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Policy Against Sex Discrimination, including Sexual Harassment and Sexual Misconduct, and Other Interpersonal Misconduct

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INTRODUCTION

The purpose of this Policy is to provide a work and educational environment free from all forms of sex discrimination. Interpersonal relationships and interactions, especially those of an intimate nature, should be grounded upon mutual respect, open communication and clear consent. In order to foster respect for all members of our community, Augustana will not tolerate acts of sex discrimination.

POLICY AGAINST SEX DISCRIMINATION

Augustana College prohibits discrimination on the basis of gender in employment as well as in its education programs and activities, consistent with Title IX of the Education Amendments of 1972 ("Title IX"), the Illinois Preventing Sexual Violence in Higher Education Act, and other applicable state and federal laws. It is the policy of the College to provide a work and educational environment free of all forms of sex discrimination, including but not limited to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communications constituting sexual harassment, as defined in this Policy and as otherwise prohibited by state and federal statutes. Acts of sexual misconduct, such as sexual assault and sexual violence, are also a form of sex discrimination and prohibited by Augustana College as well as state and federal laws.

SCOPE OF THIS POLICY

The College’s prohibition against discrimination on the basis of sex applies to all students, faculty, administration and staff, to other members of the College community, and to contractors, consultants, and vendors doing business or providing services to the College. The investigation and grievance procedures may vary, however, depending on the classification of the individual accused of a violation (i.e, student, employee or faculty member).

This Policy applies to on-campus and off-campus conduct, including online or electronic conduct, when the off-campus conduct: (a) occurs during a College sponsored employment or education activity or program; (b) adversely impacts the education or employment of a member of the College community; or (c) otherwise threatens the health and/or safety of a member of the College community.

The College reserves the right to take any action it deems appropriate to address a situation of misconduct under this policy and provide the necessary resources to those individuals impacted, including the broader College community, when necessary, even where one or more of the parties involved are not members of the College community.

DEFINITIONS OF PROHIBITED SEXUAL MISCONDUCT

Augustana College affirms its commitment to promote sexual respect and maintain an environment free of sex discrimination. Sex discrimination includes acts of sexual misconduct defined below. An attempt to commit the acts of sexual misconduct listed below, as well as assisting or encouraging such acts, may also be considered a violation of this Policy. Interpersonal misconduct, including domestic violence, dating violence, and stalking, is also prohibited by this Policy.

A. SEXUAL HARASSMENT

Sexual harassment is unwelcome conduct of a sexual nature. This includes, but is not limited to, unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature, where: (a) submission to or rejection of sexual conduct is used as the basis of an academic or employment decision or is either an explicit or implicit term of employment or admission to any college program or college-related activity, or (b) such conduct creates a hostile environment based on sex if it is sufficiently serious (i.e., severe, pervasive, or persistent) and objectively offensive so as to deny or limit a person's ability to participate in or benefit from the College's programs, services, opportunities, or activities; or (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance creating what a reasonable person in similar circumstances would perceive as an intimidating, hostile, or offensive employment, education, or living environment.

A person may be sexually harassed by a person of any gender.

Examples of sexual harassment may include, but are not limited to:

• Repeated comments about a person's physical appearance or gender

• Sexually suggestive gestures, remarks or insults

• Sexual assault

• Unwelcome sexual advances such as touching, patting, caressing, kissing

• Sexual propositions and sexual advances accompanied by threat of punishment or promise of reward including the withholding or giving of grades and promotions

In determining whether alleged conduct constitutes sexual harassment, the College will consider the totality of the facts and circumstances of the incident, including the nature of the alleged conduct and the context in which it occurred. A person's subjective belief alone that behavior is offensive does not necessarily mean the conduct rises to the level of a Policy violation. The behavior must also objectively meet the definition of prohibited sexual harassment. Conversations or actions that are sexual in nature but part of a legitimate academic exchange of ideas or artistic performance may not constitute violations of this Policy.

B. SEXUAL ASSAULT

Sexual assault is a particular type of sexual harassment that involves actual or attempted sexual contact with another person without that person's consent. Sexual assault may involve individuals who are known to one another or have an intimate and/or sexual relationship, or may involve individuals not known to one another.

