Human Rights Policy

HUMAN RIGHTS POLICY AND PROCEDURES 2014-2015

* Policy will be under review commencing Fall 2014

The following individuals may be contacted for additional information and/or clarification regarding the Human Rights Policy and Procedures at Siena College:

John L. Bebb, Chair, Human Rights Committee – (518) 783-2328
Dr. Michele Paludi, Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator– (518) 782-6673
John Felio, Dean of Students, Designated Official – (518) 783-2328

1. Policy Statement

A. Siena College is committed to maintaining a community environment that fosters respect for the dignity and worth of each individual.

Siena College expects all members of the community to demonstrate respect for themselves and others. In a college community, it is critical that respect encompass diversity, differences of opinion, and sensitivity to these differences. The dignity of the individual should never be violated in any way, and the college community views with seriousness offenses against any person.

Particularly intolerable, in view of the College’s commitment to respect the dignity of the individual, are acts of discrimination and discriminatory-based harassment, which are offenses directed against persons because of their race, religion, ethnicity, national origin, gender, age, sexual orientation, gender identity, marital status, veteran status, disability, predisposing genetic characteristics, domestic violence victim status or other basis identified in federal or state law.

Discrimination and discriminatory-based harassment are unethical and unprofessional, and they are incompatible with Siena’s commitment to diversity, educational equity, and the Franciscan tradition. Any form of such behavior toward any member of the Siena community (students, staff, faculty, or administrators) will be subject to strong disciplinary action.

The College will also address to the extent practicable any reported behavior in violation of this policy that is directed towards any member of the Siena community by non-members, including contractors, alumni, visitors, and any others identified as non-employees or non-students of the College.

B. It is the intent of this policy and accompanying procedures to:

i. foster an environment of diversity and to recognize the interdependence that characterizes our local and global community;

ii. educate members of the Siena community regarding conduct that is both expected and proscribed;

iii. prevent instances of discrimination and discriminatory-based harassment to the extent possible;

iv. establish a meaningful grievance process for all members of the Siena community who believe they have been discriminated against or subjected to discriminatory-based harassment;

v. invoke disciplinary or remedial action, excluding all forms of monetary damages, against those determined to have engaged in discriminatory or discriminatory-based harassment behavior;

vi. protect the rights and confidentiality of all parties to a Human Rights complaint to the extent possible under the circumstances;

vii. prevent retaliation against persons alleging discrimination or discriminatory-based harassment or against persons cooperating in an investigation of alleged discrimination or discriminatory-based harassment;

viii. conduct investigations and proceedings that involve alleged violations of this policy in a prompt, fair, equitable and impartial manner;

ix. assure that individuals involved in investigating and adjudicating alleged violations of this policy receive training annually on the issues related to domestic violence, dating violence, sexual assault and stalking, and how to conduct an investigation and hearing process that protects the safety of complainants and promotes accountability; and

x. assure that the College will take steps to prevent the recurrence of conduct in violation of this policy, and remedy its effects, as appropriate.

2. Duties of Members of Siena College

A. All Members

i. All members of the Siena community should assume the responsibility to see that the College is free from all forms of prohibited discrimination, discriminatory-based harassment and sexual harassment (collectively referred to as “discrimination”) and that any forms of these behaviors are properly reported, free of retaliation. Obviously, the College cannot take action to address and deter discrimination if it is not aware that it has occurred.

B. Supervisors

i. It is the responsibility of supervisors, deans, department heads, and other managers, including coaches, residential life staff, and club advisors, to:

a. inform students, employees, and students acting as employees, under their direction or supervision of this policy;

b. inform visitors, independent contractors, vendors and their representatives and others transacting business with the College of this policy;

c. inform officials at volunteer service sites, internships and field educational experience settings, of this policy and ensure that students in these settings are aware of their rights and responsibilities in relation to these experiences;

d. notify the Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator and/or appropriate Designated Official when they receive reports or complaints of harassment;

e. notify the Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator and/or appropriate Designated Official when they observe or otherwise become aware of incidents of discrimination;

f. in consultation with College officials such as, for example, the College’s Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator, appropriate Designated Officials, and/or their supervisors as appropriate, deal expeditiously and fairly with allegations of discrimination or discriminatory-based harassment within their departments whether or not there has been a written or formal complaint; and

g. implement any corrective actions imposed as a result of findings of discrimination or discriminatory-based harassment.

ii. Supervisors, deans, department heads, other managers and faculty members who knowingly allow or tolerate discrimination, discriminatory-based harassment, or sexual harassment are in violation of the reporting obligations imposed by this policy and are subject to discipline.

