SUNY Definitions for Sexual Misconduct
Accused: A person accused of a violation who has not yet entered an Institution's judicial or conduct process.
Affirmative Consent: Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression.
- a) Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
b) Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
c) Consent may be initially given but withdrawn at any time.
d) Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
e) Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
f) When consent is withdrawn or can no longer be given, sexual activity must stop.
Bystander: A person who observes a crime, impending crime, conflict, potentially violent or violent behavior, or conduct that is in violation of rules or policies of an institution.
Clery Act: The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act is a federal statute that requires colleges and universities that participate in federal financial aid programs to keep and disclose statistics about crime on or near their campuses.
Code of Conduct: The written policies adopted by an Institution governing student behavior, rights, and responsibilities while such student is matriculated in the Institution.
Confidentiality: May be offered by an individual who is not required by law to report known incidents of sexual assault or other crimes to institution officials, in a manner consistent with State and Federal law, including but not limited to 20 U.S.C. 1092(f) and 20 U.S.C. 1681(a). Licensed mental health counselors, medical providers and pastoral counselors are examples of institution employees who may offer confidentiality.
Dating violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. It does not include acts covered under the definition of domestic violence.
Domestic violence: A felony or misdemeanor crime of violence committed:
- a) By a current or former spouse or intimate partner of the victim;
b) By a person with whom the victim shares a child in common;
c) By a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner;
d) By a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred, or
e) 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 in which the crime of violence occurred.
Incapacitation: Physical and/or mental inability to make informed, rational judgments and decisions. Where alcohol or other substances are involved, incapacitation is determined by how the substance impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments.
In evaluating whether a person was incapacitated for purposes of evaluating affirmative consent, the College considers two questions: (1) Did the person initiating sexual activity know that the other individual was incapacitated? and if not, (2) Should a sober, reasonable person in the same situation have known that the other individual was incapacitated? If the answer to either of these questions is “yes,” affirmative consent was absent.
Incapacitation is a state beyond drunkenness or intoxication. A person is not incapacitated merely because they have been drinking or using drugs. The standard for incapacitation does not turn on technical or medical definitions, but instead focuses on whether a person has the physical and/or mental ability to make informed, rational judgments and decisions. A person who initiates sexual activity 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 may include: slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, and/or incontinence. Additionally, 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?”
Institution: Any college or university chartered by the regents or incorporated by special act of the legislature that maintains a campus in New York.
Privacy: May be offered by an individual when such individual is unable to offer confidentiality under the law but shall still not disclose information learned from a reporting individual or bystander to a crime or incident more than necessary to comply with this and other applicable laws, including informing appropriate Institution officials.
Reporting Individual: Encompasses the terms victim, survivor, complainant, claimant, witness with victim status, and any other term used by an institution to reference an individual who brings forth a report of a violation.
Respondent: A person accused of a violation who has entered an Institution's judicial or conduct process.
Retaliation: Adverse action against another person for reporting a violation or for participating in any way in the investigation or conduct process. Retaliation includes harassment and intimidation, including but not limited to violence, threats of violence, property destruction, adverse educational or employment consequences, and bullying.
SaVE Act: The Campus Sexual Violence Elimination Act (the Campus SaVE Act) refers to the Violence Against Women Act (VAWA) amendments to the Clery Act. The Campus SaVE Act is an update to the Clery Act, expanding the scope of this legislation in terms of reporting, response, and prevention education requirements around rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking.
Sexual Act: The term “sexual act” means:
- a) Contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
b) Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
c) The penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
d) The intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
Sexual Assault: Any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent. Specifically:
- a) Sexual Assault I – The 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, including instances where the victim is incapable of giving consent because of his/her temporary or permanent mental incapacity.
b) Sexual Assault II – The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.
c) Sexual Exploitation – Non-consensual, abusive sexual behavior that does not otherwise constitute Sexual Assault I, Sexual Assault II, or Sexual Harassment. Examples include but are not limited to: intentional, nonconsensual tampering with or removal of condoms or other methods of birth control and STI prevention prior to or during sexual contact in a manner that significantly increases the likelihood of STI contraction and/or pregnancy by the non-consenting party; nonconsensual video or audio taping of sexual activity; allowing others to watch consensual or nonconsensual sexual activity without the consent of a sexual partner; observing others engaged in dressing/undressing or in sexual acts without their knowledge or consent; trafficking people to be sold for sex; and inducing incapacitation with the intent to sexually assault another person.
