Definitions The following definitions are applicable to policy 100.1008.109 Sexual Misconduct (Title IX): Sexual Misconduct is a form of sex discrimination and includes, among others, acts of sexual violence, sexual assault, sexual harassment, stalking, cyber-stalking, dating violence, domestic violence, intimate partner violence, and hate crimes based on gender or sexuality. Sexual misconduct is a broad term encompassing any sexual behaviors that violate Geisinger Commonwealth School of Medicine s (Geisinger Commonwealth s) Code of Conduct and/or Sexual Misconduct Policy (Title IX). Sex Discrimination includes behaviors and actions that deny or limit a person s ability to benefit from, and/or fully participate in, the educational programs or activities or employment opportunities because of a person s sex. Sexual misconduct is a form of sex discrimination. Examples of sexual discrimination under Title IX include, but are not limited to, sexual harassment, failure to provide equal opportunity in education programs and curricular programs, discrimination based on pregnancy, and employment discrimination. Sexual Harassment is unwanted sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature when: (1) submission to such conduct is made a term or condition of employment or the educational relationship (2) submission to or rejection of such conduct is used as a basis for employment or education decisions affecting the individual; or (3) such conduct has the effect of unreasonably interfering with a student s or employee s work performance, or, creating an intimidating, hostile, or offensive working or educational environment. While sexual harassment encompasses a wide range of conduct, some examples of specifically prohibited conduct include: Promising, directly or indirectly, a student or employee a reward, if the student or employee complies with a sexually oriented request. Threatening, directly or indirectly, retaliation against a student or an employee, if the student or employee refuses to comply with a sexually oriented request. Denying, directly or indirectly, a student or employee an employment or education related opportunity, if the student or employee refuses to comply with a sexually oriented request. Engaging in sexually suggestive conversation or physical contact or touching another student or employee. Displaying pornographic or sexually oriented materials. Engaging in indecent exposure. Making sexual or romantic advances toward a student or employee and persisting despite the student or employee s rejection of the advances. Physical conduct such as assault, touching, or blocking normal movement. Retaliation for making harassment reports or threatening to report harassment. Sexual harassment can involve males or females being harassed by members of either sex. Although sexual harassment sometimes involves a person in a greater position of authority as the harasser, individuals in positions of lesser or equal authority also can be found responsible for engaging in prohibited harassment. Sexual harassment can be physical and/or psychological in nature. An aggregation of a series of incidents can constitute sexual harassment even if one of the incidents considered separately would not rise to the level of harassment. Hostile Environment caused by Sexual Harassment – Refers to a situation where students/employees in an academic/ workplace are subject to a pattern of exposure to unwanted sexual behavior from persons other than an their direct supervisor where supervisors or managers take no steps to discourage or discontinue such behavior. It is distinguished from quid pro quo sexual harassment, where a direct supervisor seeks sexual favors in return for something within the supervisor’s powers, such as threatening to fire someone, or offering them a raise. Quid pro quo has been recognized as actionable for decades, but courts have only recognized hostile environment as an actionable behavior since the late 1980s as they made findings that the impact on learning/ loss of employment or constructive dismissal has been caused by such behavior. Some situations that have been ruled to constitute such a hostile environment are: Posting pictures of pornography in students/employee’s workspace Consistently telling “dirty” jokes or stories where all people in the setting can hear them Tolerating individuals who make sexually suggestive remarks about other individuals within earshot of others Allowing peer employees, clients, suppliers, delivery persons, or even customers (Lockard v. Pizza Hut, 162 F.3d 1062, 1073) to persist in unwanted attention, such as asking for dates Allowing the use of derogatory terms with a sexual connotation (e.g., “pussy,” “girlie-man,” “player”) to be used to describe individuals Allowing frequent physical contact, even when not sexual. Stalking (Pennsylvania) is (1) engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person; or (2) engaging in a course of conduct or repeatedly communicating with another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such other person. Stalking (Clery Act) is (1) engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (a) fear for the person s safety or the safety of others, or (b) suffer substantial emotional distress. For the purposes of this definition: (i) 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, or surveils, threatens, or communicates to or about a person, or interferes with a person s property; and, (ii) reasonable person means a reasonable person under similar circumstances and with similar identities to the victim. Cyber-Stalking is a particular form of stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, and other similar devices or forms of contact are used to pursue, harass, or to make unwelcomed contact with another person in an unsolicited fashion. Some examples of cyber-stalking include, but are not limited to, unwelcomed/unsolicited emails, instant messages, and messages on online bulletin boards. It also includes, but is not limited to, unsolicited communications about a person, their family, friends, co-workers, or sending/posting unwelcomed and unsolicited messages with another username. Sexual Violence may vary in its severity and consists of a range of behaviors or attempted behaviors. Prohibited acts of sexual violence under this Policy include, but are not limited to the following acts: Rape (Pennsylvania) is defined as when a person engages in sexual intercourse with another person By forcible compulsion By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring Where the person has substantially impaired the complainant s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance Who suffers from a mental disability which renders the complainant incapable of consent Rape (Clery Act) is 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. Sexual Assault (Pennsylvania) is when a person engages in sexual intercourse with a complainant without the complainant s consent. Sexual Assault (Clery Act) is an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI s UCR program. Fondling is 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. Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law. Statutory Rape is sexual intercourse with a person who is under the statutory age of consent. Acquaintance Rape is defined as non-consensual sexual intercourse by a friend or acquaintance. Non-Consensual Sexual Contact is any intentional sexual touching, however slight, with any object or body part, by a man or a woman upon a man or a woman, without consent. e. Non-Consensual Sexual Intercourse is any sexual intercourse (anal, oral, or vaginal), however slight, with any object or body part, by a man or woman upon a man or a woman, without consent. Forced Sexual Intercourse is unwilling or non-consensual sexual penetration (anal, vaginal or oral) with any object or body part that is committed either by force, threat, intimidation, or through exploitation of another s mental or physical condition of which the assailant was aware or should have been aware. Sexual Activity is intentional contact with the breasts, buttock, groin, 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; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice; intercourse, however slight, meaning vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object, tongue, or finger; oral copulation (mouth to genital contact or genital to mouth contact), sexual coercion and sexual battery. Sexual Exploitation occurs when a person takes non-consensual or abusive sexual advantage of another for own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses. Examples of sexual exploitation include, but are not limited to: prostituting another student; non-consensual video or audio-taping of sexual activity; going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you have consensual sex); engaging in voyeurism; knowingly transmitting an STD or HIV to another. Sexual Coercion is persuading or coercing a person into engaging in unwanted sexual activity through physical force, threat of physical force or emotional manipulation. Sexual Battery is the unwanted form of intimate physical contact for the purpose of sexual arousal, sexual gratification, or sexual abuse. Sexual battery may take place whether the victim is clothed or not. Dating Violence (Pennsylvania) is behavior where one person uses threats of, or actually uses, physical, sexual, verbal or emotional abuse to control the person s dating partner. Dating Violence (Clery Act) is 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 reporting party s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For purposes of this definition: (a) dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse; and, (b) dating violence does not include acts covered under the definition of domestic violence. Domestic Violence (Pennsylvania) 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 in which the crime of violence occurred, or by any other person against an adult or youth victim who is protected from that person s acts under the domestic or family violence laws. Domestic Violence (Clery Act) is a felony or misdemeanor crime of violence committed: (a) by a current or former spouse or intimate partner of the victim; (b) by a person with whom the victim shares a child in common; (c) by a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner; (d) by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or (e) by 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 in which the crime of violence occurred. Intimate Partner Violence (IPV): Physical, sexual, or psychological harm by a current or former partner or spouse. This type of violence can occur among heterosexual or same-sex couples, whether cohabitating or not, and does not require sexual intimacy. IPV can vary in frequency and severity, can occur on a continuum, and can include acts of physical violence, sexual violence, threats of physical or sexual violence, or psychological or emotional violence. Psychological or emotional violence is a broad term that results in trauma to a victim caused by acts, threats of acts, or coercive tactics, and can include acts of humiliation, intimidation, isolation, stalking and harassment. Hate Crimes based on Gender or Sexuality: A crime, usually violent, motivated by prejudice or intolerance toward an individual based upon that individual s gender or sexual orientation. Complainant: The term complainant can be any member of the Geisinger Commonwealth community who presents information to the Title IX Coordinator or Title IX Associate Coordinator regarding an individual who may have violated the Sexual Misconduct Policy. Respondent: The term respondent refers to the individual(s) who have been alleged to have violated the Sexual Misconduct Policy by a complainant or College official. Witness: Any individual who has seen or heard (personally) or has information about a violation or attempted violation of the Sexual Misconduct Policy. Advisor: The complainant and the respondent shall each be entitled to the assistance of an advisor of their choice. The advisor may be present at the investigation and/or appeal proceedings to provide support counsel and advice regarding the disciplinary process. Advisors are restricted from speaking during the investigation or appeal proceedings. Their role is purely supportive and advisory. Impact Statement: A statement written by a complainant in a sexual misconduct hearing that outlines how s/he has been impacted by the events in question. Impact statements