Definitions

Sexual Harassment under Title IX (link)
Sexual Exploitation as Sexual Harassment (link)

Sexual Assault (link)
Sexual Coercion as Sexual Assault (link)
Incapacitated Sexual Contact (link)

Stalking (link)
Dating Violence/Domestic Violence (link)
Discrimination on the Basis of Protected Identity (link)
Harassment on the Basis of Protected Identity (link)
Retaliation (link)


Sexual Harassment under Title IX
Under University policy (link) and Title IX, there are three forms of sexual harassment: quid pro quo; hostile environment; and sexual assault, dating/domestic violence, and stalking.

Quid pro quo sexual harassment occurs when an employee of UMKC conditions the availability of opportunities on whether another person participates in unwelcome sexual conduct.

  • Often called “this for that” sexual harassment
  • Essentially means asking for sexual favors of some kind in exchange for special treatment or in avoidance of negative treatment
  • Occurs if a faculty or staff member, or a student employee with supervisory or evaluative authority over another student, directly or indirectly requires a student to submit to sexual conduct in order to participate in an educational opportunity or requires sexual conduct as the basis for an educational decision, such as a good grade

Hostile environment sexual harassment occurs when unwelcome conduct is so “severe, pervasive, and objectively offensive” by the standards of a reasonable person that its effects deny the victim equal access to UMKC’s programs, activities, or employment opportunities.

  • Severe?  The severity of an incident depends largely on the nature and scope of the conduct as alleged, although you can also look at its impact.*
    • Physical conduct of a sexual nature often qualifies as severe
    • Treatment that is humiliating, threatening, or violent heightens the severity of the incident.
    • Comments, jokes, online postings, photographs, etc. are usually not sufficiently severe to create a hostile environment.
    • Typically, conduct that is mean, hateful, rude, or insulting does not rise to the level of being severe and does not result in a policy violation
  • Pervasive?  Pervasiveness hinges on how widespread, openly-practiced, prevalent, and/or distributed the conduct is.*
    • Unwelcome sex- or gender-based conduct that is well-known among students or employees can qualify as pervasive.
    • Conduct that occurs in public spaces is more pervasive than conduct in private.
    • Online, electronic, or social media postings and conduct, which often spread rapidly and widely, heighten the pervasiveness by which offensive and unwelcome content can be disseminated.
    • The frequency of the conduct, or its persistence, is also considered, as are the relative intensity and duration of the conduct.
      • The more severe the conduct, the less pervasive it must be to create a hostile environment. 
      • The longer an action or incident lasts, or the more often conduct is repeated, the more likely it will be deemed persistent.
  • Objectively offensive? This standard requires application of the “reasonable person” standard, and context matters.*
    • Would a reasonable person in the context in which the conduct occurred deem the conduct to be objectively offensive?
      • The “reasonable person” is a hypothetical individual who approaches any situation with the appropriate amount of caution and then sensibly takes action.
        • This hypothetical person is not identified as a specific sex, gender, age, race, ethnicity, or color; does not ascribe to any particular religion; is not from any specific country; and does not identify as any particular sexual orientation.
      • The decision-maker would ask themselves whether a reasonable person in the Complainant’s position would have felt that the Respondent’s actions were severe, pervasive, and objectively offensive enough to be considered sexual harassment under Title IX.
    • Both subjective and objective elements are necessary in finding a hostile environment.
      • The subjective element is often satisfied by determining whether the intended target or an offended third party found the conduct unwelcome.
    • Unwelcome isn’t the same thing as offensive, but many behaviors that are unwelcome are so because they are offensive.
    • Elements to examine include, but are not limited to: the age and relationships of those involved; the frequency of the conduct; the severity of the conduct; whether the conduct is physically threatening, humiliating, ridiculing, intimidating, or abusive; and the number of persons involved.
    • Critical to remember is that just because conduct offends, is mean, or is hateful, does not mean it creates a hostile environment

Sexual assault, dating or domestic violence, and stalking are all non-consensual acts of a sexual nature or occurring because of someone’s sex; see below for more detail.

*Adapted from ATIXA’s 20 Minutes to Trained: Sexual Harassment (link)


Sexual Exploitation as Sexual Harassment
Under University policy (link), sexual exploitation is categorized as hostile environment sexual harassment.

