Prohibited Conduct and Definitions
Discrimination includes any conduct that excludes an individual from participation, denies the individual benefits, treats the individual differently, or otherwise adversely affects a term or condition of an individual’s employment, education, living environment, or participation in a Berklee program on the basis of the affected individual’s actual or perceived protected characteristic. Examples of discrimination include, but are not limited to, denying a student a performance opportunity because of the student’s race, disability, sexual orientation, or other protected characteristic; giving a student a lower grade than deserved because of the student’s gender, military service, religion, or other protected characteristic; and denying an employee a promotion because of the employee’s age, gender expression/identity, or other protected characteristic.
Harassment is unwelcome, offensive conduct that occurs on the basis of the affected individual’s actual or perceived protected characteristic. Harassment often takes the form of degrading or hostile behavior, and has the purpose or effect of unreasonably interfering with the individual’s employment or education, or creating a hostile, intimidating, or offensive working, living, or learning environment. Interference with education may include interfering with an individual’s rights to access their living environment and campus activities. Sexual harassment is one form of harassment (defined more fully below) and is characterized by unwelcome conduct that is sexual in nature.
The fact that a person was personally offended by a statement or incident does not alone constitute harassment in violation of this policy. Whether harassment occurred is measured from both an objective (reasonable person’s view) and subjective (the reporting party’s view) standard, and depends on the totality of the circumstances, including: the context of a communication or incident; the relationship of the individuals involved; whether an incident was isolated or part of a course of conduct; the seriousness or severity of the incident; the intent of the individual who engaged in the offensive conduct; and its effect or impact on the individual and the working or learning community.
In all instances, a key factor is whether the reported behavior occurred because of one of the protected characteristics listed above. If it did not, the behavior is not subject to this policy (such behavior may be subject to other Berklee policies, such as the Student Code of Community Standards).
Sexual misconduct is a broad term which encompasses, but is not limited to, sex or gender discrimination, sexual assault, sexual violence, nonconsensual penetrative sex acts, sexual harassment, gender-based harassment, and sexual exploitation, coercion, and intimidation. The conduct defined below violates Berklee policy, regardless of whether the conduct rises to the level of violating the law.
Sex-based harassment is a form of sex discrimination and sexual misconduct that includes sexual harassment and gender-based harassment.
Such conduct is harassment when:
- it is made a condition of academic status or employment,
- refusing or submitting to the conduct is used as a basis for academic or employment decisions, or
- the conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance. Interference with academic performance may include interfering with an individual’s rights to access their living environment and campus activities.
Sexual or gender-based harassment has the purpose or effect of unreasonably interfering with an individual’s work or academic performance if, for example, it is sufficiently serious, pervasive, or persistent to create an intimidating, hostile, humiliating, demeaning, discriminatory, or sexually offensive working, academic, residential, or social environment under both an objective (reasonable person’s view) and subjective (the complainant’s view) standard. Sexual or gender-based harassment may occur regardless of the intention of the person engaging in the conduct.
Sexual harassment is a form of sex-based harassment and sexual misconduct that involves unwelcome or unwanted conduct of a sexual nature. It can include unwelcome sexual advances, requests for sexual favors, and other physical or verbal conduct of a sexual nature.
Gender-based harassment is unwelcome conduct of a nonsexual nature based on an individual’s actual or perceived sex, including conduct based on gender identity, gender expression, and nonconformity with gender stereotypes. It is a form of sex-based harassment and sexual misconduct.
Sexual and gender-based harassment can be directed toward a person of any sex/gender by someone of any sex/gender and can take many forms.
Some examples of unwelcome or unwanted conduct that could constitute sexual or gender-based harassment depending upon the totality of the circumstances include, but are not limited to:
- lewd remarks, whistles, or personal reference to one’s anatomy;
- visual displays of degrading sexual images;
- unwanted physical contact such as patting, pinching, or constant brushing against a person’s body;
- subtle or overt pressure for sexual favors;
- persistent and offensive sexual jokes and comments, or requests for dates;
- email, text, or social media messages of an offensive sexual nature;
- use of sexual epithets, written or oral references to sexual conduct, gossip regarding one’s sex life, and comments on an individual’s body, sexual activity, deficiencies or prowess, and/or conformity to expected notions of gender;
- sexual exhibitionism;
- inquiries into one’s sexual activities; and
- sexual violence of any type.
