Definitions

Discriminatory Harassment is unwelcome non-verbal or physical, verbal, or online conduct where such conduct is based on actual or perceived membership in a protected category and is sufficiently severe or pervasive that it has the effect, intended or unintended, of unreasonably interfering with an individual’s work or academic performance or it has created an intimidating, hostile or offensive environment and would have such an effect on a reasonable person. Protected categories include race, religion, hearing status, color, sex, pregnancy, political affiliation, religion, creed, ethnicity, national origin (including ancestry), citizenship status, physical or mental disability, body size, age, marital status, family relationship, sexual orientation, gender, gender identity or expression, veteran or military status (including special disabled veteran, Vietnam-era veteran, or recently separated veteran), predisposing genetic characteristics, domestic violence victim status or any other protected category under applicable local, state or federal law.

Discrimination is defined as treating members of a protected category less favorably because of their actual or perceived membership in that category or as having a policy or practice that adversely impacts the members of one protected category more than others. Here are a few non-exhaustive examples of discrimination:

• a faculty member giving a student a lower grade because of the student’s race.
• a staff person receiving a negative performance review based on gender identity.

Title IX Sexual Harassment is conduct on the basis of sex that satisfies one or more of the following:

• Quid Pro Quo: An SOU employee conditions the provision of an aid, benefit, or service of SOU on an individual’s participating in unwelcome sexual conduct; or
• Title IX Hostile Environment: Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the SOU’s education program or activity; and
• Sexual Assault, Dating Violence, Domestic Violence, Stalking

Non-Title IX Sexual Misconduct includes Non-Title IX Sexual Harassment, Intimate Partner Violence, and Sexual Exploitation. Dating Violence, Domestic Violence, Sexual Assault, and Stalking that do not meet the definition of Title IX Sexual Misconduct.

Non-Title IX Sexual Harassment is unwelcome conduct based on sex or gender that is so severe or pervasive that it has the purpose or effect of unreasonably interfering with a person’s employment, academic performance or participation in the SOU’s programs or activities, or creates a working, learning, program or activity environment that a reasonable person would find intimidating, hostile or offensive.

Retaliation is any adverse action taken against an individual because they were involved in the disclosure, reporting, investigation, or resolution of a report of Prohibited Conduct. Retaliation includes threats, intimidation, harassment, coercion, violence, or any other conduct that would discourage a reasonable person from engaging in activity protected under this Policy, such as making a report or participating in an investigation.

Intimate Partner Violence is a broad term that includes violence or threat of violence from one intimate partner toward another, including but not limited to coercion, threats, intimidation, or physical violence.

Economic Abuse in the context of domestic violence, dating violence, and abuse in later life, means behavior that is coercive, deceptive, or unreasonably controls or restrains a person’s ability to acquire, use, or maintain economic resources to which they are entitled, including using coercion, fraud, or manipulation to:

• restrict a person’s access to money, assets, credit, or financial information;
• unfairly use a person’s personal economic resources, including money, assets, and credit, for one’s own advantage;
• exert undue influence over a person’s financial and economic behavior or decisions, including forcing default on joint or other financial obligations, exploiting powers of attorney, guardianship, or conservatorship, or failing or neglecting to act in the best interests of a person to whom one has a fiduciary duty.

Technological Abuse means an act or pattern of behavior that occurs within domestic violence, sexual assault, dating violence or stalking and is intended to harm, threaten, intimidate, control, stalk, harass, impersonate, exploit, extort, or monitor, except as otherwise permitted by law, another person, that occurs using any form of technology, including but not limited to: internet enabled devices, online spaces and platforms, computers, mobile devices, cameras and imaging programs, apps, location tracking devices, or communication technologies, or any other emerging technologies.

Sexual Exploitation refers to a situation in which a person takes non-consensual or abusive sexual advantage of another, and situations in which the conduct does not fall within the definitions of Sexual Harassment. Examples of sexual exploitation include, but are not limited to:

• Sexual voyeurism (such as watching a person undressing, using the bathroom or engaging in sexual acts without the consent of the person observed);
• Exceeding the boundaries of consent (e.g., taking pictures of or recording another in a sexual act, or in any other private activity without the consent of all involved in the activity, allowing another person to hide and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent);
• Prostitution of another person;
• Exposing one’s genitals in non-consensual circumstances or inducing another to do so;
• Sexually-based stalking or bullying of another person;
• Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) and without informing the other person of the infection; and
• Engaging in sexual activity with another person where one has administered alcohol or drugs (such as “date rape” drugs) to another person without their knowledge or consent.

Consent is knowing, voluntary and mutual decision among all participants to engage in sexual activity, expressed in words or actions. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct with that particular person or people.

Individuals may experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity. If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.

Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). Past consent does not imply future consent. A current or previous dating relationship is not sufficient to constitute consent.
The existence of consent is based on the totality of the circumstances, evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred. Silence or the absence of resistance alone is not consent. In Oregon, a minor (meaning a person under the age of 18 years) cannot consent to sexual activity except in limited circumstances dictated by law.

Consent can be withdrawn at any time during sexual activity through reasonable and clear communications through words or actions. When consent is withdrawn, sexual activity must stop.

Consent cannot be given if any of the following are present: Incapacitation, Force, or Coercion.

Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing and informed consent (e.g., to understand the “who, what, when, where, why, and how” of their sexual interaction). Incapacitation is determined through consideration of all relevant indicators of a person’s state and is not synonymous with intoxication, impairment, or being under the influence of drugs or alcohol. This policy also covers a person whose incapacity results from temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs.

Under this Policy, the University will consider whether a Respondent knew or should have known the Complainant to be incapacitated, based on an objective, reasonable person standard that assumes the reasonable person is both sober and exercising sound judgment.

Coercion/Force: Consent cannot be procured by the use of physical force, compulsion, threats, intimidating behavior, or coercion. Sexual activity accompanied by coercion or force is not consensual.

• Coercion refers to unreasonable pressure for sexual activity. When someone makes it clear that they do not want to engage in sexual activity or do not want to go beyond a certain point of sexual interaction, continued pressure beyond that point can be considered coercive. The use of coercion can involve the use of pressure, manipulation, substances, or force. Ignoring objections of another person is a form of coercion.
• Force refers to the use of physical violence or imposing on someone physically to engage in sexual contact or intercourse. Force can also include threats, intimidation (implied threats), or coercion used to overcome resistance.