Definitions

The following definitions are relevant to this policy and include definitions of prohibited conduct as well as related terms:


A.  Sexual and Gender-Based Harassment.

Sexual harassment is a form of discrimination on the basis of sex or gender. Sexual harassment can occur via writings, visual forms, and verbal or physical conduct. Sexual or gender-related conduct will violate this policy if it is sufficiently severe, pervasive, or persistent that it either (1) denies, interferes with, or limits a person’s ability to participate in or benefit from the University’s programs or activities; or (2) creates a learning, working, or living environment that a reasonable person would consider intimidating, hostile, or offensive.


The following are some examples of conduct that may be considered sexual harassment:

  • Unwanted requests for sexual favors;
  • Deliberate unwelcome touching that is sexual in nature;
  • Unwanted and persistent sexual looks, gestures, or comments;
  • Unwanted letters, telephone calls, texts, emails, or contact through social media of a sexual nature;
  • Unwanted and persistent pressure for dates;
  • Repeatedly leaving unwanted gifts, cards, or letters;
  • Unwanted sexual joking, teasing, remarks, or questions;
  • Whistling, leering, cat calls, or kissing sounds;
  • Displays of materials, posters, video, or audio recordings of a sexual nature that do not have a research or pedagogical reason for display;
  • Asking someone about sexual fantasies, preferences, or history, or talking to someone about yours;
  • Telling lies or spreading rumors about a person’s sex life;
  • Unwelcome and unwanted hugging, touching, kissing, patting, stroking, or massages;
  • Rubbing oneself sexually around another person;
  • Exposing one’s genitals;
  • Repeatedly contacting or following someone either physically or through electronic means to demonstrate or make romantic or sexual overtures, including repeatedly asking someone out against their wishes, that causes the person to fear for their safety;
  • Allowing other individuals to observe private sexual activity from a hidden location (e.g., closet) or through electronic means (e.g., FaceTime, Snapchat, Skype, or live-streaming images) without consent of the participant(s);
  • Watching private sexual activity without the consent of the participants or viewing another person’s intimate parts in a place where that person would have a reasonable expectation of privacy;
  • Written, verbal, or electronic statements that disparage a person based on a perceived lack of stereotypical masculinity or femininity or perceived sexual orientation; and
  • Recording, photographing, disseminating, or transmitting intimate or sexual utterances, sounds, or images of private sexual activity and/or a person’s intimate parts.


B.  Sexual Misconduct and Sexual Assault.

All forms of sexual contact without consent are considered sexual misconduct. Certain forms of sexual misconduct are also considered sexual assault. 

Examples of sexual misconduct and sexual assault include, but are not limited to:

  • Nonconsensual sexual intercourse, which is any sexual penetration or intercourse, however slight and with any object, by a person to another person that is without consent. This includes oral, anal, and vaginal penetration, to any degree and with any object. This type of conduct is referred to as “sexual assault” in this policy.
  • Nonconsensual sexual contact, which is any sexual touching, however slight and with any object, by any person upon another without consent. Sexual touching is contact of a sexual nature, however slight.  Examples of nonconsensual sexual contact include (but are not limited to): touching of a nonconsenting person’s intimate parts (such as groin, genitals, breast, buttocks, mouth, and/or clothing covering these parts); touching a nonconsenting person with one’s own intimate parts; making a nonconsenting person touch you or another; or any intentional bodily contact in a sexual manner. Depending on the nature or extent of the contact, this form of sexual misconduct may also be considered and referred to as “sexual assault.”

Sexual misconduct also includes, but is not limited to:

  • Causing another to engage in involuntary sexual acts;
  • Sexual exhibitionism;
  • Stalking, bullying, or harassment;
  • Prostitution or the solicitation of a prostitute;
  • Peeping or other voyeurism;
  • Going beyond the boundaries of consent, e.g., by allowing others to view consensual sex or the non-consensual video or audiotaping of sexual activity; and
  • Causing or trying to cause the incapacitation of another with the intent of initiating sexual activity with or upon that person after incapacitation, regardless of whether sexual activity actually takes place.


C.  
Consent.

Consent means informed, freely, and voluntarily given mutual agreement understood by both parties and communicated by clearly understandable words or actions, to participate in each form of sexual activity. Consent will not be assumed by silence, incapacitation due to alcohol or drugs, unconsciousness, sleep, cognitive or mental incapacitation, physical impairment, or lack of active resistance.

A current or previous dating or sexual relationship is not sufficient to constitute consent, and consent to one form of sexual activity does not imply consent to other forms of sexual activity. Ultimately, consent must be freely and voluntarily communicated, verbally and/or physically, for every sexual act.

There is no consent where:

  • There is coercion, threat, intimidation, or physical force involved (as explained in more detail below);
  • One party has taken advantage of a position of authority that he or she has over the other party (as explained in more detail below);
  • One party is incapable of giving consent due to incapacitation (as explained in more detail below);
  • No verbal and/or physical communication indicating consent has taken place; or
  • The reporting party is under the legal age of consent.

“Coercion” is the use of an unreasonable amount of pressure to gain sexual access. It is more than an effort to persuade, entice, or attract another person to engage in sexual activity. To determine whether coercion occurred, factors taken into consideration are: (i) the frequency of the application of pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the duration of the pressure. A finding of coercion also generally involves either the use of physical force or the threat of harm. Harm can include, but is not limited to, physical harm, harm to social relationships or reputation, financial harm, harm to terms and conditions of employment or academic situation, or other types of leverage created from the threat of harm.

“Threat” is a statement of an intention to inflict pain, injury, damage, or other hostile action on a person in retribution for something done or not done.

“Intimidation” is verbal or physical conduct that forces another person to do or not do some action by inducing fear.

