III. Definitions

A. Discrimination

Colgate University complies with all federal and state civil rights laws banning discrimination in private institutions of higher education. Colgate will not discriminate against any person because of race, color, sex, pregnancy, religion, creed, national origin (including ancestry), citizenship status, physical or mental disability, age, marital status, sexual orientation, gender identity and expression, veteran or military status (including special disabled veteran, Vietnam-era veteran, or recently separated veteran), predisposing genetic characteristics, domestic violence victim status, or any other protected category under applicable local, state, or federal law.

 The term “discrimination” refers to an act that disadvantages a person and that occurs because of the affected individual’s race, color, sex, pregnancy, religion, creed, national origin (including ancestry), citizenship status, physical or mental disability, age, marital status, sexual orientation, gender identity and expression, veteran or military status (including special disabled veteran, Vietnam-era veteran, or recently separated veteran), predisposing genetic characteristics, domestic violence victim status, or any other characteristic protected by applicable law. This list is often referred to as “protected characteristics”. Examples of discrimination include but are not limited to denying a student a research opportunity because of the student’s race, disability, sexual orientation or other protected characteristic; giving a student a lower grade than deserved because of the student’s gender, military service, religion, or other protected characteristic; denying an employee a raise because of the employee’s age, marital status, or other protected characteristic.

B. Harassment

Harassment is unwelcome, offensive conduct that occurs on the basis of race, color, sex, pregnancy, religion, creed, national origin (including ancestry), citizenship status, physical or mental disability, age, marital status, sexual orientation, gender identity and expression, veteran or military status (including special disabled veteran, Vietnam-era veteran, or recently separated veteran), predisposing genetic characteristics, domestic violence victim status, or any other protected category under applicable local, state, or federal law. Sexual harassment is one form of harassment that is characterized by unwelcome conduct that is sexual in nature.

 Harassing conduct can occur in various forms, including:

1. Verbal - such as unwelcome sexually suggestive, demeaning, or graphic comments; using ethnic, racial, religious, or other slurs to refer to a person; or jokes or comments that demean a person on the basis of gender, race, color, religion, ethnicity, national origin, sexual orientation, gender identity or expression, age, or disability.
2. Physical - such as unwanted sexual contact; sexual intimidation through physical threats; physical threats toward or intimidation of another on the basis of gender, race, color, religion, ethnicity, national origin, sexual orientation, gender identity or expression, age, or disability.
3. Visual - such as exposing another person to unwanted pornographic images; creating or displaying racially, ethnically, religiously offensive pictures, symbols, cartoons, or graffiti.
4. Communication-based - such as phone calls, e-mails, text messages, chats, or blogs that offend, demean, or intimidate another on the basis of gender, race, color, religion, ethnicity, national origin, sexual orientation, gender identity or expression, age, or disability.

A determination as to whether harassment occurred depends on the totality of the circumstances, including the context of a communication or incident, the relationship of the individuals involved in the communication or incident, whether an incident was an isolated incident or part of a broader pattern or course of offensive conduct, the seriousness or severity of the incident, the intent of the individual who engaged in the allegedly offensive conduct, and its effect or impact on the individual and the learning community. A “hostile environment” is created when the offensive behavior reaches a level of severity or pervasiveness such that it interferes with an individual’s ability to participate in the university’s programs (i.e., to work and to learn) when judged against a reasonable person standard. However, Colgate encourages individuals experiencing or witnessing offensive behavior to make a report as early as possible so as to have the situation corrected before it reaches the level of a hostile environment. Individuals with a concern need not worry about whether the behavior is sufficiently serious to constitute a hostile environment. The university reserves the right to remedy harassment pursuant to this policy even if the behavior in question does not rise to the level of legally recognized or actionable discrimination or harassment.

 The fact that a person was personally offended by a statement or incident does not alone constitute a violation of this policy. The determination as to whether this policy has been violated takes into account the totality of the circumstances. Colgate considers the context of a communication or incident, the relationship of the individuals involved in the communication or incident, whether an incident was an isolated incident or part of a broader pattern or course of offensive conduct, the seriousness or severity of the incident, the intent of the individual who engaged in the allegedly offensive conduct, and its effect or impact on the individual and the community.

 In all instances, a key factor is whether the complained-of behavior occurred because of one of the protected characteristics listed here. If it did not, the behavior is not regulated by this policy.

 Colgate also prohibits “quid pro quo” sexual harassment, which means “this for that” harassment. It is a violation of this policy for any person to condition any benefit (such as a grade in a class, a research opportunity, a promotion, etc.) on submission to sexual activity. No person should believe that any other person -- no matter their position of authority -- has a right to require sexual activity in exchange for any benefit or advantage; they do not.

 Faculty and administrators need to be especially sensitive to the power/authority relation in their interactions with students. Amorous relations between faculty and students, between administrators and students, or between coaches and students, contradict both professional ethics and this policy and are prohibited by Colgate.

C. Sex Offenses

Sexual activity or contact must be based on mutual and affirmative consent to the specific activity or contact.

Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression. Whenever the word “consent” is used in this policy, it should be understood to mean affirmative consent as defined here.

 Since individuals may experience the same interaction in different ways, it is the responsibility of each party to take reasonable steps to ensure that the other has consented before engaging in the activity.

