Complainant

A complainant is a student who is currently participating in or attempting to participate in a College education program or activity, or an employee of the College, who is reported to have experienced conduct that could constitute Prohibited Conduct as defined below, regardless of 2 whether the student or employee makes a report or seeks disciplinary action. In some cases (such as, for example, cases in which a person involved in an alleged incident of Prohibited Conduct does not wish to participate in the process but the College decides that the alleged misconduct needs to be investigated and addressed), the College may move forward with an investigation and/or related disciplinary proceeding without a designated complainant. In such cases, the College may extend the full rights of a complainant as defined in this Policy to affected parties as deemed appropriate by the College and/or as permitted or required by applicable law. For ease of reference and consistency, the term “complainant” is used hereafter in this Policy to refer to a student or employee who believes that they have been subjected to Prohibited Conduct, or who is believed by another to have been subjected to such conduct.

Consent

For purposes of this Policy and under Vermont law, “consent” means the affirmative, unambiguous, and voluntary agreement to engage in a sexual act, which can be revoked at any time. No person subject to this Policy shall engage in a sexual act with another person:

without the consent of the other person; or
by threatening or coercing the other person; or
by placing the other person in fear that any person will suffer imminent bodily injury; or
when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring.

No person subject to this Policy shall administer any alcohol, drugs, or other intoxicants to another person without the person’s knowledge or against the person’s will and, while the person is impaired by the alcohol, drugs, or intoxicants, engage in a sexual act with that person.

No person subject to this Policy shall engage in a sexual act with another person when the other person is incapable of consenting to the sexual act due to substantial impairment by alcohol, drugs, or other intoxicants and that condition is known or reasonably should be known by the person.

“Incapable of consenting” as used in this Policy means the other person:

is incapable of understanding the nature of the conduct at issue;
is physically incapable of resisting, declining participation in, or communicating unwillingness to engage in the conduct at issue; or
lacks the mental ability to make or communicate a decision about whether to engage in the conduct at issue.

A person may be incapable of consenting due to the effects of alcohol, drugs or other intoxicants, or due to a physical, mental or other condition.

Responsible, respectful communication is a standard of behavior that the College expects members of its community to uphold. It should be understood by all that silence, passivity or lack of resistance by a partner to sexual activity cannot be assumed to indicate consent. Lack of consent may be shown without proof of resistance, and submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent.

It is the responsibility of those who initiate and/or engage in sexual activity to be clear that consent as defined in this Policy is given before proceeding with further sexual activity. It should be noted that ignorance of the policy noted above, or the intoxication of the respondent, will in no way be considered an excuse for violating the policy. Determinations regarding whether a person is responsible for violating this Policy will be made by considering whether the person knew, or a reasonable, unimpaired person in their circumstances should have known, that the other person was not consenting to or was incapable of consenting to the sexual conduct at issue or was asleep, unconscious, or otherwise unaware that the sexual act was occurring.

Prohibited Conduct

This Policy prohibits the following forms of misconduct, collectively referred to throughout the policy as “Prohibited Conduct”:

Title IX Sexual Harassment (i.e., Quid Pro Quo Sexual Harassment, Severe, Pervasive and Objectively Offensive Sexual Harassment, Sexual Assault, and Domestic Violence, Dating Violence and sex-based Stalking within the scope of Title IX);

Non-Title IX Misconduct (i.e., Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, and Stalking outside the scope of Title IX, Sexual Exploitation as defined below, and Retaliation).

