Definitions

Definitions of Sexual Violence

Samuel Merritt University holds that sexual violence has no place in the academic environment and the University will not tolerate it.  Additionally, under CA State and Federal laws, sexual violence (inclusive of, but not limited to: sexual harassment, sexual misconduct, dating violence, domestic violence, stalking and sexual assault of employees or students) is illegal.  Samuel Merritt University seeks to eliminate sexual violence through education and by encouraging faculty, staff, and students to report concerns or complaints.  The University takes the matter of sexual violence very seriously; indeed, the University and individual employees and/or students may be legally liable for acts of sexual violence. Therefore, any acts of sexual violence should be reported immediately to the Executive Director of Human Resources (Title IX Coordinator).  After a thorough investigation, anyone found to have violated this policy will be subject to disciplinary action —up to and including dismissal/discharge from the University. See the SMU Sexual Violence Policy and Reporting Page for more information.

Samuel Merritt University uses an “affirmative consent” standard, whereas:

  • Consent is informed and an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct.
  • Consent is voluntary.  It must be given without coercion, force, threats, or intimidation.  Consent is an expression of free will.
  • Consent is revocable.  Consent in some form of sexual activity does not imply consent to other forms of sexual activity.  Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion.  A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent.  Even in the context of a relationship, there must be mutual consent to engage in sexual activity.  Consent must be ongoing throughout a sexual encounter and can be revoked at any time.  Once consent is withdrawn, the sexual activity must stop immediately.
  • Consent cannot be given when a person is incapacitated.  A person cannot consent if she/he/ze is under the influence of drugs, alcohol, or medication, unconscious or coming in and out of consciousness. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy. 
    • It is not an excuse that the individual responding party of sexual misconduct was intoxicated and, therefore, did not realize the incapacity of the other.
    • Incapacitation is defined as a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also covers a person whose incapacity results from mental disability, involuntary physical restraint and/or from the taking of incapacitating drugs.
    • A person cannot consent if she/he/ze is under the threat of violence, bodily injury or other forms of coercion.A person cannot consent if his/her/hir understanding of the act is affected by a physical or mental impairment.
    • In the evaluation of any allegation it is not a valid excuse to alleged lack of affirmative consent that the responding party believed that the Reporting Party consented to the sexual activity under either of the following circumstances:
      • (A) The Responding Party’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
      • (B) The Responding Party did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the Reporting Party affirmatively consented.
  • Consent can not be given by a minor. In The State of California a minor (meaning a person under the age of 18 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 18 years old is a crime, as well as a violation of this policy, even if the minor wanted to engage in the act.

The state definition of consent can be found here. These penal codes are applicable to criminal prosecutions for sex offenses in California, but may differ from the definition used by Samuel Merritt University to address policy violations.  For a more information on consent click here

Definition of Sexual Misconduct
Sexual misconduct includes a range of behaviors used to obtain sexual contact against a person's will.  Sexual misconduct is defined as sexual contact without consent by someone you know or a stranger and includes:  intentional touching without consent, either of the victim or when the victim is forced to touch, directly or through clothing, another person's genitals, breast, groin, thighs or buttocks; rape (sexual intercourse without consent whether by someone you know or stranger); attempted rape; sodomy (oral or anal intercourse) without consent; or sexual penetration with an object without consent.

State law defines various violent and/or non-consensual sexual acts as crimes. Additionally, Samuel Merritt University has defined categories of sexual misconduct, as stated below, for which action under this policy may be imposed. Generally speaking, the University considers Non-Consensual Sexual Intercourse violations to be the most serious, and therefore typically imposes the most severe sanctions, including suspension or expulsion for students and termination for employees. However, the University reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any act of sexual misconduct or other gender-based offenses, including intimate partner or relationship (dating and/or domestic) violence, non-consensual sexual contact and stalking based on the facts and circumstances of the particular complaint. Acts of sexual misconduct may be committed by any person upon any other person, regardless of the sex, gender, sexual orientation and/or gender identity of those involved.

Violations include:

  1. Sexual Harassment (as defined below)
  2. Non-Consensual Sexual Intercourse. Defined as:
  • any sexual penetration or intercourse (anal, oral or vaginal). Sexual penetration includes vaginal or anal penetration by a penis, tongue, finger or object, or oral copulation by mouth to genital contact or genital to mouth contact.
  • however slight
  • with any object
  • by a person upon another person
  • that is without consent and/or by force

       3. Non-Consensual Sexual Contact. Defined as:

  • any intentional sexual touching. Sexual touching includes any bodily contact with the breasts, groin, genitals, mouth or other bodily orifice of another individual, or any other bodily contact in a sexual manner.
  • however slight
  • with any object
  • by a person upon another person
  • that is without consent and/or by force

4. Sexual Exploitation
Sexual Exploitation refers to a situation in which a person takes non-consensual or abusive sexual advantage of another, and situations in which the conduct does not fall within the definitions of Sexual Harassment, Non-Consensual Sexual Intercourse or Non-Consensual Sexual Contact. Examples of sexual exploitation include, but are not limited to:

  • Sexual voyeurism (such as watching a person undressing, using the bathroom or engaged in sexual acts without the consent of the person observed)
  • Taking pictures or video or audio recording another in a sexual act, or in any other private activity without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent)
  • Sexual exploitation also includes engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) and without informing the other person of the infection, and further includes administering alcohol or drugs (such as “date rape” drugs) to another person without his or her knowledge or consent

 

Definition of Sexual Harassment
SMU Policy defines sexual harrassment as follows:

1.     The prohibition applies to all staff employees and students, and in particular to supervisors (including direct supervisory and other management staff).  A sexual advance violates this policy regardless of whether the advance is expressly related to the affected employee’s/student’s employment/academic status. It is improper to make sexual advances, ask for, demand or seek by subtle pressure sexual favors or activity from an employee/student, or to subject another employee/student to verbal or physical conduct of a sexual nature where:

  • The submission to such behavior is a condition of any employment/academic opportunity, benefit, job retention, grade; or
  • The submission to or rejection of such conduct is used as a basis for employment/academic decisions; or
  • Such conduct has the purpose or the effect of unreasonably interfering with the individual’s work/academic performance; or
  • Such conduct creates an intimidating, hostile, or offensive work/academic environment.

