PE Lecture 15

Discrimination

-act of making distinctions between people based on the person belonging to or being from a certain group such as religion, race, ethnicity, sexual orientation, disability or other categories to which they are perceived to belong -VCOM has adopted a zero-tolerance to inappropriate behavior exhibited as an act of discrimination

Harassment

-offensive behavior that demeans, humiliates, embarrasses, annoys, intimidates, alarms or threatens someone and is characteristically identified as being unacceptable in terms of social and moral reasonableness -VCOM has zero tolerance for harassment, whether based on a protected classification or not

Sexual violence

-unwanted sexual contact through intimidation, physical control, and extends to an act of sexual contact with a person who is incapacitated to the point of being unable to voice consent or their lack of consent. -Sexual violence encompasses several categories including rape, sodomy, and sexual assault by a person or with an object and includes the crimes of dating violence, domestic violence, sexual assault, and stalking. -Sexual assault for purposes of this policy is any type of sexual contact or sexual behavior that occurs without the explicit consent of the recipient.

Mandatory Reporting as Physicians

Because of confidentiality restraints of the doctor-patient relationship, physicians who have patients who are clearly victims of sexual violence are often conflicted as whether to report the abuse or not. Most states have, by statute, made physicians mandatory reporters for instances of abuse to children, dependent adults and the elderly. However, very few have mandated this for competent adults. In the absence of a statutory mandate, or a consent from the adult patient, reporting would, unfortunately, be a HIPAA violation and, likely, a professional ethics violation.

bystander intervention

the act of helping strangers in an emergency situation

SEXUAL HARASSMENT GRIEVANCE PROCESS

•Any person may report sexual harassment, whether or not they are the alleged victim. •The filing of a Formal Complaint with the Title IX Coordinator triggers the required response and investigation by the College. •Title IX Coordinators on each VCOM Campus is the Campus Director of Human Resources. Also, reports of discrimination, harassment, or violence can be made to the Associate Deans for Student Services . •The issue will be brought to the attention of the Campus Dean as the person who has authority to institute corrective measures for the College. •The President and Provost also has authority over all campuses to institute corrective measures but is generally used only in appeals.

CONSENT AS DEFINED BY VCOM

•Consent is informed- •Consent is an affirmative (Yes means Yes and No means No) •Consent if knowing and unambiguous, and •Consent is a conscious decision where each participant engages in mutually agreed-upon sexual activity

CONSENT

•Consent is voluntary and given without coercion, force, threats, or intimidation. •Consent means a positive cooperation with an intent to engage in the act in an exercise of free will. •Even though consent does not necessarily need to be verbal, relying purely on non-verbal communication can lead to misunderstandings. A spoken agreement is the most clearly indicated form of consent. •Consent is not to be inferred from silence, passivity, lack of resistance or a lack of an active response alone. •Assuming that consent was given by the absence of a "no" is wrong. (It is always a good idea to assure if everything is okay with the other person - consent for one activity does not imply consent for all activities. Consent because you had a prior encounter does not mean consent for the current encounter. Consent may be withdrawn at any time during an encounter.)

WHAT IS EXPECTED OF A PHYSICIAN AND A MEDICAL STUDENT AS A FUTURE PHYSICIAN?

•Mandatory Reporters- all VCOM employees and students are considered mandatory reporters and MUST report an act of violence/sexual violence toward another student or employee that they witness to the Director of Human Resources or member of administration. Witnesses are also encouraged to report such acts to the local police using 911. •In the future, as a Physician you will also expected to report acts of violence / sexual violence. The patient has privacy rights according to HIPAA, and the reporting must only occur if the person agrees to the disclosure OR if the person is not of age OR if the Physician believes the person is in imminent danger.

Clery Act History (1992-2000)

•The CLERY ACT was created after a student named Jeanne Clery was raped and murdered in her dorm room by a fellow student at Lehigh Univ. in 1986. •1992- amended to require the development and implementation of policies and procedures to protect the rights of sexual assault survivors. •1998- amended and renamed the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act. Increased the categories of reportable crimes. •2000- amended to require institutions to provide information on the state's public sex offender registry and allowed the disclosure of registered sex offender information without violating privacy laws.

AVOID BEING ACCUSED OF SEXUAL VIOLENCE

•To avoid being accused of being a perpetrator, if a person you are accompanying becomes intoxicated or incapacitated to the point they are unable to comprehend and voice consent, or their lack of consent to sexual advances, they are considered vulnerable. •In this case, sexual advances should be avoided as they may be unwanted. •Mutual consent requires both persons to be capable of comprehending and voicing consent. VCOM will support the decision of the courts or authorities. •Women may be charged (just as men are) of unwanted sexual activity when incapacitated, even though more infrequent.

