4.14 Prohibited Conduct

(Amended 1/29/21; 7/8/21; 8/13/21; 9/2/22; 9/23/22)

4.14(1) Relevant Terms and Definitions

The following terms and definitions are relevant to understanding prohibited conduct in this section.

  1. "Consent." Consent is knowing, voluntary, and clear permission by word or unambiguous action to engage in sexual activity.

    Since individuals may experience the same interaction in different ways, it is the responsibility of each party to determine that the other has consented before engaging in the activity. 

    If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction.

    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. Reasonable reciprocation can be implied. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.

    Consent can also be withdrawn once given, as long as the withdrawal is reasonably communicated. If there is confusion as to whether anyone has consented or continues to consent to sexual activity, the participants must stop the activity until each consents to it.

    Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent.

    The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred and relationship between the parties.

    Consent in relationships must also be considered in context. When parties consent to BDSM or other forms of kink, non-consent may be shown by the use of a safe word. Resistance, force, violence, or even saying “no” may be part of the kink and thus consensual, so the University of Iowa’s evaluation of communication in kink situations should be guided by reasonableness, rather than strict adherence to policy that assumes non-kink relationships as a default.
  2. "Incapacitation." Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction). A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs (including medication). Subsequent memory loss alone, which may not be observable at the time of events, is not sufficient to establish that someone was incapacitated.

    Incapacitation is determined through consideration of all relevant indicators of the complainant’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk. As stated above, a respondent violates this policy if they engage in sexual activity with someone who is incapable of giving consent. This policy covers a person whose incapacity results from:
    1. A temporary or permanent physical or mental health condition,
    2. Involuntary physical restraint, and/or
    3. The consumption of alcohol or drugs.  
    It is a defense to a sexual harassment and sexual misconduct policy violation that the respondent neither knew nor should have known the complainant to be physically or mentally incapacitated, regardless of the reason. A determination whether a respondent “should have known” that a complainant was incapacitated is made by looking at the particular facts available from an objective, reasonable-person standard. The definition of “a reasonable person” includes a person who is both sober and exercising sound judgment. 
  3. "Coercion." Coercion is the use of an unreasonable amount of pressure that would overcome the will of a reasonable person. Coercion is more than an effort to persuade, entice, or attract another person to engage in sexual activity. When a person makes clear a decision not to participate in a particular sexual activity, a decision to stop, or a decision not to go beyond a certain sexual interaction, continued pressure can become coercive. In evaluating whether coercion was used, the university will consider: (1) the frequency, intensity, and duration of the pressure; (2) the degree of isolation of the person being pressured; and (3) any actual or perceived power differential between the parties in the context of their respective roles within the university.

4.14(2) Prohibited Conduct Defined

Paragraph a contains definitions required in Part 106.3 of the U.S. Department of Education Title IX Regulations. These definitions also apply in situations that are otherwise not covered by Title IX (e.g., off campus).

