Student Handbook

2.3.3 - Sex Discrimination

Xavier University prohibits conduct that constitutes Sexual Harassment under Title IX as well as conduct prohibited by Xavier’s Interpersonal Violence policies. Section 2.3.3 defines both types of prohibited conduct. When Xavier receives a report of Sex Discrimination, it is the responsibility of the Title IX Office to determine whether the report will be addressed under Xavier’s Title IX Sexual Harassment policies or the Interpersonal Violence policies and the appropriate and relevant policy will be followed.

If the report received contains allegations of more than one type of prohibited Sex Discrimination and the Title IX Office assesses one or more of those allegations is addressed by Xavier’s Title IX Sexual Harassment and one or more is addressed by Xavier’s Interpersonal Violence policies, at the discretion of the Chief Title IX Officer and/or the Dean of Students:

The relevant policy definitions of Section 2.3.3.1 Title IX Sexual Harassment will apply to allegations assessed to be addressed by Xavier’s Title IX Sexual Harassment policies;
The relevant policy definitions of Section 2.3.3.2 will apply to allegations assessed to be addressed by Xavier’s Interpersonal Violence policies; and
The response and complaint resolution process procedures of Section 3.4.1 Title IX Sexual Harassment Response and Complaint Resolution Process will apply to all allegations.

The Chief Title IX Officer and/or the Dean of Students may, if deemed appropriate, in their discretion separate the processes so that the Title IX Sexual Harassment policy violation allegations are addressed by Section 3.4.1 Title IX Sexual Harassment Response and Complaint Resolution Process and the Interpersonal Violence policy violation allegations are addressed by Section 3.4.2 Interpersonal Violence Response and Complaint Resolution Process.

If a report received contains allegations of policy violations that the Title IX Office assesses are addressed by Student Handbook policies outside of Xavier’s Title IX Sexual Harassment and Interpersonal Violence policies, the Title IX Office will provide that information to the Dean of Students Office who will lead the response on those allegations.

As referenced in Section 1.6.7, Xavier's Code of Conduct Sections 2.3.3.1 and 2.3.3.2 provide definitions of Sex Discrimination prohibited by the University and these are the policies that will be applied to address student conduct. Ohio and federal law have separate and distinct criminal definitions of these types of conduct that the University is required to publish in this Handbook by the Clery Act (Section 1.3.3).

For information on reporting any type of Sex Discrimination, see Section 1.6.3 ("Reporting Sex Discrimination"). For information on resources related to Sex Discrimination, see Section 1.6.5 ("Resources")

2.3.3.1 PROHIBITED TITLE IX SEXUAL HARASSMENT

Title IX defines Sexual Harassment as conduct on the basis of sex that satisfies one or more of the following:

An employee of Xavier University conditioning the provision of an aid, benefit, or service of Xavier on an individual’s participation in unwelcome sexual conduct
Unwelcome conduct that would be determined by a reasonable person to be so severe, pervasive, and objectively offensive that is effectively denies a person equal access to a Xavier education program or activity; or
Sexual assault as defined in 20 U.S.C. 1092(f)(6)(A)(v); “dating violence” as defined in 34 U.S.C. 12291(a)(10); “domestic violence” as defined in 34 U.S.C. 12291(a)(8); and “stalking” as defined in 34 U.S.C. 12291(a)(30).

(A) Sexual Assault is defined as:

Sex Offenses, Forcible: Any sexual act directed against another person, without the consent of the complainant, including instances in which the complainant is incapable of giving consent because of incapacitation.
Forcible Rape: 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 complainant.
Forcible Sodomy: Oral or anal sexual intercourse with another person, forcibly, and/or against that person’s will (non-consensually), or not forcibly or against the person’s will in instances in which the complainant is incapable of giving consent because of incapacitation.
Sexual Assault with an Object: The use of an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly, and/or against that person’s will (non-consensually), or not forcibly or against the person’s will in instances in which the complainant is incapable of giving consent because of incapacitation.
Forcible Fondling: The touching of the private body parts of another person (buttocks, groin, breasts), for the purpose of sexual gratification, forcibly, and/or against that person’s will (non-consensually), or not forcibly or against the person’s will in instances in which the complainant is incapable of giving consent because of incapacitation.
Sex Offenses, Non-forcible:

(a) Incest: Non-forcible sexual intercourse, between persons who are related to each other, within the degrees wherein marriage is prohibited by Ohio law.

(b) Statutory Rape: Non-forcible sexual intercourse, with a person who is under the statutory age of consent of 16.

(B) Dating Violence is defined as:

Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.

(a) 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.

2. Including, but not limited to, sexual or physical abuse or the threat of such abuse.

3. Does not include acts covered under the definition of domestic violence.

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
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.

(D) Stalking is defined as 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.

In accord with Federal law and regulations, conduct can only be considered Sexual Harassment under Title IX if:

The conduct occurred in a Xavier University educational program or activity and
Against a person in the United States

Under Title IX, a covered education program or activity includes locations, events, or circumstances over which Xavier exercised substantial control over both the Responding Party and the context in which the sexual harassment occurs. The Chief Title IX Officer is responsible for assessing whether the education program or activity of the reported conduct is covered by Title IX.

