VII. How Olin will address unlawful discrimination and harassment, including sexual misconduct and retaliation

A. Definitions of Prohibited Conduct Under Olin's Sexual Misconduct Policy

The following are the definitions of conduct that is prohibited under Olin’s Sexual Misconduct Policy. If an individual has any questions about the definition or application of any of these terms, the Sexual Misconduct Policy in general, or the resources available to all member of the Olin community, please contact the Title IX Coordinator. The contact information for the Title IX Coordinator, as well as other resources who can provide support is located in Section IV and V.

Sexual Misconduct is a broad term used to encompass a range of behaviors including but not limited to sex discrimination, sexual harassment, sexual assault, sexual coercion, sexual exploitation, relationship violence (domestic violence and dating violence), stalking and/or acts perpetrated against a person’s will or when a person is incapable of giving consent.  All such acts of sexual misconduct are prohibited by Olin College. Sexual misconduct can occur between individuals who know each other, have an established relationship, have previously engaged in consensual sexual activity, and/or between individuals who do not know each other. Sexual misconduct can be committed by persons of any gender identity, and can occur between people of the same or different biological sex or gender identity.

Sex Discrimination: An intentional or unintentional act that adversely affects employment and/or educational opportunities because of a person’s sex, gender identity, sexual orientation and/or marital or parental status. Discrimination may be classified as either disparate impact (facially neutral practices that fall more harshly on one group than another and cannot be justified by business necessity) or disparate treatment (treatment of an individual that is less favorable than treatment of others based upon unlawful discriminatory reasons).

Sexual Harassment:

Sexual harassment consists of two basic types:

Quid Pro Quo Harassment: Any action in which submission to or rejection of unwelcome conduct of a sexual nature is made either explicitly or implicitly a term or condition of an individual’s education, grades, recommendations, extracurricular programs or activities, and/or employment opportunities.

Intimidating or Hostile Environment: Any unwelcome conduct of a sexual nature, including verbal expression, that is severe, persistent, or pervasive, and creates an intimidating, hostile, or offensive working or educational environment, or has the purpose or effect of unreasonably interfering with an individual’s employment, academic performance, education, and/or participation in extracurricular programs or activities. This includes actions or expression targeting an individual’s sex, sexual orientation, gender identity and gender expression.

A single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to provide a hostile environment, particularly if the harassment is physical.

In either type of sexual harassment noted above, the effect will be evaluated from both a subjective perspective, as well as the objective perspective of a reasonable person in the position of the person who experienced the conduct.

Forms of Sexual Harassment: In some cases, sexual harassment is obvious and may involve an overt action, a threat, or reprisal. In other instances, sexual harassment is subtle and indirect, with a coercive aspect that is unstated. Some examples include the following:

• Sexual harassment can occur between persons of equal power status (e.g., student to student, employee to employee) or between persons of unequal power status (e.g., employee to student, supervisor to employee). Although sexual harassment often occurs in the context of the misuse of power by the individual with the greater power, a person who appears to have less or equal power in a relationship can also commit sexual harassment.
• Sexual harassment can be committed by (or against) an individual or by (or against) an organization or group.
• Sexual harassment can be committed by an acquaintance, a stranger, or people who shared a personal, intimate, or sexual relationship.
• Sexual harassment can occur by (or against) an individual of any sex, gender identity, gender expression, or sexual orientation.
• It does NOT have to include intent to harm, be directed at a specific target, or involve repeated incidents.

While it is not possible to list all circumstances that may constitute sexual harassment, the following are some examples of behavior that might be considered sexual harassment depending upon the totality of the circumstances including the severity of the conduct and its pervasiveness:

• Unwanted sexual innuendo, propositions, sexual attention or suggestive comments and gestures; inappropriate humor about sex or gender-specific traits; sexual slurs or derogatory language directed at another person’s sexuality, gender, gender identity, sexual orientation or gender expression; insults and threats based on sex, gender, gender identity, sexual orientation or gender expression; and other oral, written or electronic communications of a sexual nature that an individual communicates is unwanted and unwelcome.
• Written graffiti or the display or distribution of sexually explicit drawings, pictures, or written materials; sexually charged name-calling; or the circulation, display, or creation of e-mails, text messages, or websites of a sexual nature.
• Display or circulation of written materials or pictures degrading to an individual or gender group where such display is not directly related to academic freedom, or an educational/pedagogical, artistic, or work purpose. When an instructor determines it is necessary to include such materials in classroom instruction, discussion, or required studies/ reading, it is expected that the instructor will offer prior warnings concerning the intent to display or introduce such explicit materials. Instructors are encouraged to attempt to accommodate individuals who find such materials upsetting or triggering by allowing for alternative means of fulfilling course requirements.
• Unwelcome physical contact or suggestive body language, such as touching, patting, pinching, hugging, kissing, or brushing against an individual’s body.
• Undue and unwanted attention, such as repeated flirting, objectively inappropriate or repetitive compliments about physical attributes or clothing, staring, or making sexually oriented gestures.
• Physical coercion or pressure of an individual to engage in sexual activity or punishment for a refusal to respond or comply with sexual advances.
• Use of a position of power or authority to: (1) 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 (2) promise rewards in return for sexual favors.
• Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex, sexual orientation, gender identity, or sex-stereotyping.