Sexual or gender-based harassment can occur between:
- teacher and student;
- supervisor and employee;
- teacher and teacher;
- student and student;
- staff member and student;
- other relationships among colleagues, peers, and coworkers; and/or
- service providers and vendors of Berklee.
Sexual assault is actual or attempted sexual contact with another person without that person’s consent, whether by an acquaintance or by a stranger, and it is a form of sexual violence. There are many degrees and forms of sexual assault, including, but not limited to, nonconsensual sexual contact and nonconsensual penetrative sexual acts, including, but not limited to, forcible sexual intercourse, sexual battery, sexual coercion, forcible sodomy, forcible oral copulation, sexual assault with an object, forcible fondling, and threat of sexual assault.
- A nonconsensual penetrative sex act includes any form of sexual intercourse (anal, oral, or vaginal) with any body part or object without consent. Intercourse includes, but is not limited to, vaginal or anal penetration, however slight, by a penis, object, tongue, or finger; or mouth-to-genital contact.
- Nonconsensual sexual contact involves intentional and unwelcome sexual touching, however slight, usually, but not necessarily, involving contact with genitals, breasts, groin, or buttocks by a body part or object, that is without consent. Sexual touching includes, but is not limited to, intentional contact with someone’s breasts, buttocks, groin, or genitals; touching someone else with any of these body parts; making someone touch you or themselves on these same body parts; or intentional physical contact in a sexual manner, even if it does not involve contact with or by these body parts.
Consent is giving clear permission, by words or actions, to engage in mutually agreed-upon specific sexual contact. It must be informed, voluntary, and mutual, and can be withdrawn at any time. Consent must exist from the beginning to the end of each instance of sexual activity and for each form of sexual contact. Consent is an active and ongoing choice to knowingly, and without pressure, engage in a sexual encounter. For consent to exist, each individual involved in a sexual encounter must obtain consent prior to any sexual activity and any change or escalation in sexual activity.
- In the absence of mutually understandable words or actions, the person who wants to engage in a specific sexual activity or the initiator of that activity is responsible to make sure they have consent from their partner.
- A verbal “no,” even if it may sound indecisive or insincere, constitutes a lack of consent.
- An individual’s silence, appearance, dress, sexual history, current sexual relationship, or use of alcohol or drugs do not indicate consent.
- Consent can never be given if a person is incapacitated, drugged, asleep, unconscious, or impaired because of a physical or mental condition, or is under the legal age to give consent (16 years of age in Massachusetts).
- An individual may also be unable to give consent due to an intellectual, developmental, or other disability that impairs their ability to give consent.
- Past sexual activity does not imply future and/or ongoing consent. The fact that people are in an ongoing relationship does not eliminate the possibility of sexual misconduct within that relationship.
- An individual’s use of alcohol and/or other drugs does not diminish that individual’s responsibility to obtain consent.
- Consent is not effective if it results from the use or threat of physical force, deception, manipulation, lying, intimidation, or coercion, or any other factor that would eliminate an individual’s ability to exercise their own free will to choose whether or not to have sexual contact.
- If, during the sexual activity, any confusion or ambiguity arises as to the willingness of a person to proceed, all parties should stop and clarify willingness to continue with the sexual encounter.
- Either party may withdraw consent at any time. Once withdrawal of consent has been expressed, sexual activity must cease.
Incapacitation occurs when an individual is asleep, unconscious, losing or regaining consciousness, or otherwise unable to make informed rational judgments and decisions because of their current circumstances. If alcohol or other drugs are involved, incapacitation may be measured by evaluating how the substance affects a person’s decision-making capacity, awareness, and ability to make informed judgments. The impact of alcohol and other drugs varies from person to person; however, warning signs of possible incapacitation include, but are not limited to, slurred speech, unsteadiness, impaired coordination, inability to perform personal tasks such as undressing, inability to maintain eye contact, vomiting, and sudden change in emotion. When alcohol is involved, incapacitation is a state beyond intoxication. With regard to consent, the question is whether the responding party knew, or a sober, reasonable person in the position of the responding party should have known, that the other person was incapacitated.
