Title IX Sexual Misconduct Policy

Sexual Harassment And Non-Discrimination

Below are the College’s policies as they relate to discrimination, harassment, and retaliation. In this section, you will find the following:

1. Discriminatory Harassment Policy
2. Sexual Harassment and Non-Discrimination Policy
3. Title IX Sexual Harassment and Misconduct Policy
   

Discriminatory Harassment Policy

Discriminatory Harassment refers to any unwelcome conduct based on actual or perceived status including sex, gender, race, color, age, creed, national or ethnic origin, physical or mental disability, veteran status, pregnancy status, religion, sexual orientation, or other protected status should be reported to campus officials, who will act to remedy and resolve reported incidents. When discriminatory harassment is sufficiently severe, pervasive, or persistent and objectively offensive that it unreasonably interferes with, limits, or denies the ability to participate in or benefit from the College’s educational or employment program or activities, sanctions can be imposed for the creation of a hostile environment.

Sexual Harassment And Non-Discrimination Policy

Otis College of Art and Design expects that all members of the community—students, faculty, instructors, staff, guests, and visitors— should be able to pursue their work and education in an environment free from sexual misconduct, violence, harassment, and intimidation. The College does not tolerate sexual misconduct, violence, harassment, or intimidation within the work or academic environment, as defined below.

Any sexual misconduct that unreasonably interferes with an individual’s work or academic performance or creates an intimidating, hostile, offensive, or otherwise adverse working or learning environment, can be a violation of this policy. Such examples may include, but are not limited to, the following: sexual harassment, sexual violence, sex or gender-based bullying, hazing, stalking, relationship violence, and failure to provide equal opportunity in admissions, activities, employment, or professional development.

Violations Of The College’s Sexual Harassment And Non-Discrimination Policy

Sexual misconduct is a serious offense, and such violations are subject to any combination of conduct sanctions as described in Section 7: Formal Conduct Procedures with individuals found responsible for violation of the sexual harassment and misconduct policy facing a potential sanction of College suspension or College dismissal. Deviations from this range are rare and only made where there are compelling mitigating circumstances. Suspensions, if given, are based on satisfying conditions rather than administered solely for a period of time. Predatory, pattern and/or repeat offenders face dismissal, which may also be imposed for any serious offense whether pattern, predatory or repeat offending is evidenced or not. The other forms of sexual misconduct defined below cover a range of behaviors, and therefore a range of sanctions from warning to dismissal can be applied, depending on the nature and frequency of the misconduct. 

Sexual Harrassment

This policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane, but controversial, or sensitive subject matters protected by academic freedom.

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of California regard sexual harassment as an unlawful discriminatory practice.

The section below describes the specific forms of legally prohibited harassment that are also prohibited under Otis College Policy. When speech or conduct is protected by academic freedom and/or the First Amendment, it will not be considered a violation of Otis College Policy, though supportive measures will be offered to those impacted. All offense definitions encompass actual and/or attempted offenses. Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.

Otis College has adopted the following definitions of sexual harassment in order to address the unique environment of an academic community. Two definitions are required by federal law. While they overlap, they are not identical, and they each apply, as noted.

Title VII: Sexual Harassment (State of CA definition)

Applies to situations where an employee is subjected to workplace sexual harassment or where a situation involves a residential Complainant in Otis College-provided housing.

1. Unwelcome verbal, written, graphic, and/or physical conduct;
2. that is severe or pervasive and objectively offensive;
3. on the basis of sex/gender, that
4. unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities. 

Title IX: Sexual Harassment

As an umbrella category, includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking. This definition applies to all formal complaints that fall within Title IX jurisdiction as determined by the Title IX Coordinator. To review the full definition and scope of Title IX Sexual Harassment and the formal reporting and resolution processes, go to the Title IX Sexual Harassment page. 

Title IX Sexual Harassment

The College is committed to complying with all requirements set forth by Title IX of the Education Amendments of 1972 (“Title IX”). As such, discrimination on the basis of sex or gender will not be tolerated in any of College’s education programs or activities. Such discrimination includes, but is not limited to, the following: sexual harassment; sexual violence; stalking; relationship violence; and failure to provide equal opportunity in admissions, activities, or employment. Student workers will be covered by this policy, and may also fall under the jurisdiction of Human Resources and Development, which will jointly resolve all complaints with the Assistant Dean of Student Affairs and/or designee.

