Sexual misconduct, in any form, is a serious violation of College and community standards, and it will not be tolerated at Kenyon. Sexual misconduct endangers the environment of mutual respect. It is considered an act of aggression and coercion, not an expression of sexual intimacy.
Persons of any sex or sexual orientation can be subject to and capable of sexual misconduct. Sexual misconduct can occur between people of the same gender. It can occur among "couples" involved in a romantic relationship. The College policy on sexual misconduct reflects the serious intent of Kenyon to provide resources and recourse for individuals whose rights may have been violated by an act of sexual misconduct. Sexual misconduct may constitute a form of sex or gender discrimination, which is prohibited.
Campus Senate will review this policy and evaluate its effectiveness every fourth year. It is scheduled for review again in the 2015-16 academic year.
"Coercion" is unreasonable pressure for sexual activity, such as through blackmail, threats, or force.
"Consent" is knowing and voluntary permission, given by persons of legal age, who are awake and conscious, and who have the capacity to reasonably understand the nature of their situation. For more on consent, see below.
"Force" is the use of physical violence and/or imposing on someone physically to gain sexual access. It includes, but is not limited to, threats or intimidation that result in the person's involuntary permission for the activity.
"Incapacity" is a state in which individuals cannot make rational, reasonable decisions and cannot give consent because they lack the capacity to understand the "who, what, when, where, why, or how" of their sexual interaction.
"Sexual activity" includes sexual contact, sexual intercourse, and all types of sexual misconduct.
"Sexual contact" is an intentional touch by one person of another person's body in a sexual way. This can occur "skin on skin" or through clothing, or by use of an object to touch the person. Sexual contact includes, but is not limited to, intentional contact with the breasts of a female, pubic region, buttock, groin, or genitals; touching another with any of these body parts; making another touch you or themselves with or on any of these body parts; and any intentional bodily contact in a sexual manner, though not involving contact with, of, or by any of these body parts.
"Sexual intercourse" includes, but is not limited to, vaginal intercourse, anal intercourse, fellatio, cunnilingus, or inserting any object or body part into the vagina or anus of another person.
"Sexual misconduct" includes sexual harassment, non-consensual sexual contact, endangering the health of another person as set forth herein below, sexual exploitation, and non-consensual sexual intercourse.
UNDERSTANDING THE CONSENT REQUIREMENT
It is Kenyon College's expectation that there must be consent prior to and during sexual activity of any type. Consent must be clear, voluntary, and knowing. The clearest form of consent is verbal, sober consent, where the student's physical behavior is consistent with such consent. Other forms of consent, including non-verbal consent such as initiating or actively participating in sexual activity, may not be as clear. Silence does not constitute consent. Failing to object is also not consent. Anything but clear, knowing, and voluntary consent is equivalent to a lack of consent.
Consent must be given for each form of sexual activity that takes place, and this consent must be given immediately before each sexual activity occurs. For example, a woman who consents to vaginal intercourse and cunnilingus has approved participation in these sexual activities, but she has not consented to participation in other sexual activities, such as anal intercourse or fellatio. Both people need to be specific about the sexual activities to which they are consenting. Any form of sexual activity to which both people do not clearly consent is misconduct. Therefore, where a student verbally consents but acts in a contrary manner, consent is not clear, and continuing with the activity may constitute misconduct.
To give consent, individuals must be awake, of legal age, and have the capacity to reasonably understand the nature of their actions at the time. Individuals who are 25incapacitated (for example due to drugs or alcohol) or are subject to force, threats, or coercion cannot give knowing and voluntary consent. There is no requirement that a party must resist a sexual advance or request, but resistance is a clear demonstration of non-consent. Where force is alleged, the presence of consent is not demonstrated by the absence of resistance. Sexual activity that is forced is by definition non-consensual.
Consent for any and all sexual activities may be withdrawn by either party at any time before the completion of the sexual activity (or activities) in question. To withdraw consent once it has been given, normally a clear and strong verbal statement is required. The main exception to this rule is that consent is automatically withdrawn by a person who is no longer capable of giving consent, for example due to falling asleep or passing into a state of unconsciousness.
