Definitions

Policy: The term “consent,” in the context of sexual activity, means informed, freely and actively given, unambiguous words or actions that demonstrate a willingness to participate in mutually agreed-upon sexual activity.

• Policy Discussion or Examples: When looking at whether consent is present, it is important to understand that persons who seek to engage in the sexual activity are responsible for obtaining consent – it should never be assumed. For instance, a current/prior relationship or current/previous sexual activity alone is not sufficient to demonstrate consent, nor does consent to engage in sexual activity with one person imply consent to engage in sexual activity with another person. Similarly, lack of protest or resistance does not constitute consent, nor does silence mean consent has been given.
• To constitute consensual sexual activity, consent must be present throughout the sexual activity – at any time, a participant may communicate (verbally or physically) that they no longer consent to continuing the activity. If there is confusion as to whether anyone has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved. The assessment is based on objectively and reasonably apparent indications of consent available to the person seeking to engage in sexual activity, when viewed from the perspective of a reasonable person under the circumstances.
• Consent is not present if a sexual act is committed through coercion or force. Furthermore, an individual is unable to give consent if they are incapacitated or a minor under age 16.

Iowa Code: no definition (see definition of Sexual Abuse below)

Clery Act: no definition

Policy: Violence or threat of violence committed by a person who is or has been in a social relationship of a romantic, sexual, or intimate nature with the individual.

• Policy Discussion or Examples: Examples of dating violence include, but are not limited to, the following based on the totality of the circumstances: physical violence or assault; non-consensual sexual activity (which could constitute both sexual assault and dating violence); or threats of such violence. “Intimate” means a significant romantic involvement that need not include sexual involvement. An intimate relationship does not include casual social relationships or associations in a business or professional capacity. The existence of such a relationship shall be determined based on the reporting individual’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.
• A person commits an assault when, without justification, the person does any of the following: Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act; or
• Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

Iowa Code: no specific definition, although included in the definition of Domestic Abuse (below) is the following: "The assault is between persons who are in an intimate relationship or have been in an intimate relationship and have had contact within the past year of the assault." (Iowa Code §236.2(2)(e))

Clery Act/Title IX: Violence 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 shall 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 includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
• dating violence does not include acts covered under the definition of domestic violence.

The inability, temporarily or permanently, to give consent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring, including due to the influence of drugs, alcohol, medication, or mental or physical disability. An individual who is incapacitated lacks the ability to make informed judgments and cannot consent to sexual contact or activity.

• Policy Discussion or Examples: Where alcohol or other drugs are involved, incapacitation is a state beyond impairment or intoxication wherein the individual is unaware of their actions or surroundings. Where alcohol or other drugs are involved, evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects a person’s decision-making ability; awareness of consequences; ability to make informed, rational judgments; capacity to appreciate the nature and quality of the act; or level of consciousness. The assessment is based on objectively and reasonably apparent indications of incapacitation available to the person seeking to engage in sexual activity, when viewed from the perspective of a reasonable person under the circumstances.

Can limit or prohibit contact and interaction between individuals. Drake recognizes both criminal no-contact orders and civil protective orders, which should be provided to Drake Public Safety.

A University no-contact order is enforced under University policies and procedures and applies only to the campus jurisdiction.

A criminal no-contact order covers a broader jurisdiction and is requested through the Polk County Attorney or the Des Moines Police Department as part of criminal proceedings overseen by a judge.

A civil protective order is available for victims of domestic abuse and may be obtained through the Polk County Clerk of Court by participating in a hearing overseen by a judge.

A materially adverse action taken against a person because of the person’s report of sexual misconduct (e.g., sexual harassment, sexual violence, sexual assault or sexual exploitation) or interpersonal misconduct (e.g., domestic violence, dating violence or stalking), participation in the investigation of a report of such misconduct, or objecting to or resisting such misconduct.

Policy Discussion or Examples: The following actions could constitute retaliation if they are taken against an individual because they have resisted or reported sexual or interpersonal misconduct, sought guidance, filed a complaint or participated in an investigation into sexual or interpersonal misconduct:

• Retaliation can include any action that has an adverse impact on the individual’s employment, compensation or work assignments, or, in the case of students, grades, class selection or any other matter pertaining to the student’s participation at the University.
• Retaliation might also include, but is not limited to, harassment, intimidation, coercion, discrimination, or other misconduct directed at an individual because they have resisted or reported sexual or interpersonal misconduct, sought guidance, filed a complaint or participated in an investigation into sexual or interpersonal misconduct.

