Student Non-discrimination, Anti-Harassment, and Sexual Misconduct Policy

Colgate University complies with all federal and state civil rights laws banning discrimination in private institutions of higher education. Colgate will not discriminate against, and prohibits discrimination against, any person because of race, color, sex, gender, sexual orientation, gender identity or expression, pregnancy, religion, creed, national origin (including ancestry), citizenship status, physical or mental disability, age, marital status, veteran or military status (including special disabled veteran, Vietnam-era veteran, or recently separated veteran), predisposing genetic characteristics, domestic violence victim status, or any other protected category under applicable local, state, or federal law (collectively, “Protected Characteristics”).

The term “discrimination” refers to an act that disadvantages a person and that occurs because of the affected individual’s Protected Characteristics. Examples of discrimination include but are not limited to excluding a student from membership in an organization, denying a student a research opportunity, or giving a student a lower grade than deserved, because of the student’s Protected Characteristic. 

Harassment is unwelcome, offensive conduct that occurs on the basis of race, color, pregnancy, religion, creed, national origin (including ancestry), citizenship status, physical or mental disability, age, marital status, veteran or military status (including special disabled veteran, Vietnam-era veteran, or recently separated veteran), predisposing genetic characteristics, or domestic violence victim status.

Harassing conduct can occur in various forms, including:

• Verbal – Conduct such as unwelcome, demeaning, or graphic comments; using ethnic, racial, religious, or other slurs to refer to a person or group; or jokes or comments that demean a person or a group on the basis of one of the above-referenced Protected Characteristics. 
• Physical – Conduct such as physical threats toward or intimidation of another on the basis of one of the above-referenced Protected Characteristics.
• Visual – Conduct such as creating or displaying racially, ethnically, or religiously offensive pictures, symbols, flags, cartoons, or graffiti that disparages another person or group because of one of the above-referenced Protected Characteristics.
• Communication-based – Conduct such as phone calls, e-mails, text messages, chats, blogs or online communications that offend, demean, or intimidate another on the basis of one of the above-referenced Protected Characteristics. Members of the community are expected to be good digital citizens and to refrain from online misconduct, such as feeding anonymous gossip sites, sharing inappropriate content via social media, unwelcome messaging, or otherwise using the ease of transmission and/or anonymity of the Internet or other technology to harm another member of, or group within, the university community.

A determination as to whether harassment occurred depends on the totality of the circumstances, including the context of a communication or incident, the relationship of the individuals involved in the communication or incident, whether an incident was an isolated incident or part of a broader pattern or course of offensive conduct, the seriousness or severity of the incident, the intent of the individual who engaged in the allegedly offensive conduct, and its effect or impact on the individual or group and the learning community. A “hostile environment” is created when the offensive behavior interferes with an individual’s ability to participate in the university’s programs (i.e., to work and to learn) when judged against a reasonable person standard. However, Colgate encourages individuals experiencing or witnessing offensive behavior to make a report as early as possible so as to have the situation corrected before it reaches the level of a hostile environment. Individuals with a concern need not worry about whether the behavior is sufficiently serious to constitute a hostile environment. The University reserves the right to remedy harassment pursuant to this policy even if the behavior in question does not rise to the level of legally recognized or actionable discrimination or harassment.

The fact that a person was personally offended by a statement or incident does not alone constitute a violation of this policy. The determination as to whether this policy has been violated takes into account the totality of the circumstances as described above. In all instances, a key factor is whether the complained-of behavior occurred because of Protected Characteristics. If it did not, the behavior is not regulated by this policy. However, even if the conduct is not based upon a Protected Characteristic and/or does not rise to the level of Prohibited Conduct under this policy, the university may respond by providing individual and community support and resources to those who have been impacted. In addition, such conduct that is not based on Protected Characteristics may constitute a violation of the university’s Code of Student Conduct and, if so, will be addressed pursuant to the System of University Standards and Student Conduct. 