Both parties are required to obtain consent before engaging in sexual activity. Where one student clearly is the initiator of sexual activity (regardless of gender) and the other student clearly is the responder, then a greater burden falls on the initiator of the sexual activity to ensure that consent has been granted by the responding student. In situations where both students are active in initiating sexual activity, the responsibility for ensuring that consent is given falls on both students equally.
If neither student sought or obtained the partner's consent, but one person was very active in initiating the sexual activity, and the other person was not, then the student actively initiating sexual activities would generally be subject, if a Student Conduct Review Board determines a violation has occurred, to the sanctions provided for sexual misconduct.
Note that where both students granted non-verbal consent by initiating and/or actively participating in sexual activity, neither would be responsible for sexual misconduct even though no clear verbal consent was given. If such a case appears before the Student Conduct Review Board and that Board believes a penalty is warranted, then a penalty less severe than suspension would seem to be appropriate.
POLICY EXPECTATIONS WITH RESPECT TO ALCOHOL AND DRUGS
The Kenyon College sexual misconduct policy is built on the requirement of obtaining clear, knowing, and voluntary consent. The use of alcohol and other drugs impairs judgment and undermines the ability to make good decisions, including decisions about sexual activity. Alcohol or other drug use can place the capacity to consent in question. Sober sex is less likely to raise questions about whether a student has the capacity to consent.
Alcohol and drug use does not mean sexual activity is prohibited. Students need to realize, however, that when they engage in sexual activity after consuming alcohol or using other drugs, they are acting in a potentially risky and harmful manner. Moreover, the risks and dangers become more real when students engage in sexual activity after becoming intoxicated. The use of alcohol or drugs does not, in and of itself, negate a student's ability to give consent, nor does it remove a student's responsibility to communicate his or her feelings and ensure that any consent given is valid.
A level of intoxication can be reached, short of losing consciousness, in which a student's judgment is so impaired that he or she is not capable of giving valid consent. It is the task of the Student Conduct Review Board to determine if either party lacked the capacity to reasonably understand the situation due to alcohol or drug use and thus lacked the capacity to provide clear, knowing, and voluntary consent. Individuals who consent to sex must be able to understand what they are doing.
The use of alcohol and/or drugs does not minimize a student's responsibility for sexual misconduct and does not excuse the student's behavior. In particular, it does not 26mitigate or nullify a charge of sexual assault or any other form of sexual misconduct. Alcohol consumption and drug use can create power differentials when students are at differing states of intoxication. The Board will consider whether any power differential existed between students at differing states of intoxication.
OVERVIEW OF POLICY EXPECTATIONS WITH RESPECT TO CONSENSUAL RELATIONSHIPS
There are inherent risks in any romantic or sexual relationship. For the personal protection of members of this community, relationships in which power differentials are inherent (faculty-student, staff-student, administrator-student) are generally discouraged.
CATEGORIES OF SEXUAL MISCONDUCT
Sexual misconduct is prohibited, regardless of the sex or sexual orientation of the parties involved. Students can be accused of, and charged with, allegedly violating more than one category of sexual misconduct for their behavior in a single incident. To report sexual misconduct of any type, please review the section below entitled, "What To Do If You Believe You Have Been A Victim Of Sexual Misconduct.
Kenyon College is committed to providing its students, faculty, and staff a community and place of study that is free of discrimination. Sexual harassment is a form of prohibited sex discrimination. Sexual harassment is against the law and in violation of Title IX of the Education Amendments of 1972.
Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment consists of unwelcome and unsolicited sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when 1) submission to such conduct is used as the basis for educational decisions or is made a condition of participation in a school program or activity; or 2) such conduct (a) has the purpose or effect of substantially or unreasonably interfering with a student's academic performance, (b) is sufficiently severe, persistent or pervasive that it adversely and unreasonably affects a student's participation in or receipt of benefit from an educational program, or creates an intimidating, hostile or offensive educational environment; or c) otherwise adversely and unreasonably affects a student's learning opportunities.
