Sexual Misconduct Definitions and Violations
The following are the definitions of applicable terms and prohibited conduct per Board Policy 3020.
Sexual Assault
Sexual assault shall mean an offense classified as a forcible or non-forcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. Sexual assault is contact or sexual penetration that occurs without the consent of the recipient.
Sexual contact means the intentional touching of a person’s intimate parts or the intentional touching of a person’s clothing covering the immediate area of the person’s intimate parts. Sexual contact also includes when a person is forced to touch another person’s intimate parts or the clothing covering the immediate area of the person’s intimate parts. Sexual contact shall include only such contact that can be reasonably construed as being for the purpose of sexual arousal or gratification of either party.
Sexual penetration means sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse or any intrusion of any part of the person’s body or of a manipulated object into the genital or anal openings of another person.
Sexual Violence
Sexual violence is any intentional act of sexual contact (touching or penetration) that is accomplished toward another without his/ her consent. Such acts may include, but are not limited to, forced oral sex, forced anal penetration, insertion of foreign objects into the body, and any act of sexual intercourse against someone’s will.
This includes, but is not limited to, the use of a weapon, physical violence or restraint, verbal threats, intimidation, and threats of retaliation or harm. Sexual violence includes sexual assault as defined in this policy.
Consent
Consent is positive cooperation in the act or expressing intent to engage in the act.
The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. A person who is giving consent cannot be incapacitated by drugs or alcohol, unconscious, passed out, coming in and out of consciousness, under the threat of violence, injury, or other forms of coercion, and cannot have a disorder, illness, or disability that would impair his/her understanding of the act or his/her ability to make decisions.
- A person who is giving consent cannot be forced, coerced, or deceived into providing it.
- A person may express a lack of consent through words or conduct. A person need only resist, either verbally or physically, so as to make the person’s refusal to consent genuine and real and so as to reasonably make known to the actor the person’s refusal to consent. A person need not resist verbally or physically where it would be useless or futile to do so.
- The presence or absence of consent is based on the totality of circumstances, including the context in which an alleged incident occurred. The fact that a student was under the influence of drugs/alcohol may be considered in determining whether that person had consented to the act in question. Consent may not be inferred from silence or passivity alone.
Sexual Harassment
Sexual harassment is unwelcome conduct of a sexual nature. Sex harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Federal law (specifically, Title IX) prohibits student-on-student discrimination, including hostile environment sex harassment and hostile environment gender harassment. (Gender harassment may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, sexual orientation, and/or gender identity, even if those acts do not involve conduct of a sexual nature.) Harassment does not have to include an intent to harm, be directed at a specific target, or involve repeated incidents. (For instance, as detailed below, a single instance of unwelcome physical contact of a sexual nature could constitute unlawful sex or gender harassment.) Sex and/or gender harassment creates a hostile environment for the student-victim when it is so severe, pervasive, or persistent that it interferes with or limits the victim student’s ability to participate in or benefit from the College's services, activities, or opportunities because of his or her sex or gender. Sex harassment includes dating violence, domestic violence, and stalking as defined in this policy.
Dating Violence
Dating violence is violence (violence includes, but is not limited to sexual or physical abuse or the threat of such abuse) committed by a person (a) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (b) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) the length of the relationship, (ii) the type of relationship, (iii) the frequency of interaction between the persons involved in the relationship. Dating violence can occur when one person purposely hurts or scares someone they are dating. Dating violence can be physical, emotional, and/or sexual abuse.
Domestic Violence
Domestic violence shall mean felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws. Domestic violence includes patterns of abusive behavior in relationships used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behavior that intimidates, manipulates, humiliates, isolates, frightens, terrorizes, coerces, threatens, blames, hurts, injures, or wounds someone.
Stalking
Stalking shall mean engaging in a course of conduct directed at a specific person that would cause a reasonable person to (a) fear for his or her safety or the safety of others; or (b) suffer substantial emotional distress. Stalking includes a pattern of repeated and unwanted attention, harassment, contact or any other course of conduct directed at a specific person that would cause a reasonable person to feel fear. Stalking may include: repeatedly communicating with, following, threatening, or spreading rumors about a person who does not want the attention.
Retaliation
Retaliation is any adverse action taken against a person participating in a protected activity because of that person’s participation in that protected activity.
Sanctions range from warning through expulsion/termination.
Consent
While “consent” is defined under Board Policy 3020, here is some additional information that may help in understanding this important concept.
Since different people may experience the same interactions differently, each party is responsible for making sure that partners have provided ongoing, clear consent to engaging in any sexual activity or contact.
A person may withdraw consent at any time during sexual activity or contact through words or actions. If that happens, the other party must immediately cease the activity or contact. Pressuring another person into sexual activity can constitute coercion, which is also considered to be sexual misconduct.
Silence or the absence of resistance alone does not constitute consent. A victim is not required to resist or say “no” for an offense to be proven.
Consent to some forms of sexual activity (e.g., kissing, fondling, etc.) should not be construed as consent for other kinds of sexual activities (e.g., intercourse).
Being or having been in a dating relationship with the other party does not mean that consent for sexual activity exists.
Previous consent to sexual activity does not imply consent to sexual activity in the future.
In Nebraska, the age of majority is 19.
Force
Force is defined as direct or indirect use of physical violence and/or imposing physically on someone to gain sexual access. Force, unless part of mutually permissible kink, is a clear demonstration of a lack of consent.
Incapacitation
Incapacitation is defined as a state in which individuals are unable to make rational, reasonable decisions because they lack the capacity to understand the “who, what, when, where, why, or how” of a situation or interaction. Individuals cannot give sexual consent if they can’t understand what is happening, or if they are disoriented, helpless, asleep, or unconscious for any reason. That applies even if it is because they voluntarily consumed alcohol or drugs. Unless consent is “knowing,” it is not valid. Those engaging in sexual activity who know or should have known that the other party is incapacitated are engaging in sexual misconduct. The fact that a responding party was intoxicated, and thus did not realize the reporting party was incapacitated, does not excuse sexual misconduct.