Sexual misconduct includes any conduct that involves non-consensual sexual penetration or non-consensual personal contact of a sexual nature. Applicable definitions from the Student Conduct Code are listed below.

Sexual misconduct: Having or attempting to have sexual contact with another individual without affirmative consent. “Sexual contact” includes:

• Non-consensual penetration: Penetration by a person upon another person without affirmative consent. Penetration includes any vaginal or anal penetration by a penis, object, tongue, or finger, as well as any mouth-to-genital contact, no matter how slight the penetration or contact.
• Non-consensual sexual contact: Sexual contact, including but not limited to kissing, fondling, and/or contact with intimate body parts, without affirmative consent. The term “intimate body parts” includes, but is not limited to, breasts, buttocks, groin, genitals, or other body parts that under the circumstances a reasonable person would know that the other person regards to be an intimate body part. The following applies to contact with intimate body parts: contact must be intentional; contact may be either over or under the clothing; contact includes causing a person to touch an intimate body part of another person or causing a person to touch their own intimate body part; and contact also includes contact made with body fluids.

Affirmative consent: It is the responsibility of each person involved to ensure they have the affirmative consent of the other(s) to engage in each sexual contact. For the purposes of this definition, “affirmative consent” is a knowing, voluntary, and mutual decision among all participants to engage in sexual contact. It is the responsibility of each person involved to ensure they have the affirmative consent of the other(s) to engage in each sexual contact.

Consent can be communicated by words or actions, as long as those words or actions convey clear willingness to engage in the sexual contact. In determining the presence of affirmative consent, the university will consider the presence of any force, threat of force, or coercion; whether the complainant had the capacity to give consent; and, whether the communication (through words and/or actions) between the parties would be interpreted by a reasonable person under similar circumstances as a willingness to engage in a particular sexual act.

The following principles apply to the above definition of affirmative consent:

• The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, gender expression, or any other protected characteristic.
• Affirmative consent cannot be obtained through physical force, threats, or coercion.
• Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.
• Affirmative consent to any sexual act or prior consensual sexual activity does not necessarily constitute consent to any other sexual act.
• A person cannot provide affirmative consent if they are below the legal age of 18, unless otherwise permitted by law.
• Affirmative consent cannot be inferred from silence, passivity, or lack of verbal or physical resistance.

An individual cannot provide affirmative consent if they are incapacitated. A person is incapacitated when they lack the ability to choose knowingly to participate in sexual activity, for example when they are unconscious, asleep, involuntarily restrained, physically helpless, under the influence of alcohol or other drugs, or otherwise unable to provide consent. A person who is incapacitated lacks the capacity to give affirmative consent because they cannot understand the “who, what, when, where, or how” of their sexual interactions. In evaluating consent in cases of alleged incapacitation, the university asks if the respondent knew or reasonably should have known the complainant was incapacitated. Voluntary intoxication does not absolve a person of responsibility for non-consensual sexual contact.