Sex discrimination and sexual harassment can take many forms, including but not limited to the following:
• repeated and unwanted comments that stigmatize another on the basis of one's sex;• subtle pressure for sexual activity;• sexually harassing statements made through electronic communication;• graphic comments about a person's body;• sexually explicit pictures or suggestive objects placed in a living or work space thata reasonable person would find offensive; • unwanted propositions of a sexual nature, or demands for sexual favors;• stalking;• non-consensual sexual intercourse;• non-consensual sexual contact;• sexual exploitation;• endangering the health of another person by exposing him or her to a sexuallytransmitted disease or condition without notifying the person in advance; or• unwanted telephone calls or e-mail with sexually explicit content.
Off-campus misconduct between students may lead to the creation of an on-campus hostile environment that constitutes sexual harassment. Therefore, student-on-student sexual harassment complaints that involve off-campus activities will be processed in the same manner as other complaints.
Penalties. Any student found responsible for violating the policy on sexual harassment will likely receive a recommended sanction ranging from warning to dismissal, depending on the severity of the incident, and taking into account any previous campus conduct code violations.
NON-CONSENSUAL SEXUAL CONTACT
Non-consensual sexual contact is sexual contact, however slight, without consent. "Sexual contact" is an intentional touch by one person of another person's body in a sexual way and in an inappropriate context. This can occur "skin on skin" or through clothing, or by use of an object to touch the person. Sexual contact includes, but is not limited to, intentional contact with the breasts of a female, pubic region, buttock, groin, or genitals; touching another with any of these body parts; making another touch someone else or themselves with or on any of these body parts; and any intentional bodily contact in a sexual manner, though not involving contact with, of, or by any of these body parts. Exactly what constitutes non-consensual sexual contact may vary according to the context and the nature of the relationship, if any, between the people involved.
Penalties. Because of the range of behaviors it covers, there is no recommended penalty for non-consensual sexual contact. However, dismissal from the College should be considered as the punishment in severe cases of non-consensual sexual contact.
ENDANGERING THE HEALTH OF ANOTHER PERSON
If a student knows (or has reason to believe) that he or she is infected with a disease or condition that can be transmitted sexually, that student has an obligation to inform potential sexual partners of his or her condition before engaging in sexual activity that may transmit the disease or condition. If the infected student fails to do this, then he or she is responsible for endangering the health of another person.
Penalties. The recommend ed penalty for endangering the health of another person is suspension from the College for a period of at least two semesters. However, dismissal from Kenyon should be considered as the punishment in severe cases of endangering the health of another person.
Sexual exploitation occurs when a student takes non-consensual or abusive sexual advantage of another for his/her 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 student;• non-consensual video or audio-taping of sexual activity;• going beyond the boundaries of consent (such as letting your friends hide in thecloset to watch you having consensual sex); • engaging in voyeurism;• Exposing one's genitals in non-consensual circumstances;• inducing another to expose their genitals;28• Sexually-based stalking and/or bullying may also be forms of sexual exploitation;• Possession, use, administration, or distribution of a date rape drug, including butnot limited to Rohypnol, Ketamine, GHB, and Burundanga. More information on these drugs can be found at http://www.911rape.org. Penalties. The recommended penalty for violating the policy on sexual exploitation is a sanction ranging from warning to dismissal, depending on the severity of the incident, and taking into account any previous campus conduct code violations.
5. NON-CONSENSUAL SEXUAL INTERCOURSE
Non-consensual sexual intercourse occurs when a student engages in sexual intercourse, however slight, with another student without that person's consent. "Sexual intercourse" includes, but is not limited to, vaginal intercourse, anal intercourse, fellatio, cunnilingus, or inserting any body part or object into the vagina or anus of another person. Non-consensual sexual intercourse includes the sexual conduct known as sexual assault or rape, whether forcible or non-forcible. Forcible rape is the severest form of sexual assault. Either males or females can be aggressors in sexual assault, and sexual assault can occur in same-sex relationships.