Title IX Final Rule: definition of Sexual Harassment

Conduct on the basis of sex that satisfies one or more of the following: 1)An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual contact; or 2)Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity; or 3) Sexual assault, dating violence, domestic violence, or stalking

CONSENT and INCAPACITATION

Consent cannot be given when a person is incapacitated. A person cannot consent if they are unconscious or coming in and out of consciousness. A person cannot consent if they are under the threat of violence, bodily injury or other forms of coercion. A person cannot consent if their understanding of the act is affected by a physical or mental impairment. Consent must be given with rational and reasonable judgment, so if the individual were physically incapacitated from the consumption of alcohol or other drugs, unconscious, or any other kind of inability, consent cannot be obtained.

Stalking

Engaging in conduct directed at a specific person that would cause a reasonable person to: A) Fear for his or her safety or the safety of others; or B) Suffer substantial emotional distress.

Domestic violence

Felony or misdemeanor crimes of violence committed 1) by a current or former spouse or intimate partner of the victim; or 2) by a person with whom the victim shares a child in common; or 3) by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner; or 4) by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies; or 5) 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.

Dating violence

Includes all the types of assault above where the violence was committed by a person who is or has been in a social relationship of a romantic/intimate nature with the victim.

AGE OF CONSENT

The age at which an individual can legally consent to sexual intercourse under any circumstance. 1.Minimum age of victim- the age below which an individual cannot consent to sexual intercourse under any circumstance. 2.The age set by the state, including definitions and defenses regarding statutory rape.

Anonymous Reporting

•VCOM recognizes that the mandatory reporting policy may at times be a deterrent to a victim or observer reporting an act of violence/sexual violence. •If a student is hesitant to report such an act but wishes to discuss it, VCOM requests that the student or employee call the Director of Human Resources or Associate Dean. •In this case the caller may initiate the call anonymously. All reports of violence which become known to VCOM will be investigated. •Evidence must exist and become known during the investigation verifying the violence took place in the case of anonymous reporting before the College may pursue the report further.

VCOM and Title IX Final Rule

•VCOM'S Policy on Discrimination, Harassment and Violence is much broader than the federal laws, incorporating them and prohibiting unprofessional and unethical conduct not covered by constitutional protections but expected of a physician. •Cases of alleged sexual harassment will proceed under the procedures set out in the Title IX Final Rule. All other cases of alleged Discrimination, Violence, and Harassment violations of the VCOM Policy will proceed under the College's procedures for the Discrimination, Harassment and Violence Review Committee. •As future Physicians you are held to a higher standard; by VCOM and by Medical Boards in the future.

The Clery Act

-1990 -requires institutions of higher education to report crime statistics, notify the campus community of threats, and compile and distribute (or post) an annual campus security report to the campus community, prospective students, and employees

Close in Age laws

-26 states have adopted -laws that allows 2 persons close in age to have sex eve if one is not the age of consent. Example is Virginia whose age is 18 but allows teens ages 15 to 17 to have sex

Department of Education TITLE IX FINAL RULE

-8/14/2020 1. Contains many of the policies, definitions and provisions of the Clery Act, however the process and procedures for reporting have been changed and are now specifically limited. 2.The new rule specifically places undue burden on the victims as well as institutions. 3.Many appeals to the new rule have already been filed. -Biden stated during his campaign he would amend and changes have begun as of summer 2021

SEXUAL HARASSMENT: Supportive Measures

-Measures designed to restore or preserve equal access to the College's education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the College's educational environment, or to deter sexual harassment. -The measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, leaves of absence and other similar measures

Violence

-Violence is always considered unacceptable behavior. -Violence includes physical contact through any act of violence, physical control, and/or intimidation through threat of violence

Clery Act History (2008-2019)

-•2008- after the 2007 Virginia Tech shootings, the Clery Act was included within the new Higher Education Opportunity Act of 1965 and amended to include new regulations re: emergency notifications and response, timely warnings, missing student notification, fire safety reporting, and hate crime reporting. •2013- amended again as part of the reauthorization of the Violence Against Women Act (VAWA) which incorporated provisions of the Campus Sexual Violence Elimination Act (SAVE). Increased reportable crimes including domestic violence, dating violence, sexual assault, and stalking. Also increased the rights of victims. •2016 - following the Penn State sex abuse scandal of young boys sexually abused over several years. The Department of Education conducted the most extensive investigation ever conducted. Penn State was also fined 2.4 million dollars •2019, following the investigation of the case of Larry Nassar at Michigan state, the University was fined 4.5 million dollars, the largest ever Clery Act penalty. During the 2018 - 2019 period several states' higher education accrediting bodies along with the Dept. of Education, increased their reporting requirements on sexual crimes. -Many appeals were filed at the state level by Institutions of Higher Education as they believed the states were moving the responsibilities of the courts (in deciding guilt) to the colleges and universities.

