IV. Prohibited Conduct Under This Policy
Discrimination
Discrimination means material, adverse treatment of a person or group on the basis of race, color, national or ethnic origin, sex, age, disability, or veteran’s status or any other criteria protected by applicable law. Discrimination occurs when persons are excluded from participation in, or denied the benefits of, any University program or activity on the basis of a protected status. Notwithstanding the foregoing, this definition of discrimination does not include differential treatment explicitly permitted by law (such as the law’s allowance for sex-segregated dormitories). Furthermore, this definition shall not, in any way, limit the University’s right to maintain its Catholic character and to implement programs, policies, and practices in furtherance of its religious identity and objectives as specifically allowed by federal law, including the First Amendment to the U.S. Constitution.
Any complaint of alleged discrimination will be handled through this policy, regardless of whether other issues are implicated. For example, if in making a complaint of an academic nature, a student alleges different treatment as a result of the student’s status in a protected class, the different treatment will be investigated using this policy, rather than handling the issue through another University academic appeal process.
Discriminatory Harassment
Discriminatory Harassment means conduct which creates an intimidating or hostile living, learning or working environment at Franciscan on the basis of race, color, national or ethnic origin, sex, age, disability, veteran’s status or any other criteria protected by applicable law. It includes oral, written, physical, or graphic conduct that substantially interferes with an individual’s work, education, or participation in University programs or activities. Discriminatory harassment means unwelcome advances, requests for favors, and other oral, written, physical, or graphic conduct or communication based on race, color, national or ethnic origin, sex, age, disability, veteran’s status or any other criteria protected by applicable law. Harassment rises to the level of discriminatory harassment when:
Submission to the conduct or communication is made a term or condition, either explicitly or implicitly, to obtain or continue employment,
Submission to or rejection of the conduct or communication by a person is used as a factor in decisions affecting the person’s employment, education, or housing, or
The conduct or communication has a purpose or effect of:
- Substantially interfering with the person’s living, learning, or working environment, or
- Creating what a reasonable person would perceive as an intimidating, hostile, or offensive living, learning, or working environment.
Some examples of conduct that might constitute discriminatory harassment include any of the following acts or behaviors related to an individual’s race, color, national or ethnic origin, sex, age, disability, or veteran’s status (or any other criteria protected by applicable law):
Epithets, “jokes,” offensive or derogatory comments, or other verbal or physical conduct
Ethnic slurs, workplace graffiti, or other offensive conduct
Making, posting, e-mailing, or circulating demeaning or offensive pictures, cartoons or other materials in the workplace or using University equipment to circulate such materials.
In determining whether conduct rises to the level of creating a hostile environment, the University will consider the totality of the circumstances, including, but not limited to, the nature and severity of the conduct, the duration of the conduct and whether the conduct is a part of a pattern.
Bullying
Bullying constitutes discriminatory harassment when it is motivated by an individual or group’s race, color, national or ethnic origin, sex, age, disability, veteran’s status, or any other criteria protected by applicable law. Bullying is verbal, physical, social, or psychological behavior that is harmful, and involves the misuse of power by an individual or group towards one or more persons. Bullying consists of abusive conduct relative to acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the conduct and without regard to the method of delivery, such as verbal, written, graphic, electronic, or physical act. Bullying that falls outside this policy (i.e., is not based on membership to a protected class) may nonetheless violate other University policies or handbooks.
Hazing
Hazing is defined broadly in the Student Handbook as “any activity expected of someone joining a group (or to maintain full status in a group) that humiliates, degrades, or risks emotional and/or physical harm, regardless of the person’s willingness to participate, or that destroys or removes public or private property, or that otherwise conflicts with the academic or religious mission of the University.” Hazing is covered by this policy only when it is motivated by a person’s race, color, national or ethnic origin, sex, age, disability, veteran’s statues, or any other status protected by applicable law.
Sexual Misconduct
As used as in this policy, the term “sexual misconduct” means sexual harassment (as defined below), dating violence, domestic violence, and stalking. The term “sexual misconduct” is used throughout the remainder of this policy when referring collectively to these types of prohibited conduct.
It is a violation of this policy to commit or to attempt to commit these acts of sexual misconduct. Additionally, it is a violation of this policy to aid and abet another person in the commission of any sexual misconduct. The phrase “to aid and abet” is defined as any action or course of action that assists or encourages the commission of a violation under this policy.
The following are definitions of prohibited sexual misconduct under this policy:
Sexual Harassment: For purposes of this policy, sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
- An employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct.
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity; or
- Sexual assault. The term “sexual assault” means an offense classified as a forcible or non-forcible sex offense (see definitions below) under the uniform crime reporting system of the Federal Bureau of Investigation.
