Statement of Prohibited Conduct Under This Policy and Relevant Terms

III. STATEMENT OF PROHIBITED CONDUCT UNDER THIS POLICY AND RELEVANT TERMS 

A. Summary 

• This Policy prohibits Sexual Misconduct that is either Non-Consensual Sexual Contact or Non-Consensual Sexual Intercourse.   
• This Policy prohibits Dating Violence, Domestic Violence, Stalking and Hazing when any of those types of conduct is gender-based. 
• This Policy prohibits Sexual Misconduct in the form of Sexual Exploitation. 
• This Policy prohibits Discrimination on the basis of gender. 
• This Policy prohibits Retaliation against any person who is exercising his or her rights under this Policy.   
• This Policy prohibits False Reporting of reports of violations of this Policy. 

The obligations of this Policy require a clear understanding of the concept of consent. In order for individuals to engage in sexual activity of any type, there must be clear, knowing and voluntary Consent prior to and during sexual activity.   

Consent is positive permission to engage in the sexual activity.  California law defines consent as “affirmative, conscious, and voluntary.”   

Persons are unable to give Consent if they Lack Capacity to give Consent including Incapacitation Due To Alcohol Or Drugs Or Other Reasons or if Consent was obtained through Force and Coercion.  A person who engages in any conduct prohibited by this Policy is not excused from responsibility owing to the person’s use of alcohol or drugs such that the person’s judgment was impaired. 

B. Definitions of Prohibited Conduct 

1. Sexual Misconduct 

The College defines sexual misconduct as any of the following:  

A. Non‐Consensual Sexual Contact (or attempts to commit same) 

Non‐Consensual Sexual Contact is: 

• any intentional sexual touching, 
• however slight, 
• with any object, 
• by a person upon a person, 
• that is without consent, with or without force.* 

Sexual contact includes:  Intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.  This is also referred to as “sexual battery.”  This can including using a person’s own intimate part to intentionally touch another person’s body without consent.     

*The use of force is not “worse” than the subjective experience of violation of someone who has sex without consent.  However, the use of force will be a factor in increasing sanctions. 

B. Non‐Consensual Sexual Intercourse (or attempts to commit same) 

Non‐Consensual Sexual Intercourse is: 

• any sexual intercourse however slight, 
• with any object, 
• by a person upon a person, 
• that is without consent, and with or without force. 

Intercourse includes:  vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object, tongue, or finger, and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.  This is also referred to as “rape.” 

Nonconsensual sexual contact and nonconsensual sexual intercourse are often collectively referred to as “sexual assault.”  As defined in the Clery Act (20 USC 1092(f)(6)(A)(v), Sexual Assault is: an offense that meets the definition of rape, fondling, incest, or statutory rape, as used in the FBI’s Uniform Crime Reporting (UCR) Program.  The relevant FBI UCR definitions are as follows: 

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 Complainant. 

Fondling.  The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the Complainant, including instances where the Complainant is incapable of giving consent because of age or permanent mental incapacity. 

Incest.  Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law. 

Statutory Rape.  Sexual intercourse with a person who is under the statutory age of consent.  In California, the statutory age of consent is 18.   

Generally, a sexual assault has been committed when an individual engages in sexual activity without the explicit consent of the other individual involved, including when the individual lacks capacity to consent.  In this Policy, sexual activity is any touching of a sexual or other intimate part of a person either for the purpose of asserting power or gratifying sexual desire of either party.  This includes coerced touching of the Respondent by the Complainant as well as the touching of the Complainant by the Respondent, whether directly or through clothing.  Accordingly, for purposes of the College’s policies, sexual assault falls within the College’s definition for sexual misconduct.  

2. Other Forms of Sexual Harassment  

The following alleged conduct will be addressed through the Procedures outlined in this Policy when the conduct is gender-based: 

A. Dating Violence  

As defined by the VAWA (34 USC 12291(a)(10)), dating violence is violence committed by a person: 

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 (1) the length of the relationship, (2) the type of the relationship, and (3) the frequency of interaction between the persons involved in the relationship. 

​B. Domestic Violence  

As defined by the VAWA (34 USC 12291(a)(8)), domestic violence is the use of physical, sexual or emotional abuse or threats to control another person who is a current or former spouse or other intimate partner.  It includes felony or misdemeanor crimes of violence committed by a current or former spouse 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, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, 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. 

C. Stalking  

As defined by the VAWA (34 USC 12291(a)(30)), Stalking is: engaging in a course of conduct directed at a specific person that would cause a reasonable person to (i) fear for their safety or the safety of others; or, (ii) suffer substantial emotional distress. 