Sexual activity or contact must be based on mutual and affirmative consent to the specific activity or contact.

Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression. Whenever the word “consent” is used in this policy, it should be understood to mean affirmative consent as defined here.

Since individuals may experience the same interaction in different ways, it is the responsibility of each party to take reasonable steps to ensure that the other has consented before engaging in the activity. 

A person cannot consent if that individual is incapacitated. Incapacitation is defined as a state where someone lacks the ability to knowingly choose to participate in a specific activity. Incapacity may be caused by the lack of consciousness, sleep, involuntary restraint, or other factors that prevent voluntary choice. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs or other intoxicants may be incapacitated and therefore unable to consent. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy. “Should know” is an objective, reasonable person standard which assumes that a reasonable person is both sober and exercising sound judgment. Consent is required regardless of whether the initiator is under the influence of alcohol or other drugs. It is not an excuse that the person initiating the sexual activity was intoxicated or incapacitated due to alcohol or other drugs and, therefore, did not realize the incapacity of the other.

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 dating relationship is not sufficient to constitute consent. Further, past consent to engage in sexual activity with any person cannot be presumed to be consent to sexual activity in the future with the same or a different person.

The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. A person can withdraw consent at any time during sexual activity by expressing in words or actions that they no longer want the act to continue. When consent is withdrawn or can no longer be given, the other person must stop immediately. 

Consent cannot be given as result of coercion, intimidation, force, or threat of harm. Coercion is a threat, undue pressure, or intimidation to engage in sexual activity. Coercion is more than an effort to persuade, seduce, entice, or attract another person to engage in sexual activity. A person’s words or conduct are sufficient to constitute coercion if they deprive another individual of the ability to freely choose whether or not to engage in sexual activity.

In New York State, a minor (meaning a person under the age of 17 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 17 years old is a crime as well as a violation of this policy, even if the minor wanted to engage in the act.

Acts of sexual harassment, sex offenses, dating violence, domestic violence and stalking can occur regardless of the sex, gender, sexual orientation and/or gender identity of those involved. The issue in any case is not the gender or gender identity of the persons involved, but rather the activity and whether the parties to the activity affirmatively consented to engage in it.

“Sexual harassment”, as a Title IX Violation, means conduct on the basis of sex, gender, sexual orientation, or gender identity or expression, that satisfies one or more of the following:

• An employee of the university conditioning the provision of an aid, benefit, or service of the university on an individual’s participation in unwelcome sexual conduct (commonly referred to as a “quid pro quo”); or
• Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the university’s education program or activity (commonly referred to as a sexually or gender-based “hostile environment”). 

Unwelcome conduct on the basis of sex, gender, sexual orientation, or gender identity or expression, that does not rise to the level described above may be addressed as a University Standards Violation as described below, provided that it meets the definition of sexual harassment as a University Standards Violation.

Consistent with federal law, Colgate defines sexual assault as a sexual act directed against another person, without consent of the other person, including instances where the other person is incapable of giving consent. Sexual assault consists of the following specific acts:

• Non-Consensual Sexual Intercourse: Sexual assault of this type includes the 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 the consent of the other person.
• Non-Consensual Sexual Contact: This form of sexual assault includes any intentional touching, however slight, for purposes of sexual gratification, of the private body parts (including genitalia, anus, groin, breast, inner thigh, or buttocks) of another person without the consent of the other person, including instances where the other person is incapable of giving consent because of their youth or because of their temporary or permanent mental or physical incapacity. This may include non-penetrative acts, touching directly or with an object, and/or touching the private body parts of another over clothing.
• Incest: Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
• Statutory Rape: Non-forcible sexual intercourse with a person who is under the statutory age of consent. The statutory age of consent in New York is 17.

Dating violence refers to violence (including but not limited to sexual or physical abuse or the threat of such abuse) committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, where the existence of such a relationship shall be determined based on a consideration of the following factors:

1. the length of the relationship;
2. the type of relationship;
3. the frequency of interaction between the persons involved in the relationship.