  1. "Sexual harassment I" means conduct on the basis of sex that satisfies one or more of the following:
    1.  An employee of the university conditioning the provision of an aid, benefit, or service of the university on an individual’s participation in unwelcome sexual conduct;
    2. 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 university's education program or activity; or
    3. “Sexual assault” as defined in 20 USC 1092(f)(6)(A)(v) means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. A sex offense is any sexual act directed at or attempted against another person, without the consent of the victim, including instances where the victim is incapable of giving consent. Sexual assault includes:
      1. "Fondling": 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 their age or because of their temporary or permanent mental incapacity.
      2. "Incest": Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
      3. "Statutory rape": Sexual intercourse with a person who is under the statutory age of consent.
      4. "Rape": 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.
    4. "Dating violence"  as defined in 34 USC 12291(a)(10) means violence committed by a person: 
      1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and 
      2. Where the existence of such a relationship shall be determined based on a consideration of the following factors:
        1. The length of the relationship;
        2. The type of relationship;
        3. The frequency of interaction between the persons involved in the relationship.
    5. "Domestic violence" as defined in 34 USC 12291(a)(8) means a felony or misdemeanor crime of violence committed:
      1. By a current or former spouse or intimate partner of the victim;
      2. By a person with whom the victim shares a child in common;
      3. By a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner;
      4. 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
      5. 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.
    6. Stalking as defined in 34 USC 12291(a)(30):
      1. "Stalking" means engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
        1. Fear for their safety or the safety of others; or
        2. Suffer substantial emotional distress.
      2. Examples of stalking include: 
        1. Attempting to gather information about the target of unwelcome  conduct;  
        2. Vandalism, including attacks on data and  equipment;  
        3. Direct physical and/or verbal threats against a target of unwelcome conduct or loved ones of a target of unwelcome conduct, including animal  abuse;  
        4. Gathering of information about a target of unwelcome conduct from family, friends, coworkers, and/or classmates;
        5. Manipulative and controlling behaviors such as threats to harm oneself, or threats to harm someone close to the target of unwelcome  conduct;  
        6. Defamation or slander against the target of unwelcome conduct; posting false information about the target of unwelcome conduct; posing as the complainant in order to post to websites, news groups, blogs, or other sites that allow public contributions; and/or encouraging others to harass the target of unwelcome conduct;  
        7. Posing as someone other than oneself to initiate transactions, financial credit, loans, or other contractual  agreements;  
        8. Arranging to meet the target of unwelcome conduct under false pretenses.
  2. "Sexual misconduct " is a broad term encompassing any unwelcome behavior of a sexual nature that is committed without consent or by force, intimidation, coercion, or manipulation.  
    1. "Sexual harassment II" is persistent, repetitive, or egregious conduct directed at a specific individual or group of individuals that a reasonable person would interpret, in the full context in which the conduct occurs, as harassment of a sexual nature.

      Harassment of a sexual nature has the effect of limiting or denying another person's work or educational performance or creating an intimidating, hostile, or demeaning environment for employment, education, on-campus living, or participation in a university program or activity.  

      Examples of this type of behavior include: 
      1. Unwanted behavior of a sexual nature; 
      2. Persistent unwelcome efforts to develop a romantic or sexual  relationship;  
      3. Unwelcome commentary about an individual's body or sexual  activities;  
      4. Repeated unwanted sexual  attention;  
      5. Repeated and unwelcome sexually oriented teasing, joking, or  flirting;  
      6. Verbal abuse of a sexual nature;
      7. Conditioning the provision of an aid, benefit, service, or an employment decision on submission to unwelcome behavior of a sexual nature; 
      8. An expressed or implied threat to take adverse action against someone for rejecting sexual advances.  
    2. "Non-consensual sexual contact" is any intentional sexual contact, however slight, with  any body  part or object, by any individual upon another. "Sexual contact" includes intentional contact with the breasts, buttock, groin, or  genitals, touching another with any of these body parts or  an object, making another touch you or themselves with or on any of these body  parts, or any intentional bodily contact in a sexual manner.  Non-consensual sexual contact that occurs within the context of an individual’s authorized responsibilities will be evaluated for reasonableness within that context. Non-consensual sexual contact may be found where the contact is:
      1. Without consent,   
      2. By force,   
      3. By coercion, or  
      4. Upon an individual without capacity to consent because of:  
        1. Age , 
        2. Temporary or permanent mental incapacity,  or
        3. Temporary or permanent physical incapacity.   
    3. "Sexual exploitation"  is conduct that takes  non-consensual sexual advantage of another individual, often without the knowledge of that person, for any purpose, including sexual gratification, financial gain, personal benefit, or any other nonlegitimate purpose.   

      Examples of sexual exploitation include but are not limited to: 
      1. Non-consensual streaming, audio or video recording, photographing, or transmitting intimate or sexual utterances, sounds, or images without consent of all parties  involved;  
      2. Engaging in any form of voyeurism (e.g., “peeping”);  
      3. Allowing others to view sexual acts (whether in person or via a video camera or other recording device) without the consent of all parties  involved;  
      4. Arranging for others to have non-consensual sexual contact or penetration with a person;
      5. Compelling another individual to touch their own or another individual’s (third-party's) private parts without  consent; 
      6. Threatening another person that you will commit a sex act against  them;
      7. Engaging in indecent exposure;
      8. Noncompliance with expressed conditions for engaging in sexual activity (e.g., non-consensual condom removal).