DEFINITION OF TERMS
Complainant: Any party who makes a Complaint against a student, employee, staff member or campus visitor.
Individuals who initiate sexual activity assume responsibility for their behavior and must understand that the use of alcohol or other drugs does not reduce accountability for their actions. The question is whether or not the person who initiated the sexual activity knew or whether a sober and reasonable person in the same position should have known whether the other person gave effective consent.
Consent: Consent is clear, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity.
If coercion, intimidation, threats, or physical force are used, there is no consent. If a person is mentally or physically incapacitated or impaired so that such person cannot understand the fact, nature or extent of the sexual situation, there is no consent; this includes impairment or incapacitation due to alcohol or drug consumption, or being asleep or unconscious. Incapacitation is a state where someone cannot make rational, reasonable decisions because he or she lacks the capacity to give knowing consent.
Incapacitation is the physical and/or mental inability to make informed, rational judgments and decisions. States of incapacitation include sleep and blackouts. Where alcohol or other substances are involved, incapacitation is determined by how the substance impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments.
In evaluating whether a person was incapacitated for purposes of evaluating effective consent, UAFS considers two questions: (1) Did the person initiating sexual activity know that their partner was incapacitated? and if not, (2) Should a sober, reasonable person in the same situation have known that their partner was incapacitated? If the answer to either of these questions is “yes,” effective consent was absent.
For purposes of this policy, incapacitation is a state beyond drunkenness or intoxication. A person is not incapacitated merely because they have been drinking or using drugs.
The standard for incapacitation does not turn on technical or medical definitions, but instead focuses on whether a person has the physical and/or mental ability to make informed, rational judgments and decisions. A person who initiates sexual activity must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?”, “Do you know how you got here?”, “Do you know what is happening?”, “Do you know whom you are with?”
There is no consent when there is force, expressed or implied, or use of duress or deception upon the victim. Silence does not necessarily constitute consent. Past consent to sexual activities does not imply ongoing future consent. Whether an individual has taken advantage of a position of influence over an alleged victim may be a factor in determining consent.
Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes overt threats, implied threats, intimidation and coercion that overcome resistance or produce consent.
Under Arkansas law, the age of consent varies with the degrees of assault, the age of the actor, and the relationship of the actor to the other party. For specific information, please refer to Arkansas statutes (e.g., Arkansas Code Annotated § 5-14-125, Sexual Assault in the Second Degree).
Sexual activity with someone known to be mentally or physically incapacitated, or based on the circumstances, or someone who could reasonably be known to be mentally or physically incapacitated, constitutes a violation of this Policy.
This Policy also covers a person whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of rape drugs. Possession, use and/or distribution of any of these substances, including Rohypnol, Ketamine, GHB, Burundanga, etc. is prohibited and administering one of these drugs to another person is a violation of this Policy.
Use of alcohol or other drugs will never function as a defense to a violation of this Policy. Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. Previous relationships or prior consent cannot imply consent to future sexual acts.
Dating Violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the alleged victim. It includes any unwelcome physical violence such as hitting, pulling, shoving, kicking, biting or throwing things; and sexual assault, sexual exploitation and sexual harassment.
Discrimination (general definition): Conduct that is based upon an individual’s race, color, religion, national origin, service in the uniformed services (as defined in state and federal law), veteran status, sex, age, pregnancy, gender identity, sexual orientation, physical or mental disability or genetic information that excludes an individual from participation, denies the individual the benefits of, treats the individual differently or otherwise adversely affects a term or condition of an individual’s employment, education, living environment or participation in a University program or activity. This includes failing to provide reasonable accommodation, consistent with state and federal law, to persons with disabilities.
Discriminatory Harassment: Detrimental action based on an individual’s race, color, religion, national origin, service in the uniformed services (as defined in state and federal law), veteran status, sex, age, pregnancy, gender identity, sexual orientation, physical or mental disability or genetic information. Harassing conduct may take various forms, including, name-calling, graphic or written statements (including the use of cell phones or the Internet), or other conduct that may be physically threatening, harmful, or humiliating. Harassment does not have to include intent to harm, be directed at a specific target or involve repeated incidents.
Sexual harassment is unwelcome, gender-based spoken, written or symbolic action or physical conduct on the basis of sex. Sexual harassment includes gender-based harassment. The unwelcome behavior may be based on power differentials, the creation of a hostile environment or retaliation.
