Sexual Misconduct: Definitions

 

Definitions
Consent
Incapacitation

INTRODUCTION

It is the policy of Edinboro University that sexual misconduct of students and employees will not be tolerated. Edinboro University is committed to insuring that the learning environment for its students and the working environment for its employees are free of unlawful discrimination of any kind. The university affirms its commitment to human rights and dignity. Sexual misconduct violates basic human rights as well as state and federal laws, and is inconsistent with the principles and goals of an academic community. Edinboro University will make every effort to protect students, staff, and faculty from sexual misconduct. Retaliatory actions taken against persons filing sexual misconduct complaints will not be tolerated.

Sexual misconduct violates Title IX of the Education Amendments of 1972. This means that a formal complaint should be filed with the University Title IX Coordinator, Mr. Andrew Matt Room 213 Reeder Hall, 814-732-1564.

DEFINITIONS OF MISCONDUCT AND CONSENT:

Dating Violence – (as defined in the Violence Against Women Act (VAWA) amendments to the Clery Act) includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the Complainant; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) the length of the relationship; (ii) the type of relationship; and (iii) the frequency of interaction between the persons involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of Domestic Violence.

Dating Violence is categorized as Regulatory when it occurs in the United States, within an Education Program or Activity and when the Complainant is participating or seeking to participate in an Education Program or Activity at the time of the filing of the complaint. Otherwise, Dating Violence will be categorized as Non-Regulatory.

Domestic Violence – (as defined in the VAWA amendments to the Clery Act), includes any violence committed by a current or former spouse or intimate partner of the Complainant, by a person with whom the Complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the Complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the Complainant under Pennsylvania’s domestic or family violence laws or by any other person against an adult or youth Complainant who is protected from that person's acts under the domestic or family violence laws of Pennsylvania.

Domestic Violence is categorized as Regulatory when it occurs in the United States, within an Education Program or Activity and when the Complainant is participating or seeking to participate in an Education Program or Activity at the time of the filing of the complaint. Otherwise, Domestic Violence will be categorized as Non-Regulatory.

Retaliation – Any action, directly or through others, which is aimed to deter a reasonable person from reporting sexual misconduct or participating in an investigation or hearing or action that is done in response to such activities. This includes but is not limited to intimidation, threats, coercion, or discrimination against any individual (A) for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations; or (B) 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 under this Policy. A finding of retaliation under this Policy is not dependent on a finding that the underlying sexual misconduct occurred.

Sexual Assault – (As defined in the Clery Act) – This includes any sexual act directed against another person, without the Consent of the Complainant, including instances where the Complainant is incapable of giving Consent. Sexual Assault may be one of the following categories:

Sexual Penetration Without Consent - Any penetration of the mouth, sex organs, or anus of another person, however slight by an object or any part of the body, when Consent is not present. This includes performing oral sex on another person when Consent is not present.

Sexual Contact Without Consent - Knowingly touching or fondling a person’s genitals, breasts, buttocks, or anus, or knowingly touching a person with one’s own genitals or breasts, when Consent is not present. This includes contact done directly or indirectly through clothing, bodily fluids, or with an object. It also includes causing or inducing a person, when Consent is not present, to similarly touch or fondle oneself or someone else.

Statutory Sexual Assault – The age of consent for sexual activity in Pennsylvania is 16. Minors under the age of 13 cannot consent to sexual activity. Minors aged 13-15 years old cannot consent to sexual activity with anyone who is 4 or more years older than they are at the time of the activity. Minors aged 16 years of age or older can legally consent to sexual activity, as long as the other person does not have authority over them as defined in Pennsylvania’s institutional sexual assault statute3.

Sexual Exploitation – Engaging in sexual behaviors directed toward or involving another person or use of another person’s sexuality for purposes of sexual gratification, financial gain, personal gain or personal advantage when Consent is not present. This includes, but is not limited to, the following actions, including when they are done via electronic means, methods or devices: A. Sexual voyeurism or permitting others to witness or observe the sexual or intimate activity of another person without that person’s Consent;

  1. Indecent exposure or inducing others to expose private or intimate parts of the body when Consent is not present;
  2. Recording or distributing information, images or recordings of any person engaged in sexual or intimate activity in a private space without that person’s Consent;
  3. Prostituting another individual; or
  4. Knowingly exposing another individual to a sexually transmitted disease or virus without that individual’s knowledge; and
  5. Inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity.

Regulatory Prohibited Conduct – For purposes of this Policy, the term includes the defined violations of Regulatory Quid Pro Quo, Regulatory Hostile Environment Sexual Harassment, Regulatory Dating Violence, Regulatory Domestic Violence, Regulatory Sexual Assault and Regulatory Stalking.

Regulatory Quid Pro Quo Sexual Harassment - An Employee conditioning the provision of aid, benefit or service of the University on an individual’s participation in unwelcome sexual conduct.

Non-Regulatory Quid Pro Quo Sexual Harassment - An Official, Volunteer or Student conditioning the provision of aid, benefit or service of the University on the individual’s participation in unwelcome sexual conduct.

Regulatory Hostile Environment Sexual Harassment - Unwelcome conduct, on the basis of sex, that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s Education Program or Activity.

Non-Regulatory Hostile Environment Sexual Harassment - Unwelcome conduct, on the basis of sex, that a reasonable person would determine is sufficiently severe, pervasive, and objectively offensive that it unreasonably interferes with, limits, or deprives an individual from participating in or benefitting from any educational, employment, social or residential program in offered connection with the University.

Stalking – (as defined in the VAWA amendments to the Clery Act) means engaging in a course of conduct directed at a specific person that would cause a reasonable person to— A. fear for their safety or the safety of others; or

  1. suffer substantial emotional distress.

A course of conduct is when a person engages in two or more acts that include, but are not limited to, acts in which the person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveys, threatens, or communicates to or about a person in a prohibited way, or interferes with a person’s property.

Stalking includes the concept of cyberstalking, in which electronic media such as the Internet, social networks, blogs, cell phones, texts, email or other similar devices or forms of contact are used to pursue, harass, or to make unwelcome contact with another person in an unsolicited fashion.

Stalking is categorized as Regulatory when it occurs in the United States, within an Education Program or Activity and when the Complainant is participating or seeking to participate in an Education Program or Activity at the time of the filing of the complaint. Otherwise, Stalking will be categorized as Non-Regulatory.

Consent

Consent is an informed decision made freely and actively by all parties. Conduct will be considered, “without consent,” if there is no clear consent, verbal or nonverbal. Since sexual misconduct is defined as sexual activity that is undertaken without consent, each participant must obtain and give consent to each sexual act.

People with mental disabilities cannot give consent to sexual activity if they cannot understand the fact, nature, or extent of the sexual situation in which they find themselves. The mental disability of the survivor must be known, or reasonably knowable, to the non-disabled sexual partner, in order to constitute a violation.  

Points to Remember about Consent

Incapacitation

Incapacitated persons cannot give consent. One who is incapacitated as a result of alcohol or other drug consumption (voluntarily or involuntarily), or who is unconscious, unaware, or otherwise helpless, is incapable of giving consent.

One must not engage in sexual activity with another whom one knows, or reasonably knows, to be incapacitated. Physically incapacitated persons are considered incapable of giving effective consent when they lack the ability to appreciate the fact that the situation is sexual, and/or cannot rationally and reasonably understand the nature of the situation.

Examples of incapacitation include:

Incapacitation can also result from: