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Title IX

Understanding Sexual Misconduct and Consent

Students talking on a bench

What is Sexual Misconduct?

Sexual misconduct is contact of a sexual nature without clear, knowing and voluntary consent, or offensive sexual or other behavior which exploits another person on the basis of his/her gender or sexual orientation, including the following:

  1. Non-consensual sexual intercourse, defined as any sexual penetration (anal, oral or vaginal), however slight, with any body part or object by any person upon any person without consent.
  2. Non-consensual sexual contact, defined as any intentional sexual touching, either by the offender or when the complainant is forced to touch, with any body part or object without consent.
  3. Sexual harassment, defined as unwelcomed conduct that creates a hostile environment or otherwise results in individuals being denied equal opportunity in education.  It is defined in two broad categories:
    •   Quid pro Quo: involves promises (for example, high grades, raises promotions,) based on an individual’s willingness to submit to unwelcomed behavior, including sexual favors or activities or relationship or other unwelcome attention based on the person’s gender or sexual orientation.  It can also involve threats (e.g. demotion, bad grades, corrective action, etc.) based on an individual’s refusal to submit to unwelcome behavior, including being involved in a sexual or romantic relationship, granting sexual favors or engaging in other sexual or unwelcome activities based on sexuality or gender.  The promise or threat does not necessarily need to be overt.
    • Hostile Environment: ordinarily exists when there are incident of verbal or nonverbal behavior in the academic environment or workplace that focus on the sexuality or gender of a person, that are unwelcomed, that are severe or pervasive enough to adversely affect a person’s academic environment or work, and that are outside the realm of appropriate academic study or work practices.
  4. Sexual exploitation, defined as taking non-consensual, unjust or abusive sexual advantage of another. Examples include, but are not limited to, prostituting another student, non-consensual video or audio-taping of sexual activity, going beyond the boundaries of consent (such as knowingly allowing another to surreptitiously watch otherwise consensual sexual activity), engaging in non-consensual voyeurism, and  knowingly transmitting or exposing another person to a sexually transmitted infection (STI) without the knowledge of the person.
  5. Stalking, defined as engaging in a course of conduct directed at a specific person, based on gender or sexual orientation, that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress.
  6. Domestic Violence, defined as violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child, by a person who is or was cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant, and/or by any other person against an adult or youth victim who is protected from that person under the domestic or family violence laws.
  7. Dating Violence, defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant; and where the existence of such a relationship is determined based on the following factors:  length of the relationship, type of relationship and frequency of interaction between the persons involved in the relationship.
  8. Indecent exposure, defined as the exposure of the private or intimate parts of the body in a lewd manner in public or in private premises when the accused may be readily observed.

Consent

Consent is informed, freely and actively given, mutually understandable words or action, which indicate a willingness to engage in mutually agreed upon sexual activity.  

  • Consent is active, not passive. 
  • 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 the conditions of sexual activity: who, what, when, where, why and how sexually activity will take place. 
  • Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. 
  • Consent can be withdrawn at any time by word or action.
  • Previous relationships or prior consent cannot imply consent to future sexual acts.

To be effective, consent cannot be obtained by use of physical force, compelling threats, intimidating behavior or coercion. 

  • Force is the use of physical violence and/or imposing on someone physically to gain sexual access.  Force also includes threats, intimidation (implied threats) and coercion.
  • Coercion is unreasonable pressure for sexual activity.  When a person indicates by words or actions that he/she does not want to engage in sexual activity, wants to stop, or does not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
  • Intimidation is implied threats, including the exertion of perceived or actual power resulting from position or stature.
  • A person must be of legal age (18) to give consent.

An incapacitated person cannot give consent.  Sexual activity with someone who one should know to be mentally or physically incapacitated (by alcohol or other drug use, unconsciousness or blackout) is not consented sexual activity and therefore is a violation of this policy.

  • Incapacitation is a state where someone cannot make rational, reasonable decisions.
  • Incapacitation may result from mental disability, sleep, involuntary physical restraint, or from taking “rape drugs”. (A rape drug is any drug intentionally used to incapacitate another victim to assist in the execution of drug facilitated sexual assault.)
  • Possession, use and/or distribution of any so-called “rape drug” is prohibited, and administering these drugs to another person is a violation of this policy.
  • Being under the influence of alcohol or other drugs will not excuse behavior that violates this policy.

/ Title IX

Scott Fitzgerald
Director of Human Resources
Title IX Coordinator
p/ 614.823.1130
e/ Sfitzgerald@otterbein.edu

Julie Saker
Associate Dean of Students
Title IX Deputy Coordinator
p/ 614.823.1554
e/ Jsaker@otterbein.edu

Colette Masterson
Director, Center for Student Involvement
Title IX Investigator
p/ 614.823.3205
e/ Cmasterson@otterbein.edu