Penalties. Cases where force or threats are used, or where the victim is asleep or unconscious, or when intoxicants are forcibly, deceitfully, or surreptitiously administered to the victim by the perpetrator or the perpetrator's associates are particularly severe cases of sexual assault. In such cases, the required penalty for the responsible party is dismissal (permanent removal) from the College. For other cases of non-consensual sexual intercourse, the usual penalty for the responsible party should be either dismissal from the College or suspension from the College for a period of at least two semesters or for as long as the victim is enrolled as a student in the College (whichever is longer).
WHAT TO DO IF YOU BELIEVE YOU HAVE BEEN A VICTIM OF SEXUAL MISCONDUCT
If a Kenyon student believes she or he has been, or may have been, a victim of sexual misconduct, the student should seriously consider pursuing the options listed below. These options can be pursued individually or in any combination the student chooses.
a. Seek counseling and advice. A student can seek advice from anyone-a friend, a faculty member, or a relative. However, people in some positions have the training, knowledge, and experience to be particularly helpful sources of counseling and advice for students who believe they are, or might have been, victims of sexual misconduct. Further, communications with many of these individuals are protected as confidential under state law. While on campus, students can see persons in the following positions for confidential advice:• A member of the College's counseling staff at 740.427. 5643• A member of the Health Services staff at 740.427. 5525• One of the College's sexual misconduct advisors• A member of the clergy
Local counselors, mental health professionals, and members of the clergy in the community may also be resources for counseling and advice. Referrals to such individuals may be obtained by contacting:
• Moundbuilders Guidance Center, 740-397-0442
• Knox Community Hospital, 740-393-9000• New Directions, 740-397-4357
The list below names other persons on campus who are good sources of advice and information for students who think they have been, or might have been, victims of sexual misconduct. The people on this list do NOT have positions that give them the right of legal confidentiality, but they are especially useful sources of information about the College's rules and conduct review procedures regarding sexual misconduct:
• Dean of Students Henry Toutain, 740-427-5136• Associate Dean of Students Tacci Smith, 740-427-5923• Associate Dean of Student Chris Kennerly, 740-427-5160• Director, Office of Student Rights and Responsibilities Samantha Hughes,740-427-5140• Director, Equal Opportunity (DEO) Mariam El-Shamaa, 740-427-5820• Community advisors, 740-427-5142
Under Ohio law, these individuals are required to promptly report suspected felonies to law enforcement authorities. Whether conduct is a felony, is only a misdemeanor, or is no crime at all is determined under Ohio criminal law. Examples of sexually-based felonies under Ohio law include but are not limited to rape, sexual battery, gross sexual imposition, importuning, voyeurism (against a minor victim), and certain charges of public indecency (for example after multiple offenses or where the crime was likely to be viewed by a minor). For more information on the reporting requirements for felonies, see "Kenyon's Sexual Misconduct Policy and Ohio's Criminal Laws," below.
b. File a written complaint to start College conduct review proceedings. Students who believe that they have been, or may have been, victims of any type of sexual misconduct are encouraged to contact the College's Director of Equal Opportunity (DEO), 740.427.5820, as promptly as possible after the alleged misconduct occurs to discuss filing a complaint. Conversations will be kept confidential to the extent possible, consistent with the College's legal obligations, considerations of safety, and the necessity of investigating the allegations.
If the complainant decides to take no further action after her or his meeting with the DEO, this decision will be documented for the record. The College reserves the right to investigate and address allegations of sexual misconduct, even if no complaint is filed and even if the complainant does not wish to pursue the disciplinary process; however, any response by the College may be hindered by the complainant's wishes for anonymity and/or inaction.
Note that intentionally filing a false complaint or otherwise intentionally providing false information during a sexual misconduct investigation/proceedings may subject a student to disciplinary action.
