Conduct under this Policy is prohibited regardless of the sex, sexual orientation and/or gender identity/expression of the Complainant or Respondent. Prohibited Conduct includes the following specifically defined forms of behavior: Sexual Assault, Sexual Exploitation, Intimate Partner Violence, Stalking, Sexual or Gender-Based Harassment, Retaliation, and Complicity.
“Complainant” means the individual who presents as the survivor of any Prohibited Conduct under this Policy, regardless of whether that person makes a report or seeks action under this Policy. “Respondent” means the student, employee or third party who has been accused of violating this Policy.
A. Sexual Assault: Sexual Assault is non-consensual bodily contact of a sexual nature. It includes any sexual contact when the Complainant does not or is unable to consent through the use of force, fear, intimidation, threats, physical helplessness, ruse, coercion, or incapacitation; intentional and non-consensual touching of or coercing, forcing or attempting to coerce or force another to touch a person’s genital area, groin, inner thigh, buttocks or breast, clothed or unclothed; and non-consensual sexual intercourse, defined as anal, oral or vaginal penetration, however slight, with any body part or object.
“Consent” is knowing, voluntary and clear permission by word or action, to engage in mutually agreed upon sexual activity. Silence, in and of itself, does not constitute consent. Past consent to sexual activities, or a current or previous dating relationship, does not imply ongoing or future consent. Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred.
“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 overcome resistance or produce consent.
“Coercion” is the improper use of pressure to compel another individual to initiate or continue sexual activity against that individual’s will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. The University will evaluate the following in determining whether coercion was used: (a) the frequency of the application of pressure, (b) the intensity of the pressure, (c) the degree of isolation of the person being pressured, and (d) the duration of the pressure.
“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 and how” of their sexual interaction). Sexual activity with someone who you should know to be – or based on the circumstances should reasonably have known to be – mentally or physically incapacitated (by alcohol or other drug use or unconsciousness), constitutes a violation of university Policy. University Policy covers a person whose incapacity results from mental disability, sleep, involuntary physical restraints, or from taking drugs or other substances. Being under the influence by alcohol or other drug is no defense to any violation of this Policy.
B. Sexual Exploitation: Sexual exploitation occurs when a person takes non-consensual or abusive sexual advantage of another for anyone’s advantage or benefit other than the person being exploited, and that behavior does not meet the definition of sexual assault. Sexual exploitation includes prostituting another person, non-consensual visual or audio recording of sexual activity, non-consensual distribution of photos or other images of an individuals’ sexual activity or intimate body parts, nonconsensual voyeurism, knowingly transmitting HIV or an STD to another, or exposing one’s genitals to another in non-consensual circumstances.
C. Intimate Partner Violence: Intimate Partner 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.5 Intimate Partner 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, Intimate Partner Violence, or is part of a course of conduct under the Stalking definition.
D. Stalking: Stalking occurs when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear bodily injury or to experience substantial emotional distress.
“Course of Conduct” means two or more acts, including but not limited to acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about another person, or interferes with another person’s property. Substantial emotional distress means significant mental suffering or anguish.
Stalking includes “cyber-stalking,” a particular form of stalking in which a person uses electronic media, such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact.
E. Sexual or Gender-Based Harassment: Sexual or gender-based harassment is defined as gender-based verbal or physical conduct that unreasonably interferes with or deprives someone of educational access, benefits, or opportunities. It is unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature including: verbal, non-verbal, or physical. Sexual harassment can involve persons of the same or different sexes. Sexual harassment may also include sex-based harassment directed toward stereotypical notions of what is female/feminine v. male/masculine or a failure to conform to those gender stereotypes. Sexual harassment constitutes Prohibited Conduct when either of the following conditions is present:
i. Hostile environment sexual harassment exists when there is any situation in which there is harassing conduct that is sufficiently severe, pervasive or persistent, and patently offensive, such that it alters the conditions of education or employment, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint. In determining whether conduct is severe, persistent or pervasive, and thus creates a hostile environment, the totality of known circumstances will be considered, including but not limited to: (a) the frequency, nature and severity of the conduct; (b) whether the conduct was physically threatening; (c) the effect of the conduct on the Complainant’s mental or emotional state and the perspective of a “reasonable person” in the same situation as the person subjected to the conduct; (d) whether the conduct was directed at more than one person; (e) whether the conduct arose in the context of other discriminatory conduct; (f) whether the conduct unreasonably interfered with the Complainant’s educational or work performance or university programs or activities; and (g) where the conduct implicates concerns related to academic freedom or protected speech.
ii. Quid pro quo sexual harassment exists when there are unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature and either adverse educational or employment actions are taken or credibly threatened if these behaviors are rejected or advantageous educational or employment actions are taken or credibly threatened if these behaviors are accepted.
F. Retaliation: Any form of retaliation, including intimidation, threats, harassment, and other adverse action taken or threatened against any Complainant or person reporting or filing a complaint alleging any form of Prohibited Conduct or any person cooperating in the investigation of allegations of Prohibited Conduct to include testifying, assisting or participating in any manner in an investigation pursuant to this Policy. Action is generally deemed adverse if it would deter a reasonable person in the same circumstances from opposing practices prohibited by this Policy. Retaliation may result in disciplinary or other action independent of the sanctions or interim measures imposed in response to the underlying allegations of Prohibited Conduct.
G. Complicity: is any act that knowingly aids, facilitates, promotes or encourages the commission of Prohibited Conduct by another person.