What Is Sexual Assault?
Sexual Assault encompasses two categories of misconduct—Nonconsensual Sexual Contact and Nonconsensual Sexual Intercourse.*
Nonconsensual Sexual Contact is any intentional touching, however slight, whether clothed or unclothed, with any object or body part by a person against another person that is without consent and/or by force.
Examples of nonconsensual sexual contact include, but are not limited to:
- intentional contact with the breasts, buttocks, groin, or genitals;
- intentional touching of another with breasts, buttocks, groin, or genitals;
- making another person touch someone or themselves in a sexual manner;
- any intentional bodily contact in a sexual manner.
Nonconsensual Sexual Intercourse is any sexual intercourse, however slight, with any object or body part by a person against other person that is without consent and/or by force.
Examples of nonconsensual sexual intercourse include, but are not limited to:
- vaginal penetration by a penis, object, tongue, or finger;
- anal penetration by a penis, object, tongue, or finger;
- oral copulation (mouth to genital contact or genital to mouth contact).
Consent is a conscious, voluntary, mutually understandable, equal, respectful, continuous, and freely communicated agreement to participate in a sexual encounter. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender, gender identity, or gender expression. Each person involved in the sexual activity is responsible to ensure that they have the affirmative consent of the other or others to engage in the sexual activity.
Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. Consenting to a specific sexual activity does not constitute consent to any other sexual act. Consent is not assumed based on previous consensual encounters or implied by a relationship. Consent to a sexual encounter with one person does not constitute consent to such an encounter with another.
Consent does not exist when there is the presence of threat or intimidation. Lack of protest or resistance does not mean consent. Silence does not mean consent. Consent cannot be given when a person is incapacitated. Incapacitation occurs when an individual lacks the ability to fully, knowingly, choose to participate in sexual activity.
Incapacitation is a state where someone cannot make rational, reasoned decisions. A person may be incapacitated due to mental disability, sleep, unconsciousness, physical restraint, or from the consumption (voluntary or otherwise) of incapacitating drugs or quantities of alcohol. In New York a person under age 17 is also incapable of giving consent. Evidence of incapacity may be detected by physical cues, such as slurred speech, bloodshot eyes, the odor of alcohol on a person’s breath, inability to maintain balance, vomiting, unusual or irrational behavior, and unconsciousness. The presence of one or more of these cues does not necessarily indicate incapacity, nor does the absence of these cues necessarily indicate capacity.
Sexual activity with someone whom you know or, reasonably should know, is mentally or physically incapacitated (e.g., by alcohol or other drug use, unconsciousness, or blackout) constitutes a violation of this Policy and Procedure.
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation, and coercion to overcome resistance.
Intimidation means to unlawfully place another person in reasonable fear of bodily harm through the use of threatening words and/or other conduct, but without displaying a weapon or subjecting the victim to actual physical attack.
Coercion is unreasonable pressure. The use of emotional manipulation to persuade someone to do something they may not want to do, such as being sexual or performing certain sexual acts, constitutes coercion. Coercing someone into having sex or performing sexual acts does not constitute obtaining consent and is considered Sex-Based Misconduct.
Other forms of Sex-Based Misconduct prohibited under Pace’s Policy include the following:
Sexual Harassment is defined as unwelcome conduct of a sexual nature, including but not limited to sexual advances, requests for sexual favors, or other physical, verbal, or visual conduct of a sexual nature, including rape, sexual assault and sexual exploitation. In addition, depending on the facts, dating violence, domestic\intimate partner violence, and stalking may also be forms of sexual harassment. This definition prohibits conduct which is intentional and also conduct which, regardless of intent, has the effect or impact of creating an intimidating, hostile or offensive working or learning environment on the basis of sex. It makes no difference in determining whether conduct violates this Policy, that the person accused of violating the Policy was “just joking,” teasing,” or being “playful” or had an evil motive. The fact that a person does not object to the alleged harassing conduct or does not request that the harassing conduct stop, does not mean that he/she welcomes the conduct. Unwelcome conduct of a sexual nature constitutes sexual harassment when:
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s education, campus life activities, or employment (quid pro quo harassment);
- submission to, or rejection of such conduct by an individual is used as the basis for employment, academic, or other student life decisions affecting such individual (quid pro quo harassment); or
- such conduct has the purpose or effect of interfering unreasonably with an individual’s academic performance or ability to participate in or benefit from the University’s programs or activities, or creating an intimidating, hostile, or offensive academic or work environment that is, or would be, offensive to a person of reasonable sensitivity and sensibilities (hostile environment sexual harassment).
