SECTION 4: PROHIBITED CONDUCT

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The University prohibits the following forms of conduct under this policy no matter where the behavior occurs, whether in person or online:

4.1. SEXUAL HARASSMENT

Title IX Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following:
- Sexual Assault includes the sex offenses of Rape, Sodomy, Sexual Assault with an Object, Fondling, Incest, and Statutory Rape. The University’s definition of Sexual Assault is mandated by federal regulations implementing Title IX of the Education Amendments of 1972. Those regulations require the University to adopt a definition of “Sexual Assault” that incorporates various forcible and non-forcible sex crimes as defined by the FBI’s Uniform Crime Reporting System; see 34 C.F.R. § 106.30(a).
- Domestic Violence is a felony or misdemeanor crime of violence committed: (1) By a current or former spouse or intimate partner of the complainant; (2) By a person with whom the complainant shares a child in common; (3) By a person who is cohabitating with, or has cohabitated with, the complainant as a spouse or intimate partner; (4) By a person similarly situated to a spouse of the complainant under the domestic or family violence laws as defined by state law; (5) By any other person against an adult or youth complainant who is protected from that person’s acts under the domestic or family violence laws of the state of Virginia. (6) Note: The relationship between the respondent and complainant must be more than just two people living together to qualify as Domestic Violence.
- Dating Violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant. The existence of such a relationship shall be determined based on the complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between persons involved in the relationship. For the purposes of this definition: (1) Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse; (2) Dating violence does not include acts covered under the definition of domestic violence.
- Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their own safety or the safety of others or to suffer substantial emotional distress. For the purposes of this definition: (1) Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property. (2) Reasonable person means a reasonable person under similar circumstances and with similar identities to the complainant. (3) Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

An employee of the college conditioning the provision of an aid, benefit, or service of the college on an individual’s participation in unwelcome sexual conduct (“quid pro quo sexual harassment”);
Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the college’s education program or activity (“hostile environment sexual harassment”); or
Sexual Assault, Domestic Violence, Dating Violence, or Stalking, defined as:

4.1.1. Examples of Sexual Assault

Examples of behavior that may constitute sexual assault include, but are not limited to, the following:

Engaging in sexual activity with an unconscious or semi-conscious person;
Engaging in sexual activity with someone who is asleep or passed out;
Engaging in sexual activity with someone who has said “no” or has otherwise indicated through non-verbal communication that they do not consent to sexual activity;
Engaging in sexual activity with someone who is vomiting, unable to stand without assistance, or has to be carried to bed;
Allowing another person to engage in sexual activity with your sexual partner without the partner’s consent;
Requiring any person to perform any sexual activity as a condition of acceptance into any organization affiliated with the University;
Telling someone you will “out” them if they don’t engage in sexual activity (e.g., threatening to disclose the person’s sexual orientation without their consent); or
Facilitating or assisting in a sexual assault, including purchasing or providing alcohol or drugs to further a sexual assault.

4.2. OTHER PROHIBITED CONDUCT

This policy prohibits other sex and gender-based misconduct which may not fall under the definitions of Title IX but which is still unacceptable for the EMU community. These violations are broadly grouped as “other prohibited conduct” for the purposes of the RVSM policy.

4.2.1 RELATIONSHIP VIOLENCE

Relationship violence is a broad term used by EMU to categorize types of violence, threats, coercion, or intimidation, other than sexual harassment, that occurs in the context of an intimate relationship, often including emotional, psychological, physical, or fiscal abuse, which results in a hostile environment. An incident of relationship violence can consist of a single act or a pattern of acts. Incidents of relationship violence can occur separate from or in tandem with incidents of sexual misconduct and/or sexual harassment.

4.2.2. SEXUAL MISCONDUCT

This policy prohibits sexual misconduct, which is defined to include other forms of misconduct, on the basis of sex, that is not within the definition of sexual harassment. Sexual misconduct encompasses sexual exploitation, indecent exposure, and sexual discrimination (definitions provided below). Sexual misconduct may occur through physical violence, the threat of violence, and/or coercion.

An incident of sexual misconduct can consist of a single act or a pattern of acts. Incidents of sexual misconduct can occur separate from or in tandem with incidents of relationship violence.