C. Faculty, Administrators, Staff, and Students

i. It is the responsibility of the faculty, administrators, staff, and students to discourage discrimination, discriminatory-based harassment and sexual harassment and to report incidents of these types of misconduct to the Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator or appropriate Designated Official. This is regardless of whether they are the person or persons discriminated against, or a witness to such discrimination. This responsibility extends to off-campus College-sponsored activities and/or educational endeavors and includes behavior that initially occurred off campus when there has been an effect on campus.

ii. Any faculty member, administrator, staff employee, or student who believes s/he has been subjected to discriminatory actions or discriminatory-based harassment is encouraged to promptly report the incident to and confer with the Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator and/or appropriate Designated Official.

D. Clery Act Reportable Crimes

i. The Department of Public Safety must be notified when any college official receives a complaint of harassment that is also a Clery Act reportable crime. This includes, for example, reports of sexual violence, domestic violence, dating violence and stalking, where the conduct as reported fits within the reporting requirements of the Clery Act. (See Campus Crime Statistics at http://www.siena.edu/student-life/safety-parking/public-safety/campus-crime-statistics/)


E. Human Rights Committee

i. The Human Rights Committee is responsible for the overall administration of the Human Rights policy and procedures. It is comprised of:

a. Four (4) faculty representatives (who must be faculty members in tenure status, not serving on the Grievance Committee or Status Committee, or librarians) as elected from the faculty;

b. Four (4) administrators as nominated by the Council of Administrators and appointed by the President;

c. Four (4) support staff as nominated by the Human Resources Advisory Committee and appointed by the President; and

d. Nine (9) students as selected and appointed to serve on the Student Conduct Review Board/Human Rights Committee by the Student Senate.


F. The Human Rights Committee Chair, Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator, Designated Officials and Human Rights Support

i. These officials have specified roles and responsibilities in relation to the Human Rights Policy and Procedures, which are explained in more detail in separate guidelines which are available upon request.

a. The Human Rights Committee Chair: Individuals who believe they have been subjected to or are accused of conduct prohibited by this policy may speak with the Chair of the Human Rights Committee. The Chair is a non-voting member of the Human Rights Committee, who serves in an ombudsman role advising the reporting witness, complainant and respondent as to their rights and possible courses of action through the Human Rights process. The Chair and members of the Human Rights Committee conduct periodic reviews related to Title IX Gender Equity in Athletics and details outlining this process may be provided upon request.

b. The Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator: Individuals who believe they have been subjected to or are accused of conduct prohibited by this policy may speak with the Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator, who is also referred to as the Title IX Coordinator. The Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator serves as an ombudsman and will assist the reporting witness, complainant and respondent in exploring options to address the human rights concern. The Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator has responsibility for overseeing all human rights reports and complaints, and for identifying and addressing any patterns or systemic problems that arise during a review of reports and complaints. The Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator designates Deputy Title IX Coordinators for Employees, Students and Athletics, respectively.

c. The Designated Official responsible for reports and complaints against any non-student employee (faculty, administrative and/or support staff) is the Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator or designee. Individuals who believe they have been subjected to harassment or discrimination due to the conduct of an administrator, faculty member or staff member may report the incident to the Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator.

d. The Designated Official responsible for reports and complaints against students is the Dean of Students or designee. Individuals who believe they have been subjected to harassment or discrimination due to the conduct of a student may report the incident to the Dean of Students or Associate Dean of Students.

e. Human Rights Support: Individuals who believe they have been subjected to or accused of harassment or discrimination may seek out advice, support and/or guidance from any member of the Human Rights Committee, the Director of the Damietta Cross-Cultural Center, the Director of Sr. Thea Bowman Center for Women, and the Director of Services for Students with Disabilities.

3. Confidentiality

A. The College will, to the extent practicable, maintain the anonymity of the parties to a Human Rights complaint and that of any witnesses, subject to the College’s need, for example, to do related investigations, administer proceedings under this policy, and maintain the safety of members of the College community. It will disclose to other members of the Siena community information relating to a Human Rights complaint only on a need-to-know basis. Further, the College will protect the confidentiality of individuals who report that they have been subjected to conduct prohibited by this policy in all publicly-available records.

B. Participants in the Human Rights complaint resolution process, including the respondent, witnesses, members of hearing panels, and officers, shall respect the confidentiality of the process and proceedings.