There are many forms of sexual exploitation that may be considered sexual harassment:

  • Invasion of sexual privacy
  • Sexual voyeurism, which may include observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed
  • Prostituting another person
  • Recording or taking photos of sexual activity without consent
  • Going beyond the boundaries of consent to sexual activity
  • Knowingly transmitting an STI, STD, or HIV to another person
  • Talking someone into exposing their genitals
  • Sharing intimate images without consent, including making or posting of revenge pornography
  • Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity
  • Knowingly soliciting a minor for sexual activity
  • Creation, possession, or dissemination or child pornography
  • Use or distribution of drugs or alcohol in an attempt to have a sexual encounter with another
  • Other misconduct of a sexual nature that is not otherwise categorized as sexual harassment

Sexual Assault
Under University policy (link), sexual assault includes any of the following:

  • The act of rape – oral, anal, or vaginal intercourse without consent, no matter how slight the penetration
  • Attempted rape – an attempt to penetrate the vagina, mouth, or anus of another without their consent
  • Even the slightest penetration of a person’s vagina or anus by an object – including a finger – without consent
  • Touching a person’s sexual parts – their breast(s), buttocks, or genitalia – while they are naked or through their clothing, without consent
  • Causing a person, without their consent, to touch another person’s sexual parts
  • Incest – sexual intercourse or any form of sexual gratification between family members as prohibited by law
  • Statutory rape – sexual intercourse with a person who is under the legal age of consent (17 years old in Missouri; 16 years old in Kansas)

How is consent defined? Consent should never be assumed.

  • A person who has given consent is aware of having done so and has consented without coercion, intimidation, threats, or physical or verbal aggression
  • Someone who is incapacitated due to drugs or alcohol, sleep, unconsciousness, or mental disability cannot give consent.
  • The person giving consent must have knowledge of the specific activity for which the consent is being granted.  Consent given for “anything” or “everything” or “whatever” may not be valid consent.
  • Consent given for a specific activity does not equate to consent being given for a different activity.
  • Consent must be obtained at the time of the specific activity, or when the activity is near-in-time or about to occur if consent is given.
  • Consent can be withdrawn at any time. Once consent is withdrawn, the activity should stop immediately.  Consent may be initially obtained and then revoked for further similar activities or revoked during the activity itself for any future engagement in that activity.
  • The person giving consent must be of legal age to do so; the age of consent varies by state.
  • Consent may be communicated by words or other verbal indicators; examples may include yes, okay, yeah, sure, mmhmm, uh-huh, I’m in, let’s do it, I’m game to try it, I like this, more, keep going, I’m ready, I want you, and/or don’t stop.
  • Consent may be communicated using one or a combination of non-verbal acts; examples may include head nodding, pulling someone closer , leaning into someone, thumbs up or “ok” symbol, making direct eye contact, actively touching someone, engaging in a specific activity, removing clothes or other barriers to contact, smiling, open posture/body language, and/or initiating physical contact.
  • Lack of consent may be indicated through verbal communication: stop, no, I’m not sure, I don’t know, I’m scared, I want to but…, I thought I wanted to, but…, this feels wrong, I’m not ready, I don’t know how I feel about this, that hurts, I don’t want you to do that, no more, I want to, but not now, and/or I’m not sure if I’m ready.
  • Lack of consent may be indicated through non-verbal communication: silence, crying, shaking head “no,” avoiding contact, not initiating, pushing someone away, closed body language, lying still, attempting to prevent clothes or other barriers from being removed, and/or not responding to contact or questions.

Further, simply because you and your partner(s) are in a relationship does not in and of itself indicate consent, nor does having had sexual contact in the past with your partner(s) or others.

An offender may use various methods to perpetrate sexual assault, including:

  • Physical aggression or threats of physical aggression
  • Coercion – threatening to reveal secrets, to tell others that the victim and offender had sexual intercourse, to fire an employee or fail a student (these cases also fit the definition of sexual harassment) or threatening to harm the victim’s friends or family members
  • Incapacitation of the victim – the inability of the victim to consent resulting from drugs or alcohol, disability, sleep, unconsciousness, or illness

For examples of sexual assault, visit Does This Count? Sexual Assault Scenarios (link).