Students who believe they have been victims of sexual misconduct are urged to make a written report/complaint. To begin the formal complaint process, students should contact the DEO, the dean of students, the associate dean of students, the director of the Office of Student Rights and Responsibilities, or the Office of Campus Safety. All complaints of sexual misconduct must be filed with the DEO.
Students who file a complaint may file the complaint through a formal or informal process. The informal process consists of the DEO working to informally mediate the 30complaint. If such an informal complaint is made, the DEO will act promptly to meet with the parties involved and attempt to come to a mutually agreeable resolution. Note that informal mediation is not appropriate in all cases, and will not be used in situations where it is inappropriate, including those situations involving non-consensual sexual intercourse. At any point, a complainant may decide to end the informal mediation process and pursue a formal complaint by providing written notice to the DEO.
Once a formal written sexual misconduct report/complaint has been made, the College will process the complaint through the conduct review process. Note that complaints made against faculty and staff members are handled slightly differently according to the Faculty Handbook or the Administration and Staff Handbook, as appropriate. The DEO can explain the procedures that will be followed in that situation. With regard to sexual misconduct complaints against students, the following will occur:
1. The written report/complaint will be shared with the DEO, the director of campus safety, the dean of students, the associate dean of students, and director of the Office of Student Rights and Responsibilities.
2. Where non-consensual sexual intercourse is alleged, "no contact" orders will be promptly issued in writing to all parties.
3. If, in the discretion of the Dean of Students and/or the DEO, it is appropriate to take immediate steps to protect the complainant in the educational setting pending the outcome of the conduct review process, the College will ensure such discretionary steps are taken.
4. The Director of the Office of Student Rights and Responsibilities will place the matter into the formal College conduct review process, assigning the matter to one of the student affairs staff members who serves as a conduct hearing officer. The complaint will be promptly investigated as provided for in the conduct review process. The investigator will gather any relevant documents, statements, and other evidence, and conduct necessary interviews. A full description of the conduct review process may be found in the Student Handbook.
5. The Director of the Office of Student Rights & Responsibilities will contact the student who filed the report/complaint to discuss the College conduct review process with her or him. If the case goes to a hearing before the Student Conduct Review Board, the student bringing the complaint will serve as complainant, and she or he will be responsible for presenting her or his case. The Director of the Office of Student Rights & Responsibilities will work closely with the complainant, as well as the Respondent, to advise the students about the conduct review process and presenting the case. In general, a case cannot go forward if the complainant chooses not to testify on her or his own behalf.
6. The complainant and respondent have the right to appeal decisions made pursuant to the conduct review process. The grounds for appealing decisions are outlined in the conduct review process, which may be found in the Student Handbook.
7. After the conduct review process is completed, the College will take any additional steps necessary to protect students from sexual misconduct and other forms of prohibited sex discrimination. Where sexual misconduct is found to have created a hostile environment, the College will take immediate action to eliminate the hostile environment, prevent its recurrence, and address its effects.
8. Records will be maintained regarding the complaint, the investigation, evidence presented during the disciplinary process, the outcome of the disciplinary process, the outcome of any appeal, and any temporary and permanent remedies put in place by the College to address the misconduct. Such records will be maintained 31by the DEO and, if a student is found responsible for sexual misconduct, by the Office for Student Rights and Responsibilities for at least sixteen years after the last party graduates, leaves the employment of the College, or otherwise is no longer a student or employee. Such records will be accessible only to the extent permissible under applicable records confidentiality and disclosure laws, including the Family and Educational Rights and Privacy Act, 20 U.S.C. 1232g, and the Clery Act, 20 U.S.C. 1092(f).
c. File criminal charges in the Knox County legal system. Students who believe they have been, or may have been, the victim of a sex crime are encouraged to consider filing charges in the Knox County criminal justice system. The director of campus safety (740.427.5109), can advise students on this process and assist anyone who wants to make formal legal charges by contacting the appropriate persons in the local law enforcement community. Criminal charges may be pursued in conjunction with the informal or formal complaint process.The College may need to temporarily delay its own investigation while the police are gathering evidence, but once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the College will promptly resume and complete its investigation.