Sexual Violence: Physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent.  Physical sexual acts include, but are not limited to, vaginal or anal penetration, however slight, with a body part or object, or oral copulation by mouth-to-genital contact. This definition includes sexual assault, rape, sexual battery, and sexual coercion. Sexual violence may involve individuals who are known to one another or have an intimate and/or sexual relationship (relationship violence), or may involve individuals not known to one another.

Sexual violence can be committed by any person again any other person, regardless of gender, gender identity, sexual orientation, or past or current relationship status. Sexual violence may occur with or without physical resistance or violence.

• Sexual Assault: Sexual assault is any unwanted or intentional sexual contact without consent, whether such contact directly touches skin or is through clothing. This includes any sexual contact with the breasts, buttocks, groin, genitals, mouth, and/or other body part of an individual. Touching another individual with the above mentioned body part(s) or making another individual touch themselves is sexual assault. Additionally, disrobing, exposure of an individual’s body without that individual’s consent, or attempting nonconsensual sexual intercourse is sexual assault.
• Rape: Rape is a form of sexual assault involving sexual penetration without consent. Rape is defined as: (a) any sexual penetration of the vagina or anus, however slight, with any object or body part without consent; or (b) any penetration of the mouth, however slight, by any sex organ or object used in a sexual manner without consent.
• Fondling: Fondling is the touch of the private body parts of another individual for the purpose of sexual gratification without consent. This includes instances where the individual being touched is incapable of giving consent because of their temporary or permanent mental incapacity.

Other Inappropriate Sexual Contact: Having or attempting to have sexual contact of any kind other than that defined as “Sexual Violence” with another individual without consent. Other inappropriate sexual contact may include kissing, touching, or making other inappropriate contact with the breasts, genitals, buttocks, mouth, or any other part of the body that is touched in a sexual manner and without permission.

Consent and Sexual Coercion:

Consent is the affirmative and willing agreement to engage in a specific form of sexual contact with another person who is capable of giving consent. Consent cannot be obtained through: (a) the use of coercion, or (b) by taking advantage of the incapacitation or impairment of another individual, including someone who is underage, unconscious, asleep, incapacitated, or impaired by intoxication or drugs. Consent requires an outward demonstration, through mutually understandable words or actions, indicating that an individual has chosen freely to engage in a sexual contact.

Sexual Coercion is defined for purposes of this section as the application of unreasonable pressure to take part in sexual activity or in any of the prohibited conduct listed in Olin’s Sexual Misconduct Policy. Unreasonable pressure can be exerted through physical or emotional force, intimidation, misuse of authority, or outright threats. When someone makes it clear that they do not want to engage in sexual activity or do not want to go beyond a certain point of sexual interaction, continued pressure beyond that point may be considered coercive. Ignoring or dismissing the objections of another person may also be a form of coercion.

Silence, passivity, or the absence of resistance does not imply consent. Relying solely on non-verbal communication may result in confusion about whether there is effective consent. It is important not to make assumptions. If confusion or ambiguity arises during a sexual interaction, it is essential that each participant stops and verbally clarifies the other’s willingness to continue.

Consent can be withdrawn at any time. When consent is withdrawn, sexual activity must cease. Prior consent does not imply current or future consent; even in the context of an ongoing relationship, consent must be sought and freely given for each instance of sexual contact. An essential element of consent is that it be freely given.

In evaluating whether consent was given, consideration will be given to the totality of the facts and circumstances including, but not limited to, the extent to which an individual affirmatively uses words or actions indicating a willingness to engage in sexual contact, free from intimidation, fear, or coercion; whether a reasonable person in the position of the individual alleged to have committed the conduct would have understood such person’s words and acts as an expression of consent; and whether there are any circumstances, known or reasonably apparent to the individual alleged to have committed the conduct, demonstrating incapacitation or fear.