Sex Offenses - Forcible
Any sexual act directed against another person, forcibly and/or against that persons will; or not forcibly or against the persons will where the victim is incapable of giving consent.
- Forcible Rape - The carnal knowledge of a person, forcibly and/or against that person’s will; or not forcibly or against that persons will where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity or because of his/her youth (i.e., the use of a body part to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of that person).
- Forcible Sodomy - Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will; or not forcibly against that persons will where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.
- Sexual Assault With An Object - The use of an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will; or not forcibly against the person’s will where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical in capacity.
- Forcible Fondling - The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that persons will; or not forcibly or against that person’s will where the victim is incapable of giving consent because of his/her youth or because of his/her temporary mental incapacity.
Sex Offenses - Non forcible Unlawful, non-forcible sexual intercourse.
- 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.
Dating Violence: Dating violence also constitutes sexual misconduct. The term “dating violence” means violence committed by a person—who is or has been in a social relationship of a romantic or intimate nature with an individual and where the existence of the relationship shall be determined based upon the reporting party’s statement and with consideration of the following factors: length of relationship; type of relationship; and frequency of interaction between the persons involved in the relationship. For purposes of this definition, dating violence includes, but is not limited to, sexual or physical violence or the threat of such violence.
Domestic Violence: Domestic violence also constitutes sexual misconduct. The term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of an individual, by a person with whom an individual shares a child in common, by a person who is cohabitating with or has cohabitated with an individual as a spouse or a partner, by a person similarly situated to a spouse of the individual under the domestic or family violence laws of the jurisdiction where the incident occurred, or by any other person against an adult or youth individual who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
Note: According to Ohio law, no person shall knowingly or recklessly threaten, attempt, or cause physical harm to a family or household member (full text of Ohio Revised Code §2919.25 “Domestic Violence” is available at: http://codes.ohio.gov/orc/2919.25).
Stalking: Stalking also constitutes sexual misconduct. The term “stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others; or to suffer substantial emotional distress. For the purposes 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” for purposes of the definition of stalking means a reasonable person under similar circumstances.
Note: According to Ohio law, no person shall engage in conduct, including conduct through electronic methods of communication and interaction, which causes emotional distress or causes a person to believe that the offender will physically harm them. The full text of Ohio Revised Code §2902.211 “Menacing by Stalking” is at: http://codes.ohio.gov/orc/2903.211.Note: If an alleged victim has obtained an order of protection or restraining order or other no contact order against the alleged perpetrator, the alleged victim must provide such information to the Title IX/EEO Coordinator (or designee) so that the University can take all reasonable and legal action to implement the order in the University’s jurisdiction.
For purposes of this policy, the following are the definitions of “consent” and “incapacitation”:
Definition of Consent:
While all sexual contact outside the covenant of marriage is inconsistent with Catholic teaching and the University’s values, for purposes of determining whether sexual misconduct has occurred, “consent” is defined as a clear, knowing and voluntary agreement to engage in a specific sexual activity. Consent requires an affirmative act or statement by each participant. All the surrounding circumstances are to be considered in determining whether a person gave consent.
The following information is critical to understanding consent to sexual activity:
- Consent to some sexual acts does not imply consent to others, nor does past consent to a given act imply present or future consent.
- Consent cannot be inferred from silence or an absence of resistance.
- Coercion, force, use of fraud, or intimidation, or the threat or any of these, invalidates consent.
- A current or previous romantic, social or sexual relationship with someone, or the manner of dress of the person involved with the accused individual in the conduct at issue, does not imply present or future consent to any form of sexual activity.
- Consent must be ongoing throughout a sexual encounter.
- Consent can be withdrawn at any time by verbal or physical conduct that a reasonable person would understand to indicate a desire to stop or not engage in the sexual conduct at issue.
- Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another.
- Effective consent may not exist when there is a disparity of power between the parties (e.g., faculty/student, supervisor/employee).
- A person who is incapacitated cannot consent. (See definition of incapacitation below).
Note: Although not necessarily a violation of this policy, certain consensual sexual activity that is lewd, indecent, obscene or immoral conduct or expression that violates Catholic moral teaching on sexuality, or the promotion or advocacy of such conduct or expression, may be considered a violation of the Student Handbook or other University policies.
Definition of Incapacitation:
Consent cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other condition, including an intellectual or other disability. A person is mentally or physically incapacitated when that person lacks the ability to make or act on considered decisions to engage in sexual activity. Engaging in sexual contact with a person whom you know – or reasonably should know – to be incapacitated constitutes sexual misconduct. Warning signs of when a person may be incapacitated due to drug and/or alcohol use include, but not limited to, slurred or incomprehensible speech, falling down, unsteady gait, passing out, and vomiting.