Title IX Sexual Harassment includes: Conduct on the basis of sex; or that is sexual in nature; that satisfies one or more of the following:

1. Quid Pro Quo: A College employee explicitly or implicitly conditioning the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct.
   
2. Hostile Environment: Unwelcome conduct on the basis of sex determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education programs or activities; or
   
3.  “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). Definitions of these terms are provided below:

Other Sexual Misconduct Offenses

Sexual Assault, defined as:

1. Any sexual act directed against a Complainant,
2. without their consent, or
3. instances in which the Complainant is incapable of giving consent

A ‘sexual act” is specifically defined by federal regulations to include one or more of the following:

Rape:

• The carnal knowledge of a Complainant OR 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,
• without their consent,
• including instances where they are incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

Sodomy:

• Oral or anal sexual intercourse with a Complainant,
• forcibly, and/or
• against their will (non-consensually), or
• not forcibly or against their will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

Sexual Assault with an Object:

• The use of an object or instrument to penetrate,
• however slightly,
• the genital or anal opening of the body of the Complainant, forcibly, and/or
• against their will (non-consensually), or
• not forcibly or against their will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

Fondling:

• The touching of the private body parts of the Complainant (buttocks, groin, breasts),
• for the purpose of sexual gratification,
• forcibly, and/or
• against their will (non-consensually), or
• not forcibly or against their will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
• This would include having another person touch a Complainant sexually, forcibly, and/or without Complainant's Consent.

Incest, defined as:

• Non-forcible sexual intercourse,
• between persons who are related to each other,
• within the degrees wherein marriage is prohibited by California state law.

Statutory Rape, defined as:

1. Non-forcible sexual intercourse,
2. with a person who is under the statutory age of consent of 18 in California.

Dating Violence, defined as:

1. violence,
2. on the basis of sex
3. committed by a person,
4. Who is in or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship shall be determined based on the Complainant’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. For the purposes of this definition:
5. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
6. Dating violence does not include acts covered under the definition of domestic violence.

Domestic Violence, defined as:

1. Violence,
2. on the basis of sex,
3. committed by a current or former spouse or intimate partner of the Complainant,
4. by a person with whom the Complainant shares a child in common, or
5. by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
6.  by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of California, or
7.  by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of California.

Sexual Violence, defined as: 

1. physical sexual acts,
2. perpetrated against a person without the person’s affirmative consent.

Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.

Sexual Exploitation, defined as: 

Taking non consensual or abusive sexual advantage of another for one’s own advantage or benefit, or to benefit a person other than the one being exploited. Examples of sexual exploitation include, but are not limited to, the following:

• Prostituting another student;
• The 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;
• Non Consensual video or audio recording of sexual activity;
• Exceeding the boundaries of explicit consent, such as allowing friends to hide in a closet to be witness to one’s consensual sexual activity;
• Knowingly making an unwelcome disclosure of (or threatening to disclose) an individual’s sexual orientation, gender identity, or gender expression;
• Knowingly soliciting a minor for sexual activity;
• Engaging in voyeurism (Peeping Tommery); and/or
• Knowingly transmitting a sexually transmitted disease/infection or HIV to another student.

Statutory Rape, defined as:

1. Non-forcible sexual intercourse,
2. with a person who is under the statutory age of consent of 18 in California.

Stalking, defined as:

1. engaging in a course of conduct,
2. on the basis of sex
3. directed at the Complainant, that
4. would cause a reasonable person to fear for the person’s safety, or
5. the safety of others; or
6. Suffer substantial emotional distress.

For the purposes of this definition—

• Course of conduct means two or more acts, including, but not limited to acts in which the Respondent 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.
• Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
• Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

Otis College reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any offense under this Policy. The most serious offenses are likely to result in suspension/expulsion/dismissal.

Force, Coercion, Consent, And Incapacitation

As used in the offenses described in the Title IX Sexual Harassment webpage, the following definitions and understandings apply:

Force

Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” which elicits the response, “Okay, don’t hit me, I’ll do what you want.”). Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

Coercion

There is a difference between seduction and coercion; coercion is defined as unreasonably pressuring another person for sex. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. Coercing someone into engaging in sexual activity violates this policy in the same way as physically forcing someone into engaging in sexual activity.

Consent

• knowing, and
• voluntary, and
• clear permission
• by word or action
• to engage in sexual activity.

Individuals may perceive and experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity. If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.

