Policy 122.4 : Guidelines on Consenting Relationships

POLICY#:  122.4
SUBJECT:  Guidelines on Consenting Relationships
APPLIES TO:
ISSUED BY:  Systemwide Office of Human Resources
EFFECTIVE DATE:  11/90
REVISION DATE:
REVIEW/REPLACES:

The purpose of these guidelines is to clarify Board Policy on
sexual harassment as it pertains to consenting romantic or sexual
relationships between members of the University of Maine System
community.  These guidelines explain the policy, the
responsibilities of faculty or staff who may become involved in a
relationship of the type covered by the policy, and the
responsibilities of campus administrators, supervisors, and Equal
Opportunity Officers once there is a reasonable basis to believe
that a consenting relationship may exist.

Relevant Portion of the Sexual Harassment Policy

"Consenting relationships may constitute sexual harassment under
this policy.  When a professional power differential exists
between members of the University of Maine System and a romantic
or sexual relationship develops, there is a potential for abuse
of that power, even in relationships of apparent mutual consent.
A faculty or staff member should not engage in such
relationships.  Further, the University prohibits the abuse of
power in romantic or sexual relationships."

"To assure that power is not abused and to maintain an
environment free of sexual harassment, a faculty or staff member
must eliminate any current or potential conflict of interest by
removing him or herself from decisions affecting the other person
in the relationship.  Decisions affecting the other person
include grading, evaluating, supervising, or otherwise
influencing that person's education, employment, housing,
participation in athletics or any other University activity."

Types of Relationships Covered

To fall within the consenting relationship portion of the policy,
a relationship must:

     1.   Appear to be consensual, and
     2.   Be romantic or sexual in nature, and
     3.   Develop between two individuals one of whom has power
          or authority over the other.

A consenting relationship is one between two adults, both of whom
appear to freely choose to enter into and continue a romantic or
sexual relationship.  The policy strongly discourages consenting
relationships when one of the participants has power or authority
over the other, but does not prohibit them outright.  The
University discourages such consenting relationships because the
power differential creates a strong possibility that the
relationship may not be truly consensual, or if consensual may
not permit a later decision by the person with less power to
discontinue the relationship our of concern for the possible
effect on his or her employment or educational status.

If one of the individuals involved does not welcome the
relationship, it should be regarded as potential sexual
harassment based on the unwelcome nature of the sexual conduct.
Relationships which are not consensual are prohibited under other
sections of the sexual harassment policy.

Consenting relationships that may result in complaints of sexual
harassment or sexual favoritism and that create a conflict of
interest include, for example, those between:

     * A faculty member and student who is enrolled in the
       faculty member's course, who is enrolled in a program for
       which a course taught by the faculty member is a
       requirement, who is an advisee of the faculty member, or
       whose academic work is being supervised by the faculty
       member;

     * A faculty or staff member and a student if the faculty or
       staff member is in a position to evaluate or otherwise
       influence the student's education, employment, housing, or
       participation in athletics or any other University
       activity (staff members include, for example, graduate
       assistants, administrators, coaches, advisors, program
       directors, counselors, health center staff, and
       residential life staff);

     * A supervisor and an employee under that person's
       supervision; a department chair and a faculty member in
       the same department; and administrator and a faculty or
       staff member in a department under that administrator's
       direction

     * A tenured faculty member and an nontenured faculty member
       if the tenured person participates in peer recommendations
       about the untenured person.

Consenting relationships between two coworkers, two faculty or
staff members in different departments, two students, and a
faculty or staff member and student between who no professional
power differential exists and which are welcomed by both parties
involved are not subject to sexual harassment policy.

Why Consenting relationships are Regulated

Positive relationships between faculty and other staff and
students, and between supervisors and their employees enrich the
University environment and should be strongly encouraged,  It is
also natural that academic or employment related interactions
between some individuals may lead to personal friendships, which
do not pose problems as long as they do not create a conflict of
interest that could cloud academic or employment decisions.  The
policy on consenting relationships is in no way intended to chill
the development of constructive relationships between individuals
one of whom has power or authority over the other.  However,
romantic or sexual relationships are fundamentally different and
raise serious concerns.

A consenting romantic or sexual relationship between a faculty or
staff member and a subordinate student or employee may be
exploitive in nature, leads to a conflict of interest for the
person who is in the position of power, and can affect the
environment for other students, a faculty, or staff members, or
the manner in which they are treated.  The sexual or romantic
relationship, per se, is not the problem; rather the problem is
the conflict of interest and the potential discriminatory or
damaging impact of the relationship when a power differential is
involved.

Codes of ethics for most professional associations forbid
profession-client sexual relationships.  These codes offer
guidance in the University setting.  Student respect for and
trust in faculty and other staff greatly restrict their actual
freedom to reject sexual advances, and makes them vulnerable to
unintentional sexual exploitation.  The power of faculty and
other staff to give or withhold rewards such as praise, grades,
and recommendations further limits the extent to which a sexual
relationship between faculty or staff and student can be
considered consensual.  Even if a subordinate student or employee
does not appear to object to participation in a sexual
relationship, this does not mean that the individual welcomes the
relationship.  The student fearing adverse consequences from
noncompliance may feel compelled to enter into or to continue an
undesired intimate relationship with a faculty or staff member.
There are similar problems with an apparently consenting
relationship between supervisor and employee.