D. Hazing  

Hazing is defined in the College Hazing Policy as set forth in the College’s Disciplinary Policies and Procedures and as also found in the College’s Student Code. 

E. Sexual Exploitation: 

Sexual exploitation is a form of sexual misconduct which occurs when a person takes non‐consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses.  Examples of sexual exploitation include, but are not limited to: 

1. Invasion of sexual privacy, including the viewing of another person’s sexual activity or intimate parts, in a place where that other person would have a reasonable expectation of privacy, without that person’s consent, for the purpose of arousing or gratifying sexual desire; 
2. Prostituting another person; 
3. Trafficking of another person, defined as the “inducement of a  
4. person to perform a commercial sex act, or labor or services, through force, fraud, or coercion” 
5. Non‐consensual recording of images, including video or photo, or audio‐taping of another person’s sexual activity or intimate parts; 
6. The distribution of images, including video or photograph, or audio of another person’s sexual activity or intimate parts, if the individual distributing the images or audio knows or should have known that the person depicted in the images or audio did not consent to the disclosure. 
7. Going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex); 
8. Engaging in voyeurism; 
9. Knowingly transmitting a sexually transmitted infection, a sexually transmitted disease, or HIV to another person; 
10. Knowingly making a materially false representation about sexually transmitted infection, birth control, or prophylactic status with the specific intent and effect of inducing another to participate in a specific sexual act or encounter; 
11. Exposing one’s genitals in non‐consensual circumstances; inducing another to expose their genitals; 
12. Sexually‐based stalking; 
13. Knowingly contributing to the incapacitation of another person where such incapacitation is a contributing factor to that person being subjected to another form of sexual misconduct. 

F. Sexual Harassment 

Sexual harassment may be either “quid pro quo” harassment, that is unwelcome sexual advances, requests for sexual favors where submission is made an explicit or implicit term or condition of an individual’s employment, academic status or education progress or where submission to or rejection is used as the basis for making employment or educational decisions affecting an individual; or “environmental ” harassment, where the individual is subjected to a hostile or intimidating environment, in which verbal, visual or physical conduct of a sexual nature, because of its severity and/or persistence, is likely to interfere with an individual’s work or education, or to affect adversely an individual’s living conditions, or the conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment. Occasional compliments that are generally accepted as not offensive or other generally accepted social behavior, on the other hand, do not constitute sexual harassment.   

Examples of sexual harassment may include such conduct as: 

1. Direct or implied threats that submission to sexual advances will be a condition of employment, work status, promotion, grades, or letters of recommendations; 

2. Direct propositions of a sexual nature; 

3. Subtle pressure for sexual activity, an element of which may be repeated requests for private meetings without an academic and employment purpose; 

4. A pattern of conduct that would discomfort or humiliate, or both, a reasonable person at whom the conduct was directed that includes one or more of the following: (1) unnecessary touching, patting, hugging, or brushing against a person’s body; (2) remarks of a sexual nature about a person’s clothing or body, whether or not intended to be complimentary; (3) remarks about sexual activity or speculations about previous sexual experience; or (4) other comments of a sexual nature, including sexually explicit statements, questions, jokes or anecdotes; 

5. Certain visual displays of sexually-oriented images outside the educational context; 

6. Letters, notes or electronic mail containing comments, words or images as described in (e) above. 

Sexual harassment includes harassment of women by men, of men by women, and same gender gender-based harassment.  

C. Definition of “Consent” 

California law defines consent as “affirmative, conscious, and voluntary.” Consent is affirmative, clear, knowing, voluntary, conscious, and revocable permission.  Consent is active, not passive.  Silence, in and of itself, cannot be interpreted as consent.  Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in sexual activity, and the physical conditions of sexual activity (i.e., use of a condom).1 In order to give effective consent, one must be of legal age and have the capacity to give consent: 

1. The legal age of consent in the state of California is 18 years.  
2. Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. 
3. Consent can be withdrawn at any time. Thus, even if a person agreed to sexual interaction or continued sexual interaction, that person has the right to change their mind, irrespective of how much sexual interaction may have already taken place. 
4. Previous relationships or prior consent cannot imply consent to future sexual acts; this includes “blanket” consent (i.e., permission in advance for any/all actions at a later time/place). 
5. It is the obligation of the person initiating the sexual activity to obtain consent.
6. Force and Coercion: An individual cannot consent who has been coerced, including being compelled by force, threat of force, or deception; who is unaware that the act is being committed; or, who is coerced by a supervisory or disciplinary authority. 

