Sexual Misconduct Prohibited Conduct
DEFINITIONS
Cumberland University will not tolerate sexual assault, domestic violence, dating violence, or stalking, as defined in this Policy, in any form. Such acts of violence are prohibited by University policy, as well as state and federal laws. Individuals who the University determines more likely than not engaged in these types of behaviors are subject to penalties up to and including dismissal or separation from the University, regardless of whether they are also facing criminal or civil charges in a court of law.
This Policy prohibits the following conduct:
▪ Sexual Misconduct
▪ Sexual Assault
▪ Nonconsensual Sexual Penetration
▪ Nonconsensual Sexual Contact
▪ Sexual Harassment
▪ Sexual Exploitation
▪ Relationship Violence
▪ Stalking
▪ Retaliation
SEXUAL MISCONDUCT
“Sexual Misconduct” is an umbrella term that encompasses Sexual Assault, Sexual Harassment, and Sexual Exploitation.
SEXUAL ASSAULT
“Sexual Assault” is an umbrella term that encompasses Nonconsensual Sexual Penetration; Nonconsensual Sexual Contact; and conduct that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s Uniform Crime Reporting program.
NONCONSENSUAL SEXUAL PENETRATION
“Nonconsensual Sexual Penetration” means Sexual Penetration, however slight, performed upon another person that occurs without that person’s Consent. “Sexual Penetration” means penetration of a vagina or anus by a penis, object, tongue, finger, or other body part; or contact between the mouth of one person and the genitals or anus of another person.
NONCONSENSUAL SEXUAL CONTACT
“Nonconsensual Sexual Contact” means Sexual Contact, however slight, performed upon another person that occurs without that person’s Consent. “Sexual Contact” means intentional physical contact with another person’s breasts, buttocks, groin, or genitals, whether clothed or unclothed; intentional contact with another person using one’s breasts, buttocks, groin, or genitals, whether clothed or unclothed; causing another person to physically contact oneself with or on the other person’s breasts, buttocks, groin, or genitals, whether clothed or unclothed; or any other type of intentional physical contact done in a sexual manner or for the purpose of sexual arousal or gratification, based on the perspective of a Reasonable Person.
CONSENT
“Consent” means an active agreement to participate in Sexual Contact or Sexual Penetration. An active agreement is words and/or conduct that communicate a person’s willingness to participate in Sexual Contact or Sexual Penetration.
The following individuals cannot give valid Consent:
▪ A person who is Incapacitated, if either the person claiming to have obtained Consent knows that the other person is Incapacitated or a Reasonable Person would know that the other person is Incapacitated;
▪ A person who is Forced to participate in Sexual Contact or Sexual Penetration; or
▪ A person who is under the age of eighteen (18), unless the person giving Consent is at least the age of thirteen (13) and the other person is less than four (4) years older than the person giving Consent.
FORCE
“Force (Forced)” means words and/or conduct that, viewed from the perspective of a Reasonable Person, substantially impair(s) a person’s ability to voluntarily choose whether to participate in Sexual Contact or Sexual Penetration.
Examples of Force include, without limitation:
▪ Physical force (e.g., hitting, punching, slapping, kicking, restraining, choking, kidnapping, using a weapon, blocking access to an exit);
▪ Words and/or conduct that would cause a Reasonable Person to fear:
▪ Physical force or other harm to the person’s health, safety, or property, or a third person’s health, safety, or property;
▪ Loss or impairment of an academic benefit, employment benefit, or money;
▪ Disclosure of sensitive personal information or information that would harm a person’s reputation;
▪ Disclosure of video, audio, or an image that depicts the person’s nudity or depicts the person engaging in Sexual Contact or Sexual Penetration; or
▪ Other immediate or future physical, emotional, reputational, financial, or other harm to the person or a third person.
Force is something more than seduction or persuasion.
INCAPACITATION
“Incapacitation (Incapacitated)” means a temporary or permanent physical or mental state in which a person cannot make an informed, rational judgment about whether to Consent to Sexual Contact or Sexual Penetration because: (1) the person lacks the physical or mental capacity to understand the nature or consequences of their words and/or conduct (i.e., cannot understand the “who, what, when, where, why, and/or how” of their words and/or conduct); and/or (2) the person is unable to physically and/or verbally communicate and/or withdraw Consent.
Incapacitation can be voluntary or involuntary. Signs of Incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness of circumstances or surroundings; emotional volatility; combativeness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances. Alcohol and drugs are common causes of Incapacitation. When alcohol or drugs are involved, Incapacitation is a state beyond mere drunkenness or intoxication.
SEXUAL HARASSMENT
With respect to conduct by anemployee or other non-student, “Sexual Harassment” means words and/or conduct of a sexual nature prohibited by Sexual Misconduct Policy.
With respect to conduct by a student, “Sexual Harassment” means (1) unwelcome words and/or conduct, (2) that are sexual in nature, sex-based, and/or gender-based, (3) that are pervasive, persistent, or sufficiently severe, (4) that are objectively offensive, and (5) that unreasonably deny, unreasonably limit, or unreasonably interfere with a person’s ability to participate in or benefit from a University educational program or activity. In no event shall the term “Sexual Harassment” be construed to prohibit speech protected by the First Amendment to the United States Constitution (e.g., mere insulting or offensive speech). Sexual Harassment may include, for example, unwelcome sexual advances, requests for sexual favors, Sexual Assault, and Sexual Exploitation. To determine whether words and/or conduct constitute Sexual Harassment, the University will consider the totality of the circumstances, including without limitation: the context in which the conduct and/or words occurred; and the frequency, nature, and severity of the words and/or conduct. Depending on the severity of the words and/or conduct, a single incident (e.g., Sexual Assault) may be considered Sexual Harassment.