KENYON'S SEXUAL MISCONDUCT POLICY AND OHIO'S CRIMINAL LAWS
According to Ohio law, information about alleged felonies must be reported to civil authorities unless the information is shared with a physician, a member of the clergy, or a trained counselor, including the College's sexual misconduct advisors. Other Kenyon officers, including deans, faculty members who are not sexual misconduct advisors, and members of the campus safety staff, are obligated to report alleged felonies to the Knox County Sheriff's Department, usually through the Office of Campus Safety. This latter reporting requirement applies to all Kenyon student employees as well. As a practical matter, prosecuting attorneys typically will not bring charges against the accused in a sexual assault case unless the accuser is willing to support the case and testify against the accused.
In compliance with the applicable federal and Ohio laws, the College reserves the right to notify authorities and the local community of any threatening situation and to take appropriate action without the consent of the victim. Kenyon reserves the right to take action regarding a student or a student group whenever an activity is viewed as threatening or injurious to the well-being or property of members of the College community or to Kenyon property or the orderly functioning of the College.
A student charged with sexual misconduct by Kenyon can be prosecuted under Ohio criminal statutes and also disciplined under the College's policies, rules, and regulations. These actions are separate, and they are not dependent upon one another. On campus, cases of sexual misconduct are resolved through the Kenyon conduct review process, and they are normally heard by the Student Conduct Review Board. Campus proceedings will not be unduly delayed even if legal proceedings are also in progress, as these are distinct processes.
RETALIATION IS PROHIBITED
The College prohibits retaliation against any individual for making a report or complaint regarding sexual misconduct of any type or for participating in an investigation 32and/or hearing regarding such a report or complaint. If a student feels he or she has been retaliated against in any way for such activity, he or she should immediate report such retaliation to the DEO. The College will investigate the allegations and, where appropriate, take disciplinary action against the person who retaliated.
KENYON'S POLICY ON RELEASING INFORMATION ARISING FROM SEXUAL MISCONDUCT CASES
In conduct review cases arising out of a formal sexual misconduct complaint (including non-consensual sexual intercourse, sexual exploitation, non-consensual sexual touching, endangering the health of another person, or sexual harassment), the complainant and respondent both have the right to be notified of the final results of the conduct review hearing and any appeal, if applicable. Due to federal student privacy laws, such notification to the complainant will include only the name of the accused student, the violation that was committed (if any), and, to the extent permissible by federal law, any sanction or penalty imposed by the college on the student.If the student is found responsible for violating the College's non-consensual sexual intercourse policy through Kenyon's conduct review process, the College may disclose to the public the final results of the hearing proceeding after any internal avenue of appeal has been exhausted. Such information shall be limited to the name of the responsible student, the violation for which the student was held responsible, and any sanction/penalty imposed by the College on the student. This information may be released unless the victim is opposed to the release of the information. In case of this opposition, all information except the name of the responsible student may be released to the public. Kenyon will not disclose the name of any other student, including a victim or witness, without the prior written consent of that other student.
Definition of Sexual Assault
Cases where force or threats are used, or where the victim is asleep or unconscious, or when intoxicants are forcible, deceitfully, or surreptitiously administered to the victim by the assailant or the assailant's associates are particularly severe cases of Sexual Assault. In such cases, the required penalty for the responsible party is Dismissal (permanent removal) from the College.
For other cases of Sexual Assault the usual penalty for the responsible party should be either Dismissal from the College or Suspension from the College for a period of at least two semesters or for as long as the victim is enrolled as a student in the College (whichever is longer).
--An apparent exception to this policy would be a case where neither person gave verbal consent and where both people were clearly active in initiating and participating in all forms of sexual relations that occurred. Although each student would be in violation of Kenyon's consent policy, neither would appear to be responsible of Sexual Assault. If such a case appears before the Conduct Review Board and the Conduct Review Board believes a penalty is warranted, then a penalty less severe than Suspension would seem to be appropriate.
Definition of the Offense
Definition of the Offense