The College intends to define terms, for purposes of implementing this Policy, consistent with current law and regulation. To the extent such laws or regulations change, the College will apply this Policy and conduct all proceedings hereunder consistent with governing law and regulation.
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Definitions of Prohibited Conduct
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Sexual Assault
Sexual assault is defined as engaging in sexual activity without consent, including having sexual contact or sexual intercourse with another individual without consent.
- Sexual contact without consent: Any intentional and knowing contact or fondling with the intimate parts of another, causing another to touch one’s intimate parts, or disrobing or exposure of another (whether involving physical contact or not) without permission, or with a person incapable of providing consent. Intimate parts may include the breasts, genitals, buttocks, groin, mouth, or any other part of the body that is touched in a sexual manner. This also entails contact done directly or indirectly through clothing, bodily fluids, or with an object. Sexual contact also includes attempted sexual intercourse.
- Sexual intercourse without consent: Any penetration of the sex organs or anus of another person when consent is not present; any penetration of the mouth of another person with a sex organ when consent is not present; or performing oral sex on another person when consent is not present. This includes penetration or intrusion, however slight, of the sex organs or anus of another person by an object or any part of the body.
- Statutory rape: Under the law in New York, sexual activity is deemed to be nonconsensual if between a legal adult (age 18 or older) and a person under 17 years of age, except that persons 15 years of age or older may be deemed capable of consenting to sexual activity with another who is four years older or less. For a more detailed discussion of these laws and their impact on the ability to consent, see Sections 130.25 and 130.30 of the New York State Penal Code.
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Sexual Exploitation
Taking nonconsensual or abusive sexual advantage of another person for a person’s own advantage or benefit, or violating the sexual privacy of another when consent is not present. This includes, but is not limited to, the following actions (including when they are done via electronic means, methods, or devices):
- Sexual voyeurism, such as permitting others to witness or observe the sexual or intimate activity of another person, in a state of undress, or in a place and time where such person had reasonable expectation of privacy (such as a changing room, toilet, or shower) without that person’s consent.
- Recording any person engaged in sexual or intimate activity in a private space without that person’s consent.
- Disseminating, streaming, or posting sexual information, images, or recordings about another person without that person’s consent as of the time of the dissemination, streaming, or posting.
- Recruiting, harboring, transporting, providing, or obtaining another person for the purpose of sexual exploitation.
- Exposing or inducing others to expose themselves when consent is not present.
- Knowingly exposing or transmitting a sexually transmitted disease or infection (STD or STI) or human immunodeficiency virus (HIV) to another person.
- Inducing incapacitation in another person without their consent or knowledge with the intent to engage in sexual conduct, regardless of whether prohibited sexual conduct actually occurs.
- Sexually based stalking and/or bullying can constitute sexual exploitation, in addition to constituting independently prohibited conduct under this Policy.
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Sexual Harassment
Any unwelcome sexual advance, request for sexual favors, or other unwanted or unwelcome conduct of a sexual nature, whether verbal, nonverbal, graphic, physical, or otherwise, when one or more of the following conditions are present:
- Quid Pro Quo:
- Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any College program and/or activity, or is used as the basis for College decisions affecting the individual.
- Submission to or rejection of such conduct by an individual is used as the basis for decisions affecting the individual, such as grading; acceptance into a course, program or team; advancement, promotion, hiring, or retention.
- Hostile Environment: A hostile environment exists when the conduct is sufficiently severe, pervasive, and objectively offensive that it unreasonably interferes with, limits, or deprives an individual from participating in or benefiting from the College’s education or employment programs and/or activities. The existence of a hostile environment is to be judged both objectively (meaning a reasonable person would find the environment hostile) and subjectively (meaning the impacted individual felt the environment was hostile).
Examples of conduct that may constitute sexual harassment include but are not limited to:
- Pressure for a dating, romantic, or intimate relationship;
- Unwelcome sexual advances;
- Unwelcome touching, kissing, hugging, or massaging;
- Pressure for or forced sexual activity;
- Unnecessary references to parts of the body;
- Sexual comments or references;
- Sexual innuendoes, gestures, or humor; or
- Sexual graffiti, pictures, or posters.