4. Non-Retaliation

A. Intimidation of or retaliation against individuals for filing a complaint, for reporting an incident of discrimination, discriminatory-based harassment, domestic violence, dating violence or stalking, for participating in an investigation under this policy, or for otherwise exercising their rights or responsibilities under this policy, is prohibited and will be cause for disciplinary action. Intentionally breaching confidentiality for illegitimate purposes could be considered a means of intimidation or retaliation. Complaints regarding allegation of retaliation or intimidation shall be made to the appropriate Designated Officials.

5. Conflict of Interest

A. Equal Opportunity and Employee Relations Specialist/Title IX Coordinator/Section 504 Coordinator, Designated Officials, Human Rights Committee members and any official who participates in the human rights process are required to fully disclose to the Chair of the Human Rights Committee if there is any real or perceived conflict of interest that could potentially influence their participation in the human rights complaint process. Parties to proceedings held under this policy will be provided with an opportunity to raise any concerns they might have about conflict of interest issues. The Chair (or an alternate person designated by the College if such concerns involve the Chair) will decide whether the concerns raised require the appointment of alternate members or officials, and will inform the parties of that decision.

6. Information and Resources for Individuals Subjected to Conduct Prohibited by this Policy

If you have been subjected to conduct prohibited by this policy, your first priority should be to seek help. On-campus and off-campus resources that are available to assist you, some on a 24/7 basis, are identified here: http://www2.siena.edu/pages/7014.asp. You should also attempt to preserve any evidence, whether physical (that is, your physical condition), electronic/digital (such as emails or text messages), or material (such as clothing, bedding, etc.) that could possibly relevant to establishing that conduct in violation of this policy occurred. Preservation of evidence does not obligate you to pursue criminal or civil charges, or to participate in College disciplinary proceedings; rather, it only assures that if you do at some time choose to pursue such options, the evidence will be available. Detailed information about preserving evidence is provided here: http://www2.siena.edu/pages/7221.asp.

As detailed further below, reports of or concerns about conduct prohibited by this policy may be raised confidentially with the Center for Counseling and Student Development and the Chaplain's Office. You should never hesitate to seek support from these offices, because they will provide support without initiating contact with public safety or law enforcement, nor will they initiate the College’s disciplinary processes. Other College representatives, while respectful of your choices to the extent practicable, may have to do some form of investigation depending on the circumstances, as described more fully below.

Individuals should not hesitate to seek assistance from the College or report conduct prohibited by this policy because they may also have violated a College policy in connection with the alleged incident(s). For example, a student may feel that s/he was subjected to sexual violence under circumstances where s/he had been drinking alcohol or using drugs in violation of College policy. The College’s primary concern is safety, and other potential policy violations by complainants will be considered separately and with due regard for the overall circumstances. The use of alcohol or drugs never makes a complainant at fault for an incident of sexual violence.

Individuals should not hesitate to participate in the College’s disciplinary process due to fear that they will be confronted by a respondent or their counsel during the process. The College can separate the parties physically during hearings and otherwise accommodate reasonable requests by complainants intended to promote participation in the process, and the College does not permit direct cross-examination of complainants by respondents or their counsel.

7. Prohibited Conduct

A. In General

i. It is against this policy to discriminate against individuals in the College community solely on the basis of their race, religion, ethnicity, national origin, gender, age, sexual orientation, gender identity, marital status, veteran status, disability, predisposing genetic characteristics, domestic violence victim status or other basis identified in federal, state or local law (referred to as a “protected category”).

ii. Harassment against someone on the basis of a protected category is a form of illegal discrimination that violates this policy. This form of discrimination is referred to in this policy as discriminatory-based harassment.

iii. Sexual harassment as defined by federal and state law is also prohibited by this policy, and unwelcome conduct of a sexual nature should be reported under this policy, so that the College can determine whether prohibited sexual harassment has occurred.

iv. Sexual violence, rape, sexual assault, sexual battery, and sexual coercion are also prohibited by this policy,

v. Domestic violence, dating violence and stalking are also prohibited by this policy.