Incapacitation is the inability, temporarily or permanently, to give consent, because the individual is mentally and/or physically helpless due to drug or alcohol consumption, taken either voluntarily or involuntarily, or the individual is unconscious, asleep or otherwise unaware that the sexual activity is occurring. In addition, an individual is incapacitated if they demonstrate that they are unaware of where they are, how they arrived at a location, or why or how they became engaged in a sexual interaction. Where alcohol is involved, incapacitation is a state beyond drunkenness or intoxication.

Sexual Exploitation: Any act committed through non-consensual abuse or exploitation of another person’s sexuality for the purpose of sexual gratification, personal benefit or advantage or any other illegitimate purpose. Sexual exploitation may involve individuals who are known to one another, have an intimate or sexual relationship, or may involve individuals not known to one another. Examples include, but are not limited to, observing another individual’s nudity or sexual activity or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved.

• Inducing Incapacitation: This includes the provision of alcohol or drugs to an individual, with or without that individual’s knowledge, for the purpose of causing impairment or intoxication or taking advantage of that individual’s impairment or intoxication.
• Media-Based Misconduct: Photographing or taping someone (via audio, video or otherwise) involved in sexual activity, or in a state of undress, without their knowledge or consent.  Even if a person consented to sexual activity, photographing or taping someone without their knowledge and agreement goes beyond the boundaries of that consent. Dissemination of photographs or video/audio of someone involved in sexual activity, or in a state of undress, without their knowledge or consent constitutes a separate and additional act of sexual misconduct.
• Miscellaneous: The inappropriate behaviors listed above are not an exhaustive list. Olin may consider any other conduct that has a sexual or gender-based connotation under Olin’s Sexual Misconduct Policy.

Relationship Violence (Domestic Violence and Dating Violence):

Relationship violence is any unwanted or intentionally violent or controlling behavior of one individual by a person who is currently or was previously in an intimiate relationship with that individual. Relationship violence may include actual or threatened physical injury, sexual violence, psychological or emotional abuse, coercion, manipulation, intimidation, and/or progressive social isolation towards a partner in a current or former intimate relationship. With regards to Olin’s Sexual Misconduct Policy, the term “intimate relationship” refers to marriage, domestic partnership, engagement, casual or serious romantic involvement, and dating.

Relationship violence can occur between individuals of any sex, gender identity and/or sexual orientation, and can occur in any type of intimate relationship including monogamous, non-committed, and relationships involving more than two partners. Relationship violence can also be a single act or a pattern of behavior.

Relationship violence can take many forms. Examples include, but are not limited to, situations in which behaviors are directed toward a partner in a current or former intimate relationship such as: hitting, kicking, punching, strangling, or other violence; property damage; threat of violence to one’s self, one’s partner, or the family members, friends, pets, or personal property of the partner; threat to disclose personal or sensitive information; and depriving the partner access to their residence.

Stalking is more than one instance of unwanted attention, harassment, physical or verbal contact, or any other course of conduct directed at an individual that could be reasonably regarded as likely to alarm or place that individual in fear of harm or injury, including physical, emotional, or psychological harm. This includes cyber-stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, texts or other similar forms of contact are used to pursue, harass, or make unwelcome contact with another person. Stalking and cyber-stalking may involve individuals who are known to one another or have an intimate or sexual relationship, or may involve individuals not known to one another.

Retaliation:

Engaging in conduct that may reasonably be perceived to:

• Adversely affect a person’s educational, living, or work environment because of their good faith participation in the reporting, investigation, and/or resolution of a report of a violation of Olin’s Sexual Misconduct Policy; or
• Discourage a reasonable person from making a report or participating in an investigation under Olin’s Sexual Misconduct Policy, any other Olin College policy, or any other local, state, or federal complaint process (e.g., filing a complaint with an entity like the U.S. Department of Education).

Retaliation includes, but is not limited to, acts or words that constitute intimidation, threats, or coercion intended to pressure any individual to participate, not participate, or provide false or misleading information during any proceeding under Olin’s Sexual Misconduct Policy. Retaliation may include abuse or violence, other forms of harassment, and/or making false statements about another person in print or verbally with intent to harm their reputation.

