Sexual Misconduct is a sexual act or contact of a sexual nature that occurs, regardless of personal relationship, without the consent of the other person(s), or that occurs when the person(s) is unable to give consent or whose consent is coerced or obtained in a fraudulent manner. For the purpose of this Policy, sexual misconduct includes, but is not limited to, sexual assault, sexual abuse, violence of a sexual nature, sexual harassment, non-consensual sexual intercourse, sexual exploitation, video voyeurism, contact of a sexual nature with an object, or the obtaining, posting or disclosure of intimate descriptions, photos, or videos without the expressed consent or the persons depicted therin, as well as dating violence, domestic violence and stalking.
Sexual misconduct is a violation of OLLU policy and can also be a crime.
- Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to an individual’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the individual from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual violence against an OLLU student will be addressed, regardless of whether it is committed by a member of the school community or third parties.
A person commits an offense if the person intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; causes the penetration of the mouth of another person by the sexual organ of the actor, without the person's consent; or causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus or sexual organ of another person, including the actor [Tex. Penal Code 22.011(a)(1)].
Sexual assault is defined in the Clery Act as an offense that meets the definition of rape, fondling, incest or statutory rape as used in the FBI's UCR program:
- 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.
- 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 his/her age or because of his/her temporary or permanent mental incapacity.
- Incest - sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
- Statutory Rape - sexual intercourse with a person who is under the statutory age of consent.
- Domestic violence is also referred to as family violence in Texas and is defined as an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault, but does not include defensive measures to protect oneself. Abuse by a member of a family or household toward a child of the family or household also constitutes domestic or family violence.
- Dating violence "means an act, other than a defensive measure to protect oneself, by an actor that is committed against a victim with who the actor has or has had a dating relationship with or because of the victim’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and is intending to cause physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault or sexual assault." A “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. This is evaluated by the length of the relationship, nature of the relationship and frequency and type of interaction between the two persons involved in the relationship. Casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship.”
Consent as Defined by Law
Stalking refers to when a perpetrator, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that: constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening: bodily injury or death for another person; bodily injury or death for a member of the other person's family or household or for an individual with whom the other person has a dating relationship; or that an offense will be committed against the other person's property; causes the other person, a member of the other person's family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and would cause a reasonable person to: fear bodily injury or death for himself or herself; fear bodily injury or death for a member of the person's family or household or for an individual with whom the person has a dating relationship; fear that an offense will be committed against the person's property; or feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended (Texas Penal Code 42.072).
Stalking is defined by the Clery Act as engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person's safety or the safety of others or suffer substantial emotional distress.
A sexual assault is without the consent of the other person if the actor compels the other person to submit or participate by the use of physical force or violence; the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat; the other person has not consented and the actor knows the other person is unconscious or physically unable to resist; the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it; the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring; the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge; the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat; the actor is a public servant who coerces the other person to submit or participate; the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor; the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser; or the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2, Family Code.
When investigating acts of sexual violence, OLLU will also consider the following to be true with respect to determining whether consent did or did not exist during a sex act:
- Consent to engage in a sexual activity must exist from beginning to end of each instance of sexual activity.
- Consent is demonstrated through mutually understandable words and/or actions that clearly indicate a willingness to engage in a specific sexual activity.
- Silence alone, without actions evidencing permission, does not demonstrate consent. Consent must be knowing and voluntary.
- To give consent, a person must be the age of majority, which in Texas is 18 years old.
- Assent does not constitute consent if obtained through coercion or from an individual whom the alleged offender knows or reasonably should know is incapacitated.
- The responsibility of obtaining consent rests with the person initiating the sexual activity.
- Use of alcohol and drugs does not diminish one's responsibility to obtain consent.
- Consent to engage in sexual activity may be withdrawn by any person at any time.
- Once withdrawal of consent has been expressed, the sexual activity muse cease.
- Consent is automatically withdrawn by a person who is no longer capable of giving consent.
- A current or previous consensual dating or sexual relationship between the persons involved does not itself imply consent or preclude a finding of responsibility.
Freedom of Speech
Sexual harassment is unwelcome harassment of a sexual nature, such as unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature. Gender-based harassment is also considered a form of sexual harassment and includes harassment based on actual or perceived gender identity of nonconformity with sex stereotypes. Sexual harassment is prohibited.
Sexual harassment that is sufficiently severe to deny or limit a student's ability to participate in or benefit from the University's education programs and activities creates a hostile environment.
In the event that is determined that sexual harassment has resulted in the creation of a hostile environment, OLLU will take prompt and effective steps that are reasonably calculated to end and eliminate the harassment; prevent it from recurring; and if necessary, remedy its effects.
- OLLU supports an individual's right to freedom of speech as guaranteed by the First Amendment to the United States Constitution. The intent of this Policy is to protect students affiliated with OLLU and not to relegate protected speech. OLLU acknowledges that the higher education community is a place in which ideas are shared and sometimes ideas and concepts are unpopular or not shared by others in the academic community. This policy does not prohibit controversial topics or speech. The policy addresses speech that infringes upon the rights of others to take part in the educational opportunities provided by OLLU.
- In the event that a student has a complaint regarding the content of an academic course, the manner in which it is being taught, or speech that takes places within the academic setting, the entire context of the complaint will be considered to ensure that issues more appropriately characterized as "academic freedom" are not being investigated as sexual harassment. The fact that speech takes places within an academic setting is not automatically characterized as allowable pursuant to "academic freedom;" however, instructors have leeway to discuss or allow discussions regarding potentially controversial or uncomfortable topic that are relate to the subject matter being taught.
Affirmative consent in the context of sexual activity is defined as a knowing, voluntary and mutual decision among all participants to engage in the course of a mutually agreed upon sexual activity. The person giving consent must act freely, voluntarily and understand the nature of consent.
A consensual sexual relationship between a faculty or staff member and a student does not necessarily equate to sexual harassment or misconduct This policy, however, prohibits consensual sexual relationships between a faculty or staff member and a student whenever the faculty or staff member is in a position of professional responsibility with respect to the student, in a position to make or influence decisions, or to confer or withhold benefits relating to the student's education or employment. Th description of the roles and responsibilities of the individuals, rather than job titles, will drive OLLU decision-making regarding whether an individual is or was in a position of professional responsibility with respect to a student. Therefore, graduate students and teaching assistants should take care to understand the appropriate boundaries with respect to students in classes over which they have responsibility and decision-making.