This policy addresses a broad spectrum of behavior, all of which falls under the broad definition of sexual harassment.
Sexual Harassment: Unwanted and unsolicited sexual advances, requests for sexual favors, and other deliberate or repeated communication of a sexual nature, whether spoken, written, physical or pictorial, shall constitute sexual harassment when:
- Submission to such conduct is made either implicitly or explicitly a term or condition of an individual's employment, academic status or participation in University‐sponsored activities;
- Rejection of such conduct is used as the basis, implicitly or explicitly, for imposing adverse terms and conditions of employment, academic status or participation in University‐sponsored events; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working or learning environment
A single isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. The more severe the conduct, the less need there is to show a pattern of incidents for a hostile environment, particularly if the harassment is physical.
Sexual harassment also includes gender‐based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex‐stereotyping, even if those acts do not involve conduct of a sexual nature.
Examples include, but are not limited, to:
- Making demeaning sexist statements, humor or jokes about sex or gender‐specific traits, crude sexual remarks, offensive stories, remarks of a sexual nature about a person’s clothing or body, remarks about sexual activity or experiences, sexual innuendo or other suggestive comments, offensive notes, sexual propositions, or insults and threats that an individual communicates are unwanted and unwelcome.
- Displaying or circulating of written materials or pictures degrading to an individual(s) or gender group.
- Engaging in inappropriate or unwelcome physical contact or suggestive body language, such as touching, patting, pinching, hugging, kissing or brushing against an individual’s body.
- Giving undue and unwelcome attention, such as repeated inappropriate flirting, compliments about clothing or physical attributes, staring or making sexually oriented gestures.
- Making a student’s work or an employee’s job more difficult because of that person’s sex, gender identity, or sexual orientation.
- Using a position of power and authority to: 1) threaten or punish, either directly or by implication, for refusing to tolerate harassment, refusing to submit to sexual activity, or for reporting harassment; 2) promise rewards in return for sexual favors.
- Engaging in demeaning verbal and other expressive behavior of a sexual or gendered nature in instructional settings.
Sexual Assault: Having or attempting to have sexual intercourse or sexual contact with another individual without consent. This includes sexual intercourse or sexual contact achieved by the use or threat of force or coercion, where an individual does not consent to the sexual act, or where an individual is incapacitated. Sexual assault may involve individuals who are known to one another or have an intimate and/or sexual relationship, or may involve individuals not known to one another. Sexual assault includes the following acts:
- Related to Non‐consensual Sexual Intercourse: Having or attempting to have sexual intercourse with another individual without consent. Sexual intercourse includes vaginal or anal penetration, however slight, with a body part or object, or oral copulation by mouth‐to‐genital contact.
- Related to Non‐consensual Sexual Contact: Having or attempting to have sexual contact with another individual without consent. Sexual contact includes kissing, touching the intimate parts of another, causing the other to touch one's intimate parts, or disrobing of another without permission. Intimate parts may include the breasts, genitals, buttocks, mouth or any other part of the body that is touched in a sexual manner.
Sexual‐based Communication: Speaking to, or directing any kind of communication, words or images of a sexual nature at another person that is not welcomed by the receiving party. If the communication is unwelcome; that is, if it occurs without the other person’s consent or participation, it may create a hostile learning and living environment. Sexual‐based communication can include interactions in person, by phone, electronic messages and photos, written words or images such as graffiti and social media postings.
Sexual Exploitation: When an individual takes non‐consensual or abusive sexual advantage of another, for his/her own benefit; or to benefit anyone other than the one being exploited; and that behavior does not otherwise constitute one of the other sexual misconduct offenses. Examples of sexual exploitation include, but are not limited to:
- Prostituting another person (i.e. personally gaining money, privilege, or power from the sexual activities of another person)
- Non‐consensual video, photography, audiotaping, or any other form of recording, of sexual activity;
- Allowing others to observe a personal act of consensual sex without knowledge or consent of the partner;
- Engaging in voyeurism (being a “peeping tom”)
- Knowingly or recklessly transmitting an STD or HIV to another person;
Stalking: A course of conduct involving more than one instance of unwanted attention, harassment, physical or verbal contact, or any other course of conduct directed at an individual that could be reasonably regarded as likely to alarm or place that individual in fear of physical, emotional or psychological harm or injury. This includes cyber‐stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, GPS or other similar devices or forms of contact are used to pursue, harass or make unwelcome contact with another person. Stalking and cyber‐stalking may involve individuals who are known to one another or have an intimate or sexual relationship, or may involve individuals not known to one another.