- Quid Pro Quo:
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Relationship Violence
- Dating violence: Any abusive or violent behaviors (including but not limited to emotional, physical, sexual, and financial abuse or threat of abuse) between two people committed by a person who is or has been in a social relationship of a romantic or intimate nature with the person who has been subjected to such abusive or violent behaviors, where the existence of such a romantic or intimate relationship shall be determined based on a consideration of the following factors:
- The length of the relationship;
- The type of relationship; and
- The frequency of interaction between the persons involved in the relationship.
This violation includes behavior that seeks to establish power and control over another person by causing fear of physical violence or sexual abuse or assault. Dating violence can be a single act or a pattern of behavior, depending on the frequency, nature, and severity of the conduct.
- Domestic violence: Any abusive or violent behaviors (including but not limited to emotional, physical, sexual, and financial abuse or threat of abuse) between two people that is committed by:
- The current or former spouse of the person who is subjected to the acts of abuse or violence;
- A person with whom the person subjected to such abusive or violent behaviors shares a child in common;
- A person who is cohabitating with or has cohabitated with the person subjected to abusive or violent behaviors; or
- Any other person against an adult or youth who is protected from that person’s acts under the domestic or family violence laws of New York State.
This behavior seeks to establish power and control over another person by causing fear of physical or sexual abuse or violence. Domestic violence can be a single act or a pattern of behavior, depending on the frequency, nature, and severity of the conduct.
- Dating violence: Any abusive or violent behaviors (including but not limited to emotional, physical, sexual, and financial abuse or threat of abuse) between two people committed by a person who is or has been in a social relationship of a romantic or intimate nature with the person who has been subjected to such abusive or violent behaviors, where the existence of such a romantic or intimate relationship shall be determined based on a consideration of the following factors:
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Stalking
Knowingly engaging in an unwanted course of conduct directed at a specific person that one knows or should know would cause a reasonable person to fear for their safety or the safety of others, or suffer substantial emotional distress. “Emotional distress” means significant mental suffering, anxiety, or alarm.
Conduct that can amount to stalking may include actions directed at another person, whether done directly, indirectly, through others, via devices, or via any other methods or means (specifically including electronic means, e.g., cyberstalking), including but not limited to:
- Following a person.
- Being or remaining in close proximity to a person.
- Entering or remaining on or near a person’s property, residence, or place of employment without permission and without a legitimate purpose.
- Monitoring, observing, or conducting surveillance of a person.
- Threatening (directly or indirectly) a person.
- Communicating to or about a person.
- Giving gifts or objects to, or leaving items for, a person.
- Interfering with or damaging a person’s property (including pets).
- Engaging in other unwelcome contact when that behavior causes fear of harm or substantial emotional distress and that fear or distress is a reasonable response to the behavior.
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Definitions of Affirmative Consent
Affirmative consent is a knowing, active, voluntary, present, and ongoing mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression. Any party claiming that consent was present during a sexual encounter has the burden of proving consent under this Policy.
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Valid Aspects of Consent
Consent must be all of the following:
- Knowing: All individuals understand, are aware of, and agree as to the “who” (same partners), “what” (same acts), “where” (same location), “when” (same time), and “how” (the same way and under the same conditions) of the sexual activity.
- Active: Consent must take the form of “clearly understandable words or actions” that reveal one’s expectations and agreement to engage in specific sexual activity. This means that silence, passivity, submission, or the lack of verbal or physical resistance (including the lack of a verbalized “no”) should not—in and of themselves—be understood as consent. Consent cannot be inferred by an individual’s manner of dress, the giving or acceptance of gifts, the extension or acceptance of an invitation to go to a private room or location, or going on a date. It is the responsibility of the person initiating sexual activity to ensure that affirmative consent to that activity, and all sexual acts, has been given.
