5 - Sexual Misconduct and Harassment

Philosophy and Rationale

Alfred State expressly prohibits the sexually aggressive behavior noted below or acts of discrimination. Students found engaging in these behaviors will be subject to criminal charges and prosecution under local and state laws. There are four types of charges of sexual misconduct: nonconsensual sexual intercourse, nonconsensual sexual contact, sexual exploitation, and sexual harassment. Section 5.2, Bias-Related Harassment, states that any violation of the Code of Conduct motivated by a consideration (real or perceived) of race, sex, color, religion, ancestry, national origin, age, disability, veteran status, or sexual orientation is prohibited.

Sexual misconduct or bias-related violations that result in serious physical or psychological injury shall be considered offenses of sufficient gravity to warrant immediate interim suspension of a student prior to a hearing as outlined in the section titled “Interim Suspension” of the Administration of the Student Code of Conduct. When the College is notified of student misconduct in regard to disorderly/disruptive conduct or acts of violence (assault, sexual misconduct, bias-related crime) off campus, it may also choose to hold the student accountable through the campus disciplinary process. Please see the Rights of Respondents and Complainants (victims) as they pertain to cases of sexual misconduct and bias-related harassment. As with all alleged violations of the Student Code of Conduct, the evidentiary standard used to determine whether sexual misconduct or bias-related-harassment has occurred is known as preponderance of the evidence. In other words, the administrative hearing officer or sexual misconduct panel will render a decision based upon whether it is more likely than not that the prohibited conduct has occurred.

What if the victim’s complaint is against a member of the faculty, staff, or administration?

The victim can report a complaint to the Office of Human Resources [(607) 587-4025] and/or University Police [(607) 587-3999)]. These types of complaints are not heard in the student disciplinary system. In addition, regardless of whether a complaint is against a student or employee, the College’s Title IX coordinator can be contacted regarding any acts of sexual violence or discriminatory activity. The Title IX Coordinator can be reached at TitleIX@alfredstate.edu.

Investigation and Processing of Sexual Misconduct and Bias-Related Complaints: When a student registers a complaint of sexual misconduct or bias-related harassment with the College’s University Police against another student, such a complaint will be investigated concurrently by the police and the Office of Judicial Affairs or designee. If the complainant does not wish for the police to be involved, or if the complainant has indicated to the police that he/she does not wish to press criminal charges against the respondent, the investigation will be conducted by the Office of Judicial Affairs. Following a disciplinary hearing, both complainant and respondent will receive a preliminary decision by the hearing panel. The complainant will then be provided with four (4) days to provide comment (appeal) to the panel regarding the preliminary decision. Afterwards, the panel will reconvene if necessary and issue a final decision within ten (10) business days which then may only be appealed by the respondent, within four (4) days, to the vice president of student affairs. Under normal circumstances, the entire process will take no more than sixty (60) days to complete.

Complainants may request that their complaint be kept confidential and choose not to participate in a disciplinary hearing. While the College will typically allow the complainant to direct whether or not disciplinary charges are filed, such requests must also be weighed against other factors including the seriousness of the alleged incident and whether the accused individual is the subject of other complaints. The College shall inform complainants if confidentiality cannot be ensured.

The following regulations describe violation of sexual misconduct:

5.1 a. Nonconsensual Sexual Intercourse: Engaging in sexual intercourse (anal, oral, or vaginal) with any individual with any object, however slight, by an individual upon and individual without effective consent is prohibited.

Range of Sanctions: Disciplinary Suspension Disciplinary Expulsion

Intercourse is not synonymous with penetration. If it were, nonconsensual French kissing could meet the definition of oral rape. Intercourse is more limited and 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). Effective consent is informed, freely and actively given with mutually understandable words or actions that indicate a willingness to participate in mutually agreed upon sexual activity.

Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a mutually understandable agreement between them to do the same thing in the same way at the same time with each other.

Consent that is obtained through the use of fraud or force, whether that force is physical force, threats, intimidation, or coercion, is ineffective consent.

Information: Forced sexual intercourse is not limited to strangers and can include people you know. Regardless of familiarity, failure to receive effective consent and to engage in sexual intercourse, can lead to a charge of nonconsensual sexual intercourse.

The College prohibits nonconsensual sexual intercourse and nonconsensual sexual contact. Students found engaging in nonconsensual sexual acts will be subject to severe disciplinary action if found to have participated in these behaviors. Whether you know another person well or not at all, failing to get effective consent to engage in sexual acts can result in charges against you.

Violators may also be subject to criminal charges and prosecution under local, state, and federal laws. Violators may also be subject to civil action. In general, most complaints involving non-consensual sexual intercourse also include a charge of nonconsensual contact.

5.1 b. Nonconsensual Sexual Contact: Engaging in a sexual contact (touching or disrobing or exposure) with any object, however slight, and by an individual without effective consent is prohibited.

Range of Sanctions: Disciplinary Probation to Disciplinary Expulsion

Sexual contact is defined as any contact with the breasts, buttocks, groin, mouth, 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 or disrobing or exposure of genitalia. Effective consent is informed, freely and actively given, with mutually understandable words or actions that indicate a willingness to participate in mutually agreed upon sexual activity.

Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a mutually understandable agreement between them to do the same thing in the same way at the same time with each other.

Consent that is obtained through the use of fraud or force, whether perceived or overt, and whether that force be physical force, threats, intimidation, or coercion, is ineffective consent.

