Title IX prohibits discrimination on the basis of sex.
Sexual misconduct is an overarching term and includes sexual assault, sex-based harassment, and other forms of misconduct – each of which are described below.
Sexual Assault: any sexual act directed against another person, without a person’s consent, including instances where a person is not capable of giving consent.
What is Consent?
Consent means actual words or conduct indicating freely given agreement to the sexual act. Consent cannot be inferred from silence, passivity, or lack of active resistance. There is no consent where there is a threat of force or violence or any other form of coercion or intimidation, physical or psychological abuse. Sexual activity is non-consensual if one of the involved parties is incapable of consent by reason of mental incapacity, drug/alcohol use, illness, unconsciousness, or physical condition. Sexual activity is non-consensual if any of the involved parties are incapable of providing consent due to but not limited to; use of force or threat of force, coercion, lack of clear words of actions, resistance (verbally or physically), deception, incapacitation, mental capability or age.
What is Incapacitation?
An individual incapacitated due to alcohol or drugs is unable to provide consent. Incapacitated due to alcohol or drugs is not referring to someone simply under the influence of alcohol or drugs or “drunk.” Incapacitated due to alcohol or drugs is referring to individuals that are in a state of intoxication where the individual cannot make rational, reasonable decisions because the person lacks the capacity to give knowing consent (to understand the “who, what, when, where, why, or how” of the sexual interaction). Therefore, if an individual is demonstrating signs or symptoms of incapacitation due to alcohol or drugs do not engage in sexual activity as the sexual activity will be considered non-consensual regardless of whether you believe you have consent. Examples of signs and symptoms of incapacitation due to alcohol or drugs are but not limited to; vomiting, swaying, slurred speech, incoherent, difficulty balancing, unusual behavior, passed out.
What is Coercion?
Unreasonable pressure for sexual activity. When the individuals makes it clear to you that they do not want sex, that they want you 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 assault includes:
- Rape- Penetration, no matter how slight, of the vagina, or anus, with any body part or object, without consent; or, oral penetration by a sex organ of another person without consent.
- Fondling- Intentional touching of the private body part’s of another person for purposes of sexual gratification. Private body parts include, but are not limited to, breasts, genitalia, thighs, and buttocks.
- Sodomy- Oral or anal sexual intercourse with another person, without their consent.
- Incest- Sexual intercourse between persons who are related to each other within the degree wherein marriage is prohibited by state law.
- Statutory rape- sexual intercourse with a person who is under the age of consent as defined by state law.
Sex-Based Harassment:
Consistent with state and federal law, sex-based harassment is conduct on the basis of sex, gender, sexual orientation, gender identity/expression, or pregnancy that meets the criteria of one of the following categories:
1. Quid Pro Quo
Quid pro quo sexual harassment is when a person with authority over a student or employee explicitly or implicitly conditions a term or condition of the student or employee’s education or employment on the complainant’s participation in unwelcome sexual conduct. This includes instances where submission to or rejection of such sexual conduct by a complainant is used as the basis for educational or employment decisions affecting the complainant. In determining whether such harassment exists, it is immaterial whether the complainant resists and suffers the threatened harm or submits and thus avoids the threatened harm.
2. Hostile Environment
Unwelcome sex-based conduct that, based on the totality of the circumstances, is:
(a) Subjectively and objectively offensive; and,
(b) So severe or pervasive that it creates a hostile environment by limiting or denying a person’s ability to participate in or benefit from the university’s programs or activities.
In determining whether or not such an environment exists, the university will consider: (a) the degree to which the conduct affected the complainant’s ability to access university’s programs or activities; (b) the type, frequency, and duration of the conduct; (c) the parties’ ages, roles within the university, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct; (d) the location of the conduct and the context in which the conduct occurred; and (e) other sex-based harassment in the university’s programs or activities. These are factors for consideration; each factor does not need to be met for a hostile environment to exist.
Other Forms of Sexual Misconduct: Other forms of sexual misconduct include, but are not limited to, indecent liberties, indecent exposure, sexual exhibitionism, sex-based cyber-harassment, prostitution or the solicitation of a prostitute, communications with a minor for immoral purposes, peeping or other voyeurism, possession, creation, or distribution of child pornography, disclosure of intimate images as defined in RCW 9A.86.010 without consent, or going beyond the boundaries of consent, such as by allowing others to view consensual sex or the non-consensual recording of sexual activity.
