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Unwelcomeness Requirement

Drafters should be aware that ‘unwelcomeness’ requirements (often imposed in sexual harassment laws in other contexts) should be reconsidered in the educational setting. Women and girls in educational settings, where teachers and other authority figures have complete control over the environment, often have no option to express that conduct is unwelcome. Unwelcomeness provisions should be removed or substantially modified when drafting laws related to the educational setting. For example, Israeli law removes the requirement for a victim to express that conduct is unwelcome when the victim is “a minor or a helpless person, [or] where a relationship of authority, dependence, education or treatment is being exploited.” (See: Prevention of Sexual Harassment Law, Art. 3(a)(6)(a)) In the United States, under federal Title IX legislation, conduct must be unwelcome for it to constitute sexual harassment, but conduct is considered “unwelcome if the student did not request or invite it and considered the conduct to be undesirable or offensive.” Also, the “age of the student, the nature of the conduct, and other relevant factors affect whether a student [is] capable of welcoming the sexual conduct. A student’s submission to the conduct or failure to complain does not always mean that the conduct was welcome.” (See: U.S. Department of Education, Sexual Harassment: It’s Not Academic, p.5, 2008)