Prohibited conduct

1. Sexual Harassment

Sexual harassment is any unwelcome sexual advance, request for sexual favors, or other unwanted verbal or physical conduct of a sexual nature. Sexual harassment also includes harassment based on gender, sexual orientation, gender identity or gender expression, which may include acts of verbal, nonverbal or physical aggression, intimidation or hostility based on sex/gender or sex/gender-stereotyping, even if the acts do not involve conduct of a sexual nature.

Under Title IX, Sexual Harassment is conduct on the basis of sex that satisfies one or more of the following:

Quid Pro Quo. Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature by a person having power or authority over another constitutes sexual harassment when submission to such sexual conduct is made either explicitly or implicitly a term or condition of rating or evaluating an individual’s educational or employment progress, development or performance.

Unwelcome Conduct. Conduct made on the basis of sex that is determined by a reasonable person to be so severe, pervasive AND objectively offensive that it effectively denies a person equal access to the university’s education program, activity or employment.

Sexual Assault (as defined in the Clery Act), Dating Violence, Domestic Violence or Stalking as defined in the Violence Against Women Act (VAWA). See definitions below.

Under university policy, sexual harassment may include conduct that creates a hostile environment or is retaliatory in nature.

The university will assess objective and subjective factors in determining whether a hostile environment exists.

A single, isolated incident of sexual harassment alone may create a hostile environment if the incident is sufficiently severe, such as rape or other forms of sexual assault. The more severe the conduct, the less need there is to show that the conduct was persistent or pervasive in nature.

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

An attempt to coerce an unwilling person into a sexual relationship
Repeatedly subjecting a person to egregious, unwelcome sexual attention
Punishment for a refusal to comply with a sexual-based request
Conditioning a benefit on submitting to sexual advances
Sexual violence
Intimate-partner violence
Stalking
Gender-based bullying

It is important to Bluffton that individuals feel free to come forward, and not wait until issues of sexual harassment become severe or pervasive prior to reporting the conduct and seeking assistance. Reports of sexual harassment that may not rise to the level of creating a hostile environment will still be investigated and addressed by the university so as to prevent further incidents from occurring.

2. Sexual Assault

Sexual assault is any intentional sexual contact, however slight, by a person upon another person without consent, including instances where a person is incapable of giving consent.

Sexual contact includes:

Rape is any vaginal or anal penetration by a penis, object, tongue or finger, and oral copulation (mouth to genital contact), no matter how slight the penetration or contact, by a person upon another person.

Fondling is the intentional contact with another person’s breasts, buttock, groin or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts without consent, including instances where the person is incapable of giving consent because of age or temporary/permanent mental incapacity.
Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
Statutory Rape is sexual intercourse with a person who is under the statutory age of consent.
Any other intentional bodily contact in a sexual manner.

3. Dating Violence

Dating Violence is violence committed by a person who has been in a social relationship of a romantic or intimate nature with another person. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. The existence of such a relationship will be determined based upon the statement of the Complainant and with the consideration of the length of the relationship, the type of relationship and the frequency of interaction between the persons involved in the relationship.

4. Domestic Violence

Domestic Violence includes felony or misdemeanor crimes committed by a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction receiving grant funding and, in the case of victim services, includes the use or attempted use of physical abuse or sexual abuse, or a pattern of any other coercive behavior commited, enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic or technical abuse that may or may not constitute criminal behavior, by a person who is a current or former spouse or intimate partner of the victim, or personal similarly situated to a spouse of the victim; is cohabitating or has cohabitated with the victim as a spouse or intimate partner, shares a child in common with the victim; or commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the juristiction. To ve an incident of domestic violence, the relationship between the respondent and the complainant must be more than just two people living together as roommates.

5. Stalking

Stalking includes repeated unwanted attention, harassment, physical or verbal contact or any other repeated conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others or suffer substantial emotional distress.

Course of conduct means two or more acts, including but not limited to acts in which the Respondent directly, indirectly or through third parties, by any action, method, device or means, follows, monitors, observes, serviles, threatens or communicates to or about the Complainant or interferes with the Complainant's property.
A reasonable person means a person under similar circumstances and with similar identities to the Complainant.
Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

Stalking includes the concept of cyberstalking. Cyberstalking is a particular form of stalking in which electronic media such as the Internet, social networks, blogs, cell phones, texts or other similar devices or forms of contact are used to pursue, harass or to make unwelcome contact with another person in an unsolicited fashion.

