choice may be any person, including an attorney. The College does not appoint or pay for an advisor of choice. An advisor of choice’s role is limited to the functions further described in this policy.
Affirmative Consent: Wells College expects that any sexual activity or sexual contact will be based on affirmative consent to the specific sexual activity. All references to consent in this policy will mean affirmative consent as defined in this policy. Under New York law, affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions if those words or actions create clear permission regarding willingness to engage in sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based on a participant’s sex, sexual orientation, gender identity, or gender expression.
The following are essential elements of effective consent:
- Informed and reciprocal: All parties must demonstrate a clear and mutual understanding of the nature and scope of the specific actions to which they are consenting and a willingness to do the same thing, at the same time, in the same way.
- Freely and actively given: Consent cannot be obtained through force, coercion, threats, intimidation, or pressure, or if the other party is incapacitated.
- Mutually understandable: Communication regarding consent consists of mutually understandable words and/or actions that indicate an unambiguous willingness to engage in sexual activity. In the absence of clear communication or outward demonstration, there is no consent. Consent may not be inferred from silence, passivity, lack of resistance, or lack of active response. An individual who does not physically resist or verbally refuse sexual activity is not necessarily giving consent.
- Not indefinite: Consent may be withdrawn by any party at any time. Recognizing the dynamic nature of the sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate clearly throughout all stages of sexual activity. Withdrawal of consent can be an expressed “no” or can be based on an outward demonstration that conveys that an individual is hesitant, confused, uncertain, or is no longer a mutual participant. Once consent is withdrawn, the sexual activity must cease immediately, and all parties must obtain mutually expressed or clearly stated consent before continuing further sexual activity.
- Not unlimited: Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to sexual activity with one person constitute consent to activity with any other person. Each participant in a sexual encounter must consent to each form of sexual contact with each participant.
Even in the context of a current or previous intimate relationship, each party must consent to each instance of sexual contact each time. The consent must be based on mutually understandable communication that indicates a willingness to engage in sexual activity. The mere fact that there has been prior intimacy or sexual activity does not, by itself, imply consent to future acts.
Force: Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom to choose whether or not to participate in sexual activity. For the use of force to be demonstrated, there is no requirement that a Complainant resists the sexual advance or request.
However, resistance by the Complainant will be viewed as a clear demonstration of non-consent.
Coercion: Coercion is the use of a threat or undue pressure to engage in sexual activity. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and extortion. Coercion is more than an effort to persuade, seduce, entice, or attract another person to engage in sexual activity. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether to engage in sexual activity. Examples of coercion include threatening to “out” someone based on sexual orientation, gender identity, or gender expression and threatening to harm oneself if the other party does not engage in the sexual activity.
Incapacitation: Affirmative consent cannot be given when a person is incapacitated. Incapacitation is a state where an individual cannot make an informed decision to engage in sexual activity because the individual lacks the ability to knowingly choose to participate in sexual activity. An individual is incapacitated and therefore unable to give affirmative consent if they are asleep, unconscious, involuntarily restrained, or otherwise cannot consent to sexual activity.
Incapacitation may also result from the use of alcohol and/or drugs. Consumption of alcohol or other drugs alone is insufficient to establish incapacitation because the impact of alcohol and drugs varies from person to person. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and, therefore, unable to consent.
Being intoxicated or impaired by drugs or alcohol is never an excuse for sexual misconduct and does not diminish one’s responsibility to obtain consent. Consent to sexual activity is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
Formal Complaint: A formal complaint refers to a written complaint filed in accordance with the grievance process below. A formal complaint is necessary to initiate an investigation and adjudication process.
Institution Advisor: A Complainant or Respondent who does not opt to be accompanied by an advisor of choice at a hearing is entitled to be appointed an advisor by the College at no charge to the party. This advisor is referred to as an “institution advisor” who may be, but need not be, an attorney and who may be a person internal or external to the College. An institution advisor’s role is limited to asking the party’s cross-examination questions of the other party during a hearing. An institution advisor does not represent a party in any legal sense. The party is responsible for formulating the cross-examination questions, and the institution advisor will pose them during the hearing.
Party: A Complainant or Respondent may be referred to as a Party, or collectively, the Parties.
Reporting Party:The term Reporting Party refers to the person who made the report. This may or may not be the same as the Complainant, a witness, or a bystander.
