VII.D. Sexual Harassment and Sexual Violence Policy

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1. Introduction

Every member of the community should be aware that the BSC prohibits sexual harassment and sexual violence, and that such behavior violates both law and BSC policy. The BSC will respond promptly and effectively to reports of sexual harassment and sexual violence, and will take appropriate action to prevent, to correct, and when necessary, to discipline behavior that violates this policy on Sexual Harassment and Sexual Violence (hereafter referred to as Policy).

2. Definitions

Sexual Harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment is conduct that explicitly or implicitly affects a person’s employment or education or interferes with a person’s work or educational performance or creates an environment such that a reasonable person would find the conduct intimidating, hostile, or offensive. Sexual harassment includes sexual violence (see definition below). The BSC will respond to reports of any such conduct in accordance with the Policy.

Sexual harassment may include incidents between any members of the BSC community, including staff, student employees, members, and non-member or non-employee participants in BSC programs (e.g., vendors, contractors, and visitors). Sexual harassment may occur in hierarchical relationships, between peers, or between any other individuals.


Sexual Violence is defined as physical sexual acts engaged without the consent of the other person or when the other person is unable to consent to the activity. Sexual violence includes sexual assault, rape, battery, and sexual coercion; domestic violence; dating violence; and stalking (see definitions below).


Sexual Assault is defined as engaging in sexual intercourse with any person without that person’s consent or when the other person is unable to consent to the activity. Sexual contact is vaginal, oral, or anal intercourse or penetration, however slight, of the vagina, or anus with any object or body part and of the mouth with a sexual body part or any other object. The activity or conduct may include physical force, violence, threat, or intimidation, ignoring the objections of the other person, causing the other person’s intoxication or incapacitation through the use of drugs or alcohol, or taking advantage of the other person’s incapacitation (including voluntary intoxication).


Sexual Misconduct is defined as the act of making sexual contact with the intimate body part of another person without that person's consent. Intimate body parts include the sexual organs, the anus, the groin or buttocks of any person, or the breasts.


Consent is defined as an affirmative, unambiguous and willing participation or cooperation in act or attitude that is commonly understood to be consistent with the exercise of free will. Consent requires participants who are fully conscious, are equally free to act, have clearly communicated their willingness, cooperation, or permission to participate in a specific sexual activity, are positive and clear in their desires, and are able to cease ongoing consensual activity at any time. Refusal to consent does not have to be verbal; it can be expressed with gestures, body language or attitude. Consent to some form of sexual activity does not imply consent to other forms of sexual activity. A prior sexual history between the complainant and respondent does not constitute consent. Even in the context of a relationship, there must be mutual consent to engage in sexual activity. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. Once consent is withdrawn, the sexual activity must stop immediately.

Consent is voluntary and is not freely given if:

1. It is obtained through the use of force, through the fear of or the threat of force, intimidation or by kidnap; or
2. A reasonable person in the position of the alleged perpetrator at the time the alleged conduct occurred should have known that the other person was unable to give consent for any of the following reasons:
• The individual is unable to make an informed decision as a result of alcohol or other drugs (including but not limited to predatory drugs or prescribed medications); or
• The individual is unconscious, asleep, or suffering from shock; or
• The individual is under the age of eighteen and therefore legally unable to give consent; or
• The individual has a known mental disorder or developmental or physical disability, and therefore legally unable to give consent.
3. The individual has acted or spoken in a manner which expresses they refuse to give consent

For purposes of this Policy, the age of consent is consistent with California Penal Code Section 261.5.


Incapacitation is defined as the physical and/or mental inability to make informed, rational judgments. States of incapacitation include, but are not limited to, unconsciousness, sleep, and blackouts. Where alcohol, drugs or other medication are involved, incapacitation is defined with respect to how the alcohol or other drugs consumed affects a person’s decision-making capacity, awareness of consequences, ability to make fully informed judgments, and inability to communicate. Being intoxicated by drugs, alcohol or other medication does not absolve one’s responsibility to obtain consent. The factors to be considered when determining whether consent was given include whether the accused knew, or whether a reasonable person should have known, that the complainant was incapacitated.


