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 University Administration, 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. Sexual Misconduct, as defined in this policy, is a form of sex discrimination prohibited by Title IX. Barry University is committed to providing programs, activities and an educational environment free from sex discrimination.
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, suite 101, by telephone (305) 899-4925, or by e-mail at email@example.com) as soon as possible to report any acts of sexual misconduct you believe may have occurred.
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 when:
- Submission to the conduct is an explicit or implicit term or condition of employment, or
- submission to or rejection of the conduct is used as the basis for an employment decision, or
- the conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
- The conduct is sufficiently severe, persistent or pervasive that it has the effect of unreasonably interfering with, limiting or depriving someone of the ability to participate in or benefit from the university’s educational program, activities and/or employment, and is;
- Based on power (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.
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;
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.
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.
SUPPORT AND RESOURCES
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 Services (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.
Georgetown University Sexual Misconduct and Sexual Assault Policy
Sokolow, Brett A., NCHERM “Creating a Proactive Campus Sexual Misconduct Policy”.