Coercion includes the use of pressure or oppressive behavior, including expressed or implied threats of harm, or severe or pervasive emotional intimidation, which places an individual in fear of immediate or future harm or physical injury or causes a person to engage in unwelcome sexual activity. Coercion includes administration of a drug, intoxicant, or similar substance for the purpose of impairing a person. A person’s words or conduct amount to coercion if they wrongfully impair the other’s freedom of will and ability to choose whether or not to engage in sexual activity. In assessing whether coercion was used, the frequency, duration, and intensity of the pressure applied will be taken into consideration. If sexual acts were preceded by threats or coercion, there is no consent.
Intimidation is spoken, written, or physical conduct directed toward an individual or individuals that reasonably leads the targeted person to fear for their physical wellbeing or to engage in sexual conduct for self-protection and/or the protection of others. Intimidation includes conduct that is intended to create or may be reasonably determined to have created a threatening or hostile environment.
Sexual exploitation occurs when one person takes sexual advantage of another person for the benefit of anyone other than that other person and without that other person’s consent. Examples of behavior that could rise to the level of sexual exploitation include, but are not limited to:
- prostituting another person;
- recording or distributing images (e.g., video, photograph) or audio of another person’s sexual activity, intimate body parts, or nakedness without that person’s consent;
- viewing another person’s sexual activity, intimate body parts, or nakedness in a place where that person would have a reasonable expectation of privacy, without that person’s consent, and for the purpose of arousing or gratifying sexual desire;
- knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection; or
- administering alcohol or drugs (e.g., “date rape” drugs) to another person without that person’s knowledge or consent.
Relationship violence (also known as dating violence or domestic violence) refers to actual or threatened violence or manipulative behavior by a person who is or was in an intimate, dating, or domestic relationship with the person subject to such behavior. Relationship violence can include actual or threatened violence or manipulative behavior to the subject’s family and friends. Relationship violence can also involve domestic violence committed by a person with whom the person subject to the violence shares a child or domicile in common. The existence of a relationship will be gauged by its length, type, and frequency of interaction.
Relationship violence includes, but is not limited to:
- physical violence, such as kicking, hitting, pinching, choking, or biting;
- sexual violence, such as forcing a partner to take part in a sex act when the partner does not consent;
- emotional violence, such as isolation, intimidation, belittling, stalking, “outing” someone against that person’s will, cyber-bullying/harassment, or threat of physical force; or
- economic abuse, such as withholding financial resources to intimidate, threaten, or cause a person to remain in a relationship because of access to finances.
Stalking is defined as a persistent, unwanted or unwelcome, and repeated course of conduct that would cause a reasonable person to become fearful for their own safety or the safety of another, or suffer substantial emotional distress. Stalking includes cyber-stalking, a form of stalking over an electronic medium such as the internet, social networks, blogs, cell phones, texts, or other similar devices.
Examples of stalking include, but are not limited to:
- following a person(s);
- repeatedly appearing at a person’s home, work, or class;
- making frequent phone calls, emails, texts, etc. to a person(s);
- leaving written messages or objects for a person(s); or
- vandalizing a person’s property.
Anyone can be stalked, regardless of sex or gender. A stalker can be an intimate partner or former partner, classmate, roommate, professor, coworker, any acquaintance, or a stranger.
For the purpose of this policy, a hate crime is defined as violence to a person or damage to property or any other criminal act that is motivated entirely or partly by hostility toward or intolerance of another’s actual or perceived protected characteristic. Hate crimes are not limited to actual completed crimes but may also be threatened or attempted crimes, and may include assault and battery, vandalism, or other destruction of property, or verbal threats of physical harm. Harassment or intimidation may also be a hate crime when intended to interfere with a person's civil rights.
A hostile environment exists when harassment or discrimination based upon a protected characteristic is sufficiently serious to deny or limit an individual’s ability to participate in or benefit from Berklee’s education or employment programs or activities. In determining whether harassment or discrimination has created a hostile environment, Berklee considers the conduct from the perspective of a reasonable person and assessment of a variety of factors related to the severity, persistence, or pervasiveness of the conduct, including (1) the type, frequency, and duration; (2) the identity and relationships of the persons involved; (3) the number of individuals involved; (4) the location of the conduct and the context in which it occurred; and (5) the degree to which the conduct affected one (or more) community member’s education or employment. The more severe the harassment or discrimination, the less need there is to show a repetitive series of incidents to find a hostile environment. Indeed, a single or isolated incident of harassment or discrimination may be sufficient to create a hostile environment, particularly if the harassment is physical. Likewise, a series of incidents may be sufficient, even if the harassment or discrimination is not particularly severe.