Sexual Misconduct
- Sexual Misconduct is a broad term that includes, but is not limited to, sexual harassment, non-consensual sexual contact, non-consensual sexual intercourse, sexual exploitation, dating violence, domestic violence, and stalking.
Non-Consensual Sexual Contact
- Non-Consensual Sexual Contact is any intentional sexual touching, however slight, with any object, with another person without the consent of that person.
Non-Consensual Sexual Intercourse
- Non-consensual sexual intercourse is any anal, oral, or vaginal penetration, however slight, with any object, with another person without consent of that person.
PROHIBITED CONDUCT INCLUDES, BUT NOT LIMITED TO:
- Unwanted sexual intercourse with a stranger or a friend, acquaintance, spouse, current dating partner, or former intimate partner (including date or acquaintance rape)
- Unwanted sexual intercourse committed by force, threat, surprise, coercion, intimidation, or through use of mental or physical helplessness
- The use of force, including hitting, pushing, or otherwise acting upon violently to engage in sexual activity
- The use of force, including holding a person down, restraining, or otherwise preventing a person from leaving, to engage in sexual activity
- The use of threats, including a direct threat of death, grave bodily injury, or a negative consequence
- The use of one’s size, power or authority to imply a threat, whether communicated verbally or nonverbally and/or physically
- Sexual intercourse with an individual who is incapacitated due to alcohol and/or drug use, and that incapacity is known or should have been known
- Sexual intercourse with an individual who is incapacitated due to mental disorder, developmental disability, intellectual disability, physical disability, age (being under 16), or family relations
- Sexual intercourse with an individual who was temporarily incapacitated or unconscious due to sleep or a medical condition such as an epileptic episode, panic attack, and PTSD.
Consent
- Consent is a knowing, voluntary, and clear permission by word or action to engage in mutually agreed upon sexual activity.
- Silence or passivity is not consent. Consent is not passive, but is active and freely given. 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.
- Initiators of sexual activity are responsible for obtaining consent.
- Consent to one form of sexual activity cannot automatically imply consent to any other forms of sexual activity, nor does it automatically imply consent of any sexual contact in the future.
- Previous relationships or prior consent cannot automatically imply consent to future sexual acts.
- Consent granted to one individual does not automatically imply consent to any other parties.
- Consent can be withdrawn once given, as long as that withdrawal is clearly communicated. Once consent is withdrawn, sexual activity must stop reasonably immediately.
- Consent cannot be obtained from an individual who is incapacitated due to lack of consciousness, age, disability, or incapacitated due to drugs or alcohol.
Force
- Force includes any intentional physical violence, restraint or the presence of a weapon to gain sexual access to a person. Force includes threats, that overcomes resistance or produces reluctant compliance or acquiescence.
Coercion
- Coercion is an unreasonable pressure to engage in sexual activity. Coercion is distinguishable from seduction, where sexual advances are welcome and persuasion is reasonable. When an individual verbally and/or physically expresses that they do not want to engage in or continue in a sexual act, continued pressure beyond that point can be coercive. For the purposes of coercion, determining what is unreasonable may be a function of duration, frequency, isolation, and intensity.
Incapacitation
- Incapacitation is a state where someone cannot make rational, 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).
- Incapacitation can occur mentally or physically, from developmental disability, by alcohol or other drug use, or blackout. Incapacity may also result from mental disability, sleep, unconsciousness, or from the ingestion of rape drugs. Drinking and/or drug use may render an individual incapable of giving consent for sexual activity. For example, someone who is incapacitated may agree to have sex at the time, but have no memory of the consent. This person may have been functioning in a “blackout” and could not give effective consent.
- If unsure of the state of a person, avoid sexual activity.
Stalking
- Two or more acts, including, but not limited to, acts which directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property shall constitute stalking.
