“Sexual misconduct” is a broad, non-legal term that encompasses a wide range of behaviors, including but not limited to, sexual harassment, sex/gender discrimination, sexual assault, rape, acquaintance rape, stalking, and relationship violence (including dating and domestic violence). It is a violation of University policy as well as applicable law to commit or to attempt to commit these acts.
Sexual misconduct can occur between strangers or acquaintances, or people who know each other well, including between people who are or have been involved in an intimate or sexual relationship. It can be committed by anyone, regardless of gender or gender identity, and can occur between people of the same or different sex or gender. This Policy prohibits all forms of sexual misconduct.
1. Definition of Sexual Harassment
Sexual Harassment is unwelcome conduct of a sexual nature that has the effect of creating a hostile or stressful living, learning, or working environment, or whenever toleration of such conduct or rejection of it is the basis for an academic or employment decision affecting an individual. Conduct is considered “unwelcome” if the person did not request or invite it and considered the conduct to be undesirable or offensive.
Sexual harassment includes any conduct or incident that is sufficiently serious that it is likely to limit or deny a student’s ability to participate in or benefit from the University’s educational programs or a faculty or staff member’s ability to work, which may include a single incident of sexual assault or other serious sexual misconduct.
2. Forms of Prohibited Sexual Harassment.
Sexual harassment can take many forms, and can:
- Occur between equals, such as student to student, faculty member to faculty member, staff to staff, or visitor/contracted employee to staff.
- Occur between persons of unequal power status, such as supervisor to subordinate, faculty member to student, coach to student-athlete, student leader to first-year student. Although sexual harassment often occurs in the context of an exploitation of power by the person with the greater power, a person who appears to have less power in a relationship can also commit sexual harassment (such as a student harassing a faculty member).
- Be committed by an acquaintance, a stranger, or someone with whom the complainant has or had a personal, intimate, or sexual relationship.
- Occur by or against a person of any sex, gender identity or expression, or sexual orientation.
- The following non-exhaustive list includes examples of behavior that could be considered sexual harassment:
- Unwelcome sexual innuendo, propositions, sexual attention, or suggestive comments and gestures.
- Unwelcome physical contact of a sexual nature, such as touching, hugging, kissing, patting, or pinching, that is uninvited and unwanted or unwelcome by the other person.
- Humor and jokes about sex or gender-specific traits; sexual slurs or derogatory language directed at another person’s sexuality or gender.
- Insults and threats based on sex or gender; and other oral, written, or electronic communications of a sexual nature that a person communicates are unwelcome.
- Written graffiti or the display or distribution of sexually explicit drawings, pictures, or written materials; sexually charged name-calling; sexual rumors or ratings of sexual activity/performance; the circulation, display, or creation of e-mails or Web sites of a sexual nature. (For more information, on misconduct using the University’s computing facilities, please see the Conditions of Use and Policy on Computing Ethics.)
- Non-academic display or circulation of written materials or pictures degrading to a person(s) or gender group.
- Unwelcome attention, such as repeated inappropriate flirting, inappropriate or repetitive compliments about clothing or physical attributes, staring, or making sexually oriented gestures.
- Change of academic or employment responsibilities (increase in difficulty or decrease of responsibility) based on sex, gender identity or expression, or sexual orientation.
- Use of a position of power or authority to: (i) threaten or punish, either directly or by implication, for refusing to tolerate harassment, for refusing to submit to sexual activity, or for reporting harassment; or (ii) promise rewards in return for sexual favors.
- Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping.
Sexual assault is actual or attempted sexual contact with another person without that person’s consent. Sexual assault includes, but is not limited to:
- Intentional touching of another person’s intimate parts without that person’s consent; or
- Other intentional sexual contact with another person without that person’s consent; or
- Coercing, forcing, or attempting to coerce or force a person to touch another person’s intimate parts without that person’s consent; or
- Rape, which is penetration, no matter how slight, of (1) the vagina or anus of a person by any body part of another person or by an object, or (2) the mouth of a person by a sex organ of another person, without that person’s consent.
Consent must be informed and voluntary, and can be withdrawn at any time. Consent can be given by words or actions as long as those words or actions create mutually understandable permission regarding the scope of sexual activity. 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. Past consent to sexual activity with another person does not imply ongoing future consent with that person or consent to that same sexual activity with another person.
If a person is mentally or physically incapacitated or impaired so that he or she cannot understand the fact, nature, or extent of the sexual situation, there is no consent; this includes impairment or incapacitation due to alcohol or drug consumption that meets this standard, or being asleep or unconscious.
Effect of drugs and alcohol on consent:
Individuals should be aware of, and carefully consider, the potential consequences of the use of alcohol or drugs. Alcohol and other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and affirmatively given. If there is a question about whether someone consented to sexual activity after consuming drugs or alcohol, the University will examine the issue from the perspective of a reasonable person. Specifically, the University will consider whether the respondent reasonably should have known about the impact of alcohol and other drugs on the complainant’s ability to give consent.
Incapacitation is the inability, temporarily or permanently, to give consent, because the person is mentally and/or physically helpless due to drug or alcohol consumption, either voluntarily or involuntarily, or the person is unconscious, asleep, or otherwise unaware that the sexual activity is occurring. Some signs of incapacitation may include, but are not limited to, lack of control over physical movements (e.g., stumbling, falling down), lack of awareness of circumstances or surroundings, unable to speak or communicate orally, or the inability to communicate for any reason.
It is a violation of this Policy and Massachusetts law to engage in sexual activity with a person who is incapacitated, regardless of whether the person appeared to be a willing participant. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication.
The use of force to cause someone to engage in sexual activity is, by definition, non-consensual contact, and is prohibited. Force may include words, conduct, or appearance. Force includes causing another’s intoxication or impairment through the use of drugs or alcohol. Under this Policy, force includes the use of any of the following:
1. Physical Force, Violence, or a Weapon.
3. Intimidation and Implied Threats.
Coercion is to force one to act based on fear of harm to self or others. Means of coercion may include, but are not limited to, pressure, threats, or emotional intimidation.
A hostile environment exists when sexual or sex-based harassment is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the University’s programs or activities or has the effect unreasonably interfering an employee’s work performance or altering the terms and conditions of the employee’s employment. A hostile environment can be created by anyone involved in a University program or activity (e.g., administrators, faculty members, students, and campus visitors).
In determining whether sex-based harassment has created a hostile environment, the University considers the conduct in question from both a subjective and objective perspective. It will be necessary, but not enough, that the conduct was unwelcome to the student who was harassed. But the University will also need to find that a reasonable person in the student’s position would have perceived the conduct as undesirable or offensive in order for that conduct to create or contribute to a hostile environment.
To determine whether a hostile environment exists for a student or employee, the University will consider a variety of factors related to the severity, persistence, or pervasiveness of the sex-based harassment, including: (1) the type, frequency, and duration of the conduct; (2) the identity and relationships of persons involved; (3) the number of individuals involved; (4) the location of the conduct and the context in which it occurred; and, (5) the degree to which the conduct affected the student’s education or the employee’s employment.
The more severe the sex-based harassment, the less need there is to show a repetitive series of incidents to find a hostile environment. Indeed, a single instance of sexual assault may be sufficient to create a hostile environment. Likewise, a series of incidents may be sufficient even if the sex-based harassment is not particularly severe.