Prohibited Conduct

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of South Carolina regard sexual harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice. Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.

Sexual harassment, as an umbrella category, includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking. In accordance with Title IX, sexual harassment includes conduct on the basis of sex that satisfies one or more of the following:

  1. Quid Pro Quo - An employee of Lander University that conditions the provision of an aid, benefit, or service of the University based on an individual’s participation in unwelcome sexual conduct; and/or
  2. Sexual Harassment/Unwelcome Conduct - Lander University has adopted the following definition of Sexual Harassment in order to address the unique environment of an academic community, which consists not only of employer and employees, but of students as well. Sexual Harassment is defined as 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 Lander University’s education program or activity. A hostile environment is one that unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities.
  3. Sexual Assault - The following definitions of forcible and non-forcible sex offenses apply. Note: A forcible sex offense is any sexual act directed against another person, without the consent of the Complainant, including instances in which the Complainant is incapable of giving consent. 
    • Forcible Rape: Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the Complainant.
    • Forcible Sodomy: Oral or anal sexual intercourse with another person, forcibly, and/or against that person’s will (non-consensually), or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age  or because of temporary or permanent mental or physical incapacity.
    • Sexual Assault with an Object: The use of an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly, and/or against that person’s will (non-consensually), or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
    • Forcible Fondling: The touching of the private body parts of another person (buttocks, groin, breasts) for the purpose of sexual gratification, forcibly, and/or against that person’s will (non-consensually), or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
    • Incest: Non-forcible sexual intercourse, between persons who are related to each other, within the degrees wherein marriage is prohibited by South Carolina state law.
    • Statutory Rape: Non-forcible sexual intercourse, with a person who is under the statutory age of consent in accordance with South Carolina state law. 
    In accordance with the sex offenses outlined above, the University has adopted the following definitions of Force, Coercion, Consent, and Incapacitation.
    • Force: Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent. Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.
    • Coercion: Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
    • Consent: Consent is knowing and voluntary, and clear permission by word or action to engage in sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to determine that the other has consented before engaging in the activity. If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Reasonable reciprocation can be implied. Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, that sexual activity should cease within a reasonable time. Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent.
    • Incapacitation: A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this Policy if they engage in sexual activity with someone who is incapable of giving consent. It is a defense to a sexual assault Policy violation that the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated. “Should have known” is an objective, reasonable person standard which assumes that a reasonable person is both sober and exercising sound judgment. Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction). Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk. This Policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs.
  4. Dating Violence - Violence, on the basis of sex, committed by a person who is in or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition, dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence.
  5. Domestic Violence - Violence, on the basis of sex, committed by a current or former spouse or intimate partner of the Complainant, by a person with whom the Complainant shares a child in common, or by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of  South Carolina, or by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of South Carolina.
  6. Stalking - Engaging in a course of conduct, on the basis of sex, directed at a specific person that would cause a reasonable person to fear for the person’s safety, or the safety of others; or suffer substantial emotional distress. For the purposes of this definition, course of conduct means two or more acts, including, but not limited to, acts in which the Respondent 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. Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant. Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

The University’s Equal Opportunity, Non-Discrimination, and Non-Harassment Policy further outlines proscribed conduct regarding other civil rights-related offenses and prohibitions of retaliatory conduct.

 

Jurisdiction

The Equal Opportunity, Non-Discrimination, and Non-Harassment Policy applies to the education program and activities of Lander University regarding conduct that takes place on the campus or on property owned or controlled by Lander University, at Lander University-sponsored events, or in buildings owned or controlled by recognized student organizations. The Respondent must be a member of Lander University’s community in order for its policies to apply.

This Policy can also be applicable to the effects of off-campus misconduct that effectively deprive someone of access to Lander University’s educational program. Lander University may also extend jurisdiction to off-campus and/or to online conduct when it is determined that the conduct affects a substantial Lander University interest.

Regardless of where the conduct occurred, Lander University will address notice/complaints to determine whether the conduct occurred in the context of its employment or educational program or activity and/or has continuing effects on campus or in an off-campus sponsored program or activity. A substantial Lander University interest includes:

  • Any action that constitutes a criminal offense as defined by law. This includes, but is not limited to, single or repeat violations of any local, state, or federal law;
  • Any situation in which it is determined that the Respondent poses an immediate threat to the physical health or safety of any student or other individual;
  • Any situation that significantly impinges upon the rights, property, or achievements of oneself or others or significantly breaches the peace and/or causes social disorder; and/or
  • Any situation that is detrimental to the educational interests or mission of Lander University.

