Sexual Misconduct Policy
Barry University is committed to providing the best possible setting for carrying out its educational mission. An essential component of this environment is an atmosphere in which all members of the university community have an equal opportunity to work, to learn, and to develop. The Division of Student Affairs, in an effort to educate students and others, provides programs throughout the year that focus on individual responsibilities regarding sexual misconduct and how to avoid, confront, report and eliminate it from the campus environment.
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”) prohibits discrimination on the basis of sex in education programs or activities that receive Federal financial assistance. The Amendment reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."
The following university policies and guidelines are established for students who seek information and assistance with intervention strategies should they be a victim of or witness to sexual harassment or assault. When an allegation of sexual misconduct is investigated, and a responding member of this University community is found to have violated this policy, serious sanctions may be imposed in an effort to ensure that such actions are not repeated. Any attempt to violate any portion of this policy is considered sufficient for having committed the violation itself. The use of alcohol or other drugs will not be accepted as a defense or mitigating factor to a violation of this policy. These policies apply regardless of the complainant’s or respondent’s race, ethnicity, gender, sexual orientation, religion, age, nationality or ability. Also, prohibitions against discrimination and harassment do not extend to statements or written materials that are germane to the classroom or academic course of study.
Title IX and the University also prohibit gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature.
A student’s safety, well being and health are the primary concerns of Barry University. If you or someone you know may be the victim of any type of sexual misconduct, you are strongly urged to seek immediate assistance. Assistance can be obtained, 24 hours a day, 7 days week from:
|Miami Shores Police Department||911|
|Barry University Public Safety||(305) 899-3333 or x3333 from any campus phone|
|Dade County Roxy Boulton Rape Treatment Center||(305) 585-5185|
|Broward County Rape Treatment Center||(954) 357-5775|
|Switchboard of Miami Crisis Hotline||(305) 358-4357|
During office hours (Monday through Friday 9:00 am to 5:00 pm) students are strongly urged to contact the Dean of Students (in person in Landon Student Union, site 101, by telephone (305) 899-4925, or by e-mail at firstname.lastname@example.org) as soon as possible to report any acts of sexual misconduct you believe may have occurred.
Sexual misconduct encompasses a range of behavior used to obtain sexual gratification against another’s will or at the expense of another. Sexual Misconduct includes sexual harassment, sexual assault, and any conduct of a sexual nature that is without consent, or has the effect of threatening or intimidating the person against whom such conduct is directed. State laws vary on defining acts which constitute sexual misconduct. Generally sexual misconduct can involve any of the following acts:
- Intentionally indecent and/or offensive actions that are of a sexual nature including, but not limited to voyeurism, exposure, sexually explicit communication (i.e., electronic and voice messages, photos, pictures, graphics, etc.)
- Sexually explicit touching or attempt of such touching. This includes, but is not limited to, the touching, either directly or through clothing, of another person’s genitalia, breasts, inner thigh, or buttocks of any person with a clothed or unclothed body part or object;
- Exposing his or her genitals under circumstances likely to cause affront or alarm;
- Having sexual contact in the presence of a third person or persons under circumstances likely to cause affront or alarm;
- Having sexual intercourse or deviate sexual intercourse in a public place in the presence of a third person;
- Soliciting or requesting another person to engage in sexual conduct under circumstances in which s/he knows that her/his requests or solicitation is likely to cause affront or alarm;
For purposes of this policy, sexual harassment is unwelcome sexual advances, requests for sexual favors, and other physical, verbal, or visual conduct based on sex constitute sexual harassment. It is:
- Unwelcome, gender-based verbal or physical conduct that is,
- Sufficiently severe, persistent or pervasive that it,
- unreasonably interferes with, denies or limits someone’s ability to participate in or benefit from the University’s educational program, activities and/or employment, and is;
- based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation
Sexual harassment is conduct based on sex, whether directed towards a person of the opposite sex or same sex, and may include explicit sexual propositions, sexual innuendo, suggestive comments, sexually oriented “kidding” or “teasing,” “practical jokes,” jokes about obscene or visual material and physical contact such as patting, pinching, or brushing against another person’s body. It also includes unwelcome communications (verbal or written) of a sexual nature; failure to accept the termination of a consensual relationship with repeated and persistent requests and behavior. Examples include:
- Explicit sexual pictures are displayed in a professor’s office, on the exterior or a residence hall door or on a computer monitor in a public space.
- A student repeatedly sends sexually oriented jokes around on an email list s/he created, even when asked to stop, causing one recipient to avoid the sender on campus and in the residence hall I which they both live.
- An ex-girlfriend widely spreads false stories about her sex life with her former boyfriend to the clear discomfort of the boyfriend, turning him into a social pariah on campus.
Sexual assault is physical contact of a sexual nature without clear, voluntary, intelligent, or knowing consent. In the state of Florida, sexual assault is legally referred to as sexual battery and is defined in Florida State Statute 794.011 as “any oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” Individuals cannot give permission or consent if they are obviously incapacitated by any drug or intoxicant. They cannot give consent if they are unaware, unconscious, asleep, or physically or mentally unable to communicate non-consent. Furthermore, individuals cannot be forced, threatened, coerced, or deceived into giving consent, which may be especially pertinent in disciplinary or supervisory relationships.
