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Definitions & Examples

Sexual Misconduct

Sexual misconduct comprises a broad range of behaviors, including but not limited Sexual Assault, Stalking, Sexual Exploitation, Relationship Violence, Sexual or Gender-Based Harassment, Sexual or Gender-Based Discrimination.  Sexual misconduct that is not sexual in nature but is based on gender, gender identity, gender expression, sex- or gender-stereotyping, or sexual orientation also violates this policy. Such behavior is also prohibited by law. Both men and women may be perpetrators, as well as victims.

Sexual Assault

Sexual Assault includes any unwelcomed or nonconsensual contact of sexual nature with another person, including both of the following:

Penetration:  Any sexual intercourse, however slight, with any object by a person upon another person that is without consent and/or by force.

Acts without consent and/or by force refers to acts committed a) by physical force, violence, threat, or intimidation;  b) by ignoring an objection or without positive/affirmative consent; c) by causing another’s incapacitation through the use of alcohol or other drugs; and/or d) by taking advantage of another person’s incapacitation, helplessness, or their inability to consent.

This form of Sexual Assault includes vaginal or anal penetration by a penis, tongue, finger or object, or oral copulation (mouth to genital contact) no matter how slight the penetration or contact.

Sexual Contact:   Any other form of intentional sexual touching, however slight, with any object or body part (as described below) performed by a person upon another person that is without consent and/or by force.

Acts without consent and/or by force refers to acts committed a) by physical force, violence, threat, or intimidation;  b) by ignoring an objection or without positive/affirmative consent; c) by causing another’s incapacitation through the use of alcohol or other drugs; and/or d) by taking advantage of another person’s incapacitation, helplessness, or their inability to consent.

Sexual Contact includes:

  • Intentional touching of the breasts, buttocks, groin or genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; and
  • Making another touch the actor, another or themselves with or on any of these body parts.

Persons under the age of 18 are legally incapable of consenting to any form of sexual contact.

Stalking

Stalking is defined as engaging in an unwanted course of conduct of two or more acts directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others; or suffer substantial emotional distress. Examples of stalking behavior:

  • Unwanted, intrusive, and frightening communications from the perpetrator by phone, mail, email, text and/or social media.
  • Leaving or sending the person unwanted items, presents, or flowers.
  • Following or lying in wait for the person at places such as home, school, work, or recreation place.
  • Making direct or indirect threats to harm the person, the person’s children, relatives, friends, or pets.
  • Damaging or threatening to damage the person’s property.
  • Harassing the person through the internet.
  • Posting information or spreading rumors about the person on the internet, in a public place, or by word of mouth.
  • Any other acts in which the actor 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.

Sexual Exploitation

Sexual exploitation occurs when an actor takes non-consensual or abusive sexual advantage of another for the actor’s own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and such behavior does not constitute one of the other sexual misconduct offenses as defined in this policy.

Sexual Exploitation includes, but is not limited to, doing any of the following:

  • Causing the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give Affirmative Consent to sexual activity.
  • Allowing third parties to observe private sexual activity from a hidden location (e.g., closet) or through electronic means (e.g., Skype or livestreaming of images) without consent of all participants.
  • Engaging in voyeurism (e.g., watching private sexual activity without the consent of the participants or viewing another person’s intimate parts, including genitalia, groin, breasts or buttocks, in a place where that person would have a reasonable expectation of privacy).
  • Recording or photographing private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent of all participants.
  • Disseminating or posting images of private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent.
  • Prostituting another person.
  • Possession, production, distribution, sale or purchase of child pornography.

Relationship Violence

Relationship Violence includes any act of violence or threatened act of violence that occurs between individuals who are involved or have been involved in a sexual, dating, spousal, domestic, or other intimate relationship. Relationship Violence may include any form of Prohibited Conduct under this policy, including Sexual Assault, Stalking, and Physical Assault (as defined below).

Physical Assault is threatening or causing physical harm or engaging in other conduct that threatens or endangers the health or safety of any person. Physical Assault will be addressed under this policy if it involves Sexual or Gender-Based Harassment, Relationship Violence, or is part of a course of conduct under the Stalking definition.

Relationship Violence includes “dating violence” and “domestic violence.” The Violence Against Women Act (VAWA) defines:

  • Dating Violence to mean violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship would be determined based on consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
  • Domestic Violence to mean felony or misdemeanor crimes of violence committed by a current or former spouse 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, 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 act under the domestic or family violence laws of the jurisdiction.

Sexual or Gender/Based Harassment

Sexual Harassment is any unwelcomed sexual advance, unwelcomed request for sexual favors, or other unwelcomed conduct of a sexual nature, whether verbal, non-verbal, graphic, physical, or otherwise, when either condition outlined below, is present:

  1. Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any University programs and/or activities or is used as the basis for University decisions affecting the individual (often referred to as “quid pro quo” harassment); or
  2. Such conduct creates a hostile environment. A “hostile environment” exists when the conduct is sufficiently severe or pervasive that it unreasonably interferes with, limits, or deprives an individual from participating in or benefitting from the University’s education or employment programs and/or activities. Conduct must be deemed severe, or pervasive from both a subjective and an objective perspective. In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances, including, but not limited to:
  • The frequency, nature and severity of the conduct
  • Whether the conduct was physically threatening
  • The effect of the conduct on the Complainant’s mental or emotional state
  • Whether the conduct was directed at more than one person
  • Whether the conduct arose  in  the  context  of  other  discriminatory conduct
  • Whether the conduct unreasonably interfered with the Complainant’s educational or work performance and/or University programs or activities
  • Whether the conduct implicates concerns related to academic freedom or protected speech.

Gender-Based Harassment includes harassment based on gender, sexual orientation, gender identity, or gender expression, which may include acts of threats or intimidation, whether verbal or non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature, when either condition outlined above for sexual harassment is present.