Information: Violators may also be subject to criminal charges and prosecution under local and state laws and civil action under federal law. In general, most complaints involving nonconsensual sexual intercourse also include a charge of nonconsensual sexual contact and in many instances, a charge of sexual harassment.

5.1 c. Sexual Exploitation: Engaging in any behavior where a student takes nonconsensual, unjust, or abusive sexual advantage of another for his/her own benefit or the benefit of any other than the person being exploited; and that behavior does not otherwise constitute nonconsensual sexual intercourse, or nonconsensual sexual contact is prohibited.

Range of Sanctions: Disciplinary Probation to Disciplinary Expulsion

Information: Sexual exploitation includes prostituting another student, nonconsensual video, photographic, or audio taping of sexual activity, or nonconsensual distribution after initial consent was given, going beyond the boundaries on consent (such as letting friends surreptitiously watch you have consensual sex), engaging in “peeping tommery,” knowingly transmitting an STD or HIV to another student, and including incapacitation with the intent to rape or sexually assault another student.

Any attempt to commit an act of sexual misconduct is also prohibited under this policy, and is aiding the commission of sexual misconduct as an accomplice. Students involved in these inappropriate behaviors can also be charged with a violation of sexual misconduct and be subject to disciplinary charges.

Minors, mentally disabled persons, or physically incapacitated persons may never give legal consent.

  • Minors are those individuals under 17 years of age who legally cannot give someone over the legal age consent to engage in sexual activity (absent of a legally valid marriage or court order). Individuals who engage in sexual activity with minors can be criminally charged with statutory rape. Students under the age of 17 cannot legally give consent to engage in sexual activity.
  • Mentally disabled persons are individuals who are mentally incapacitated or developmentally delayed. They cannot give consent if they cannot appreciate the fact, nature, or extent of the sexual situation in which they find themselves. The mental disability of the party must be known or reasonably knowable to the non-disabled sexual partner in order to hold them responsible for the violation.
  • Physically incapacitated persons are individuals who are physically incapacitated as a result of the consumption (voluntary or involuntary) of alcohol or other drug, or who are unconscious, unaware, or otherwise physically helpless, are incapable in giving consent. One may not engage in sexual activity with another who one knows or should reasonably have known is physically incapacitated. Physically incapacitated persons may not give consent when they lack the capacity to appreciate the fact that the situation is sexual, and/or cannot rationally and reasonable appreciate the nature and extent of the situation. It is important to note that when one is “physically incapacitated” that is different from what some individuals might describe as “having a few drinks” and then engaging in “regrettable sex.” Regrettable sex is unfortunate but in itself does not constitute being physically incapacitated.

Silence, previous relationships, and/or current relationship with the complainant (or anyone else) may not in themselves be taken to imply consent.

5.1 d. Sexual Harassment: No person or group of individuals shall engage in any form of sexual harassment, which is behavior that sexual in nature and creates an intimidating, hostile, or offensive environment. Such behavior includes, but is not limited

to, obscene phone calls, obscene computer messages, public display of offensive material, and/or courtship violence/intimidation.

Range of Sanctions: Disciplinary Probation to Disciplinary Expulsion

Information: Unless accompanied by allegations of nonconsensual sexual intercourse, nonconsensual sexual contact or sexual exploitation, a charge of sexual harassment is heard as an Administrative Hearing instead of by the College’s Sexual Misconduct Committee.

5.2 Bias-Related Harassment: Any violation of the Code of Conduct motivated by a consideration (real or perceived) of race, sex, color, religion, ancestry, national origin, age, disability, veteran status, or sexual orientation is prohibited.

Range of Sanctions: Disciplinary Probation to Disciplinary Expulsion

A disciplinary charge of bias-related behavior that results in a finding of responsibility may subject the student to the imposition of a sanction more severe than would be imposed in the absence of such motivation. Engaging in a course of conduct as described above may be a single incident or occur over a period of time. Allegations of bias-related harassment are heard by the College’s Student Conduct Committee.

Most often, as in the case of bias-related or sexual harassment, violations of this regulation represent behavior that objectifies a personal attribute, singling it out for ridicule, attack, or disparagement. Attributes include, but are not limited to,

  1. Race or ethnic origin, gender, physical or mental disability, age, religion, economic class, and sexual orientation;
  2. Harassment may include physical contact such as toughing or patting, written or oral comments or suggestions, or offensive pictures or “jokes,” hostile or threatening gestures, or other forms of degradation.

Violations of this regulation are serious offenses. Students who engage in harassing or threatening others can be suspended from the College. In addition, an act such as striking, hitting, biting, punching, or kicking another individual limits the College to either suspend or expel a student. A number of students have been found responsible for violating this regulation and have been dismissed from the College and have been subject to criminal prosecution and in some cases, incarceration. In many of these cases, students have unfortunately realized after the fact that small interpersonal conflicts (such as verbal disagreements) had escalated quickly into situations of severe physical contact and have regretted their lack of appropriate decision making in these incidents. It is incumbent upon all members of the College community to learn to develop those interpersonal skills which allow us to resolve conflicts without resorting to violence. The consequences for failing to do so are detrimental to all parties involved. Students who effectively resolve these conflicts may seek another student, a resident assistant, or a residence hall director to help mediate these conflicts toward and adequate resolution.

Every person is entitled to a work and learning environment free from the devastating effects of sexual harassment. Therefore, Alfred State opposes sexual harassment of both employees and students. Such harassment of employees or of students, which implies a requirement of sexual cooperation as a condition of employment or academic advancement, will not be tolerated.