Actual knowledge means notice of sexual harassment or allegations of sexual harassment to Ohlone’s Title IX Coordinator or any Ohlone official who has authority to institute corrective measures on behalf of Ohlone. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of Ohlone with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of Ohlone. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator as described in 34 CFR § 106.8(a).
Ohlone has adopted the “Affirmative Consent” standard.
“Affirmative consent” “means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that the person has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.” (Education Code 67386(a)(1)).
“Consent” must be informed, voluntary, and mutual, and can be withdrawn at any time. There is no consent when there is force, expressed or implied, or when coercion, intimidation, threats, or duress is used. Whether a person has taken advantage of a position of influence over another person may be a factor in determining consent. Silence or absence of resistance does not imply consent. Past consent to sexual activity with another person does not imply ongoing future consent with that person or consent to that same sexual activity with another person.
It is not a valid excuse that the accused believed that the complainant consented to the sexual activity when the accused's belief in affirmative consent arose from the accused’s intoxication or recklessness or when the
accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented. (Education Code 67386(a)(2)).
If a person is mentally or physically incapacitated or impaired so that such person cannot understand the fact, nature, or extent of the sexual situation, there is no consent; this includes impairment or incapacitation due to alcohol or drug consumption that meets this standard, being asleep or unconscious, or being unable to communicate due to a mental or physical condition. (Education Code 67386(a)(4)).
The complainant is an individual who is alleged to be the victim of conduct that could constitute sexual harassment or sexual misconduct, regardless of whether the complainant in fact files a complaint or the complaint is filed by a third-party or by the Title IX Coordinator.
Ohlone is required to treat a person as a complainant any time Ohlone has noticed that the person is alleged to be the victim of conduct that could constitute sexual harassment, regardless of whether the person themselves or a third-party reports and regardless of whether the complainant ever chooses to file a formal complaint.
Document Filed by a Complainant
The phrase “document filed by a complainant” means a document or electronic submission (such as by e-mail or through an online portal provided for this purpose by Ohlone) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.
Education Program or Activity
An education program or activity includes locations, events, or circumstances over which Ohlone exercises substantial control over both the respondent and the context in which the sexual harassment or sexual misconduct occurs, and also includes any building owned or controlled by a student organization that is officially recognized by Ohlone. This includes on-campus and off-campus programs or activities that meet this definition.
A formal complaint is a document filed by a complainant (see definition above) or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that Ohlone investigate the allegation. The complaint must state that at the time of filing a formal complaint, a complainant was participating in or attempting to participate in Ohlone’s education program or activity.
A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, or by using the contact information listed for the Title IX Coordinator. [LINK TO SUBPAGE 1]
Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or a party during a grievance process [LINK TO SUBPAGE #11 (Fair Grievance Process) IN THIS DOCUMENT], and must comply with requirements for Title IX personnel to be free from conflicts and bias.
Sexual harassment is prohibited. The forms of prohibited conduct below cover both sex-based harassment, including but not limited to sexual harassment, sexual assault, and sexual exploitation, as well as harassment based on actual or perceived gender identity, gender expression, and nonconformity with gender stereotypes.
- No person may engage in sex-based harassment that creates a hostile environment in or under any program or activity of this College.
- No person who is an employee or agent of this College (including a student employee) may condition a decision or benefit on a student’s submission to sex-based harassment (regardless of whether the student resists and suffers the threatened harm or submits and avoids the threatened harm).
The respondent means an individual who has been reported to be the perpetrator of the conduct that could constitute sexual harassment or other sexual misconduct.
Sexual Harassment Definitions (State Education Code)
§ 212.5. Sexual harassment
“Sexual harassment” means 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 conditions:
(a) Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress.
(b) Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.
(c) 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.
(d) 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 educational institution.
66262.5. (a) (1) “Sexual harassment” has the same meaning as defined in Section 212.5 and includes sexual battery, sexual violence, and sexual exploitation.
(2) Sexual harassment of students is a form of sex discrimination prohibited by Section 66270.
(b) For purposes of this chapter, the following terms have the following meanings:
(1) “Sexual violence” means physical sexual acts perpetrated against a person without the person’s affirmative consent, as defined in paragraph (1) of subdivision (a) of Section 67386. Physical sexual acts include both of the following:
(A) Rape, defined as penetration, no matter how slight, of the vagina or anus with any part or object, or oral copulation of a sex organ by another person, without the consent of the victim.
(B) Sexual battery, as defined in paragraph (2).
(2) “Sexual battery” means the intentional touching of another person’s intimate parts without consent, intentionally causing a person to touch the intimate parts of another without consent, or using a person’s own intimate part to intentionally touch another person’s body without consent.
Sexual Exploitation (Ed Code 66262.5(b)(3))
“Sexual exploitation” occurs when a person takes sexual advantage of another person for the benefit of anyone other than that person without that person’s consent. Examples of behavior that could rise to the level of sexual exploitation include:
- Prostituting another person;
- Trafficking of another person, defined as the inducement of a person to perform a commercial sex act, or labor or services, through force, fraud, or coercion.
- Recording images (e.g., video, photograph) or audio of another person’s sexual activity or intimate body parts, without that person’s consent;
- Distributing images (e.g., video, photograph) or audio of another person’s sexual activity or intimate body parts, if the individual distributing the images or audio knows or should have known that the person depicted in the images or audio did not consent to such disclosure; and
- Viewing another person’s sexual activity or intimate body parts in a place where that person would have a reasonable expectation of privacy, without that person’s consent, and for the purpose of arousing or gratifying sexual desire.