vi. In interpreting whether conduct is prohibited, it must be remembered that the free and responsible exchange of ideas is at the heart of the educational enterprise. The College does provide opportunities to develop critical and creative thinking; therefore, nothing in this policy should be construed as interfering with the free and responsible expression of opinion, in or out of the classroom, so that, for example:

a. Threats and verbal assaults, both oral and written, will never be tolerated. However, the expression of a belief that another person considers offensive or false is not adequate to prompt the use of these procedures. This is so unless, in light of the circumstances, it can reasonably be shown that the expression was directed toward a given individual or identifiable group of individuals because of their protected category status with the intent or reasonably foreseeable effect of doing harm or creating a hostile or intimidating work, educational or living environment for them or the broader community. Ideas that are considered offensive should be challenged with other ideas in order to promote peaceful dialogue and an enriching educational experience at the College.

b. It must also be noted that some forms of behavior that are disturbing may not meet the definitions of harassment or discrimination found in this policy, but may still be prohibited by other rules or policies and may constitute student or employee misconduct. Complaints may be handled under those procedures outlined in the Faculty, Administrative and/or Staff Handbooks and Student Code of Conduct.


B. Discriminatory-Based Harassment

1. Discriminatory-based harassment is behavior that occurs against an individual(s) on the basis of a protected category. Specifically, discriminatory-based harassment:

a. Involves an expressed or implied threat to an individual’s academic efforts, employment, professional advancement or promotion, participation in College-sponsored activities, or personal safety; or

b. Has the purpose or reasonably foreseeable effect of interfering with an individual’s academic efforts, employment, professional advancement or promotion, participation in College-sponsored activities, or personal safety; or

c. As adapted from the U.S. Equal Employment Opportunity Commission’s guidelines on sexual harassment, creates an intimidating, hostile, or demeaning environment, based upon unwelcome conduct that is so severe or pervasive that it interferes with an employee’s employment, , or as adapted from U.S. Department of Education guidance on sexual harassment, creates a hostile environment because it is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the College’s program (including its academic, residential, or other College-sponsored activities).

d. Harassment can take many forms, including:

1. Oral or Written: Comments, objects, pictures, videotapes, audio recordings or literature, directed toward an individual in any medium, including but not limited to, all electronic media, the purpose or reasonably foreseeable effect of which is to denigrate, demean, insult, threaten, intimidate, attack, embarrass, or otherwise injure the person who is the target or subject of those comments. Examples include name-calling and derogatory humor about supposed traits of the group to which that individual belongs.

2. Non-verbal: Suggestive or insulting sounds or gestures.

3. Physical: Unwanted touching of the body, such as patting, pinching, brushing up against, and shoving, and acts, such as, stalking, assault and battery, sexual assault, rape, attempted rape, and property damage.

Examples include, but are not limited to:
• Racial slurs or epithets
• Treating an individual differently because of the individual’s race,
sexual orientation, national origin, sex, religion or other protected categories
• Telling jokes pertaining to protected categories
• Suggestive, obscene or insulting sounds
• Posters, email, cartoons, pictures displayed in the work area that creates an offensive and intimidating environment
• Engaging in threatening, intimidating or hostile acts towards an individual because that individual belongs to or is associated with any protected categories

e. Intoxication is often a factor in incidents of harassment. However, no form of intoxication shall be recognized as a defense against charges of harassment, nor shall any form of intoxication be seen as mitigating the seriousness of a charge.

f. An incident (e.g., a single comment or joke) may not constitute harassment unless it is repeated or egregious, depending on the circumstances and the College’s assessment of the situation. This does not mean that the College will not respond to isolated incidents that some may find offensive, but that education, remediation and other like means may be used to address them.

g. Harassment may not be present if the conduct is welcomed and encouraged. However, the conduct may constitute harassment to third parties who witness the behavior.


C. Sexual Harassment is a form of discriminatory-based harassment based on gender.

1. Sexual harassment is a form of illegal sex-based discrimination in violation of Title IX of the Education Amendments Act of 1972 and of Title VII of the Civil Rights Act of 1964.

2. Based upon the U.S. Equal Employment Opportunity Commission’s guidelines implementing Title VII and the Office of Civil Rights, U.S. Department of Education guidelines implementing Title IX, sexual harassment can be defined in the following way:

a. Unwelcome sexual advances, requests for sexual favors, and other verbal (oral or written), non-verbal, or physical conduct of a sexual nature, when:

b. Submission to such conduct is made, either explicitly or implicitly, a term or condition of employment success;

c. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals;

d. A hostile work environment. A hostile work environment is one where conduct is so severe or pervasive that it has the effect of unreasonably interfering with an employee’s work performance or creating an intimidating, offensive working environment; or

e. Unwelcome conduct of a sexual nature creates a hostile environment because it is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the College’s program (including its academic, residential, or other College-sponsored activities).

