Defining Sexual Harassment/Stalk

Defining sexual harassment, sexual assault, rape, domestic violence, and stalking is a complicated because the behaviors often overlap. It is also important to note that there are civil and criminal responses to both. For instance, rape is a form of sexual harassment and your university may be civilly liable for their failure to protect you, but it is first and foremost a crime. There is no requirement to first report a rape that occurs on university grounds to the university and you can[1] go directly to police to report a rape.

It is also important to note that we often think that sexual harassment i.e., what is referred to as “quid pro quo” sexual harassment, where a boss, a principal, or someone in an authority position that will deny you something you have a “property interest” in (job, diploma, etc.) demands sex or you will lose your job or not be able to graduate, is a civil matter (meaning that you can take someone or a company to court and sue for monetary damages, but this behavior often also has a criminal component, meaning it is against the law and their actions can be reported to the police and they can be prosecuted. [2]

Nevertheless, this portion of the website is designed to talk more on a theoretical level as opposed to a legal level of what constitutes sexual harassment, stalking, sexual assault, and domestic violence. The reason for this is that sometimes a person can engage in a behavior but sometimes it will not amount to something that is actionable under civil or criminal laws, but it still falls into the pattern of abuse that communities responding to gendered violence would consider improper/abusive behaviors. There is a link titled "Laws Regarding Sexual Harassment," This link will provides details about the laws (federal and Washington State specific) that address these behaviors.

Another good resource is the Washington Coalition of Sexual Assault Programs. In 2004, they created a training manual. Chapter Six of this manual discusses education rights for sexual assault victims. In this chapter they note that schools have specific duties to prevent and respond to on-campus sexual assault. There are various third-part-liability theories under which colleges and universities may be held civilly liable for intentional torts (legal term for what an assault is called in the civil/non-criminal context) committed on their campuses, by their students, or against their students. In addition, there are also specific federal laws, like Title IX, the Jeanne Clery Campus Safety Act, and the Family Education Rights and Privacy Act that provide legal relief/avenues for pursuing a school's failure to address harassment issues that occur on their campuses.

Sexual Harassment

Sexual harassment is a lot harder to define than the above categories. At the heart of the issue is the idea that every person should be able to experience their education/work environment without being pressured into sex by someone in a power position in relation to that person (i.e., a teacher, principal, supervisor, etc.) and it also means that a person should be able to exist in an environment free from unwanted sexual advances, touching, jokes, innuendo, etc.

The U.S. Equal Employment Opportunities Commission issued the following official guidelines defining sexual harassment:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such [an] individual; or (3) such conduct as the purpose or effect of unreasonably interfering with an individuals work performance or creating an intimidating, hostile, or offensive working environment.[3]

National Advisory council on Women’s Educational Programs describes sexual harassment as follows: "Academic sexual harassment is the use of authority to emphasize the sexuality or sexual identity of the student in a manner which prevents or impairs that student’s full enjoyment of educational benefits, climate, or opportunities. [4]

Catharine MacKinnon (a leading legal theorist in these areas) (1979), [5]
Sexual harassment…refers to the unwanted imposition of sexual requirements in the context of a relationship of unequal power. Central to the concept is the use of power derived from one social sphere to lever benefits or impose deprivations in another…When on is sexual, the other material, the cumulative sanction is particularly potent.[6]

Office for Civil Rights, US Department of Education provides the following guidance on Sexual Harassment.

Quid pro quo harassment occurs when a school employee causes a student to believe that he or she must submit to unwelcome sexual conduct in order to participate in a school program or activity. It can also occur when an employee causes a student to believe that the employee will make an educational decision based on whether or not the student submits to unwelcome sexual conduct. For example, when a teacher threatens to fail a student unless the student agrees to date the teacher, it is quid pro quo harassment.

Hostile environment harassment occurs when unwelcome conduct of a sexual nature is so severe, persistent, or pervasive that it affects a student's ability to participate in or benefit from an education program or activity, or creates an intimidating, threatening or abusive educational environment. A hostile environment can be created by a school employee, another student, or even someone visiting the school, such as a student or employee from another school.

Regardless of which type of harassment occurs, a school must take immediate and appropriate steps to stop it and prevent it from happening again. The judgment and common sense of teachers and administrators are important elements of any response. However, the school is responsible for taking all reasonable steps to ensure a safe learning environment.[7]

The Office for Civil Rights also provides some specific examples of what constitutes “sexual conduct.” Note that this is not an exhaustive list, but may help you if you are trying to figure out if what your experiencing meets a legal definition of sexual harassment.

· displaying or distributing of sexually explicit drawings, pictures and written materials

· touching oneself sexually or talking about one's sexual activity in front of others

· spreading rumors about or rating other students as to sexual activity or performance.

Not all physical conduct would be considered sexual in nature. Some examples are a high school athletic coach hugging a student who made a goal, a kindergarten teacher's consoling hug for a child with a skinned knee, or one student's demonstration of a sports move requiring contact with another student.[8]

Stalking
Stalking refers to repeated harassing or threatening behavior such as following you, appearing outside your classes, your dorm room/apartment, your place of employment, making harassing phone calls, leaving written messages or objects or vandalizing property. Virtually any unwanted contact between two people that directly or indirectly communicates a threat or places the victim in fear can be considered stalking.[9] There is an overlap here with domestic violence as many victims of domestic violence are stalked by their previous partner.[10]

If you are being stalked, it is important that you document every incident as thoroughly as possible, including collecting/keeping videotapes, audiotapes, phone answering machine messages, photos of property damage, letters received, objects left, have witness write down what they saw, and take notes on what happened. You will need this information if you decide to go to a university official or the authorities.