Specifically, Title IX Sexual Harassment and Non-Title IX Misconduct are defined as follows for purposes of this Policy:

Title IX Sexual Harassment

“Title IX Sexual Harassment” is a subset of Prohibited Conduct. Under Department of Education regulations (see 34 C.F.R., Part 106) issued in May 2020 (“May 2020 Title IX regulations”) to implement Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., the College is required to prohibit certain forms of sexual harassment as defined in those regulations. Title IX Sexual Harassment is Prohibited Conduct in the form of Title IX Quid Pro Quo Sexual Harassment, Title IX Severe, Persistent and Pervasive Sexual Harassment, Title IX Sexual Assault, Title IX Dating Violence, Title IX Domestic Violence, or Title IX Stalking as defined below that is committed by or against students and/or employees in an education program or activity of the College, in the United States, on or after August 14, 2020. Further, in order for the College to consider a Formal Complaint of such misconduct as falling within its Title IX Sexual Harassment policy and procedures, the complainant must be participating in or attempting to participate in a the College program or activity at the time the complaint is filed.

Conduct takes place within the College’s “programs and activities” when that conduct occurs:

in a location, at an event, or in a circumstance where the College exercises substantial control over both the respondent and the context in which the conduct occurs; or
in any building owned or controlled by a student organization recognized by the College.

Conduct that occurs off campus in locations or at events with no connection to the College is unlikely to have occurred in a program or activity of the College.

A complaint about conduct that does not meet this strict definition for Title IX Sexual Harassment is still prohibited by this Policy if it otherwise constitutes Prohibited Conduct within the definition of Non-Title IX Misconduct as defined below. The following Prohibited Conduct definitions apply for purposes of the definition of Title IX Sexual Harassment:

Title IX Quid Pro Quo Sexual Harassment

Quid Pro Quo Sexual Harassment for purposes of the Title IX Sexual Harassment definition is conduct on the basis of sex committed in an education program or activity of the College in the United States on or after August 14, 2020, by which an employee of the College conditions the provision of an aid, benefit, or service of the College on a student’s or employee’s participation in unwelcome sexual conduct.

Title IX Severe, Pervasive and Objectively Offensive Sexual Harassment

Severe, Pervasive and Objectively Offensive Sexual Harassment for purposes of the Title IX Sexual Harassment definition is conduct on the basis of sex committed in an education program or activity of the College in the United States on or after August 14, 2020, that constitutes unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a student or employee equal access to a the College education program or activity. Determinations of whether a complainant has been denied equal access will be made by comparing the complainant’s access to education to that of a similarly situated person who is not suffering the alleged sexual harassment.

Title IX Sexual Assault

As required by the May 2020 Title IX regulations, the College’s Title IX Sexual Assault definition incorporates the definitions of the FBI’s Uniform Crime Reporting (NIBRS) program, 5 and therefore defines Title IX Sexual Assault for purposes of this Policy as conduct of the following types committed by or against a College student or employee in an education program or activity of the College in the United States on or after August 14, 2020:

Rape:

The carnal knowledge of a person (i.e., penile-vaginal penetration), without the consent of that person, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity (it should be noted that either females or males could be complainants under this definition);
Oral or anal sexual intercourse (i.e., penile penetration) with another person, without the consent of that person, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity;
To use an object or instrument (e.g., an inanimate object or body part other than a penis) to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of that person, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity;

Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of that person, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity (for purposes of this definition, “private body parts” includes breasts, buttocks, or genitals, whether clothed or unclothed);

Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; or

Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent.

Sexual assault can be committed by any person against any other person, regardless of gender, gender identity, sexual orientation, or past or current relationship status. Sexual assault may occur with or without physical resistance or violence.

Any incident falling within this definition is a violation of College policy and is prohibited.

TItle IX Dating Violence

Title IX Dating Violence for purposes of the Title IX Sexual Harassment definition is conduct on the basis of sex committed in an education program or activity of the College in the United States on or after August 14, 2020 that constitutes violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant. 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 the purposes of this definition—

Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
Dating violence does not include acts covered under the definition of domestic violence.

Any incident falling within this definition is a violation of College policy and is prohibited.

Title IX Domestic Violence

Title IX Domestic Violence for purposes of the Title IX Sexual Harassment definition is conduct on the basis of sex committed in an education program or activity of the College in the United States on or after August 14, 2020 that constitutes a felony or misdemeanor crime 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 cohabiting with, or has cohabited 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 of the jurisdiction in which the crime of violence occurred.

