Sexual Misconduct Policy, Section III: Prohibited Conduct

The College prohibits all forms of sexual and gender-based harassment, including sexual violence and intimate partner violence. Each of these terms encompasses a broad range of behavior. In general, sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to incapacitation. Intimate partner violence refers to any act of violence or threatened act of violence, sexual or otherwise, against a person who is or has been involved in a sexual, dating, domestic or other intimate relationship with that person.

A. Consent: Force, Coercion, Incapacitation, Drugs and Alcohol

Consent: Consent consists of an affirmative, conscious decision by each participant to engage in mutually agreed-upon sexual activity. The following are essential elements of effective consent:

Informed and reciprocal: All parties must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting and a willingness to do the same thing, at the same time, in the same way.

Freely and actively given: Consent cannot be obtained through the use of force, coercion, threats, intimidation or pressuring, or by taking advantage of the incapacitation of another individual.

Mutually understandable: Communication regarding consent consists of mutually understandable words and/or actions that indicate an unambiguous willingness to engage in sexual activity. In the absence of clear communication or outward demonstration, there is no consent. Consent may not be inferred from silence, passivity, lack of resistance or lack of active response. An individual who does not physically resist or verbally refuse sexual activity is not necessarily giving consent. Relying solely upon non-verbal communication can lead to a false conclusion as to whether consent was sought or given.

Not indefinite: Consent can be withdrawn by any party at any time. Recognizing the dynamic nature of sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate clearly throughout all stages of sexual activity. Withdrawal of consent can be an expressed “no” or can be based on an outward demonstration that conveys that an individual is hesitant, confused, uncertain or is no longer a mutual participant. Once consent is withdrawn, the sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before continuing further sexual activity.

Not unlimited: Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to sexual activity with one person constitute consent to activity with any other person. Each participant in a sexual encounter must consent to each form of sexual contact with each participant.

Even in the context of a current or previous intimate relationship, each party must consent to each instance of sexual contact each time. The consent must be based on mutually understandable communication that clearly indicates a willingness to engage in sexual activity. The mere fact that there has been prior intimacy or sexual activity does not, by itself, imply consent to future acts.

In the state of Oregon, minors under the age of 18 cannot give consent.

Force: Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom of will to choose whether or not to participate in sexual activity. For the use of force to be demonstrated, there is no requirement that a Reporting Party resists the sexual advance or request. However, resistance by the Reporting Party will be viewed as a clear demonstration of non-consent.

Coercion: Coercion is the improper use of pressure to compel another individual to initiate or continue sexual activity against their will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Coercion includes, but is not limited to: threatening to “out” someone based on sexual orientation, gender identity or gender expression, and threatening to harm oneself if the other party does not engage in the sexual activity.

Incapacitation: Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity because they lack conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why, or how of the sexual interaction) and/or is physically helpless. An individual is incapacitated, and therefore unable to give consent, if they are asleep, unconscious, or otherwise unaware that sexual activity is occurring.

Incapacitation may result from the use of alcohol and/or drugs. Consumption of alcohol or other drugs alone is insufficient to establish incapacitation. The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs impact an individual’s:

• decision-making ability;
• awareness of consequences;
• ability to make informed judgments; or
• capacity to appreciate the nature and the quality of the act.

In evaluating incapacitation, the decision-maker considers the totality of available information in determining two issues:

1. Was the Reporting Party incapacitated; AND
2. Did the Respondent know, or should the Respondent reasonably have known, the Reporting Party was incapacitated?

Alcohol and Other Drugs: In general, sexual contact while under the influence of alcohol or other drugs poses a risk to all parties. Alcohol and drugs impair a person’s decision-making capacity, awareness of the consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.

Being intoxicated or impaired by drugs or alcohol is never an excuse or defense for sexual harassment or other forms of prohibited conduct, and does not diminish one’s responsibility to obtain consent.

B. Forms of Prohibited Conduct

Sexual misconduct may fall under the scope of Title IX prohibited conduct. If the reported conduct would fall within the Title IX definition, a formal investigation and Live Hearing will be required.

B1. Sexual Harassment

Sexual harassment is unwelcome conduct of a sexual nature.

Sexual harassment can include:

• unwelcome sexual advances,
• requests for sexual favors, or
• other verbal, nonverbal or physical conduct of a sexual nature;
• where such conduct is sufficiently severe or pervasive that it has the effect, intended or unintended,
• of unreasonably interfering with an individual’s work or academic performance or
• it has created an intimidating, hostile or offensive environment and would have such an effect on a reasonable person.

Sexual Harassment includes, but is not limited to:

attempting to coerce an unwilling person into a sexual relationship; to repeatedly subject a person to egregious, unwelcome sexual attention; cyber-bullying of a sexual nature; retaliation for a refusal to comply with a sexual based request; to condition a benefit on the submission to sexual advances; gender- or sex- based bullying

Other forms of Prohibited Conduct

The following forms of conduct are specifically prohibited under this policy, as are attempts to commit them.

