17. Policy on Discriminatory Harassment

Students, staff, administrators, and faculty are entitled to an employment and educational environment that is free of discriminatory harassment. NMJC’s harassment policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane but controversial or sensitive subject matters protected by academic freedom.

The sections below describe the specific forms of legally prohibited harassment that are also prohibited under NMJC policy. When speech or conduct is protected by the First Amendment, it will not be considered a violation of NMJC policy, though supportive measures will be offered to those impacted. All policies encompass actual and/or attempted offenses.
 

1. Discriminatory Harassment
   Discriminatory harassment constitutes a form of discrimination that is prohibited by NMJC policy. Discriminatory harassment is defined as unwelcome conduct by any member or group of the community on the basis of actual or perceived membership in a class protected by policy or law.

   NMJC does not tolerate discriminatory harassment of any employee, student, visitor, or guest. NMJC will act to remedy all forms of harassment when reported, whether or not the harassment rises to the level of creating a “hostile environment.

   A hostile environment is one that unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities. This discriminatory effect results from harassing verbal, written, graphic, or physical conduct that is severe or pervasive and objectively offensive.

   When discriminatory harassment rises to the level of creating a hostile environment, NMJC may also impose sanctions on the Respondent through application of the appropriate grievance process below.

2. Sexual Harassment
   The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of New Mexico regard Sexual Harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice.

   NMJC has adopted the following definition of Sexual Harassment in order to address the unique environment of an academic community.

   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, and is defined as:

   Conduct on the basis of sex/gender or that is sexual that satisfies one or more of the following:

   1. Quid Pro Quo:
      1. an employee of NMJC,
      2. conditions the provision of an aid, benefit, or service of NMJC,
      3. on an individual’s participation in unwelcome sexual conduct.
   2. Sexual Harassment:
      1. unwelcome conduct,
      2. determined by a reasonable person,
      3. to be so severe, and
      4. pervasive, and,
      5. objectively offensive,
      6. that it effectively denies a person equal access to NMJC’s education program or activity.
   3. Sexual assault, defined as:
      1. Sex Offenses, Forcible:
         • Any sexual act directed against another person,
         • without the consent of the Complainant,
         • including instances in which the Complainant is incapable of giving consent.
      2. Sex Offenses, Non-forcible:
         • Incest:
           1. Non-forcible sexual intercourse,
           2. between persons who are related to each other,
           3. within the degrees wherein marriage is prohibited by New Mexico law.
         • Statutory Rape:
           1. Non-forcible sexual intercourse,
           2. with a person who is under the statutory age of consent of sixteen years old (child) by a person at least 18 years of age and such person is at least 4 years older than the child
   4. Dating Violence, defined as:
      1. violence,
      2. on the basis of sex,
      3. committed by a person,
      4. who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.
         1. 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—
         2. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
         3. Dating violence does not include acts covered under the definition of domestic violence.
   5. Domestic Violence, defined as:
      1. violence,
      2. on the basis of sex,
      3. committed by a current or former spouse or intimate partner of the Complainant,
      4. by a person with whom the Complainant shares a child in common, or
      5. by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
      6. by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of New Mexico, or
      7. 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 New Mexico.
   6. Stalking, defined as:
      1. engaging in a course of conduct,
      2. on the basis of sex,c
      3. directed at a specific person, that
         1. would cause a reasonable person to fear for the person’s safety, or
         2. the safety of others; or
         3. Suffer substantial emotional distress. 
            For the purposes of this definition—
            1. 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.
            2. Reasonable person means a reasonable person under similar circumstance and with similar identities to the Complainant.
            3. Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.
               
               NMJC reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any offense under this policy.

3. Force, Coercion, Consent, and Incapacitation

   As used in the offenses above, the following definitions and understandings apply:
   
   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 (e.g., “Have sex with me or I’ll hit you,” “Okay, don’t hit me, I’ll do what you want.”).

   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 is:

   • knowing, and
   • voluntary, and
   • clear permission
   • by word or action

   • to engage in sexual activity.

     Individuals may experience the same interaction in different ways. Therefore, 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. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.

     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.

     Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on NMJC to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.

     Consent in relationships must also be considered in context. When parties consent to bondage, discipline/dominance, submission/sadism and masochism or other forms of kink, non-consent may be shown by the use of a safe word. Resistance, force, violence, or even saying “no” may be part of the kink and thus consensual, so NMJC’s evaluation of communication in kink situations should be guided by reasonableness, rather than strict adherence to policy that assumes non-kink relationships as a default.
     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 that 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. Other Civil Rights Offenses
   In addition to the forms of sexual harassment described above, which are covered by Title IX, NMJC additionally prohibits the following offenses as forms of discrimination that may be within or outside of Title IX when the act is based upon the Complainant’s actual or perceived membership in a protected class.
   • Sexual Exploitation, defined as: taking non-consensual or abusive sexual advantage of another for their own benefit or for the benefit of anyone other than the person being exploited, and that conduct does not otherwise constitute sexual harassment under this policy. Examples of Sexual Exploitation include, but are not limited to:
     • Sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed)
     • Invasion of sexual privacy.
     • Taking pictures, video, or audio recording of another in a sexual act, or in any other sexually-related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent), including the making or posting of revenge pornography
     • Prostituting another person
     • Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or a sexually-transmitted disease (STD) or infection (STI), without informing the other person of the infection
     • Causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity
     • Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections
     • Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity
     • Knowingly soliciting a minor for sexual activity
     • Engaging in sex trafficking
     • Creation, possession, or dissemination or child pornography
   • Threatening or causing physical harm, extreme verbal, emotional, or psychological abuse, or other conduct which threatens or endangers the health or safety of any person;
   • Discrimination, defined as actions that deprive, limit, or deny other members of the community of educational or employment access, benefits, or opportunities;
   • Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another;
   • Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within NMJC community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity;
   • Bullying, defined as:
     • Repeated and/or severe
     • Aggressive behavior
     • Likely to intimidate or intentionally hurt, control, or diminish another person, physically and/or mentally
     • That is not speech or conduct otherwise protected by the First Amendment.

Violation of any other NMJC policies may constitute a Civil Rights Offense when a violation is motivated by actual or perceived membership in a protected class, and the result is a discriminatory limitation or denial of employment or educational access, benefits, or opportunities.

Sanctions for the above-listed Civil Rights Offenses range from reprimand through expulsion/termination.