Prohibited Conduct under this Policy includes Sexual and Gender-Based Misconduct (i.e., Sexual Assault; Sexual Exploitation; Sexual Harassment; Gender-Based Harassment; Sex and/or Gender-Based Stalking; Intimate Partner Violence; Sex and Gender-Based Discrimination; Retaliation and Violation of Supportive Measures) and Title IX Misconduct (i.e., Quid Pro Quo Sexual Harassment; Severe, Pervasive and Objectively Offensive Sexual Harassment; Sexual Assault; and Sex-Based Intimate Partner Violence and Stalking; as defined by and within the scope of Title IX)

For Employees, in those instances in which reported behavior could constitute both Sexual and Gender-Based Misconduct and Title IX Misconduct, the procedures applicable to Title IX Misconduct generally will be used as long as Title IX Misconduct is under investigation. Please see Section VIII in the Employee Procedures for additional information. Title IX Misconduct procedures will not be used if, for whatever reason, the Title IX Misconduct is no longer under investigation, and the procedures applicable to Sexual and Gender-Based Misconduct will be used. As set forth in Section III above, there is only one set of applicable procedures for Students, irrespective of whether the alleged Prohibited Conduct is Sexual and Gender-Based Misconduct or Title IX Misconduct.

Whether someone has engaged in Prohibited Conduct under this Policy will be assessed under a Reasonable Person standard, as defined above in Section II.

A. Consent
 

Some forms of Prohibited Conduct involve the issue of Consent. For purposes of this Policy, Consent is a clear and unambiguous agreement, expressed outwardly through mutually understandable words or actions, to engage in Sexual Activity.

For purposes of this section, Sexual Activity refers to any conduct of a sexual nature for which Consent is required under this Policy (i.e., Sexual Contact, as defined below and behaviors identified in the definition of Sexual Exploitation, below, that require consent). A person who initiates Sexual Activity is responsible for obtaining Consent for that conduct. Consent cannot be obtained by Force or in circumstances involving Incapacitation, as defined below.

In evaluating whether Consent was given under this Policy, the issue is:

  • Did the person initiating Sexual Activity know that the conduct in question was not consensual?
  • If not, would a Reasonable Person who is unimpaired by alcohol or drugs have known that the conduct in question was not consensual?

If the answer to either of these questions is “Yes,” Consent was absent and the conduct is likely a violation of this Policy.

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 determine 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. In cases involving prior or current relationships, the manner and nature of prior communications between the parties and the context of the relationship may have a bearing on the presence of Consent.

Consent to engage in a particular 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 can be withdrawn by any party at any point. An individual who seeks to withdraw Consent must communicate, through clear words or actions, a decision to cease the Sexual Activity. Once Consent is withdrawn, the Sexual Activity must cease immediately.

Given the inherent power differential in the context of a professional faculty-student, staff-student or supervisor-supervisee interactions, when the Respondent is the faculty member, staff member, or supervisor, the University will generally apply heightened scrutiny to an assertion of Consent.4

1. Force

Force includes the use of physical violence, threats, and/or coercion.

Physical violence means that a person is exerting control over another person through the use of physical force. Examples of physical violence include hitting, punching, slapping, kicking, restraining, strangling, and brandishing or using any weapon.

Threats are words or actions that would compel a Reasonable Person to engage in unwanted Sexual Activity. Threats may be implicit or explicit, but must be of such a nature that they would reasonably cause fear. Examples include threats to harm a person physically or to cause a person academic, employment, reputational, or economic harm.

Coercion is the use of an unreasonable amount of pressure that would overcome the will of a Reasonable Person. Coercion is more than an effort to persuade, entice, or attract another person to engage in Sexual Activity. When a person makes clear a decision not to participate in a particular Sexual Activity, a decision to stop, or a decision not to go beyond a certain sexual interaction, continued pressure can become coercive. In evaluating whether Coercion was used, the University will consider: (1) the frequency, intensity, and duration of the pressure; (2) the degree of isolation of the person being pressured; and (3) any actual or perceived power differential between the parties in the context of their respective roles within the University.
 

2. Incapacitation

Incapacitation or Incapacitated means that a person lacks the ability to make informed, deliberate choices 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 knows or reasonably should know that the other is Incapacitated.

A person who is Incapacitated is unable to give Consent because of mental or physical helplessness, sleep, unconsciousness, or lack of awareness that Sexual Activity was requested, suggested, initiated, and/or 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 solely as a result of drinking or using drugs; the level of impairment must be significant enough to render the person unable to give Consent.

