What is Reportable?
119 at Mason Korea
What Does Sexual Misconduct Include?
Sexual misconduct is a range of behaviors, including but not limited to:
- Sexual assault
- Sexual exploitation
- Intimate partner violence
- Sexual or gender-based harassment
Sexual assault consists of (1) sexual contact and/or (2) sexual intercourse that occurs without (3) affirmative consent.
- Any intentional sexual touching
- However slight
- With any object or body part (as described below)
- Performed by a person upon another person
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; and (b) making another touch you or themselves with or on any of these body parts.
- Any penetration, however slight
- Penetration with an object or body part
- Penetration performed by a person upon another person
Sexual Intercourse includes (a) vaginal penetration by a penis, object, tongue, or finger; (b) anal penetration by a penis, object, tongue, or finger; and (c) any contact, no matter how slight, between the mouth of one person and the genitalia of another person.
Informed (knowing) Voluntary (freely given) Active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity Affirmative consent cannot be obtained by force; force includes (a) the use of physical violence, (b) threats, (c) intimidation, and/or (d) coercion. a) 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, choking, and brandishing or using any weapon. b) Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples include threats to harm a person physically, to reveal private information to harm a person’s reputation, or to cause a person academic or economic harm. c) Intimidation is an implied threat that menaces or causes reasonable fear in another person. A person’s size alone does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g., blocking access to an exit). d) Coercion is the use of an unreasonable amount of pressure to gain sexual access. Coercion is more than an effort to persuade, entice, or attract another person to have sex. When a person makes clear a decision not to participate in a particular form of sexual contact or sexual intercourse, a decision to stop, or a decision not to go beyond a certain sexual interaction, continued pressure can be coercive. In evaluating whether coercion was used, the university will consider: (i) the frequency of the application of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the duration of the pressure. Affirmative 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. Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity. A person who is incapacitated is unable, temporarily or permanently, to give affirmative 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. The university offers the following guidance on affirmative consent and assessing incapacitation: A person who wants to engage in a specific sexual activity is responsible for obtaining affirmative consent for that activity. Lack of protest does not constitute affirmative consent. Lack of resistance does not constitute affirmative consent. Silence and/or passivity also do not constitute affirmative consent. Relying solely on non-verbal communication before or during sexual activity can lead to misunderstanding and may result in a violation of this policy. It is important not to make assumptions about whether a potential partner is consenting. To avoid confusion or ambiguity, participants are encouraged to talk with one another before engaging in sexual activity. If confusion or ambiguity arises during sexual activity, participants are encouraged to stop and clarify a mutual willingness to continue that activity. Affirmative consent to one form of sexual activity does not, by itself, constitute affirmative consent to another form of sexual activity. For example, one should not presume that affirmative consent to oral-genital contact constitutes affirmative consent to vaginal or anal penetration. Affirmative consent to sexual activity on a prior occasion does not, by itself, constitute affirmative consent to future sexual activity. In cases of prior 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 affirmative consent. Affirmative consent may be withdrawn at any time. An individual who seeks to withdraw affirmative consent must communicate, through clear words or actions, a decision to cease the sexual activity. Once affirmative consent is withdrawn, the sexual activity must cease immediately. In evaluating affirmative 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,” affirmative consent was absent and the conduct is likely a violation of this policy. Incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily incapacitated merely as a result of drinking or using drugs. The impact of alcohol and other drugs varies from person to person. People are not expected to be medical experts in assessing incapacitation. 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 include slurred or incomprehensible speech, unsteady gait, 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?” Be cautious before engaging in sexual contact or sexual intercourse when either party has been drinking alcohol or using other drugs. The introduction of alcohol or other drugs may create ambiguity for either party as to whether affirmative consent has been sought or given. If there is doubt about either party’s level of intoxication, the safe thing to do is to forego all sexual activity. Being impaired by alcohol or other drugs is no defense to any violation of this policy.
Sexual Exploitation is a form of Sexual or Gender-Based Harassment that involves purposely or knowingly doing one or more of the following without Affirmative Consent :
- taking sexual advantage of another person;
- taking advantage of another’s sexuality; or
- exceeding the boundaries of consensual Sexual Contact without the knowledge of the other individual.
Sexual Exploitation may be committed for any purpose, including sexual arousal or gratification, financial gain, or other personal benefit.
