IV. Prohibited Conduct Under This Policy
Discrimination
Discrimination means material, adverse treatment of a person or group on the basis of race, color, national or ethnic origin, sex, age, disability, or veteran’s status or any other criteria protected by applicable law. Discrimination occurs when persons are excluded from participation in, or denied the benefits of, any University program or activity on the basis of a protected status. Notwithstanding the foregoing, this definition of discrimination does not include differential treatment explicitly permitted by law (such as the law’s allowance for sex-segregated dormitories). Furthermore, this definition shall not, in any way, limit the University’s right to maintain its Catholic character and to implement programs, policies, and practices in furtherance of its religious identity and objectives as specifically allowed by federal law, including the First Amendment to the U.S. Constitution.
Any complaint of alleged discrimination will be handled through this policy, regardless of whether other issues are implicated. For example, if in making a complaint of an academic nature, a student alleges different treatment as a result of the student’s status in a protected class, the different treatment will be investigated using this policy, rather than handling the issue through another University academic appeal process.
Discriminatory Harassment
Discriminatory harassment means conduct that creates an intimidating or hostile living, learning, or working environment at Franciscan on the basis of race, color, national or ethnic origin, sex, age, disability, veteran’s status, or any other criteria protected by applicable law. It includes oral, written, physical, or graphic conduct that substantially interferes with an individual’s work, education, or participation in University programs or activities. Discriminatory harassment means unwelcome advances, requests for favors, and other oral, written, physical, or graphic conduct or communication based on race, color, national or ethnic origin, sex, age, disability, veteran’s status, or any other criteria protected by applicable law. Harassment rises to the level of discriminatory harassment when:
1. Submission to the conduct or communication is made a term or condition, either explicitly or implicitly, to obtain or continue employment,
2. Submission to or rejection of the conduct or communication by a person is used as a factor in decisions affecting the person’s employment, education, or housing, or
3. The conduct or communication has a purpose or effect of:
(i) Substantially interfering with the person’s living, learning, or working environment, or
(ii) Creating what a reasonable person would perceive as an intimidating, hostile, or offensive living, learning, or working environment.
Some examples of conduct that might constitute discriminatory harassment include any of the following acts or behaviors related to an individual’s race, color, national or ethnic origin, sex, age, disability, or veteran’s status (or any other criteria protected by applicable law):
• Epithets, "jokes," offensive or derogatory comments, or other verbal or physical conduct
• Ethnic slurs, workplace graffiti, or other offensive conduct
• Making, posting, mailing, or circulating demeaning or offensive pictures, cartoons or other materials in the workplace or using University equipment to circulate such materials.
In determining whether conduct rises to the level of creating a hostile environment, the University will consider the totality of the circumstances, including, but not limited to, the nature and severity of the conduct, the duration of the conduct, and whether the conduct is a part of a pattern.
Bullying
Bullying constitutes discriminatory harassment when it is motivated by an individual or group’s race, color, national or ethnic origin, sex, age, disability, veteran’s status, or any other criteria protected by applicable law. Bullying is verbal, physical, social, or psychological behavior that is harmful and involves the misuse of power by an individual or group toward one or more persons. Bullying consists of abusive conduct relative to acts, omissions, or both, that a reasonable person would find hostile, based on the severity, nature, and frequency of the conduct and without regard to the method of delivery, such as verbal, written, graphic, electronic, or physical act. Bullying that falls outside this policy (i.e., is not based on membership to a protected class) may nonetheless violate other University policies.
Hazing
Hazing is defined broadly in the Student Handbook as “any activity expected of someone joining a group (or to maintain full status in a group) that humiliates, degrades, or risks emotional and/or physical harm, regardless of the person’s willingness to participate, or that destroys or removes public or private property, or that otherwise conflicts with the academic or religious mission of the University.” Hazing is covered by this policy when it is motivated by a person’s race, color, national or ethnic origin, sex, age, disability, veteran’s status, or any other status protected by applicable law.
Sexual Misconduct
This is a broad term that comprises a wide range of behavior, including, but not limited to, sexual harassment, sexual assault, sexual violence, dating violence, domestic violence, stalking and other forms of prohibited conduct of a sexual nature. The term “sexual misconduct” is used throughout the remainder of this policy when referring collectively to these types of prohibited conduct.