Any incident falling within this definition is a violation of College policy and is prohibited.

Title IX Stalking

Title IX Stalking for purposes of the Title IX Sexual Harassment definition is conduct on the basis of sex committed in an education program or activity of the College in the United States on or after August 14, 2020 that constitutes 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.

For purposes of this definition—

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.
Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.

Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling. Examples of stalking behaviors or activities include, but are not limited to the following, if they occur in the context of stalking as defined above (i.e., the behaviors or activities would cause a reasonable person to fear for their safety or the safety of others, or to suffer substantial emotional distress):

non-consensual communication, including face-to-face communication, telephone calls, voice messages, e-mails, text messages, written letters, gifts, or any other communications that are unwelcome;
use of online, electronic or digital technologies, such as posting pictures or text in chat rooms or on websites, sending unwanted or unsolicited e-mail or talk requests, posting private or public messages on Internet sites, social networks, and/or school bulletin boards, installing spyware on a person’s computer, or using Global Positioning Systems (GPS) or similar technology to monitor a person;
pursuing, following, waiting for, or showing up uninvited at or near a residence, workplace, classroom, or other places frequented by the person;
surveillance or other types of observation, including staring and voyeurism;
trespassing;
vandalism;
non-consensual touching;
direct verbal or physical threats against a person or a person’s family member, pet or personal property;
gathering information about a person from friends, family, or co-workers;
accessing private information through unauthorized means;
threats to harm self or others;
defamation and/or lying to others about the person; and
using a third party or parties to accomplish any of the above.

Behaviors or activities that fall within this definition are violations of College policy and are prohibited.

Non-Title IX Misconduct

Non-Title IX Misconduct is Prohibited Conduct that falls within the scope of this Policy and the definitions below but that does not fall within the definition of Title IX Sexual Harassment, either due to the nature of the conduct or because it did not reportedly occur within an education program or activity of the College in the United States on or after August 14, 2020. Behavior that falls within the definition of Non-Title IX Misconduct violates College policy and is prohibited. Such conduct is defined for purposes of this Policy as:

Non-Title IX Sexual Harassment

Non-Title IX Sexual Harassment is a form of sex discrimination that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the purpose or effect of substantially interfering with an individual’s work or academic performance or creating an intimidating, hostile, or offensive working, shared living, or educational environment, on the basis of sex. The College will determine whether conduct falls within this definition by using both an objective standard (that is, would a reasonable person experience the conduct as intimidating, hostile or offensive as defined here) and a subjective standard (that is, did the person actually perceive the conduct as intimidating, hostile or offensive as defined here).

Examples of sexual harassment include, but are not limited to the following, when such acts or behavior come within the above definition:

touching or grabbing any part of a person’s body (in a manner that is sexual or offensive on the basis of sex but that does not constitute “fondling”, which is a form of Title IX Sexual Assault or Non-Title IX Sexual Assault as defined above and below) after that person has indicated, or it is known or should be known, that such physical contact is unwelcome;
continuing to ask a person to socialize on or off-campus when that person has indicated that they are not interested;
displaying or transmitting sexually suggestive pictures, objects, cartoons, messages, web links or posters if it is known or should be known that the behavior is unwelcome;
continuing to write sexually suggestive notes or letters if it is known or should be known that the person does not welcome such behavior;
referring to or calling a person a sexualized name if it is known or should be known that the person does not welcome such behavior;
regularly telling sexual jokes or using sexually vulgar or explicit language in the presence of a person if it is known or should be known that the person does not welcome such behavior;
communicating derogatory or provoking remarks about or relating to a person’s sex, gender identity or sexual orientation;
directing harassing acts or behavior against a person on the basis of their sex, gender identity or sexual orientation; or
off-campus conduct which falls within the above definition and affects a person’s on-campus educational, shared living, or work environment.

Sexual Harassment that meets the definition of Title IX Sexual Harassment outlined above will be addressed under the procedures for Title IX Sexual Harassment provided in this Policy.

