F. Non-Title IX Sexual or Gender-based Misconduct
This policy applies to complaints of sexual harassment and other sexual or gender-based misconduct that does not meet the scope or jurisdiction as outlined in the Department of Education’s Title IX Regulations, published May 19, 2020 which applies a narrow category of cases to Title IX.
If Title IX is applicable, charges and procedures under this section of the student code of conduct will be addressed through the Title IX policy and Procedures.
Relevant Definitions for Sexual and Gender-based Misconduct
Consent - The University defines consent as “an informed agreement between participants to willingly and actively participate in sexual activity established through continuous communication using mutually understandable words or actions that create clear permission.”
Consent as defined above may be also considered in light of the following:
- It is the responsibility of all parties to obtain consent prior to sexual activity and to ensure consent is conveyed throughout the entirety of the experience.
- The use of force or coercion, whether actual or inferred, immediate or future, physical harm, threat, or intimidation may invalidate consent.
- Silence, or a lack of physical or other resistance on the part of a participant, does not itself constitute consent.
- If any participant communicates a desire to end a sexual activity or withdraws consent, it should be stopped immediately.
- The use of alcohol or other drugs by any participant does not change the need to obtain consent for sexual activity.
- Incapacitation can be a result of a mental or physical condition or state (such as being asleep), a voluntary or involuntary consumption of alcohol, or other drugs.
- Consent cannot be given by someone who is under the age of 18 years of age unless where allowed by law (Ore. Rev. Stat. § 163.345 (2018).
- Consent cannot be given by someone who is known to be or should have known to be mentally or physically incapacitated.
- Consent is required regardless of current or previous dating relationship or history of sexual contact between participants.
Coercion - 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 engage in sexual behavior. When a person makes a clear 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 may consider factors including:
- the frequency of the application of the pressure;
- the intensity of the pressure;
- the degree of isolation of the person being pressured; and
- the duration of the pressure.
Force - Force includes the use of (a) physical violence, (b) threats, (c) intimidation, or (d) coercion.
Incapacitation - occurs when an individual lacks the ability to knowingly choose to participate in sexual or other conduct. A person who is incapacitated cannot make a rational, reasonable decision because the person lacks the ability to understand their decision.
- Incapacitation may be associated with a person lacking consciousness; being asleep; being involuntarily restrained; or having a disability or condition that impedes consent.
- Under Oregon State law, a person under the age of 18 lacks the capacity to give consent.
- Whether misconduct with an incapacitated person constitutes misconduct depends on whether the respondent knew or should have known of the complainant’s incapacitation, based on objectively and reasonably apparent indications when viewed from the perspective of a sober, reasonable person in the respondent’s position.
- Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
See the following for additional information on how drugs and alcohol can affect consent and which may be considered in analyzing incapacitation.
In evaluating whether a person is incapacitated due to the consumption of alcohol, drugs or intoxicants:
- Whether the individual understood the “who, what, when, where, why or how” of the sexual conduct; and
- How the individual was physically affected by the consumption of alcohol or drugs, which may include, but is not limited to, warning signs such as having slurred or incomprehensible speech, vomiting, unsteady gait, imbalance, bloodshot eyes, combativeness, emotional volatility, or notable change in personality.
How drugs and alcohol affect consent may be considered:
- The use of alcohol or other drugs is never an excuse for committing misconduct and never diminishes anyone’s responsibility to obtain informed and freely given consent.
- The use of alcohol or other drugs never makes someone at fault for experiencing gender-based misconduct.
- The impact of alcohol and other drugs varies from person to person and there is no specific amount of alcohol or drugs consumed that leads to incapacitation.
- Another effect of alcohol consumption can be memory impairment or forgetting entire or partial events (sometimes referred to as “blackout” or “brown-out”). A person may experience this symptom while appearing to be functioning “normally,” including communicating through actions or words that seem to express an interest in engaging in conduct.
