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Sexual misconduct defined and consent

Sexual Misconduct Defined

The University defines sexual misconduct broadly, to include any form of the following conduct:

1. Non-Consensual Sexual Contact: Physical contact of a sexual nature by one person against the will of or without the consent of another.

2. Relationship Violence: One or more than one of the following behaviors directed at a current or former partner: (1) physical behaviors such as slapping, pulling hair, punching; (2) verbal abuse; and (3) threats of physical, sexual or other types abuse.

a.    Dating Violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.

b.     Domestic Violence: A felony or misdemeanor crime of violence committed –

(i)       By a current or former spouse or intimate partner of the victim;

(ii)     By a person with whom the victim shares a child in common;

(iii)    By a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner;

(iv)   By a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or

(v)     By another 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.

3. Sexual Battery: Intentional touching another person for the purpose of arousing or satisfying one’s own sexual desires or the sexual desires of another person without the consent of or against the will of the person being touched.

4. Rape: Knowing or intentional sexual intercourse or other sexual conduct (as defined below) with another person against the will of or without the consent of that person. Acquaintance rape, commonly referred to as “date rape,” may occur in the context of a single date, a hook-up, an on-going relationship, or any other interaction between two people when one person forces another to have sex, or takes advantage of him/her while she/he is incapacitated. Other sexual conduct means:

(a) acts involving a sex organ of one person and the mouth or anus of another person; or

(b) the penetration of the sex organ or anus of a person by an object.

5. Sexual Exploitation: Nonconsensual use of sexual contact by one person with another for his/her own advantage or benefit, or to benefit or advantage anyone other than the person being exploited, and the behavior does not otherwise constitute rape, battery or deviant sexual conduct, or other policy violations. Examples of sexual exploitation include prostituting another student, nonconsensual video or audio taping of sexual activity (such as one person allowing others to secretly watch consensual sex), engaging in voyeurism and knowingly transmitting an STD or HIV.

6. Stalking: A pattern of repeated and unwanted attention, harassment, contact or any other course of conduct directed at a specific person that would cause a reasonable person to feel fear for the person’s safety or the safety of others, or suffer substantial emotional distress. Stalking can include:

a. Repeated, unwanted, intrusive and frightening communications from the perpetrator by phone, mail and/or email.

b. Repeatedly leaving or sending the victim unwanted items, presents or flowers.

c. Following or lying in wait for the victim at places such as home, school, work or recreation place.

d. Making direct or indirect threats to harm the victim, the victim's family, friends or pets.

e. Damaging or threatening to damage the victim's property.

f. Harassing victim through the internet.

g. Posting information or spreading rumors about the victim on the internet, in a public place or by word of mouth.

h.Obtaining personal information about the victim by accessing public records, using internet search services, hiring private investigators, going through the victim's garbage, following the victim, contacting victim's friends, family work or neighbors, etc.

7. Sexual harassment: Unsolicited and unwelcome comments or conduct of a sexual nature as defined under the University’s Harassment Policy.


Statement on Consent

The majority of the sexual misconduct complaints received by the University revolve around the question of whether the complainant consented to the conduct at issue. In an effort to provide students guidance for their conduct, the following guidelines are used to evaluate this issue.

Consent is clear, knowing and voluntary.  Consent is active, not passive.  Silence, in and of itself, cannot be interpreted as consent.  Consent can be given by words or actions, 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 does not automatically imply consent to any other forms of sexual activity.  Previous relationships or prior consent do not imply consent to future sexual acts.

When it is unclear whether someone consents to activity, it is the responsibility of the person who initiates the activity to ensure that his/her partner clearly communicates effective consent. To continue to engage in sexual activity without effective consent from his/her partner is a violation of this policy.

Effective consent must be mutually understandable. That is, a reasonable person would have to consider the words or actions of the parties to indicate that there was an agreement to engage in the given activity with each other at the same time.

Consent cannot be obtained through 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 overcome resistance or produce consent.

Coercion is unreasonable pressure for sexual activity.  Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another.  When someone makes it clear that they do not want to have 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.  Note: There is no requirement that a party actively resist the sexual advance or request, but resistance is a clear demonstration of non-consent.  Sexual activity that is forced is by definition non-consensual, but lack of physical force or coercion does not indicate consent.

Consent cannot be given by minors to adults, by mentally disabled persons, or by otherwise physically or mentally incapacitated persons. People who are unconscious, asleep, incapacitated as a result of alcohol or drugs (whether consumed voluntarily or involuntarily) or who are physically or mentally incapacitated cannot give effective consent.

Incapacitation is an important and specific concept. A person who is incapacitated is incapable of recognizing what is going on around him/her. An incapacitated person is not able to recognize the sexual nature or extent of the situation she/he is in. To engage in sexual activity with a person one knows or should know is incapacitated is a violation of this policy.