3. Examples of sexual harassment include, but are not limited to the following situations, whether or not there is the presence of a relationship that puts one person in a position of authority:

a. Unwelcome sexual propositions, invitations, solicitations, flirtations, and leering;

b. Unwelcome and inappropriate touching, patting, fondling, pinching, grabbing or brushing up against;

c. Obscene gestures;

d. Seeking sexual favors or relationships in return for the promise of a favorable grade or other academic or employment benefit or opportunity (quid pro quo):

e. Conditioning an employment-related action (such as hiring, promotion, salary increase, performance appraisal, or refraining from discipline or termination) on a sexual favor or relationship (quid pro quo);

f. Conditioning an academic-related action or extracurricular activity (such as a grade, assignment, refraining from discipline, or a leadership position in a club or sports team) on a sexual favor or relationship (quid pro quo);

g. Unwelcome verbal expressions of a sexual nature, including graphic sexual commentaries about a person’s body, dress, appearance, or sexual activities; the unwelcome use of sexually degrading language, jokes or innuendos; unwelcome suggestive or insulting sounds or whistles; obscene telephone calls;

h. Sexually suggestive language, objects, pictures, videotapes, audio recordings or literature, or computerized transmissions placed in the work or study area, that may embarrass or offend individuals;

i. Sexually suggestive language, objects, pictures, videotapes, audio recordings or literature, sent to specific individual(s) or posted through any electronic media, that may embarrass or offend such individuals;

j. In the case of co-workers or individuals in positions of authority, conduct of the nature set forth above when the effect is to unreasonably interfere with the ability of a person to perform his or her employment or academic responsibilities, or when the effect is to create an offensive, intimidating and/or hostile working or learning environment for that person.

4. Instances (e.g., a single sexual overture, comment, invitation or joke) ordinarily will not constitute sexual harassment unless there is repetition or the circumstances are egregious. In this regard, occasional compliments also do not constitute sexual harassment. Generally, sexual behavior that is welcomed and consensual may not constitute sexual harassment, unless it can be demonstrated that it has an impact on a third party. There also may be some specific instances where consensual relationships are prohibited if they take place between students and non-student members of this community. (See “Prohibition of Consensual Relationships” below.)

5. Contrapower Sexual Harassment involves a student or employee sexually harassing a professor or manager. The professor or manager’s status on campus is ignored, and complaints of such conduct are handled generally as other complaints would be, with variations as necessary under the circumstances.

6. Third Party Sexual Harassment deals with the situation in which the individual to whom the sexually harassing conduct is aimed is not the only person who can complain about the sexual harassment. Third parties may complain when the harassment directed at others adversely affects the other person’s work or learning environment. Third parties may also complain when offensive sexual conduct, even if it is consensual between the parties involved, is creating a hostile work/learning environment for the third party.

7. Sexual Harassment of individuals who are neither students nor employees at the College is prohibited by and will be addressed under this policy where the conduct at issue occurs in connection with such third parties’ involvement in the College’s education programs or activities (e.g., participants in College recruitment programs, visiting student athletes, and visitors in on-campus residence halls). Such individuals should follow the policies applicable to student complainants provided in this policy; the term “student” should be read throughout this policy as encompassing such individuals.

8. What Isn’t Sexual Harassment: Sexual harassment does not refer to relationships between responsible, consenting adults. Sexual harassment does not mean flirting engaged in willingly by both parties. Giving compliments does not mean sexual harassment. Sexual harassment refers to unwanted, unwelcome behavior. Not every joke or touch or comment is sexual harassment. The key is to determine if the behavior is unwanted, unwelcome, and of a sexual nature. Furthermore, sexual harassment interferes with a student’s ability to learn and an employee's ability to get their work done.

9. Costs of Sexual Harassment: There are high costs of sexual harassment to individuals. They may include depression, feelings of helplessness, headaches, anxiety, sleep disturbances, difficulty concentrating and disordered eating. The cost of sexual harassment to our campus includes decreased productivity, absenteeism, and decreased morale.

10. False Complaints: If after investigating any complaint of sexual harassment it is discovered that the complaint is not bona fide or that an individual has provided false information regarding the complaint, that individual may be subject to disciplinary action, including verbal and written reprimands, transfers, demotions, and dismissal.


