1. Applicable Terms Used in the Policy
A person who alleges that sexual misconduct prohibited by this policy has been committed against them or against another individual.
A person who is alleged to have engaged in one or more acts of sexual misconduct prohibited by this policy.
2. Prohibited Sexual Misconduct
Sexual misconduct is an umbrella term that includes, but is not limited to, dating violence, domestic violence, sex-based discrimination, sexual assault, sexual harassment, sexual violence, stalking, and/or other prohibited sexual misconduct. The University understands that definitions may overlap and will examine individual incidents where sexual misconduct is alleged.
Sexual misconduct may take many forms and is defined by Federal and state laws, and University community standards. Below are specific definitions used by the University.
a. Dating Violence
Dating violence refers to violence committed by a person who is, or who has been, in a social relationship of a romantic or intimate nature with the Complainant.
The existence of the relationship is based on: (1) the length of the relationship; (2) the type of relationship; and (3) the frequency of interaction between the persons involved in the relationship.
Dating violence includes but is not limited to sexual or physical abuse or the threat of such abuse. It does not include acts covered under the definition of domestic violence.
b. Domestic Violence
Domestic violence may also be known as domestic abuse, intimate partner violence, domestic assault, spousal abuse, etc. Domestic violence occurs within different-sex relationships as well as same-sex relationships, between intimate partners who are married, divorced, living together, dating, or who were previously in a relationship. Anyone can be a perpetrator or victim/survivor. It is important to note that “[d]omestic violence not only affects those who are abused, but also has a substantial effect on family members, friends, co-workers, other witnesses, and the community at large” (Office on Violence Against Women (OVW), U.S. Department of Justice, 2008).
Generally, domestic violence involves a pattern of coercive, dominant, or isolating behavior that is used by one person to gain power and control over another. It may include:
• Physical and sexual violence including pushing, shoving, slapping punching, restraining, forced sexual activities, sexual abuse, pressure to have sex, rape, use of weapons, threats and coercion, etc.
• Physical intimidation
• Emotional and verbal abuse including name-calling, yelling, undermining the person’s self-esteem, humiliating the victim
• Isolating the person from family or friends
• Blaming the abuse on the person
• Threatening harm to a person, to pets, or to others
• Economic abuse including making the person economically dependent on the perpetrator
• Controlling the person’s actions including preventing the person from going to work or school, preventing the person from visiting people, preventing the person from going out alone, etc.
In Minnesota, domestic violence occurs when a family/household member physically harms, injures, or assaults someone; inflicts fear of imminent physical harm, injury, or assault; makes terroristic threats; commits criminal sexual conduct; or interferes with a 911 call.
c. Gender-Based Discrimination
Gender-Based Discrimination refers to sexual harassment, sexual violence, differential treatment, and gender-based harassment because of a person’s perceived sex. This occurs because someone is or is perceived to be male, female, lesbian, gay, bisexual, transgender, or because of their gender identity or gender expression. This discrimination may include treating someone less favorably because that person does not conform to perceived gender-stereotypes.
d. Sexual Assault
Sexual assault includes any sexual act directed at another person without consent. This includes physical force, violence, threat, intimidation, or coercion. This also includes situations where the other person is incapable of giving consent. A person may be incapable of giving consent due to the person’s temporary or permanent mental or physical incapacity or because of the person’s youth or minor status. Furthermore, sexual assault includes the forcing or otherwise requiring another person to perform one of the acts listed below, using objects, or fondling someone against the person’s will.
• Rape – the penetration, no matter how slight, of the vagina or anus with any body part or object or oral penetration by a sex organ of another person without the consent of the person
• Sodomy – oral or anal sexual intercourse without consent
• Sexual Assault with an Object – use of an object or instrument to unlawfully penetrate – however slightly – the genital or anal opening of the body of another person
• Fondling – the touching of the private body parts of another person for the purpose of sexual gratification without the consent of the individual, including instances where the person is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity
• Incest – sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law
• Statutory Rape – intercourse with a person who is under the statutory age of consent
Sexual abuse is a term commonly used when discussing sexual assault, and refers to a series of repeated acts.
e. Sexual Harassment
Sexual harassment is harassing someone because of that person’s perceived gender. It includes but is not limited to unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature when:
• submission to such conduct is made either explicitly or implicitly as a term or condition of an academic status/decision or an individual’s employment; or
• submission to or rejection of such conduct by an individual is used as the basis for academic and/or employment decisions affecting such individuals; or
• such conduct has the purpose or effect of unreasonably interfering with an individual’s academic or work performance or creating an intimidating, hostile, or offensive environment.