Complainant: The term Complainant refers to the person who allegedly experienced sexual misconduct in violation of the policy whether a formal complaint is filed. In some cases, the Title IX Coordinator may file a formal complaint and thereby initiate an investigation and adjudication process pursuant to this policy. In that instance, the Title IX Coordinator is not the “Complainant;” the Complainant remains the person who allegedly experienced sexual misconduct.
Respondent:The term Respondent refers to the person alleged to have committed a violation of this policy.
Sexual Misconduct: Sexual misconduct is an umbrella term used in this policy to more conveniently refer to any form of conduct prohibited by this policy.
Definitions and Conduct Violations:
This policy sets forth conduct expectations for our community and provides a process for the reporting, investigation, and adjudication of alleged violations. This policy applies to alleged conduct in violations of Title IX of the Education Amendments of 1972 (i.e., “Title IX Category” violations) and also applies to a broader range of contexts and behaviors inconsistent with the College’s commitment to equal opportunity (i.e., “College Category” violations).
The designation of conduct or allegations as either “Title IX Category” or “College Category” is not a function of the seriousness of the alleged conduct but rather a function of the scope and coverage of Title IX versus the College’s broader jurisdiction to prohibit and discipline a larger scope of sexual misconduct.
Title IX Category Violations:
In accordance with Title IX as interpreted by the Department of Education, the College recognizes the following as conduct violations within the meaning of Title IX, provided that the context and circumstances of the conduct fall within the scope of Title IX.
Wells College will update this policy pursuant to any future changes to the federal Title IX regulations.
Sexual harassment: “Sexual harassment” means conduct on the basis of sex (including sex, gender, sexual orientation, gender identity, and transgender status) that satisfies one or more of the following:
- An employee of the College conditioning the provision of aid, benefit, or service of the College on an individual’s participation in unwelcome sexual activity (commonly referred to as a “quid pro quo”).
- A reasonable person determines unwelcome conduct to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education program or activity (commonly referred to as a sexual or gender-based “hostile environment”).
- Sexual harassment also encompasses “sexual assault”, “dating violence”, “domestic violence”, or “stalking” as defined below.
Sexual assault: “Sexual assault” is a sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent. Sexual assault consists of the following specific acts:
- Rape. The 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. This offense includes the rape of both males and females.
- Fondling. The touching of the private body parts (including the genital area, anus, groin, buttocks, or breast) of another person, whether under or over clothing, for sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity.
- 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. The statutory age of consent in New York is 17.
Dating violence. “Dating violence” means violence committed by a person on the basis of sex: (1) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (2) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship. (ii) The type of relationship. (iii) The frequency of interaction between the persons involved in the relationship.
Domestic violence. “Domestic violence” means violence on the basis of sex committed by a current or former spouse or intimate partner 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 or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction where the College is located, 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.
Stalking. “Stalking” is engaging in the course of conduct on the basis of sex directed at a specific person that would cause a reasonable person to: (1) fear for their safety or the safety of others; or (2) suffer substantial emotional distress. Stalking that does not occur on the basis of sex may be addressed under a College Category Violation as described below.
College Category Violations:
For the purpose of College Category violations, the conduct listed below is prohibited even if the conduct occurs off-campus or outside of the United States. These violations are also considered College Category Violations when the Complainant is not participating or seeking to participate in the College’s education program or activity, or otherwise in circumstances over which the College does not have influence or control, including but not limited to when the College academic breaks. The College retains the discretion to not respond to, investigate, or adjudicate circumstances in which no College interest is implicated.
Sexual Harassment: Sexual harassment” means unwelcome, offensive conduct that occurs on the basis of sex, sexual orientation, pregnancy or related condition, self-identified or perceived sex, gender, gender expression, gender identity, gender-stereotyping or the status of being transgender, but that does not constitute sexual harassment as a Title IX Category Violation as defined above. Sexual harassment can be verbal, written, visual, electronic, or physical.
Sexual harassment includes any unwelcome sexual advance, request for sexual favors, or other unwelcome verbal or physical conduct of a sexual nature when:
- Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment, evaluation of academic work, or participation in any aspect of a College program or activity.
- Submission to or rejection of such conduct by an individual is used as the basis for decisions affecting the individual.
- Such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance. In other words, it is sufficiently serious, pervasive, or persistent as to create an intimidating, hostile, humiliating, demeaning, or sexually offensive working, academic, residential, or social environment under both a subjective and objective standard.