can be used to assist in determining the most appropriate sanctions under the circumstances. Complicity: Assisting, facilitating, or encouraging the commission of a violation of the Sexual Misconduct Policy. Consent is a voluntary agreement to engage in sexual activity. Individuals who choose to engage in sexual activity of any type with each other must first obtain clear consent. Consent is clear permission and can only be given by one of legal age. Consent is demonstrated through mutually understandable words and/or actions that clearly indicate a willingness to engage freely in sexual activity. While consent can be given by words or actions, non-verbal consent is more ambiguous than explicitly stating one s wants and limitations. Silence or an absence of resistance cannot be assumed to indicate consent. Additional Guidance about Consent: Each participant in a sexual encounter is expected to obtain and give consent to each act of sexual activity. Consent to one form of sexual activity does not constitute consent to engage in all forms of sexual activity. Consent consists of an outward demonstration indicating that an individual has freely chosen to engage in sexual activity. Relying on non-verbal communication can lead to misunderstandings. Consent may not be inferred from silence, passivity, lack of resistance, or lack of an active response alone. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent. When consent is requested verbally, absence of any explicit verbal response constitutes lack of consent. Verbal no constitutes lack of consent, even if it sounds insincere or indecisive. Under this policy, no always means no and yes may not always mean yes. If at any time during the sexual activity, any confusion or ambiguity arises as to the willingness of the other individual to proceed; both parties should stop and clarify, verbally, the other s willingness to continue before continuing such activity. Either party may withdraw consent at any time. Withdrawal of consent should be outwardly demonstrated by words or actions that clearly indicate a desire to end sexual activity. Once withdrawal of consent has been expressed, sexual activity must cease. Individuals with a previous or current intimate relationship do not automatically give either initial or continued consent to sexual activity. Even in the context of a relationship, there must be mutually understandable communication that clearly indicates a willingness to engage in sexual activity.Consent is not effective if it results from the use or threat of physical force, intimidation, or coercion, or any other factor that would eliminate an individual s ability to exercise his or her own free will to choose whether or not to have sexual contact. Individuals who consent to sexual activity must be fully able to understand what they are doing. An individual who is physically or mentally incapacitated from alcohol or other drug consumption (voluntarily or involuntarily) or is asleep, unconscious, unaware, or otherwise physically helpless is considered unable to give consent. Under Pennsylvania law, consent can never be given by minors under the age of 13. Statutory provisions also prohibit sexual activity with minors under the age of 16 where there is 4 or more years difference in age between the parties. Intimidation – Intentional behavior that “would cause a person of ordinary sensibilities” fear of injury or harm. It is not necessary to prove that the behavior was so violent as to cause terror or that the victim was actually frightened. Incapacitation Any individual who is incapacitated lacks the ability to make informed, rational judgments and cannot consent to sexual activity. Incapacitation is defined as the inability, temporarily or permanently, to give consent because an individual is mentally or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring. The impact of alcohol and other drugs varies from person to person. Evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects an individual s: ï § Decision-making abilityï § Awareness of consequences ï § Ability to make informed judgments ï § Capacity to appreciate the nature and the quality of the act; orï § Level of consciousness In other words, a person may be considered unable to give valid consent due to incapacitation if the person cannot appreciate the who, what, where, when, why or how of a sexual interaction. Evaluating incapacitation also requires an assessment of whether a respondent should have been aware of the complainant s incapacitation based on objectively and reasonably apparent indications of impairment when viewed from the perspective of a sober, reasonable person in the respondent s position. An individual who engages in sexual activity with someone the individual knows or reasonably should know is incapable of making a rational, reasonable decision about whether to engage in sexual activity is in violation of this policy. Preponderance of the evidence is the level of proof used to decide complaints under this Policy, and which means that more likely than not the behavior took place. Retaliation is any act or attempt to retaliate against or seek retribution from any individual or group of individuals involved in the investigation and/or resolution of a report under this policy. Retaliation can take many forms, including continued abuse or violence, threats and intimidation. Any individual or group of individuals, including a complainant or respondent, can engage in retaliation and will be held accountable under this policy. Actions are considered retaliatory if they are in response to a good faith disclosure of real or perceived College-related misconduct and the actions have a materially adverse effect on the working or academic environment of an employee or student; or if the faculty, employee or student can no longer effectively carry out his or her College responsibilities. Discrimination: Unfavorable or unfair treatment of a person or class of persons, as compared with others not in a protected class because of a factor such as sex, race, color, religion, national origin, ancestry, age, sexual orientation, physical handicap, disability, marital status, veteran status, disabled veteran status or reprisal for filing, supporting or participating in complaints.