Prohibited Conduct

Relationship Violence and Sexual Misconduct

“Relationship violence” and “sexual misconduct” are broad terms that encompass sexual harassment, sexual violence, domestic violence, dating violence, and stalking. Definitions for each of these terms are provided below.

Sexual Harassment

Sexual Harassment refers to conduct on the basis of sex that satisfies one or more of the following:

• (1) An employee conditioning the provision of aid, benefit, or service in exchange for an individual’s participation in unwelcome sexual conduct
• (2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an educational program or activity; or
• (3) Sexual assault, dating violence, domestic violence or stalking as defined below.

Dating Violence

The term “dating violence” means violence committed by a person –

1. who is or has been in a social relationship of a romantic or intimate nature with the victim; and
2. where the existence of such a relationship shall be determined based on the following factors:
   1. The length of the relationship
   2. The type of relationship
   3. The frequency of interaction between persons involved in the relationship.

Domestic Violence

The term “domestic violence” includes felony or misdemeanor crimes of violence committed by a current or former partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by 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.

Stalking

The term “stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to –

1. fear for their safety or the safety of others; or
2. suffer substantial emotional distress.

Sexual Assault

Refers to an offense that is classified as either forcible or non-forcible sex offenses under the uniform reporting system of the FBI. Expanded definitions can be found below.

Sex Offenses: Forcible

Any sexual act directed against another person, forcibly or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent.

Forcible Rape is the carnal knowledge of a person, forcibly and/or against that person’s will; or where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity (or because of his/her youth).

Forcible Sodomy is oral or anal sexual intercourse with another person, forcibly or against that person’s will or where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.

Sexual Assault with an Object is the use of an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly or against that person’s will; or where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.

Forcible Fondling is the touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against the person’s will or where the victim is incapable of giving consent because of his/her youth or his/her temporary or permanent mental incapacity.

Sex Offenses: Non-forcible

Unlawful, non-forcible sexual intercourse

Incest is non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

Statutory Rape is non-forcible sexual intercourse with a person who is under the statutory age of consent.

Retaliation

Persons who report sexual misconduct or relationship violence, file a complaint or participate in the University’s investigation and handling of such reports or complaints, shall not be subject to retaliation (including retaliatory harassment) for reporting or participating, even if the University finds that the policy was not violated using the preponderance of the evidence standard.

Retaliation is defined as an adverse action or adverse treatment against an individual involved in an investigation by an individual who knew of the individual’s participation in the investigation.

No one may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX because an individual has made a report or compliant, testified, assisted, participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part.

If a complainant or witness believes that she or he is being subjected to retaliation (including retaliatory harassment), she or he should promptly contact the Title IX Coordinator. The University will take strong responsive action if retaliation occurs.

Individuals who engage in retaliation in violation of this policy are subject to the full range of sanctions that can be imposed against them under applicable policies, including termination of employment or administrative withdrawal from the University.

Consent

Consent means the voluntary, willful, unambiguous and freely given agreement to engage in a specific sexual activity during a sexual encounter. Consent cannot be given by someone who is:

• Under 18 years of age;
• Sleeping or unconscious;
• Unconscious, unaware, or otherwise mentally or physically incapacitated due to the use of drugs or alcohol (“incapacitated”);
• Unable to understand the nature of the sexual activity due to a mental disability or condition (“mentally incapable”); or
• Under duress, threat, deception, coercion, misuse of professional authority/status, or force.

Consent must be clear and communicated by mutually understandable words or actions. Silence, passivity, or the absence of physical or verbal resistance, (for example, the absence of a verbal “no” or “stop”) does not constitute consent, and relying solely on non-verbal communications may result in a violation of this policy. A person’s manner of dress does not constitute consent. It is important not to make assumptions when determining consent. If confusion or ambiguity arises during a sexual interaction, it is essential that each participant stops and verbally clarifies the other’s willingness to continue. Prior consent does not imply current consent or future consent; even in the context of a prior or current relationship, consent must be sought and freely given for each instance of sexual contact.

Consent to any one form of sexual activity does not constitute consent to other forms of sexual activity. Consent can be withdrawn at any time during a sexual encounter. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another.

Incapacitation

Incapacitation is a state where an individual cannot consent to make an informed and rational decision to engage in sexual activity because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the “who, what, where, when, why or how” of the sexual interaction) and/or is physically helpless. An individual is also considered incapacitated, and therefore unable to give consent, when asleep, unconscious, or otherwise unaware that sexual activity is occurring.

Incapacitation may result from the use of alcohol and/or other drugs. Consumption of alcohol or other drugs, inebriation or intoxication are insufficient to establish incapacitation. The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs impacts an individual’s:

• Decision making ability;
• Awareness of consequences;
• Ability to make informed judgments; or
• Capacity to appreciate the nature and circumstances of the act.

Evaluating incapacitation also requires an assessment of whether a respondent knew or should have known that the complainant was incapacitated when viewed from the position of a sober, reasonable person.

In general, sexual contact while under the influence of alcohol or other drugs poses a risk to all parties. Alcohol and drugs impair a person’s decision-making capacity, awareness of the consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. If there is any doubt as to the level or extent of the other person’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.

Signs of incapacitation may include:

Being intoxicated or impaired by drugs or alcohol is never an excuse for misconduct and does not diminish one’s responsibility to obtain consent.