In evaluating Consent in cases of alleged Incapacitation, the University considers:

  • Did the person initiating Sexual Activity know that the other party was Incapacitated?
  • If not, would a Reasonable Person who is unimpaired by alcohol or drugs 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 by drugs or alcohol. One must look for the common and obvious signs that show that a person may be Incapacitated, regardless of the amount of alcohol or drugs consumed. Although every individual may manifest signs of Incapacitation differently, typical signs 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?

It is important to be cautious before engaging in Sexual Activity when any person involved has been drinking alcohol or using drugs. The use of alcohol or other drugs may impair an individual’s ability to determine whether Consent has been sought or given. If there is doubt about an individual’s level of intoxication, the safe thing to do is to refrain from engaging in Sexual Activity. Being impaired by alcohol or other drugs is not a defense to a failure to obtain Consent.

B. Sexual and Gender-Based Misconduct

1. Sexual Assault

Sexual Assault is Sexual Contact that occurs without Consent. Sexual Contact includes:

  • Intentional sexual touching of another person’s breasts, buttocks, or genitals, whether clothed or unclothed (including intentional touching with ejaculate);
  • Intentional sexual touching with one’s breast, buttocks, or genitals (including touching with ejaculate);
  • Making a person touch another person or themselves with or on any of these body parts; and/or
  • Vaginal, oral, or anal penetration or contact by a penis, tongue, finger, or other object.
     

2. Sexual Exploitation

Sexual Exploitation is intentional conduct by which an individual takes or attempts to take non-consensual sexual advantage of another for one’s own benefit, or to benefit anyone other than the one being exploited.

Examples of Sexual Exploitation include doing any of the following:

  • Intentionally or knowingly causing the Incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give Consent to Sexual Activity;
  • Intentionally or knowingly engaging in voyeurism, including observing or allowing another(s) to observe private sexual or intimate activity (e.g., disrobing, bathing, toileting) without the Consent of the individual(s) being observed, whether from a hidden location or through electronic means (e.g., Skype or live- streaming of images);
  • Intentionally or knowingly recording or photographing, or disseminating or posting images of private sexual or intimate activity and/or a person’s intimate parts (including genitalia, groin, breasts and/or buttocks) without Consent;
  • Intentionally or knowingly, without Consent, engaging in the recruitment, transportation, harboring, or receipt of a person(s) for the purposes of a commercial sex act(s);
  • Intentionally or knowingly demanding financial compensation, Sexual Contact, or some other benefit under threat of disseminating or posting an image, video or other recording, of private sexual or intimate activity and/or a person’s genitalia, groin, breasts, and/or buttocks;
  • Intentionally or knowingly exposing another person to a sexually transmitted infection without the other’s knowledge; and/or
  • Intentionally or knowingly, through one’s actions, aiding or assisting another person in committing an act of Prohibited Conduct.

3. Sexual Harassment

Sexual Harassment is any unwelcome conduct of a sexual nature, whether verbal, graphic (e.g., pictures and videos), physical, or otherwise, when:

  • Submission to such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, education, living environment, or participation in any University Program or Activity;
  • Submission to or rejection of such conduct by an individual is used as the basis for or a factor in decisions affecting that individual’s employment, education, living environment, or participation in a University Program or Activity; and/or
  • Such conduct creates a hostile environment. A hostile environment exists when the unwelcome conduct of a sexual nature is sufficiently severe, persistent, or pervasive that it unreasonably interferes with an individual’s participation in a University Program or Activity or creates an intimidating, hostile, offensive, or abusive environment for that individual’s participation in a University Program or Activity. 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 hostile environment is generally created through a series of incidents, for purposes of this Policy, a severe incident, even if isolated, can be sufficient.

This definition of Sexual Harassment addresses intentional conduct. It may also include conduct that results in negative effects even though such negative effects were unintended. Unwelcome conduct of a sexual nature constitutes Sexual Harassment if a Reasonable Person would consider it sufficiently severe, persistent, or pervasive as to interfere unreasonably with academic, other educational, or employment performance or participation in a University activity or living environment.

Examples of conduct that may constitute Sexual Harassment include but are not limited to:

  • Unwanted intentional touching such as kissing, hugging, or sexual touching that otherwise does not typically constitute Sexual Assault, defined above;
  • Unwanted sexual advances, including repeated unwanted requests for dates, or repeated unwanted requests for sexual contact;
  • Unwanted written, verbal, or electronic statements of a sexual nature, including sexually suggestive comments, jokes, or innuendos;
  • Exposing one’s genitalia, breasts, or buttocks, to another; and/or
  • Touching oneself sexually for others to view.
     