Dating violence is defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; and where the existence of such a relationship shall be determined based on a consideration of the following factors:

• The length of the relationship
• The type of relationship
• The frequency of interaction between the persons involved in the relationship


Stalking is defined as a course of conduct directed at a specific person that would cause a reasonable person to feel fear and/or substantial emotional distress. A course of conduct is a pattern of behavior composed of two or more acts over any period of time. Stalking can happen to anyone of any race, age, sexual orientation, religion or gender and can affect every aspect of a victim’s life.


3. Reporting Sexual Harassment or Sexual Violence

To the BSC:

Members and employees who feel they have been a victim of, or who have been witness to, Sexual Harassment or Sexual Violence should inform their supervisor, unit-level manager or a Central Office Supervisor. If the alleged perpetrator is an employee, reports should be made directly to the Executive Director and investigation and disciplinary action related to employment will be in accordances with BSC employment policies/practices.

Members who believe the alleged respondent is a danger to themselves or the community are strongly encouraged to contact the Executive Director or call the BSC Emergency number outside of business hours.

All reports of alleged violations of this Policy will be investigated and appropriate disciplinary action will be taken regardless of whether a police report has been filed. The BSC will evaluate allegations of Sexual Harassment and Sexual Violence and, if a respondent is found responsible for violating policy, will take disciplinary action in accordance with the BSC Grievance Procedure set forth policy VII.E. All complaints regarding current BSC members must be made prior to the respondent's conclusion of their contract with the BSC. Complaints regarding non-current BSC members may be reported per the BSC PNG Policy.


Responsible employees are individuals who must report Conduct Code violations and other safety concerns that may pose a danger to an individual or others. Once made aware of such issues, the responsible employee must notify the BSC Central Office of the known details related to the event, as well as the names and contact information of parties involved. This notification must be made to the responsible employee’s supervisor, liaison, and/or the Member Resources Supervisor within 24 hours of finding out about the incident via email, in phone, or in person. As a result, this may reveal details about the person reporting, a person who has reached out to a responsible employee, and/or the person who has allegedly violated a Conduct Code policy. This may also reveal information about a person who is possibly a threat to themselves or others. Many BSC employees are considered responsible employees including all BSC professional staff, Board Directors, and the following unit-level managers: Presidents, Assistant Apartment Managers, House Managers, Kitchen/Food Managers, Maintenance Managers, Workshift Managers, Theme Managers, Social Managers, and Health Workers.

If concerned about maintaining confidentiality, please use confidential resources such as:

PATH to Care Center (Available to all BSC members, including non-CAL students) [1] Main Office: (510) 642-1988 The Care Line (24/7 hotline): (510)-643-2005


Bay Area Women Against Rape (BAWAR)

http://www.bawar.org/

24 Hour Hotline: (510) 845-7273


Confidential Survivor Advocate (UC Berkeley only)

(510) 642-1988

http://sa.berkeley.edu/dean/confidential-care-advocate


Family Violence Law Center (FVLC)

http://fvlc.org/

24 Hour Hotline: 1-800-947-8301


4. Reporting and Responding to Reports of Sexual Harassment or Sexual Violence

(Where a current BSC member is the alleged perpetrator)

Upon receipt of a report or complaint, whether oral or written, of an alleged violation, the Conduct Hearing Coordinator or a designee of the Executive Director, as appropriate, will begin a preliminary investigation and determine if there is enough information to merit a disciplinary hearing regarding the allegation. If it is determined that a hearing is warranted, they will meet with the complainant and the respondent separately to explain the member Grievance Procedure and obtain from each a statement and list of witnesses, if any, who have information pertinent to the incident.

After meeting with the complainant and respondent, the Central Level Manager or Supervisor handling the case will prepare the case to be heard by the Enforcement Committee. The complainant and respondent will generally be given at least three business days advance notice (exceptions only being during holidays, or Central Office closures) of the scheduled meeting time for the Enforcement Committee hearing.