Sexual Coercion as Sexual Assault
Under University policy (link), sexual coercion invalidates consent.  This means that if someone experiences any form of coercion, ultimately giving in to or going along with sexual activity, they did not give consent.  Sexual contact without consent is sexual assault. 

Sexual coercion is unwanted sexual activity that happens when a person is pressured, tricked, threatened, or forced in a non-physical way.  Coerced sexual behavior occurs more frequently than forcible sexual assault, and typically involves repeated begging for sex or pressuring someone who is resisting sexual activity until they give in, often to end the coercion or to preserve the relationship.

There are many behaviors that may be considered sexual coercion, including the following:

  • Wearing someone down by asking for sex again and again or making someone feel bad, guilty, or obligated
  • Making someone feel like it’s too late to say no
  • Reacting negatively if someone says no or doesn’t immediately agree to something
  • Telling someone that not having sex will hurt the relationship
  • Trying to normalize sexual expectations
  • Giving someone compliments that sound extreme or insincere as an attempt to get that person to agree to something
  • Lying or threatening to spread rumors about someone
  • Making promises to reward someone for sex
  • Giving someone drugs or alcohol to loosen up their inhibitions
  • Threatening someone’s children or other family members
  • Threatening someone’s job, home, or school career
  • Threatening to reveal someone’s sexual orientation publicly or to family or friends

For examples of sexual coercion, visit Does This Count? Sexual Coercion Scenarios (link).


Incapacitated Sexual Contact
Under University policy (link), incapacitation makes consent impossible, because if a person is incapacitated, they cannot make rational or informed decisions. 

A person may be incapacitated due to a physical or mental impairment, such as by sleep, disability, illness, unconsciousness, or as a result of alcohol or drugs.  

Incapacitation is more than being “drunk” or intoxicated.  A person can give consent when they have been drinking or using drugs, but if someone has been using alcohol and/or other drugs and you are thinking about having any kind of sexual contact with them, it is your responsibility to check in, ask, and make sure they are okay with what is going on.  However, you may think that they are able to understand the situation and give consent, but due to their level of incapacitation, they cannot.

Incapacitation is determined based on the totality of the circumstances, or by taking into consideration the parts of the situation as a whole.  

When might a person be held responsible for sexual touching of an incapacitated person?
A person may be held responsible for any sexual touching that occurs as having been non-consensual if:

  • They know their sexual partner has been drinking or using drugs in excess or is otherwise incapacitated; or
  • A person who is not under the influence of alcohol or drugs (or otherwise incapacitated) could be reasonably expected to know of the incapacitation of their sexual partner.

What are possible signs of incapacitation?
When identifying signs of incapacitation, ask the following questions and consider whether a reasonable person who is not themselves incapacitated would have known of the incapacitation of the victim.

  • Are/were they unable to communicate clearly with others?  If a person is incapacitated, they may slur their words, be difficult or impossible to understand, or make little sense in the context of the conversation.
  • Are/were they aware of their circumstances or surroundings?  If a person is incapacitated, they may be unable to understand what is going on around them or may struggle to understand the who, what, where, how, or why of the situation.
  • Have they lost or did they lose consciousness?  If a person is incapacitated, they may pass out or fall sleep or otherwise become unconscious. 
  • Have/did they exhibit(ed) actions that were inconsistent with their normal expression of self?  If a person is incapacitated, they may be unusually silent or atypically over-the-top in their speech and behavior.
  • Have/did they lack/lacked physical control over their body?  If a person is incapacitated, they may have difficulty standing or walking with or without help, may stumble easily, may gesture wildly, or may be unable to move from a seated or lying position.  They may also have an inability to control their bodily functions such as urination and defecation, or they may have physical symptoms such as vomiting.
  • Are/were they in a state of blackout or brownout?  If a person is incapacitated, their memory functions may be inhibited, making it difficult, if not impossible, to recall the events of the time in question. In a blackout state, the person cannot recall any events; in a brownout state, they can recall bits and pieces but do not have a full memory of the events.
    • A person experiencing a blackout or brownout state:
      • Is often able to minimally function
      • May appear aware and conscious
      • May be able to carry on a conversation or engage in physical activity
    • Blackouts/brownouts are more likely to occur:
      • When alcohol enters the bloodstream quickly, often related to drinking on an empty stomach or drinking a lot of alcohol in a short amount of time (high-intensity drinking)
      • In those weighing less as compared to those weighing more

For examples of incapacitated sexual contact, visit Does This Count? Incapacitation (link).


