Sexual Misconduct Policy Terms
The university prohibits employees, students, and third parties from engaging in relationship violence, sex-based stalking, sexual assault, sexual exploitation, and sexual harassment (collectively referred to herein as “sexual msconduct”). The university will take swift action to address sexual misconduct when the university has actual knowledge that it has occurred.
Sexual Misconduct is referred to as "sexual harassment" in 34 C.F.R. § 106.30 (2020). Sexual misconduct is conduct on the basis of sex including one or more of the following types of conduct:
- Relationship violence;
- Sex-based stalking;
- Sexual assault;
- Sexual exploitation; and
- Sexual harassment.
Protected speech alone does not constitute sexual harassment; rather, a course of conduct must include something beyond mere expression of views, words, symbols or thoughts that a person finds offensive to be sexual harassment. To be considered sexual harassment, a course of conduct must be considered sufficiently serious that it effectively denies a person equal access to an employment or education program or activity, which is evaluated from the perspective of a reasonable person in the claimant’s position, considering all the circumstances, including the claimant’s age.
Visit interim USU Policies 339 and 339A and USU Policy 533 for more information about sexual misconduct. Policies 339 and 339A related to sexual misconduct are applicable to conduct alleged to have occurred August 14, 2020 or later per 34 C.F.R. 106 (2020). They are subject to change at any time.
Sexual Misconduct Definitions
Relationship violence includes dating violence and domestic violence.
Dating violence includes violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the claimant. The existence of such a relationship shall be determined based on a consideration of the following factors: (a) the length of the relationship, (b) the nature of the relationship, and (c) the frequency of interaction between the persons involved in the relationship.
Domestic violence includes felony or misdemeanor crimes of violence committed against the claimant by a current or former spouse or intimate partner of the claimant, by a person with whom the claimant shares a child in common, by a person who is cohabitating with or has cohabitated with the claimant as a spouse or intimate partner, by a person similarly situated to a spouse of the claimant under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred, or by any other person against an adult or youth claimant who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction. A criminal charge or conviction is not a predicate for an allegation of domestic violence to be brought under this policy.
Potential Examples of Relationship Violence
- Physical violence - hitting, slapping, punching
- Sexual assault
- Coercion and threats - threats to hurt, kill, die by suicide, end the relationship, report someone to authorities
- Intimidation - threatening looks, actions, gestures; destroying property; abusing pets; displaying weapons; stalking
Sex-based stalking is engaging in a course of conduct directed at a specific person or persons based on sex, that would cause a reasonable person to fear for their safety or for the safety of others or to suffer substantial emotional distress. Stalking may occur in person, by telephone, mail, electronic communication, social media, or any other action, device, or method.
- A course of conduct is two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through a third party, follows, monitors, observes, surveils, threatens, intimidates, harasses, or communicates to or about a person, or interferes with a person’s property by telephone, mail, electronic communication, social media, or any other action, method, device, or means.
Potential Examples of Sex-based Stalking
- Repeated and unwanted phone calls or texts
- Repeated and unwanted contact on social media
- Following or spying
- Showing up somewhere without a legitimate reason to be there
- Contacting friends, family, work, etc. for information about someone
- Posting information or spreading rumors online or by word of mouth
- Using technology to track someone's movements or whereabouts
- Collecting information about patterns, job, classes, friends, etc.
- Monitoring phone calls, emails, social media, etc.
Sexual Assault includes any sexual act or attempted sexual act, including rape, sodomy, sexual assault with an object, or fondling, directed against another person without their consent. This includes instances where the person is incapable of giving consent because of their age or incapacitation. Sexual assault also includes unlawful sexual acts, such as incest and statutory rape.
Rape is sexual intercourse with another person without their consent.
Sodomy is oral or anal sexual intercourse with another person without their consent.
Sexual Assault with An Object
Sexual Assault with An Object is the use of an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person without their consent.
Fondling is the touching of the private body parts of another person for the purpose of sexual gratification without their consent.
Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law (e.g., a sibling or parent/child relationship).
Statutory Rape is sexual intercourse with a person who is under Utah’s statutory age of consent.
Potential Examples of Sexual Assault
- Guilting someone into sexual activity
- Changing the sexual activity without the other person’s consent
- Engaging in sexual activity when someone is incapacitated or unconscious
- Engaging in sexual activity when someone hasn’t affirmatively consented, even if they didn’t say no
- Using threats to force someone into sexual activity
- Using power or influence to coerce someone into sexual activity
Sexual Exploitation is taking non-consensual sexual advantage of another for one’s own advantage or benefit, or to the benefit or advantage anyone other than the claimant. Examples include, but are not limited to:
- Observing, recording, or photographing nudity or sexual activity of one or more persons without their consent in a location where there is a reasonable expectation of privacy;
- Allowing another to observe, record, or photograph nudity or sexual activity of one or more persons without their consent where there is a reasonable expectation of privacy; or
- Distributing recordings, photographs, or other images of the nudity or sexual activity of one or more persons without their consent.