In accordance with Title IX, Lander University must dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing, it is determined that:

  • The conduct alleged in the formal complaint would not constitute sexual harassment as defined in the Policy hereinabove, even if proved; and/or
  • The conduct did not occur in an educational program or activity controlled by Lander University (including buildings or property controlled by recognized student organizations), and/or Lander University does not have control of the Respondent; and/or
  • The conduct did not occur against a person in the United States; and/or
  • At the time of filing a formal complaint, a complainant is not participating in or attempting to participate in the education program or activity of Lander University.

Lander University may dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing:

  • A Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the formal complaint or any allegations therein; or
  • The Respondent is no longer enrolled in or employed by Lander University; or
  • Specific circumstances prevent Lander University from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

When a technical dismissal under the Title IX allegations is required, a resolution process may proceed in accordance with the grievance procedures as outlined within the Equal Opportunity, Non-Discrimination, and Non-Harassment Policy.

 

Rights of Involved Parties

The Complainant and Respondent may have an advisor present during any stage of the process. The Advisor may be a friend, mentor, family member, attorney, or any other individual a party chooses to advise, support, and/or consult with them throughout the resolution process. The Parties may choose Advisors from inside or outside of the Lander University community. The Title IX Coordinator will also offer to assign a trained Advisor for any party if the party so chooses. If the Parties choose an Advisor from the Pool available from Lander University, the Advisor will be trained by Lander University and be familiar with the University’s resolution process. If the Parties choose an Advisor from outside the Pool of those identified by Lander University, the Advisor may not have been trained by the University and may not be familiar with Lander University’s policies and procedures. Parties also have the right to choose not to have an Advisor in the initial stages of the resolution process, prior to a hearing. If the matter results in a formal hearing, both the Complainant and Respondent will be required to utilize an Advisor of their choosing or will be appointed an Advisor from the University’s trained Pool. During a formal hearing, Advisors will be required to engage in cross examination on behalf of the respective party.

Rights of the Parties include:

  • The right to an equitable investigation and resolution of all credible allegations of prohibited harassment or discrimination made in good faith to Lander University officials.
  • The right to timely written notice of all alleged violations, including the identity of the Parties involved (if known), the precise misconduct being alleged, the date and location of the alleged misconduct (if known), the implicated policies and procedures, and possible sanctions.
  • The right to timely written notice of any material adjustments to the allegations (e.g., additional incidents or allegations, additional Complainants, unsubstantiated allegations) and any attendant adjustments needed to clarify potentially implicated Policy violations.
  • The right to be informed in advance of any public release of information regarding the allegation(s) or underlying incident(s), whenever possible.
  • The right not to have any personally identifiable information released to the public without consent provided, except to the extent permitted by law.
  • The right to be treated with respect by Lander University officials.
  • The right to have Lander University policies and procedures followed without material deviation.
  • The right not to be pressured to mediate or otherwise informally resolve any reported misconduct involving violence, including sexual violence.
  • The right not to be discouraged by Lander University officials from reporting sexual misconduct or discrimination to both on-campus and off-campus authorities.
  • The right to be informed by Lander University officials of options to notify proper law enforcement authorities, including on-campus and local police, and the option(s) to be assisted by Lander University authorities in notifying such authorities, if the party so chooses. This also includes the right not to be pressured to report, as well.
  • The right to have allegations of violations of this Policy responded to promptly and with sensitivity by Lander University law enforcement and/or other Lander University officials.
  • The right to be informed of available interim actions and supportive measures, such as counseling; advocacy; health care; housing; visa and immigration assistance; or other services, both on campus and in the community.
  • The right to a Lander University-implemented no-contact order, or a no-trespass order against a non-affiliated third party, when a person has engaged in or threatens to engage in stalking, threatening, harassing, or other improper conduct that presents a danger to the welfare of the party or others.
  • The right to be informed of available assistance in changing academic, living, and/or working situations after an alleged incident of discrimination, harassment, and/or retaliation, if such changes are reasonably available. No formal report, or investigation, either campus or criminal, needs to occur before this option is available.
  • The right to have Lander University maintain such actions for as long as necessary and for supportive measures to remain private, provided privacy does not impair Lander University’s ability to provide the supportive measures.

For additional information, including but not limited to, the range of possible sanctions following a finding of responsibility, the applicable appeal process, and other long term remedies, please reference Lander University’s Equal Opportunity, Non-Discrimination, and Non-Harassment Policy.