Definitions

Sexual Misconduct offenses include, but are not limited to:

• Sexual harassment
• Non-consensual sexual contact (or attempts to commit same)
• Non-consensual sexual intercourse (or attempts to commit same)
• Sexual exploitation

Sexual Harassment is:

Unwelcome, gender-based verbal or physical conduct that is sufficiently severe, persistent, or pervasive that it has the effect of unreasonably interfering with, denying or limiting someone the ability to participate in or benefit from Otero's educational program and/or activities, or work activities, and the unwelcome behavior is based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation.

There are three types of Sexual Harassment:

1. Quid pro quo sexual harassment exists when there are unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature, and submission to or rejection of such conduct results in adverse educational or employment action; or affects the terms or conditions of education or employment, or activities with the college.
2. Hostile Environment includes any situation in which there is harassing conduct that is sufficiently severe, persistent, or pervasive that it alters the conditions of employment or limits, interferes with or denies educational benefits or opportunities, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint.
   
   The determination of whether an environment is “hostile” must be based on all of the circumstances. These circumstances could include, but are not limited to:
   • Frequency of the conduct
   • Nature and severity of the conduct
   • Whether the conduct was physically threatening
   • Whether the conduct was humiliating
   • Effect of the conduct on the alleged victim’s mental or emotional state
   • Whether the conduct was directed at more than one person
   • Whether the conduct arose in the context of other discriminatory conduct
   • Whether the conduct unreasonably interfered with the alleged victim’s educational or work performance
   • Whether a statement is a mere utterance of an epithet which engenders offense in an employee or student, or offends by mere discourtesy or rudeness
   • Whether the speech or conduct deserves the protections of the 1st Amendment
3. Retaliatory harassment is any adverse employment or educational action taken against a person because of the person’s perceived participation in a complaint or investigation of discrimination or sexual misconduct.

Sexual Contact:

Sexual contact is consensual contact which can occur when dating, for example. This is mutually agreed upon by both parties who are consenting adults. When it crosses the line and becomes a problem is when the sexual contact is non-consensual. Sexual contact defined is any deliberate sexual touching, however slight, of a person’s body (including but not limited to mouth, genitalia, groin, breasts, buttocks, or clothing covering those areas), or causing a person to touch his or her own sexual or intimate parts, may be considered sexual contact.

Non-consensual sexual contact is:

Any intentional sexual touching however slight, with any object, by any individual upon any individual, that is without consent and/or by force.

Non-consensual sexual intercourse is:

Any sexual penetration however slight, with any object, by any individual upon any individual, that is without consent and/or by force. Among women, non-consensual intercourse may include vaginal, oral, or anal penetration by a male using his penis. It also may include vaginal, oral or anal penetration by a male or female using their fingers or an object. Among men, non-consensual intercourse may include oral or anal penetration by a male using his penis. It also may include oral or anal penetration by a male or female using their fingers or an object.

Consent:

• Must be clear, knowing and voluntary.
• Is active, not passive. Silence, in and of itself, cannot be interpreted as 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.
• In order to give effective consent, one must be of legal age.
• To any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.
• Previous relationships or prior consent cannot imply consent to future sexual acts. Force
• 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 that overcomes resistance or produces consent.

Coercion

Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.

Sexual activity

Sexual activity with someone whom one should know to be—or based on the circumstances should reasonably have known to be—mentally or physically incapacitated (by alcohol or other drug use, unconsciousness or blackout), constitutes a violation of this procedure.

Incapacitation

Incapacitation is a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent. Incapacitation could result from mental disability, sleep, involuntary physical restraint, or from the ingestion of rape drugs. Possession, use and/or distribution of any of these substances, including, but not limited to Rohypnol, Ketomine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another person is a violation of this policy.

Having sex with someone whom you know to be, or should know to be, incapacitated (mentally or physically) is a violation of this procedure.

Use of alcohol or other drugs will never function as a defense to a violation of this procedure.

Sexual exploitation

Sexual exploitation occurs when anyone takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses.

Examples of sexual exploitation include, but are not limited to:

• Invasion of sexual privacy
• Prostituting another person
• Non-consensual video or audio-taping of sexual activity
• Going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex)
• Engaging in voyeurism
• Knowingly transmitting a sexually transmitted infection (STI) or human immunodeficiency virus (HIV) to another person
• Exposing one’s genitals in non-consensual circumstances; inducing another to expose their genitals
• Sexually-based stalking and/or bullying may also be forms of sexual exploitation
• Viewing or possessing child or adult pornography at work or on college owned property