Prohibited conduct includes, but is not limited to
- purposefully following/appearing within the sight of that individual
- approaching/confronting that individual
- threatening or making obscene gestures
- unwanted repeated communication or contact
- engaging in surveillance or any other types of unwanted observation
Helpful Tips!
- Trust your instincts! DO NOT downplay the danger
- Call 911 if in immediate danger
- Do not communicate with the stalker/respond to their attempts to contact you. This encourages them.
- Seek support from friends and family. You don’t have to go through this alone.
- Change email, screen names and phone numbers and be selective about who you give your new ones out to.
- Document/save/preserve any evidence of harassment
Resources
- Walk with friends or contact MUPD for escorts.
- Contact MUPD/law enforcement for assistance.
Sexual Harassment
- Sexual harassment shall be defined as unwelcome sexual advances, requests for sexual favors, and other verbal, written, online, or physical conduct of a sexual nature in the following context:
- 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 or is used as the basis for University decisions affecting the individual (often referred to as “quid pro quo” harassment)
- Such conduct creates a hostile environment. A “hostile environment” exists when such conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits, or deprives an individual from participating in or benefiting from the University’s education or employment programs or activities.
- Conduct must be deemed severe, persistent, or pervasive from both a subjective and an objective perspective. A hostile environment can be created by persistent or pervasive conduct or by a single or isolated incident, if sufficiently severe. The more severe the conduct, the less need to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. In contrast, the perceived offensiveness of a single verbal or written expression, standing alone, is typically not sufficient to constitute a hostile environment.
Prohibited Conduct
CONDUCT, WHETHER IN PERSON, IN WRITING, BY TELEPHONE, THROUGH SOCIAL MEDIA, BY ELECTRONIC MEANS, OR OTHERWISE, WHICH IS PROHIBITED BY THIS POLICY INCLUDES, BUT IS NOT LIMITED TO:
- Unwelcome sexual flirtation, advances, or propositions for sexual activity.
- Continued or repeated verbal abuse of a sexual nature, such as suggestive comments and sexually explicit jokes.
- Sexually degrading language used to describe an individual.
- Remarks of a sexual nature used to describe a person’s body or clothing.
- Display of sexually demeaning objects and pictures.
- Offensive physical contact, such as unwelcome touching, pinching, or brushing the body.
Sexual Exploitation
- Sexual exploitation is taking non-consensual or abusive sexual advantage of another for one’s own advantage or benefit, or to benefit a person other than the one being exploited.
Prohibited conduct includes, but not limited to: - Sexual voyeurism (such as watching another person undress, use the bathroom or engage in sexual acts without the consent of the person observed)
- Taking pictures or video or audio recording, or providing for the observation by a third-party of another in a sexual act, or in any other personal/private activity without the consent of all involved in the activity
- Disseminating sexual pictures, audio, video, or other media without the depicted person’s consent
- Communications that are obscene, lewd, or indecent.
- Intentionally or recklessly exposing one’s genitals in non-consensual circumstances.
- Engaging in prostitution or prostituting another student
- Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) and without informing the other person of the infection
- Administering alcohol or other drugs (such as “date rape” drugs) to another person without his or her knowledge or consent.
Domestic and Dating Violence
- Domestic violence is violence or abuse (verbal, physical, and/or psychological) committed by a current or former spouse of an individual, person with whom an individual shares a child in common, person who is cohabitating with an individual or has cohabitated with as a spouse, or person similarly situated to a spouse of the individual under domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
- Dating violence or abuse (verbal, physical, and/or psychological) committed by a person who is or has been in a social relationship of a romantic or intimate nature with an individual. The existence of such relationship shall be determined based on consideration of the following factors: length of relationship, type of relationship and, frequency of interaction between the persons involved in the relationship. Dating partners can be dating each other exclusively or dating other people concurrently. Dating relationships may have a sexual component, but do not have to. Dating violence does not include acts by a person who meets the definition of domestic violence.