Sexual assault includes, but is not limited to:

• Involvement in any sexual contact when the victim is unable to consent. This includes intentional and unwelcome touching of, or coercing, forcing, or attempting to coerce or force another to touch a person's intimate parts (defined as genital area, groin, inner thigh, buttocks, or breast).

• Sexual 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 victim. This includes acts commonly referred to as “rape.” Illinois law defines sexual penetration as "any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth, or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration. 720 ILCS 5/Criminal Code of 1961

Important Information on Consent

Consent to engage in sexual activity must be informed, freely given, and mutual. Consent does not exist if a person is mentally or physically incapacitated so that such person cannot understand the nature or extent of the sexual situation or sexual activity. This includes incapacitation due to (1) the use or influence of alcohol or drugs, (2) being asleep or unconscious, or (3) a mental disability. Incapacitation due to drug or alcohol use is a state beyond drunkenness or intoxication. Alcohol and other drugs impact each individual differently, and determining whether an individual is incapacitated requires an individualized determination. Facts that will be considered in determining a lack of capacity to give consent due to consumption of drugs or alcohol may include, but are not limited to:

•  Control over physical movements (for example, inability to or difficulty with walking or standing without assistance);
•  Awareness of circumstances or surroundings (for example, lack of awareness of where one is, how one got there, who one is with, or how or why one became engaged in a sexual interaction);
•  Ability to effectively communicate (for example, slurring speech, difficulty finding words).

A person may appear to be giving consent but may not have the capacity to do so. When determining whether a person has the capacity to provide consent, the College will consider whether a sober, reasonable person in the same position (as the respondent) knew or should have known whether the other party (complainant) could or could not consent to the sexual activity. Use of drugs or alcohol by the respondent is not a defense against allegations of sexual misconduct and does not diminish the personal accountability of the respondent.

Consent must be ongoing, throughout each instance of sexual activity, and for each form of sexual contact.

Consent cannot be assumed by: silence; lack of verbal or physical resistance or submission resulting from the use of force; a person’s manner of dress; or the existence of a prior or current relationship. When determining whether a person has provided consent for sexual activity, the College will consider whether a sober, reasonable person in the same position (as the respondent) knew or should have known whether the other party (complainant) consented to the sexual activity.

If coercion, intimidation, threats, or physical force are used, there is no consent. Coercion refers to behavior that would compel an individual to do something against their will. Coercion may involve intimidation, manipulation, or threats of severely damaging consequences. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Coercion is more than an effort to persuade or attract another person to engage in sexual activity. When determining whether a person has been subjected to coercion, the College will consider whether a sober, reasonable person in the same position would have felt coerced to participate in the sexual activity. The College will evaluate the following in determining whether coercion was used: (a) the frequency of the application of the behavior, (b) the intensity of the behavior, (c) the duration of the behavior, and (d) severity of the threats or consequences.Consent cannot be given by those who are under the legal age of consent (17 years in Illinois).

There is no consent when there is force, expressed or implied, or use of duress or deception upon the victim.

A person’s consent to past sexual activity does not constitute consent to future sexual activity. 

A person’s consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another person. 

Consent can be withdrawn at any time.

Whether an individual has taken advantage of a position of influence over an alleged victim may be a factor in determining consent.

Illinois law defines consent in criminal sexual assault matters as "a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent."  720 ILCS 5/11-1.70(a).   The law further provides that a "person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct." 720 ILCS 5/11-1.70(c). This definition shall also be considered in determining whether sexual assault occurred, including whether consent was present.

C. INDUCING INCAPACITATION FOR SEXUAL PURPOSES

Inducing incapacitation for sexual purposes means using drugs, alcohol, or other means with the intent to affect or having an actual effect on the ability of an individual to consent or refuse to consent (as "consent" is defined in this Policy) to sexual contact. This also includes causing or inducing a person, when consent is not present, to touch, fondle, or contact oneself or someone else in a sexual nature.