Intimate Partner Violence: A situation in which one partner is physically, emotionally or sexually abused by the other partner. Intimate partner violence can occur between individuals who are dating, married, hooking up, or who reside together. Intimate partner violence can occur between individuals of the same or opposite sex. This is often commonly referred to as domestic or dating violence.
Retaliation: Acts or attempts to retaliate or seek retribution against the reporting party, responding party, or any individual or group of individuals involved in the investigation and/or resolution of an allegation of sexual misconduct. Retaliation can be committed by any individual or group of individuals, not just a responding party or reporting party. Retaliation may include continued abuse or violence, other forms of harassment, and slander and libel.
Definitions of Consent, Coercion, and Incapacitation
Consent: Consent to engage in sexual activity must be informed, knowing and voluntary. Consent exists when all parties exchange mutually understandable affirmative words or behavior indicating their agreement to freely participate in mutual sexual activity.
The following further clarifies the definition of consent:
- Each participant in a sexual encounter is expected to obtain and give consent to each act of sexual activity. Consent to one form of sexual activity does not constitute consent to engage in all forms of sexual activity.
- If at any time it is reasonably apparent that either party is hesitant, confused or unsure, both parties should stop and obtain mutual verbal consent before continuing such activity.
- Consent may be withdrawn by either party at any time. Withdrawal of consent must also be outwardly demonstrated by words or actions that clearly indicate a desire to end sexual activity. Once withdrawal of consent has been expressed, sexual activity must cease.
- Consent consists of an outward demonstration indicating that an individual has freely chosen to engage in sexual activity. Relying on non‐verbal communication can lead to misunderstandings. Consent may not be inferred from silence, passivity, lack of resistance or lack of an active response alone. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent.
- Individuals with a previous or current intimate relationship do not automatically give either initial or continued consent to sexual activity. Even in the context of a relationship, there must be mutually understandable communication that clearly indicates a willingness to engage in sexual activity.
- An individual who is physically incapacitated from alcohol or other drug consumption (voluntarily or involuntarily), or is unconscious, unaware or otherwise physically helpless is considered unable to give consent. For example, one who is asleep or passed out cannot give consent.
Coercion: Consent cannot be given if it results from the use or threat of physical force, intimidation, or any other factor that would eliminate an individual’s ability to exercise his/her own free will to choose whether or not to have sexual contact. Coercion includes the use of pressure and/or oppressive behavior, including express or implied threats of harm, severe and/or pervasive emotional intimidation, which places an individual in fear of immediate or future harm or physical injury or causes a person to engage in unwelcome sexual activity. A person’s words or conduct amount to coercion if they wrongfully impair the other’s freedom of will and ability to choose whether or not to engage in sexual activity.
Coercion also includes administering a drug, intoxicant or similar substance that impairs the person’s ability to give consent.
Incapacitation: An individual who is incapacitated is not able to make rational, reasonable judgments and therefore is incapable of giving consent. Incapacitation is the inability, temporarily or permanently, to give consent, because the individual is mentally and/or physically helpless due to drug or alcohol consumption, either voluntarily or involuntarily, or the individual is unconscious, asleep or otherwise unaware that the sexual activity is occurring. In addition, an individual is incapacitated if he/she demonstrates that they are unaware of where they are, how they got there, or why or how they became engaged in a sexual interaction. Where alcohol is involved, incapacitation is a state beyond drunkenness or intoxication. Some indicators of incapacitation may include, but are not limited to, lack of control over physical movements, being unaware of circumstances or surroundings, or being unable to communicate for any reason.
An individual in a blackout state may or may not meet the definition of incapacitation. Such an individual may appear to act normally but may not have later recall of the events in question. The extent to which a person in this state affirmatively gives words or actions indicating a willingness to engage in sexual activity and the other person is unaware – or reasonably could not have known – of the alcohol consumption or blackout, must be evaluated in determining whether consent could be considered as having been given.