Retaliation can be committed by any individual or group of individuals, not just a Responding Party or a Complaining Party. Retaliation may constitute a violation of Olin’s Sexual Misconduct Policy, even when the underlying report made did not result in a finding of responsibility. Retaliation, even in the absence of provable discrimination or harassment in the original complaint or charge, constitutes a serious violation of this policy.

Other Violation: Engaging in other conduct which is prohibited by Olin’s Sexual Misconduct Policy (e.g., recording the proceedings) or failure to comply with a duty or obligation set forth in, or imposed pursuant to, this Policy (e.g., duty of honesty, duty of cooperation or duty to report).

B. State Law Definitions

The following are excerpts compiled from the Massachusetts General Laws that describe how certain relevant behavior is defined in Massachusetts. These definitions are not identical to the definitions of conduct prohibited in Olin’s Sexual Misconduct Policy, but Olin considered these definitions in developing its Policy.

Sexual Harassment: (Compiled from M.G.L. Ch. 151B)

“Sexual harassment” means sexual advances, requests for sexual favors and verbal or physical conduct of a sexual nature when:

• Submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or enrollment or is used as a basis for employment or educational decisions, placement services or evaluation of academic achievement; or
• Such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work or educational performance by creating an intimidating, hostile, humiliating or sexually offensive work or educational environment.

Sexual Assault (Rape, Indecent Assault & Battery): (Compiled from M.G.L. Ch. 265, § 13 & 22)

Sexual assault is defined under Massachusetts law as rape or indecent assault and battery.

Rape is defined as occurring when a person has “sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise…”

Indecent assault and battery occurs when one person touches another person in an “indecent” way. Examples of indecent assault and battery include touching a person’s buttocks, breasts, or genitals without consent. The Commonwealth must prove that the defendant touched the alleged victim without justification or excuse; and that the touching was “indecent;” and that the alleged victim did not consent.

An indecent act is one that is fundamentally offensive to contemporary standards of decency.

Stalking: (Compiled from M.G.L. Ch. 265, § 43)

The act of “willfully and maliciously engaging in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress and makes a threat with the intent to place the person in imminent fear of death or bodily injury.”  Stalking includes, but is not limited to, acts or threats conducted by mail or by use of a telephonic or electronic communication device. Communications include, but are not limited to, electronic mail, internet communications, instant messages or facsimile communications.

Domestic and Dating Violence: (Compiled from M.G.L. Ch. 209A)

“Abuse” is defined as “the occurrence of one or more of the following acts between family or household members:

• Attempting to cause or causing physical harm;
• Placing another in fear of imminent serious physical harm; or
• Causing another to engage involuntarily in sexual relations by force, threat, or duress.”

Family or household members are defined as “persons who:

• Are or were married to one another;
• Are or were residing together in the same household;
• Are or were related by blood or marriage;
• Have a child in common regardless of whether they have ever married or lived together; or
• Are or have been in a substantive relationship, which shall be adjudged in consideration of the following factors: (1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.”

Consent: (not defined by M.G.L. in this context)

In Massachusetts, it is illegal to have sex under any circumstances with someone who is incapable of giving consent due to incapacity or impairment; incapacity or impairment may be caused by intoxication or drugs, or because a victim is underage, mentally impaired, unconscious, or asleep.  For purposes of the Olin Sexual Misconduct Policy, consent is an explicitly communicated, reversible, mutual agreement to which all parties are capable of making a decision.

Massachusetts has several laws that define the age of consent and the additional penalties that attach if a person is under the age of 16 or 14. E.g., statutory rape laws, indecent and assault and battery on a person under the age of 14.

Retaliation: (Referenced by M.G.L. in various contexts, e.g., Chap. 151B.)

Retaliation is frequently addressed by the U.S. Department of Education’s Office for Civil Rights (OCR).  OCR’s legal standard for addressing retaliation claims is as follows:

A claim for retaliation must establish several elements. First, the facts must indicate that the complaining party engaged in a protected activity, i.e., exercised a right or took some action that is protected under the laws OCR enforces, including Title IX.  Second, the institution must be on notice of the protected activity.  Third, the institution must take an adverse action against the complaining party. And fourth, there must be a causal connection between the protected activity and the adverse action. If any of these four elements cannot be established, then a claim of retaliation cannot be substantiated. If, on the other hand, all four elements are established, then OCR next analyzes whether there is a legitimate non- discriminatory reason for the retaliatory action in question.  If no legitimate non-discriminatory reason is put forward, or if the reason is found to be a mere pretext for retaliation, then OCR may find that there was retaliation.