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Gender-based and Sexual Misconduct Policy

Shepherd University Gender-based and Sexual Misconduct Policy

Prohibited Conduct and Definitions

Prohibited Forms of Conduct

The University prohibits all forms of sexual or gender-based misconduct, which encompasses a broad range of behavior. Sexual/gender-based misconduct and interpersonal violence may occur between people of the same or different sexes, gender identities or expressions, or sexual orientations.

Within these broad categories, the University prohibits the following specific conduct

Sexual Harassment including unwanted or unwelcome sexual advances or requests for sexual favors, or other behavior of a sexual nature.  This can include, but is not limited to:

  1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or participation in a University sponsored educational program or activity.
  2. Submission to or rejection of such conduct by an individual is used as the basis for academic or employment decisions affecting the individual.
  3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s academic or work performance, or of creating an intimidating, hostile, or offensive educational or working environment.

A single isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe.

Examples of conduct that may constitute sexual harassment as defined above may include a severe, persistent or pervasive pattern of unwelcome conduct that includes one or more of the following:

The following forms of conduct are prohibited under this policy. Each specific prohibited conduct may also be a form of sexual harassment.

Non-consensual Sexual Contact, including any intentional sexual touching, however slight, with any object or body part, performed by a person upon another person. Sexual Contact includes (a) intentional touching of the breasts, buttocks, groin or genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; and (b) making another touch you or themselves with or on any of these body parts.

Non-consensual Sexual Intercourse, including any penetration, however slight, with any object or body part, performed by a person upon another person. Sexual Intercourse includes (a) vaginal penetration by a penis, object, tongue, or finger; (b) anal penetration by a penis, object, tongue, or finger; and (c) any contact, no matter how slight, between the mouth of one person and the genitalia of another person.

Sexual Exploitation includes taking non-consensual, unjust, or abusive advantage of another person for the benefit or advantage of anyone other than the person who is exploited.

Gender-based harassment, including unwelcome conduct of a nonsexual nature based on a student’s actual or perceived sex, sexual orientation, gender identity, gender expression, and nonconformity with gender stereotypes.*

Dating Violence includes committing, attempting, or threatening an act of violence against a person in a romantic or intimate relationship, either currently or formerly.

Domestic Violence includes committing, attempting, or threatening an act of violence by a person against a current or former spouse, current or former cohabitant, person sharing a child in common, or person situated in a similar familial environment.

Stalking includes committing an act, such as non-consensual repetitive and/or menacing pursuit, following, or harassment, directed at a specific person or their family through any means that would cause a reasonable person to feel fear for safety or suffer significant emotional distress.

Retaliation includes retaliatory action of any kind, including intimidation, coercion, or threats, against any individual as a result of a person’s attempt to seek redress or to participate in an investigation under applicable procedures dealing with sexual and other misconduct.

*Gender Identity is defined as an innate identification of oneself as male, female, both, neither, transgender, genderqueer, gender non-conforming, or other gender-based identification. For some people, gender identity is in accord with physical anatomy. For transgender people, gender identity may differ from physical anatomy or expected social roles. It is important to note that gender identity, biological sex, and sexual orientation are separate and that you cannot assume how someone identifies in one category based on how they identify in another category.

  1. Other Definitions

Consent: Consent is a knowing, voluntary, and mutual agreement to engage in sexual activity.  Consent can be given by words or actions, as long as those words or actions create clear, unambiguous permission regarding willingness to engage in the sexual activity.

The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.

Incapacitation: An incapacitated individual is unable to make rational, reasonable decisions (e.g. to understand the fact, nature, or extent of the sexual interaction) and therefore is incapable of giving consent. 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.

Incapacitation may result from the use of alcohol and/or drugs. The impact of alcohol and drugs varies from person to person; however, warning signs that a person may be approaching incapacitation may include but are not limited to slurred speech, vomiting, unsteady gait, odor of alcohol, combativeness, emotional volatility, lack of control over physical movements, and inability to communicate.

Force: Force is the use or threat of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that overcomes an individual’s free will to choose whether or not to participate in sexual activity.

Coercion: Coercion is the improper use of pressure to compel another individual to initiate or continue sexual activity. Coercion occurs when a person intimidates, forces, or manipulates someone into engaging in sexual activity without the use of physical force. Manipulative statements, threats of violence, blackmail, drugs, and/or alcohol can be used to coerce another into sexual activity.  A person’s words or conduct are sufficient to constitute coercion if another individual’s freedom of will and ability to choose whether or not to engage in sexual activity is impaired. Use of alcohol as a tool to engage another sexually will be a factor in determining coercion and consent. A person’s age and level of experience compared to another will also be used as a factor in determining whether sexual activity has been consensual.

Warning: In general, the University considers sexual contact while under the influence of alcohol or other drugs to be risky behavior. Alcohol and drugs can impair a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. If there is any doubt as to the level or extent of the other individual’s intoxication, the prudent course of action is to forgo or cease any sexual contact or activity!!

Intoxication or impairment through the use of drugs or alcohol is never an excuse for sexual harassment, misconduct, or interpersonal violence and does not diminish one’s responsibility to obtain informed and freely given consent.