- Voluntary: Consent must be freely given and cannot be the result of the respondent’s intimidation (extortion, menacing behavior, bullying), coercion (severe or persistent pressure causing fear of significant consequences from respondent if one does not engage in sexual activity), force (violence, physical restraint, or the presence of a weapon), threats (indications of intent to harm, whether direct or indirect), or fraud (misrepresentation or material omission about oneself or the present situation in order to gain permission for sexual or intimate activity).
- Present and Ongoing: Consent must exist both at the time of initiation of sexual activity and at all times thereafter, throughout the entirety of sexual activity. Consent to previous sexual activity, either at prior times or earlier on a specific date, does not imply consent to later sexual acts; similarly, consent to one type of sexual activity does not imply consent to other sexual acts. Consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another person.
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Capacity to Consent
Consent is not present when an individual does not have the capacity to give consent, voluntarily or involuntarily, due to:
- Age (generally, the age of consent to engage in sexual activity with a legal adult [18 years of age or older] is 17 in New York);
- Physical condition; or
- Disability that impairs the individual’s ability to give consent.
Reasons why one could lack capacity to give consent due to a physical condition or disability include, but are not limited to, consumption of drugs or alcohol (voluntarily or involuntarily) to the point of incapacitation (that being where the person, through drug or alcohol use, is incapable of appreciating that sexual activity is occurring or about to occur, or incapable of knowing, active, voluntary, present, and ongoing consent); or being in a state of unconsciousness, sleep, or other state in which the person is unaware that sexual activity is occurring or about to occur, or otherwise in a condition rendering the person incapable of knowing, active, voluntary, present, and ongoing consent. For a more detailed definition of incapacitation, please refer to Related Definitions directly below.
For the legal definition of consent under New York State law, see the Appendix to this Policy.
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Related Definitions
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Force or Coercion
- Force: The use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation, and coercion to overcome resistance.
- Coercion: An unreasonable amount of pressure, or an intimidating behavior. The use of emotional manipulation to persuade someone to do something they do not want to do or are reluctant to do, such as engaging in sexual activity or performing certain sexual acts, may constitute coercion. Coercing a person into having sex or performing sexual acts may vitiate consent, even when that consent otherwise may have been expressed by the subject in words or actions. Coercion may occur even where the parties are otherwise in an ongoing relationship, such as a romantic or dating relationship.
Coercion is more than an effort to persuade, entice, or attract another person to engage in sexual activity. When a person makes clear that they do not want to participate in a particular form of sexual activity, that they want to stop, or that they do not want to go beyond a certain type of sexual activity, continued pressure can be coercive if it would reasonably place an individual in fear of immediate or future harm.
In evaluating whether coercion was used, the frequency, duration, and intensity of the other person’s verbal or physical conduct or threats are all relevant, as is the degree of confinement or isolation to which the person was subjected. Coercion may be evidenced by an interaction that can reasonably be interpreted as indicating that a party will be harmed or restrained if they do not engage in sexual conduct.
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Incapacitation
When alcohol is involved, incapacitation is a state beyond drunkenness or being “buzzed” or intoxicated. When drug use is involved, incapacitation is a state beyond being under the influence or impaired by use of the drug. In general terms, the difference between intoxication or impairment, on the one hand, and incapacitation on the other, is that a person incapacitated by drug or alcohol use is incapable of appreciating that sexual activity is occurring or about to occur, or incapable of providing knowing, active, voluntary, present, and ongoing consent. Alcohol and other drugs impact each individual differently; some indicators of a lack of capacity to give consent due to consumption of drugs or alcohol may include:
- Lack of full control over physical movements (for example, significant difficulty walking or standing without assistance, or stumbling about);
- Lack of awareness of circumstances or surroundings (for example, lack of engagement with others in the environment, lack of an indication of awareness of where one is, how one got there, who one is with, or how or why one became engaged in ongoing interactions);
- Lack of consciousness, or periodic episodes suggesting the person is “in and out” of consciousness; and/or
- Inability to effectively communicate (for example, inability to communicate coherently, inability to follow or meaningfully participate in a discussion, significant slurring of speech, inability to complete thoughts or sentences, difficulty finding words).
