Talking about sexual misconduct—sexual harassment, sexual assault, sexual exploitation, and rape—is not a comfortable topic for anyone. Yet, it’s a topic that can’t be ignored. It demands that we push past our discomfort. As Risk Manager, you know that reacting to a situation without established protocol is dangerous. You might not react in compliance with the law, and you could add more injury to the situation—especially in cases of sexual misconduct that need to be handled delicately.
Not having a clearly established and communicated reporting and training protocol for sexual misconduct claims, not being able to define sexual misconduct under the law, and failing to have a clear school policy expressing acceptable and unacceptable behaviors for faculty, staff, and students, are all risks to your school—as well as risks to your students, faculty, and staff.
The first step in reducing your school’s sexual misconduct risks is to understand what sexual misconduct is and being able to define the differences of sexual misconduct claims. In the first article of this sexual misconduct series, we’ll define terms related to sexual misconduct and provide links to additional resources. (In the following articles we'll discuss reporting and training protocols.)
Sexual misconduct can be consensual or non-consensual (but often violations are non-consensual). The definition encompasses sexual abuse, dating violence, sexual violence, sexual assault, and rape. U.S. Legal defines it as a range of behaviors used to obtain sexual gratification against another’s will or at the expense of another.
U.S. Legal also provides a general overview to sexual misconduct inclusions in different states. The following acts are generally incorporated into state definitions:
·Intentional touching without consent
·Exposing 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 he/she knows that his/her requests or solicitation is likely to cause affront or alarm
·Forcing a victim to touch, directly or through clothing, another person's genitals, breast, groin, thighs, or buttocks
·Vaginal or anal intercourse
·Fellatio or cunnilingus
·Sexual penetration with an object without consent
Consensual sexual misconduct is often defined as a school policy violation. One example could be a married couple kissing outside their cars before leaving the parking lot. Seems innocent, perhaps even romantic, but if the school’s policy clearly opposes public displays of affection, it is, in fact, sexual misconduct.
Nonconsensual sexual misconduct can be defined as sexual acts where the person(s) involved are unable to give consent due to physical or mental disability, threat, coercion, the influence of drugs and alcohol, being asleep, or being under the legal age of consent.
Sexual Harassment is an overarching term used to summarize sexually violent behaviors. It is commonly considered to be sexual advances in the workplace resulting in an uncomfortable work environment for the victim(s) and/or others sharing the workspace. Yet, sexual harassment can happen anywhere—it’s not confined to the office.
Sexual harassment is defined by law under Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in the workplace. The law defines sexual harassment to include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature—it can also include remarks about a person’s gender.
The law does not prohibit teasing, offhand comments, and isolated incidents that are not serious. However, the law does prohibit incidents that are so frequent or severe that they create a hostile or offensive work environment or when they results in an adverse employment decisions, such as the victim being fired or demoted.
Title IX, is far broader than many believe and also relates to this type of discrimination. Private schools are subject to this Federal law if they participate in any number of Federal programs.
It is also critical to be aware of your own state’s and other local jurisdiction laws as well.
Sexual Abuse often includes an element of threat or fear. The victim is incapable of determining the nature of the conduct or is physically incapable of stopping or communicating unwillingness to continue.
Dating violence can be physical, sexual, or psychological. This type of sexual misconduct occurs within a dating relationship or between former partners. It also includes abuse that is electronically communicated such as on social media sites, e-mails, blogs, and the like.
Sexual violence, as defined by the Centers for Disease Control and Prevention (CDC) , is a sexual act committed against someone without that person’s freely given consent. It is a broad continuum of unwanted sexual activities that range from subtle (sexist attitude) to extremely violent (rape and murder).
The CDC continues to refine the definition of sexual violence by dividing it into several types of violence.
- Completed or attempted forced penetration of a victim
- Completed or attempted alcohol/drug-facilitated penetration of a victim
- Completed or attempted forced acts in which a victim is made to penetrate a perpetrator or someone else
- Completed or attempted alcohol/drug-facilitated acts in which a victim is made to penetrate a perpetrator or someone else
- Non-physically forced penetration that occurs after a person is pressured verbally or through intimidation or misuse of authority to consent or acquiesce
- Unwanted sexual contact
- Non-contact unwanted sexual experiences
For complete definitions of each of these categories, visit the CDCs page on sexual violence.
Sexual assault falls under the definition of sexual violence in many cases. It is any sexual activity that is forced or coerced or unwanted. The United States Department of Justice defines sexual assault as sexual activities including forced sexual intercourse, forcible sodomy, child molestation, fondling, and attempted rape.
Rape is part of the sexual violence and sexual assault definition. It is any penetration by a body part or object without consent. Consent must be given for each act, can be withdrawn at any time, is not implicit based ondress or behavior, and is not effective if the person is incapacitated.
Definitions of sexual misconduct should be included in your employee and student handbooks so that your policies are clear and supported. In the next article of this series, we will take a closer look at policies and protocols private-independent schools need to incorporate to best protect the school’s future as well as the lives of all students and employees.
