Sexual Misconduct Policy and Grievance Procedures

Gender-Based Misconduct Policy

Introduction

Members of the Marietta College community, guests, and visitors have the right to be free from all forms of gender and sex-based discrimination, examples of which can include acts of sexual violence, sexual harassment, domestic violence, dating violence, and stalking. All members of the campus community are expected to conduct themselves in a manner that does not infringe upon the rights of others. The College believes in a zero tolerance policy for gender-based misconduct. When an allegation of misconduct is brought to an appropriate administrator’s attention, and a responding party is found to have violated this policy, serious sanctions will be used to reasonably ensure that such actions are never repeated. This policy has been developed to reaffirm these principles and to provide recourse for those individuals whose rights have been violated. This policy is intended to define community expectations and to establish a mechanism for determining when those expectations have been violated.

Overview of Policy Expectations with Respect to Physical Sexual Misconduct

The expectations of our community regarding sexual misconduct can be summarized as follows: In order for individuals to engage in sexual activity of any type with each other, there must be clear, knowing, and voluntary consent prior to and during sexual activity. Consent is sexual permission. Consent can be given by word or action, but non-verbal consent is not as clear as talking about what you want sexually and what you don’t. Consent to some form of sexual activity cannot be automatically taken as consent to any other form of sexual activity. Silence--without actions demonstrating permission--cannot be assumed to show consent.

Sexual Misconduct Offenses Include, But Are Not Limited To:

Sexual Harassment
Non-Consensual Sexual Contact (or attempts to commit same)
Non-Consensual Sexual Intercourse (or attempts to commit same)
Sexual Exploitation

Sexual Harassment

Sexual Harassment is:

unwelcome, gender-based verbal or physical conduct that is
sufficiently severe, persistent or pervasive that it
unreasonably interferes with, denies, or limits someone’s ability to participate in or benefit from the College’s educational programs, employment, and/or activities, and is
based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation.

Examples include: an attempt to coerce an unwilling person into a sexual relationship; to repeatedly subject a person to egregious, unwelcome sexual attention; to punish a refusal to comply with a sexual based request; to condition a benefit on submitting to sexual advances; sexual violence; intimate partner violence; stalking; gender-based bullying.

Non Consensual Sexual Contact

Non-Consensual Sexual Contact is:

any intentional sexual touching,
however slight,
with any object,
by a man or a woman upon a man or a woman,
that is without consent and/or by force.

Sexual Contact includes:

Intentional contact with the breasts, buttocks, 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.

Non-Consensual Sexual Intercourse

Non-Consensual Sexual Intercourse is:

any sexual intercourse
however slight,
with any object,
by a man or woman upon a man or a woman,
that is without consent and/or by 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.

Sexual Exploitation

Occurs when a student takes non-consensual or abusive sexual advantage of another for their 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:

invasion of sexual privacy;
prostituting another student;
non-consensual video or audio-taping of sexual activity;
going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex);
engaging in voyeurism;
knowingly transmitting an STI or HIV to another student;
exposing one’s genitals in non-consensual circumstances; inducing another to expose their genitals;
sexually-based stalking and/or bullying may also be forms of sexual exploitation

Additional Applicable Definitions:

Consent:

Consent is clear, knowing and voluntary. 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 (and the conditions of) sexual activity.

Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.
Previous relationships or prior consent cannot imply consent to future sexual acts.
In order to give effective consent, one must be at least 18 years of age.

Force:

Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcome resistance or produce consent (“Have sex with me or I’ll hit you.” “Okay, don’t hit me, I’ll do what you want.”).

Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you 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.
NOTE: There is no requirement that a party resists the sexual advance or request, but resistance is a clear demonstration of non-consent. The presence of force is not demonstrated by the absence of resistance. Sexual activity that is forced is by definition non-consensual, but non-consensual sexual activity is not by definition forced.
Sexual activity with someone who one should know to be -- or based on the circumstances should reasonably have known to be -- mentally or physically incapacitated (by alcohol or other drug use, unconsciousness or blackout), constitutes a violation of this policy.
Incapacitation is a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction).
This policy also covers a person whose incapacity results from a mental and/or a physical disability, sleep, involuntary physical restraint, or from the taking of rape drugs. Possession, use and/or distribution of any of these substances, including Rohypnol, Ketomine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another student is a violation of this policy. More information on these drugs can be found at http://www.911rape.org/
Use of alcohol or other drugs will never function as a defense for any behavior that violates this policy.
The sexual orientation and/or gender identity of individuals engaging in sexual activity is not relevant to allegations under this policy.

Sanction Statement

Any student found responsible for violating the policy on Non-Consensual or Forced Sexual Contact (where no intercourse has occurred) will likely receive a sanction ranging from probation to expulsion, depending on the severity of the incident, and taking into account any previous campus conduct code violations.*
Any student found responsible for violating the policy on Non-Consensual or Forced Sexual Intercourse will likely face a recommended sanction of suspension or expulsion.*
Any student found responsible for violating the policy on sexual exploitation or sexual harassment will likely receive a recommended sanction ranging from warning to expulsion, depending on the severity of the incident, and taking into account any previous campus conduct code violations.*

*The Student Accountability Board reserves the right to broaden or lessen any range of recommended sanctions in the case of serious mitigating circumstances or egregiously offensive behavior. Neither the initial hearing officers nor any appeals body or officer will deviate from the range of recommended sanctions unless justification exists to do so.

Other Gender-Based Misconduct Offenses That Fall Under Title IX

Threatening or causing physical harm, extreme verbal abuse, or other conduct that threatens or endangers the health or safety of any person;
Discrimination, defined as actions that deprive other members of the community of educational or employment access, benefits or opportunities on the basis of gender;
Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another;
Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the College community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity.
Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally (that is not speech or conduct otherwise protected by the 1st Amendment).
Violence between those in an intimate relationship to each other, including:
1. Physical violence, which includes but is not limited to: kicking, punching, hitting, choking, biting, shaking or otherwise using physical force to restrain or hurt a person. Physical violence can be used against a person with a physical disability by not allowing them access to equipment such as a wheelchair or similar items, that assist a person with a disability in daily living.
2. Emotional violence (including verbal/written violence), which includes using isolation, intimidation, and threat of physical force or words to restrain or hurt a person. This could include threatening to "out" a lesbian, gay, bisexual or transgender person. In some cultures, family members may participate in emotionally abusing a person. International students who experience relationship violence may receive threats stating that they will be sent back to their country of origin if they report acts of violence against them.
3. Economic abuse, which is defined as withholding financial resources to intimidate, threaten or cause a person to remain in a relationship because of lack of access to finances.
Stalking, defined as engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

Fear for the person’s safety or the safety of others; or
Suffer substantial emotional distress.

For the purpose of this definition:

Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person’s property.
Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.