Examples of stalking include, but are not limited to:

Unwelcome and repeated visual or physical proximity to a person
Repeated oral or written threats
Extortion of money or valuables
Unwelcome/unsolicited written communication, including letters, cards, emails, instant messages and messages on online bulletin boards and/or social media
Unwelcome/unsolicited communications about a person, her/his family, friends or co-workers
Sending/posting unwelcome/unsolicited messages with an assumed identity
Direct physical and/or verbal threats against a victim or a victim’s loved ones
Vandalism
Trespassing
Unsolicited and unwanted gifts
Manipulative and controlling behaviors such as threats to harm oneself, or someone close to the victim
Any combination of these behaviors directed toward an individual person

6. Bullying and Intimidation

Bullying includes any intentional electronic, written, verbal or physical act or a series of acts directed at another person or persons on the basis of sex, gender, gender identity or sexual orientation, that is severe, persistent or pervasive and that has the intended effect of substantially interfering with a person’s education or work; creating a threatening environment; or substantially disrupting the orderly operation of the university.

Intimidation includes any verbal, written or electronic threats of violence or other threatening behavior directed toward another person or group on the basis of sex, gender, gender identity or sexual orientation that reasonably leads the person(s) in the group to fear for her/his physical well-being.

7. Sexual Exploitation

Sexual exploitation occurs when one person takes nonconsensual or abusive sexual advantage of another for her/his 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 the other sexual misconduct offenses.

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

Invasion of sexual privacy
Prostituting another person
Nonconsensual digital, video or audio recording of nudity or sexual activity
Unauthorized sharing or distribution of digital, video or audio recording of nudity or sexual activity
Engaging in voyeurism
Going beyond the boundaries of consent (such as letting your friend hide in the closet to watch you having consensual sex)
Knowingly exposing someone to or transmitting a sexually transmitted infection or HIV to another person
Intentionally or recklessly exposing one’s genitals in nonconsensual circumstances
Sexually-based stalking and/or bullying may also be forms of sexual exploitation

8. Indecent Exposure

A person commits indecent exposure if that person exposes her/his genitals or any female exposes her breasts in any public place or in any place where there are other persons present under circumstances in which one knows or should know that this conduct is likely to offend, affront or alarm.

9. Retaliation

The university prohibits any forms of retaliation against an individual or the individual’s family or friends for the purpose of interfering with that individual’s rights or privileges secured under Title IX. This means that the university will not tolerate any form of retaliation taken against anyone who reports or publicly opposes conduct prohibited by this policy, or anyone who cooperates in the investigation of a report of conduct prohibited by this policy. Examples of retaliation can include, but are not limited to bullying, intimidation, threats, coercion, force, etc. The exercise of rights protected under the First Amendment does not constitute retaliation.

Consent, Incapacitation, Coercion & Force

Consent

Consent means an informed, freely given agreement, communicated by clearly understandable words or actions, to participate in each form of sexual activity.

Guidance for consent:

Consent cannot be inferred from silence, passivity or lack of active resistance.
A current or previous dating or sexual relationship is not sufficient to constitute consent, and consent to one form of sexual activity does not imply consent to other forms of sexual activity.
When consent is requested verbally, absence of any explicit verbal response constitutes lack of consent.
A verbal “no” constitutes lack of consent, even if it sounds insincere or indecisive.
Consent is not freely given when it is obtained by force or violence, a threat of force or violence or any other form of physical or psychological coercion or intimidation.
Either person may withdraw consent at any time. Withdrawal of consent may be demonstrated by words or actions that express a desire to end sexual activity. Once withdrawal of consent has been expressed, sexual activity must cease.
A person who is the object of sexual aggression is not required to physically or otherwise resist the aggressor; the lack of informed, freely given consent to sexual contact constitutes sexual misconduct.
Intoxication is not an excuse for failure to obtain consent.
A person incapacitated by alcohol or drug consumption, or who is unconscious or asleep or otherwise physically or mentally impaired, is incapable of giving consent.
A person who is below the legal age of consent is incapable of giving consent.

Incapacitation

Bluffton University utilizes the Ohio Revised Code definition of an incapacitated person which means “a person who is impaired for any reason to the extent that he/she lacks sufficient understanding or capacity to make and carry out reasonable decisions concerning the person’s self or resources.”

In evaluating consent in cases of alleged incapacitation, the university asks two questions: 1) Did the person initiating sexual activity know that the other party was incapacitated? and, if not, 2) Should a sober, reasonable person, in the same situation, have known that the other party was incapacitated? If the answer to either of these questions is “yes,” consent was absent and the conduct is likely a violation of this policy.

One is not expected to be a medical expert in assessing incapacitation. One must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, typical signs often include slurred or incomprehensible speech, unsteady manner of walking, combativeness, emotional volatility, vomiting or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: Do you know where you are? Do you know how you got here? Do you know what is happening? Do you know whom you are with?

Coercion

Coercion is conduct, including intimidation and express or implied threats of immediate or future physical, emotional, reputational, financial or other harm toward another, that would reasonably place the other in fear, and that is used to compel the other individual to engage in an activity.

Force

Force is the use or threat of violence or intimidation to overcome an individual’s freedom of will to choose whether to participate in an activity.