Conduct under this Policy is prohibited regardless of the sex, sexual orientation and/or gender identity or expression of the Complainant or Respondent. Prohibited Conduct includes the following specifically defined forms of behavior: sexual or gender-based harassment, sexual assault, intimate partner violence, stalking, retaliation, and violation of interim measures.

A. SEXUAL OR GENDER-BASED HARASSMENT

1. Sexual Harassment

Sexual harassment is any unwelcome sexual advance, request for sexual favors, or other unwanted conduct of a sexual nature, whether verbal, non-verbal, graphic, physical, or otherwise, when the conditions outlined in Section VIII(A)(2)(a) and/or (b) below are present.

2. Gender-Based Harassment

Gender-based harassment includes harassment based on actual or perceived gender, sexual orientation, gender identity, or gender expression, which may include acts of aggression, intimidation, or hostility, whether verbal, non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature, when the conditions outlined in (a) or (b) below, are present.

(a) Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any University programs and/or activities, or is used as the basis for University decisions affecting the individual (often referred to as “quid pro quo” harassment); or

(b) Such conduct creates a hostile environment. A hostile environment exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably (i) interferes with, (ii) limits, or (iii) deprives an individual from participating in or benefiting from the University’s education or employment programs and/or activities. Conduct must be deemed severe, persistent, or pervasive from both a subjective and an objective perspective. In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances, including the nature, frequency, intensity, location, context, and duration of the behavior.

Although a sexually harassing hostile environment is generally created through a series of incidents, a severe incident, even if isolated, can be sufficient. For example, a single instance of sexual assault may constitute sexual harassment.

Examples of conduct that may constitute sexual or gender-based harassment include:

  • Unwanted touching or sexual advances;

  • Unwanted written, verbal, or electronic statements of a sexual nature, directed at an individual including sexually suggestive comments, jokes, or innuendos;

  • Written, verbal, or electronic statements that disparage a person based on a perceived lack of stereotypical masculinity or femininity or perceived sexual orientation;

  • Causing the incapacitation of another person (through alcohol, drugs, or any other means) for the purposes of compromising that person’s ability to give consent to the alleged sexual activity;

  • Allowing other individuals to observe private sexual activity from a hidden location (e.g., closet) or through electronic means (e.g., FaceTime, Snapchat, Skype or live- streaming of images) without consent of the participant(s);

  • Engaging in voyeurism (e.g., watching private sexual activity without the consent of the participants or viewing another person’s intimate parts (including genitalia, groin, breasts or buttocks) in a place where that person would have a reasonable expectation of privacy);

  • Recording, photographing, disseminating, or transmitting intimate or sexual utterances, sounds, or images of private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without the consent of the participants;

  • Excluding a person from a program or activity based on pregnancy;

  • Touching oneself sexually for others to view without their consent; and

  • Excluding a person from a program, activity or facility based on sexual orientation or gender identity.

In some cases, harassment may be based on multiple protected class bases included in the University’s Nondiscrimination Policy Notice. In general, discriminatory harassment by a student, involving protected class bases other than actual or perceived gender, sexual orientation, gender identity, or gender expression, falls under the Student Rights and Code of Conduct (Code of Conduct), and will be addressed accordingly by Student Life or OIE. Where there is an indication that reported harassment may be based on both gender (including sexual orientation, gender identity, or gender expression) and another protected class basis (e.g., race, color, national origin, age, marital status, sex, sexual orientation, gender identity, gender expression, disability, religion, height, weight, or veteran status), the Title IX Coordinator and DOS will assess the available information in order to determine whether the matter is most appropriately addressed under this Policy, under the Code of Conduct, or for different aspects of the matter to be addressed separately under each.

The Title IX Coordinator will have final decision-making authority regarding whether and how a matter is addressed under this Policy, and DOS will have final decision-making authority regarding whether and how a matter is addressed under the Code of Conduct.

B. SEXUAL ASSAULT

Sexual assault is touching of a sexual nature, including: vaginal or anal intercourse; anal, oral or vaginal penetration with an object; oral-genital contact; or other sexual contact that occurs without consent. Sexual contact includes: (a) intentional touching of the breasts, buttocks, groin, or genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; or (b) making an individual touch another person or themselves with or on any of these body parts. Consent, as well as the terms force, coercion, and incapacitation are further defined below.

1. Consent

Consent is a clear and unambiguous agreement, expressed outwardly through mutually understandable words or actions, to engage in a particular activity. Consent must be voluntarily given and cannot be obtained through coercion or force. For purposes of this Policy, in evaluating whether consent was freely sought and given, the issue is whether the Respondent knew, or reasonably should have known, that the activity in question was not consensual or that the Complainant was unable to consent due to incapacitation. Incapacitation, coercion, and force are defined below.

A person who initiates a specific sexual activity is responsible for obtaining consent for that activity.

Consent is not to be inferred from silence, passivity, or a lack of resistance, and relying on non- verbal communication alone may not be sufficient to ascertain consent.

Consent is not to be inferred from an existing or previous dating or sexual relationship. Even in the context of a relationship, there must be mutual consent to engage in any sexual activity each time it occurs.