A person who is incapacitated but who may appear to be giving consent 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 respondent’s position knew or should have known that the other party was incapacitated, and as a result could not consent to the sexual activity. It is especially important, therefore, that anyone engaging in sexual activity is aware of both any other person’s level of intoxication and capacity to give consent. When a question is reasonably raised as to whether a potential partner is incapacitated by alcohol or drug use, one should assume that consent is not able to be given. Being intoxicated or impaired by drugs or alcohol also does not excuse one from the responsibility to obtain consent, or from ensuring that a potential partner is capable of consenting. Being intoxicated or impaired by drugs or alcohol is never an excuse to commit sexual violence, or to engage in nonconsensual sexual activity.
Because the impact of alcohol and other drugs varies from person to person, the amount of alcohol and/or drugs a person consumes will not ordinarily be sufficient, without other evidence, to prove that they were incapacitated under this provision.
Another effect of alcohol consumption can be memory impairment, or forgetting entire or partial events (sometimes referred to as “blackout” or “brown-out”). A person may experience this symptom while appearing to be functioning “normally,” including communicating through actions or words that seem to express an interest in engaging in sexual activity. Whether sexual activity with a person who is “blacked-out” constitutes a violation of this policy depends on the presence or absence of the observable factors that would indicate to a reasonable, sober person that a person is also incapacitated, as described above. Total or partial loss of memory, without more, is insufficient to demonstrate incapacitation.
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Preponderance of the Evidence
Preponderance of the evidence is the evidentiary standard used at Sarah Lawrence College to determine whether or not a Respondent, including any student, staff member, or faculty member, is responsible for violating the Policy on Sexual Violence. This standard requires that the preponderance of the evidence—the totality of the credible evidence, considered impartially—must establish that it is more likely than not that the Policy was violated.
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Retaliation
The College does not tolerate retaliation or discrimination against those who bring forward a report or make a Formal Complaint against any person and/or their family and friends, as well as any person who cooperates in the investigation of a report or a Formal Complaint, or who participates in the conduct process (either as a party or as a witness) for an alleged violation of the Policy on Sexual Violence.
Anyone who believes they have been retaliated against as a result of their involvement with an investigation and/or conduct process for an alleged violation of the Policy should report the alleged retaliation to the director of human resources (for faculty and staff) or the dean of studies and student life (for students) immediately. The appropriate conduct action will be taken, which may be independent from any investigation into a report of sexual misconduct and/or the Formal Complaint Process, and sanctions for retaliation will range up to and including suspension or expulsion from the College in the case of a student who has retaliated, and up to and including termination of employment in the case of an employee who has retaliated. The Title IX coordinator may be consulted about allegations of retaliation, and retaliation allegations may be resolved within an investigation into the underlying report of sexual misconduct and/or the Formal Complaint Process, at the discretion of the Title IX coordinator in consultation with the director of human resources (for faculty and staff) or the dean of studies and student life (for students). For further information on the College’s general policy prohibiting retaliation, please refer to
p. 62
of the Student Handbook.
Definitions of Roles Under This Policy
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Adviser
Students may select a single adviser of their choice. The adviser may be a parent, friend, faculty/ staff member, or a lawyer. The adviser must maintain confidentiality throughout the duration of their time serving as an adviser, and even after conclusion of the process. This includes a prohibition of public disclosure of information learned during the proceedings under this Policy. An individual is not obligated to serve as an adviser and may decline to do so if, for example, they perceive a conflict of interest in being one party’s adviser, conclude they may not effectively assist the party, or perceive the presence of any other compelling reason.
At the student’s request, an adviser may be present at any meeting conducted as part of the process under this Policy. The role of the adviser is limited to the following:
- Within any meeting or communication regarding the Formal Complaint (except questioning in the hearing, addressed separately below), the adviser may not speak on behalf of the student. The adviser may counsel the student and may seek reasonable breaks during meetings or discussions to allow such counseling to occur.
