Attachment 2 MS 246 Final Policy.docx

MS 246 Volunteer/Trainee Sexual Misconduct

Table of Contents

Authority 22 U.S.C. §2504(a).

Purpose

(a) This policy covers “Sexual Misconduct” (see definition in subsection 3.0 below) by Volunteers and Trainees (V/Ts). Sexual Misconduct comprises a broad range of behavior that will not be tolerated in the Peace Corps. The Peace Corps is committed to providing an environment free from Sexual Misconduct.

(b) The procedures for handling complaints of Sexual Misconduct by V/Ts are set out in the MS 246 Procedures for Handling Complaints of Volunteer/Trainee Sexual Misconduct (MS 246 Procedures). The MS 246 Procedures are designed to promote prompt reporting of all types of Sexual Misconduct by V/Ts and to provide for a timely and fair resolution of Sexual Misconduct complaints for both the “Reporting” and “Responding V/Ts” (see definitions in subsection 3.0 below).

Definitions For purposes of this policy, “Consent” and the various forms of Sexual Misconduct (“Rape,” “Aggravated Sexual Assault,” “Non-Aggravated Sexual Assault,” and “Stalking”) are intended to be defined consistently with the definitions that appear in the Office of Safety and Security’s Security Incident Reporting Guide (SIRG). In the event of a conflict between this language in the Peace Corps Manual and the SIRG, the language in the SIRG shall prevail.

(a) Aggravated Sexual Assault means another person without the Consent of the V/T, intentionally or knowingly: (i) touches or contacts, either directly or through clothing, the V/T’s genitalia, anus, groin, breast, thigh, or buttocks; or kisses the V/T on the mouth, ear, or neck; or disrobes the V/T; or causes the V/T to touch or contact, either directly or through clothing, another person’s genitalia, anus, groin, breast, thigh, or buttocks; or attempts to carry out any of those acts; and (ii) the offender uses or threatens to use a weapon; or the offender uses or threatens to use force or other intimidating actions; or the V/T victim is “Incapacitated” (see definition below) or otherwise incapable of giving Consent.

(b) Consent means words or actions that show a knowing and voluntary agreement to engage in mutually agreed-upon activity. Consent is absent if force has been used against the V/T, the V/T has been threatened or placed in fear, or the V/T is incapable of appraising the nature of the conduct. Consent is absent if the V/T is physically incapable of declining participation in, or physically incapable of communicating unwillingness to engage in (e.g., Volunteer is intoxicated), that conduct. (See also the definition for “Incapacitation” and Incapacitated below.)

(c) Incapacitation and Incapacitated mean the physical or mental inability to make informed, rational decisions to engage in sexual activity.

(1) Types of Incapacitation are as follows:

(i) Use of alcohol or drugs, whether voluntary or involuntary, that inhibits a person’s decision-making capacity, awareness of consequences, or ability to make informed judgments.

(A) The impact of alcohol and drugs varies from person to person. A person does not have to be intoxicated or drunk to be considered Incapacitated.

(B) Rather, Incapacitation is determined by a person’s inability to fully understand the “who, what, where, why, or how” of the situation or activity.

(ii) A state of sleep, unconsciousness, or lack of awareness that sexual activity is occurring.

(2) Because Incapacitation may be difficult to discern V/Ts are strongly encouraged, when in doubt, to assume that another person is Incapacitated and therefore unable to give Consent.

(3) Being intoxicated, drunk, or under the influence of drugs is not a defense to a complaint of Sexual Misconduct under this policy.

(d) Non-Aggravated Sexual Assault means another person, without the Consent of the V/T, intentionally or knowingly: touches or contacts, either directly or through clothing, the V/T’s genitalia, anus, groin, breast, thigh, or buttocks; or kisses the V/T on the mouth, ear, or neck; or touches the V/T with the offender’s genitalia, either directly or through clothing, or with the offender’s semen or vaginal fluids (no matter which part of the V/T’s body is touched); or attempts to carry out any of those acts.

(e) Rape means the 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 V/T.