Consent is an exchange of words or actions that show an active, knowing and voluntary agreement to engage in mutually agreed upon sexually explicit touching or penetration. Consent must be informed, and freely and actively given. Each individual involved in the activity is responsible to either obtain or give consent prior to any sexual activity. If at any time during sexual interaction confusion should arise on the issue of consent, it is the responsibility of each individual involved to stop and clarify, verbally, the other’s willingness to continue. Past consent to sexual activity does not imply future consent.
Consent may never be given by a minor (in the State of Florida, the age of consent to engage in sexual activity is 18; however, if a person is less than 24 years old, they may enter into consensual sexual contact with a person who is at least 16 years old).
Consent cannot be obtained through the use of physical force, threats, coercion (this includes the administration of a drug or substance that impairs the faculties of a person) or intimidation.
Consent may never be given by someone who is physically incapacitated as a result of alcohol or drug consumption (voluntary or involuntary) or who is unconscious, unaware, or otherwise physically helpless. One may not engage in sexual activity with another who one knows or should reasonable know to be physically incapacitated.
A student’s use of alcohol and/or drugs shall not diminish the student’s responsibility to obtain consent before engaging in any sexual activity.
Non-Consensual Sexual Contact
This is any intentional sexual touching, however slight, with any object, by a man or a woman, upon a man or woman that is without consent and/or by force.
Examples of this behavior include, but are not limited to:
- Intentional contact with the breast, buttocks, groin, or genitals;
- Intentional touching of another with breast, buttocks, groin, or genitals;
- Making another person touch someone or themselves in a sexual manner;
- Any intentional bodily contact in a sexual manner.
Non-Consensual Sexual Intercourse
This is any sexual intercourse however slight, with any object, by a man or woman upon a man or woman that is without consent and/or by force.
Intercourse includes vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object, tongue, or finger and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.
Other Applicable Definitions
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcome resistance or product consents (e.g., “Have sex with me or I’ll hit you. Okay, don’t hit me, I’ll do what you want”.)
- Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes it clear that they do not want sex, 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.
- Note: There is no requirement that a party resit the sexual advance or request, but resistance is a clear demonstration of non-consent. The presence of force is not demonstrated by the absence of resistance. Sexual activity that is forced is by definition non-consensual, but non-consensual activity is not by definition forced.
- Sexual activity with someone who one should know to be – or based on the circumstances should reasonably have known to be – mentally or physically incapacitated (by alcohol or other drug use, unconsciousness or blackout), constitutes a violation of this policy.
- Incapacitation is a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where why or how” of their sexual interaction).
- This policy also covers a person whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of rape drugs. Possession, use and/or distribution of any of theses substance, including Rohypnol, Ketomine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another students is a violation of this policy. More information on these drugs can be found at http://www.911rape.org/
- Use of alcohol or other drugs will never function as a defense for any behavior that violates this policy.
- The sexual orientation and/or gender identity of individuals engaging in sexual activity is not relevant to allegations under this policy.
This 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 the close to watch you having consensual sex);
- Engaging in voyeurism;
- Knowingly transmitting an STI or HIV to another student;
- Exposing one’s genitals in non-consensual circumstances; inducing another to expose their genitals;
- Sexually-based stalking and/or bullying may also be a form of sexual exploitation.
Intimate Partner Violence
Relationship violence is a pattern of behavior in an intimate relationship that is used to establish power and control over another person through fear and intimidation. This behavior can be verbal, emotional and/or physical. Examples include, but are not limited to:
- Striking another person (slapping, punching, etc)
- Property damage
- Reckless behavior
- Name calling and insults
- Public humiliation
- Harassment directed toward friends and/or acquaintances and,
- Verbal and/or physical threats
The University’s complete Stalking Policy can be found here.
Other Misconduct Offenses (which fall under Title IX when gender-based)
- Threatening or causing physical harm, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of any person;
- Discrimination, defined as actions that deprive other members of the community of educational or employment access, benefits or opportunities on the basis of gender;
- Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another;
- Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the University community, when related to the admission, initiation, pledging, joining, or any other group affiliation activity (as further defined in the University’s Hazing Policy);
- Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally (that is not speech or conduct otherwise protected by the First Amendment);
Support and Resources
The University reserves the right to take whatever measures it deems necessary in response to an allegation of sexual misconduct in order to protect students’ rights and personal safety. Such measures include, but are not limited to:
- Modifications of living arrangements
- Interim Suspension from campus pending a hearing
- Academic accommodation (e.g., changing class schedule, rescheduling an academic assignment (papers, tests, etc.)
- Temporary withdrawal
- Other accommodations for safety as necessary
The University encourages students to make use of all appropriate resources and will assist students in an allegation of sexual misconduct. The primary resource for student is the Dean of Students, located in suite 102 of the Landon Student Union. Other resources include the Center for Counseling and Psychological Services (Landon Student Union, suite105), the Student Health Center (Landon Student Union, suite 104), Department of Housing and Residence Life (Landon Student Union, suite 305), Campus Ministry (in Cor Jesu chapel) and the Office of Public Safety (Landon Student Union, suite 304).
The University shall enforce this policy through the means of the student conduct system and through enforcement of the Student Code of Conduct. Sexual offenses are considered as major violations of the Student Code of Conduct, and students found responsible are subject to sanctions up to and including expulsion from the university.