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The University prohibits the following forms of conduct under this policy no matter where the behavior occurs, whether in person or online:
4.1. SEXUAL HARASSMENT
Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved. Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
4.1.1. QUID PRO QUO
An employee of the University who conditions the provision of University aids, benefits, or services on an individual’s participation in unwelcome sexual conduct.
4.1.2. SEXUAL HARASSMENT
Sexual harassment involves the unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s educational program or activity.
4.1.3. SEXUAL ASSAULT
Sexual assault is any sexual act directed against the Complainant, without their consent, including instances when the Complainant is incapable of giving consent. Sexual assault is any offense that meets the definition of rape, fondling, incest, or statutory rape.
126.96.36.199. Forcible Rape
Forcible rape is penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of the Respondent, without the consent of the Complainant.
188.8.131.52. Forcible Fondling
Forcible fondling is the touching of the Complainant’s private body parts (including genitalia, groin, breasts, or buttocks) by the Respondent for the purpose of sexual gratification, without the Complainant’s consent, including instances when the Complainant is incapable of giving consent because of age or because of temporary or permanent mental incapacity.
184.108.40.206.Non-Forcible Sex Offenses
- Incest. Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by the Commonwealth of Virginia, the Commonwealth of Pennsylvania, or the District of Columbia, depending upon where the incident occurred.
- Statutory Rape. Statutory rape is non-forcible sexual intercourse with a person who is under the statutory age of consent, age 18 in the Commonwealth of Virginia and the District of Columbia, age 16 in the Commonwealth of Pennsylvania, depending upon where the incident occurred.
220.127.116.11. Forcible Sodomy
Forcible sodomy is the oral or anal sexual intercourse with the Complainant, forcibly, and against the Complainant’s will. Forcible sodomy is also the oral or anal sexual intercourse with the Complainant, not forcibly or against the Complainant’s will, in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
18.104.22.168. Sexual Assault with an Object
Sexual assault with an object is the use of an object or instrument to penetrate, however slightly, the genital or anal opening of the body of the Complainant, forcibly, and/or against the Complainant’s will (non-consensually).
22.214.171.124. Examples of Sexual Assault
Examples of behavior that may constitute sexual assault include, but are not limited to, the following:
- Engaging in sexual activity with an unconscious or semi-conscious person;
- Engaging in sexual activity with someone who is asleep or passed out;
- Engaging in sexual activity with someone who has said “no” or has otherwise indicated through non-verbal communication that they do not consent to sexual activity;
- Engaging in sexual activity with someone who is vomiting, unable to stand without assistance, or has to be carried to bed;
- Allowing another person to engage in sexual activity with your sexual partner without the partner’s consent;
- Requiring any person to perform any sexual activity as a condition of acceptance into any organization affiliated with the University;
- Telling someone you will “out” them if they don’t engage in sexual activity (e.g., threatening to disclose the person’s sexual orientation without their consent); or
- Facilitating or assisting in a sexual assault, including purchasing or providing alcohol or drugs to further a sexual assault.
4.1.4. DATING VIOLENCE
Dating violence means violence, on the basis of sex, committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship will be determined based on the Complainant’s statement, taking into consideration the following factors:
- The length of the relationship;
- The type of relationship; and
- The frequency of interaction between the persons involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include any acts covered under the definition of domestic violence.
4.1.5. DOMESTIC VIOLENCE
Domestic violence is violence, on the basis of sex, committed by a current or former spouse or intimate partner of the Complainant, by a person (a) with whom the Complainant shares a child in common; (b) who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner; (c) similarly situated to a spouse of the Complainant under the domestic or family violence laws of the Commonwealth of Virginia, the Commonwealth of Pennsylvania, or the District of Columbia, depending upon where the incident occurred; or (d) any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of the Commonwealth of Virginia, the Commonwealth of Pennsylvania, or the District of Columbia, depending upon where the incident occurred. To be an incident of domestic violence, the relationship between the Respondent and the Complainant must be more than two roommates living together.
Stalking occurs when a person engages in a course of conduct, on the basis of sex, directed at a specific person under circumstances that would cause a reasonable person to fear for their safety or the safety of others, or to suffer substantial emotional distress:
- Course of conduct means two or more acts, including but not limited to acts in which the Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about the Complainant, or interferes with the Complainant’s property.
- A reasonable person means a person under similar circumstances and with similar identities to the Complainant.
- Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
- Stalking includes cyber-stalking, a particular form of stalking in which a Respondent uses electronic media, such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact.
4.2. RELATIONSHIP VIOLENCE
Relationship violence is a broad term used by EMU to categorize types of violence, threats, coercion, or intimidation, other than sexual harassment, that occurs in the context of an intimate relationship, often including emotional, psychological, physical, or fiscal abuse, which results in a hostile environment. An incident of relationship violence can consist of a single act or a pattern of acts. Incidents of relationship violence can occur separate from or in tandem with incidents of sexual misconduct and/or sexual harassment.
4.3. SEXUAL MISCONDUCT
This policy prohibits sexual misconduct, which is defined to include other forms of misconduct, on the basis of sex, that is not within the definition of sexual harassment. Sexual misconduct encompasses sexual exploitation, indecent exposure, and sexual discrimination (definitions provided below). Sexual misconduct may occur through physical violence, the threat of violence, and/or coercion.