The fact that a person is offended is not alone enough to establish a violation of this policy. The College evaluates complaints based on a “reasonable person” standard, taking into account the totality of the circumstances, including the context of the interaction. Wells College is an academic institution, and freedom of intellectual thought and expression is valued. The College will not construe this policy to prevent or penalize a statement, opinion, theory, or idea offered within the bounds of legitimate, relevant, and responsible teaching, learning, working, or discussion.
Sexual harassment also includes gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature.
- May be blatant and intentional and involve an overt action, a threat or reprisal, or subtle and indirect, with an unstated coercive aspect.
- Does NOT have to include intent to harm, be directed at a specific target, or involve repeated incidents.
- May be committed by anyone, regardless of gender, age, position, or authority. While there is often a power differential between two persons, due to differences in age, social, educational, or employment relationships, harassment can occur in any context.
- May be committed by a stranger, an acquaintance, or someone with whom the Complainant has an intimate or sexual relationship.
- May be committed by or against an individual or may be a result of the actions of an organization or group.
- May occur by or against an individual of any sex, gender identity, gender expression or sexual orientation.
- May occur in the classroom, workplace, residential settings, or other settings.
- May be a one-time event or can be part of a pattern of behavior.
- May be committed in the presence of others or when the parties are alone.
- May affect the Complainant and/or third parties who witness or observe harassment and are affected by it.
Examples of conduct that may constitute sexual harassment as defined above may include one or more of the following:
- Unwelcome touching, sexual/physical assault, impeding, restraining, or blocking movements
- Unwanted sexual advances within the academic or employment context
- Making or using derogatory comments, epithets, slurs, or humor
- Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes, or invitations
- Objectively offensive comments of a sexual nature, including persistent or pervasive sexually explicit statements, questions, jokes, or anecdotes.
- Leering, making sexual gestures, displaying suggestive objects or pictures, cartoons or posters in a public space or forum if deemed severe, persistent, or pervasive by a reasonable party.
- Severe, persistent, or pervasive visual displays of suggestive, erotic, or degrading sexually oriented images that lack pedagogical value.
Letters, notes, or electronic communications containing comments, words, or images described above.
Quid pro quo conduct:
- Direct propositions of a sexual nature between those for whom a power imbalance or supervisory or other authority relationship exists.
- Offering employment benefits in exchange for sexual favors.
- Submitting sexual advances on an actual or implied condition of employment, work status, promotion, grades, or letters of recommendation, including subtle pressure for sexual activity, an element of which may be repeated requests for private meetings with no academic or work purpose.
- Making or threatening reprisals after a negative response to sexual advances.
Sexual assault is a sexual act directed against another person without the consent of the victim, including instances where the victim is incapable of giving consent, but that does not constitute sexual assault as a Title IX Category Violation as defined above because of the context in which it occurs (for example because the Complainant was not in the United States at the time of the alleged conduct, because the Complainant was not participating in or seeking to participate in the College’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of the College’s education program or activity). Sexual assault consists of the following specific acts:
- Non-consensual sexual intercourse is any sexual penetration (anal, oral, or vaginal), however slight, with any body part (e.g., penis, tongue, finger, hand) or object, by a person upon another person that is without affirmative consent. Non-consensual sexual acts can include the following:
- Rape is the 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.
- Statutory Rape is non-forcible sexual intercourse with a person who is under the statutory age of consent. In New York, the statutory age of consent is 17 years old.
- Non-Consensual Sexual Contact/fondling is any intentional sexual touching, however slight, with the private parts of another (including over clothing), causing another to touch one’s intimate parts or disrobing or exposure without permission. Private parts may include the breasts, anus, genital area, buttocks, or groin.
Sexual Exploitation occurs when, without affirmative consent, an individual takes sexual advantage of another. Examples of sexual exploitation include, but are not limited to, surreptitiously observing another individual’s nudity or sexual activity or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved; non-consensual sharing or streaming of images, photography, video, or audio recording of sexual activity or nudity, or distribution of such without the knowledge and consent of all parties involved; exposing one’s genitals or inducing another to expose their genitals in non-consensual circumstances; knowingly exposing another individual to a sexually transmitted disease or virus without their knowledge; acts of incest; and inducing incapacitation to make another person vulnerable to non-consensual sexual activity.