B2. Non-Consensual Sexual Contact

Non-Consensual Sexual Contact is:

• any intentional sexual touching,
• with any object or body part,
• by any person upon any person
• without consent.

Sexual Contact includes, but is not limited to:

intentional contact with intimate parts of another, causing another to touch one’s intimate parts, or disrobing or exposure of another without permission. Intimate parts may include the breasts, genitals, buttocks, groin, mouth or any other part of the body that is touched in a sexual manner.

B3. Non-Consensual Sexual Penetration

Non-Consensual Sexual Penetration is:

• any sexual penetration,
• with any object or body part,
• by any person upon any person,
• that is without consent.

Sexual penetration includes, but is not limited to:

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.

B4. Sexual Exploitation

Sexual Exploitation is:

• taking non-consensual or abusive sexual advantage of another,
• for one’s own advantage or benefit,
• or to benefit or advantage anyone other than the one being exploited.

Sexual Exploitation includes, but is not limited to:

invasion of sexual privacy; prostitution of another person; non-consensual video or audio-recording of sexual activity; sharing private sexual materials, such as video or pictures, without the consent of all involved parties; 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; or inducing incapacitation with the intent to make one vulnerable to non-consensual sexual activity.

B5. Intimate Partner Violence

Intimate partner violence is often referred to as dating violence, domestic violence or relationship violence. Intimate partner violence is:

• any act of violence or threatened act of violence against a person who,
• is, or has been, involved in a sexual, dating, domestic, or other intimate relationship with the Respondent.

Intimate partner violence includes, but is not limited to:

physical violence, sexual violence, emotional violence, and economic abuse. It may involve one act or an ongoing pattern of behavior. Intimate partner violence may take the form of threats, assault, property damage, violence or threat of violence to one’s self, one’s sexual or romantic partner or to the family members or friends of the sexual or romantic partner. Intimate partner violence affects individuals of all genders, gender identities, gender expressions, and sexual orientation and occurs regardless of racial, social, or economic background.

B6. Stalking

Stalking is governed by this policy when it is sexual in nature, or sex or gender-based. Stalking is:

• a course of physical or verbal conduct directed at another individual,
• that could be reasonably regarded as likely to alarm, harass, or cause fear of harm or injury to that person or to a third party.

A course of conduct consists of at least two acts. The feared harm or injury may be physical, emotional, or psychological, or related to the personal safety, property, education, or employment of that individual. Stalking includes cyber-stalking, a particular form of stalking in which electronic media such as the Internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used to pursue, harass, or to make unwelcome contact with another person in an unsolicited fashion.

B7. Prohibited Relationships by Persons in Authority

Sexual or other intimate relationships in which one party maintains a direct supervisory or evaluative role over the other party are prohibited. In general, this includes all sexual or other intimate relationships between students and their employers, supervisors, professors, coaches, advisors or other College employees where a direct supervisory or evaluative role is maintained. College employees (faculty, staff, and students) who supervise or otherwise hold positions of authority over others are prohibited from having a sexual or other intimate relationship with an individual under their direct supervision.

The College does not wish to interfere with private choices regarding personal relationships when these relationships do not interfere with the goals and policies of the College. However, faculty, administrators, and others who educate, supervise, evaluate, employ, counsel, coach, or otherwise guide students should understand the fundamentally asymmetrical nature of the relationship they have with students or subordinates. Intimate or sexual relationships where there is differential in power or authority produce risks for every member of our community and undermine the professionalism of faculty and supervisors. In either context, the unequal position of the parties presents an inherent element of risk and may raise sexual harassment concerns if one person in the relationship has the actual or apparent authority to supervise, evaluate, counsel, coach or otherwise make decisions or recommendations as to the other person in connection with their employment or education at the college.

Sexual relations between persons occupying asymmetrical positions of power, even when both consent, raise suspicions that the person in authority has violated standards of professional conduct and potentially subject the person in authority to charges of sexual harassment. Similarly, these relationships may impact third parties based on perceived or actual favoritism or special treatment based on the relationship.

Therefore, persons with direct supervisory or evaluative responsibilities who contemplate beginning or are involved in such relationships are required to promptly: 1) discontinue any supervising role or relationship over the other person; and 2) report the circumstances to their own supervisor. Failure to fully or timely comply with these requirements is a violation of this policy, and the person in authority could be subject to disciplinary action, up to and including dismissal from employment by the College.

Nothing in this section is intended to permit conduct that would otherwise be prohibited or contrary to rules of conduct or ethics promulgated by professional organizations, such as rules applicable to lawyers or counselors.

Any individual may file a complaint alleging harassment or discrimination, including an aggrieved party outside the relationship affected by the perceived harassment or discrimination. Retaliation against persons who report concerns about consensual relationships is prohibited and constitutes a violation of this policy.