Dating violence can include behavior such as coercion, isolation or other forms of emotional, verbal or economic abuse if it reflects a threat of sexual or physical abuse as described above. Dating violence does not include acts covered under the definition of domestic violence.

Domestic violence refers to violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction where the university is located, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction. To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship as described above.

Stalking is engaging in a course of conduct directed at a specific person on the basis of sex that would cause a reasonable person to fear for their safety or the safety of others; or suffer substantial emotional distress. For the purposes of this definition,

1. a “course of conduct” means two or more acts, including, but not limited to, acts in which the individual 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;
2. “reasonable person” means a reasonable person under similar circumstances and with similar identities to the complainant; and
3. “substantial emotional distress” means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

Examples of behavior that may constitute stalking include repeated, intentional following, observing or lying in wait for another; using “spyware” or other electronic means to gain impermissible access to a person’s private information; repeated, unwanted, intrusive, and frightening communications by phone, mail, email, text, etc.; making direct or indirect threats to harm an individual or the individual’s relatives, friends, or pets; or damaging or threatening to damage the property of the targeted individual. Stalking that does not occur on the basis of sex may be addressed as a University Standards Violation as described below. 

“Sexual harassment” means unwelcome conduct which is either of a sexual nature, or which is directed at an individual because of that individual’s sex or gender, sexual orientation, or gender identity or expression, when such conduct has the purpose or effect of unreasonably interfering with an individual’s work, academic, or extracurricular performance, or creating an intimidating, hostile, or offensive work or learning environment, even if the reporting individual is not the intended target of the sexual harassment.

Harassing conduct can occur in various forms, including:

• Verbal – Conduct such as unwelcome sexually suggestive, demeaning, or graphic comments; unwelcome verbal sexual advances; using slurs to refer to a person; bullying, yelling or name-calling; refusing to use a person’s preferred pronouns or name; or jokes or comments that demean a person on the basis of sex or gender, sexual orientation, gender identity or gender expression.
• Physical – Conduct such as unwanted sexual contact or physical sexual advances (e.g., unwanted touching, pinching, patting, kissing, hugging, grabbing, brushing against another person’s body or poking another person’s body); sexual intimidation through physical threats; or physical threats toward or intimidation of another on the basis of sex or gender, sexual orientation, gender identity or gender expression.
• Visual – Conduct such as exposing another person to unwanted pornographic images; creating or displaying pictures, symbols, flags, cartoons, or graffiti that is/are sexually offensive or disparage(s) another person or group based on sex or gender, sexual orientation, gender identity or gender expression. 
• Communication-based – Conduct such as phone calls, e-mails, text messages, chats, blogs or online communications that offend, demean, or intimidate another on the basis of sex or gender, sexual orientation, gender identity or gender expression. Members of the community are expected to be good digital citizens and to refrain from online misconduct, such as feeding anonymous gossip sites, sharing inappropriate content via social media, unwelcome sexual or sex-based messaging, distributing or threatening to distribute revenge pornography, breaches of privacy, or otherwise using the ease of transmission and/or anonymity of the Internet or other technology to harm another member of, or group within, the university community. 
• Sex stereotyping – Conduct in which another person’s or group’s conduct or personality traits are treated as inappropriate simply because they may not conform to other people’s ideas or perceptions about how individuals of a particular sex should act or look.

A determination as to whether sexual harassment occurred depends on the totality of the circumstances, including the context of a communication or incident, the relationship of the individuals involved in the communication or incident, whether an incident was an isolated incident or part of a broader pattern or course of offensive conduct, the seriousness or severity of the incident, the intent of the individual who engaged in the allegedly offensive conduct, and its effect or impact on the individual or group and the learning community.