2.3.3.2 – PROHIBITED INTERPERSONAL VIOLENCE

Interpersonal Violence is a broad term encompassing any unwelcome act of a sexual, intimate, and/or romantic nature perpetrated by any person against another without that person's Consent or when that person is unable to freely give Consent or is Coerced. Interpersonal Violence occurs regardless of whether there was intent to harm another. While Interpersonal Violence is similar in many respects to Title IX Sexual Harassment described in Section 2.3.3.1 above, this Section 2.3.3.2 addresses conduct that is not within the confines of Title IX Sexual Harassment, such as, but not limited to, conduct of a student that occurs at a non-Xavier affiliated social gathering at an off-campus house.

Interpersonal Violence can involve physical, verbal, and/or electronic contact or conduct (e.g., offensive sexual words, comments, gestures, videos or pictures). It can occur between people of different genders or people of the same gender, or between an individual and a community of people. It can occur before or after consensual sexual activity. (Please refer to the definitions at 2.3.3.2 for additional clarification.)

Retaliation by any University employee against a person complaining of Interpersonal Violence is prohibited.

The following types of Interpersonal Violence are prohibited by the Xavier University's Standards of Student Conduct and the Harassment Code and Accountability Procedures.

2.3.3.2.1 Sexual Harassment

Sexual Harassment is unwelcome, gender-based verbal or physical conduct that is sufficiently severe, persistent or pervasive that it unreasonably interferes with, denies or limits someone's ability to participate in or benefit from the University's educational programs, services, and/or activities, and is based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation.

2.3.3.2.1.1 Quid pro quo sexual harassment exists when there are:

Unwelcome sexual advances, request for sexual favors, or other verbal or physical conduct of a sexual nature; and
Submission to or rejection of such conduct results in adverse educational or employment action.

2.3.3.2.1.2 Retaliatory harassment is defined as any intentional adverse employment or educational action taken by a responding individual or allied third party, absent legitimate nondiscriminatory purposes, against a participant or supporter of a participant in an investigation or resolution of an Interpersonal Violence complaint.

2.3.3.2.1.3 Hostile environment sexual harassment

Determining whether the conduct has created a hostile environment requires an assessment of whether the conduct is sufficiently serious to deny or limit the individual's ability to participate in or benefit from the University program. To determine whether the conduct denies or limits benefits or services, the following will be considered:

The conduct from subjective and objective perspectives;
Whether the conduct is sufficiently severe or serious;
Effect of the conduct on the individual's education and/or employment;
All other relevant circumstances, such as type, frequency, location, duration, number of individuals involved, and the relationship/roles of the parties.
Behavior is sexual in nature if a reasonable person would have interpreted the alleged behavior to be sexual. Conduct that constitutes sexual harassment can be verbal, visual or physical and may be through telephone or electronic contact.

The more severe the conduct the less the need to show repeated incidents.

There does not need to be sexual desire motivating the conduct. The key inquiry is whether the Responding Party's words or actions are directed at an individual because of the individual's sex, sexual orientation, and/or gender identity. This includes harassment based on failure to conform to stereotypical notions of sex and gender, including non-conforming appearance and non-conforming mannerisms.

Not all workplace or educational conduct that may be described as "harassment" affects the terms, conditions or privileges of employment or education. For example, a mere utterance of a gender-based epithet, which creates offensive feelings in an employee or student, would not normally affect the terms or conditions of their employment or education.

Examples of sexual harassment may include:

Unwelcome sexual advances.
Explicit or implicit requests for sexual favors.
Ongoing use of offensive language or discussions of a sexual nature that creates a hostile or offensive environment.
A supervisor or professor promising a raise or a better grade in exchange for sexual contact.
Repeated, unwanted attempts to change a professional relationship to a personal relationship.
Repeated joking, teasing, and/or comments about sexual orientation.
Repeated joking, teasing, and/or comments about gender identity.
Repeated joking, teasing, and/or comments about other peoples' bodies.
Whistling, touching, or other repeated unwanted flirtation.
Displaying graphic pictures that create a hostile or offensive working or living environment.
Unwelcome attention of a sexual nature after requesting that the attention be stopped.
Sexual Assault, Rape, Stalking, Domestic Violence, Dating Violence, Public Indecency, Sexual Exploitation, and Other Interpersonal Violence (as defined by Sections 2.3.3.2)
The foregoing is not an exhaustive list of conduct that constitutes Sexual Harassment.

2.3.3.2.2 Public Indecency

Masturbating or flashing/exposing breasts or genitals to others in a public and/or uninvited manner. It also includes engaging in an activity in public appearing to an ordinary observer to be sexual conduct or masturbation.

2.3.3.2.3 Stalking

A pattern of conduct by a person with a sexual, romantic or gender-based motivation that causes or is intended to cause another person to believe that the offender will cause physical harm or mental distress to the other.

