How is sexual misconduct defined?

Definitions

Sexual misconduct is a broad term that encompasses several forms of prohibited conduct. Sexual misconduct includes sexual assault, sexual exploitation, sexual harassment, dating violence, domestic violence, and stalking. Sexual misconduct is a form of discrimination under federal civil rights laws. Most of its forms also constitute crimes in Tennessee and throughout the United States.

Sexual misconduct offenses include, but are not limited to, the following:

Non-consensual sexual contact is:

  • any intentional sexual touching,

  • however slight,

  • with any object,

  • by any person upon any person,

  • that is without consent and/or by force.

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 you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth, or other orifice.

Non-consensual sexual intercourse is:

  • any sexual intercourse,

  • however slight,

  • with any object,

  • by any person upon any person,

  • that is without consent and/or by force.

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.

Sexual exploitation occurs when a student takes non-consensual or abusive sexual advantage of another for their  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:

  • causing or attempting to cause the incapacitation of another person in order to gain a sexual advantage over such other person;

  • invasion of sexual privacy;

  • prostituting another student;

  • non-consensual video or audio-recording 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 student;

  • 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.

Sexual harassment is:

  • unwelcome, gender-based verbal or physical conduct

  • that is so sufficiently severe, persistent, or pervasive

  • that it unreasonably interferes with, denies, or limits someone's ability to

  • participate in or benefit from the college's educational program and/or activities,

  • and is based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation.

Examples include (but are not limited to) attempting to coerce an unwilling person into a sexual relationship; repeatedly subjecting a person to egregious, unwelcome sexual attention; punishing a refusal to comply with a sexually based request; conditioning a benefit on submitting to sexual advances; stalking; gender-based bullying; sexual violence; and intimate partner violence. "Stalking" (see below) falls under this last category.

Domestic violence includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the survivor, by a person with whom the survivor shares a child in common, by a person who is cohabiting with or has cohabited with the survivor as a spouse or intimate partner, by a person similarly situated to a spouse of the survivor under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth survivor who is protected from that person's acts under the domestic or family violence laws of the jurisdiction.  

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 survivor; and

  • where the existence of such a relationship shall be determined based on a consideration of the following factors:

    • The length of the relationship.

    • The type of relationship.

    • The frequency of interaction between the persons involved in the relationship.

Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

  • fear for their safety or the safety of others; or

  • suffer substantial emotional distress.


Other Related Definitions

Reporter:The reporter is generally the person filing the report but can also refer to the person who was named as the victim or survivor in the reporting process.

Respondent: A respondent is the student who is responding to an allegation of misconduct.

Sexual Misconduct Grievance: A sexual misconduct grievance is a report made against a student, indicating a violation of the University’s sexual misconduct policy. A grievance is usually made by an individual affected by the specific behavior.

Retaliation against any person or another student for any reason is a violation considered under the University’s “failure to comply” policy. In cases of sexual misconduct, “retaliation” includes intimidation, threats, harassment, and other adverse action threatened or taken against any reporter or other persons participating in the conduct process. Retaliation should be reported promptly to the Dean of Students, or, in cases of sexual misconduct, to the Process Facilitator or the Title IX Coordinator.

Specifically included are individuals who have filed a report of sexual misconduct, been the subject of a report sexual misconduct, or assisted or participated in any way, as reporter, respondent, witness or otherwise, in the investigation or resolution of an alleged violation of this policy. Action is generally deemed retaliatory if it would deter a reasonable person in the same circumstances from assisting or participating in any way, as reporter, respondent, witness or otherwise, in the investigation or resolution of a good faith allegation of an incident of sexual misconduct or other prohibited conduct under this policy. Retaliation may be present even where there is ultimately a finding of “no responsibility” on the underlying sexual misconduct charges. Retaliation may be committed by the respondent or the reporter or by any other individual or group. Such conduct violations may result in disciplinary action.

Complicity means any act that knowingly aids, facilitates, promotes or encourages the commission of an incident of prohibited conduct, as established by the EQB Guide, by another person.

Consent is clear, knowing, and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity.

  • Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.

  • Previous relationships or prior consent cannot imply consent to future sexual acts.

  • In order to give effective consent, one must be of legal age.

  • Consent can also be withdrawn at any time. It is the responsibility of the person withdrawing consent to communicate, through clear words or actions, that the person no longer wishes to engage in the sexual activity.

The clearest consent is affirmative and active. It is the responsibility of the person who wants to engage in a specific sexual activity to make sure that they haveobtained effective consent before initiating that activity. Lack of protest or resistance does not constitute effective consent. Silence or passivity does not constitute effective consent. Relying solely on nonverbal communication during sexual activity can lead to misunderstanding and may result in a violation of this policy. The University urges students to talk with one another before engaging in sexual activity to ensure they both wish to engage in the same activity.

Consent cannot be gained by force. Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that overcome resistance or produce consent. 

  • Physical violence includes, but is not limited to, hitting, pushing, kicking, and/or restraining. Physical violence means that a person is exerting control over another person through physical force.

  • Threats include any words or actions that would compel a reasonable person to engage in sexual activity that they would not ordinarily have engaged in. Example: “Have sex with me or I will hurt you.”  Response: Silence while thinking, "I just want this over."

  • Intimidation is an implied threat that menaces or causes reasonable fear in another individual.

  • 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 they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. In evaluating coercion, the University will consider:

    • frequency of the application of pressure;

    • intensity of the pressure;

    • isolation of the person being pressured; and

    • duration of the pressure.

NOTE: There is no requirement that a party resists the sexual advance or request, but resistance is a clear demonstration of non-consent. The absence of resistance does not demonstrate the absence of force. All forced sexual activity is by definition non-consensual, but not all non-consensual sexual activity is by definition "forced."

Incapacitation is a state where someone cannot make 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). Consumption of alcohol or drugs alone is insufficient to establish incapacitation. The question of incapacitation is determined on a case-by-case basis. It will include an analysis of whether the responding party knew, or should have known, that the reporting party was incapacitated, or if the responding party played a role in creating the circumstance of incapacity.

Sexual activity with someone whom one should know to be––or based on the circumstances should reasonably have known to be––mentally or physically incapacitated (by alcohol or other drug use leading to unconsciousness or blackout) constitutes a violation of this policy.

This policy also covers a person whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of rape drugs if the responding party knew, or should have known, of the incapacitating condition or was the cause thereof. Possession, use and/or distribution of any of these substances, including but not limited to Rohypnol, Ketamine, GHB, Burundanga, etc., is prohibited, and administering one of these drugs to another student is a violation of this policy.

The University urges students to exercise extreme caution before engaging in sexual activity when either or both parties have been consuming alcohol or using other drugs. The use of alcohol or other drugs can lower inhibitions and create confusion as to whether effective consent is present. If there is any doubt about the level or extent of one’s own, or the other party’s, impairment, the safest course of action is to forgo or cease any sexual activity. Being impaired by alcohol or other drugs is no defense under this policy.

Rules to Remember:

  • The person desiring to initiate sexual activity is responsible for obtaining effectiveconsent.

  • In order to obtain consent, permission must be given prior to or simultaneously with the sexual activity in question.

  • Effective consent should never be assumed. Lack of protest or resistance does not constitute effective consent. “No” means no, but nothing (silence, passivity, inertia) also means no. A verbal “No,” even if it sounds indecisive or insincere, should always be treated as a denial of effective consent.

  • If there is confusion as to whether effective consent is present (e.g., words, gestures, or other indications of hesitation or reluctance), the parties should stop the sexual activity immediately and verbally communicate with each other to resolve the confusion.

  • A prior sexual relationship or prior sexual activity does not constitute consent to subsequent sexual activity. Past consent does not imply future consent.

  • Although effective consent is generally evaluated on the basis of an objective standard (“What should a reasonable person have concluded?”), it may be evaluated on the basis of a subjective standard (“What did this specific person conclude?”) in the context of certain long-term relationships where the evidence shows that the parties have an established pattern of communicating consent that deviates from the objective standard.