D. SEXUAL EXPLOITATION

Sexual exploitation occurs when a person takes non-consensual or abusive sexual advantage of another for anyone's advantage or benefit other than the person being exploited, and that behavior does not otherwise constitute one of the preceding sexual misconduct offenses. Examples of behavior that could rise to the level of sexual exploitation include:

• Prostituting another person

• Non-consensual visual (e.g., video, photograph) or audio-recording of sexual activity

• Non-consensual distribution of photos, other images, or information of an individual's sexual activity, intimate body parts, or nakedness, with the intent to or having the effect of embarrassing an individual who is the subject of such images or information

• Exceeding the boundaries of consent

• Engaging in non-consensual voyeurism

• Knowingly transmitting an STI, such as HIV, to another without disclosing your STI status

• Exposing one's genitals in non-consensual circumstances, or inducing another to expose his or her genitals

• Possessing, distributing, viewing or forcing others to view illegal pornography

OTHER PROHIBITED INTERPERSONAL MISCONDUCT

Other interpersonal misconduct prohibited by this Policy includes stalking, domestic violence, and dating violence.

A. STALKING

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 suffer substantial emotional distress.

1. “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;

2. “Reasonable person” means a reasonable person in the victim’s situation; and

3. “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

B. DATING VIOLENCE

Dating violence is defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship, the type of relationship, the frequency of interaction between the persons involved in the relationship. It can include, but is not limited to:

• Sexual abuse or the threat of sexual abuse

• Battering that causes bodily injury

• Purposely or knowingly causing reasonable apprehension of bodily injury

• Emotional abuse creating apprehension of bodily injury or property damage

Dating violence does not include acts covered under the definition of domestic violence, below.

C. DOMESTIC VIOLENCE

Domestic violence includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner 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 or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction, or 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.

Individuals who can be encompassed in these definitions include, but are not limited to: Persons who have or had a dating or engagement relationship; persons who have or have had a social relationship of a romantic or intimate nature, current or former spouses, domestic partners, parents, children, stepchildren and other persons related by blood or by current or prior marriage; persons who have or allegedly have a child in common; persons who share or allegedly share a relationship through a child; and personal assistances and personal caregivers for the elderly or disabled.

Illinois law defines domestic or dating violence as physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation. 750 ILCS 60/101. Under Illinois law, harassment of a person that causes emotional distress can constitute domestic or dating violence. The following types of conduct shall be presumed, under Illinois law, to cause emotional distress: (1) creating a disturbance at the individual's place of work or school, (2) repeatedly telephoning an individual's place of employment, home or residence, (3) repeatedly following an individual about in public places, (4) repeatedly keeping an individual under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by the individual or by peering in an individual's windows, (5) improperly concealing a minor child from an individual, repeatedly threatening to improperly remove a minor child of an individual from his or her care, or (6) threatening physical force, confinement, or restraint on one or more occasions.

RETALIATION

Retaliation is strictly prohibited by Augustana College. Retaliation is action taken by an accused individual or any other individual against any person because that person has opposed any practices forbidden under this Policy or because that person has, in good faith, reported or disclosed an alleged violation of this Policy, filed a complaint, or testified, assisted, or participated in any manner in an investigation or proceeding under this Policy. This includes action taken against a bystander who intervened to stop or attempt to stop discrimination, harassment, or sexual misconduct. Retaliation includes intimidating, threatening, coercing, or in any way discriminating against an individual because of the individual's complaint or participation in the investigation process. Action is generally deemed retaliatory if it would deter a reasonable person in the same circumstances from opposing practices prohibited by this Policy or otherwise participating in the investigation process. Actions that are generally not considered to be retaliatory include slights and annoyances, "snubbing" a colleague or friend, or avoiding or not talking to a person. The College does not prohibit individuals from making disclosures about alleged violations of this policy, or their participation in the College's process, and such behavior is also not generally considered to be retaliation.

Acts of retaliation will be investigated and determined by the Chief Title IX Coordinator or his/her designee and will result in disciplinary action independent of any sanction imposed in response to the underlying allegations of discrimination/misconduct, and regardless of whether or not the underlying allegations were determined to be violations of this Policy.