2.3 Definitions and Examples of Sexual Misconduct

(Amended 7/15; 6/18)
  1. "Sexual misconduct" general definition. 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. Sexual misconduct can be committed by a person of any gender, and it can occur between people of the same or different gender.
  2. Examples of sexual misconduct. Sexual misconduct may vary in its severity and consists of a range of behavior or attempted behavior. It can occur between strangers or acquaintances, including people involved in an intimate or sexual relationship.

    Sexual misconduct includes, but is not limited to, the following examples of prohibited conduct as further defined below:
    1. sexual assault (paragraph e below);
    2. sexual harassment (paragraph f below);
    3. sexual exploitation (paragraph g below);
    4. sexual intimidation (paragraph h below).
  3. "Consent" definition. For purposes of this policy, consent is a freely and affirmatively communicated willingness to participate in particular sexual activity or behavior, expressed either by words or clear, unambiguous actions.
    1. It is the responsibility of the person who wants to engage in the sexual activity to ensure that consent is obtained from the other person to engage in the activity.
    2. Lack of protest or resistance does not mean consent, nor does silence mean consent. For that reason, relying solely on nonverbal communication can lead to misunderstanding.
    3. The existence of a dating relationship between the persons involved or the fact of a past sexual relationship does not imply consent to future sexual acts.
    4. Consent must be present throughout the sexual activity — at any time, a participant can communicate a desire to no longer consent to continuing the activity.
    5. Consent to one form of sexual activity does not imply consent to other forms of sexual activity.
    6. 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.
    7. Consent is not procured by the use of physical force, compelling threats, intimidating behavior, or coercion.
    8. Persons who are unable to give consent. In addition, under University of Iowa policy the following persons are unable to give consent:
      1. persons who are asleep, unconscious, or involuntarily restrained physically;
      2. persons who are unable to communicate consent due to a mental or physical condition;
      3. persons who are not of legal age according to Iowa Code PDF iconChapter 709
      4. persons who are incapacitated due to the influence of alcohol or other drugs (including medication) (AOD).
        1. Such incapacitation occurs when an individual under the influence of alcohol or other drugs (AOD) is, at the time of the sexual activity, temporarily unable to understand what is happening or temporarily unable to control their own behavior.
        2. With regard to incapacitation due to AOD, the policy is violated when a student engages in sexual activity with a person who is incapacitated if 1) the student knew the individual was incapacitated, or 2) a reasonable person in the student’s position would have a basis to know the individual was incapacitated. In those cases where the student did not know and did not have a basis to know the other party was incapacitated, the analysis shifts to applying the definition of consent in IV-2.3c above. 
        3. In applying this standard to individual cases, the following principles shall apply:
          1. Intoxication is not the same as incapacitation. A student is not prohibited from engaging in sexual activity with an individual who is intoxicated as long as that individual is not incapacitated. 
          2. An individual’s capacity to consent may change over time as the level of alcohol and/or drugs in the bloodstream increases and decreases. These changes can occur quickly, depending on the substance causing the incapacitation as well as physiological factors. 
          3. Memory loss alone may not be sufficient to establish that someone was incapacitated. One can experience memory loss of events without exhibiting, at the time of the events, other signs that a reasonable person would know to indicate incapacity. 
          4. All sexual contact is prohibited with an individual who is asleep or unconscious under IV-2.3c(8)(a) of the definition of consent. If an individual is under the influence of AOD and sleeping, the issue of capacity to consent is irrelevant. 
  4. Relation to criminal law and other University policy. In addition to being forbidden by this policy, sexual misconduct may be a violation of state criminal law and of other University policies, including the University's general policy against violence (see II-10 Violence).
  5. "Sexual assault" definition. Sexual assault is a form of sexual misconduct and represents a continuum of conduct from forcible intercourse to nonphysical forms of pressure that compel individuals to engage in sexual activity against their will.

    Examples of sexual assault under this policy include, but are not limited to, the following behaviors, however slight, when consent is not present:
    1. sexual intercourse (anal, oral, or vaginal). Intercourse, however slight, meaning vaginal penetration by a penis, object, tongue, or finger; anal penetration by a penis, object, tongue, or finger; or oral copulation (mouth to genital contact or genital to mouth contact);
    2. attempted sexual intercourse (anal, oral, or vaginal);
    3. intentional contact with the breasts, buttocks, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts;
    4. any other intentional unwanted bodily contact of a sexual nature;
    5. use of coercion, manipulation, or force to make someone else engage in sexual touching, including breasts, chest, and buttocks.
  6. "Sexual harassment" definition. Sexual harassment is a form of discrimination that includes verbal, written, or physical behavior of a sexual nature, directed at an individual, or against a particular group, because of that person's or group's gender, or based on gender stereotypes or manifestation, when that behavior is unwelcome and meets either of the following criteria: Determination of whether alleged conduct constitutes sexual harassment requires consideration of all the circumstances, including the context in which the alleged incidents occurred.​
    1. Submission or consent to the behavior is believed to carry consequences for another person's education, employment, on-campus living environment, or participation in a University program or activity. Examples of this type of sexual harassment include:
      1. pressuring a student to engage in sexual behavior for some educational or employment benefit; or
      2. making a real or perceived threat that rejecting sexual behavior will carry a negative consequence for the student in education, on-campus residence, or University program or activity.
    2. The behavior 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 sexual harassment can include: Comments or communications could be verbal, written, or electronic. Behavior does not need to be directed at or to a specific student, but rather may be generalized unwelcomed and unnecessary comments based on sex or gender stereotypes.
      1. persistent unwelcomed efforts to develop a romantic or sexual relationship;
      2. unwelcome commentary about an individual's body or sexual activities;
      3. repeated unwanted sexual attention;
      4. repeated and unwelcome sexually oriented teasing, joking, or flirting;
      5. verbal abuse of a sexual nature.
  7. "Sexual exploitation" definition. Sexual exploitation involves taking nonconsensual, unjust, or abusive sexual advantage of another person. Examples can include, but are not limited to the following behaviors:
    1. electronically recording, photographing, or transmitting intimate or sexual utterances, sounds, or images without the knowledge and consent of all parties involved;
    2. voyeurism (spying on others who are in intimate or sexual situations);
    3. distributing intimate or sexual information about another person without that person's consent;
    4. prostituting or trafficking another person.
  8. "Sexual intimidation" definition. Sexual intimidation involves:
    1. threatening another person that you will commit a sex act against them; or
    2. engaging in indecent exposure.