Sexual Contact: The intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
Sex Discrimination: Includes all forms of sexual harassment, sexual assault, and other sexual violence by employees, students, or third parties against employees, students, or third parties. Students, employees, and third parties are prohibited from harassing other students and/or employees whether or not the harassment occurs on MCC campuses and whether or not the incidents occur during working hours. All acts of sex discrimination including sexual harassment, sexual assault, and other sexual violence, are prohibited by Title IX.
Sexual Harassment: Unwelcome verbal, non-verbal, or physical conduct that is sexual in nature. It is sufficiently persistent or pervasive in that it unreasonably interferes with, denies, or limits someone’s ability to participate in or benefit from the College’s educational program and/or activities. It is based on power differentials ("quid pro quo" harassment) or the creation of a hostile environment.
"Quid pro quo" sexual harassment: Occurs when a person in a position of authority uses that position to engage in unwelcome sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature when: a) submission to such conduct is explicitly made a term or condition of a student’s employment or education; or b) submission to or rejection of such conduct is used as a basis for decisions affecting a student’s education or employment.
Creation of hostile environment: Hostile environment sexual harassment requires an assessment based on the totality of circumstances to determine whether the conduct is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the College’s program and/or activities based on sex:
- Degree to which the conduct affected one or more students’ education
- Type, frequency, and duration of conduct
- Identity of and relationship between alleged harasser and the subject(s) of harassment
- Number of individuals involved
- Age and sex of alleged harasser and subject(s) of harassment
- Size of the College, location of incidents, and context in which they occurred
- Other incidents at the College
- Incidents of gender-based but nonsexual harassment
Examples of sexual harassment may include:
- Unwelcome physical contact
- Continued expression of sexual interest after being informed that the interest is unwelcome
- Requests for sexual favors
- Persistent requests for a date, telephone calls, emails or other communication that is unwelcome
- Posters, photos, cartoons, or graffiti that are demeaning or offensive
- Sexual language and/or jokes of a sexual nature
- Unwelcome visual contact, such as leering or staring at another person
- Comments or statements that are demeaning, humiliating, suggestive, insulting, vulgar, crude, or lewd
- Sexual gestures
- Following or stalking
- Taking pictures that are sexual in nature
- Preferential treatment or promise of preferential treatment for submitting to sexual conduct
Stalking: Intentionally engaging in a course of conduct, directed at a specific person, which is likely to cause a reasonable person to fear for his or her safety or the safety of others or causes that person to suffer substantial emotional damage. Examples include, but are not limited to, repeatedly following such person(s), repeatedly committing acts that alarm, cause fear, or seriously annoy such other person(s) and that serve no legitimate purpose, and repeatedly communicating by any means, including electronic means, with such person(s) in a manner likely to intimidate, annoy, or alarm him or her.
- a) A course of conduct is 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 persons' property.
b) Substantial emotional distress is significant mental suffering or anguish that may, but does not necessarily require, medical or other professional treatment or counseling.
c) A reasonable person is one under similar circumstances with similar identities to the victim.
Title IX: Part of the Educational Amendments of 1972, Title IX states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal assistance.”
Title IX Coordinator: The Title IX Coordinator and/or his or her designee or designees.
Violence Against Women Act (VAWA): VAWA requires colleges and universities to: (1) report dating violence, domestic violence, sexual assault, and stalking, beyond crime categories the Clery Act already mandates; (2) adopt certain student discipline procedures, such as for notifying purported victims of their rights; and (3) adopt certain institutional policies to address and prevent campus sexual violence, such as to train in particular respects pertinent institutional personnel.