Sexual Misconduct Policy Definitions
Complainant - any member of the University community who submits a complaint alleging that a student violated the Student Code of Conduct.
Effective Consent - words or actions that show a knowing and voluntary agreement to engage in mutually agreed-upon sexual activity or contact. In order to give effective consent, one must be of legal age. Effective consent cannot be gained by force, by ignoring or acting in spite of the objections of another, or by taking advantage of the incapacitation of another, where the accused student knows or reasonably should have known of such incapacitation. Silence, in and of itself, cannot be interpreted as effective consent.
Force - any physical force, violence, threats, intimidation or coercion.
Incapacitation - the physical and/or mental inability to make informed, rational judgments. States of incapacitation include, without limitation, sleep, blackouts, and flashbacks. Where alcohol or other drugs are involved, one does not have to be intoxicated or drunk to be considered incapacitated. Rather, incapacitation is determined by how the alcohol consumed impacts a person's decision-making capacity, awareness of consequences, and the ability to make informed judgments. The question is whether the accused knew, or a sober, reasonable person in the position of the accused student should have known, that the complainant was incapacitated. Because incapacitation may be difficult to discern, students are strongly encouraged to err on the side of caution; i.e., when in doubt, assume that another person is incapacitated and therefore unable to give effective consent. Being intoxicated or drunk is never a defense to a complaint of sexual misconduct under this policy
Non-Consensual Sexual Contact - sexual contact that occurs without effective consent. An example of a policy violation involving non-consensual sexual contact would be the touching of an unwilling or non-consensual person's intimate parts (such as genitalia, groin, breast, buttocks, mouth, and/or clothing covering them) touching an unwilling person with one's own intimate parts; or forcing an unwilling person to touch another's intimate parts.
Non-Consensual Sexual Intercourse - sexual intercourse that occurs without effective consent. An example of a policy violation involving non-consensual sexual intercourse would be the unwilling or non-consensual penetration (oral, anal or vaginal) with an object or body part. This includes, but is not limited to, penetration of a bodily opening without effective consent through the use of coercion or by use of force, violence, threat, or intimidation against the will of the other person.
Preponderance of the Evidence - characterizes the burden of proof standard used in adjudicating all University Student Code of Conduct and Sexual Misconduct Policy cases. The preponderance of evidence means a greater weight of evidence/information, or "more likely than not".
Respondent - any student accused of violating the Student Code of Conduct.
Sexual Contact - the deliberate touching of a person's private parts (including penis, vagina, anus, vulva, breasts or buttocks, or clothing covering any of those areas) or using force to cause a person to touch his or her own or another person's private parts.
Sexual Exploitation - taking sexual advantage of another person without effective consent, and includes, without limitation, causing or attempting to cause the incapacitation of another person in order to gain a sexual advantage over the other person; causing the prostitution of another person; recording, photographing, or transmitting identifiable images of private sexual activity and/or the intimate parts (including penis, vagina, anus, vulva, groin, breasts or buttocks) of another person; allowing third parties to observe private sexual acts; engaging in voyeurism; and/or knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection, including HIV.
Sexual Harassment - the unwelcome, gender-based verbal or physical conduct that is sufficiently severe, pervasive, and objectively offensive that unreasonably interferes with or deprives someone of educational access, benefits or opportunities. Three types of sexual harassment include 1) hostile environment, 2) quid pro quo sexual harassment, and 3) retaliatory harassment.
Hostile Environment includes any situation in which there is harassing conduct that is sufficiently severe, pervasive/persistent and patently/objectively offensive that it alters the conditions of education or employment, from both a subjective (the complainant's) and an objective (reasonable person's) viewpoint. The determination of whether an environment is "hostile" must be based on all these circumstances. These circumstances could include:
- the frequency of the conduct;
- the nature and severity of the conduct;
- whether the conduct was physically threatening;
- whether the conduct was humiliating;
- 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;
- whether the statement is a mere utterance of an epithet which engenders offense in an employee or student, or offends by mere discourtesy or rudeness; or
- whether the speech or conduct deserves the protections of academic freedom.
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
- submission to or rejection of such conduct results in adverse educational or employment action.
Retaliatory Harassment - any adverse employment or educational action taken against a person because of the person's participation in a complaint or investigation of discrimination or sexual misconduct.
Sexual Intercourse - penetration (anal, oral or vaginal) by a penis, tongue, finger, or any other object.
Sexual Misconduct - a broad term encompassing any non-consensual physical conduct of a sexual nature that is committed either by force or intimidation or through the use of the victim's mental or physical incapacity, including from the consumption of drugs or alcohol. Sexual misconduct may vary in its severity and consists of a range of behavior or attempted behavior including, but not limited to: non-consensual sexual contact, non-consensual sexual intercourse, sexual exploitation, sexual harassment, and stalking. Sexual misconduct can occur between strangers or acquaintances, including people involved in an intimate or sexual relationship. Sexual misconduct can be committed by men or by women and it can occur between people of the same or different sex.
Sexual Misconduct Board - a standing group of faculty, staff and/or administrators that hears and receives complaints of sexual misconduct.
Sexual Misconduct Violations - violations that vary in its severity and consists of a range of behavior or attempted behavior that includes, but is not limited to:
- non-consensual sexual contact,
- non-consensual sexual intercourse,
- sexual exploitation,
- sexual harassment, and
Stalking - a course of conduct directed at a specific person that would cause a reasonable person to feel fear or threatens his/her physical safety and/or mental health. "Course of conduct" is defined as "a pattern of actions composed of more than one act over a period of time, however short, indicating a continuity of conduct". Such behaviors and activities may include, but are not limited to, the following:
- Non-consensual communication, including face-to-face communication, telephone/VP calls, voice/text messages, e-mails, written letters, gifts, or any other communications that are undesired or place another person in fear;
- Use of on-line, electronic, or digital technologies including:
- Posting of pictures or information in chat rooms or on websites;
- Sending unwanted/unsolicited or an excessive number of email or talk requests;
- Posting private or public messages on Internet sites, social network sites, and/or school bulletin boards;
- Installing spyware on a victim's computer; and/or
- Using Global Positioning Systems (GPS) to monitor a victim;
- Pursuing, following, waiting, or showing up uninvited at or near a residence, workplace, classroom, or other places frequented by the victim;
- Surveillance or other types of observation, including staring or "peeping";
- Non-consensual touching;
- Direct verbal or physical threats;
- Gathering information about an individual from family, friends, and/or co-workers;
- Threats to harm self or others; and/or
- Defamation - lying to others about the victim.