A “hostile environment” is created when the offensive behavior interferes with an individual’s ability to participate in the University’s programs (i.e., to work and to learn) when judged against a reasonable person standard. However, Colgate encourages individuals experiencing or witnessing offensive behavior to make a report as early as possible so as to have the situation corrected before it reaches the level of a hostile environment. Individuals with a concern need not worry about whether the behavior is sufficiently serious to constitute a hostile environment. The University reserves the right to remedy sexual harassment pursuant to this policy even if the behavior in question does not rise to the level of legally recognized or actionable harassment.

The fact that a person was personally offended by a statement or incident does not alone constitute a violation of this policy. The determination as to whether this policy has been violated takes into account the totality of the circumstances as described above. In all instances, a key factor is whether the complained-of behavior occurred based on sex or gender, sexual orientation, gender identity or gender expression or was sexual in nature. If it did not, the behavior is not regulated by this policy. However, even if the conduct is not sexual in nature or based upon on sex or gender, sexual orientation, gender identity or gender expression and/or does not otherwise constitute Prohibited Conduct under this policy, the university may respond by providing individual and community support and resources to those who have been impacted. In addition, such conduct that is not sexual in nature or based on sex or gender, sexual orientation, gender identity or gender expression may constitute a violation the university’s Code of Student Conduct and, if so, will be addressed pursuant to the System of University Standards and Student Conduct.

Colgate also prohibits “quid pro quo” sexual harassment, which means “this for that” harassment. It is a violation of this policy for any person to condition any benefit on submission to sexual activity.

“Sexual assault” includes any sexual act directed against another person without the consent of the other person, including instances where the victim is incapable of giving affirmative consent, but that does not constitute sexual assault as a Title IX Violation as defined above because of the nature of the behavior or the context in which it occurs (for example because the complainant was not in the United States at the time of the alleged conduct, because the complainant was not participating in or seeking to participate in the university’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of the university’s education program or activity). Sexual assault consists of the following specific acts:

• Non-Consensual Sexual Intercourse – Sexual assault of this type includes the 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, forcibly or without the affirmative consent of the other person or where the other person is incapable of consent due to mental or physical incapacity. This type of sexual assault also includes non-forcible sexual intercourse with a person who is under the statutory age of consent. In New York, the statutory age of consent is 17 years old.
• Non-Consensual Sexual Contact – This form of sexual assault includes any intentional touching, however slight, for purposes of sexual gratification or with sexual intent, of the private body parts (including genitalia, anus, groin, breast, inner thigh, or buttocks) of another person without the affirmative consent of the other person, including instances where the other person is incapable of giving consent because of their youth or because of their temporary or permanent mental or physical incapacity. This may include non-penetrative acts, touching directly or with an object, and/or touching the private body parts of another over clothing. This may also include forcing or causing another without affirmative consent to touch one’s own private body parts.

Taking non-consensual or abusive sexual advantage of another for one’s own benefit or for the benefit of anyone other than the person being exploited, if the conduct does not otherwise constitute another offense under this policy. Examples of Sexual Exploitation include:

1. sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed);
2. taking pictures, video, or audio recording of another in a sexual act, or in any other sexually-related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent or beyond the parameters of consent), including the making or posting of revenge pornography;
3. exposing one’s genitals in non-consensual circumstances or non-consensual disrobing of another person so as to expose the other person’s private body parts;
4. prostituting another person;
5. engaging in sexual activity with another person while knowingly infected with a sexually-transmitted disease (STD) or infection (STI), without informing the other person of the STD or STI;
6. causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity;
7. misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections;
8. forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity;
9. knowingly soliciting a minor for sexual activity.

Dating violence refers to violence (including but not limited to sexual or physical abuse or the threat of such abuse) committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, but that does not constitute dating violence as a Title IX Violation as defined above because of the nature of the behavior or the context in which it occurs (for example because the complainant was not in the United States at the time of the alleged conduct, because the complainant was not participating in or seeking to participate in the university’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of the university’s education program or activity). The existence of such a relationship shall be determined based on a consideration of the following factors:

1. the length of the relationship;
2. the type of relationship; and
3. the frequency of interaction between the persons involved in the relationship. Dating violence can include behavior such as coercion, isolation or other forms of emotional, verbal or economic abuse if it reflects a threat of sexual or physical abuse as described above. Dating violence does not include acts covered under the definition of domestic violence.