Examples of sexual harassment that may cause a hostile environment include, but are not limited to:
- subtle or persistent pressure for sexual activity;
- unwelcome touching of a sexual nature or impeding or blocking movements;
- requesting or demanding sexual favors concerning employment, academic activities, or other activities;
- unwelcome communications (verbal, written, electronic, etc.) of a sexual nature;
- failure to accept the termination of a consensual relationship with repeated and persistent requests and behavior;
- engaging in visual conduct such as leering or making sexual gestures;
- displaying sexually suggestive or degrading objects, pictures, cartoons, posters;
- distributing sexually suggestive, pornographic, or obscene material;
- making derogatory comments on the basis of sex; sexual propositions; sexually explicit jokes or jokes concerning gender-specific traits or sexual preference;
- making sexually explicit comments about an individual’s body or clothing; comments about an individual’s sexual desirability; or using sexually degrading words to describe an individual; and
- engaging in verbal or written slurs, degrading, or negative stereotyping.
To make a determination of whether sex-based harassment created a hostile environment, the University will consider the severity, persistence, or pervasiveness of the sex-based harassment. The more severe the sex-based harassment, the less need there is to show a repetitive series of incidents to find a hostile environment. A single instance of sex-based harassment may be sufficient to create a hostile environment. Likewise, a series of incidents may be sufficient even if each instance of the Sex-Based Misconduct is not particularly severe.
Gender Based Harassment is verbal or physical conduct that belittles or shows hostility or aversion toward an individual because of his or her gender and that substantially interferes with an individual’s educational, campus life, or employment experience. Gender based harassment includes verbal and/or physical aggression toward another based upon a perception that the other fails to conform to stereotypical notions of expected characteristics for males or females.
Sexual Exploitation is the use or abuse of another’s nudity or sexuality without his or her consent. Examples of sexual exploitation include, but are not limited to:
- invasion of sexual privacy and voyeurism (in-person or through audio or video recording or streaming);
- knowingly transmitting a sexually transmitted infection;
- exposing of a person’s body or genitals;
- prostituting or soliciting another community member; and
Domestic/Intimate Partner Violence refers to physical violence, threats of violence or acts of physical intimidation or coercion, isolation, stalking, or other forms of verbal, emotional, sexual or economic abuse directed towards (i) a current or former spouse or intimate partner; (ii) a person with whom one shares a child; or (iii) anyone who is protected from the Respondent’s acts under the domestic or family violence laws of New York. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone. Domestic/Intimate Partner violence can be a single act or a pattern of behavior in relationships.
Dating Violence refers to physical violence, threats of violence, or acts of physical intimidation or coercion committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship would be determined based on the reporting party's statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition, dating violence would include, but would not be limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts that meet the definition of “domestic/intimate partner violence.”
Stalking is a course of conduct directed at a specific person that would cause a reasonable person to feel fear for her, his, or others’ safety, or to suffer substantial emotional distress.
Examples of stalking include but are not limited to:
- constantly appearing at places the victim is known to frequent;
- persistent unwanted communication or contact whether in person, by telephone, text, or e-mail;
- persistent unwanted gifts; and
- following or surveillance.
Retaliation occurs when an adverse action is taken against an individual because the individual engaged in an activity protected by law or this Policy, including intimidating, threatening, coercing an individual who reported or complained of Sex-Based Misconduct, or participated in a school or government investigation or other proceedings related to allegations of Sex-Based Misconduct.