- During the investigation, the adviser also may not speak on behalf of the student. The sole role of the adviser during the investigation is to provide private support and advice to the student outside of the interview. The adviser also may seek reasonable breaks during meetings or discussions to allow such counseling to occur.
- During the hearing, the role of the adviser is to relay their party’s desired questions (subject to the Adjudicator determining the question is appropriate and relevant) to be asked of the other party or witnesses. Advisers are not permitted to raise objections to questions posed by the other party’s adviser or the Adjudicator, argue in support of their advisee’s position, or otherwise “represent” the advisee in the hearing. The parties and their adviser may consult in private during the hearing, but any break in the hearing for purposes of such consultation may not occur while a question is pending.
If a student is unable or unwilling to procure an adviser of their choice, the College will appoint an adviser to the student, free of charge. While the student may determine the participation of the adviser during the investigation, the adviser must be present during the hearing in order to ask questions of the other party and witnesses, as stated above. Parties are prohibited from directly questioning any other party, or any witness, at any hearings conducted as part of the Formal Complaint Process.
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Complainant
The Complainant is an individual who has signed or endorsed a Formal Complaint alleging a violation of this Policy, and/or other applicable College policies, and has requested an investigation and hearing as part of a Formal Complaint Process.
In the event the person who has experienced the alleged misconduct chooses not to file a Formal Complaint and the College files a Formal Complaint, the College will be deemed the Complainant and the person who experienced the alleged misconduct will be deemed a witness.
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Hearing Coordinator
The Title IX coordinator or the coordinator’s designee serves as the Hearing Coordinator. The Hearing Coordinator is responsible for overseeing the hearing procedure for all alleged violations of this Policy, including administrative and logistical assistance to the Hearing Adjudicator, disseminating the Adjudicator’s decisions, and maintaining the case records. The Hearing Coordinator ensures that the Complainant’s and the Respondent’s rights under these procedures are honored and that hearing procedures are followed.
The Hearing Coordinator or the coordinator’s designee may be present for the hearing, but will not take part in the deliberations and outcome of the Hearing Adjudicator. However, the Hearing Adjudicator may call upon the Hearing Coordinator during their deliberations to answer questions about the conduct process, precedent, or other pertinent matters.
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Hearing Adjudicator
The Hearing Adjudicator hears and assesses Formal Complaints of alleged violations of the Policy, makes determinations of responsibility in such cases, and, if applicable, determines sanctions. The Hearing Adjudicator is a single individual specifically trained to adjudicate hearings within the Formal Complaint Process. In addition to training on the adjudication process, the training includes information on how to evaluate evidence impartially, engage trauma-informed sensitivity during hearings, and analyze facts and credibility.
The potential Adjudicator may be excused in the event of a conflict of interest, lack of availability, or other valid reason, as determined by the Title IX coordinator, and in the Title IX coordinator’s sole discretion.
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Investigator
The College will designate Investigator(s), who may investigate reports and Formal Complaints made under the Policy. The Investigator(s) are responsible for overseeing and completing the investigation procedure and shall draft the Final Investigatory Report, which includes the Formal Complaint, relevant statements, summaries of interviews of the Complainant, the Respondent, and any relevant witnesses, relevant physical and documentary evidence, and, if appropriate, a credibility analysis.
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Reporting Individual/Complainant
The Reporting Individual is a person who reports an alleged violation of the Policy, but has not filed a Formal Complaint. The Reporting Individual may be the person who has been subjected to an alleged violation of the Policy or may be a third party (such as a witness or Mandated Reporter).
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Respondent
The Respondent is a person who has been alleged to have violated, and/or has been charged with an alleged violation of, the Policy in a Formal Complaint and/or other related conduct violations under other applicable College policies.
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Witnesses
Witnesses are identified as any person(s) with direct and/or relevant knowledge of the alleged Policy violation being reported, other than a Complainant or a Respondent. Witnesses may be individuals affiliated with the College community and individuals outside of the community