Title IX

What is Sexual Violence / Sexual Misconduct?

The University seeks to foster a safe and healthy environment built on mutual respect and trust. At the very basis of the University's mission is the recognition of the essential dignity and worth of each member of its community. Sexual misconduct of any kind is a very serious violation of these principles and will not be tolerated in any form. The University encourages all members of its community to be aware of trauma caused by sexual misconduct and challenges its members to work together to prevent its occurrence.

The following information is provided to help the campus community understand the definition of sexual violence, outline resources that are available in the campus community, describe policies that protect individuals from sexual violence, and outline procedures for reporting concerns.

INTRODUCTION

Members of the UCM community, guests and visitors have the right to be free from sexual violence. All members of the campus community are expected to conduct themselves in a manner that does not infringe upon the rights of others. The University believes in a zero tolerance policy for gender-based misconduct. When an allegation of misconduct is brought to an appropriate administration's attention, and the person who engaged ion that misconduct is found to have violated this policy, serious sanctions will be used to reasonably ensure that such actions are never repeated. This policy has been developed to reaffirm these principles and to provide recourse for those individuals whose rights have been violated. This policy is intended to define community expectations and to establish a mechanism for determining when those expectations have been violated.

OVERVIEW OF POLICY EXPECTATIONS WITH RESPECT TO PHYSICAL SEXUAL MISCONDUCT

The expectations of our community regarding sexual misconduct can be summarized as follows: In order for individuals to engage in sexual activity of any type with each other, there must be clear, knowing and voluntary consent prior to and during sexual activity. Consent is sexual permission. Consent can be given by word or action, but non-verbal consent is not as clear as talking about what you want sexually and what you don't. Consent to some form of sexual activity cannot be automatically taken as consent to any other form of sexual activity. Silence cannot be assumed to show consent.

Additionally, there is a difference between seduction and coercion. Coercion happens when someone is pressured for sex. Coercing someone into sexual activity violates this policy in the same way as physically forcing someone into sex.

Because alcohol or other drug use can place the capacity to consent in question, sober sex is less likely to raise such questions. When alcohol or other drugs are being used, a person will be considered unable to give valid consent if they cannot fully understand the details of a sexual interaction (who, what, when, where, why, or how) because they lack the capacity to reasonably understand the situation. Individuals who consent to sex must be able to understand what they are doing. Under this policy, “No” always means “No,” and, if the individual is under the influence of drugs or alcohol, “Yes” may not always mean “Yes.” Anything but a clear, knowing and voluntary consent to any sexual activity is equivalent to a “no.” The individual who is initiating sexual activity must ensure the individual with whom they wish to have sexual contact knowingly consents to the activity.

SEXUAL MISCONDUCT OFFENSES INCLUDE, BUT ARE NOT LIMITED TO:

• Sexual Harassment
• Non-Consensual Sexual Contact (or attempts to commit same)
• Non-Consensual Sexual Intercourse (or attempts to commit same)
• Sexual Exploitation

1. SEXUAL HARASSMENT:

Sexual Harassment is:

• unwelcome, gender-based verbal or physical conduct that is,
• sufficiently severe, persistent or pervasive that it,
• unreasonably interferes with, denies or limits someone's ability to participate in or benefit from the university's educational program and/or activities, and is
• based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation.

Examples of Harassment:

• A professor insists that a student have sex with him/her in exchange for a good grade. This is harassment regardless of whether the student accedes to the request.
• A student repeatedly sends sexually oriented jokes around on an email list s/he created, even when asked to stop, causing one recipient to avoid the sender on campus and in the residence hall in which they both live.
• Explicit sexual pictures are displayed in a professor's office, on the exterior of a residence hall door or on a computer monitor in a public space.
• Two supervisors frequently ‘rate' several employees' bodies and sex appeal, commenting suggestively about their clothing and appearance.
• A professor engages students in discussions in class about their past sexual experiences, yet the conversation is not in any way germane to the subject matter of the class. She probes for explicit details, and demands that students answer her, though they are clearly uncomfortable and hesitant.
• An ex-girlfriend widely spreads false stories about her sex life with her former boyfriend to the clear discomfort of the boyfriend, turning him into a social pariah on campus.
• A student grabbed another student by the hair, then grabbed her breast and put his mouth on it.

Three Types of Sexual Harassment - Legal Constructs

A. Hostile Environment includes any situation in which there is harassing conduct that is sufficiently severe, pervasive and objectively offensive.

B. 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.

C. Retaliatory harassment is 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.

2. NON-CONSENSUAL SEXUAL CONTACT:

Non-Consensual Sexual Contact is:

• any intentional sexual touching,
• however slight,
• with any object,
• that is without consent and/or by force
• Sexual Contact includes:
• Intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.

3. NON-CONSENSUAL SEXUAL INTERCOURSE:

Non-Consensual Sexual Intercourse is:

• any sexual intercourse
• however slight,
• with any object,
• that is without consent and/or by force.
• Intercourse includes:
• vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object, tongue, or finger, and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.

4. SEXUAL EXPLOITATION:

Occurs when a student takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses. Examples of sexual exploitation include, but are not limited to:

• Invasion of sexual privacy;
• prostituting another student;
• non-consensual video or audio-taping of sexual activity;
• going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex);
• engaging in voyeurism;
• knowingly transmitting an STI or HIV to another student;
• Exposing one's genitals in non-consensual circumstances; inducing another to expose their genitals;
• Sexually-based stalking and/or bullying may also be forms of sexual exploitation

ADDITIONAL APPLICABLE DEFINITIONS:

Consent: With all cases of a sexual nature, "consent" is defined as positive cooperation in act or behavior. Consent is clear, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. The person consenting must act freely and voluntarily, have knowledge of the nature of the act and be capable of making a reasonable judgment concerning the nature of the act. Members of the community should be aware that by intoxication, youth or mental disability, a person may not be capable of valid consent. The University does not consider a lack of protest to imply consent. Further, a current or previous dating relationship is not sufficient to constitute consent. Any member of the University community who encourages, aids, assists or participates in any act of sexual misconduct against another will also be considered a violation of University policy.

• Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.
• Previous relationships or prior consent cannot imply consent to future sexual acts.

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 ("Have sex with me or I'll hit you. Okay, don't hit me, I'll do what you want.").

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 clear to you that they do not want 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 resist the sexual advance or request, but resistance is a clear demonstration of non-consent. The presence of force is not demonstrated by the absence of resistance. Sexual activity that is forced is by definition non-consensual, but non-consensual sexual activity is not by definition forced.

• In order to give effective consent, one must be of legal age.
• Sexual activity with someone who one 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, unconsciousness or blackout), constitutes a violation of this policy.

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 or how" of their sexual interaction).

• This policy also covers a person whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of rape drugs. Possession, use and/or distribution of any of these substances, including Rohypnol, Ketomine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another student is a violation of this policy. More information on these drugs can be found at http://www.911rape.org/

Use of alcohol or other drugs will never function as a defense to a violation of this policy.
The sexual orientation and/or gender identity of individuals engaging in sexual activity is not relevant to allegations under this policy.

EXAMPLES:

1. Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00pm until 3:00am, Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. He keeps at her, and begins to question her religious convictions, and accuses her of being "a prude." Finally, it seems to Bill that her resolve is weakening, and he convinces her to give him a "hand job" (hand to genital contact). Amanda would never had done it but for Bill's incessant advances. He feels that he successfully seduced her, and that she wanted to do it all along, but was playing shy and hard to get. Why else would she have come up to his room alone after the party? If she really didn't want it, she could have left.

Bill is responsible for violating the university Non-Consensual or Forced Sexual Contact policy. It is likely that the university would find that the degree and duration of the pressure Bill applied to Amanda are unreasonable. Bill coerced Amanda into performing unwanted sexual touching upon him. Where sexual activity is coerced, it is forced. Consent is not effective when forced. Sex without effective consent is sexual misconduct.

2. Jiang is a junior at the university. Beth is a sophomore. Jiang comes to Beth's dorm room with some mutual friends to watch a movie. Jiang and Beth, who have never met before, are attracted to each other. After the movie, everyone leaves, and Jiang and Beth are alone. They hit it off, and are soon becoming more intimate. They start to make out. Jiang verbally expresses his desire to have sex with Beth. Beth, who was abused by a baby-sitter when she was five, and has not had any sexual relations since, is shocked at how quickly things are progressing. As Jiang takes her by the wrist over to the bed, lays her down, undresses her, and begins to have intercourse with her, Beth has a severe flashback to her childhood trauma. She wants to tell Jiang to stop, but cannot. Beth is stiff and unresponsive during the intercourse. Is this a policy violation?

Jiang would be held responsible in this scenario for Non Consensual Sexual Intercourse. It is the duty of the sexual initiator, Jiang, to make sure that he has mutually understandable consent to engage in sex. Though consent need not be verbal, it is the clearest form of consent. Here, Jiang had no verbal or non-verbal mutually understandable indication from Beth that she consented to sexual intercourse. Of course, wherever possible, students should attempt to be as clear as possible as to whether or not sexual contact is desired, but students must be aware that for psychological reasons, or because of alcohol or drug use, one's partner may not be in a position to provide clear consent. Consent must be actively, not passively, given.

3. Kevin and Amy are at a party. Kevin is not sure how much Amy has been drinking, but he is pretty sure it's a lot. After the party, he walks Amy to her room, and Amy comes on to Kevin, initiating sexual activity. Kevin asks her if she is really up to this, and Amy says yes. Clothes go flying, and they end up in Amy's bed. Suddenly, Amy runs for the bathroom. When she returns, her face is pale, and Kevin thinks she may have thrown up. Amy gets back into bed, and they begin to have sexual intercourse. Kevin is having a good time, though he can't help but notice that Amy seems pretty groggy and passive, and he thinks Amy may have even passed out briefly during the sex, but he does not stop. When Kevin runs into Amy the next day, he thanks her for the wild night. Amy remembers nothing, and decides to make a complaint.

This is a violation of the Non-Consensual Sexual Intercourse Policy. Kevin should have known that Amy was incapable of making a rational, reasonable decision about sex. Even if Amy seemed to consent, Kevin was well aware that Amy had consumed a large amount of alcohol, and Kevin thought Amy was physically ill, and that she passed out during sex. Kevin should be held accountable for taking advantage of Amy in her condition. This is not the level of respectful conduct expected of students.