Stalking
Under University policy (link), stalking means to engage in conduct directed at a specific person that would cause a reasonable individual to fear for their safety or the safety of others, or suffer substantial emotional distress.

There are many behaviors that may be considered stalking, including the following:

  • Repeatedly calling a person’s phone, including hang-ups – sometimes using an unknown number
  • Following someone or showing up wherever they are
  • Sending unwanted gifts, letters, texts, or emails
  • Damaging someone’s home, car, or other property
  • Monitoring someone’s phone calls or computer use, possibly through spyware
  • Using technology, like hidden cameras, to watch what someone does, or GPS, to track where someone goes
  • Driving by or lingering near someone’s home, school, or work
  • Threatening to hurt someone, or their family, friends, or pets
  • Performing other actions that control, track, or frighten someone
  • Using other people to try to communicate with someone, like children, family, or friends

Dating Violence/Domestic Violence
Under University policy (link), dating violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim and where the existence of such a relationship is determined based on a consideration of the following factors:

  • The length of the relationship;
  • The type of relationship; and
  • The frequency of interaction between the persons involved in the relationship.

The existence of a dating relationship may be evidenced by a variety of factors.  “Dating” may or may not include sexual or physical intimacy. Similarly, “dating” may or may not include romantic intimacy.  Additionally, “dating” does not require a mutual commitment between two partners to be exclusive, but it may be defined by such a commitment.  “Dating” relationships range from casual to serious and short-term to long-lasting.  Simply because the partners involved define their interactions differently does not negate the existence of a “dating” relationship.

Under University policy (link), domestic violence includes felony or misdemeanor crimes of violence committed by:

  • A current or former spouse or intimate partner of the victim;
  • A person with whom the victim shares a child in common;
  • A person who is living with or has lived with the victim as a spouse or intimate partner;
  • A person as otherwise defined by state law.

Despite the terminology used within University policy, dating violence and domestic violence are not limited to “violence” but can be physical, sexual, emotional, economic, or psychological actions or threats of actions. This includes any behavior that intimidates, manipulates, humiliates, isolates, frightens, terrorizes, coerces, threatens, hurts, injures, or wounds someone who is in a dating relationship or who may fit into any category listed under domestic violence above.


Discrimination on the Basis of Protected Identity
Under University policy (link), discrimination on the basis of a protected identity characteristic is prohibited; these characteristics include race, color, national origin, ancestry, religion, sex, pregnancy, sexual orientation, gender identity, gender expression, age, disability, protected veteran status, or any other status protected by applicable state or federal law.

If the inequitable treatment occurs because of an individual’s protected identity characteristic(s) and is the basis of an adverse event, this treatment may be considered discrimination in violation of University policy and subject to disciplinary action.

Inequitable Treatment: When a person is treated differently than others, the treatment is likely unjust, unfair, preferential, one-sided, unbalanced, and inequitable.  When the person is treated less favorably that others in a similar situation because of one or more of their protected identity characteristics, discrimination may have occurred. 

Examples may include:

  • Unequal pay for completing substantially similar tasks or holding substantially comparable positions
  • Unequal grades for substantially similar contributions 
  • Employing only certain individuals without consideration for qualifications or education
  • Lacking necessary facilities, equipment, or materials for individuals with disabilities
  • Being silenced when others are allowed to speak
  • Refused service or access to facilities
  • Subjected to more severe discipline for similar offenses
  • Favoring certain students or employees over others

Adverse Event: When an action by one person causes a negative outcome for another person, an adverse event has occurred.

  • For students, examples may include:
    • Refusing to allow late submission of an assignment
    • Awarding a lower and undeserved grade
    • Forcing an athlete to work harder or longer
    • Preventing participation in any school activities
    • Threatening suspension or expulsion
  • For employees, examples may include:
    • Work-related threats, warnings, or reprimands
    • Negative or lowered evaluations
    • Scrutinizing work or attendance more closely without justification
    • Removing supervisory responsibilities
    • Reducing or threatening to reduce salary
    • Suspension or unpaid leave
    • Failure to promote
    • Denial of a leave request
    • Reassignment to a new position in a less favorable location
    • Demotion to a lower position
    • Termination from employment

Harassment on the Basis of Protected Identity
Under University policy (link), harassment on the basis of a protected identity characteristic is prohibited; these characteristics include race, color, national origin, ancestry, religion, sex, pregnancy, sexual orientation, gender identity, gender expression, age, disability, protected veteran status, or any other status protected by applicable state or federal law.

If the severe or pervasive conduct occurs because of an individual’s protected identity characteristic(s) and creates a hostile environment, this conduct may be considered harassment in violation of University policy and subject to disciplinary action.  The conduct must also be objectively offensive from the perspective of a reasonable person.  

Severe Conduct: The severity of an incident depends largely on the nature and scope of the conduct as alleged, although you can also look at its impact.*

  • Physical conduct often qualifies as severe.
  • Treatment that is humiliating, threatening, or violent heightens the severity of the incident.

Pervasive Conduct: Pervasiveness hinges on how widespread, openly-practiced, prevalent, and/or distributed the conduct is.*

  • Unwelcome conduct that is well-known among students or employees can qualify as pervasive.
  • Conduct that occurs in public spaces is more pervasive than conduct in private.
  • Online, electronic, or social media postings and conduct, which often spread rapidly and widely, heighten the pervasiveness by which offensive and unwelcome content can be disseminated.
  • The frequency of the conduct, or its persistence, is also considered, as are the relative intensity and duration of the conduct.
    • The more severe the conduct, the less pervasive it must be to create a hostile environment. 
    • The longer an action or incident lasts, or the more often conduct is repeated, the more likely it will be deemed persistent.

Objectively Offensive Conduct: This standard requires application of the “reasonable person” standard, and context matters.  Would a reasonable person in the context in which the conduct occurred deem the conduct to be objectively offensive?  

  • The “reasonable person” is a hypothetical individual who approaches any situation with the appropriate amount of caution and then sensibly takes action.
    • This hypothetical person is not identified as a specific sex, gender, age, race, ethnicity, or color; does not ascribe to any particular religion; is not from any specific country; and does not identify as any particular sexual orientation.
    • The decision-maker would ask themselves whether a reasonable person in the Complainant’s position would have felt that the Respondent’s actions were severe, pervasive, and objectively offensive enough to be considered sexual harassment under Title IX.
  • Both subjective and objective elements are necessary in finding a hostile environment.
    • The subjective element is often satisfied by determining whether the intended target or an offended third party found the conduct unwelcome.
  • Unwelcome isn’t the same thing as offensive, but many behaviors that are unwelcome are so because they are offensive.
  • Elements to examine include, but are not limited to: the age and relationships of those involved; the frequency of the conduct; the severity of the conduct; whether the conduct is physically threatening, humiliating, ridiculing, intimidating, or abusive; and the number of persons involved.
  • Critical to remember is that just because conduct offends, is mean, or is hateful, does not mean it creates a hostile environment

What is not typically considered harassment under University policy?

  • Petty slights, annoyances, and isolated incidents, unless extremely serious, will not rise to the level of a policy violation.
  • Typically, conduct that is mean, hateful, rude, or insulting does not rise to the level of being severe and does not result in a policy violation.
  • Comments, jokes, online postings, photographs, etc. are usually not sufficiently severe to create a hostile environment.

Retaliation
Under University policy (link), retaliation is any adverse action taken against a person because of that person’s participation or refusal to participate in the complaint resolution process.

“Participation” may include reporting prohibited conduct, participating or refusing to participate in an investigation or resolution process, supporting a Complainant or Respondent, and/or acting in good faith to oppose conduct that constitutes a violation of the University’s anti-discrimination policies.

The exercise of rights protected under the First Amendment is not considered retaliation.