An incident of sexual misconduct can consist of a single act or a pattern of acts. Incidents of sexual misconduct can occur separate from or in tandem with incidents of relationship violence.
4.3.1. SEXUAL EXPLOITATION
Sexual exploitation is purposely or knowingly doing any of the following:
- Causing the impairment or 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 sexual activity from a hidden location (e.g., a closet) or through electronic means (e.g., live-streaming of images);
- Engaging in voyeurism (e.g., watching private sexual activity without the consent of the participants or viewing another person’s private body parts in a place where that person would have a reasonable expectation of privacy);
- Recording or photographing sexual activity and/or a person’s private body parts (including genitalia, groin, breasts, or buttocks) without affirmative consent;
- Disseminating or posting images of private sexual activity and/or a person’s private body parts (including genitalia, groin, breasts, or buttocks) without affirmative consent;
- Prostituting oneself or another person.
4.3.2. SEXUAL DISCRIMINATION
Sexual discrimination is defined as discrimination, on the basis of sex, in the form of unwelcome and harassing conduct that results in a hostile environment. Sexual discrimination includes unwelcome sexual advances, unwelcome requests for sexual favors, or other unwelcome behavior of a sexual nature.
4.3.3. INDECENT EXPOSURE
Indecent exposure occurs when a University employee, student, or vendor purposely and knowingly exposes their sexual organs to the Complainant without the Complainant’s consent.
4.4. OTHER PROHIBITED CONDUCT
4.4.1. GENDER-BASED HARASSMENT
Gender-based harassment includes harassment based on gender, sexual orientation, gender identity, or gender expression that may include acts of aggression, intimidation, or hostility, whether verbal or non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature, when the conditions outlined below are present:
- Submission to, or rejection of, such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any University programs and/or activities (quid pro quo harassment); or
- Submission to or rejection of such conduct is used as the basis for University decisions affecting the individual (quid pro quo harassment); or
- Conduct that creates a hostile environment.
Retaliation is the prohibited conduct of the University or any member of the EMU community to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by law or this policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sex harassment, but arise out of the same facts or circumstances as a report or formal complaint under this policy, for the purpose of interfering with any right or privilege secured by this policy constitutes retaliation.
4.6. HOSTILE ENVIRONMENT
A hostile environment is created when unwelcome conduct of a sexual or gender-based nature unreasonably interferes with, limits, or effectively denies an individual’s ability to participate in or benefit from their employment or educational program/activity, or creates an intimidating, threatening or abusive employment, educational, and/or living environment. It will be necessary, but not enough, that the conduct was unwelcome to the person who was harassed. The University will also need to find that a reasonable person in the individual’s position would have perceived the conduct as undesirable or offensive in order for that conduct to create or contribute to a hostile environment. To make the ultimate determination of whether a hostile environment exists for an individual, the University considers a variety of factors, including:
- The type, frequency, and duration of the conduct;
- The identity and relationships of persons involved;
- The number of individuals involved;
- The location of the conduct and the context in which it occurred; and,
- The degree to which the conduct affected one or more student’s education or employee’s employment.
A hostile environment results from harassing verbal, written, graphic, or physical conduct that is severe or pervasive and objectively offensive. A single, isolated incident of sexual or gender-based harassment may, based on the facts and circumstances, be sufficient to create a hostile environment. Likewise, a series of incidents, whether occurring close in time or not to each other, may be sufficient to create a hostile environment, even if each incident is not particularly severe. Examples of a hostile environment include:
- Calling someone by a sexually oriented or demeaning name;
- Giving someone unwanted gifts of a sexual nature;
- Displaying sexually suggestive materials or sending notes, email, or jokes to a person that are sexually explicit;
- Touching someone sexually without their consent;
- Massaging someone without permission;
- Brushing up against someone repeatedly;
- Continuing to ask out a person who has already said no; or
- Exposing private parts to another person.
Complicity is any act taken with the purpose of aiding, facilitating, protecting, promoting, or encouraging the commission of an act of relationship violence, sexual misconduct, sexual harassment, or other forms of conduct prohibited under this policy by another person.
Anyone who is Complicit in any of the prohibited acts outlined in this policy will be in violation of this policy and will be subject to disciplinary action.
4.7. VIOLATIONS OF LAW
Behavior that violates this policy may also constitute a crime under the laws of the jurisdiction in which the incident occurred. For example, the Commonwealth of Virginia criminalizes and punishes some forms of sexual assault, intimate partner violence, sexual exploitation, stalking, and physical assault. The criminal statutes that may apply in cases of physical assault and intimate partner violence are found in various sections of Chapter 4, Articles 1 (Homicide) and 4 (Assaults and Bodily Woundings), of Title 18.2 of the Code of Virginia. The criminal statutes relating to sexual assault are found in Sections 18.2-61 to 18.2-67.10 of the Code of Virginia. Section 18.2-60.3 of the Code of Virginia defines and identifies the penalty for criminal stalking. Finally, Sections 18.2-386.1 and 18.2-386.2 of the Code of Virginia provide for criminal penalties in some cases of sexual exploitation. This compilation of criminal statutes is not exhaustive, but is offered to notify the University community that some forms of conduct prohibited under this policy may also constitute crimes under Virginia, Pennsylvania and the District of Columbia law, which may subject a person to criminal prosecution and punishment in addition to any sanctions under this policy.
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