4.1 Statement of Prohibited Conduct. The University prohibits Discrimination, Harassment (which includes Sexual Harassment),
Sexual Misconduct, Domestic Misconduct, Stalking, and Retaliation as defined below
(collectively referred to as “Prohibited Conduct”) by or against any Member of the
University Community occurring within the University’s Jurisdiction.
4.2 Jursidiction. There are two types of jurisdiction covered by this Rule: Title IX Jurisdiction and
4.2.1 Formal Complaints of “Sexual Harassment (Quid Pro Quo)”, “Sexual Harassment
(Hostile Environment)”, “Sexual Assault”, “Domestic Misconduct”, and “Stalking” that
occur in a University Education Program or Activity and within the United States will
be covered by Title IX jurisdiction and subject to the grievance procedures discussed
below in Section 7.3. Those instances are referred to as “Title IX Sexual Harassment.”
4.2.2 All other complaints of Prohibited Conduct will be within the University’s jurisdiction
if the behavior (a) occurs on University premises; (b) occurs offcampus and would
unreasonably interfere with the educational or orderly operation of the University
community, its mission, or its objectives determined by a reasonable person; or (c)
occurs off-campus and in light of all of the facts and circumstances, would endanger
the health and safety of the University community.
4.2.3 A finding of responsibility for quid pro quo harassment or the three Clery Act/VAWA
(sexual assault, domestic misconduct, stalking) offenses constitute per se actionable
sexual harassment, and does not require an evaluation for severity, pervasiveness,
and objectiveness, or denial of equal educational access.
4.3.1 “Discrimination” is conduct that is based upon an individual’s race, color,
national origin, ancestry, age, physical or mental disability, marital or family status,
pregnancy, veteran status, service in the uniformed services (as defined in state
and federal law), religion, creed, sex, sexual orientation, genetic information, gender
identity, or gender expression and excludes an individual from participation, denies
the individual the benefits of, treats the individual differently or otherwise adversely
affects a term or condition of an individual’s employment, education, living environment
or participation in a University program or activity.
4.3.2 This includes failure and refusal to provide reasonable accommodation, consistent
with state and federal law, to persons with disabilities. It does not, however, include
programs or activities specifically exempt by law. See, e.g., 20 U.S.C. § 1681(a)
4.4.1 “Harassment” is conduct that creates a Hostile Environment, as defined below,
and is based upon an individual’s race, color, national origin, ancestry, age, physical
or mental disability, marital or family status, pregnancy, veteran status, service
in the uniformed services (as defined in state and federal law), religion, creed,
sex, sexual orientation, genetic information, gender identity, or gender expression.
4.4.2 Harassment may take various forms, including, but not limited to, name-calling,
graphic or written statements (including the use of social media, text messages, e-mail,
or other similar forms), or other conduct that may be physically threatening, harmful,
4.4.3 Harassment does not necessarily have to include intent to harm, be directed
at a specific target, or involve repeated incidents.
4.4.4 “Sex-based Harassment” includes Sexual Harassment and non-sexual harassment
based on stereotypical notions of what is female/feminine versus male/masculine or
a failure to conform to those gender stereotypes.
4.4.5 “Hostile Environment” means a situation where an individual is subjected to
any conduct based on the reasons set forth in Sections 4.3 or 4.4 and that conduct,
determined by a reasonable person, is so severe, or pervasive, or objectively offensive,
that it effectively denies a person equal access to the University’s educational program
220.127.116.11 A Hostile Environment can be created by anyone involved in a University program
or activity (e.g., administrators, faculty members, students, and even campus guests).
Mere offensiveness is not enough to create a Hostile Environment. Although repeated
incidents increase the likelihood that Harassment has created a Hostile Environment,
a serious incident, even if isolated, can be sufficient to create a Hostile Environment.
18.104.22.168 In determining whether Harassment has created a Hostile Environment, consideration
will be made not only as to whether the conduct was unwelcome to the person who feels
harassed, but also whether a reasonable person in a similar situation to the Complainant
would have perceived the conduct as severe, pervasive, and objectively offensive.
