Sexual misconduct offenses include, but are not limited to:
- Sexual Harassment
- Non-Consensual Sexual Intercourse (or attempts to commit same)
- Non-Consensual Sexual Contact (or attempts to commit same)
- Sexual Exploitation
18.1. Sexual Harassment
Gender-based verbal or physical conduct that is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, denies or limits someone’s educational access, benefits, or opportunities and is based off the creation of a hostile environment, power differentials (quid pro quo), or retaliation.
Three Types of Sexual Harassment
18.1.1. Hostile Environment includes any situation in which there is harassing conduct that is sufficiently severe, 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.
Consideration is given to the following:
- the frequency of the conduct;
- the nature and severity of the conduct;
- whether the conduct was physically threatening;
- whether the conduct was humiliating;
- the effect of the conduct on the alleged victim’s mental or emotional state;
- whether the conduct was directed at more than one person;
- whether the conduct arose in the context of other discriminatory conduct;
- whether the conduct unreasonably interfered with the alleged victim’s educational or work performance; or
- whether the statement is a mere utterance of an epithet which engenders offense in an employee or student, or offends by mere discourtesy or rudeness;
- whether the speech or conduct deserves the protections of academic freedom.
18.1.2. 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.
18.1.3. 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.
18.2. Non-Consensual Sexual Intercourse (or attempts to commit same) is any sexual intercourse (anal, oral, or vaginal), however slight, with any object, by a man or a woman upon a man or a woman, without consent and/or by force*. (Examples include, 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.)
18.3. Non-Consensual Sexual Contact is any intentional sexual touching, however slight, with any object, by a man or a woman upon a man or a woman, without consent and/or by force*. (Examples include, intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these parts, or making another touch you or themselves with any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breast, buttocks, groin, genitals, mouth or other orifice.)
18.4. Sexual Exploitation
Occurs when a person 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 person;
- 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 person;
- 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.
18.5.1 Consent is knowing, voluntary and clear permission by word or action, to engage in mutually agreed upon sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct.
18.5.2 A person cannot consent if he or she is unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy. It is not an excuse that the individual respondent of sexual misconduct was intoxicated and, therefore, did not realize the incapacity of the other.
18.5.3 Incapacitation is defined as 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, involuntary physical restraint, and/or from the taking of incapacitating drugs.
18.5.4 Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous dating relationship is not sufficient to constitute consent. The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. Silence or the absence of resistance alone is not consent.
18.5.5 A person can withdraw consent at any time during sexual activity by expressing in words or actions that he or she no longer wants the act to continue, and, if that happens, the other person must stop immediately.
18.5.6 A minor below the age of consent according to state law cannot consent to sexual activity. This means that sexual contact by an adult with a person below the age of consent is a crime as well as a violation of this policy, even if the minor appeared to have wanted to engage in the act.
18.6.1 Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implies 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”).
18.6.2 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 he or she does not want sex, wants to stop, or does not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. (Note: There is not 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 of non-consensual, but non-consensual activity is not by definition forced.)
18.6.3. In order to give consent, one must be of legal age.
18.6.4. Sexual activity with someone you 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), you are in violation of this policy.
- Incapacitation is a state where one cannot make a rational, reasonable decision. When incapacitated, one lacks the ability to know or understand critical elements of a decision about sexual interaction --who, what, when, where, why, or how.
- This policy also covers sexual activity with someone whose incapacity results from mental disability, sleep, shock, involuntary physical restraint, or from the taking of a so-called “date-rape” drug. Possession, use and/or distribution of any of these substances, including Rohypnol, Ketamine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another person for the purpose of inducing incapacity is a violation of this policy. More information on these drugs can be found at www.911rape.org/
- Use of alcohol or other drugs will never function to excuse behavior that violates this policy.
- The sexual orientation and/or gender identity of individuals engaging in sexual activity is not relevant to allegations under this policy. For reference to the pertinent state statutes on sex offenses, please seehttps://www.revisor.mn.gov/statutes/?id=609 .
Stalking is (1) a course or pattern of unwelcome and unwanted conduct (2) that a person knows or has reason to know (3) would cause the victim under the circumstances to feel frightened, threatened, oppressed or intimidated or to suffer substantial emotional distress.
Stalking is prohibited by Minnesota law. See Minnesota Statutes Section 609.749. Stalking behavior includes, but is not limited to:
- Repeated, unwanted and intrusive communications by phone, mail, text message, email and/or other electronic communications, including social media.
- Repeatedly leaving or sending the victim unwanted items, presents or flowers.
- Following or lying in wait for the victim at places such as home, school, work or recreational facilities.
- Making direct or indirect threats to harm the victim or the victim’s children, relatives, friends or pets.
- Damaging or threatening to damage the victim’s property.
- Posting information or spreading rumors about the victim on the internet, in a public place, or by word of mouth.
- Unreasonably obtaining personal information about the victim by accessing public records, using internet search services, hiring private investigators, going through the victim’s garbage, following the victim, or contacting the victim’s friends, family, work or neighbors.
18.6. Sanction Statement for Students
Note: Both the Complainant and Respondent will be made aware of the hearing outcome and any imposed sanctions.
18.6.1. Any person found responsible for violating the policy on Non-Consensual Sexual Contact (where no intercourse has occurred) will likely receive a sanction ranging from warning to dismissal, depending on the severity of the incident, and taking into account any previous campus conduct code violations.*
18.6.2. Any person found responsible for violating the policy on Non-Consensual Sexual Intercourse will likely face a recommended sanction of suspension or dismissal.*
18.6.3. Any person found responsible for violating the policy on sexual exploitation, sexual harassment, retaliation or stalking will likely receive a recommended sanction ranging from warning to dismissal, depending on the severity of the incident, and taking into account any previous campus conduct code violations.*
*The Judicial Officer or Judicial Body (Title IX Investigators and/or Title IX Coordinator) reserves the right to broaden or lessen any range of recommended sanctions in the complaint of serious mitigating circumstances or egregiously offensive behavior.