Acts generally fall into one or more of the following categories
- Physical battering – physical attacks or aggressive behavior
- Sexual abuse – forced sexual intercourse, unwanted sexual activity
- Psychological battering – constant verbal abuse, isolating victims, deprivation of resources
Important Definitions
A full list of definitions can be found in the Title IX Procedures. Below is a list of most commonly asked about definitions.
Any person intended to assist the Complainant or Respondent student during the disciplinary process, including, but not limited to, a University-appointed Advisor, faculty member, attorney, or other person. Unless otherwise indicated by the Complainant or Respondent in writing, the Advisor shall be provided a copy of all materials provided to the Complainant or Respondent. An Advisor may be called as a witness to provide testimony, but if the Advisor is an attorney, such an Advisor may invoke the attorney-client privilege. The advisor may assist the party by helping to prepare materials, draft questions, and confer with the party during meetings and hearings, as long as this does not unreasonably disrupt or delay the process. The advisor also represents the party by asking questions of the other party and witnesses at the hearing; however, the advisor may not make statements on behalf of the party. If a party does not have an advisor to ask the other party and/or witnesses questions at the hearing, one will be appointed for this purpose by the institution
Learn More about Advisors
This means an individual who is alleged to be the victim of conduct that could constitute sexual harassment, other sexual misconduct, or retaliation under Marshall BOG GA-1 policy. There may be more than one Complainant for an incident.
An employee who is not a mandatory reporter or is not obligated by Marshall BOG GA-1 policy to share knowledge and reports of sexual harassment, other sexual misconduct, or retaliation with the Title IX Coordinator. On-campus confidential resources include licensed mental health professionals and health care providers acting within the scope of their confidential roles. These employees have an exception for extreme cases of immediate threat or danger, in cases of abuse of certain populations (e.g., minors), or when required to disclose by law or court order.
Marshall University confidential resources include:
- Licensed professionals and staff at Counseling Center,
- Healthcare providers and staff at Marshall Student Clinic,
- Licensed professional counselors available through the Employee Assistance Program, and
- Licensed professionals and students registered for practice under a licensed psychologist at the Psychology Clinic.
Off-campus confidential resources include:
- Licensed professional counselors and other medical providers,
- Rape crisis counselors,
- Domestic violence resources,
- Local or state assistance agencies,
- Clergy/Chaplains, and
- Attorneys.
A mutually acceptable romantic, dating, or sexual relationship between individuals.
Consent is knowing, voluntary, and clear permission by word or action to engage in sexual activity. Individuals may perceive and experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity.
If consent is not clearly provided prior to engaging in the activity, consent may be confirmed by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.
For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Consent is evaluated from the perspective of what a reasonable person would conclude are mutually understandable words or actions. Reasonable reciprocation can establish consent. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to be kissed back.
Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, sexual activity should cease within a reasonably immediate time.
Silence or the absence of resistance alone should not be interpreted as consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.
Consent to some sexual contact (such as kissing or fondling) cannot be assumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent. If an individual expresses conditions on their willingness
to consent (e.g., use of a condom) or limitations on the scope of their consent, those conditions and limitations must be respected. If a sexual partner shares the clear expectation for the use of a condom and that expectation is not honored, the failure to use a condom or removing a
condom can be considered an act of sexual assault.
Proof of consent or non-consent is not a burden placed on either party involved in a Complaint. Instead, the burden remains on Furman to determine whether its Policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged misconduct occurred and any similar and previous patterns that may be evidenced.
Going beyond the boundaries of consent is prohibited. Thus, unless a sexual partner has consented to slapping, hitting, hair pulling, strangulation, or other physical roughness during otherwise consensual sex, those acts may constitute dating violence or sexual assault. Consent may never be given by minors, even if the other participant did not know the minor’s age; mentally disabled persons, if their disability was reasonably knowable to a sexual partner who is not mentally disabled; or persons who are Incapacitated. The use of alcohol or drugs does not diminish one’s responsibility to obtain Consent and does not excuse conduct that constitutes Sexual Misconduct.