Retaliation is a separate form of misconduct that could be investigated and justify additional protective measures and/or sanctions against any person involved in the retaliatory acts, including third-parties, friends, or other persons acting on behalf of or in cooperation with the Complainant or Respondent.

Disciplinary measures issued at the conclusion of a University investigation and adjudication process. University sanctions may be imposed upon those determined to have engaged in sexual misconduct (e.g., sexual harassment, sexual violence, sexual assault or sexual exploitation) or interpersonal misconduct (e.g., domestic violence, dating violence or stalking) under applicable university policies and procedures. For employees, sanctions could range from counseling to termination from employment. For students, possible sanctions include expulsion, suspension, non-academic probation, removal from University-owned housing, mandatory counseling, revocation of privileges, restitution, fines, educational or work assignments, or University reprimand.

Policy: Sexual harassment is defined as unwelcome behavior of a sexual nature or that is directed at someone because of their sex when:

• Submission to, or rejection of, such conduct is made explicitly or implicitly a term or condition of an individual’s education, employment or status in a course, program or activity;
• Submission to, or rejection of, such conduct is used as a basis for an employment or educational decision affecting an individual, or their participation in a course, program or activity; or
• Such conduct is sufficiently severe, persistent, or pervasive that it has the purpose or effect of unreasonably interfering with or limiting an individual’s work or education so as to create an intimidating, hostile, or offensive environment for work or learning or participating in a University program or activity

Policy Discussion or Examples: “Unwelcome” means the person did not solicit or invite the behavior and regarded it as undesirable or offensive, even if at first the behavior was tolerated.

A “hostile environment” is defined as an environment that, through harassing conduct based on a person’s sex, becomes sufficiently severe, pervasive, or persistent so as to unreasonably interfere with a person’s work or learning or limit the ability of a person to participate in or benefit from a university program or activity. Consideration of sexual harassment must take in the totality of the circumstances to determine whether a “hostile environment” exists, including the context, nature, scope, frequency, duration and location of incidents, as well as the identity, number, and relationships of the persons involved. In some cases, a single incident may be so severe as to create a hostile environment. In other instances, the behavior at issue may not be sufficiently severe, pervasive, or persistent as to constitute a hostile work or learning environment. In such cases, the University can generally take action to stop the offending behavior in an effort to promote a respectful environment and avoid the possibility that a hostile environment will develop.

The University determines whether the person at whom the conduct was directed found it harassing and whether a “reasonable person” would find the conduct harassing, using both a subjective and objective assessment of whether the conduct was unwelcome and would constitute a hostile environment.

Drake University does not tolerate sexual harassment of its employees or students by others regardless of their University status and also protects students and employees against third-party harassment within the employment and educational setting. Sexual harassment is especially serious when it threatens relations by unfairly exploiting the power differential between the parties in an educational or professional relationship such as between instructor/advisor/coach and student or supervisor and subordinate, as explained in the Consensual Relationships Policy.

Sexual harassment occurs in a variety of circumstances. Sexual harassment can involve relationships of unequal power and contain elements of coercion as when compliance with requests for sexual favors becomes a condition of employment, work, education, study, or benefits. Sexual harassment may also involve unwelcome relationships or behavior among equals, as when repeated sexual advances or demeaning/offensive verbal or physical behavior have a harmful effect on a person’s ability to study, work, or participate at the University.

Physical behavior, such as:

• intentional touching or deliberate interference with or restriction of movement

Communication (verbal, written, symbolic expression, online) such as:

• explicit or implicit propositions to engage in sexual activity;
• gratuitous comments, jokes, questions, anecdotes, or remarks of a sexual nature, including communications about clothing, appearance, or bodies of a person;
• gratuitous remarks about sexual activities or speculation about sexual experiences;
• gratuitous remarks about how a person should dress, act, or behave based on sex or gender stereotypes;
• sexual or romantic attention or subtle or overt pressure for sexual favors;
• exposure to sexually suggestive visual displays such as photographs, drawings, posters, videos or other materials;
• deliberate humiliation or intimidation based on sex or gender.