VCOM Policy on Sexual Harassment

1)An employee of an institution conditioning the provision of an aid, benefit, or service of the institution on an individual's participation in unwelcome sexual contact.( QUID PRO QUO) 2)Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and/or objectively offensive that it effectively denies a person equal access to the institution's educational programs or activities. 3) sexual assault, dating violence, domestic violence, and stalking

Avoiding Possible Allegations of Sexual Violence and Ethical violations in the Workplace

1. Atmosphere of political correctness. a. maintain appearance of appropriate, professional distance between yourself and your patient at all times. b. only examine members of the opposite sex with a staff person of the same gender as the patient. c. be sensitive to appearances. A hug or kiss on the cheek with a close friend may appear as inappropriate to staff, colleagues, and other patients not familiar with the relationship. 2. The overly friendly or sexually forward patient. a. immediately and politely deflect with statements that do not embarrass the patient but makes it clear on your position on such conduct. For example, "I am sorry but professional standards do not allow what may be regarded by others as not appropriate conduct with a patient." If the behavior doesn't stop, consider terminating the physician-patient relationship. 3. Romantic relationships a. Approach with great care! b. If planned with a patient, consider referring to another physician not in your office. c. Romances with married patients, married or single staff or minors is a professional, financial, and legal disaster just waiting to happen. Don't make a lawyer wealthy from this kind of mistake!

During Grievance process, the Title IX Coordinator will meet confidentially with the complainant (alleged victim) to:

1.Discuss availability of supportive measures 2.Consider the complainant's wishes with regard to supportive measures 3.Inform the complainant of the availability of supportive measures with or without filing a formal complaint 4.Explain the process for filing a formal complaint.

Sexual assault

Any sexual act directed against another person, a. forcibly and/or against that person's will or b. not forcibly against that person's will where the victim is incapable of giving consent. (Includes forcible rape, sodomy, sexual assault with object, forcible fondling, incest, & statutory rape)

CONFIDENTIALITY

As far as practical, and as allowed by law, the proceedings under the Title IX Final Rule and the VCOM Policy on Discrimination, Harassment, and Violence shall be kept confidential. -staff and students are mandated reporters if they witness anything

Title IX

1.TITLE IX OF THE EDUCATION AMENDMENT OF 1972 (amended the Higher Education Act of 1965) and states "NO PERSON IN THE UNITED STATES SHALL, ON THE BASIS OF SEX, BE EXCLUDED FROM PARTICIPATION IN, BE DENIED THE BENEFITS OF, OR BE SUBJECTED TO DISCRIMINATION UNDER ANY EDUCATION PROGRAM OR ACTIVITY RECEIVING FEDERAL ASSISTANCE." 2.When TITLE IX was signed in 1972, the purpose was focused on equity and access for female student, particularly as it pertained to athletics, financial aid, and admissions. 3.Over the years this was expanded to include protections against sexual harassment and sexual violence, as well as gender discrimination against transgender students and pregnant students. 4.Title IX is a living and breathing document, with currently, over 20 suggested amendments to the law. 5.New requirements have been added in recent years to ensure that colleges prevent, respond to, and remedy sexual misconduct.

The recipient must dismiss the formal complaint if the conduct alleged in the formal complaint...

1.Would not constitute sexual harassment even if proved; or 2.Did not occur in the recipient's education program or activity; or 3.Did not occur against a person in the United States. SUCH A DISMISSAL DOES NOT PRECLUDE ACTION UNDER ANOTHER PROVISION OF RECIPIENT'S CODE OF CONDUCT.

Age of Consent and Minimum age of victim in AL, LA, SC, and VA

AL: 16, 12 LA: 17, 13 SC: 16, 14 VA: 18, 18

Title IX Geographic Restrictions

ALSO for this to be considered a Final Rule issue: 1.The conduct complained of must have taken place against a person in an educational program or activity of VCOM in the Unite States. 2.For purposes of Title IX the "education program or activity" includes when the sexual harassment has occurred in an educational program, event, or in a facility owned by VCOM or where VCOM had substantial control over the location and the respondent. 3.These limitations do not apply to VCOM policies.

Some states have mandatory reporting for certain types of injuries. How about VA, AL, LA, and SC?

Alabama- none Louisiana- gunshot wounds South Carolina- gunshot wounds Virginia- wounds fro guns, knives, Knuckles, nun chuck, throwing stars and similar.

SEXUAL HARASSMENT GRIEVANCE PROCESS RETALIATION

No one may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or any VCOM policy, or because the individual has made a report or complaint, testified, participated or refused to participate in any manner in an investigation, proceeding, or hearing under Title IX or any VCOM policy. Acts of retaliation are also considered unethical and unprofessional calling for review by the Professional and Ethical Standards Board.

PREVENTING SEXUAL VIOLENCE

Prevention occurs by reducing vulnerability. Sexual predators generally prey upon vulnerable people. What makes someone vulnerable? 1.Being alone (hiking or biking alone in remote places, walking on city streets alone at night, etc.) Perpetrators avoid crowds. 2.Intoxication or drugs makes one more vulnerable. Charges for having sex with an incapacitated person are frequent. 3.Assure there is a designated driver you to take you home if you are drinking. 4.Never accept a drink from a stranger that may have added drugs.

VCOM Equal Opportunity Policy Statement

VCOM is committed to ensuring that the College is free of discrimination and harassment on the basis of... -VCOM's policies are broader than federal policies

As a private school is VCOM held accountable under Title IX?

Yes because students attend with federal funding