For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Reasonable reciprocation can be implied consent. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.

Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, that sexual activity should cease within a reasonably immediate time.

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 intimate relationship is not sufficient to constitute consent. If an individual expresses conditions on their willingness to consent (e.g., use of a condom) or limitations on the scope of their consent, those conditions and limitations must be respected.

Proof of consent or non-consent is not a burden placed on either party involved in a complaint. Instead, the burden remains on the College to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged misconduct occurred and any similar and previous patterns that may be evidenced.

Consent in relationships must also be considered in context. When parties consent to BDSM or other forms of kink, non-consent may be shown by the use of a safe word. Resistance, force, violence, or even saying “no” may be part of the kink, and thus consensual. The College’s evaluation of communication in kink situations should be guided by reasonableness, rather than strict adherence to policy that assumes non-kink relationships as a default.

Consent in the State of California is defined as:

The state definition of consent is defined as positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily with knowledge of the nature of the act involved. This underscores the importance of mutual agreement and understanding, emphasizing that consent cannot be inferred from silence or lack of resistance. Consent must be ongoing and can be revoked at any time. Even if initially given, it can be withdrawn, and any continuation without renewed consent may constitute a violation. Individuals incapacitated due to intoxication, unconsciousness, or mental disability cannot provide valid consent, protecting vulnerable individuals from exploitation. For minors, the age of consent is 18, meaning individuals under this age cannot legally consent to sexual activities with adults. This is codified in California law addressing statutory rape, highlighting protections for minors against potential coercion.

This definition is applicable to criminal prosecutions for sex offenses in California but may differ from the definition used by the Otis College to address policy violations.

Incapacitation

A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drug consumption.

Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/ informed consent (e.g., to understand the “who, what, when, where, why, and how” of their sexual interaction).

Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.

This policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating substances.

Relationships Between Faculty/Staff and Students

Otis College of Art and Design prohibits all faculty and staff members, including graduate teaching assistants, and others involved in teaching activities, from engaging in or pursuing dating, sexual, or intimate relationships with students, including consensual relationships.

Faculty and staff members are in a position of trust and power with respect to a student’s educational activities. Relationships with students can jeopardize the effective functioning of the College’s mission by the appearance of unfairness in the exercise of professional judgment. This includes, but is not limited to, those students whom faculty or staff currently, or may in the future, instruct, mentor, evaluate, supervise, advise, or exercise other forms of professional responsibilities towards, such as allocating resources, selecting students for scholarships and awards, and providing recommendations or references. The purpose of this policy is to create and maintain a professional learning and work environment that is free from unlawful discrimination, harassment, and exploitation. This policy recognizes that there is often an inherent inequity in dating, sexual, or intimate relationships between faculty/staff and students. Such relationships often result in perceptions of favoritism, bias, or discrimination that undermine academic achievements or decisions affecting students.

The College has a policy against discrimination and harassment, including, without limitation, sexual harassment. Dating, sexual, or intimate relationships between faculty/staff and students may result in claims of sexual harassment and questions about the voluntariness of the relationship. Please refer to College policies on Harassment, Sexual Harassment, and Non-Retaliation for more details.

Retaliation

Protected activity under this Policy includes reporting alleged misconduct that may implicate this Policy, participating in the grievance process, supporting a Complainant or Respondent, assisting in providing information relevant to an investigation, and/or acting in good faith to oppose conduct that constitutes a violation of this Policy.

Acts of alleged retaliation should be reported immediately to the Title IX Coordinator and will be promptly investigated. The College will take all appropriate and available steps to protect individuals who fear that they may be subjected to retaliation.

Otis College and any member of the College community are prohibited from taking or attempting to take materially adverse action by intimidating, threatening, coercing, harassing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by law or policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Policy and procedure.

Filing a complaint under the Code of Student Conduct could be considered retaliatory if those allegations could be subject to the Title IX grievance process, when the Code of Student Conduct allegations are made for the purpose of interfering with or circumventing any right or privilege provided afforded within the Title IX grievance process that Student Code of Conduct does not provide. Therefore, the College carefully vets all complaints to ensure this does not happen, and to ensure that complaints are routed to the appropriate process. The exercise of rights protected under the First Amendment does not constitute retaliation.

Pursuing a Student Conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this Policy and procedure does not constitute retaliation, provided that the determination of responsibility, by itself, is not sufficient to conclude that any party has made a materially false statement in bad faith.