 A person cannot consent if that individual is incapacitated. Incapacitation is defined as a state where someone lacks the ability to knowingly choose to participate in a specific activity. Incapacity may be caused by the lack of consciousness, sleep, involuntary restraint, or other factors that prevent voluntary choice. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs or other intoxicants may be incapacitated and therefore unable to consent. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy. Consent is required regardless of whether the initiator is under the influence of alcohol or other drugs. It is not an excuse that the person initiating the sexual activity was intoxicated or incapacitated due to alcohol or other drugs and, therefore, did not realize the incapacity of the other.

 Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous dating relationship is not sufficient to constitute consent. Further, past consent to engage in sexual activity with any person cannot be presumed to be consent to sexual activity in the future with the same or a different person.

 The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. A person can withdraw consent at any time during sexual activity by expressing in words or actions that they no longer want the act to continue. When consent is withdrawn or can no longer be given, the other person must stop immediately.

 Consent cannot be given as result of coercion, intimidation, force, or threat of harm. In New York State, a minor (meaning a person under the age of 17 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 17 years old is a crime as well as a violation of this policy, even if the minor wanted to engage in the act.

 Sex offenses occur between members of the same sex and the opposite sex. In all cases, the issue is not the gender or sexual preference of the individuals involved but rather the activity and whether the parties to the activity affirmatively consented to engage in it.

i. Sexual Assault

Consistent with federal law, Colgate defines sexual assault as including:

1. 1. Non-Consensual Sexual Intercourse. Sexual assault of this type includes 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, forcibly or without affirmative consent or where the victim is incapable of affirmative consent due to mental or physical incapacity. This type of sexual assault also includes non-forcible sexual intercourse with a person who is under the statutory age of consent. In New York, the statutory age of consent is 17 years old.
   2. Non-Consensual Sexual Contact. This form of sexual assault includes any intentional touching, however slight, for purposes of sexual gratification or with sexual intent, of the private body parts (including genitalia, anus, groin, breast, inner thigh, or buttocks) of another person without affirmative consent. This may include non-penetrative acts, touching directly or with an object, and/or touching the private body parts of another over clothing. This may also include forcing or causing another without affirmative consent to touch one's own private body parts.

ii. Sexual Exploitation

When one takes non-consensual sexual advantage of another. Examples of sexual exploitation include but are not limited to observing or recording others engaged in sexual or private activity (such as undressing or showering) without the consent of all involved; or taking intimate pictures of another but then distributing the pictures to others without the photographed person’s consent or in a way that exceeds the bounds of consent; or exposing one’s genitals in non-consensual circumstances; or engaging in sexual activity with another while knowingly infected with a sexually transmitted disease (STD) without informing the other person of such infection.

iii. Dating Violence

Dating violence refers to violent behavior (including, but not limited to, sexual or physical abuse or the threat of such abuse) that is committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. This can include behavior such as coercion, isolation or other forms of emotional, verbal or economic abuse if it reflects a threat of sexual or physical abuse as described above.

iv. Domestic Violence

Domestic violence refers to violent behavior (including, but not limited to, sexual or physical abuse or the threat of such abuse) between spouses, former spouses or intimate partners, cohabitating romantic partners or individuals who were formerly cohabitating romantic partners, individuals who share a child in common, individuals who are similarly situated to spouses and/or individuals who are protected from the other person’s acts under the domestic or family violence laws of the jurisdiction in which the act of violence occurs.

v. Stalking

Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others; or suffer substantial emotional distress. Stalking behavior may include but is not limited to repeated, intentional following, observing or lying in wait for another; or using “spyware” or other electronic means to gain impermissible access to a person’s private information; repeated, unwanted, intrusive, and frightening communications from the perpetrator by phone, mail, email, text, etc.; making direct or indirect threats to harm an individual or the individual’s relatives, friends, or pets; damaging or threatening to damage the property of the targeted individual. Acts of sexual harassment, sex offenses, dating violence, domestic violence and stalking may be committed by any person upon any other person, regardless of the sex, gender, sexual orientation and/or gender identity of those involved. The issue in any case is not the gender or gender identity of the persons involved but the acts.

D. Hate Crimes

For the purpose of this policy, a “hate crime” is defined as violence to a person or damage to property (or a threat to do so) or any other criminal act that is motivated entirely or partly by hostility toward or intolerance of another’s race, color, religion, creed, ethnicity, ancestry, national origin, sexual orientation, gender identity or expression, marital status, military or veteran status, age, disability, or any other personal characteristic protected by law.

 The following example demonstrates the difference between a crime and a hate crime. A student who selects a car at random in a campus parking lot and smashes the windshield has committed criminal mischief. A student who is biased against Muslims and smashes a windshield because they know that the car belongs to a Muslim student has likewise committed criminal mischief. However, this second incident is also a hate crime because the student was motivated by anti-Muslim bias.

 Federal and state laws prohibit hate crimes, and hate crimes often result in enhanced criminal penalties. Students who commit hate crimes are subject to criminal prosecution in addition to discipline pursuant to this policy. The criminal process is separate and distinct from this policy. The fact that a criminal complaint has been filed, prosecuted, or dismissed will not prevent Colgate from pursuing disciplinary action.