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.
Consent will be determined with the following principles in mind:
- Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
- Consent is required regardless of whether the person initiating the act is under the
influence of drugs and/or alcohol. - Consent may be initially given but withdrawn at any time.
- Consent cannot be given when a person is incapacitated (see definition below).
- Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
- When consent is withdrawn or can no longer be given, sexual activity must stop.
Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. 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.
For purposes of determining whether a Respondent is responsible for a violation of this policy due to their engaging in sexual activity without consent with a person who was incapacitated, the University will assess whether a Respondent knew or a reasonable, sober person in the
Respondent’s circumstances should have known, that the other individual was incapacitated. A person's responsibility for obtaining consent is not diminished by their use of alcohol and or other drugs. Being intoxicated or impaired by drugs or alcohol is never an excuse for Prohibited Conduct.
“Sexual Activity” shall have the same meaning as “sexual act” and “sexual contact” as defined below:
- contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
- contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
- the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, arouse, or gratify the sexual desire of any person; or
- the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, arouse, or gratify the sexual desire of any person.
“Sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, arouse, or gratify the sexual desire of any person.
“Complainant” shall mean a student or employee who has reported sexual misconduct. Depending on the context, Complainants may also be referred to in the abstract as “survivors” or “victims” (that is context-dependent and is not intended to suggest that the University has pre-judged the outcome of any individual case). In some instances, the University may proceed with an investigation and resolution process without a named Complainant.
- “Accused” shall mean a person accused of a violation under this policy who has not yet entered the University’s conduct process. A person accused under this policy who is not a student or employee of Siena or whose identity is unknown shall also be referred to as accused.
- “Respondent” shall mean a person accused of a violation who has entered the University’s conduct process.
“Reporting Individual” shall encompass the terms victim, survivor, Complainant, witness with victim status, and any other term used to reference an individual who brings forth a report of a violation or is reported by another person to have been subjected to Prohibited Conduct.
A “witness” is defined as an individual who has knowledge of facts that may be relevant to the resolution of an allegation.
A “bystander” shall mean a person who observes a crime, impending crime, conflict, potentially violent or violent behavior, or conduct that is in violation of rules or policies of the University. Anyone witnessing harassment as a bystander is encouraged to report it. An employee that is a bystander to harassment is required to report it. There are five standard methods of bystander intervention that can be used when anyone witnesses harassment or discrimination and wants to help.
- A bystander can interrupt the harassment by engaging with the individual being harassed and distracting them from the harassing behavior;
- A bystander who feels unsafe interrupting on their own can ask a third party to help intervene in the harassment;
- A bystander can record or take notes on the harassment incident to benefit a future investigation;
- A bystander might check in with the person who has been harassed after the incident, see how they are feeling and let them know the behavior was not ok; and
- If a bystander feels safe, they can confront the harassers and name the behavior as inappropriate. When confronting harassment, physically assaulting an individual is never an appropriate response.
Though not exhaustive, and dependent on the circumstances, the guidelines above can serve as a brief guide of how to react when witnessing harassment in the workplace. Any employee witnessing harassment as a bystander is required to report it.
An advisor is a person chosen by a party or appointed by the institution to accompany the party to meetings related to the resolution process and to advise the party on that process.
Live hearings, conducted via Zoom, will be conducted in both Title IX and Non-Title IX Sexual Misconduct cases. Hearings will be presided over by a Hearing Officer, who will make the decision by a preponderance of the evidence as to whether or not the Respondent violated the policy provisions at issue.
The preponderance of the evidence standard means to prove that something is more likely than not.
The appeal panel consists of faculty, staff, and administrators selected from the Siena University community, and/or external individuals retained by the University to serve as appeal panel members. Appeal panel members are trained annually regarding the University’s Sexual Misconduct and Interpersonal Violence policy and procedures, case review, and adjudication. An appeal panel member will not participate in a panel meeting if there is a conflict of interest.