Policy/Clery Act/Title IX: Sexual assault is any sexual act directed against another person, without the consent of the Complainant, including instances where the Complainant is incapable of giving consent including:

• 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 consent of the Complainant;
• Fondling: the touching of the private body parts of another person for the purpose of sexual gratification without consent of the Complainant including instances where the Complainant is incapable of giving consent because of their age or because of their 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; or
• Statutory rape: sexual intercourse with a person who is under the statutory age of consent.

Iowa Law: The State of Iowa uses the term “Sexual Abuse" rather than Sexual Assault: Any sex act between persons is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances:

• The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other.
• Such other person is suffering from a mental defect or incapacity which precludes giving consent, or lacks the mental capacity to know the right and wrong of conduct in sexual matters.
• Such other person is a child. (Iowa Code § 709)

Policy: Sexual exploitation involves one person violating the sexual privacy of another or taking non-consensual sexual advantage of another person, even though the behavior might not constitute one of the other sexual misconduct

Policy Discussion or Examples:

• Distribution or publication of sexual or intimate information about another person without consent
• Electronic recording, photographing, or transmitting sexual or intimate utterances, sounds, or images without knowledge and consent of all parties
• Engaging in indecent exposure, including exposing one’s genitals or inducing another to expose their genitals in non-consensual circumstances
• Sexual intimidation - Sexual intimidation is an implied or actual threat to commit a sex act against another person, or behavior used to coerce participation in a sex act
• Intentional ejaculation on another person without consent
• Voyeurism, including observing another’s nudity, state of undress, or sexual activity without consent
• Intentionally misrepresenting the presence or use of a condom, prophylactic or other birth control to induce a person to consent to sexual activity, or intentionally removing a condom, prophylactic, or other birth control during or before sexual contact without a partner’s consent
• Intentionally exposing another person to a sexually transmitted disease/infection without the person’s knowledge
• Prostituting or trafficking another person for commercial sexual activity, including purchasing or attempting to purchase services involving commercial sexual activity from a trafficking-victim or another person engaged in human

Iowa Code: no definition (outside of limited circumstances with counselors or school employees)

Clery Act: no definition

Policy/Clery Act/Title IX: Stalking occurs when a person engages in a course of conduct directed toward a specific person that would cause a reasonable person to fear for their safety or the safety of others or suffer substantial emotional distress.

• Policy Discussion or Examples: “Course of conduct” can be defined as a pattern of behavior composed of two or more instances over a period of time, however short, including but not limited to unwelcome acts in which the person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property. A course of conduct may exist even if the Complainant makes only a single report to the University, if the behaviors reported included two or more instances. “Substantial emotional distress” means significant mental suffering or anguish. A “reasonable person” standard asks if a reasonable person in similar circumstances would be made afraid or experience substantial emotional distress by the behavior. Stalking includes the concept of cyber-stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, GPS, spyware, or other similar devices or forms of contact or surveillance are used. It is not required that any form of prior relationship exist in order for behavior to constitute stalking.
• Stalking behaviors can be characterized as persistent and frequent unwanted in-person contact, surveillance, and unwanted telephone and other electronic contact. Some stalking behaviors, in isolation, may not appear problematic unless part of a course of conduct examined in the totality of the circumstances.
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Examples of stalking include, but are not limited to:

• Non-consensual or unwelcome communication including in-person communication, telephone calls, voice messages, text messages, email messages, social networking site postings, instant messages, postings of pictures or information on Web sites, written letters, gifts, or any other communications that are undesired and/or place another person in fear or cause substantial emotional distress;
• Following, pursuing, waiting, or showing up uninvited at a workplace, place of residence, classroom, or other locations frequented by a person;
• Surveillance and other types of observation, whether by physical proximity or electronic means;
• Trespassing;
• Vandalism;
• Non-consensual touching;
• Direct physical and/or verbal threats against a person or their friends/ loved ones;
• Gathering of information about a person from family, friends, co-workers, and/or classmates.

Iowa Code: A person commits stalking when all of the following occurs:

• The person purposefully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to, or the death of, that specific person or a member of the specific person’s immediate family.
• The person has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to, or the death of, that specific person or a member of the specific person’s immediate family by the course of conduct.
• The person’s course of conduct induces fear in the specific person of bodily injury to, or the death of, the specific person or a member of the specific person’s immediate family. (Iowa Code § 708.11)