Saint Michael’s College recognizes that the protection of free and open speech and the open exchange of ideas is important to any academic community. This recognition is therefore an important element in the objective “reasonable person” standard used in judging whether sexual harassment has occurred. This Policy is meant neither to proscribe nor to inhibit discussion, in or out of the classroom, of complex, controversial or sensitive matters, when in the judgment of a reasonable person they arise appropriately and with respect for the dignity of others.

Saint Michael’s College also recognizes, however, that verbal conduct can be used specifically to intimidate or coerce and to inhibit genuine discourse, free inquiry and learning. Such abuses are unacceptable. If someone believes that another’s speech or writing is offensive, wrong or hurtful, they are encouraged to express that judgment in the exercise of their own free speech or to seek redress under this Policy or other College policies as appropriate.

Non-Title IX Sexual Assault

Sexual Assault (i.e., rape, fondling, incest or statutory rape) as defined in the Title IX Sexual Assault definition above that did not reportedly occur in a program or activity of the College in the United States, and attempts to commit such misconduct.

Non-Title IX Domestic Violence

Domestic violence as defined in the Title IX Domestic Violence definition above that did not reportedly occur in a program or activity of the College in the United States on or after August 14, 2020.

Non-Title IX Dating Violence

Dating violence as defined in the Title IX Dating Violence definition above that did not reportedly occur in a program or activity of the College in the United States on or after August 14, 2020.

Non-Title IX Stalking

Stalking as defined in the Title IX Stalking definition above that did not reportedly occur in a program or activity of the College in the United States on or after August 14, 2020, or that otherwise fits within the definition of stalking but does not fall within the Title IX Stalking definition because the reported conduct is not directed at the complainant on the basis of sex.

Non-Title IX Sexual Exploitation

Non-Title IX Sexual Exploitation occurs when a person takes sexual advantage of another person for the benefit of anyone other than that other person without that other person’s consent, and attempted sexual exploitation. Examples of sexually exploitative behavior include, but are not 10 limited to:

video recording or photographing of sexual acts or nudity of another member of the College community without the consent of a person involved;
transmitting such video recordings or photographs without the consent of the person involved;
viewing or allowing or aiding others to view another person’s sexual activity, intimate body parts, or nudity without the person’s consent; and
sexual exhibitionism or exposure of one’s genitalia in the presence of others without their consent.

Respondent

A respondent is a student, employee or covered third party (to the extent the College elects to address reports regarding a covered third party through this Policy, rather than otherwise at the College’s discretion) who has been reported to be the perpetrator of conduct that could constitute Prohibited Conduct as defined in this Policy. A covered third party is a person who is not a student or employee of the College, but who is someone over whom the College has some measure of control that would allow the College to take some form of action against them if it is determined that they engaged in Prohibited Conduct (e.g., a vendor or volunteer). Again, such individuals will be provided rights under this Policy on to the extent the College elects to do so.

Retaliation

Retaliation means intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations or this Policy, 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 regarding Prohibited Conduct (including both Title IX Sexual Harassment and Non-Title IX Misconduct). Retaliation is strictly prohibited. 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 its implementing regulations, constitute retaliation, as do any adverse action taken against a person because they have made a good faith report of Prohibited Conduct or participated in any proceeding under this Policy. Retaliation may include intimidation, threats, coercion, harassment, or adverse employment or educational actions that would discourage a reasonable person from engaging in activity protected under this Policy. Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance process under this Policy does not constitute prohibited retaliation, provided, however, that a determination regarding responsibility is not alone sufficient to establish that any party made a materially false statement in bad faith.

The College will not engage in, and will investigate and address, reports of retaliatory conduct. Retaliation under this Policy may be found whether or not the underlying complaint is ultimately found to have merit.

Any person who believes that they have been subjected to such retaliation should follow the complaint resolution procedures outlined in this Policy. Complaints of retaliation will be addressed through the procedures for Non-Title IX Misconduct outlined below.