“Physical force” is a physical act of power, violence, or pressure directed against another person.

“Position of authority” generally refers to a position with institutional or institution-related power. Examples are: employment-related supervisor, resident advisor, and athletic team captain.




D.  Incapacitation.


An incapacitated person is incapable of giving consent. A person is incapacitated if that person is in a physical or mental state such that he or she lacks the ability to make a knowing and deliberate choice to engage in the sexual interaction. For the purposes of this policy, a person who is asleep or unconscious is incapacitated, without exception.  A person may also become incapacitated due to other factors, which may include the use of alcohol and/or drugs to such a degree that the person no longer has the ability to make a knowing or deliberate choice to engage in the sexual interaction.  Engaging in sexual activity with a person whom an individual knows, or should reasonably know, to be incapacitated constitutes a violation. If there is a question about whether the reporting party was incapacitated, the relevant standard is whether the respondent knew, or a reasonable person not under the influence of a judgment-impairing substance in the respondent’s position should have known, that the reporting party was incapacitated and therefore could not consent to the sexual activity.


Consumption of alcohol or drugs is not by itself sufficient to establish incapacitation. Therefore, each incident will be assessed on a case-by-case basis.

Incapacitation is a state beyond drunkenness or intoxication. An individual who is intoxicated may be able to consent to sexual activity. However, when an individual passes from intoxication to a state of incapacitation, the individual no longer has the ability to give consent.

Some indications of intoxication include, but are not limited to: slurred speech or difficulty communicating; difficulty walking or standing; and/or exaggerated emotions.

Some indications of incapacity include, but are not limited to: indications of intoxication (as set out above); inability to speak coherently; inability to walk unassisted; vomiting; glassy or bloodshot eyes; unable to keep eyes open; unusual behavior; unconsciousness; confusion or lack of understanding of basic facts; and/or disorientation to place, time, and/or location. These indications alone do not necessarily indicate incapacitation.



E.  Dating, Relationship, and Domestic Violence.


Dating, relationship, or domestic violence is generally characterized by repeated manipulative behavior aimed at gaining power or control over an intimate or romantic partner. It consists of harassment or violence committed by a person who is or has been in a relationship of a romantic or intimate nature with the recipient of such conduct. The existence of a relationship of a romantic or intimate nature is determined by considering the following factors: length of relationship, type of relationship, and frequency of interaction within the relationship.


Examples of prohibited conduct include, but are not limited to, the following:

  • Emotional abuse, which includes words and/or conduct used to manipulate or hurt a romantic or intimate partner (this is subject to application of the reasonable person standard in section IV below);
  • Verbal abuse, which includes the use of words or the withholding of communication to manipulate or hurt a romantic or intimate partner (this is subject to application of the reasonable person standard in section IV below);
  • Physical abuse, which includes words and/or conduct used to threaten or harm a romantic or intimate partner’s physical safety (this is subject to application of the reasonable person standard in section IV  below);
  • Resource abuse, which includes words and/or conduct aimed at manipulating or harming the financial or legal situation of a romantic or intimate partner (this is subject to application of the reasonable person standard in section IV below).
  • Sexual misconduct or sexual assault (as defined in Section III of this policy);
  • Physical violence that occurs between individuals in a dating relationship;
  • Physical violence that occurs between individuals within the same household or who are related to one another or share a child;
  • Within a dating or domestic relationship, attempting to cause or intentionally, knowingly, or recklessly causing bodily injury; and
  • Within a dating or domestic relationship, intentionally, knowingly, or recklessly placing another in fear of imminent bodily injury.

Domestic violence includes felony or misdemeanor crimes as defined by any applicable federal, state, or local law.




F.  Stalking.


Stalking means engaging in a course of conduct directed at a specific person or persons that would cause a reasonable person to:

  • Fear for his/her safety or the safety of others; or
  • Suffer substantial emotional distress.


Stalking is generally composed of two or more acts over a period of time, however short. Examples of conduct prohibited under this policy include, but are not limited to:

  • Nonconsensual and repeated communications;
  • Intentionally following, pursuing, waiting for, or showing up uninvited;
  • Surveillance or other types of close observation;
  • Direct physical and/or verbal threats against an individual or the individual’s loved ones;
  • Manipulative and controlling behaviors, including, but not limited to, means via the internet or electronic means; and
  • Cyber-stalking, which is the use of the internet or other electronic means to stalk an individual. Cyber-stalking may involve stalking type conduct that involves, but is not limited to, a larger than usual volume of email or text communications, false accusations, monitoring over the internet or via electronic means, making threats via the internet or electronic means, identity theft, intentional damage to data or equipment on the internet or via technology, or gathering information via the internet or via technology in order to harass another.




G.  Negative conduct (such as intimidation, retaliation, threats, harassment, or bribes) that attempts to prevent the reporting of conduct prohibited under this policy or that attempts to prevent participation in an investigation, conduct process, or other University process related to this policy.

It is important for individuals to not engage in any actions that might be seen as trying to prevent the report of a potential violation of this policy or interfering with an investigation, including attempting to influence the information provided by potential witnesses. There are various ways individuals can use or engage in to try to prevent a report or interfere with an investigation. Any such conduct is prohibited.




H.  Retaliation.


Retaliation occurs when an individual is subjected to certain types of material, adverse treatment because of or as the result of: (i) making a report about conduct potentially prohibited by this policy or participation in an investigation, conduct process; or (ii) other University process related to this policy.



I.  Reporting Party and Responding Party.


For situations involving sexual or gender-based harassment, misconduct, and violence, a student who is the alleged victim/survivor is referred to as the “reporting party.” A student who is the alleged perpetrator of the sexual or gender-based harassment, misconduct, or violence is referred to as the “responding party.”