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University of the Virgin Islands Sexual Misconduct Policy June 6, 2015 David Hall Henry C. Smock President Chairman of the Board I. POLICY STATEMENT, SCOPE AND DEFINITIONS A.1. POLICY STATEMENT The University of the Virgin Islands is committed to uncompromised integrity and to doing all within its power to ensure a working environment that is inclusive and respectful of diversity and which promotes intellectual growth and development, and support the academic pursuits of faculty, students and staff. It is critically important that we create a safe and supportive environment for all students, employees and visitors. We must always be mindful of our responsibilities to others and ensure that there are clear guidelines for the resolution of concerns and complaints. The University strictly prohibits any acts of sexual misconduct or sexual harassment. Sexual misconduct in the workplace is unacceptable and will not be tolerated in any form. It is our goal to build on the positive environment that exists at the University of the Virgin Islands and ensure that it remains a safe and inviting place to study, work and meet. A.2. SCOPE This policy applies to all members of the University of the Virgin Islands (UVI) community in both on-and off- campus sponsored events and activities, or through the use of electronic and/or digital media. Members of the UVI community are encouraged to promptly report observance of and/or complaints about sexual harassment, sexual misconduct, and unlawful sexual contact to any of the following: supervisor or manager; Title IX Coordinator; EEO Officer; Human Resources; or other UVI administrator/official. Persons found to be in violation of this policy shall be subject to a transfer, or may face disciplinary action which may include, but is not limited to, written warning, demotion, suspension, expulsion, dismissal or termination. F. DEFINITIONS 1. SEXUAL MISCONDUCT Sexual misconduct is defined as non-consensual physical contact of a sexual nature. Acts that constitute sexual misconduct take a variety of forms. Examples of the kinds of conduct that may constitute sexual misconduct include, but are not limited to acts using force, threat, intimidation, or advantage gained by the offended party's mental or physical incapacity or impairment of which the offending party was aware or should have been aware. The use of any drug, including alcohol, judged to be related to the commission of an offense will be considered a contributing factor rather than a mitigating factor. 2. SEXUAL HARASSMENT Sexual harassment is a form of sex discrimination and is prohibited by Title VII of the Civil Rights Act of 1964, as amended, and Title IX of the Education Amendments of 1972. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following circumstances: 2 | P a g e i. Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress. ii. Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual. iii. The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment. iv. Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the education institution. v. Other Examples of Sexual Harassment: Acts that constitute sexual harassment take a variety of forms. Examples of additional kinds of conduct that may constitute sexual harassment include, but are not limited to: 1) Unwelcome sexual propositions, invitations, solicitations, and flirtations. 2) Threats or insinuations that a person's employment, wages, academic grade, promotional opportunities, classroom or work assignments or other conditions of employment or academic life may be adversely affected by not submitting to sexual advances. 3. FORMS OF GENDER-BASED OR SEXUAL MISCONDUCT INCLUDE: i. Sexual Harassment: 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 an educational program or activity. ii. Non Consensual Sexual Contact: Any intentional sexual touching, however slight and with any object or body part, that is without consent (as defined below) and/or by force or coercion. This includes intentional contact with breasts, buttocks, groin, mouth, or genitals, as well as any other intentional bodily contact that occurs in a sexual manner. iii. Non Consensual Sexual Intercourse: Any sexual penetration or copulation, however slight and with any object or body part that is without consent and/or by force or coercion. Intercourse includes anal or vaginal penetration by a penis, object, tongue, or finger, and oral copulation (mouth and genital/anal contact), no matter how slight the penetration or contact. iv. Sexual Exploitation: Taking non-consensual or abusive sexual advantage of an individual to benefit anyone other than the person being exploited. Examples include: invading privacy, video or audio recording of sexual acts without consent, knowingly transmitting a Sexually Transmitted Infection (STI), sexually based stalking or bullying, or exposing one’s genitals. 