SEX DISCRIMINATION
“Sex Discrimination” occurs when an individual is treated differently because of his or her sex (including one’s gender identity and/or transgender status) and this treatment denies or limits an individual's ability to participate in or benefit from EVMS programs or it interferes with the individual’s employment or educational performance at EVMS. Examples include, but are not limited to, the following:
- Rejecting otherwise qualified applicants because of their sex.
- Subjecting individuals to different rules or sanctions because of their sex.
- Counseling an individual away from a job or program because of perceived sex stereotypes.
- Retaliation against an individual who has made a Title IX or other complaint.
- Being subjected to Sexual Harassment (as defined below).
SEXUAL HARASSMENT
Sexual Harassment is an umbrella category of prohibited behavior, which includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking as follows:
A. Sexual Harassment. Sexual Harassment is any unwelcome conduct on the basis of sex (regardless of the sex, sexual orientation, and/or gender identity of those involved) that satisfies one or more of the following:
1. It is between employees where participating in such conduct is made (by express communication or implied from the circumstances) a term or condition of an individual's employment or when submission to or rejection of conduct by an individual is used as a basis for employment decisions affecting that individual (also known as Quid Pro Quo); or
2. It is between employees that a reasonable person would determine is so severe, pervasive, and objectively offensive, that it effectively denies a person equal access to EVMS education programs or activities
3. Sexual assault, or dating violence, domestic violence or stalking as outlined below
B. Sexual Assault. Defined as:
1. Sex Offenses, Forcible: Any sexual act directed against another person, without the consent of the Complainant, including instances in which the Complainant is incapable of giving consent.
2. Forcible Rape: 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 Complainant.
3. Forcible Sodomy: Oral or anal sexual intercourse with another person:
i. forcibly, and/or against that person’s will (non-consensually); or
ii. Not forcibly or against the person’s 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.
4. 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 another person:
i. Forcibly, and/or against that person’s will (non-consensually); or
ii. Not forcibly or against the person’s 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.
5. Forcible Fondling: The touching of the private body parts of another person (buttocks, groin, breasts), for the purpose of sexual gratification,
i. Forcibly, and/or against that person’s will (non-consensually); or
ii. Not forcibly or against the person’s 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.
6. Sex Offenses, Non-forcible:
i. Incest - Non-forcible sexual intercourse, between persons who are related to each other, within the degrees wherein marriage is prohibited by [insert state] law.
ii. Statutory Rape: Non-forcible sexual intercourse with a person who is thirteen years of age or older, but under fifteen years of age (see 18.2-63 of the Code of Virginia) or anyone over the age of 18 years of age engaging in consensual sexual intercourse with someone 15, 16, or 17 years of age (see § 18.2-371 of the Code of Virginia).
7. Dating Violence. Defined as violence, on the basis of sex, committed by a person, 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:
i. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
ii. Dating violence does not include acts covered under the definition of domestic violence.
8. Domestic Violence.* Defined as violence, on the basis of sex, committed by a:
i. Current or former spouse or intimate partner of the Complainant;
ii. Person with whom the Complainant shares a child in common;
iii. Person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner;
iv. Person similarly situated to a spouse of the Complainant under the domestic or family violence laws of the Commonwealth of Virginia; or
v. 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 the Commonwealth of Virginia.
*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.
9. Stalking.
i. Defined as engaging in a course of conduct, on the basis of sex, directed at a specific person, that would cause a reasonable person to:
(a) fear for their safety or the safety of others;
(b) Suffer substantial emotional distress.
ii. For the purposes of this definition—
(a) 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.
(b) Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
(c) Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.
C. Force, Coercion, Consent, and Incapacitation. As used in the offenses above, the following definitions and understandings apply:
1. 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,” “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.
2. Coercion: Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. 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.
3. Consent. Consent is knowing, voluntary, and clear permission by word or action to engage in sexual activity.
i. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to determine that the other has consented before engaging in the activity.
ii. 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.
iii. 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. 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.
iv. 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 reasonable time.
v. 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.
vi. Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on EVMS 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 incident occurred and any similar, previous patterns that may be evidenced.
4. Incapacitation:
i. A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this policy if they engage in sexual activity with someone who is incapable of giving consent.
ii. 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, or how” of their sexual interaction).
iii. It is a defense to a sexual assault policy violation that the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated. “Should have known” is an objective, reasonable person standard which assumes that a reasonable person is both sober and exercising sound judgment.
iv. 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.
v. 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 drugs.
D. Online Harassment and Misconduct
1. This policies broadly includes online and cyber manifestations of any of the behaviors prohibited above, when those behaviors occur in or have an effect on EVMS’s education program and activities or use EVMS networks, technology, or equipment.
2. Members of the community are encouraged to be good digital citizens and to refrain from online misconduct, such as feeding anonymous gossip sites, sharing inappropriate content via Snaps or other social media, unwelcome sexting, revenge porn, breaches of privacy, or otherwise using the ease of transmission and/or anonymity of the Internet or other technology to harm another member of EVMS community.
3. EVMS may not control websites, social media, and other venues in which harassing communications are made, when such communications are reported to EVMS, it will engage in a variety of means to address and mitigate the effects.
4. Any online postings or other electronic communication by students, including cyber-bullying, cyber-stalking, cyber-harassment, etc., occurring completely outside of EVMS’ control (e.g., not on EVMS networks, websites, or between EVMS email accounts) will only be subject to this policy when such online conduct can be shown to cause a substantial in-program disruption. Otherwise, such communications are considered speech protected by the First Amendment. Supportive measures for Complainants will be provided, but protected speech cannot be subjected to discipline.
5. Off-campus harassing speech by employees, whether online or in person, may be regulated by EVMS only when such speech is made in an employee’s official or work-related capacity.