For the purpose of this Policy, sexual harassment can include stalking or repeatedly following, harassing, threatening, or intimidating another by telephone, mail, electronic communication, social media, or any other action, device, or method that purposely or knowingly causes substantial emotional distress or reasonable fear of bodily injury or death. Sexual harassment also includes quid pro quo sexual harassment which exists when there are unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature and submission to or rejection of such conduct results in adverse educational or employment action.
Domestic Violence: Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members; or any sexual conduct between family or household members, whether minors or adults, that constitutes a crime under the laws of this state. Family or household members means spouses, former spouses, parents and children, persons related by blood within the fourth degree of consanguinity, any children residing in the household, persons who presently or in the past have resided or cohabited together, persons who have or have had a child in common, and persons who are presently or in the past have been in a dating relationship together. See also, Arkansas Code Annotated § 9-15-103—”Domestic Abuse”).
Hostile Environment: A hostile environment exists when there is harassing conduct based on race, color, religion, national origin, service in the uniformed services (as defined in state and federal law), veteran status, sex, age, pregnancy, gender identity, sexual orientation, physical or mental disability or genetic information that is sufficiently serious (i.e., severe, pervasive, or persistent) and objectively offensive to deny or limit a person’s ability to participate in or benefit from the University’s programs, services, opportunities or activities; or when such conduct has the purpose or effect of unreasonably interfering with an individual’s employment.
Non-Consensual Sexual Contact: Non-consensual sexual contact is any intentional sexual touching, however slight, with any object by a male or female upon a male or a female that is without consent and/or by force. Sexual Contact includes intentional contact with the breasts, buttock, 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; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.
Non-Consensual Sexual Intercourse: Non-consensual sexual intercourse is any sexual intercourse however slight, by a male or female upon a male or a female that is without consent and/or by force. 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), no matter how slight the penetration or contact.
Respondent: The person(s) against whom a Complaint has been made.
Retaliation: Action taken by an accused individual or by a third party against any person because that person has opposed any practices forbidden under this Policy or because that person has filed a Complaint, testified, assisted or participated in any manner in an investigation or proceeding under this Policy. This includes action taken against a bystander who intervened to stop or attempt to stop discrimination, harassment or sexual misconduct. Retaliation includes intimidating, threatening, coercing or in any way discriminating against an individual because of the individual’s Complaint or participation. Action is generally deemed retaliatory if it would deter a reasonable person in the same circumstances from opposing practices prohibited by this Policy.
Sexual Assault: An actual or attempted sexual contact with another person without that person’s consent. Sexual assault includes, but is not limited to involvement in any sexual contact when the victim is unable to consent; intentional and unwelcome touching of, or coercing, forcing, or attempting to coerce or force another to touch a person’s intimate parts (defined as genital area, groin, inner thigh, buttocks, or breast); and sexual intercourse without consent, including acts commonly referred to as “rape.”
Sexual Exploitation: Occurs when a person takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses. Examples of behavior that could rise to the level of sexual exploitation include, but are not limited to:
- invading sexual privacy;
- prostituting another person;
- non-consensual video or audio-taping of sexual activity;
- going beyond the boundaries of consent (e.g., allowing others to watch consensual sex without that party’s knowledge or consent);
- engaging in voyeurism;
- non-consensual distribution of photos, other images, or information of an individual’s sexual activity, intimate body parts, or nakedness, with the intent to or having the effect of embarrassing an individual who is the subject of such images or information;
- knowingly transmitting an STI, such as HIV, to another without disclosing your STI status;
- exposing one’s genitals in non-consensual circumstances or inducing another to expose his or her genitals; or
- possessing, distributing, viewing or forcing others to view illegal pornography.
Sexually-based stalking and/or bullying may also be forms of sexual exploitation.
Sexual Misconduct: includes sexual assault, inducing incapacitation for sexual purposes, sexual exploitation and dating and domestic violence.
Stalking: Repeated or obsessive unwanted attention directed toward an individual or group that is likely to cause alarm, fear, or substantial emotional distress. Stalking may take many forms, including following, lying in wait, monitoring, and pursuing contact. Stalking may occur in person or through a medium of communication, such as letters, e-mail, text messages, or telephone calls. In some circumstances, two instances of such behavior may be sufficient to constitute stalking.
Status: A full-time employee of the University will be considered an “employee” for the purposes of this Policy, regardless of whether he/she is also enrolled as a student. Any student who is a part-time employee will be considered a “student” for the purposes of this Policy unless the incident under consideration occurred in connection with his/her employment.