Domestic violence refers to violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction where the university is located, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the act of violence occurs, that does not constitute domestic violence as a Title IX Violation as defined above because of the nature of the behavior or the context in which it occurs (for example because the complainant was not in the United States at the time of the alleged conduct, because the complainant was not participating in or seeking to participate in the university’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of the university’s education program or activity). To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship as described above.

Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or to suffer substantial emotional distress, but that does not constitute stalking as a Title IX Violation as defined above because of the nature of the behavior or the context in which it occurs (for example because the complainant was not in the United States at the time of the alleged conduct, because the complainant was not participating in or seeking to participate in the university’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of the university’s education program or activity). For the purposes of this definition:

1. a “course of conduct” means two or more acts, including, but not limited to, acts in which the individual 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;
2. “reasonable person” means a reasonable person under similar circumstances and with similar identities to the complainant; and
3. “substantial emotional distress” means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

Stalking behavior may include but is not limited to repeated, intentional following, observing or lying in wait for another; using “spyware” or other electronic means to gain impermissible access to a person’s private information; repeated, unwanted, intrusive, and frightening communications by phone, mail, email, text, etc.; making direct or indirect threats to harm an individual or the individual’s relatives, friends, or pets; or damaging or threatening to damage the property of the targeted individual. 

Colgate University employees (including both faculty and staff) need to be especially sensitive to the power/authority relation in their interactions with students. Consensual romantic, sexual or dating relationships between University employees and students contradict both professional ethics and this policy and are prohibited by Colgate. Consensual relationships that begin prior to the date on which the involved parties become student and employee are not prohibited by this policy, but the employee is required to report the existing relationship to their supervisor as of the date the parties are simultaneously enrolled and employed by the university. In such circumstances the university reserves the right to take such actions as may be necessary to address any resulting conflict of interest (for example, ensuring that the employee does not have responsibility for evaluating work submitted by the student for academic credit).

Retaliation is an adverse act perpetrated to “get back” at a person because the person reported misconduct, filed a complaint, or participated or refused to participate as a complainant, respondent or witness in an investigation or proceeding conducted in response to reported violation of this policy by the university or by an external agency. Retaliation also includes an adverse act against someone for the purpose of interfering with any right or privilege under this policy or applicable law. Retaliation can take many forms, including, but not limited to, adverse action or violence, threats and intimidation that would discourage a reasonable person (under similar circumstances and with similar identities to the targeted individual or group) from engaging in protected activity. A person who acts in good faith is protected from retaliation. The fact that a statement is not determined to be proven or established following investigation and adjudication does not mean that the statement lacked good faith; a person may provide inaccurate information believing it is accurate, which is still good faith. If a person makes a statement knowing that it is false, the person has acted without good faith.

For the purpose of this policy, a “hate crime” is defined as violence to a person or damage to property (or a threat to do so) or any other criminal act that is motivated entirely or partly by hostility toward or intolerance of another’s Protected Characteristics. 

The following example demonstrates the difference between a non-hate crime and a hate crime: A student who selects a car at random in a campus parking lot and smashes the windshield has committed criminal mischief. A student who is biased against Muslims and smashes a windshield because they know that the car belongs to a Muslim student has likewise committed criminal mischief. However, this second incident is also a hate crime because the student was motivated by anti-Muslim bias.

Federal and state laws prohibit hate crimes, and hate crimes often result in enhanced criminal penalties. Students who commit hate crimes are subject to criminal prosecution in addition to discipline pursuant to this policy. The criminal process is separate and distinct from this policy. The fact that a criminal complaint has been filed, prosecuted, or dismissed will not prevent Colgate from pursuing disciplinary action.