Domestic violence refers to physical violence, threats of violence or acts of physical intimidation between spouses, former spouses or intimate partners, cohabitating romantic partners or individuals who were formerly cohabitating romantic partners, individuals who share a child in common, individuals who are similarly situated to spouses and/or individuals who are protected from the other person’ s acts under the domestic or family violence laws of the jurisdiction in which the act of violence occurs, if the conduct does not constitute domestic violence as a Title IX Category Violation as defined above because of the context in which it occurs (for example because the Complainant was not in the United States at the time of the alleged conduct, because the Complainant was not participating in or seeking to participate in the College’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of the College’s education program or activity).
Dating violence refers to a pattern of violent behavior (including, but not limited to, sexual or physical abuse or the threat of such abuse) that is committed by a person who is or has been in a social relationship with a romantic or intimate nature with the victim if the conduct does not constitute domestic violence as a Title IX Category Violation as defined above because of the context in which it occurs (for example because the Complainant was not in the United States at the time of the alleged conduct, because the Complainant was not participating in or seeking to participate in the College’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of the College’s education program or activity). The existence of such a relationship is determined based on the Complainant’s statement and considering the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
“Stalking” is engaging in the course of conduct directed at a specific person that would cause a reasonable person to (1) fear for his or her safety or the safety of others; or (2) suffer substantial emotional distress but that does not constitute stalking as a Title IX Category Violation as defined above because of the basis on which it occurs or the context in which it occurs (for example because the Complainant was not in the United States at the time of the alleged conduct, because the Complainant was not participating in or seeking to participate in the College’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of the College’s education program or activity).
Retaliation consists of acts or attempts to retaliate or seek retribution against the Complainant, Respondent, or any individual or group of individuals involved in reporting the complaint, responding to a complaint, or participating in the investigation and/or resolution of an allegation of sexual misconduct. Retaliation can be committed by any individual or group, not just a Respondent or Complainant. Retaliation can take many forms, including threats, intimidation, pressuring, continued abuse, violence, or other forms of harm to others. An act of retaliation may be anything that would tend to discourage an individual from reporting sexual misconduct, pursuing an informal or formal complaint, or participating in an investigation or adjudication as a party or a witness. A person who acts in good faith is protected from retaliation. The fact that a statement is not determined to be proven or established following investigation and adjudication does not mean that the statement lacks good faith; a person may provide inaccurate information believing it is accurate, which is still good faith. If a person makes a statement knowing it is false, they have acted without good faith.
Prohibited Relationships by Persons in Authority:
Sexual or intimate relationships in which one party maintains a direct supervisory or evaluative role over the other party are prohibited. This includes all sexual or other intimate relationships between students and their employers, supervisors, professors, coaches, advisors, or other College employees. Similarly, College employees (faculty and staff) who supervise or otherwise hold positions of authority over others are prohibited from having a sexual or other intimate relationship with an individual under their supervision.
The College does not wish to interfere with private choices regarding personal relationships when these relationships do not impede the goals and policies of the College. However, faculty, administrators, and others who educate, supervise, evaluate, employ, counsel, coach, or otherwise guide students should understand the fundamentally asymmetrical nature of their relationship with students or subordinates. Intimate or sexual relationships where there is a differential in power or authority produce risks for every member of our community and undermine the professionalism of faculty and supervisors. In either context, the unequal position of the parties presents an inherent element of risk and may raise sexual harassment concerns if one person in the relationship has the actual or apparent authority to supervise, evaluate, counsel, coach, or otherwise make decisions or recommendations as to the other person in connection with their employment or education at the College.
Sexual relations between persons occupying asymmetrical positions of power, even when both consent, raise suspicions that the person in authority has violated standards of professional conduct and potentially subject the person in authority to charges of sexual harassment based on changes in the perspective of the individuals as to the consensual nature of the relationship. Similarly, these relationships may impact third parties based on perceived or actual favoritism or special treatment based on the relationship.
Therefore, persons with direct supervisory or evaluative responsibilities who contemplate beginning or are involved in such relationships are required to promptly: 1) discontinue any supervising role or relationship over the other person; and 2) report the circumstances to their own supervisor. Failure to fully or timely comply with these requirements is a violation of this policy, and the person in authority could be subject to disciplinary action, up to and including dismissal from employment by the College.
Any individual may file a complaint alleging harassment or discrimination, including an aggrieved party outside the relationship affected by the perceived harassment or discrimination. Retaliation against persons who report concerns about consensual relationships is prohibited and constitutes a violation of this policy.