A document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the University investigate the allegation of sexual harassment. At the time of filing a formal complaint, a Complainant must be participating in or attempting to participate in the education program or activity of the University with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, through an online portal provided for this purpose by the University, or by electronic mail, by using the contact information for the Title IX Coordinator, and by any additional method designated by the
A method of resolution utilized to address allegations of sexual harassment, other sexual misconduct, and retaliation as defined by BOG GA-1 policy.
Occurs when one person uses power and control over another through physical, sexual, or emotional threats or actions, economic control, isolation, or other kinds of coercive behavior.
University position responsible for the University’s Title IX investigations and other investigations involving sexual harassment, sexual misconduct, or other forms of interpersonal violence, who is trained on the definition of sexual harassment, the scope of the University’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. Investigations may be done by the University Title IX Investigator or other trained individual they designate or assign to a matter. Provided that, in the absence of a Title IX Investigator, the Title IX Coordinator may investigate or assign cases to other trained Investigators or external resources.
A notice sent by the Title IX Office which states that a student or student organization may have no direct or indirect contact with another person, student organization, or student organization member (including by another person on behalf of the person to whom the order was issued); prohibited contact includes but is not limited to making a contact by way of personal (verbal or non-verbal), physical, phone, and/or electronic means including social media.
The Complainant(s) and Respondent(s) in a matter, collectively.
Discrimination, Harassment, Sexual Harassment, Sexual Misconduct, Domestic Misconduct, Stalking, and Retaliation as defined in Board of Governors Policy GA-1.
A reasonable person under similar circumstances and with similar identities to the Complainant.
Information provided to the Title IX Coordinator indicating that sexual harassment, other sexual misconduct, or retaliation may have occurred.
Any individual that makes or files a complaint about prohibited conduct under the Board of Governors Policy GA-1 policy. The Reporter may be the Complainant, any other person, or the University.
Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment, other sexual misconduct, or retaliation under Marshall BOG GA-1 policy.
Decision-makers from a standing pool of members of the University community or external professionals who are trained decision-makers appointed by the Title IX Coordinator to adjudicate allegations of Prohibited Conduct and to determine the appropriate sanction.
A consequence imposed by the University on a Respondent who is found to have violated BOG GA-1.
The University will use a Preponderance of the Evidence standard (i.e., the evidence demonstrates that it is more likely than not that the conduct occurred), often referred to as “50 percent plus a feather.”
A person chosen by a party (the Complainant or Respondent) to provide support to them at meetings and interviews with investigators and other Marshall staff. The parties may bring up to two support people at a time with them to meetings and interviews, in addition to the party’s advisor. These support people do not have to be the same people every time. Support people do not actively participate in the process but can be present at meetings and interviews to provide support to the party. Support people do not attend the hearing, if any, but the party must be accompanied at the hearing by an advisor. A support person cannot be a witness in the matter in question.
Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a formal complaint or where no formal complaint has been The University will maintain the confidentiality of supportive measures provided to the parties to the extent that maintaining such confidentiality will not impair its ability to provide the supportive measures. Supportive measures are designed to restore or preserve equal access to the University’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment or to deter sexual harassment, other sexual misconduct, and retaliation.
An individual who is not a University student, faculty, or staff member. Third parties may be a participant in any University related program or activity, for example, visitors, guests, independent contractors, and vendors.
The official designated by Marshall University to ensure compliance with Title IX and oversee the implementation of this policy. References to the Title IX Coordinator throughout may also encompass a designee of the Coordinator for specific tasks.
The Title IX Coordinator, Title IX Investigator, Title IX Case Manager, and the members of the grievance process pool.
Person who is requested to participate in the grievance process because they may have relevant information about the alleged violation. The Investigator(s) may identify potential witnesses, or their names may be supplied by the Complainant, Respondent, or others with knowledge of the matter.