2.     It is improper for an employee/student to make sexual advances or to offer or suggest sexual favors or activity in exchange or in consideration for any personnel/academic action.

3.     It is improper to retaliate against an employee/student for refusing a sexual advance or for refusing a request, demand or pressure for sexual favors or activity or to retaliate against an employee/student who has reported an incident of possible sexual harassment to the University or to any government agency.

4.     It is not possible to identify each and every act which constitutes or may constitute sexual harassment.  However, certain conduct is clearly improper and is strictly prohibited.  Persons engaging in this conduct, or other similar acts, will be subject to discipline up to and including dismissal from the University.  Such acts might include:

a.     Any unwanted, intentional touching of an employee/student by another may be sexual harassment and is prohibited.  Due to the possibility of misinterpretation of acts by other employees/students, the University discourages all roughhousing or physical contact, except that contact necessary and incidental to an employee’s job/student’s academic status. Further, certain kinds of physical conduct in the work/academic environment are particularly inappropriate and may be grounds for immediate discipline, including dismissal from the University. That conduct includes, but is not limited to:

  • Kissing or attempting to kiss an employee/student;
  • Touching or attempting to touch or pretending to touch the breasts, buttocks or genitals of an employee/student;
  • Physically restraining by force or blocking the path of an employee/student when accompanied by other conduct of a sexual nature;
  • Any other touching or attempted touching reasonably interpreted to be of a sexual nature.

b.     Sexual advances, unwelcome requests, demands, or subtle pressure for sexual favors or activity, lewd comments and sexual innuendoes are also prohibited. This conduct includes, but is not limited to:

  • Comments to an employee/student or others about the body of an employee/student which are intended to draw attention to the sex of the employee/student or can reasonably be interpreted to draw attention to the sex of the employee/student;
  • Comments to the employee/student or others about the sexual conduct, capability, or desirability of an employee/student;
  • Cat calls, whistles, or other conduct reasonably interpreted to be of a sexual nature.

c.     Sexually suggestive gestures are also prohibited.

d.     It is improper to subject employees/students to photographs, cartoons, articles, or other written or pictorial materials of a sexual nature after the employee/student has expressed his/her/hir displeasure with such activity. These materials may be offensive to the public as well and should not be on display in offices or public areas in any event.

e.     This policy is not intended to prohibit employees/students from asking other employees/students for social engagements.  However, repeated requests where prior social invitations have been refused can be interpreted as sexual harassment.  Employees/students should refrain from persistent invitations after an employee/student has indicated that such invitations are unwelcome.

Definition of Dating Violence
The term “dating violence” means violence committed by a person: Who is or has been in a social relationship of a romantic or intimate nature with the victim; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship; the type of relationship; and the frequency of the interaction between the persons involved in the relationship. See examples of dating abuse/violence here

Definition of Domestic Violence
The term ‘‘domestic violence’’ includes 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 of the jurisdiction receiving grant monies, 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 of the jurisdiction.

Definition of Stalking
The term ‘‘stalking’’ means engaging in a course of conduct, regardless of medium used, that is directed at a specific person that would cause a reasonable person to— (A) fear for his/her/hir safety or the safety of others; or (B) suffer substantial emotional distress.

Like other forms of sexual violence, stalking is a crime of power and control. Stalking is conservatively defined as "a course of conduct directed at a specific person that involves repeated (two or more occasions) visual or physical proximity, nonconsensual communication, or verbal, written, or implied threats, or a combination thereof, that would cause a reasonable person fear." (National Institute of Justice).   Stalking behaviors also may include persistent patterns of leaving or sending the victim unwanted items or presents that may range from seemingly romantic to bizarre, following or laying in wait for the victim, damaging or threatening to damage the victim's property, defaming the victim's character, or harassing the victim via the Internet by posting personal information or spreading rumors about the victim. For more info see Stalking Internet Resources below and Here

Definition of Sexual Assault
The term sexual assault refers to sexual contact or behavior that occurs without explicit consent of the victim. Some forms of sexual assault include:

  • Penetration of the victim’s body, also known as rape
  • Attempted rape
  • Forcing a victim to perform sexual acts, such as oral sex or penetrating the perpetrator’s body
  • Fondling or unwanted sexual touching

What is rape?
Rape is a form of sexual assault, but not all sexual assault is rape. The term rape is often used as a legal definition to specifically include sexual penetration without consent. For its Uniform Crime Reports, the FBI defines rape as “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 victim.”

It is important to note that force doesn’t always refer to physical pressure. Perpetrators may use emotional coercion, psychological force, or manipulation to coerce a victim into non-consensual sex. Some perpetrators will use threats to force a victim to comply, such as threatening to hurt the victim or their family or other intimidation tactics.

The conduct described in this policy is strictly prohibited.  If anyone, including non-employees/non-students, engages in such conduct, it is important that the conduct be reported to the Executive Director of Human Resources.  It is not possible for the University to enforce this policy if incidents of harassment are not reported.  The procedure to follow if the student feels that he/she/ze has been subjected to sexual harassment/sexual misconduct is set forth in this Catalog/Handbook
 

Internet Resources:

Sexual Assault

Dating and Domestic Violence

Stalking