Complainant: the party who has alleged sexual harassment or discrimination, or to whom sexual harassment or discrimination was directed according to this policy.
Respondent: the party who has been reported to be the perpetrator of conduct that could constitute sexual harassment or discrimination.
Consent: refers to words or actions that a reasonable person in the perspective of the Respondent would understand as agreement to engage in the sexual conduct at issue. A person who is incapacitated is not capable of giving Consent. It is the responsibility of each person to ensure that Consent is given by all participants prior to the sexual activity and that such Consent remains throughout the sexual activity.
Consent to engage in sexual activity must be informed, freely given and mutual. Consent must be ongoing, throughout each instance of sexual activity, and for each form of sexual contact. Consent to one form of sexual contact does not constitute consent to all forms of sexual contact. For example, an individual may agree to kiss but choose not to engage in touching of the intimate parts or sexual intercourse. An individual should obtain consent before moving from one act to another. In the Commonwealth of Massachusetts, consent can never be given by minors under the age of 16.
Consent consists of an outward demonstration indicating that an individual has freely chosen to engage in sexual activity. Consent is demonstrated through mutually understandable words and/or actions that clearly indicate a willingness to engage freely in sexual activity. Relying on nonverbal communication can lead to misunderstandings.
Consent may not be inferred from silence, passivity, lack of verbal or physical resistance or lack of active response alone. Consent cannot be inferred by an individual’s manner of dress. In the absence of an outward demonstration, consent does not exist. If at any time it is apparent to either party that the other party is hesitant, confused or uncertain, both parties should stop and obtain mutual consent before continuing sexual activity.
A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Further, a person’s consent to past sexual activity does not constitute consent to future sexual activity. Even in the context of a relationship, there must be mutually understandable communication that clearly indicates willingness to engage in sexual activity each time such activity occurs.
- Consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another.
- Consent does not exist if it results from the use or threat of physical force, intimidation, or coercion, or any other factor that would eliminate an individual’s ability to exercise their own free will to choose whether or not to have sexual contact.
- Consent can be withdrawn at any time.
- A person cannot consent to sexual activity if that person is unable to understand the nature of the activity or give knowing consent due to circumstances, including without limitation the following:
- The individual is incapacitated due to drug or alcohol consumption, either voluntarily or involuntarily;
- The individual is unconscious, asleep or otherwise unaware that the sexual activity is occurring;
- The individual is under age (16 years in Massachusetts); or
- The individual has a mental disability that impairs his/her/their ability to provide consent.
A finding of a lack of consent can occur even if: (a) the Respondent’s belief in affirmative consent arose from the intoxication or recklessness of the Respondent, or (b) the Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the Complainant affirmatively consented.
Incapacitation: Incapacitation is a state where one cannot make a rational, reasonable decision to engage in sexual activity because they lack the ability to understand the fact, nature, or extent of the act (e.g., to understand the "who, what, when, where, why or how" of their sexual interaction), and/or are physically helpless.
Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity because of a lack of conscious understanding of the fact, nature, or extent of the act (e.g., to understand the who, what, when, where, why, or how of the sexual interaction), and/or is physically helpless. For example, an individual is incapacitated, and therefore unable to give consent, if the individual is asleep, unconscious, or otherwise unaware that sexual activity is occurring. An individual will also be considered incapacitated if the person cannot understand the nature of the activity or communicate due to a mental or physical condition. Some indicators of incapacitation may include, but are not limited to, lack of control over physical movements, lack of awareness of circumstances or surroundings, or the inability to communicate for any reason. Where alcohol or other drugs are involved, one does not have to be intoxicated or drunk to be considered incapacitated. The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs impacts an individual’s decision-making capacity, awareness of consequences and ability to make informed judgments, or capacity to appreciate the nature of the act.
Whether a responding party reasonably should have known that a Complainant was incapacitated will be evaluated using an objective reasonable person standard. The question is whether the Respondent knew, or a sober, reasonable person in the position of the responding party, knew or should have known, that the Complainant was incapacitated. An individual may experience a blackout state in which they appear to be giving consent, but do not actually have conscious awareness or the ability to consent. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication or impairment. It is the responsibility of each party to be aware of the intoxication level of the other party before engaging in sexual activity. In general, sexual activity while under the influence of alcohol or other drugs poses a risk to all Parties. If there is any doubt as to the level or extent of the other individual’s intoxication, it is safest to forgo or cease any sexual contact or activity.
Being intoxicated or impaired by drugs or alcohol is never an excuse for sexual harassment and does not excuse one from the responsibility to obtain consent
Coercion: Coercion* *is direct or implied threat of force, violence, danger, hardship, or retribution sufficient to persuade a reasonable person of ordinary susceptibility to perform an act which otherwise would not have been performed or acquiesce in an act to which one would otherwise not have submitted. Coercion can include unreasonable and sustained pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. A person’s words or conduct cannot amount to Coercion for purposes of this Policy unless they wrongfully impair the other’s freedom of will and ability to choose whether or not to engage in sexual activity.
“Education Programs and Activities” refers to all the operations of the College, including, but not limited to, in-person and online educational instruction, employment, research activities, extracurricular activities, athletics, residence life, dining services, performances, and community engagement and outreach programs. The term applies to all activity that occurs on campus or on other property owned or occupied by the College. It also includes off-campus locations, events, or circumstances over which the College exercises substantial control over the Respondent and the context in which the Title IX Sexual Harassment occurs, including Title IX Sexual Harassment occurring in any building owned or controlled by a student organization that is officially recognized by the College.
Hostile Environment: In considering whether a hostile environment exists for purposes of both Title IX Sexual Harassment and sexual harassment, as defined above, the College will consider the totality of the circumstances, including factors such as the actual impact the conduct has had on the Complainant; the nature and severity of the conduct at issue; the frequency and duration of the conduct; the relationship between the parties (including accounting for whether one individual has power or authority over the other); the respective ages of the parties; the context in which the conduct occurred; and the number of persons affected. The College will evaluate the totality of circumstances from the perspective of a reasonable person in the Complainant’s position. A person’s adverse subjective reaction to conduct is not sufficient, in and of itself, to establish the existence of a hostile environment.
The College encourages members of the College Community to report any and all instances of sexual harassment, even if they are unsure whether the conduct rises to the level of a policy violation. Some specific examples of conduct that may constitute Hostile Environment Sexual Harassment and/or sexual harassment if unwelcome include, but are not limited to:
- Repeated comments about a person’s physical appearance;
- Sexually suggestive remarks, insults, jokes, humor, or innuendo;
- Insulting, demeaning, or degrading another person based on gender or gender stereotypes
- Displays of sexually suggestive material, including sexual graffiti, pictures, videos, or posters;
- Using sexually explicit profanity;
- Asking about, or telling about, sexual fantasies, sexual preferences, or sexual activities;
- Leering or staring at someone in a sexual way, such as staring at a person’s breasts or groin;
- Sending sexually explicit emails, text messages, or social media posts;
- Commenting on a person’s dress in a sexual manner;
- Unwelcome advances or conduct such as touching, patting, caressing, kissing or sexual propositions;
- Giving unwelcome personal gifts that suggest the desire for a sexual relationship;
- Unreasonable pressure for a dating, romantic, or intimate relationship or sexual contact;
- Sexual advances accompanied by threat of punishment or promise of reward including the withholding or giving of grades and promotions;
- E-mail and Internet use that violates this policy.