Harassment does not have to be of a sexual nature; however, unwelcome conduct may include offensive remarks about a person’s perceived gender. For example, it is inappropriate to harass a woman by making offensive comments about women in general.
Hostile Environment Caused by Sexual Harassment
A hostile environment caused by sexual harassment refers to situation where a person is subject to a pattern of exposure to unwanted sexual behavior from another person(s). Examples of a hostile environment include:
• posting pictures of pornography
• consistently telling sexual jokes or stories where it can be overheard by others
• tolerating people who make sexually suggestive remarks about people within ear shot of others
• allowing others to persist in unwanted attention
• allowing the use of derogatory terms with a sexual connotation
• allowing frequent physical contact, even when not sexual.
Recognizing Sexual Harassment
A person commits sexual harassment when they:
• subject a subordinate or student to unwanted sexual attention, or
• attempt to coerce a co-worker or student into a sexual relationship, or
• threaten to punish a subordinate or student for refusal to comply with sexual demands, or
• make sexual favors conditions of participation in a class or work environment, or
• indicate that sexual favors are a basis for a grade or performance evaluation, or
• engage in conduct of a sexual nature that creates an intimidating, hostile, or offensive working or learning environment
Examples of Behavior that may be prohibited by this Policy
(Within the context of academic freedom around teaching and research)
Verbal or Written
• Use of offensive terms with sexual meaning, including mean-spirited jokes and unwelcome repeated teasing
• Referring to a person with sexual connotations (i.e. hunk, sexy, babe, doll, etc.)
• Making sexual comments about a person’s body or clothing
• Sexual jokes, stories, or history told in person or through an electronic device
• Sexual innuendoes, language or images made verbally or sent through texts, instant messages, email, social media posts, or by letter
• A pattern of bullying based on perceived gender, gender identity, gender expression, or sexual orientation
• Stalking or blocking a person’s path
• Giving unwanted personal gifts
• Leering, staring, or looking a person up and down in a suggestive fashion
• Displaying sexually suggestive visual materials
• Making expressions such as blowing kisses or licking lips or making hand gestures
• Giving an unwanted massage to a person or brushing up against them
• Unwanted touching of a person’s clothing, hair, or body
• Touching and/or rubbing oneself sexually against another person
f. Sexual Violence
Sexual violence is any sexual act that is committed against someone’s will. Sexual violence encompasses a range of offenses, including a completed nonconsensual sex act (e.g., rape), an attempted nonconsensual sex act, abusive sexual contact (e.g., unwanted touching), and non-contact sexual abuse (e.g., threatened sexual violence, exhibitionism, verbal sexual harassment). All types involve individuals who do not consent or who are unable to consent.
Stalking refers to a person engaging in a course of conduct directed at a specific person that would cause a reasonable person to (1) fear for their safety or the safety of others or (2) suffer substantial emotional distress. Stalking requires a pattern of conduct—though any single incident may constitute a separate crime. Stalking may occur regardless of the relationship between the perpetrator and the other person. Stalking is not simply annoying behavior, but repeated behavior (not necessarily the same act each time) that causes fear or emotional distress.
Stalking may include but is not limited to:
• Unwanted phone calls
• Unwanted postal mail
• Unwanted electronic communications including electronic mail (e-mail), text messaging, instant messaging (IM), contact through social networking sites, etc.
• Unwanted sending or leaving of gifts or other items
Physical Acts of Stalking
• Following someone
• Tracking an individual by GPS or other means
• Spying or peeping
• Appearing at a person’s home, business, or favored social location
• Leaving written messages or objects
• Vandalizing property
• Harming a Pet
h. Other Prohibited Sexual Misconduct
Date Rape Drugs
The use of date rape drugs involves the surreptitious and non-consensual administration of an illegal and/or prescription drug (for example GHB, Rohypnol, etc.) to an individual with the intent to, and for the purpose of, lowering the person’s inhibitions and induce an unconscious or sedated state in order to engage in sexual acts with the person.
