Definitions: The following section defines the types of sexual misconduct prohibited under this policy, defines terms related to this policy including consent, force, incapacitation, and also defines terms used in the investigation and resolution process.
Prohibited Sexual Misconduct
Sexual Harassment is:
- sexual, sex-based and/or gender-based verbal, written, online and/or physical conduct.
Sexual harassment may be disciplined when it takes the form of quid pro quo harassment, retaliatory harassment and/or creates a hostile environment.
A hostile environment is created when sexual harassment is:
- sufficiently severe, or
- persistent or pervasive, and
- objectively offensive that it unreasonably interferes with, denies or limits someone’s ability to participate in or benefit from the University’s educational and/or employment, social and/or residential program.
Quid Pro Quo Harassment is:
- unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature
- by a person having power or authority over another constitutes sexual harassment when
- submission to such sexual conduct is made either explicitly or implicitly a term or condition of rating or evaluating an individual’s educational or employment progress, development or performance.
- This includes when submission to such conduct would be a condition for access to receiving the benefits of any educational or employment program.
Examples include: an attempt to coerce an unwilling person into a sexual relationship; to repeatedly subject a person to egregious, unwelcome sexual attention; to punish a refusal to comply with a sexual based request; to condition a benefit on submitting to sexual advances; sexual violence; intimate partner violence, stalking; gender-based bullying.
Non-Consensual Sexual Contact is:
- any intentional sexual touching,
- however slight,
- with any object
- by a person upon another person,
- that is without consent and/or by force.
Sexual Contact includes:
- intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; or
- any other intentional bodily contact in a sexual manner.
Non-Consensual Sexual Intercourse is:
- any sexual intercourse
- however slight,
- with any object,
- by a person upon another person
- that is without consent and/or by force.
- vaginal or anal penetration by a penis, object, tongue or finger, and oral copulation (mouth to genital contact) no matter how slight the penetration or contact.
Sexual Exploitation occurs when one person takes non-consensual or abusive sexual advantage of another person for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses. Examples of sexual exploitation include but are not limited to:
- Invasion of sexual privacy
- Prostituting another person
- Non-consensual digital, video or audio recording of nudity or sexual activity
- Unauthorized sharing or distribution of digital, video or audio recording of nudity or sexual activity
- Engaging in voyeurism
- Going beyond the boundaries of consent (such as letting a friend hide in the closet to watch you having consensual sex)
- Knowingly exposing someone to or transmitting an STI, STD or HIV to another person
- Intentionally or recklessly exposing one’s genitals in non-consensual circumstances or inducing another to expose his/her genitals
- Sexually-based stalking and/or bullying may also be forms of sexual exploitation
Domestic Violence is defined as a felony or misdemeanor crime of violence committed by:
- a current or former spouse or intimate partner of the person against whom the violence is committed;
- a person with whom the person against whom the violence is committed shares a child in common;
- a person who is cohabiting with, or has cohabited with, the person against whom the violence is committed as a spouse or intimate partner;
- a person similarly situated to a spouse of the person against whom the violence is committed under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or
- 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 in which the crime of violence occurred.
Under the Clery Act and the Campus SaVE Act, the University will record and report all relevant incidents of domestic violence.
Dating Violence is defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the person against whom the violent act is/acts are committed. The existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence. Under the Clery Act and the Campus SaVE Act, the University will record and report all relevant incidents of dating violence.
Stalking occurs when a person engages in a course of conduct or repeatedly commits acts toward another person, including following the person without proper authority, under circumstances that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress.
- Course of conduct means two or more acts, including but not limited to, acts in which the stalker directly, indirectly or through third parties, by any action, method, device or means, follows, monitors, observes, surveils, threatens or communicates to or about a person, or interferes with a person’s property.
- Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
Retaliation: The University prohibits retaliation against any individual who makes a good faith report of a potential violation of this policy, who supports another person’s report, or who acts as a witness in any investigation into an allegation/complaint. Retaliation includes, but is not limited to: any form of intimidation, reprisal, or harassment. The University will take appropriate actions against those who retaliate, up to and including termination if they are an employee, or dismissal if they are a student, or sanctions if they are a guest or visitor.
Other Misconduct Offenses (will fall under Title IX when sex or gender-based)
- Threatening or causing physical harm, extreme verbal abuse or other conduct which threatens or endangers the health or safety of any person
- Discrimination, defined as actions that deprive other members of the University community of educational or employment access, benefits or opportunities on the basis of sex or gender.
- Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another.
- Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the University community when related to the admission, initiation, pledging, joining or any other group-affiliation activity (as defined further in Hazing Policy)
- Bullying, defined as:
- repeated and/or severe
- aggressive behavior
- likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally
- that is not speech or conduct otherwise protected by the 1st Amendment.
- Violence between those in an intimate relationship to each other.
- Any other University policies may fall within this section when a violation is motivated by the actual or perceived membership of the reporting party’s sex or gender.
Additional Related Terms
Consent: In order for individuals to engage in sexual activity of any type with each other, there must be clear, knowing and voluntary consent prior to and during sexual activity. Consent is sexual permission. Consent is active, not passive. Consent can be given by word or action, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions) of sexual activity. Consent to any one form of sexual activity cannot be automatically taken as consent to any other form of sexual activity. Previous relationships or prior consent cannot imply consent to future sexual acts. Consent can be withdrawn once given as long as that withdrawal is clearly communicated.