It is a violation of this policy to commit or to attempt to commit these acts of sexual misconduct. Additionally, it is a violation of this policy to aid and abet another person in the commission of any sexual misconduct. The phrase “to aid and abet” is defined as any action or course of action that assists or encourages the commission of a violation under this policy.
The following are definitions of prohibited sexual misconduct under this policy:
Sexual Harassment:
For purposes of this policy, sexual harassment may include any unwelcome sexual advances, requests for sexual favors, or other unwelcome visual, physical, verbal, or written conduct of a sexual nature. Sexual harassment may be found in a single episode as well as in persistent behavior. Sexual harassment may occur between individuals of the opposite sex and individuals of the same sex. Sexual harassment includes unwelcome sexual conduct when:
• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, education, or participation in University pro- grams or activities; or
• Submission to or rejection of such conduct by an individual is used as the basis for decisions pertaining to an individual’s employment, education, or participation in University programs or activities; or
• Such conduct has the purpose or effect of interfering with an individual’s work or educational performance; or creating an intimidating, hostile, or offensive working and/or learning environment; or interfering with one’s ability to participate in or benefit from an educational program or activity.
Some examples of sexual harassment include but are not limited to:
• Unreasonable pressure for a dating, romantic, or intimate relationship
• Unwelcome sexual touching, such as kissing, hugging, rubbing, or massaging
• Pressure for sexual activity
• Unnecessary references to parts of the body
• Sexual innuendos, jokes, humor, or gestures
• Displaying sexual graffiti, pictures, videos, or posters
• Using sexually explicit profanity
• Asking about, or telling about, sexual fantasies, sexual preferences, or sexual activities
• Social media use that violates this policy
• Sending sexually explicit emails or text messages
• Giving unwelcome personal gifts such as lingerie that suggests the desire for a sexual relationship
• Commenting on a person’s body, sexual relationships, or sexual activities
• Sexual Violence: Acts of sexual violence are a particularly severe form of sexual harassment. Sexual violence in this policy refers to any intentional physical contact of a sexual nature perpetrated against a person’s will, or where a person is incapable of giving consent, that includes rape, sexual assault, sexual battery, and sexual coercion. Under this policy, sexual violence also includes sexual exploitation.
Specific examples of sexual violence include:
• Sexual penetration or touching of sexual organs that is committed by force, threat, intimidation, or otherwise without consent.
• Having sexual intercourse or sexually touching a person who is incapacitated because of drug or alcohol use, including a person who has been given any drug causing the impairment
• Exceeding the scope of sexual permission, such as having vaginal sex with a person when the person has only consented to other forms of sexual activity.
• Threatening harm or force to have sexual contact with someone who has already refused (sexual coercion).
Consent:
While all sexual contact outside the covenant of marriage is inconsistent with Catholic teaching and the University’s values, for purposes of determining whether sexual violence has occurred, “consent” is defined as positive, unambiguous, and voluntary agreement to engage in specific sexual contact throughout a sexual encounter. Consent cannot be inferred from the absence of a “no”; a verbal “yes” or some other conduct a reasonable person would understand as affirmative agreement is necessary. The following issues are critical to understanding consent to sexual activity:
• Consent to some sexual acts does not imply consent to others, nor does past consent to a given act imply present or future consent.
• Coercion, force, or intimidation, or the threat or any of these, invalidates consent.
• Consent must be ongoing throughout a sexual encounter.
• Being in a romantic relationship with someone does not imply consent to any form of sexual activity.
• Effective consent may not exist when there is a disparity in power between the parties.
• Consent can be withdrawn by verbal or physical conduct that a reasonable person would understand to indicate a desire to stop or not engage in the sexual conduct at issue.
Note: Although not necessarily a violation of this policy, certain consensual sexual activity that is lewd, indecent, or obscene, or immoral conduct or expression that violates Catholic moral teaching on sexuality, or the promotion or advocacy of such conduct or expression, may be considered a violation of other University policies.
Incapacitation:
Consent cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other condition, including an intellectual or other disability. A person is mentally or physically incapacitated when that person lacks the ability to make or act on considered decisions to engage in sexual activity. Engaging in sexual contact with a person whom you know–or reasonably should know– to be incapacitated constitutes sexual misconduct.
