Gender- Based Misconduct
This policy is adapted from the model policies and code authored by the National Center for Higher Education Risk Management (www.ncherm.org). Use of this model policy has been licensed to Hendrix College for its Code of Conduct. All other use is strictly reserved to NCHERM under its copyright. Adaptation, use or copying of this code by any institution other than Hendrix College is not permitted without express written authorization by the copyright holder.
Hendrix College believes in a zero tolerance policy for gender-based misconduct. When an allegation of gender-based misconduct is brought to the administration, and a respondent is found to have violated this policy, sanctions will be used to address the misconduct. All members of the community are expected to conduct themselves in a manner that does not infringe upon the rights of others. The Hendrix College Gender-Based Misconduct Policy has been developed to reaffirm these principles and to provide recourse for those individuals whose rights have been violated. This policy is intended to define community expectations and to establish a mechanism for determining when those expectations have been violated.
RELATIONSHIP VIOLENCE OFFENSES INCLUDE, BUT ARE NOT LIMITED TO:
1. Dating Violence
2. Domestic Violence
Relationship Violence Charges
1. Dating Violence
• Violence committed by a person who is or has been in a social relationship of a romantic nature with the victim. Dating violence includes sexual or physical abuse or the threat of such abuse.
- The existence of such a relationship shall be 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.
- Dating violence does not include acts covered under the definition of domestic violence.
2. Domestic Violence
- Felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child, or a person cohabitating with the victim OR
- 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 of the jurisdiction in which the crime of violence occurred.
Engaging in a course of conduct directed at a specific person that would cause a reasonable person to either fear for his or her safety or the safety of others or suffer substantial emotional distress.
o 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.
o Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
o Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.
o An offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s Uniform Crime Reporting (UCR) program. Per the National Incident-Based Reporting System User Manual from the FBI UCR Program, a sex offense is "any sexual act directed against another person, without the consent of the victim, including instances where the victim if incapable of giving consent."
SEXUAL MISCONDUCT OFFENSES INCLUDE, BUT ARE NOT LIMITED TO:
1. Sexual Harassment
2. Non-Consensual Sexual Intercourse (or attempts to commit same)
3. Non-Consensual Sexual Contact (or attempts to commit same)
4. Sexual Exploitation
5. Statutory Rape
Sexual Misconduct Charges
1. SEXUAL HARASSMENT
•Gender-based verbal or physical conduct
•that has the purpose or effect of 41
•with an individual’s work or academic performance
•or creates an intimidating, hostile, or offensive working or educational environment
Three Types of Sexual Harassment
A. Hostile Environment includes any situation in which there is harassing conduct that is sufficiently severe, pervasive/persistent and patently offensive so that it alters the conditions of education or employment, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint. The determination of whether an environment is "hostile" must be based on all of the circumstances.
B. Quid pro quo sexual harassment exists when there are:
1) unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; and
2) submission to or rejection of such conduct results in adverse educational or employment action.
C. Retaliation The College will sanction a faculty, student or staff member who harasses, intimidates or otherwise retaliates against a person because of the person’s participation in an investigation of discrimination or gender-based misconduct. Retaliation includes but is not limited to threats or actual violence against the person or their property, adverse educational or employment consequences, ridicule, taunting, bullying or ostracism.
The foregoing sexual harassment policy incorporates language suggested by Tom Trager, Associate Counsel to the University of Colorado, Boulder, and Brett Sokolow, from NCHERM. The Consensual Relationships policy is adapted from Duke University.
2. NON-CONSENSUAL SEXUAL INTERCOURSE:
Non-Consensual Sexual Intercourse is
•any sexual intercourse (anal, oral, or vaginal),
•however slight, •with any object,
•by a man or woman upon a man or a woman,
•without effective consent.
o In the National Incident-Based Reporting System User Manual from the FBI UCR Program, non-consensual sexual intercourse is referred to as Rape and is defined as 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.
3. NON-CONSENSUAL SEXUAL CONTACT:
Non-Consensual Sexual Contact is
•any intentional sexual touching,
•with any object,
•by a man or a woman upon a man or a woman,
•without effective consent.
o In the National Incident-Based Reporting System User Manual from the FBI UCR Program, non-consensual sexual contact is referred to as Fondling and is defined as the touching of the private parts of another person for the purposes 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.
4. SEXUAL EXPLOITATION:
Occurs when a student takes non-consensual or abusive sexual advantage of another for his/her 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 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 having consensual sex);
•engaging in Peeping Tommery;
•knowingly transmitting a sexually transmitted infection or HIV to another student.
5. STATUTORY RAPE:
Sexual intercourse with a person who is under the statutory age of consent. In Arkansas the age of consent is 16 years of age.
Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
o A person commits incest if the person, being sixteen (16) years of age or older, purports to marry, has sexual intercourse with, or engages in deviate sexual activity with another person sixteen (16) years of age or older whom the actor knows to be an ancestor or a descendant; a stepchild or adopted child; a brother or sister of the whole or half blood; an uncle, aunt, nephew, or niece; or a stepgrandchild or adopted grandchild.
Effective consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Effective consent can be given by words or actions, as long as those words or actions create mutually understandable permission regarding the conditions of sexual activity —who, what, when, where, why and how sexual activity will take place. In order to be effective, consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. In Arkansas, the age of consent is 16 years of age.
If you have sexual activity with someone you know to be—or should know to be—mentally or physically incapacitated (alcohol or other drug use, unconsciousness or blackout), you are in violation of this policy.
•Any time sexual activity takes place between individuals, those individuals must be capable of controlling their physical actions and be capable of making rational, reasonable decisions about their sexual behavior.
•This policy also covers someone whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of a so-called "date-rape" drug. Possession, use and/or distribution of any of these substances, including Rohypnol, Ketomine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another student for the purpose of inducing incapacity is a violation of this policy. More information on these drugs can be found at http://www.911rape.org/.
•Use of alcohol or other drugs will never function to excuse behavior that violates this policy. 44
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcome resistance or produce consent ("Have sex with me or I’ll hit you. Okay, don’t hit me, I’ll do what you want").
NOTE: There is no requirement that a party resists the sexual advance or request, but resistance is a clear demonstration of non-consent. The presence of force is not demonstrated by the absence of resistance. Sexual activity that is forced is by definition non-consensual, but nonconsensual sexual activity is not by definition forced.
The requirements of this policy are blind to the sexual orientation or preference of individuals engaging in sexual activity or relationships.
•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; an 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, and oral copulation (mouth to genital contact or genital to mouth contact).
GENDER-BASED MISCONDUCT DEFINITIONS IN THE STATE OF ARKANSAS are located at the end of this section.
•Any student found responsible for violating the policy on Non-Consensual Sexual Contact (where no intercourse has occurred), sexual exploitation, sexual harassment, dating violence, domestic violence, or stalking will likely receive a sanction ranging from warning to expulsion, depending on the severity of the incident, and taking into account any previous campus conduct code violations.*
•Any student found responsible for violating the policy on Non-Consensual Sexual Intercourse will likely face a recommended sanction of suspension or expulsion.*
*The conduct board reserves the right to broaden or lessen any range of recommended sanctions in the complaint of serious mitigating circumstances or egregiously offensive behavior. Neither the conduct board nor any appeals body or officer will deviate from the range of recommended sanctions unless compelling justification exists to do so.