Definitions of Sexual Misconduct

Sexual misconduct is a broad term encompassing any non-consensual behavior of a sexual nature that is committed by force or intimidation, or that is otherwise unwelcome. The term includes, but is not limited to, sexual assault, sexual exploitation, sexual intimidation, and sexual harassment as those behaviors are described later in this section.

Sexual misconduct may vary in its severity and consists of a range of behavior or attempted behavior. It can occur between strangers or acquaintances, including people involved in an intimate or sexual relationship. Sexual misconduct can occur between members of the same or different sex and can also occur while individuals are fully clothed.

Sexual misconduct encompasses behaviors such as rape, sexual assault (which includes any kind of nonconsensual sexual contact), sexual harassment, intimate partner violence, stalking, and any other conduct of a sexual nature that is nonconsensual, or has the purpose or effect of threatening, intimidating, or coercing a person or persons. When there is a lack of mutual consent about sexual activity, or there is ambiguity about whether consent has been given, one can be charged with, and found guilty of, committing a sexual assault or another form of sexual misconduct.

Much sexual misconduct includes nonconsensual sexual contact, but this is not a necessary component. Threatening speech, which is sufficiently serious to constitute sexual harassment, for example, will constitute sexual misconduct. Photographs, video, or other visual or auditory records of sexual activity made without explicit consent constitute sexual misconduct, even if the activity documented was consensual. Similarly, sharing such recordings without explicit consent is a form of sexual misconduct. For example, forwarding a harassing electronic communication may also constitute an offense.

 Sexual misconduct offenses that are prohibited are:

  •     Non-consensual sexual intercourse (or attempts to commit same);
  •     Non-consensual sexual contact (or attempts to commit same);
  •     Sexual exploitation;
  •     Sexual harassment.

 

Non-Consensual Sexual Intercourse (Or Attempts to Commit Same)

Non-consensual sexual intercourse (or attempts to commit same) is any sexual intercourse, however slight, by any person upon another without consent and/or by force.  It includes oral, anal and vaginal penetration, to any degree, with any object. It is referred to as “sexual assault” in this policy.

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.

Non-Consensual Sexual Contact (Or Attempts To Commit Same)

Non-consensual sexual contact (or attempts to commit same), which is any intentional sexual touching with any object, by any person upon another, without consent and/or by force.

Sexual touching is contact of a sexual nature, however slight.

Sexual contact includes intentional contact with the breasts, buttocks, groin, or genitals, or touching another with any of these body parts, or making another touch the offender or themselves with or on any of these body parts.  Additionally, sexual contact includes any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.

Sexual Exploitation

Sexual exploitation occurs when an individual 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 the other sexual misconduct offenses.

Examples of sexual exploitation include, but are not limited to the following behaviors:

  • Sexual exhibitionism by exposing one’s genitals in non-consensual circumstances or inducing another to expose their genitals;
  • Sex-based cyber-harassment;
  • Prostitution or the solicitation of a prostitute;
  • Peeping or other voyeurism; voyeurism involves both secretive observation of another's sexual activity or secretive observation of another for personal sexual pleasure;
  • Going beyond the boundaries of consent, e.g., by allowing others to view consensual sex or the non-consensual video or audiotaping of sexual activity; or the electronic recording, photographing, or transmitting sexual or intimate utterances, sounds, or images without knowledge and consent of all parties;
  • Knowingly transmitting a sexually transmitted infection/disease or HIV to another;
  • Invasion of sexual privacy; Distribution or publication of sexual or intimate information about another person without consent;
  • Sexually-based stalking and/or bullying may also be forms of sexual exploitation; Stalking may take many forms including persistent calling, texting, or Internet posting, as well as physical stalking, when the context of the communication or the nature of the stalking is of a sexual or intimate nature;
  • Sexual intimidation - Sexual intimidation is an implied or actual threat to commit a sex act against another person, or behavior used to coerce participation in a sex act.

 

Sexual Harassment

Sexual harassment is unwelcome conduct of a sexual nature.  Sexual harassment includes, but is not limited to, behavior that is sufficiently severe, persistent or pervasive that it unreasonably interferes with, denies or limits an individual’s ability to participate in or benefit from the University’s work environment, educational programs and/or activities, and is based on power differentials (quid pro quo)[1], the creation of a hostile environment[2], or retaliation.[3]

Whether particular physical, visual, or verbal conduct constitutes harassment in violation of this policy will depend upon all of the facts and circumstances involved, the context in which the conduct occurred, and the frequency, severity and pattern of the conduct.

Not all workplace or educational conduct that may be described as “harassment” affects the terms, conditions or privileges of employment or education.  For example, a mere utterance of an ethnic, gender-based or racial epithet which creates offensive feelings in an employee or student would not normally affect the terms and conditions of their employment or education.

Incidents of sexual harassment can occur in a variety of contexts. For example,

  • It may be conduct toward an individual of the opposite sex or the same sex;
  • It may occur between peers or between individuals in a hierarchical relationship;
  • It may be aimed at coercing an individual to participate in an unwanted sexual relationship, or it may have the effect of causing an individual to change behavior or work performance; or
  • It may consist of repeated actions or may even arise from a single incident if sufficiently egregious.

 

Types of behavior that may be considered as evidence of sexual harassment include, but are not limited to:

  • an attempt to coerce an unwilling person into a sexual relationship;
  • to repeatedly subject a person to egregious, unwelcome sexual attention;
  • to punish a refusal to comply with a sexual based request;
  • to condition a benefit on submitting to sexual advances;
  • sexual violence;
  • intimate partner violence (including dating or domestic violence);
  • stalking;
  • gender-based bullying.

Some examples of sexual harassment include the following:

  • 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 he/she 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.  The professor 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.
  • Male students take to calling a particular brunette student “Monica” because of her resemblance to Monica Lewinski.  Soon, everyone adopts this nickname for her, and she is the target of relentless remarks about cigars, the president, “sexual relations”, and Weight Watchers.
  • A student grabs another student by the hair, then grabs her breast and puts his mouth on it.

[1] Quid pro quo sexual harassment exists when there are: a) unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; and b) submission to or rejection of such conduct results in adverse educational or employment action.

[2] Hostile environment sexual harassment includes any situation in which there is harassing conduct that is sufficiently severe or pervasive and objectively offensive that it alters the conditions of employment or limits, interferes with or denies educational benefits or opportunities, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint.

[3] 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.