What is Sexual Misconduct?
Shippensburg University is committed to maintaining a safe and secure educational, residential, and employment environment, free from discrimination based on sex. Sexual discrimination encompasses all forms of sexual misconduct. Sexual misconduct is a broad term encompassing any unwelcome behavior of a sexual nature that is committed without consent or by force, intimidation, coercion, or manipulation. Sexual misconduct can be committed by a person of any gender, and it can occur between people of the same or different gender. Shippensburg University will not tolerate any form of sexual misconduct. The University will respond promptly and effectively to reports of sexual misconduct and will take appropriate action to prevent, correct, and when necessary to discipline behavior. Shippensburg University considers the following acts to be sexual misconduct:
Domestic Violence: Commit or attempt to commit domestic violence. Domestic Violence is any felony, non-violent felony, or misdemeanor crime, as those terms are defined by the laws of the Commonwealth of Pennsylvania and the federal government, committed by a current or former spouse or intimate partner of the victim, a person sharing a child with the victim, or a person cohabitating with the victim as a spouse or intimate partner.
Intimate Partner Violence (IPV):Commit or attempt to commit intimate partner violence. Intimate Partner Violence is any act of violence, including physical, sexual, psychological, and verbal violence, committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. Violence can occur as a single act, or it can consist of a pattern of violent, abusive, or coercive acts that serve to exercise power and based on the victim’s statement and with consideration of the type and length of the relationship and the frequency of the interaction between the persons involved in the relationship. Two people may be in a romantic or intimate partner relationship, regardless of whether the relationship is sexual in nature; however, neither a casual acquaintance nor ordinary fraternization between two individuals in a business or social context shall constitute a romantic or intimate relationship.
Rape: Commit or attempt to commit rape. Rape includes all acts of sexual intercourse without consent involving any penetration of a bodily cavity with a foreign object, tongue, digit, or genitalia. A rape occurs when imposed under any of the following circumstances:
- When the reporter is incapable of giving legal consent for mental developmental, or physical reasons and this fact is known reasonably should have been known by the person committing the act;
- When the act is committed without the person’s explicit consent or is against the person’s wishes. Rape incorporates any or all of the following: the use of force, threat, intimidation, coercion, duress, violence, or by causing a reasonable fear of harm;
- When the reporter is prevented from consenting or resisting because of intoxication or unconsciousness at the time of the act.
Sexual Assault: Commit or attempt to commit sexual assault. Sexual assault is the imposition of sexual conduct without consent (excluding rape). It includes, but is not limited to caressing, fondling, or touching a person’s genitalia, buttocks, or breasts. It includes acts where a person is compelled to caress, fondle, or touch the genitalia, buttocks, or breasts of another person.
Sexual Exploitation: Commit or attempt to commit sexual exploitation. Sexual exploitation is purposefully or knowingly doing any of the following:
- Intentional, nonconsensual tampering with or removal of condoms or other methods of birth control and sexually transmitted infection (“STI”) prevention prior to or during sexual contact in a manner that significantly increases the likelihood of STI contraction and/or pregnancy by the non-consenting party;
- Nonconsensual video or audio taping of sexual activity;
- Allowing others to watch consensual or nonconsensual sexual activity without the consent of a sexual partner;
- Observing others engaged in dressing/undressing or in sexual acts without their knowledge or consent;
- Trafficking people to be sold for sex; and
- Inducing incapacitation with the intent to sexually assault another person.
Sexual Harassment: Commit or attempt to commit sexual harassment. Sexual harassment is any unwelcome sexual advances, requests for sexual favors, or other harassing or physical conduct of a sexual nature when:
- Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of an individual's employment or educational advancement, or evaluation; or
- Submission to or rejection of such conduct is used as the basis for employment or educational advancement, or evaluation; or
- Such conduct is sufficiently severe, persistent or pervasive from the perspective of a reasonable person in the victim’s position, considering all circumstances, so as to have the effect of creating an intimidating, hostile, or offensive work or educational environment, which substantially limits or interferes with an individual’s work or educational performance or opportunities.
An act is unwelcome when the individual did not solicit or invite conduct, and particularly if the individual indicates that the conduct is undesirable or offensive. Conduct may be unwelcome even where the individual acquiesces or does not complain. However, if an individual actively participates in sexual banter or discussions without indicating that the conduct is undesirable or offensive, the behavior will not likely meet the definition of “unwelcome.”
Stalking: Commit or attempt to commit stalking. Stalking occurs when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear bodily injury or to experience substantial emotional distress. Course of conduct means two or more acts, including but not limited to acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about another person, or interferes with another person’s property. "Substantial emotional distress" means significant mental suffering or anguish.
Stalking includes “cyber-stalking,” a particular form of stalking in which a person uses electronic media, such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact.
What is Consent?
Consent includes affirmative words or actions that demonstrate an informed, voluntary, and active decision to engage in a mutually agreed-upon sex act. Consent cannot be obtained by (1) force, (2) coercion, or (3) incapacitation.
1. Force includes the use of: (i) physical violence, (ii) threats, and (iii) intimidation.
i. Physical violence means that a person is exerting control over another person through the use of physical force. Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking, and brandishing or using any weapon
ii. Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples include threats to harm a person physically, to reveal private information to harm a person’s reputation, or to cause a person academic or economic harm.
iii. Intimidation is an implied threat that menaces or causes reasonable fear in another person. A person’s size, alone, does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g., blocking access to an exit).
2. Coercion is the use of an unreasonable amount of pressure to gain sexual access. Coercion is more than an effort to persuade, entice, or attract another person to have sex. When a person makes clear a decision not to participate in a particular form of Sexual Contact or Sexual Intercourse, a decision to stop, or a decision not to go beyond a certain sexual interaction, continued pressure can be coercive.
3. Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity. Consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated. A person who is incapacitated is unable, temporarily or permanently, to give affirmative consent because of mental or physical helplessness, intoxication, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. A person may be incapacitated as a result of the consumption of alcohol or other drugs, or due to a temporary or permanent physical or mental health condition.