Also, the following factors will be considered:
22.214.171.124.1 The degree to which the conduct affected one or more students’ education
or individual’s employment;
126.96.36.199.2 The nature, scope, frequency, duration, and location of incident or incidents;
188.8.131.52.3 The identity, number, and relationships of persons involved.
4.5 Sexual Harassment.
4.5.1 “Sexual Harassment” may occur between people of the same sex or people of different
sexes. Examples of Sexual Harassment may include, but are not limited to, unsolicited,
deliberate, or repeated touching, sexual flirtation, advances or propositions which
are not welcomed and/or desired; unwelcome jokes, stories, comments, innuendos, or
other sexually oriented statements which are specifically designed to embarrass or
humiliate through their sexual subject matter content; unwelcome sexual communication
such as graphic or degrading comments about one’s gender related to personal appearance;
unwelcome display of sexually explicit materials, objects, or pictures in an individual’s
place of work or study, such as viewing material on computers or other electronic
devices where others can see. Importantly, these and any other examples in this Policy,
are provided only for illustration purposes and all conduct must still meet the applicable
definitions in the Rule before rising to the level of prohibited conduct.
4.5.2 “Sexual Harassment (Quid Pro Quo)” means a University employee conditioning
the provision of an aid, benefit, or service of the University on an individual’s
participation in unwelcome sexual conduct.
4.5.3 “Sexual Harassment (Hostile Environment)” means Harassment that creates a Hostile
Environment (as defined in 4.4.5) based on sex, which includes, but is not limited
to unwelcome sexual advances, requests for sexual favors, or other verbal or physical
conduct of a sexual nature.
4.6. Title IX Sexual Harassment.
4.6.1. Title IX Sexual Harassment means unwelcome conduct determined by a reasonable
person to be so severe, and pervasive, and objectively offensive that it effectively
denies a person equal access to an educational program or activity.
4.6.2 Title IX Sexual Harassment is harassment which is prohibited by the U.S. Department
of Education regulations. This includes more severe allegations of sexual harassment
and conduct prohibited by the Clery Act and VAWA including, but not limited to violations
of domestic misconduct, sexual misconduct, sexual assault, stalking and sexual exploitation.
4.6.3 For the purposes of this Policy, Title IX Sexual Harassment standard applies
to “Sexual Harassment (Quid Pro Quo)”, “Sexual Harassment (Hostile Environment)”,
“Sexual Assault”, Domestic Misconduct”, and “Stalking.”
4.6.4 In determining whether alleged conduct constitutes Sexual Harassment and/or
Title IX Sexual Harassment, consideration shall be given to the record as a whole
and to the totality of the circumstances, including the nature of sexual behavior
and the context in which the alleged incident(s) occurred.
4.7 Sexual Misconduct.
4.7.1 “Sexual Misconduct” means “Sexual Assault” or “Sexual Exploitation,” as defined
below. It is a broad term used to encompass unwelcome behavior of a sexual nature
that is prohibited by Title IX, the Clery Act, and Fairmont State University.
4.7.2 “Sexual Assault” means “Sexual Intercourse” or “Sexual Contact” that occurs
without “Consent.” “Sexual Assault” also includes “Sexual Intercourse” between persons
who are related to each other within the degrees wherein marriage is prohibited by
4.7.3 “Sexual Contact” means any (i) intentional touching, either directly, through
clothing, or with an object, of the breasts, buttocks, anus or any part of the sex
organs of another person; or (ii) intentional touching of any part of another person’s
body by the actor’s sex organs.
4.7.4 “Sexual Intercourse” is defined as anal, oral, or vaginal penetration, however
slight, by an inanimate object or another’s body part.
184.108.40.206 “Consent” is defined as agreement, approval, or permission as to some act
or purpose that is given knowingly, willingly, and voluntarily by a competent person.
Silence, by itself, cannot constitute Consent. Consent to one sexual act does not
constitute or imply consent to a different sexual act. Previous consent cannot imply
consent to future sexual acts. Consent is required regardless of the parties’ relationship
status or sexual history together.
220.127.116.11 A person is not competent and therefore lacks the ability to “Consent” where
there is either “Forcible Compulsion” or “Incapacity to Consent.”
18.104.22.168.1 “Forcible Compulsion” means (i) physical force that overcomes such earnest
resistance as might reasonably be expected under the circumstances; (ii) threat or
intimidation, expressed or implied, placing a person in fear of immediate death or
bodily injury to himself or herself or another person or in fear that he or she or
another person will be kidnapped; or (iii) threat or intimidation, express or implied,
that the aggressor will retaliate or cause damage to the victim’s reputation if the
victim does not give into the aggressor’s sexual advances
22.214.171.124.2 “Incapacity to Consent” means that person is (i) either less than sixteen
years old; (ii) mentally incapacitated; (iii) physically unable to resist; or (iv)
is so intoxicated as to be incapacitated (i.e., unable to knowingly and intentionally
make decisions for him or herself).
126.96.36.199.3 Intoxication from alcohol or drug use, alone, does not bar Consent.
188.8.131.52.4 Incapacitation negates Consent when the alleged perpetrator knows, or a
reasonable person, under the circumstances, should know, that the alleged victim is
4.7.5 “Sexual Exploitation” means taking sexual advantage of another person without
his or her consent.