3 | P a g e v. Non-Consensual Sexual Expressions: (a) Unwelcome verbal expressions of a sexual nature, including graphic sexual commentaries about a person's body, dress, appearance, or sexual activities; the unwelcome use of sexually degrading language, jokes or innuendoes; unwelcome suggestive or insulting sounds or whistles; obscene phone calls.) (b) Sexually suggestive objects, pictures, videotapes, audio recordings, and electronically-generated communications, or literature placed in the work or study area that may embarrass or offend individuals. Materials with sexual content that are used or displayed in an educational setting must be related to educational purposes. vi. Other gender-based Misconduct: Physical harm, extreme verbal abuse, or other conduct that threatens the health or safety of any person on the basis of actual, expressed, or perceived gender identity, including: a. Discrimination: actions that deprive others of access, benefits, or opportunities based on irrelevant criteria b. Hazing: acts likely to cause physical or psychological harm or social exclusion or humiliation c. Bullying: repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or degrade another person physically or mentally d. Intimate Relationship Violence: violence between those in a sexual and/or comparably personal and private relationship e. Stalking: repeated or obsessive unwanted attention or a menacing pursuit directed toward an individual or group that is likely to cause alarm, fear, or substantial emotional distress. Stalking may take many forms, including following, lying in wait, monitoring, and pursuing contact. Stalking may occur in person or through a medium of communication, such as letters, e-mail, text messages, or telephone calls. In some circumstances, two instances of such behavior may be sufficient to constitute stalking. 4. UNLAWFUL SEXUAL CONTACT Title XIV, Chapter 85 of the Virgin Islands Code prohibits unlawful sexual contact. The University of the Virgin Islands will be guided by the relevant University policy in addressing instances of unlawful sexual conduct by any University student or employee. Examples of unlawful sexual contact, which may also violate this policy on Sexual Harassment, may include, but are not limited to, acts of force, coercion, or intimidation when used to accomplish unlawful sexual contact; physical contact that includes touching, assaulting, impeding or blocking movements. Such acts include but are not limited to rape, assault to commit rape, sexual battery, aggravated sexual battery, statutory rape, sodomy and aggravated sodomy 5. RESPONSIBILITY Individuals who are aware of, or have experienced, an incident of sexual harassment or sexual assault should promptly report the matter to a supervisor, manager, University Administrator, Human Resources, or the University officials designated to receive informal or formal complaints. (Please see pp. 8-10) Under this policy, a third party may also file a complaint if the sexual conduct of others in the education or work 4 | P a g e environment permeates the work or education environment, even if such conduct is not directed at the third party, but occurs in his or her presence, and has the purpose or effect of substantially interfering with the third party's welfare, or academic or work performance. 6. RETALIATION Retaliation is defined as any adverse action taken against a person participating in a protected activity because of their participation in that protected activity. No employee, applicant for employment, student, vendor or member of the public shall be subject to restraints, interference, coercion or reprisal for action taken in good faith to seek advice concerning a sexual harassment matter, to file a sexual harassment complaint, or to serve as a witness or a panel member in the investigation of a sexual harassment grievance. Retaliatory acts are a violation of federal law and the Virgin Islands Code and of this sexual harassment policy. Acts of retaliation should be reported immediately to the Title IX Coordinator or to a University Administrator. Acts of retaliation will be investigated and resolved accordingly. 7. MALICIOUS, FALSE ACCUSATIONS Any person filing a complaint that is found to be false or brought with malicious intent will be subject to a transfer, or may face disciplinary action which may include, but is not limited to, written warning, demotion, suspension, dismissal, expulsion, or termination. (This information is adapted, in part, from the ATIXA gender-based and Sexual Misconduct Policy by the National Center for Higher Education Risk Management (NCHERM) and the Association of Title IX Administrators (ATIXA), 2011). CONSENT A. . WHAT IS CONSENT? Consent is defined as permission to act. It may be given by words or actions, as long as those words or actions create clear, mutually understood permission to engage in (and the conditions of) sexual activity. A party granting consent as defined herein, retains the authority at all times to withdraw their consent. 