Force: Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcomes free will or resistance or produce consent (“Have sex with me or I’ll hit you. Okay, don’t hit me, I’ll do what you want.”). Coercion is unreasonable pressure for sexual activity. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. There is no requirement for a party to resist the sexual advance or request but resistance is a clear demonstration of non-consent. The presence of force is not demonstrated by the absence of resistance. Sexual activity that is forced is by definition non-consensual but non-consensual sexual activity is not by definition forced.
Incapacitation: Incapacitation is a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g. to understand the “who, what, when, where, why, or how” of their sexual interactions). Incapacitation can occur mentally, physically, from developmental disability, by alcohol or other drug use, or blackout. The question of what the responding party should have known is objectively based on what a reasonable person in the place of the responding party, sober and exercising good judgement, would have known about the condition of the reporting party. Sexual activity with someone you know to be or should know to be incapacitated is a violation of this policy. This policy also covers a person whose incapacity results from mental disability, sleep, unconsciousness, involuntary physical restraint or from the taking of rape drugs. Possession, use and/or distribution of any of these substances including Rohypnol, Ketamine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another person is a violation of this policy. More information on these drugs can be found at http://www.911rape.org/.
Terms Related to Process
Reporting Party: The person alleging a violation of policy is referred to as the reporting party
Responding Party: The person who is alleged to have violated University policy is referred to as the responding party.
Responsible Employees: The U.S. Department of Education’s Office for Civil Rights defines Responsible Employees as employees who have the authority to take action to redress sexual violence, who have been given the duty of reporting incidents of sexual violence or any other misconduct by members of the University community (students, staff, faculty, guests, visitors) to the Title IX Coordinator or other appropriate University designee, or whom a reporting party could reasonably believe have this authority or duty. Responsible Employees who receive information or a report about any act that potentially constitutes sexual misconduct must further report that information to the Title IX Coordinator.
The following employees of the University are Responsible Employees: faculty, staff (except staff in the Lang Health and Counseling Center), Resident Advisors and Graduate Assistants. In addition, Responsible Employees are expected to make every effort to explain their duty to report to anyone disclosing, or about to disclose, information to them.
Investigation Team: Individuals assigned by the Title IX Coordinator to conduct investigations following reports of alleged misconduct. The investigation team typically is comprised of members of the Title IX team, but the Title IX Coordinator may decide to use one or more appropriately trained University employees who are not members of the Title IX team or external investigators in addition to, or instead of members of the Title IX team when s/he considers it appropriate to do so. Upon receipt of a report, the Title IX Coordinator will assign the investigator(s) to begin the investigation.
Interim Measures: Services, accommodations, or other assistance the University puts in place for reporting parties after receiving a report of alleged sexual misconduct but before any final outcomes (investigatory, disciplinary, etc.) have been determined. Interim measures are designed to eliminate the hostile environment. Interim measures may be imposed regardless of whether formal resolution is sought by the reporting party or the University. Interim measures may include: the ability to change housing assignments; change work schedules; alter academic schedules; withdraw from/retake a class without penalty; and issue no contact orders. Additional information pertaining to interim measures can be found further in this policy—in the section Investigation – Interim Measures.
Preponderance of Evidence: The standard used to determine if a policy violation occurred.The University uses a “preponderance of evidence” standard, which means that the information/evidence demonstrates that it is more likely than not the alleged conduct or policy violation has occurred.
Advisor: An individual who provides guidance and assistance to either the reporting party or the responding party throughout the reporting, investigation, and any resulting disciplinary process. The advisor may be a friend, mentor, family member, attorney, or any other supporter a party chooses to advise them who is both eligible and available. Individuals who are witnesses may not serve as advisors. Further information regarding the role of advisors can be found in section Participation of Advisors in the Resolution Process.
There are inherent risks in any romantic or sexual relationship between individuals in unequal positions (such as teacher and student, supervisor and employee). These relationships may be less consensual than perceived by the individual whose position confers power. The relationship also may be viewed in different ways by each of the parties, particularly in retrospect.
Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome. Even when both parties have consented at the outset to a romantic or sexual involvement, this past consent may not remove grounds for a later charge of a violation of applicable sections of the faculty/staff handbooks. The University does not wish to interfere with private choices regarding personal relationships when these relationships do not interfere with the goals and policies of the University. For the personal protection of members of this University community, however, relationships in which power differentials are inherent (faculty-student, staff-student, administrator-student, supervisor-supervisee) are generally discouraged.
Consensual romantic or sexual relationships in which one party maintains a direct supervisory or evaluative role over the other party are unethical. Therefore, persons with direct supervisory or evaluative responsibilities who are involved in such relationships must bring those relationships to the timely attention of their supervisor and will likely result in the necessity to remove the employee from the supervisory or evaluative responsibilities or shift an individual out of being supervised or evaluated by someone with whom they have established a consensual relationship. This includes Resident Advisors (RAs) and students over whom they have direct responsibility. While no relationships are prohibited by this Policy, failure to self-report such relationships to a supervisor as required can result in disciplinary action for an employee.