A hostile environment can be created by pervasive conduct or by a single or isolated incident, if sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. A single incident of Sexual Assault, for example, may be sufficiently severe to constitute a hostile environment. In contrast, the perceived offensiveness of a single verbal or written expression, standing alone, may not be sufficient to constitute a hostile environment.

Discrimination

Discrimination as  used in this policy is any distinction, preference, advantage for, or detriment to an individual or class of individuals compared to others that is based on a legally protected characteristic of  sex, or gender, or a perception that an individual or class of individuals have such characteristics or associate with others who have, or are perceived to have, such characteristics,  that adversely affects a term or condition of an individual’s employment, education, living environment, or participation in a University activity, or is used as the basis for or a factor in decisions affecting that individual’s employment, education, living environment, or participation in a University activity. Examples of discrimination include, without limitation:

  • Denying a person admission or employment based upon sex or gender
  • Denying raises, benefits, or promotions on the basis of sex or gender
  • Subjecting a person to different academic standards, employment conditions, or conditions in the educational setting because of sex or gender

Affirmative Consent

Affirmative consent means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

A person who wants to engage in a specific sexual activity is responsible for obtaining Affirmative Consent for that activity. Lack of protest does not constitute Affirmative Consent. Lack of resistance does not constitute Affirmative Consent. Silence and/or passivity also do not constitute Affirmative Consent. Relying solely on non-verbal communication before or during sexual activity can lead to misunderstanding and may result in a violation of this Policy.  It is important not to make assumptions about whether a potential partner is consenting. In order to avoid confusion or ambiguity, participants are encouraged to talk with one another before engaging in sexual activity. If confusion or ambiguity arises during sexual activity, participants are encouraged to stop and clarify a mutual willingness to continue that activity.

Affirmative Consent to one form of sexual activity does not, by itself, constitute Affirmative Consent to another form of sexual activity. For example, one should not presume that Affirmative Consent to oral-genital contact constitutes Affirmative Consent to vaginal or anal penetration. Affirmative Consent to sexual activity on a prior occasion does not, by itself, constitute Affirmative Consent to future sexual activity.

Affirmative Consent may be withdrawn at any time through clear words or actions communicating a decision to cease the sexual activity. Once Affirmative Consent is withdrawn, the sexual activity must cease immediately.

Affirmative Consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated. Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity.

Affirmative Consent cannot be given by someone under the age of 18.

It shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.

The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

Physical Violence – Physical Violence means that a person is exerting control over another person through the use of physical force. Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking, and brandishing or using any weapon.

Threats – Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples include threats to physically harm a person or the person’s family members, to reveal private information to harm a person’s reputation, or to cause a person academic or economic harm.

Intimidation – Intimidation is an implied threat that menaces or causes reasonable fear in another person of harm to that person’s body, a member of the person’s family, or reputation. A person’s size, alone, does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g., blocking access to an exit).

Coercion- Coercion is the use of an unreasonable amount of pressure to gain sexual access. Coercion is more than an effort to persuade, entice, or attract another person to have sex. When a person makes clear a decision not to participate in a particular form of Sexual Contact or Sexual Intercourse, a decision to stop, or a decision not to go beyond a certain sexual interaction, continued pressure can be coercive. In evaluating whether coercion was used, the University will consider: (i) the frequency of the application of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the duration of the pressure.

Incapacitation- Incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily incapacitated merely as a result of drinking or using drugs. The impact of alcohol and other drugs varies from person to person.

A person who is incapacitated is unable, temporarily or permanently, to give Affirmative Consent because of mental or physical helplessness, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. A person may be incapacitated as a result of the consumption of alcohol, drugs, or medication, or due to a temporary or permanent physical or mental health condition.

In evaluating Affirmative Consent in cases of alleged incapacitation, the University asks two questions: (1) Did the Respondent know that the other party was incapacitated? If not, (2) Should a sober, reasonable person in the same situation as Respondent have known that the other party was incapacitated? A “YES” answer to either question is likely to establish the absence of Affirmative Consent was and a violation of this policy.

One is not expected to be a medical expert in assessing incapacitation. One must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?” “Do you know how you got here?” “Do you know what is happening?” “Do you know whom you are with?”  One should be cautious before engaging in Sexual Contact or Sexual Intercourse when either party has been drinking alcohol or using other drugs. The introduction of alcohol or other drugs may create ambiguity for either party as to whether Affirmative Consent has been sought or given. If one has doubt about either party’s level of intoxication, the safe thing to do is to forego all sexual activity.

In the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

  1. The complainant was asleep or unconscious.
  2. The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

The complainant was unable to communicate due to a mental or physical condition.

Being impaired by alcohol or other drugs is no defense to any sexual misconduct.

Retaliation – Retaliation means any adverse action taken against a person for making a good faith report of Prohibited Conduct or participating in any proceeding under this policy. Retaliation includes threatening, intimidating, harassing, coercing or any other conduct that would discourage a reasonable person from engaging in any process provided for and/or activity protected under this policy. Retaliation may be present even where there is a finding of “no responsibility” on the allegations of Prohibited Conduct. Retaliation does not include good faith actions lawfully pursued in response to a report of Prohibited Conduct.

Complicity – Complicity is any act taken with the purpose of aiding, facilitating, promoting or encouraging the commission of an act of Prohibited Conduct by another person.

Complainant – A Student, Employee or Third Party who presents as a person adversely affected by any Prohibited Conduct under this policy, regardless of whether that person makes a report or seeks action under this policy.

Respondent – A Student, Employee or Third Party who has been accused of violating this policy.

Reporter – A student, Employee or third Party who brings forth information about a possible violation of Prohibited Conduct under this policy, and where they are not the Complainant or Respondent.