184.108.40.206 Sexual advantage includes, without limitation, causing or attempting to cause
the incapacitation of another person in order to gain a sexual advantage over such
other person; causing the prostitution of another person; recording, photographing
or transmitting identifiable images of private sexual activity and/or the intimate
parts of another person; allowing third parties to observe private sexual acts; disclosing,
causing to be disclosed or threatening to disclose, with the intent to harass, intimidate,
threaten, humiliate, embarrass, or coerce, an image of another which shows the intimate
parts of the depicted person or shows the depicted person engaged in sexually explicit
conduct which was captured under circumstances where the person depicted had a reasonable
expectation that the image would not be publicly disclosed; and engaging in voyeurism.
4.8 Domestic Misconduct.
4.8.1 “Domestic Misconduct” means “Domestic Violence” and “Dating Violence” as defined
220.127.116.11 “Domestic Violence” means Domestic Violence as defined under the Clery Act
and W. Va. state law.
18.104.22.168.1 Under the Clery Act, Domestic Violence means a felony or misdemeanor crime
of violence committed -- (A) By a current or former spouse or intimate partner of
the victim; (B) By a person with whom the victim shares a child in common; (C) By
a person who is cohabitating with, or has cohabitated with, the victim as a spouse
or intimate partner; (D) By a person similarly situated to a spouse of the victim
under the domestic or family violence laws of the jurisdiction in which the crime
of violence occurred, or (E) 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 in which the crime of violence occurred.
22.214.171.124.2 Under W. Va. state law, “Domestic Violence” or “Abuse” means the occurrence
of one or more of the following acts between Family or Household Members, as defined
under W. Va. Code: (1) Intentionally making physical contact of an insulting or provoking
nature or intentionally causing physical harm; (2) Attempting to commit a violent
injury or committing an act causing reasonable apprehension of immediately receiving
a violent injury; (3) Creating fear of physical harm by harassment, stalking, psychological
abuse or threatening acts; (4) Committing either sexual assault or sexual abuse as
defined in W. Va. Code; and (5) Holding, confining, detaining or abducting another
person against that person’s will.
126.96.36.199.3 For purposes of this subsection, “Family or Household Members” means persons
who: (i) are or were married to each other; (ii) are or were living together as spouses;
(iii) are or were sexual or intimate partners; (iv) are or were dating: provided,
that a casual acquaintance or ordinary fraternization between persons in a business
or social context does not establish a dating relationship; (v) are or were residing
together in the same household; (vi) have a child in common regardless of whether
they have ever married or lived together; or (vi) have the relationships described
in W. Va. Code § 48-27-204.
188.8.131.52 “Dating Violence” means 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: (i) the length of the relationship; (ii) the type of relationship;
and (iii) the frequency of interaction between the persons involved in the relationship.
184.108.40.206.1 The view of the Complainant shall generally be controlling in determining
whether such a relationship existed.
220.127.116.11.2 Dating violence includes, but is not limited to, sexual or physical abuse
or the threat of such abuse. Dating violence, for purposes of this Policy, does not
include emotional abuse.
4.9.1 “Stalking” means engaging in a Course of Conduct directed at a specific person
that would cause a Reasonable Person to: (i) fear for his or her safety or the safety
of others; or (ii) suffer Substantial Emotional Distress.
18.104.22.168 “Course of Conduct” means two or more acts, including, but not limited to,
acts in which the stalker 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.
22.214.171.124 A “Reasonable Person,” for purposes of this definition, means a reasonable
person under similar circumstances and with similar identities to the Complainant.
126.96.36.199 “Substantial Emotional Distress,” for purposes of this definition, means significant
mental suffering or anguish that may, but does not necessarily, require medical or
other professional treatment or counseling.
4.10.1 No individual may retaliate against another person. Complaints of retaliation
for such activities will be treated the same way as other complaints under this Policy.
4.10.2 “Retaliate” means to intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or privilege at the University
because the individual has made a report or complaint, testified, assisted, or participated,
or refused to participate in any manner in an investigation, proceeding, or hearing
under this Policy.
188.8.131.52 This includes interfering with the reporting of or the investigation of prohibited
behavior, such as tampering with or destroying relevant evidence; intimidating, threatening
or attempting to influence, in any way, the testimony or information of a Reporter,
Complainant, Respondent or witness.
4.11 False Statements. This policy prohibits knowingly making false statements, including knowingly submitting
false information during the course and/or resolution of the grievance process.