- Whether misconduct with a person who is incapacitated constitutes misconduct may depend on the presence or absence of the observable factors that would indicate to another reasonable, sober person that a person is incapacitated, as described above.
- The use of alcohol or drugs can create an atmosphere of confusion and can lower inhibitions. All students should be aware of, and carefully consider, the potential consequences of the use of alcohol or drugs, and of the potential consequences of engaging in sexual activity when anyone involved in the activity may have been affected by alcohol or drugs.
- Every individual is responsible for ensuring there is consent as defined above prior to engaging in conduct regardless of whether their judgment may be impaired by the use of alcohol or drugs.
Physical violence - means that a person is exerting control over another person through the use of physical force without consent. Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking/strangulation, and brandishing or using any weapon.
Threats - words or actions that would compel a reasonable person in similar circumstances 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.
Intimidation - 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).
Unwelcome - subjective and determined by the complainant (except when the complainant is below the age of consent).
- Non-Title IX Sexual or Gender-Based Harassment
Scope: Although Title IX regulations require that the alleged conduct meet a certain threshold before it is considered Title IX sexual harassment, the University also prohibits unwelcome conduct of a sexual nature or based on sex (1) that may not rise to the level of Title IX sexual harassment (as defined in Title IX policy) (2) that did not occur in the University’s education program or activity, but may nevertheless cause or threaten to cause an unacceptable disruption at the University or interfere with an individual’s right to a non-discriminatory educational or work environment, or (3) occurs outside of the United States.
Definition: Non-Title IX Sexual or Gender-Based Harassment is unwelcome conduct of a sexual nature or unwelcome conduct based on sex or gender, including sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal, nonverbal, or physical conduct or communication of a sexual nature when:
a. Submission to or rejection of that conduct or communication is made a term or condition, either explicitly or implicitly, of an individual’s educational experience or employment; [i.e. quid pro quo];
b. Submission to or rejection of that conduct or communication is used as the basis for an educational program decision or employment decision affecting that individual; [i.e. quid pro quo]; or
c. Such conduct is sufficiently severe or pervasive that it has the effect, intended or unintended, of unreasonably interfering with an individual’s education or by creating an intimidating, hostile, or offensive educational environment.
Severity, pervasiveness, and offensiveness are evaluated objectively based on the totality of the circumstances by a reasonable person in the same or similar circumstances.
In analyzing the conduct, the University may consider:
- The fact that an individual may have accepted the conduct does not mean that they welcomed it or actively participated in the conduct.
- That a person welcomes some conduct does not necessarily mean that person welcomes other conduct.
- Similarly, that a person willingly participates in conduct on one occasion does not necessarily mean that the same conduct is welcome on a subsequent occasion.
Non-Title IX sexual or gender-based harassment does not include conduct covered under the definition of Title IX sexual harassment.
- Non-Title IX Sexual Assault - Any sexual act directed against another person without the consent of the person, including instances in which the person is incapable of giving consent:
- Nonconsensual Penetration: Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person or object, without consent (as defined in this policy).
- Nonconsensual Sexual Contact: The touching of the private body parts of another person (buttocks, groin, breasts, mouth), for the purpose of sexual gratification, without consent (as defined in this policy).
- Dating and Relationship Violence - Violence committed by a person, who is in or has been in a social relationship of a romantic, sexual, or intimate nature with the complainant. The existence of such a relationship will be determined based on a consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
- Domestic Violence - Violence, on the basis of sex or gender, 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, or by a person who is cohabitating with, or has cohabitated with the complainant as a spouse or intimate partner, or by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of Oregon, 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 law of Oregon.
- Sex-Based Stalking - Engaging in a course of conduct on the basis of sex directed at a specific person, that would cause a reasonable person to fear for the person’s safety, or the safety of others, or suffer substantial emotional distress. This policy covers instances of stalking based on sex, including stalking that occurs online or through messaging platforms, commonly known as cyber-stalking, when it occurs in the school’s education program or activity.This incorporates the definition of “course of conduct” from above.