Consenting relationships involving a power differential also pose
serious liability for the University under the standards used by
the courts in judging cases of quid pro quo sexual harassment.
(In quid pro quo harassment, a supervisor or faculty member who
makes unwelcome sexual demands of a subordinate employee or
student bases tangible job or education rewards or penalties on
whether the subordinate submits to the sexual request.)
Additionally, a third party may claim that the participant in a
consenting relationship receive preferential treatment and may
file a complaint of sex discrimination against the faculty member
or supervisor.



Policy Implementation

     1.   Responsibilities of Faculty and Staff

Faculty and staff are strongly encouraged to avoid any romantic
or sexual relationship with a student or employee over whom they
have any authority.  If a faculty or staff member does become
romantically or sexually involved with a subordinate student or
employee, the faculty or staff member must remove himself or
herself from any decisions affecting the other person as soon as
practicable in order to avoid a conflict of interest and the
potential for sexual harassment or sexual favoritism.  The
faculty or staff member may consult with the campus Equal
Opportunity Officer and should speak with his or her supervisor
about appropriate ways to transfer such responsibilities.  Even
if the relationship is terminated, it may be necessary for the
faculty or staff member to avoid any role in future decisions
affecting the other person to avoid a perceived or actual
conflict of interest or sexual harassment.

A faculty or staff member who fails to disclose his or her
involvement in a consenting relationship with a subordinate
student or employee to his or her supervisor, or who fails or
refuses to remove himself or herself from decisions affecting the
other person will be subject to disciplinary action.

Evidence of a pattern of consenting relationships between a
faculty or staff member and subordinate students or employees may
subject the faculty or staff member to disciplinary action.

Faculty and staff members are urged to be sensitive to the
possibility that a consenting relationship which presently
involves no differential becomes problematic if they are
unexpectedly placed in a position of responsibility for the
student or employee with whom they have become involved.

2.   Responsibilities of Administrators, Supervisors, and Equal
     Opportunity Officers

Campuses should make reasonable efforts to ensure that all
faculty and staff members receive a copy of the sexual harassment
policy.

In each situation involving an apparent consenting relationship,
a determination about what measures are appropriate should be
made on a case-by-case basis from the facts of the particular
situation.  However, the following guidelines should normally be
followed.

In general, the law holds the University responsible for sexual
harassment about which it knew or should have known.
Consequently, information about apparently consenting
relationships that comes to the attention of a supervisor,
administrator, or Equal Opportunity Officer must be investigated
to protect the University from a potential charge that it knew or
should have known about unwanted sexual conduct or a relationship
which turned out to be nonconsensual.  Although it is not
necessary to explore every rumor alleging a consenting
relationship. rumors which form a reasonable basis for believing
that an alleged relationship exists that is subject to University
policy should be investigated.

An administrator or supervisor who has a reasonable basis to
believe that an alleged romantic or sexual consenting
relationship is occurring that is covered by the University
policy must therefore immediately consult with the campus Equal
Opportunity Officer.  The purpose of this consultation is to
allow for a joint assessment of the situation and a decision
about who will be responsible for reviewing it.  If there is any
indication that the alleged relationship may not be welcome to
either of the participants, the Equal Opportunity Officer should
normally conduce the review to determine whether sexual
harassment may have occurred.  If the alleged relationship
appears to be consenting but presents a conflict of interest for
one of the participants, an appropriate supervisor,
administrator, or Human Resources staff member should normally
conduct the review to determine whether a conflict of interest
exists.  An appropriate campus official should meet with the
faculty or staff member to:

     a.   Determine to the extent possible whether a romantic or
          sexual relationship exists, explore whether it appears
          to be consensual, and determine whether a conflict of
          interest exists,

     b.   Inform the faculty or staff member of his or her
          responsibilities under University policy,

     c.   Explore and assist with options for the appropriate
          transfer of responsibility for the subordinate student
          or employee,

     d.   Encourage the faculty or staff member to terminate the
          current relationship, if appropriate, and/or avoid such
          relationships in the future, and

     e.   Follow-up to ensure that the transfer of responsibility
          occurs.

A campus official who is reviewing an alleged consenting
relationship that poses a conflict of interest and who receives
information that the relationship may not be welcome to one of
the participants would immediately contact the Equal Opportunity
Officer.  If there is a reasonable basis to believe that the
relationship is not consensual for one of the individuals, the
Equal Opportunity Officer should meet with that person.

If a faculty or staff member fails to promptly disclose a
relationship or fails or refuses to remove himself or herself
from decisions affecting the other person as soon as practicable,
the Equal Opportunity Officer, administrator, or supervisor will
review whether disciplinary action may be necessary and will make
his or her recommendations to the appropriate campus
administrator.