4.2.2.1. SEXUAL EXPLOITATION

Sexual exploitation is purposely or knowingly doing any of the following:

Causing the impairment or incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give affirmative consent to sexual activity;

Allowing third parties to observe sexual activity from a hidden location (e.g., a closet) or through electronic means (e.g., live-streaming of images);

Engaging in voyeurism (e.g., watching private sexual activity without the consent of the participants or viewing another person’s private body parts in a place where that person would have a reasonable expectation of privacy);

Recording or photographing sexual activity and/or a person’s private body parts (including genitalia, groin, breasts, or buttocks) without affirmative consent;

Disseminating or posting images of private sexual activity and/or a person’s private body parts (including genitalia, groin, breasts, or buttocks) without affirmative consent;

Prostituting oneself or another person.

4.2.2.2. SEXUAL DISCRIMINATION

Sexual discrimination is defined as discrimination, on the basis of sex, in the form of unwelcome and harassing conduct that results in a hostile environment. Sexual discrimination includes unwelcome sexual advances, unwelcome requests for sexual favors, or other unwelcome behavior of a sexual nature.

4.2.2.3. INDECENT EXPOSURE

Indecent exposure occurs when a University employee, student, or vendor purposely and knowingly exposes their sexual organs to the Complainant without the Complainant’s consent.

4.2.3. GENDER-BASED HARASSMENT

Gender-based harassment includes harassment based on gender, sexual orientation, gender identity, or gender expression that may include acts of aggression, intimidation, or hostility, whether verbal or non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature, when the conditions outlined below are present:

Submission to, or rejection of, such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any University programs and/or activities (quid pro quo harassment); or

Submission to or rejection of such conduct is used as the basis for University decisions affecting the individual (quid pro quo harassment); or

Conduct that creates a hostile environment.

4.2.4. RETALIATION

Retaliation is the prohibited conduct of the University or any member of the EMU community to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by law or this policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sex harassment, but arise out of the same facts or circumstances as a report or formal complaint under this policy, for the purpose of interfering with any right or privilege secured by this policy constitutes retaliation.

4.2.5. HOSTILE ENVIRONMENT

A hostile environment is created when unwelcome conduct of a sexual or gender-based nature unreasonably interferes with, limits, or effectively denies an individual’s ability to participate in or benefit from their employment or educational program/activity, or creates an intimidating, threatening or abusive employment, educational, and/or living environment. It will be necessary, but not enough, that the conduct was unwelcome to the person who was harassed. The University will also need to find that a reasonable person in the individual’s position would have perceived the conduct as undesirable or offensive in order for that conduct to create or contribute to a hostile environment. To make the ultimate determination of whether a hostile environment exists for an individual, the University considers a variety of factors, including:

The type, frequency, and duration of the conduct;

The identity and relationships of persons involved;

The number of individuals involved;

The location of the conduct and the context in which it occurred; and,

The degree to which the conduct affected one or more student’s education or employee’s employment.

A hostile environment results from harassing verbal, written, graphic, or physical conduct that is severe or pervasive and objectively offensive. A single, isolated incident of sexual or gender-based harassment may, based on the facts and circumstances, be sufficient to create a hostile environment. Likewise, a series of incidents, whether occurring close in time or not to each other, may be sufficient to create a hostile environment, even if each incident is not particularly severe.

4.2.6. COMPLICITY

Complicity is any act taken with the purpose of aiding, facilitating, protecting, promoting, or encouraging the commission of an act of relationship violence, sexual misconduct, sexual harassment, or other forms of conduct prohibited under this policy by another person.

Anyone who is Complicit in any of the prohibited acts outlined in this policy will be in violation of this policy and will be subject to disciplinary action.

4.2.7. VIOLATIONS OF LAW

Behavior that violates this policy may also constitute a crime under the laws of the jurisdiction in which the incident occurred. For example, the Commonwealth of Virginia criminalizes and punishes some forms of sexual assault, intimate partner violence, sexual exploitation, stalking, and physical assault. The criminal statutes that may apply in cases of physical assault and intimate partner violence are found in various sections of Chapter 4, Articles 1 (Homicide) and 4 (Assaults and Bodily Woundings), of Title 18.2 of the Code of Virginia. The criminal statutes relating to sexual assault are found in Sections 18.2-61 to 18.2-67.10 of the Code of Virginia. Section 18.2-60.3 of the Code of Virginia defines and identifies the penalty for criminal stalking. Finally, Sections 18.2-386.1 and 18.2-386.2 of the Code of Virginia provide for criminal penalties in some cases of sexual exploitation. This compilation of criminal statutes is not exhaustive, but is offered to notify the University community that some forms of conduct prohibited under this policy may also constitute crimes under Virginia, Pennsylvania and the District of Columbia law, which may subject a person to criminal prosecution and punishment in addition to any sanctions under this policy.