- Sexual Exploitation - Sexual exploitation occurs when a person takes sexual advantage of another for their own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, without that person’s consent. Examples of sexual exploitation include, but are not limited to:
- Prostituting another person;
- Non-consensual video- or audio‐recording or photographing of sexual activity, sexually explicit content, or intimate body parts, including sharing or posting such materials without the consent of those depicted;
- Engaging in voyeurism (e.g. viewing or permitting someone else to view/hear another’s sexual activity or intimate body parts, in a place where that person would have a reasonable expectation of privacy, without consent);
- Intentional removal or attempted removal of clothing covering an individual’s intimate body parts or exposing an individual’s undergarments, or that is otherwise sexual in nature, without consent;
- Intentional and repeated invasion of sexual privacy (e.g., walking into another person’s room or private space);
- Indecent exposure (such as exposing one’s genitals or breasts to others without consent);
- Ejaculating on another person without consent;
- Knowingly transmitting a sexually transmitted infection (“STI”) or Human Immunodeficiency Virus (“HIV”) without prior knowledge and consent of the person being exposed;
- Distributing or displaying pornography to another without that individual’s consent;
- Possession of child pornography.
Sexual exploitation does not include conduct covered under the definition of Title IX sexual harassment.
G. Discrimination
Conduct based upon an individual’s race, color, religion, sex, national origin, marital status, veteran status, actual or perceived sexual orientation, gender identity, gender expression, or status with regard to pregnancy, disability or age that excludes an individual from participation, denies the individual the benefits of, treats the individual differently, or otherwise adversely affects an individual’s education, living environment or participation in an education program or activity. Conduct based on sex or gender discrimination does not include conduct covered under the definition of Title IX sexual harassment.
H. Retaliation
Any adverse action taken against a person making a complaint under this Code, cooperating in an investigation or hearing of alleged misconduct, or against any individual perceived to be involved in reporting, in an investigation, or hearing of misconduct. Retaliation includes but is not limited to, confirmed or implied behaviors or actions (including electronic or on-line activity) which intimidate, threaten, or harass, or result in other adverse actions threatened or taken. An individual reporting misconduct is entitled to protection from any form of retaliation following a report that is made in good faith, even if the report is later not substantiated based on the available evidence. Retaliation does not include good faith actions lawfully pursued in response to a report of misconduct.
I. Hazing
Any conduct that subjects another person to humiliation, degradation, abuse, intimidation, harassment, or endangerment of mental or physical health or safety as a condition of association or membership with a group, or continuation of a tradition or ritual of a student club or organization, regardless of the person’s willingness to participate. Acts of hazing by groups, individuals, or alumni are prohibited. Examples of hazing include:
- Recklessly or intentionally endangering the mental, emotional, or physical health and/or safety of a student
- Brutality of a physical nature
- Coerced consumption
- Acts intended to cause mental stress
- Acts that causes, induces, pressures, coerces or requires a student to violate the law or the Student Code of Conduct
- Coerced activities
- Apathy or acquiescence in the presence of hazing
- Acts of sexual harassment or other sexual misconduct as defined by University Title IX policy or non-Title IX sexual or gender-based harassment policy.
J. Theft and Unauthorized Computer Use
- Taking without consent the property or services of the University, another person, business, or organization.
- Possessing property that can reasonably be determined to have been stolen from the University, another person, business, or organization.
- Theft or other abuse of computer facilities and resources, including but not limited to:
- unauthorized entry into a file to read, use, or change its contents, or for any other purpose.
- unauthorized transfer of a file.
- use of another individual’s identification and/or password.
- use of computing facilities and/or resources to interfere with the work of another student, faculty member, or staff member.
- use of computing facilities or resources to send obscene or abusive messages.
- use of computing facilities and/or resources to interfere with normal operation of the University computing system
- use of computing facilities and/or resources in violation of copyright laws.