(f) Sexual Exploitation means taking sexual advantage of another person without Consent for one’s own benefit, or the benefit of a third party. It includes, without limitation:

(1) Causing or attempting to cause the Incapacitation of another person in order to engage in a sexual activity with such other person;

(2) causing the prostitution of another person;

(3) recording, photographing, or sharing images of private sexual activity or the intimate parts of another person;

(4) engaging in voyeurism (which is defined as watching another person engaging in private sexual activity or exposed intimate parts under circumstances that would reasonably lead to an expectation of privacy);

(5) allowing third parties to observe private sexual activity; or

(6) knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection including, but not limited to, the human immunodeficiency virus (HIV).

(g) Sexual Misconduct means Rape, Aggravated Sexual Assault, Non-Aggravated Sexual Assault, Sexual Exploitation, or Stalking. Sexual Misconduct can occur between strangers or acquaintances (including people involved in an intimate or sexual relationship and people related by blood or marriage). Sexual Misconduct can be perpetrated by any individual and it can occur between people of the same sex or of different sexes.

(h) Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person (including the V/T or staff) to (i) fear for their safety or the safety of others and/or (ii) suffer substantial emotional distress. A “course of conduct,” as also described in the SIRG, means “threatening behavior of two or more acts by the same offender, across a period of time, however short, showing a continuity of purpose.” This behavior can include repeatedly maintaining unwanted visual or physical proximity to a person; conveying oral or written threats, implicitly threatening conduct, or any combination of these directed at or toward a person; or directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about a person.

(i) V/T means Volunteer or Trainee. Reporting V/T is the Volunteer or Trainee who reports a violation of the Sexual Misconduct policy. Responding V/T means, or refers to, the V/T who has been identified (either by the victim or a third party) as having perpetrated Sexual Misconduct.

Sexual Misconduct Policy Sexual Misconduct by a V/T violates Peace Corps policy. A V/T who is found to have engaged in Sexual Misconduct, whether against another V/T or any other person, shall be subject to appropriate disciplinary action, as detailed in MS 246 Procedures.

If the Sexual Misconduct complaint involves Rape, Aggravated-Sexual Assault, and/or Non-Aggravated Sexual Assault, MS 243 Responding to Sexual Assault, is also applicable. The Reporting V/T shall be offered all reporting options and services available under MS 243, if they have not yet been offered at the time of the report of Sexual Misconduct.

In cases of Sexual Misconduct that involve a Rape, Aggravated-Sexual Assault, and/or Non-Aggravated Sexual Assault, this policy may only be invoked if the report is designated a Standard Report pursuant to MS 243.

Complaints of Sexual Misconduct Procedures for Handling Complaints by V/Ts

(a) Any current or former V/T may report Sexual Misconduct concerning another V/T to the Peace Corps. However, the Peace Corps can only take administrative action against the Responding V/T if the Reporting V/T was serving at the time of the Sexual Misconduct, and the Responding V/T continues to serve as a V/T at the time the complaint is brought, and it is a Standard Report.

(b) If the Reporting V/T was serving at the time of the Sexual Misconduct, and the Responding V/T continues to serve as a V/T at the time the complaint is brought, a complaint of Sexual Misconduct shall be handled in accordance with the MS 246 Procedures. If the Responding V/T is no longer in service when the complaint is brought, the Peace Corps will keep a record of the complaint in accordance with Section 5.3 below. If the Reporting V/T was not serving at the time of the Sexual Misconduct, but the Responding V/T continues to serve, see Section 5.2 below.

(c) So long as the Responding V/T continues to serve as a V/T, there is no time limit for making a report of Sexual Misconduct. Nevertheless, V/Ts are encouraged to report Sexual Misconduct immediately to maximize the agency’s ability to obtain evidence and conduct a thorough, impartial and reliable investigation. Failure to promptly report Sexual Misconduct may also result in the loss of relevant evidence and witness testimony and may impair the Peace Corps’ ability to enforce this policy.

(d) Once a report of Sexual Misconduct has been made by the Reporting V/T, the Peace Corps will take timely and appropriate action, in accordance with this policy and the MS 246 Procedures.