Sexual Harassment includes hostile environment and quid pro quo.
Hostile Environment is unwelcome sex-based conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to an employment or education program or activity.
Quid Pro Quo
Quid Pro Quo is an employee’s conditioning the provision of a university aid, benefit, or service on a person’s participation in unwelcome sexual conduct.
Potential Examples of Sexual Harassment
- Unwelcome and repeated sexual comments, references, or jokes
- Asking unwelcome personal questions about someone's body or intimate relationships
- Unwelcome talking about someone's sex life
- Repeatedly asking someone out when the answer is "no"
- Unwelcome and repeated references to someone as hunk, doll, babe, honey, etc.
- Unwelcome and repeated catcalling or whistling
- Sending repeated and unwelcome sexual language or images through technology (text, email, social media)
- Unwelcome and repeated sexual gestures with hands or body movements
- Unwelcome and repeated looking at a person up and down (elevator eyes)
- Paying unwanted sexual attention to someone
- Displaying unwelcome sexually suggestive visuals
- Suggestively making unwelcome facial expressions (winking, licking lips, etc.)
- Unwelcome and repeated hanging around, standing too close, or brushing up against someone
- Unwelcome and repeated touching of a person's clothing, hair, etc.
- Unwelcome and repeated massaging of a person's neck, shoulders, etc.
- Unwelcome and repeated hugging, kissing, patting, or stroking of someone
- Unwelcome and repeated touching or rubbing oneself sexually in view of others
Consent is an affirmative agreement to do the same thing at the same time in the same way. An affirmative agreement includes an informed, freely and actively given, mutually understandable exchange of unmistakable words or actions, which indicate an affirmative willingness to participate in mutually agreed upon sexual activity. Consent can be withdrawn or modified at any time, as long as such withdrawal or modification is clearly communicated.
Consent cannot be assumed based on silence, the absence of “no” or “stop,” the existence of a prior or current relationship, or prior sexual activity. There is no consent when there is force, coercion, or incapacitation.
Examples of Consensual Behavior
May include, but are not limited to:
- Verbal statements of “yes” or “okay”
- Head nodding
- Asking someone to engage in the sexual activity
Examples of Non-Consensual Behavior
May include, but are not limited to:
- Verbal statements of “no” or “I don’t want to”
- Verbal statements of “I don’t know” or “maybe”
- Pushing someone away
- Resisting contact
- Shrugging or other uncertain body language
- Not actively participating in the sexual activity
- No response or silence
- Disengaging from previous consensual behavior
- Force, coercion, or incapacitation
Coercion, Incapacitation, and Force Definitions
Coercion may consist of intimidation, threats, or other severe conduct that causes a reasonable person to fear significant consequences if they refuse to engage in sexual contact.
Incapacitation is a state in which a person lacks the ability, temporarily or permanently, to give consent to sexual activity including because of a disability, drug or alcohol consumption (whether voluntary or involuntary), or because the person is unconscious, asleep, immobilized, or otherwise unaware that the sexual activity is occurring. A person is not necessarily incapacitated solely as a result of drinking or using drugs; the level of impairment must be significant enough to render the person unable to give consent.
- It is not an excuse that the party initiating sexual contact was intoxicated and therefore did not realize the other person’s incapacity. In evaluating cases involving alleged Incapacitation, the university considers whether the person initiating the sexual conduct knew or should have known the other person was incapacitated.
Force includes the use of physical force or threats of force that affects a person's ability to give consent to sexual contact.
Retaliation is taking adverse action, including any action that might deter a reasonable person from engaging in protected activity, because the individual has made a report or complaint, testified, assisted, participated, or refused to participate in any manner in an investigation, formal or informal proceeding, or other procedure under policies 340, 339, 339A, or 305. A causal relationship between an adverse action and good faith reporting or participation under this Policy (policy 305) is needed to demonstrate that retaliation has occurred.
Potential Examples of Retaliation
- Adverse employment or educational action - demoting, terminating, firing; denying a promotion or leave; making adverse pay decisions; giving a lower grade or performance review than deserved; dismissing someone from a class, program, team, workspace, etc.
- Intimidating, threatening, or harassing actions - threatening dismissal from a program or expulsion from the university; threatening to disclose confidential information or report an individual to authorities (e.g., immigration authorities); making intentionally false or misleading statements that would dissuade a reasonable person from making a complaint of Sexual Misconduct