   Force: violence, compulsion, or constraint physically exerted by any means upon or against a person. Force includes the use of threats, intimidation (implied threats) and/or coercion to produce consent 

   Coercion: the application of pressure by the Respondent that unreasonably interferes with the Complainant’s ability to exercise free will.  Factors to be considered include, but are not limited to, the intensity and duration of the conduct. Coercion is unreasonable pressure for sexual activity (“Have sex with me or I’ll hit you. Okay, don’t hit me; I’ll do what you want.”).  Coercive behavior differs from seductive behavior based on the type of pressure used to get consent.  When someone makes it clear that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. 

7. A person who does not want to engage in sexual activity is not required to resist or to verbally object.  There is no requirement that a party resists a sexual advance or request, but resistance is a clear demonstration of non‐consent.  The presence of force, however, is not demonstrated by the absence of resistance.
8. Withdrawal of consent can be manifested through conduct and need not be a verbal withdrawal of consent (i.e., crying, pulling away, not actively participating, uncomfortable or upset facial expressions).
9. Affirmative consent cannot be given by a person who is asleep, unconscious, or incapacitated.  A person with a medical or mental disability may also lack the capacity to give consent.  The definition if incapacitation follows.
10. Incapacitation: A person is unable to consent when incapacitated due to the influence of drugs, alcohol, or medication so that the person could not understand the fact, nature, or extent of the sexual activity.  Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why or how of the sexual interaction) or is physically unable to consent (e.g., asleep or unconscious). 

A) Incapacitation due to alcohol or other drugs: Incapacitation may result from the use of alcohol or drugs.  However, consumption of alcohol or other drugs alone is insufficient to establish incapacitation.  Whether an intoxicated person (as a result of using alcohol or other drugs) is incapacitated depends on the extent to which the alcohol or other drugs impact the person’s decision-making ability, awareness of consequences, and ability to make informed judgments. A person’s own intoxication or incapacitation from drugs or alcohol does not diminish that person’s responsibility to obtain Affirmative Consent before engaging in sexual activity. 

Because alcohol or other drug use can place an individual’s capacity to consent in question, sober sex is less likely to raise such questions.  Being under the influence of alcohol or other drugs does not in and of itself indicate incapacitation. When alcohol or other drugs, including date rape drugs (such as Rohypnol, Ketamine, GHB, etc.), are involved, a person will be considered unable to give valid consent if they cannot fully understand the details of a sexual interaction (the who, what, when, where, why, or how) because they lack the capacity to reasonably understand the situation.  Administering a date rape drug to another individual is a violation of this Policy.  More information on these drugs can be found at http://www.911rape.org/. 

In general, sexual contact while under the influence of alcohol or other drugs poses a risk to all parties.  Alcohol and drugs impair a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments.  It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication.  If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity. 

Being intoxicated or impaired by drugs or alcohol is never an excuse for Sexual Harassment, sexual violence, stalking, or intimate partner violence, and does not diminish one’s responsibility to obtain consent. 

The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol or drugs impacts an individual’s:  

• Decision-making ability;  
• Awareness of consequences;  
• Ability to make informed judgments; or,  
• Capacity to appreciate the nature and the quality of the act.

B) Incapacitation due to other reasons: This Policy also covers a person whose incapacity results from mental or physical disabilities, sleep, unconsciousness, or involuntary physical restraint.  Accordingly, it shall not be a valid excuse that a person affirmatively consented to the sexual activity if the Respondent knew or reasonably should have known that the person was unable to consent to the sexual activity under any of the following circumstances: 

• The person was asleep or unconscious; 
• The person was incapacitated due to the influence of drugs, alcohol or medication, so that the person could not understand the fact, nature or extent of the sexual activity; 
• The person was unable to communicate due to a mental or physical condition. 

It shall not be a valid excuse that the Respondent believed that the person consented to the sexual activity under either of the following circumstances: 

• The Respondent’s belief in Affirmative Consent arose from the intoxication or recklessness of the Respondent; 
• The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the person affirmatively consented.

D. Additional Relevant Terms 

Amnesty: Generally, sanctions related to alcohol or drug policy violations will not be imposed on individuals cooperating in an investigation or hearing under this and related policies.  See the College’s Amnesty Policy in Section VII.D for more information.   

Advisor: An Advisor is an individual who provides guidance to the Complainant or Respondent throughout the College’s grievance process, as set forth in this Policy. Each party is entitled to one Advisor through every stage of the grievance process (including the Alternative Resolution process, when applicable). A party can select an Advisor of their choice at any time in the process.  An Advisor can be any person, including an attorney, who is not otherwise a party or a witness.  An Advisor may never write/speak on behalf of a party or otherwise disrupt any meetings or hearings in any manner.    Because this is an administrative process, any legal counsel present as the party’s Advisor during any related proceedings, including, but not limited to, investigatory interviews, hearing, or any other related discussion or meeting, shall be permitted only in a non-participatory advisory role.  