(e) The Peace Corps will not take any formal disciplinary action against a Responding V/T unless the Responding V/T is found to have engaged in Sexual Misconduct in accordance with the MS 246 Procedures. However, the Peace Corps will take any interim measures, in accordance with the MS 246 Procedures, which it deems necessary to safeguard the privacy, safety and/or well-being of V/Ts or others. Additionally, nothing in this policy or the MS 246 Procedures precludes a Country Director from taking disciplinary action against a Responding V/T for misconduct other than Sexual Misconduct or any other inappropriate conduct.

Procedures for Handling Complaints by Non-Volunteer/Trainees

(a) Any complaint of Sexual Misconduct brought against a V/T by a non-V/T, including a complaint brought by a Peace Corps staff member shall be handled in accordance with:

(1) MS 204 Volunteer Conduct,

(2) MS 284 Early Termination of Service, and

(3) Reported to the Office of Inspector General (OIG) pursuant to MS 861 Office of Inspector General.

Procedures for Handling Complaints Against Former Volunteer/Trainees Any complaint of Sexual Misconduct brought by a current or former V/T against a former V/T shall be documented by the Country Director through MS 284 Attachment J.

No Retaliation

(a) It is a violation of Peace Corps policy for any V/T or staff member to:

(1) retaliate against any V/T bringing a complaint of Sexual Misconduct;

(2) retaliate against any other person cooperating in the investigation of, or testifying as a witness to, any allegation of Sexual Misconduct; or

(3) retaliate against any V/T accused of Sexual Misconduct.

For purposes of this policy, the terms “retaliate” and “retaliation” include intimidation, threats, harassment, unwarranted invasion of privacy or other adverse action threatened or taken against any such V/T or other person. However, the terms “retaliate” and “retaliation” do not include action taken in accordance with this policy and the MS 246 Procedures against a V/T who is found to have engaged in Sexual Misconduct or otherwise violated this policy or the MS 246 Procedures. Retaliation may result in disciplinary action independent of any disciplinary action taken in response to the underlying allegations of Sexual Misconduct.

(b) Nothing in this policy shall preclude the Peace Corps from taking appropriate disciplinary action against a V/T who provides false information under this policy with the knowledge that it was false or with willful disregard for its truth or falsity. However, the absence of a finding under this policy that a V/T engaged in Sexual Misconduct does not by itself mean that the Reporting V/T provided false information.

Criminal and Other Investigations

(a) Sexual Misconduct violates Peace Corps policy and may also violate criminal and other laws of the U.S. or the local jurisdiction where the Sexual Misconduct occurred. The reporting of a complaint of Sexual Misconduct and the handling of such complaint under the MS 246 Procedures are independent of any criminal or other investigation or proceeding.

(b) A V/T is entitled to report Sexual Misconduct directly to the OIG, and to relevant law enforcement agencies regardless of whether that V/T has reported Sexual Misconduct under this policy.

(c) Because the standards for finding a violation of criminal law are different from the standards for finding a violation of this policy, criminal investigations or reports are not determinative of whether Sexual Misconduct has occurred under this policy. Conduct may constitute Sexual Misconduct under this policy even if the OIG, law enforcement agencies or other relevant authorities lack sufficient evidence of a crime and/or do not move forward with a criminal prosecution or if there is an acquittal of the Responding V/T in criminal proceedings.

(d) Any failure of the Peace Corps to follow any of the procedures contained in the MS 246 Procedures is not a defense to a criminal prosecution.

Procedures Procedures implementing this Manual Section must be developed under the direction and guidance of the Director for the Office of Sexual Assault Prevention and Response and must be coordinated with the OIG with respect to those portions that relate to OIG investigations. The MS 246 Procedures must also be approved by the Office of Global Operations, Office of Safety and Security, Office of Victim Advocacy, Office of Health Services, and Office of the General Counsel, and are subject to the final review and approval of the Office of Sexual Assault Prevention and Response.

Effective Date The effective date of this Manual Section is the date of issuance.

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