Sexual victimization may include:
Exhibitionism refers to the compulsion to reveal a body part, in particular one’s genitals, to an unsuspecting stranger. The compulsion may not be illegal, but the exposure would be.
Voyeurism refers to a sexual interest in spying on people who are engaged in private behaviors including, for example, undressing, urinating, bathing, or engaging in sexual activity. The voyeuristic interest may not be illegal, but voyeuristic acts would be.
• Revenge Porn
Revenge porn refers to sexually explicit media that is publicly shared by electronic means without the consent of the individual pictured in the media with the intent to harass, embarrass, or humiliate the pictured individual or to extort that individual. Revenge Porn may be disseminated by ex-partners, hackers, or other individuals. The media may include pictures taken by the pictured individual (e.g. “selfies”). The media may be accompanied by personally identifying information. Consent to engage in sexual activity does not mean consent to be recorded engaging in that activity.
• Sexual Photography and Videography
Sexual photography and videography refers to taking photographs or video of another individual(s) without their consent. This may include public display of images taken in private with the pictured individual’s consent but subsequently displayed publicly without the pictured individual’s consent, and, depending on the circumstances, this may also constitute revenge porn.
Other Inappropriate Misconduct not Defined Herein
Augsburg University has listed specific definitions regarding prohibited sexual conduct. The University will consider violations of any Federal, State, or local law that relate to sexual misconduct. Furthermore, any conduct or action that relates to sexual misconduct, sexual impropriety, or other sexual misdeed will be examined to determine if it falls within the scope of the University’s Sexual Misconduct Policy and if any further action is necessary regardless of whether it is specifically defined herein.
Consent requires words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with another person. Silence or the absence of resistance does not imply consent. It is a voluntary agreement to engage in sexual activity between individuals of legal age. Consent means the person is freely giving their present agreement to engage in sexual activity. Consent must be given at every stage of sexual activity. Past consent does not imply future consent. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another.
Parties are encouraged to talk openly with each other to ensure a positive sexual experience.
Consent does not exist in the absence of a clear, affirmative agreement. Consent may be withdrawn at any time. Coercion, force, or threat of either invalidates consent. Children and individuals who are mentally incapacitated or physically helpless cannot consent. A person who is incapacitated due to the use of drugs or alcohol, who is asleep or unconscious, or who is incapacitated because of an intellectual or other disability, does not have the capacity to give consent. Mentally incapacitated includes a person under the influences of alcohol, narcotic, anesthetic or other substances administered without the person’s consent. Physically helpless includes a person who is asleep or not conscious, unable to withhold or withdraw consent or unable to communicate non-consent and the condition is reasonably known to the person. Corroboration of testimony is not required to show a lack of consent.
The University prohibits consensual relationships between individuals where a professional power differential exists. Augsburg faculty and staff do not engage in sexual activities or contact with students, supervisees, trainees, or other colleagues over whom they exercise professional authority.
Faculty can refer to the Faculty Handbook Section 2.5, Professional Relationships.
2.5.2 Sexual Relationships
(a) Augsburg faculty “do not engage in sexual activities or contact with supervisees, students, trainees, or other colleagues over whom they exercise professional authority.”
(b) If a faculty member is placed in a position that normally exercises supervisory or evaluative authority over any person with whom they have a sexual relationship then an alternative arrangement must be made. Normally, the division chair will serve in that role, however, where the division chair also has a conflict, the Dean will create an alternative arrangement.
Consensual relationships between employees
Consensual relationships between individuals in unequal positions of employment carry special risks and should be avoided. Even when an employee doesn’t have direct supervision over an employee, if they are in a position to influence the career of that person, it can be considered a power relationship. Such relationships may undermine the real or perceived integrity of the employment decisions which are made. The consensual nature of the relationship may be perceived differently by each party and by others who have knowledge of the relationship.
The University will not defend or provide legal representation to a faculty or staff member who is subject to a legal claim arising out of a sexual relationship with another faculty or staff member.