Examples include, but are not limited to:
- Causing the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give Affirmative Consent to sexual activity;
- Allowing third parties to observe private sexual activity from a hidden location (e.g., closet) or through electronic means (e.g., Skype or livestreaming of images) without consent of all parties;
- 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 or photographing private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent;
- Disseminating or posting images of private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent;
- Threatening to disclose an individual’s Sexual Orientation, Gender Identity, or Gender Expression;
- Prostituting another person;
- Exposing another person to a sexually transmitted infection or virus without the other’s knowledge; or
- Knowingly failing to use contraception, or deliberately removing or compromising contraception (Stealthing) without the other party’s knowledge
Interpersonal Violence (commonly referred to as intimate partner violence, dating violence, domestic violence, and relationship violence), can encompass a broad range of abusive behavior committed by a person who is or has been:
- In a romantic or intimate relationship with the Complainant (of the same or different sex);
- The Complainant’s spouse or partner (of the same or different sex);
- The Complainant’s family member; or
- The Complainant’s cohabitant or household member within the past 12 months, including a roommate.
Whether there was such a relationship will be gauged by its length, type, and frequency of interaction. Reports of Interpersonal Violence that do not involve one of the specified relationships or do not involve an individual’s Protected Status (Protected Statuses are listed in University Policy 1201, Non-Discrimination) will be resolved under the Code of Student Conduct or, for employees, applicable policies.
Interpersonal Violence includes physical violence, emotional abuse, sexual assault, economic control and neglect that a reasonable person in similar circumstances and with similar identities would find intimating, frightening, terrorizing, or threatening. Such behaviors may include threats of violence to one’s self, one’s family member, or one’s pet.
Stalking occurs when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear bodily injury or to experience 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. Substantial emotional distress means significant mental suffering or anguish.
Sexual or Gender-Based Harassment
Sexual or Gender-Based Harassment includes:
- Unwelcome sexual advances, requests for sexual favors and other verbal, physical, or electronic conduct of a sexual nature that creates a hostile, intimidating, or abusive environment;
- Verbal, physical, or electronic conduct based on Sex, Gender, Sexual Orientation, or sex-stereotyping that creates a hostile, intimidating, or abusive environment, even if those acts do not involve conduct of a sexual nature, or
- Harassment for 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 individuals involved.
a) Harassment is a type of Discrimination that occurs when verbal, physical, electronic, or other conduct based on an individual’s Protected Status (Protected Statuses are listed in University Policy 1201, Non-Discrimination) interferes with that individual’s (a) educational environment (e.g., admission, academic standing, grades, assignment); (b) work environment (e.g., hiring, advancement, assignment); (c) participation in a University program or activity (e.g., campus housing); or (d) receipt of legitimately-requested services (e.g., disability or religious accommodations), thereby creating Hostile Environment Harassment or Quid Pro Quo Harassment, as defined below.
i. Hostile Environment Harassment
Unwelcome conduct based on Protected Status that is so severe, persistent, or pervasive that it alters the conditions of education, employment, or participation in a University program or activity, thereby creating an environment that a reasonable person in similar circumstances and with similar identities would find hostile, intimidating, or abusive. An isolated incident, unless sufficiently severe, does not amount to Hostile Environment Harassment.
ii. Quid Pro Quo Harassment
Unwelcome conduct based on Protected Status where submission to or rejection of such conduct is used, explicitly or implicitly, as the basis for decisions affecting an individual’s education, employment, or participation in a University program or activity.
b) Additional Guidance about Discrimination and Harassment
Consistent with the definitions provided above, conduct that constitutes Discrimination and Harassment:
- May be blatant and involve an overt action, threat, or reprisal; or may be subtle and indirect, with a coercive aspect that is unstated but implied.
- May or may not include intent to harm.
- May not always be directed at a specific target.
- May be committed by anyone, regardless of Protected Status, position, or authority. While there may be a power differential between the Complainant and the Respondent – perhaps due to differences in age or educational, employment, or social status – Discrimination and Harassment can occur in any context.
- May be committed by a stranger, an acquaintance, or someone with whom the Complainant has a current or previous relationship, including a romantic or sexual relationship.
- May be committed by or against an individual or by or against an organization or group.
- May occur in the classroom, in the workplace, in residential settings, or in any other setting.
- May be a pattern of behavior or, if sufficiently severe, a one-time event.
- May be committed in the presence of others, when the Complainant and Respondent are alone, or through remote communications, including email, text messages, or social media.
- May take the form of threats, assault, property damage, economic abuse, and violence or threats of violence.
- May include harassing or retaliatory behavior directed to a sexual or romantic partner, family member, friend, or pet of the Complainant.
Retaliation means any adverse action taken against a person for making a good-faith report of prohibited conduct or participating in any proceeding under this policy. Retaliation includes threatening, intimidating, harassing, coercing or any other conduct that would discourage a reasonable person from engaging in activity protected under this policy. Retaliation may be present even where there is a finding of “no responsibility” on the allegations of prohibited conduct. Retaliation does not include good-faith actions lawfully pursued in response to a report of prohibited conduct.
Complicity is any act taken with the purpose of aiding, facilitating, promoting or encouraging the commission of an act of prohibited conduct by another person.