Consent to engage in one sexual activity at one time is not consent to engage in a different sexual activity or to engage in the same sexual activity on a later occasion.

Consent to engage in sexual activity with one person is not consent to engage in sexual activity with any other person.

Consent can be withdrawn by any party at any point. Once consent is withdrawn, the sexual activity must cease immediately.

2. Incapacitation

Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity. Consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated.

A person who is incapacitated is unable, temporarily or permanently, to give consent because of mental or physical helplessness, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. A person may be incapacitated as a result of the consumption of alcohol or other drugs, or due to a temporary or permanent physical or mental health condition.

When alcohol or other drugs are involved, incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily incapacitated merely as a result of drinking or using drugs; the level of impairment must be significant enough to render the person unable to give consent. The impact of alcohol and other drugs varies from person to person, and a person’s level of intoxication may vary based upon the nature and quality of the substance imbibed, the person’s weight, tolerance, ingestion of food and other circumstances. A person’s level of impairment may also change rapidly.

In evaluating consent in cases of alleged incapacitation, the University asks two questions: (1) Did the person initiating sexual activity know that the other party was incapacitated? And, if not, (2) Should a sober, reasonable person, in the same situation, have known that the other party was incapacitated? If the answer to either of these questions is “yes,” consent was absent and the conduct is likely a violation of this Policy.

One is not expected to be a medical expert in assessing incapacitation. One must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, typical signs often include slurred or incomprehensible speech, unsteady manner of walking, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: Do you know where you are? Do you know how you got here? Do you know what is happening? Do you know whom you are with?

One should be cautious before engaging in sexual activity when either party has been drinking alcohol or using drugs. The use of alcohol or other drugs may impair either party’s ability to determine whether consent has been sought or given. If one has doubt about either party’s level of intoxication, the safe thing to do is to forego all sexual activity. A Respondent’s intoxication will not excuse the Respondent from the obligation to obtain consent as described in this Policy.

3. Coercion

Coercion is conduct, including intimidation and express or implied threats of immediate or future physical, emotional, reputational, financial, or other harm to the Complainant or others, that would reasonably place an individual in fear, and that is employed to compel someone to engage in sexual activity.

4. Force

Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom of will to choose whether to participate in sexual activity.

C. STALKING

Stalking occurs when a person engages in a course of conduct toward another person under circumstances that would cause a reasonable person to fear bodily injury to themselves or to others, or experience substantial emotional distress. Stalking often involves individuals who are known to one another or who have a current or previous relationship, but may also involve individuals who are strangers. Stalking behavior generally addressed under this Policy typically includes one or more of the following elements:

  • Is sexual or romantic in nature;

  • Is committed by a Complainant’s current or former partner of an intimate,

    romantic or sexual relationship; or

  • Is related to the Complainant exhibiting what is perceived as a stereotypical characteristic for one’s sex, or for failing to conform to stereotypical notions of masculinity and femininity, regardless of the actual or perceived sex, gender, sexual orientation, gender identity, or gender expression of the Complainant.

The Title IX Coordinator, in consultation with Student Life, conduct meet these criteria. Stalking behavior not addressed under this Policy may be addressed under the Code of Conduct as harassment.

For purposes of this Policy, course of conduct means two or more unwelcome acts in which a person directly, indirectly, or through other persons, by any action, method, device, or means, follows, monitors, observes, surveys, threatens, or communicates to or about a person, or interferes with a person’s property.

D. INTIMATE PARTNER VIOLENCE

Intimate partner violence, also referred to as dating violence, domestic violence, or relationship violence, is any act of violence or pattern of emotionally or financially abusive behavior that one person uses against a current or former partner in a sexual, dating, spousal, domestic, or other intimate relationship, to gain or maintain power and control over another.

The determination of whether any conduct constitutes intimate partner violence is whether the conduct is so severe, pervasive or persistent as to significantly interfere with an individual's ability to learn and/or work or cause substantial emotional distress, when judged both objectively will determine if the reported (meaning that a “reasonable person” would find the behavior to be emotionally abusive) and subjectively (meaning the impacted individual felt the behavior was emotionally abusive).

Intimate partner violence may include any form of Prohibited Conduct under this Policy; physical assault or a pattern of abusive behavior. Intimate partner violence can be a single act or a pattern of behavior within a relationship.

E. RETALIATION

Retaliation means any adverse action taken by individuals or groups against a person for making a good faith report of Prohibited Conduct or participating in any proceeding under this Policy. Retaliation may include intimidation, threats, coercion, harassment, or adverse employment or educational actions that would discourage a reasonable person from engaging in activity protected under this Policy. A good faith pursuit by either party of civil, criminal or other legal action, internal or external to the University, does not constitute retaliation.

F. VIOLATION OF PROTECTIVE MEASURES

Protective measures are typically measures Respondents are required to comply with and may include: no-contact directives, work or academic schedule or housing modifications or other actions that the University may implement to protect and/or support Complainants, witnesses, or other members of our University community as appropriate. Protective measures are discussed in more detail in Section VI(B) above. Failure of a Respondent to comply with protective measures as required is a separate and independent violation of this Policy.

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