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DEFINING SEXUAL MISCONDUCT

The following definition is adapted from the model policy in our guidebook, Total Sexual Assault Risk Management Strategies for Colleges. It represents an ideal modern definition for sexual misconduct, rather than the definition that might presently be in use in your state or on your campus.

Definition of Rape:

Rape is any sexual intercourse (anal, oral or vaginal), however slight, with any object, by a man or a woman upon a man or a woman, without effective consent. Definition of Sexual Assault: Any sexual touching (option: including disrobing or exposure), however slight, with any object, by a man or a woman upon a man or a woman, without effective consent. Definition of Sexual Exploitation: The taking of nonconsensual, unjust or abusive sexual advantage of another; for one’s own advantage or benefit, or to benefit or advantage anyone other than the one being exploited; and that behavior does not otherwise constitute rape, sexual assault, or sexual harassment.
    • Examples of Sexual Exploitation include prostituting someone, nonconsensual video or audiotaping of sexual activity, going beyond the boundaries of consent (such as letting your friends surreptitiously watch you having consensual sex), engaging in Peeping Tommery, knowingly transmitting an STD or HIV to another, and inducing incapacitation with the intent to rape or sexually assault another person.
Meaning of terms within this definition:
  • Intercourse
Intercourse is not synonymous with penetration. If it were, non-consensual french kissing could meet the definition of oral rape. Intercourse is more limited. Intercourse includes: vaginal penetration by a penis, object, tongue or finger; anal penetration by a penis, object, tongue or finger; and oral copulation (mouth to genital contact or genital to mouth contact).
  • Sexual touching:
any 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.
  • Effective consent:
Effective consent is informed, freely and actively given, mutually understandable words or actions which indicate a willingness to participate in mutually agreed upon sexual activity.
    • In the absence of mutually understandable words or actions (a meeting of the minds on what is to be done, where, with whom, and in what way), it is the responsibility of the initiator, or the person who wants to engage in the specific sexual activity to make sure that they have consent from their partner(s).
    • Mutually understandable consent is a subjective standard. Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a mutually understandable agreement between them to do the same thing, in the same way, at the same time, with each other.
    • Consent which is obtained through the use of fraud or force whether that force be physical force, threats, intimidation, or coercion, is ineffective consent;
    • Consent may never be given by:
1) Minors (Statutory Rape) to legal adults;

2) Mentally disabled persons;

3) Physically incapacitated persons:

  • One who is physically incapacitated as a result of alcohol or other drug consumption (voluntary and involuntary), or who is unconscious, unaware, or otherwise physically helpless, is incapable of giving consent.
  • One may not engage in sexual activity with another who one knows or should reasonably have known is physically incapacitated.
  • Incapacitation means being in a state where a person lacks the capacity to appreciate the fact that the situation is sexual, or cannot appreciate (rationally and reasonably) the nature and/or extent of that situation.
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