1. STANDARDS FOR AFFIRMATIVE CONSENT: Consent Must Be: a. Active, not passive. Silence, in and of itself, cannot be interpreted as consent. There is no requirement that an individual resist a sexual act or advance, but resistance is a clear demonstration of non-consent. b. Given freely. A person cannot give consent under force, threats, or unreasonable pressure (coercion). Coercion includes continued pressure after an individual has made it clear that he/she does not want to engage in the behavior. c. Provided knowingly. Legally valid consent to sexual activity cannot be given by: 5 | P a g e i. A person under the legal age to consent. In the United States Virgin Islands, the age of consent is 16 or ii. An individual who is known to be (or based on the circumstances should reasonably be known to be) mentally or physically incapacitated. An incapacitated individual is someone who cannot make rational, reasonable decisions because he or she lacks the capacity to understand the “who, what, when, where, why, or how” of a sexual interaction. This includes a person whose incapacity results from mental disability, sleep, involuntary physical restraint, unconsciousness, use of alcohol or other drugs. iii. Specific permission to engage in one form of sexual activity does not imply permission for another activity. iv. Previous relationships or prior consent do not imply consent to future sexual acts. It is the responsibility of the initiator of the act to receive permission for the specific act. As a result, consent may be requested and given several times by multiple parties during a sexual encounter involving multiple acts. B. POLICY CONSIDERATIONS REGARDING CONSENSUAL RELATIONSHIPS Sexual, romantic, or intimate relationships between persons in an unequal power relationship that appear to be voluntary and welcome may nonetheless constitute sexual harassment under this Policy. Relationships between persons in an unequal power status carry an inherent risk. The relationship may be viewed in different ways by each of the parties, particularly in retrospect. Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome. Even when both parties have consented at the outset to a romantic or sexual involvement, past consent may not remove grounds for a later charge of a violation of applicable sections of this Policy. 1. Relationships with Power Differentials: i. Relationships between faculty and subordinate faculty or staff, between administrators and subordinate staff or students; between a supervisor and those employees whom he or she supervises, between a faculty member or teaching assistant and his or her student, or between an employee and a vendor or contractor may give rise to legal and ethical concerns or to conflicts between personal and professional interests. Although such a relationship may be viewed by the parties involved as consensual, that fact alone does not mean that no sexual misconduct exists. ii. In addition, such relationships can result in discrimination or harassment (1) where third parties are adversely affected in academic or employment matters because of a consensual relationship between others; (2) where a consensual relationship creates a hostile and intimidating work or learning environment for third parties; or (3) when a consensual relationship ends, and one of the parties continues behavior which the other party has made clear is now unwelcomed. iii. Administrators, supervisors, instructors or mentors shall avoid beginning or having an amorous relationship with a person under their charge, and if he or she is already involved in such a relationship, has the obligation to, disclose such relationship to the 6 | P a g e University; and to remove him- or herself from the supervisory or mentoring role. In instances where the administrator, supervisor, instructor, or mentor is not in a position to remove him or herself from the supervisory or mentoring role, the relationship shall be terminated unless the amorous relationship existed prior to the supervisory or mentoring role and has been disclosed, in writing, to the University. Except as otherwise permitted hereunder, in the event the relationship is not terminated, the conduct of the administrator, supervisor, instructor or mentor shall be evaluated under and be governed by the applicable University disciplinary policy. In keeping with UVI’s commitment to uncompromised integrity, employees in positions of authority and employees who may have supervisory and/or management oversight of students or other employees should be mindful of their duty to maintain a workplace or educational environment free from discrimination on the basis of sex. Faculty members or administrators residing in University housing or other accommodations are prohibited from cohabitating with a subordinate, faculty, staff or student, unless both parties are married or engaged in an amorous relationship prior to the faculty member or administrator taking up residence in University housing or other accommodations, and the pre-existing relationship has been disclosed, in writing, to the University prior to taking up residence in the University housing or other accommodations. (This information is adapted, in part, from the ATIXA gender-based and Sexual Misconduct Policy by the National Center for Higher Education Risk Management (NCHERM) and the Association of Title IX Administrators (ATIXA), 2011). FEDERAL AND TERRITORIAL LAWS AND UNIVERSITY POLICIES Sexual misconduct and Sexual harassment are forms of sex discrimination that are prohibited by law and policy including: