Complainants and Respondents

The “Complainant” means an individual who is alleged to be the victim of conduct that could constitute Prohibited Conduct, regardless of whether that person makes a report or seeks action under this Policy.

The “Respondent” means an individual who has been reported to be the perpetrator of conduct that could constitute Prohibited Conduct.

Sexual Harassment

“Sexual Harassment” is conduct on the basis of sex that satisfies one or more of the following:

• An employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct;
• Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity; or
• Sexual Assault, Dating Violence, Domestic Violence, and/or Stalking.

Sexual Assault

“Sexual Assault” is an umbrella term for any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent.  Sexual Assault includes Rape, Fondling, Incest, and Statutory Rape.

• “Rape” is the penetration, no matter how slight, of the vagina or anus, with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
• “Fondling” is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.
• “Incest” is sexual intercourse between persons who are related to each other within degrees wherein marriage is prohibited by law.
• “Statutory Rape” is sexual intercourse with a person who is under the statutory age of consent.

Consent

“Consent” is an active agreement to participate in a sexual act. An active agreement is words and/or conduct that communicate a person’s willingness to participate in a sexual act.

• Examples of sexual act(s) include, without limitation: vaginal intercourse; anal intercourse; oral sex; any other intrusion, however slight, of a person’s finger or any object into any other person’s genitals or anus; the intentional touching of a person’s intimate parts (genital area, groin, inner thigh, buttock or breast), the intentional touching of the clothing covering the immediate area of a person’s intimate parts, or the intentional touching of any other person with a person’s own intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual gratification.
• Consent can be revoked at any time.

Valid Consent cannot be given if:

• A person is Incapacitated and a Reasonable Person in the same situation as the Respondent would have known that the person is Incapacitated;
• A person is Forced; or
• The sexual penetration of a person by the Respondent would constitute mitigated statutory rape, statutory rape, or aggravated statutory rape under state law, based on the ages of the Respondent and the other person.
• Appendix B explains how the University determines whether Consent was obtained. Persons subject to this Policy are responsible for understanding and conforming their conduct to the standards described in this Section 2 and Appendix B.

“Force (Forced)” means words and/or conduct that, viewed from the perspective of a reasonable person, substantially impair(s) a person’s ability to voluntarily choose whether to take an action or participate in an activity.

Examples of Force include, without limitation:

• Physical force (e.g., hitting, punching, slapping, kicking, restraining, choking, kidnapping, using a weapon, blocking access to an exit);
• Words and/or conduct that would cause a reasonable person to fear:
• Physical force or other harm to the person’s health, safety, or property, or a third person’s health, safety, or property;
• Loss or impairment of an academic benefit, employment benefit, or money;
• Disclosure of sensitive personal information or information that would harm a person’s reputation;
• Disclosure of video, audio, or an image that depicts the person’s nudity or depicts the person engaging in a sexual act(s); or
• Other immediate or future physical, emotional, reputational, financial, or other harm to the person or a third person.

“Incapacitation” means that a person lacks the ability to actively agree to sexual activity because the person is asleep, unconscious, under the influence of an anesthetizing or intoxicating substance such that the person does not have control over their body, is otherwise unaware that sexual activity is occurring, or their mental, physical, or developmental abilities renders them incapable of making a rational informed judgment. Incapacitation is not the same as legal intoxication.

• A person violates this Policy when they engage in sexual activity with another person who is Incapacitated under circumstances in which a reasonable person would have known the other person to be Incapacitated.  For evaluating Incapacitation, a “reasonable person” means a sober, objectively reasonable person in the same situation, with ordinary sensitivities, and with similar identities as the Respondent.
• Incapacitation can be voluntary or involuntary. Signs of Incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness of circumstances or surroundings; emotional volatility; combativeness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances.

For evaluating Incapacitation, a “reasonable person” means a sober, objectively reasonable person in the same situation, with ordinary sensitivities, and with similar identities as the Respondent.

Sexual Exploitation

“Sexual Exploitation” means taking sexual advantage of another person, without that person’s active agreement. An active agreement is words and/or conduct that communicate a person’s willingness to participate in an act.

A person cannot actively agree to an act if:

• The person is Incapacitated, if either the person claiming to have obtained the other person’s active agreement knows that the other person is Incapacitated or a Reasonable Person would know that the other person is Incapacitated; or
• The person is Forced to act or participate in an activity.

Examples of Sexual Exploitation include, without limitation:

• Surreptitiously observing, photographing, audiotaping, videotaping, or recording an image of a person who is engaging in sexual act(s), or a person’s breasts, buttocks, groin, or genitals, when the person being observed/photographed/audiotaped/videotaped/recorded is in a place in which the person has a reasonable expectation of privacy;
• Allowing or enabling a person to surreptitiously observe, photograph, audiotape, videotape, or record an image of another person who is engaging in sexual act(s), or another person’s breasts, buttocks, groin, or genitals, when the person being observed/photographed/audiotaped/videotaped/recorded is in a place in which the person has a reasonable expectation of privacy;
• Showing, posting, or sharing video, audio, or an image that depicts a person who is engaging in sexual act(s), or a person’s breasts, buttocks, groin, or genitals, when the person being observed/photographed/audiotaped/videotaped/recorded is in a place in which the person has a reasonable expectation of privacy, if all persons who are depicted have not agreed to having the video/audio/image shown, posted, or shared;
• Prostituting another person or engaging in sex trafficking;
• Knowingly exposing another person to a sexually transmitted infection or disease without informing the other person that one has a sexually transmitted infection or disease;
• Forcing a person to participate in sexual act(s)with a person other than oneself;
• Forcing a person to expose the person’s breasts, buttocks, groin, or genitals;
• Forcing a person to take an action against that person’s will by threatening to show, post, or share video, audio, or an image that depicts the person’s nudity or depicts the person engaging in sexual act(s);
• Forcing a person to take an action of a sexual nature against that person’s will by threatening to disclose information that would harm a person’s reputation;
• Forcing a person to take an action against that person’s will by threatening to disclose information of a sexual or intimate nature that would harm a person’s reputation; or
• Causing or requesting an incapacitated person to expose the person’s breasts, buttocks, groin, or genitals or to participate in sexual act(s) with a person other than oneself.

Dating and Domestic Violence

“Dating Violence” means violence committed by a person—

• Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
• Where the existence of such a relationship shall be determined based on a consideration of the following factors:
  • The length of the relationship.
  • The type of relationship.
  • The frequency of interaction between the persons involved in the relationship.

“Domestic Violence” includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner 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 or intimate partner, 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 occurs, or by any other 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 occurs.

In cases involving allegations of mutual acts or threats of acts of violence, the designated investigator(s) will, when appropriate, identify the primary aggressor in the situation based on the totality of the information gathered, including without limitation: the history of violence between the parties; the relative severity of the injuries inflicted on each person; information gathered from the persons involved in the situation and witnesses to the situation; and whether the acts or threats were done in self-defense. The primary aggressor will be considered the Respondent for purposes of evaluating Domestic Violence.

Stalking

“Stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to—

1. Fear for his or her safety or the safety of others; or
2. Suffer 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 with or about another person, or interferes with another person’s property.

“Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling. For the definition of Stalking, “reasonable person” means a reasonable person under similar circumstances and with similar identities to the complainant.

For the definition of Stalking, a “reasonable person” means a reasonable person under similar circumstances and with similar identities to the complainant.

Retaliation

“Retaliation” means to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by this Policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing.

Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by this Policy constitutes retaliation.

• The exercise of rights protected under the First Amendment does not constitute retaliation.
• Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation.  Retaliation is a violation of this Policy regardless of whether the underlying allegation of a violation of this Policy is ultimately found to have merit. Determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.