In addition, at least ten (10) business days  prior to any hearing, the Complainant and Re-spondent may each notify the Title IX Coordinator that an advisor will be present during the hearing (with a support person, no more than two individuals in total); the request should be in writing and should identify the persons the Complainant or Respondent wishes to be present during the hearing.  The College reserves the right to exclude an Advisor who does not abide by these procedures. 

Case Manager: The Case Manager, usually a staff or faculty member, can help the party to whom they are assigned to navigate through this Policy and related procedures, and support the party in accessing resources, accommodations, and other kinds of support. At the discretion of the party, their assigned Case Manager may accompany them to any meeting/hearing related to these procedures.  The Case Manager is expected to be a silent and non-participating observer in any meetings/hearings.  The Title IX Coordinator will assign the Case Manager from a pool of trained individuals after the initial intake usually within seven (7) business days. 

Complainant: A Complainant is an individual alleged to be the victim of conduct that could constitute Sexual Harassment, as defined by this Policy.  

As necessary, the College reserves the right to initiate a complaint, to serve as Complainant, and to initiate proceedings without a formal complaint by the subject of the misconduct. 

Confidential Resource: A Confidential Resource is a campus- or community-based resource that has the duty of confidentiality. The duty of confidentiality is an obligation on the part of the resource provider to keep a person’s information private and confidential unless consent to release or share the information is provided by the disclosing person. Each Institution’s Title IX Coordinator maintains a list of Confidential Resources. 

There are two types of Confidential Resources at the College: 

• Confidential Resources with the legal privilege of confidentiality. 

Communications with these resources have legal protections from disclosure in court. These resources also possess professional obligations (the duty of confidentiality) to hold such communications in confidence and they cannot divulge information about an individual seeking their services to a third party without that individual’s consent. There are established limits to confidentiality and these must be communicated to the individual seeking services. 

Examples include, but are not limited to: Chaplains, Monsour and Project Sister Counselor at EmPOWER.  Due to their proper training and supervision Project Sister Campus Advocates at Pomona College are Confidential Resources with legal privilege. 

• Institution-designated Confidential Resources. 

Communications with these resources do not have legal privilege and as such are not provided legal protections from disclosure in court. These individuals and/or offices do possess professional obligations (the duty of confidentiality) to hold communications in confidence and they cannot divulge information about an individual seeking their services to a third party without that individual’s consent. 

In addition to established limits to confidentiality that must be communicated to the individual seeking services, Institution-designated Confidential Resources also have limited reporting responsibilities federally mandated by the Clery Act. Under the Clery Act, their reporting obligation arises when they become aware of information or allegations of criminal behavior and must report the information regarding an incident to the Institution’s Clery Coordinator. They do not have to report identifying information about the individuals involved in an incident. Institution-designated Confidential Resources are not obligated to inform the Title IX Coordinator of a report/disclosure unless requested by the individual seeking their services. 

Examples include, but are not limited to: the Assistant Director of the CARES Office, the EmPOWER Center Director, and the Director at the Queer Resource Center (QRC). 

Respondent: A Respondent is an individual who has been reported to have engaged in conduct that could constitute Sexual Harassment, as defined by this Policy. An individual does not have to be enrolled or employed by the College to qualify as a Respondent under this Policy. The College may dismiss a Complaint if the Respondent is no longer enrolled or employed by the College; however, the decision to dismiss will be made on an individual basis. 

Support Person: A Support Person is an individual who provides emotional support to a Complainant or Respondent throughout the College’s Grievance and Alternative Resolution process, as set forth in this Policy. Parties are entitled to one Support Person through every stage of the Grievance and Alternative Resolution process. 

The Support Person may never write/speak on behalf of a party or otherwise disrupt any meetings or hearings in any manner.  Because this is an administrative process, any legal counsel present as the party’s support person during any related proceedings, including, but not limited to, investigatory interviews, hearing, or any other related discussion or meeting, shall be permitted only in a non-participatory advisory role.    

In addition, at least ten (10) business days  prior to any hearing, the Complainant and Respondent may each notify the Title IX Coordinator that both a support person and advisor will be present during the hearing (no more than two individuals in total); the request should be in writing and should identify the persons the Complainant or Respondent wishes to be present during the hearing.   

The College reserves the right to exclude a Support Person who does not abide by these procedures. 

Supportive Measures: Also referred to as interim measures throughout this Policy, they are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge, to the Complainant and/or the Respondent.  The range of Supportive Measures available is listed in Section IV.D.5 of this Policy.