4. Gender-Based Harassment

Gender-Based Harassment includes harassment based on actual or perceived sex, sexual orientation, gender identity, gender expression, or pregnancy. Such harassment may include acts of aggression, intimidation, or hostility, whether verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature, when the behavior:

  • Adversely affects a term or condition of an individual’s employment, education, living environment, or participation in a University Program or Activity;
  • Is used as the basis for or a factor in decisions affecting that individual’s employment, education, living environment, or participation in a University Program or Activity; and/or
  • Creates a hostile environment for that individual’s participation in a University Program or Activity. A hostile environment exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with an individual’s participation in a University Program or Activity, or creates an intimidating, hostile, offensive, or abusive environment for that individual’s employment, education, living, or participation in a University Program or Activity. Conduct must be deemed severe, persistent, or pervasive from both a subjective and objective standard. 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 harassing hostile environment is generally created through a series of incidents, for purposes of this Policy, a severe incident, even if isolated, can be sufficient to constitute a hostile environment.

Examples of conduct that may constitute Gender-Based Harassment include but are not limited to:

  • A series of written, verbal, or electronic statements that disparage a person based on their actual or perceived sex, gender identity, gender expression, sexual orientation, or pregnancy;
  • Threats of violence toward an individual based on their actual or perceived identity; within a protected class, or toward an entire sex, gender identity, gender expression, sexual orientation, or pregnancy status as a group; and/or
  • Defacing University property, or another individual’s property, with symbols or language intended or understood by a Reasonable Person to disparage or threaten a person or group based on sex, gender identity, gender expression, sexual orientation, or pregnancy.

This definition of Gender-Based Harassment addresses intentional conduct. It also may include conduct, which results in negative effects even though such negative effects were unintended. Unwelcome behavior constitutes Gender-Based Harassment if a Reasonable Person would consider it sufficiently severe, persistent, or pervasive as to interfere unreasonably with academic, other educational, or employment performance or participation in a University activity or living environment.

In some cases, harassment may be based on multiple protected class bases included in the University’s Nondiscrimination Policy Notice. In general, harassment involving protected class bases other than actual or perceived gender, sexual orientation, gender identity, or gender expression might fall under other University policies. For matters involving Student Respondents, this would include the Student Code of Conduct in effect at the specific campus. For matters involving Employee or Third Party Respondents, this could include, but is not limited to the Discrimination and Harassment Policy, SPG 201.89-1. Where reported harassment may be based on both sex or gender (including actual or perceived sex, sexual orientation, gender identity, gender expression or pregnancy) and another protected class basis (e.g., race, color, national origin, age, marital status, disability, religion, height, weight, or veteran status), OIE will consult with other University officials, as needed, determine whether the matter is most appropriately addressed under this Policy or another University Policy, or whether different aspects of the matter should be addressed separately under each.
 

5. Sex and/or Gender-Based Stalking

This Policy addresses stalking on the basis of sex or gender. Stalking occurs when an individual engages in a course of conduct directed at a specific person under circumstances that would cause a Reasonable Person5 to:

  • Fear for their own safety or the safety of others; or
  • 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 to or about another person, or interferes with another person’s property.

Where a report of Stalking involves the alleged behavior of a Student, the Title IX Coordinator will determine if the reported conduct meets these criteria. Alleged stalking behavior by a Student that does not fall under this Policy may be addressed under the relevant Student Code of Conduct on the Ann Arbor, Dearborn, or Flint campus, as applicable.

Where a report of Stalking involves the alleged behavior of a faculty or staff member, or Third Party, OIE, in consultation with the applicable Human Resources unit, will determine if the reported conduct meets the above criteria. Alleged Stalking behavior by a faculty or staff member, or a Third Party may be addressed under the Violence in the University Community Policy, SPG 601.18
 

6. Intimate Partner Violence

Intimate Partner Violence collectively “IPV”, includes Dating Violence and Domestic Violence.

The term “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 the reporting party’s statement and with a consideration of the following factors:
    • The length of the relationship;
    • The type of relationship; and
    • The frequency of interaction between the persons involved in the relationship.

Dating Violence includes, but it is not limited to, sexual or physical abuse or the threat of such abuse.

The term “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 Michigan, 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 Michigan.
 

7. Sex and Gender-Based Discrimination

Sex and Gender-Based Discrimination is conduct that is based upon an individual’s sex, sexual orientation, gender identity, gender expression, or pregnancy that:

  • Adversely affects a term or condition of an individual’s employment, education, living environment, or participation in a University Program or Activity; and/or
  • Is used as the basis for or a factor in decisions affecting that individual’s employment, education, living environment, or participation in a University Program or Activity.