Sexual Harassment Definitions (Title IX)
Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
- An Ohlone employee conditioning the provision of an aid, benefit, or service of Ohlone on an individual’s participation in unwelcome sexual conduct;
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Ohlone’s 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), or “stalking” as defined in 34 U.S.C. 12291(a)(30).
A. Sex-Based Harassment
“Sex-based harassment” includes sexual harassment and gender-based harassment.
B. Sexual Harassment
“Sexual harassment” includes unwelcome conduct of a sexual nature, including but not limited to unwelcome sexual advances; requests for sexual favors; or other verbal or nonverbal conduct of a sexual nature, including rape, sexual assault, and sexual exploitation. In addition, depending on if the facts meet the legal definitions, dating violence, domestic violence, and stalking are also forms of sexual harassment.
C. Gender-Based Harassment
“Gender-based harassment” is unwelcome conduct of a nonsexual nature based on a student’s actual or perceived sex, including conduct based on actual or perceived gender identity, gender expression, and nonconformity with gender stereotypes.
D. Unwelcome Conduct
Conduct is considered “unwelcome” if the student did not request or invite it and considered the conduct to be undesirable or offensive.
Unwelcome conduct may take various forms, including name-calling, graphic or written statements (including the use of cell phones, Social Media, or the Internet), or other conduct that may be physically threatening, harmful, or humiliating. Unwelcome conduct does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Unwelcome conduct can involve persons of the same or opposite sex.
Participation in the conduct or the failure to complain does not always mean that the conduct was welcome. The fact that a student may have welcomed some conduct does not necessarily mean that a student welcomed other conduct. Also, the fact that a student requested or invited conduct on one occasion does not mean that the conduct is welcome on a subsequent occasion.
E. Hostile Environment
A “hostile environment” exists when sex-based harassment is sufficiently serious to deny or limit the student’s ability to participate in or benefit from the College’s programs or activities.
A hostile environment can be created by anyone involved in a College’s program or activity (e.g., administrators, faculty members, students, and campus visitors).
In determining whether sex-based harassment has created a hostile environment, the College considers the conduct in question from both a subjective and objective perspective. It will be necessary, but not enough, that the conduct was unwelcome to the student who was harassed. But the College will also need to find that a reasonable person in the student’s position would have perceived the conduct as undesirable or offensive in order for that conduct to create or contribute to a hostile environment.
To make the ultimate determination of whether a hostile environment exists for a student or students, the College considers a variety of factors related to the severity, persistence, or pervasiveness of the sex-based harassment, including: (1) the type, frequency, and duration of the conduct; (2) the identity and relationships of persons involved; (3) the number of individuals involved; (4) the location of the conduct and the context in which it occurred; and, (5) the degree to which the conduct affected one or more student’s education.
The more severe the sex-based harassment, the less need there is to show a repetitive series of incidents to find a hostile environment. A series of incidents may be sufficient even if the sex-based harassment is not particularly severe.
First Amendment Considerations
This policy does not impair the exercise of rights protected under the First Amendment or other Constitutional protections. The College’s sexual misconduct policy prohibits only sex-based harassment that creates a hostile environment. In this and other ways, the College applies and enforces this policy in a manner that respects the First Amendment rights of students, faculty, and others.
Sexual Violence: Definitions of Dating Violence, Domestic Violence, Sexual Assault, Rape, and Stalking
Dating violence. Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.
(i) 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.
(ii) For the purposes of this definition—
(A) Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
(B) Dating violence does not include acts covered under the definition of domestic violence.
(iii) ... any incident meeting this definition is considered a crime for the purposes of Clery Act reporting. (34 CFR §668.46(a))
Domestic violence. (i) A felony or misdemeanor crime of violence committed—
(A) By a current or former spouse or intimate partner of the victim;
(B) By a person with whom the victim shares a child in common;
(C) By a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner;
(D) 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
(E) 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.
(ii) ... any incident meeting this definition is considered a crime for the purposes of Clery Act reporting. (34 CFR §668.46(a))
Sexual assault. An offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI's UCR program .... (34 CFR §668.46(a)), or a violation of “Affirmative Consent” (Education Code 67386(a)(1)).
Sexual crimes include actual or attempted sexual contact with another person without that person’s consent. Sexual assault or battery includes, but is not limited to:
• Intentional touching of another person’s intimate parts without that person’s consent; or
• Other intentional sexual contact with another person without that person’s consent; or
• Coercing, forcing, or attempting to coerce or force a person to touch another person’s intimate parts without that person’s consent; or
Rape includes an act of sexual intercourse: (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another, (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused, including because the victim: (A) Was unconscious or asleep, (B) Was not aware, knowing, perceiving, or cognizant that the act occurred, (C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact. (D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose, (5) Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, (6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, such as a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death, and/or (7) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. (Cal. Penal Code §261.)
Stalking. (i) Engaging in a course of conduct directed at a specific person that would cause a reasonable person to—
(A) Fear for the person's safety or the safety of others; or
(B) Suffer substantial emotional distress.
(ii) For the purposes of this definition—
(A) 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.
(B) Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.
(C) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
(iii) ... any incident meeting this definition is considered a crime for the purposes of Clery Act reporting. (34 CFR §668.46(a))
“Supportive measures” means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed.
Such measures are designed to restore or preserve equal access to Ohlone’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties, to protect the safety of Ohlone’s educational environment, or to deter sexual harassment.
Supportive measures may include:
• extensions of deadlines or other course-related adjustments,
• modifications of work or class schedules,
• arranging campus escort services,
• mutual restrictions on contact between the parties,
• changes in work or housing locations,
• leaves of absence,
• increased security and monitoring of certain areas of the campus, and
• other similar measures.
Ohlone must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair Ohlone’s ability to provide the supportive measures.
The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.
Ohlone will offer supportive measures.