D. Sexually violent acts are prohibited under this policy, including rape, sexual assault, sexual battery, and sexual coercion:

1. Sexually violent acts are physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent for reasons such as but not limited to, the victim’s age, the victim’s use of drugs or alcohol or the victim’s inability to give consent due to intellectual or other disability.

2. The term sexual assault refers to offenses classified as forcible or nonforcible sex offenses under the Uniform Crime Reporting (UCR) system of the Federal Bureau of Investigation, including forcible rape, forcible sodomy, sexual assault with an object, forcible fondling, incest and statutory rape.

3. Sexual coercion is the act of using force, threats, alcohol or drugs and/or using physical, emotional or verbal pressure to have sexual contact with someone against his or her will or where a person is incapable of giving consent for reasons including, but not limited to, the victim’s age, the victim’s use of drugs or alcohol or the victim’s inability to give consent due to intellectual or other disability. Sexual contact includes kissing, patting, fondling, oral sex, genital touching, and any other sexual behavior that makes the victim feel uncomfortable.

4. Consent will be determined with the following principles in mind:
i. consent is a voluntary agreement to engage in sexual activity;
ii. someone who is incapacitated cannot consent;
iii. past consent does not imply future consent;
iv. silence or an absence of resistance does not imply consent;
v. consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another;
vi. consent can be withdrawn at any time; and
vii. coercion, force, or threat of either invalidates consent

5. Definition of Incapacitated:
A person can be "drunk" and also have the capacity to give consent. To better understand and determine capacity, Siena College uses the NCHERM explanation:

With regard to alcohol, there are multiple levels of effect, along a continuum.

The lowest level is impairment, which occurs with the ingestion of any alcohol. A synonym for impairment is "under the influence."

Incapacity is a higher level of alcohol consumption

The highest level is overdose, or alcohol blood poisoning, which may lead to coma or death. An individual who is physically incapacitated as a result of alcohol or other drug consumption (voluntary or involuntary), or who is unconscious, unaware, or otherwise physically helpless, is incapable of giving consent. One may not engage in sexual activity with another who one knows or should reasonably know to be physically incapacitated.

6. Assessing Incapacity

Physical incapacities are sometimes quite overt, and other times more subtle. Incapacitation is a subjective determination that will be made after the incident, in light of all the facts available. Incapacitation is subjective because people reach incapacitation in different ways and as the result of different stimuli. They exhibit incapacity in different ways. Incapacity is dependent on many or all of the following factors:

• Body weight, height and size;
• Tolerance for alcohol and other drugs;
• Amount, pace and type of alcohol or other drugs consumed;
• Amount of food intake prior to consumption;
• Voluntariness of consumption;
• Vomiting;
• Propensity for blacking-out (mentally or physically);
• Genetics.

Evidence of incapacity will come from context clues, such as:

• A witness or the accused may know how much the other party has consumed;
• slurred speech;
• bloodshot eyes;
• the smell of alcohol on the breath;
• shaky equilibrium;
• vomiting;
• outrageous or unusual behavior
• unconsciousness.

None of these facts, except for the last, may constitute--in and of themselves-- incapacitation. But, the process of finding someone responsible for a violation of Siena College’s Human Rights Policy involves a review of evidence, amounting to a sufficient or insufficient meeting of the standard of proof: preponderance of the evidence (more likely than not).

E. Dating violence is prohibited by this policy.

1. Dating violence means violence committed by a person:

i. who is or has been in a social relationship of a romantic or intimate nature with the victim; and
ii. where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship. (ii) The type of relationship. (iii) The frequency of interaction between the persons involved in the relationship.

F. Domestic violence is prohibited by this policy.

1. Domestic violence includes felony or misdemeanor crimes of violence committed by a current or former spouse 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, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, 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.

G. Stalking is prohibited by this policy.

1. Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
a. fear for his or her safety or the safety of others; or
b. suffer substantial emotional distress.


H. Prohibition of Consensual Relationships

1.. Unique relationships exist between students and certain employees of the College, such as faculty members, administrators and staff who serve in such roles as educator, counselor, evaluator or who exercise other types of control over students. Given the possibility that abuse of this relationship or the appearance of abuse may occur, the College views it as unacceptable if faculty members or other instructional personnel, administrators, or staff members engage in amorous relationships with students enrolled in their classes or subject to their supervision, control or authority, even when both parties appear to have consented to the relationship.

2. Where this prohibition is applicable, if charges of sexual harassment are made, it shall not be a defense to allege that the relationship was consensual in any proceeding brought under these procedures.