Some examples of conduct that may constitute prohibited Sex or Gender Based Discrimination may include, but are not limited to:

  • Denying a person access to an educational or employment program based on that person’s sex, sexual orientation, gender identity, gender expression, or pregnancy;
  • Denying raises, benefits, promotions, and/or other conditions of employment on the basis of a person’s sex, sexual orientation, gender identity, gender expression, or pregnancy; and/or
  • Preventing any person from using University facilities or services because of that person’s sex, sexual orientation, gender identity, gender expression, or pregnancy.
     

8. Retaliation

Retaliation means an adverse action taken against a person for making a report or Formal Complaint of Prohibited Conduct; being alleged to have committed Prohibited Conduct; assisting or participating, or refusing to participate, in any proceeding under this Policy. Retaliation may include intimidation, threats, coercion, or discrimination including adverse employment or educational actions that would discourage a Reasonable Person from engaging in activity protected under this Policy.

The exercise of rights protected under the First Amendment does not constitute Retaliation. Pursuit of civil, criminal, or other legal action, internal or external to the University does not constitute Retaliation.

Initiating disciplinary proceedings against an individual for making a materially false statement in bad faith in the course of a proceeding under the Policy does not constitute Retaliation under this Policy; however, a determination regarding responsibility, alone, is insufficient to conclude that any party made a materially false statement in bad faith.

9. Violation of Supportive Measures

Supportive Measures are discussed in more detail in Section IX.  Failure to comply with Supportive Measures as required is a separate and independent violation of this Policy.

C. Title IX Misconduct

When reported behavior meets the following definition, it may constitute Title IX Misconduct and will be addressed under the procedures applicable to Title IX Misconduct, even if the behavior also may constitute Sexual and Gender-Based Misconduct. If at any point the University determines that the matter does not meet the definition of Title IX Misconduct, the matter will continue to be addressed under the Student Procedures or Employee Procedures, as applicable to Sexual and Gender-Based Misconduct.6 Conversely, if the University is investigating reported Sexual and Gender-Based Misconduct and receives information that indicates the behavior at issue meets the definition of Title IX Misconduct, the matter will continue under the procedures applicable to Title IX Misconduct.

Title IX Misconduct:

  • Occurs in the United States;
  • Occurs in a University Program or Activity; and
  • A Formal Complaint must also be filed.
  • Is conduct on the basis of sex in which:
    • An Employee conditions the provision of a University aid, benefit, or service on an individual’s participation in unwelcome sexual conduct;
    • A Student, Employee, or Third Party engages in unwelcome conduct determined by a Reasonable Person to be so severe, pervasive, and objectively offensive that it effectively denies another person equal access to a University Program or Activity; or
    • A Student, Employee, or Third Party engages in: Sex or Gender-Based Stalking (defined above); Dating Violence (defined above); Domestic Violence (defined above); or Sexual Assault as defined for purposes of the FBI’s Uniform Crime Reporting (NIBRS) program, as below:
    • Rape:
      • The carnal knowledge of a person (i.e., penile-vaginal penetration), without the Consent of that person, including instances where the person is incapable of giving Consent because of their age or because of their temporary or permanent mental or physical incapacity (it should be noted that either females or males could be Complainants under this definition);
      • Oral or anal sexual intercourse (i.e., penile penetration) with another person, without the consent of that person, including instances where the person is incapable of giving Consent because of their age or because of their temporary or permanent mental or physical incapacity;
      • To use an object or instrument (e.g., an inanimate object or body part other than a penis) to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the Consent of that person, including instances where the person is incapable of giving Consent because of their age or because of their temporary or permanent mental or physical incapacity;
    • Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of that person, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity (for purposes of this definition, “private body parts” includes breasts, buttocks, or genitals, whether clothed or unclothed);
    • Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; or
    • Statutory Rape: Sexual intercourse with a person who is under the statutory age of Consent.

4 Separate and apart from the issue of Consent under the Policy, the University has prohibited many faculty-student relationships and staff-student relations under the Prohibitions Regarding Sexual, Romantic, Amorous, and/or Dating Relationships Between Teachers and Learners SPG 601.22 and Employee-Student Relationships SPG 601.22-1, respectively.

5 For purposes of this definition of Sex and/or Gender-Based Stalking only, the definition of “Reasonable Person” is a Reasonable Person under similar circumstances and with similar identities to the Complainant.

6 Consistent with Title IX and applicable law, the University uses the same procedures for all Prohibited Conduct allegations involving Student Respondents. In cases involving Employee Respondents, the University uses one of two procedures, both of which are designed to comply with Title IX and other applicable law while also promoting procedural efficiency and, to the extent practicable, consistency with other University policies, practices and procedures.

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