If you are being stalked, we recommend seeking support from the Domestic Violence support group in your area, for the Seattle area, this is New Beginnings. The reason being that it is hard to make blanket suggestions for the best actions to take to ensure your individual safety and with the help of an advocate, you can make a safety plan that best suits your needs. For example, if someone is continually leaving unwanted phone messages for you, you may consider changing your phone number, but this is a question to think about seriously. If, after taking a look at the stalkers patterns, you notice an increasing amount of hostility/threatening behavior, it may be best to keep the same number as the harasser may intensify the stalking if they lose communication.

Sexual Assault
Sexual assault covers a broad range behaviors that are considered criminal, including rape, molestation, sexualized touching, and voyeurism.

Rape: Rape is nonconsensual intercourse. While this seems like a simple statement it is often complicated. First there is the issue of consent. Consent does not just mean a lack of protest. If someone has intercourse with you while you are asleep or too intoxicated to understand what is going on, you have not consented to intercourse. Then there is the question of what constitutes intercourse, it not only includes a penis penetrating a vagina, but it also includes any foreign object (finger, bottle, broom handle, etc.) being inserted into a woman’s vagina or a woman or man’s anus. The law also prohibits unconsensual/forcible oral sex. Rape does not require great physical violence, a gun, a knife, or other weapon. The way the criminal justice system works, if someone uses deadly force to complete a rape (or any other crime), it raises the seriousness and potential for greater punishment. It does not matter if you know or dated the person who raped you, consent is not implied by the status of your relationship.

Indecent Liberties: Indecent liberties is essentially the title the law gives for sexualized behaviors that do not amount to rape. This includes forcing someone to have sexual contact with someone else. Someone who has supervisory authority over a victim is also guilty of indecent liberties, which means the form of sexual harassment coined as quid pro quo harassment also has a criminal component. Like rape, if a perpetrator uses “forcible compulsion” (some sort of violence to achieve the sexual contact), then the criminal penalties, etc. will be greater.

Voyeurism: It is also a crime to watch, photograph, film, etc., dressing and undressing, or viewing the “intimate areas” of a person’s body or undergarments, when they should have a reasonable expectation of privacy. The viewing has to be more than cursory and done with the purpose of arousing or gratifying the sexual desire of any person.

Domestic violence is violence between intimate partners. This can include physical, emotional, sexual or financial abuse, and almost always includes some combination of these forms of abuse. Physical abuse includes any physical intimidation, so it includes the obvious black eye, broken ribs, etc., but it also includes restraining someone, throwing objects near them, or punching a whole in the wall near you. These are basically physical threats to your safety. Sexual abuse includes rape within a relationship, but also includes using sex a tool of control within a relationship. Thus a partner who “consents” to sex because s/he knows that if s/he refuses s/he will be beaten is experiencing sexual abuse. Emotional abuse includes situations where your partner tells you things like, “You’re no good;” “No one could ever love you;” “You’re stupid;”, etc. Basically it is the soundtrack your partner delivers constantly attacking your self-esteem and sense of self-worth. Additionally, mental abuse can include the abuse of others, such as child, aging parent, or beloved pet. An example of financial abuse is a partner who has total control of money within a relationship and refuses the other partner access to funds, possibly even not allowing access to funds to meet the minimum necessities for food, cloth, etc. Remember, Washington is a community property state, when you are in a marriage or a registered domestic partnership anything acquired during marriages, wages, property, etc., is community property, meaning that each person in the relationship is owns one-half of the property/wages.

[1] Please note, we use the word “can” here because we recognize that every woman will respond to rape in her own way. Some women may not want to report the rape and she has that right. The information found on this website and via other links will provide information about recovering from sexual assault via service providers who do not require any reporting.

[2] Rape in the Third Degree in Washington, threat of a substantial unlawful harm to your property right.

[3] Peter Rutter, M.D., Understanding and Preventing Sexual Harassment: The Complete Guide. Bantam Book. 1996. Michele A. Paludi and Richard B. Barickman, Academic and Workplace Sexual Harassment, A Resource Manual. State University of New York Press. 1991.

[4] Paludi and Barickman p. 3.

[5] MacKinnon is one of the leading experts on the gender/sex discrimination/violence and the legal responses to these issues.

[6] Paludi and Barickman p. 3.

[7] U.S. Department of Education Office for Civil Rights, Frequently Asked Questions. Available at http://www.ed.gov/about/offices/list/ocr/qa-sexharass.html; last viewed 8/18/08.

[8] U.S. Department of Education Office for Civil Rights, Sexual Harassment: It’s Not Academic. Available at http://www.ed.gov/about/offices/list/ocr/docs/ocrshpam.html; last viewed 8/18/08

[9] Office for Victims of Crime, Stalking Victimization.

[10] According to the Office for Victims of Crime, 38% of female stalking victims were stalked by current or former husbands, 10% by current or former cohabiting partners, and 14 % by current or former dates or boyfriends. Only 23 percent of stalkers identified by female victims were strangers.

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