SEXUAL EXPLOITATION
“Sexual Exploitation” means taking sexual advantage of another person, without that person’s activeagreement. An active agreement is words and/or conduct that communicate a person’s willingness to participate in an act.
Examples of Sexual Exploitation include, without limitation:
▪ Surreptitiously observing, photographing, audiotaping, videotaping, or recording an image of a person who is engaging in Sexual Contact or Sexual Penetration, or a person’s breasts, buttocks, groin, or genitals, when the person being observed/photographed/audiotaped/videotaped/recorded is in a place in which the person has a reasonable expectation of privacy;
▪ Allowing or enabling a person to surreptitiously observe, photograph, audiotape, videotape, on record an image of another person who is engaging in Sexual Contact or Sexual Penetration, or another person’s breasts, buttocks, groin, or genitals, when the person being observed/photographed/audiotaped/videotaped/recorded is in a place in which the person has a reasonable expectation of privacy;
▪ Showing, posting, or sharing video, audio, or an image that depicts a person who is engaging in Sexual Contact or Sexual Penetration, or a person’s breasts, buttocks, groin, or genitals, when the person being observed/photographed/audiotaped/videotaped/recorded is in a place in which the person has a reasonable expectation of privacy, if all persons who are depicted have not agreed to having the video/audio/image shown, posted, or shared; ▪ Prostituting another person or engaging in sex trafficking; or ▪ Knowingly exposing another person to a sexually transmitted infection or disease without informing the other person that one has a sexually transmitted infection or disease;
▪ Forcing a person to participate in Sexual Contact or Sexual Penetration with a person other than oneself; or Forcing a person to expose the person’s breasts, buttocks, groin, or genitals;
▪ Forcing a person to take an action against that person’s will by threatening to show, post, or share video, audio, or an image that depicts the person’s nudity or depicts the person engaging in Sexual Contact or Sexual Penetration; or
▪ Forcing a person to take an action against that person’s will by threatening to disclose sensitive personal information or information that would harm a person’s reputation;
▪ Causing or requesting an Incapacitated person to expose the person’s breasts, buttocks, groin, or genitals.
A person cannot actively agree to an act if: (1) the person is Incapacitated, if either the person claiming to have obtained Consent knows that the other person is Incapacitated or a Reasonable Person would know that the other person is Incapacitated; or (2) the person is Forced to participate in the act.
RELATIONSHIP VIOLENCE
“Relationship Violence” means an act of violence, or a threat of an act of violence, committed by a person who is or has been in a sexual, dating, spousal, romantic, familial, or other intimate relationship with the Complainant.
▪ “Act of violence, or a threat of an act of violence” means: causing physical harm to any person; endangering the health, safety, or welfare of any person; engaging in conduct that causes a Reasonable Person to fear harm to their health or safety; or making an oral or written statement that a Reasonable Person hearing or reading the statement would interpret as a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.
▪ The existence of a sexual, dating, spousal, romantic, familial, or other intimate relationship shall be determined based on the totality of the circumstances including, without limitation: (1) the length of the relationship; (2) the type of relationship; and (3) the frequency of interaction between thepersons involved in the relationship.
Relationship Violence also may be a form of Sex Discrimination prohibited by federal and state anti-discrimination laws, such as Title VII and Title IX, and/or may constitute a crime in Tennessee.
Relationship Violence does not include roommates who do not have an intimate relationship.
STALKING
“Stalking” means engaging in a course of conduct directed at a specific person, regardless of one’s relationship with that person, which would cause a Reasonable Person to: (1) fear for the person’s safety or the safety of another person; and/or (2) suffer substantial emotional distress. “Course of conduct” means two or more acts, including, but not limited to, acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates with or about another person, or interferes with another person’s property. “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
Acts that may be involved in a course of conduct include, without limitation:
▪ Cyber-stalking, a particular type of stalking in which electronic media such as the internet, socialnetworks, apps, blogs, texts, cell phones, or a similar action, method, device, or means is used;
The University also prohibits “domestic violence” and “dating violence” as defined by the Clery Act.
▪ Following a person;
▪ Being or remaining in close proximity to a person;
▪ Entering or remaining on or near a person’s property, residence, or place of employment;
▪ Monitoring, observing, or conducting surveillance of a person;
▪ Threatening a person (directly or indirectly);
▪ Giving gifts or objects to, or leaving items for, a person; or
▪ Damaging or harming a person’s property (including pets) or interfering with a person’s use of property.
Stalking also may be a form of Sex Discrimination prohibited by federal and state antidiscrimination laws, such as Title VII and Title IX, and/or may constitute a crime in Tennessee.
RETALIATION
“Retaliation” means an action taken because of a person’s participation in a protected activity and that would discourage a Reasonable Person from engaging in protected activity. “Protected activity” means a person’s good faith: (1) opposition to Prohibited Conduct or assisting a person who opposes Prohibited Conduct; (2) report of Prohibited Conduct to the University, the police, or to a state or federal agency or assisting a person who reports Prohibited Conduct; (3) participation (or reasonable expectation of participation) in any manner (e.g., in an investigation, proceeding, or hearing relating to Prohibited Conduct) or requesting an Interim Measure under this Policy; and/or (4) exercise of rights or responsibilities under any provision of the Clery Act. An action is not taken in good faith if done with knowing or reckless disregard for information that would negate the accuracy of the report or information. Retaliation is a violation of this Policy regardless of whether the underlying allegation of a violation of this Policy is ultimately found to have merit.
REASONABLE PERSON
“Reasonable Person” means a sober, objectively reasonable person in the same situation, with ordinary sensitivities, and with similar identities as the person whose words and/or conduct are being evaluated by the University.