2.3.3.2.4 Sexual Exploitation

Occurs when one person takes non-consensual or abusive sexual advantage of another for their 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:

Invasion of sexual privacy;
Prostituting another person;
Non-consensual photographic, video or audio recording of nudity or sexual activity;
Unauthorized sharing or distribution of photographic, video or audio recording of nudity or sexual activity;
Engaging in voyeurism (trespassing, secretly invading the privacy of another, spying or eavesdropping upon another, usually with the purpose of sexually arousing or gratifying oneself (e.g., watching a person or persons in an intimate setting without that person's permission). Voyeurism may involve telescopes, still and video cameras, audio recording, or other technologies);
Going beyond the boundaries of consent (such as letting your friend hide in the closet to watch you having consensual sex);
Knowingly exposing someone to or transmitting an STI, STD or HIV to another person;
Intentionally or recklessly exposing one's genitals in non-consensual circumstances; inducing another to expose their genitals;
Sexually-based stalking and/or bullying may also be forms of sexual exploitation

2.3.3.2.5 Sexual Assault (or attempts to commit the same)

Sexual Assault is:

Any intentional sexual touching, however slight,
By a person upon another person,
That is without Consent and/or when Coercion is used.

Sexual Contact includes:

Intentional contact with the breasts, buttock, groin, or genitals, or
Touching another of with any of these body parts or
Making another touch you or themselves with or on any of these body parts or
Any other intentional bodily contact in a sexual manner.

2.3.3.2.6 Rape (or attempts to commit the same)

Rape is:

Any sexual intercourse, however slight,
With any body part or object,
By a person upon another person,
That is without Consent and/or when Coercion is used.

Intercourse includes:

Vaginal or anal penetration by body part or object Oral (mouth to genital or anal)
No matter how slight the penetration or contact.

2.3.3.2.7 Domestic Violence is defined as:

A pattern of abusive behavior in an intimate or family relationship where
The behavior is used to exert power and control over another party in the relationship.

One instance of severe abusive behavior in an intimate or family relationship where
The behavior is used to exert power and control over another party in the relationship.

Domestic violence can include but is not limited to physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person.

Abusive behavior can be spoken, written, or physical. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.

Individuals of all sexes and gender identities can perpetrate domestic violence and can be victims of domestic violence. Domestic violence can be perpetrated by and against individuals who identify as heterosexual, lesbian, gay, bisexual, and/or transgender, and crosses all social, ethnic, racial, age, and economic lines.

2.3.3.2.8 Dating Violence is defined as:

A pattern of abusive behavior committed by a person who is or has been in a relationship of a romantic or intimate nature with the victim where
The behavior is used to exert power and control over another party in the relationship.

One instance of severe abusive behavior committed by a person who is or has been in a relationship of a romantic or intimate nature with the victim where
The behavior is used to exert power and control over another party in the relationship.

Dating violence can include but is not limited to physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person.

2.3.3.2.9 Interpersonal Violence - Other -

A student may be found responsible for "Interpersonal Violence - Other" if their actions meet the definition of this type of misconduct but do not meet the definition of any particular type of Interpersonal Violence listed in this section.

2.3.3.3 - Important Definitions for Understanding Title IX Sexual Harassment and Interpersonal Violence

2.3.3.3.1 "Coercion" or “Coerced” means:

Compelling another person to do something through:
Emotional or physical pressure,
Threats or other forms of intimidation.

Real or perceived power differentials between individuals also may create an atmosphere of Coercion that can significantly impair a person's ability to Consent.

2.3.3.3.2 "Consent" means:

Clear, knowing and voluntary words or actions that demonstrate agreement for specific sexual activity.

Consent must be informed and freely given.

Consent is invalidated when it is forced, coerced, or when a person is physically and/or mentally incapable of giving Consent. For example, a person who is sleeping or a person who is substantially impaired by drugs or alcohol may not be able to Consent. Some signs of substantial impairment may include, but are not limited to, loss of balance/inability to walk without stumbling, slurred speech, inability to focus their vision, vomiting, erratic or extreme behavior, knowledge of person's significant use of drugs or alcohol, or passing out.

Consent is an active, on-going process. It can be withdrawn at any time, and Consent for one sexual act does not imply Consent for another subsequent sexual act. Consent, a lack of Consent or a withdrawal of Consent can be expressed by words, actions, or both. For example, verbal silence or the absence of physical resistance does not automatically mean someone has consented to a sexual activity; nor is physical resistance required for a person to verbally communicate a lack of Consent or to withdraw Consent.

In reviewing an allegation of Title IX Sexual Harassment or Interpersonal Violence, Consent is a critical factor in determining whether there is a violation of this policy. Although all parties must give their Consent to any sexual act and it is the best practice for both partners to be responsible for confirming that they have obtained the other's Consent; it is the responsibility of the person initiating the sexual activity to obtain Consent from the other.

The Hearing Panel may examine the issue of Consent from a variety of perspectives, including whether the Responding Party believed they had obtained Consent and whether a reasonable person would have believed that they had obtained Consent. Although neither perspective is outcome- determinative for every case, students are strongly advised to be mindful of and conduct themselves according to the reasonable person standard and to avoid any ambiguity in obtaining and giving Consent. Responding Parties’ use of alcohol or other drugs will not function to excuse any behavior that violates this policy.