1.2 – Prohibited Misconduct Defined
Conduct that is prohibited and encompassed by this policy includes sexual harassment, sex and gender discrimination, sexual assault, rape, stalking, and relationship abuse (including domestic and dating violence). These acts are also a violation of federal and state law (including Title IX, Title VII, the Campus SaVE Act, and the Violence Against Women Act). These acts are prohibited in any sex or gender configuration (i.e., between the same or differing genders), regardless of sex and gender identity, or in any power configuration. Individuals found responsible for violating these policies will face sanctions that are commensurate with the severity of the policy violation, ranging from warning to expulsion or termination of employment.
Many of the behaviors outlined in this policy may be felony or misdemeanor crimes in addition to violations of this policy. Victims are encouraged to explore legal options for prosecution if they desire. Austin College will conduct its own investigation and resolution process for a Formal Complaint, regardless of whether the alleged misconduct is also being pursued through the criminal justice system. Acts of harassment or sex- and gender-based discrimination may vary in severity and include the following categories:
1.21 – Sexual Assault
Sexual assault means an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s Uniform Crime Reporting program:
(A) “Rape” means the 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.
(B) “Fondling” means the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.
(C) “Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
(D) “Statutory Rape” means sexual intercourse with a person who is under the statutory age of consent.
(Citation: 20 U.S.C. 1092(f)(6)(A)(v), Defined at 34 CFR 668.46)
Sexual assault can be committed by persons of the same sex as well as those of different sex.
Students, employees, and third parties should understand that forced or unwanted sexual intercourse or sexual contact (as defined above), whether it involves a stranger or an acquaintance, is sexual assault. The severity of the violation is the same whether the responding participant is a stranger or known to the reporting participant.
1.22(a) – Title IX Sexual Harassment
Sexual Harassment means unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Austin College’s educational Program or Activity.
1.22(b) – Non-Title IX Sexual Harassment
Sexual Harassment means unwelcome, sex based verbal or physical conduct that:
(a) in the employment context, unreasonably interferes with a person’s work performance or creates an intimidating, hostile, or offensive work environment; or
(b) in the education context, is sufficiently severe, persistent, or pervasive that the conduct interferes with a student’s ability to participate in or benefit from educational programs or activities of Austin College.
Examples of this type of harassment may be: unwanted sexual advances that may take the form of inappropriate sexual or suggestive comments, sounds or jokes; unsolicited touching or fondling.
1.23 – Quid Pro Quo
Quid Pro Quo Harassment means an employee of the college conditioning the provision of an aid, benefit, or service of the college on an individual’s participation in unwelcome sexual conduct.
1.24 – Dating Violence
Dating Violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the consideration of: 1) length of the relationship, 2) the type of relationship, and 3) the frequency of interaction between the persons involved in the relationship.
1.25 – 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 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 of family violence laws of the jurisdiction receiving grant monies, or by any other person against the an adult or youth victim who is protected form that person’s act under the domestic or family violence laws of Texas. (Citation: 34 U.S.C. 12291(a)(8))
1.26 – Stalking
“Stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others; or suffer substantial emotional distress. (Citation: 42 U.S.C. 12291(a)(30))
For guidance purposes regarding this definition:
(A) 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.
(B) Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.
(C) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.(Citation: 34 CFR 668.46)
Stalking can occur between strangers, individuals who know each other, or individuals who are or were previously in a relationship. Stalking behaviors may include unwanted following or watching, unwelcome gifts, or communications in person, in writing, or through the use of technology. It also includes accessing personal information to monitor a person’s activity.
1.27 – Retaliation
1) No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation.
2) Austin College will keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination.
3) The exercise of rights protected under the First Amendment does not constitute retaliation prohibited.
4) Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance under this part does not constitute retaliation prohibited, provided however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.
1.28 – Sexual Exploitation
Sexual exploitation occurs when a person takes non-consensual, unjust, or abusive sexual advantage of another for their own advantage or benefit, or for the benefit or advantage of anyone other than the one being exploited. This behavior may not fall within the definition of non-consensual sexual contact/activity, or sexual harassment, but it is still a violation of the Non-Title IX Sexual Misconduct policy. There are many degrees and types of sexual exploitation. Examples of sexual exploitation are described below.
- Photographing or taping someone (via audio or video) involved in sexual activity, or in a state of undress without their consent or knowledge constitutes prohibited sexual exploitation (even if a person consented to the sexual activity or the state of undress, photographing or taping someone without their knowledge goes beyond the boundaries of that consent).
- Disseminating 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 prohibited by this policy.
- Voyeurism, which is the act of observing a person involved in sexual contact/activity or in a state of undress without their knowledge or consent, is prohibited by this policy.
- Inducing intoxication/incapacitation for the purpose of sexual activity (i.e., offering drugs, alcohol, or other substances to a person with or without their knowledge with the intent to impair their ability to withhold consent or their ability to knowingly consent to sexual activity) is a violation of this policy. This type of conduct constitutes sexual exploitation regardless of whether any sexual activity takes place.
1.29(a) Intentional Presentation of False Information
Participants in this resolution process must present, in good faith, truthful and accurate information to those involved in ensuring a fair process. Knowingly making false statements or presenting inaccurate information is unacceptable and may result in a separate disciplinary action regarding that conduct. Please note that filing a report or providing information which a participant or witness genuinely believes is accurate, but which is ultimately dismissed due to insufficient evidence or found to be untrue, does not constitute the intentional presentation of false information.
1.29(b) Violation of Supportive Measures
An employee or student’s failure to comply with the terms of Supportive Measures directives is a violation of Austin College policy.