Members are expected to participate in the member grievance process when they are called as a complainant, respondent or witness. Should a member fail to appear for a pre-hearing interview when an email and phone call have been given or should the member fail to provide a statement during the pre-hearing interview, the hearing will proceed without benefit of that member’s input.


Truthfulness

All individuals participating in the member grievance process are expected to tell the full and complete truth in all disciplinary matters. In order to ensure this is possible, individuals participating in member conduct hearings regarding an alleged violation of the Sexual Harassment and Sexual Violence Policy will not be charged and held responsible for minor violations of the Conduct Policy or other BSC policy. However, if there is a concern about a member's safety, the BSC may recommend counseling or other educational resources for the affected member.


Confidentiality/Privacy

Every reasonable and appropriate effort will be taken by the Central Level Manager or Supervisor and all other involved staff to protect the privacy of all individuals involved in a member grievance hearing, as well as the confidentiality of the details and content of the member discipline process, including, but not limited to the preliminary investigation, Conduct Committee hearing, appeal process, and except where permitted by BSC policy and consistent with applicable law, the sanctions imposed and on whom. However, the BSC cannot guarantee absolute confidentiality. Members involved in the student discipline process, either directly, or as a witness, are expected to maintain the confidentiality of the process and be mindful of the privacy of others involved.


Rights of the Individual Alleging the Violation/Complainant

• The right to the Conduct Member Advisor who will assist the individual through the member grievance process.
• The right to confidentiality of the student conduct process to the extent possible (see above).
• The right to request the use of a BSC courtesy room
• The right to request a change of residence (subject to availability).
• The right to seek any on or off-campus medical and counseling services.
• The right to make a complaint which will initiate the member conduct process.
• The right to request a no contact order for the respondent as an interim measure through the member conduct process.
• The right to have external no contact orders recognized and enforced by the BSC.
• The right to file a police report and take legal action separate from and/or in addition to member conduct action.
• The right to be free from retaliation.


Rights of the Respondent

• The right to the Member Conduct Advisor who will assist the individual through the member conduct process.
• The right to confidentiality of the member conduct process to the extent possible (see above).
• The right to be free from retaliation.


Member Conduct Advisor

Both the complainant and the respondent involved in a conduct matter alleging a violation of this Policy have the right to the Conduct Member Advisor to advise them throughout the process. The advisor is not an advocate for either the complainant or respondent in the proceedings and may not speak on behalf of either member. The advisor may be present at any time at which the member they are advising is meeting with the Central Level Manager or Supervisor or other member of the BSC staff regarding the conduct matter and at which the member wishes for them to be present.

The advisor is obligated to maintain the confidentiality of the nature of the allegation(s), the content of the member grievance and conduct processes, and the privacy of the complainant, respondent, and any witnesses known to the advisor.


Trained Survivor Advocate The complainant in a sexual harassment or sexual violence case may opt to waive the use of the Conduct Member Advisor and instead to utilize a trained survivor advocate in their place. In this case, the BSC Conduct Hearing Coordinator will coordinate communication between the survivor advocate and others involved in the BSC conduct process.


The Conduct Committee

The Conduct Committee exists to adjudicate all cases arising out of the grievance procedures in section VII of the Policy Directory and any other complaints for which no grievance procedure yet exists but involve alleged conduct problems on the part of a member.

The following describes the Conduct Committee’s role with respects to cases involving Harassment, Sexual Harassment and Sexual Violence. For a full description of ConCom please refer to XXVI of the Policy Directory.

1. The conduct committee consists of the Conduct Chair, Conduct Member Advisor, and the Conduct Hearing Coordinator. (If needed, the Cooperative Experience Manager or other staff member designated by the Executive Director will serve in the place of the Conduct Hearing Coordinator).


Conduct Process Involving Sexual Harassment and Sexual Violence

The BSC Grievance Procedure for cases involving Harassment, Sexual Harassment and Sexual Violence will be followed.