• Non-Consensual Sexual Activity: Non-consensual sexual activity is any intentional bodily touching of a sexual nature, however slight, with any part of the body or with any object, by any person upon another person, without consent. The definition of “sexual activity” under Ohio law can be found at Ohio Revised Code §2907.01(C) and is available at: http://codes.ohio.gov/orc 2907.01.
• Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.
• Statutory Rape: Non-forcible sexual intercourse with a person who is under the statutory age of consent under the laws of the jurisdiction in which the incident occurred. For incidents that occur outside of the U.S. (e.g., study abroad programs), Ohio law will apply in determining a violation of this policy.
• Incest: Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited according to the laws of the jurisdiction in which the crime occurred. For incidents that occur outside of the U.S. (e.g., study abroad programs), Ohio law will apply in determining a violation of this policy.
• Sexual Exploitation: Sexual exploitation is an act or omission to act that involves taking non-consensual, unjust, humiliating, or abusive sexual advantage of another, either for his/ her own advantage or to benefit or advantage anyone other than the person being exploited. Examples of sexual exploitation include but are not limited to the following:
• Prostituting another person.
• Non-consensual video, photography, or audio recording of sexual activity
• Sharing items described in the paragraph above and beyond the boundaries of consent where consent was given. For example, showing a picture to friends where consent to view it was given for oneself only.
• Observing or facilitating observation by others of sexual behavior or a state of undress of another person without the knowledge and consent of that person.
• Exposing another person to pornographic material without the person's advance knowledge or consent.
• Going beyond the boundaries of consent to sexual activity (letting your friends hide to watch you engaging in sexual activity).
• Engaging in voyeurism.
• Inducing another to expose their genitals.
• Exposing one’s genitals in non-consensual circumstances.
• Intentionally, knowingly, or surreptitiously providing drugs or alcohol to a person for the purpose of sexual exploitation.
• Dating Violence: Dating violence also constitutes sexual misconduct. It is physical violence or the threat of physical violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with an individual and where the existence of the relationship shall be determined based upon the reporting party’s statement and with consideration of the following factors: length of relationship, type of relationship, and frequency of interaction between the persons involved in the relationship. For purposes of this definition, dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
• Domestic Violence: Domestic violence also constitutes sexual misconduct. It includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of an individual, by a person with whom an individual shares a child in common, by a person who is cohabitating with or has cohabitated with an individual as a spouse or a partner, by a person similarly situated to a spouse of the individual under the domestic or family violence laws of the jurisdiction where the incident occurred, or by any other person against an adult or youth individual 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. According to Ohio law, no person shall knowingly or recklessly threaten, attempt, or cause physical harm to a family or household member (full text of Ohio Revised Code §2919.25 “Domestic Violence” is available at: http://codes.ohio.gov/orc/2919.25).
• Stalking: Stalking also constitutes sexual misconduct. The term “stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others; or to suffer substantial emotional distress. For the purposes of this definition:
(i) 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.
(ii) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
(iii) Reasonable person for purposes of the definition of stalking means a reasonable person under similar circumstances.
According to Ohio law, no person shall engage in conduct, including conduct through electronic methods of communication and interaction that causes emotional distress or causes a person to believe that the offender will physically harm them. The full text of Ohio Re- vised Code §2902.211 “Menacing by Stalking” is at: http://codes.ohio.gov/ orc/2903.211.
If an alleged victim has obtained an order of protection or restraining order or other no con- tact order against the alleged perpetrator, the alleged victim must provide such information to the Title IX/EEO Coordinator (or designee) so that the University can take all reasonable and legal action to implement the order in the University’s jurisdiction.
Retaliation
As discussed further in Section VIII, it is a violation of this policy to retaliate (directly, in- directly, or through third parties, by any action, method, or means) against any member of the University community who reports or assists in making a complaint of discrimination, harassment, or sexual misconduct, or who participates in the investigation of a complaint in any way.
Examples of retaliation include:
• Suspending or limiting a person’s involvement in an activity because of his or her participation in an investigation under this policy.
• Taking adverse academic action against a student following a report of misconduct under this policy.