Title IX – Sexual Misconduct/SexDiscrimination
The following definitions are provided for clarity purposes. Offenses listed fall under NCMC’s Sexual Misconduct Policy.
A person who alleges that he or she is the subject of sexual misconduct, or of retaliation related to the complaint or investigation thereof and can be an NCMC employee, student, volunteer, guest, visitor or third party affiliated with the institution.
An active process where there is clear and unmistakable voluntary agreement, expressed in mutually understandable words or actions, to engage in sexual activity. Silence or absence of resistance does not imply consent. Informed consent cannot be gained by force, coercion, threat, by ignoring or acting in spite of the objections of another, or by taking advantage of the incapacitation of another, where the respondent knows or reasonably should have known of such incapacitation. Informed consent is also absent when the activity in question exceeds the scope of informed consent previously given, i.e. past consent does not imply future consent. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another. Consent can be withdrawn at any time. In the state of Missouri, consent cannot be provided if the person lacks the mental capacity to authorize the conduct charged to constitute the offense and such mental incapacity is manifest or known to the actor; or it is given by a person who by reason of youth, mental disease or defect, intoxication, a drug-induced state, or any other reason anyone under the age of seventeen cannot give informed consent.
Violence committed by a person— (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors:(i) The length of the relationship; (ii) The type of relationship; (iii) The frequency of interaction between the persons involved in the relationship. If a dating relationship is asserted by the reporting party, the assumption of a dating relationship will be made. Missouri law does not specifically define dating violence, but conduct of this nature is covered by Missouri’s definitions of domestic violence and domestic assault.
Felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction. Missouri’s definition of domestic violence can be found at Mo. Rev. Stat. § 455.010. Under Missouri law, domestic violence also includes the crime of “domestic assault” which can be found at Mo. Rev. Stat. §§ 565.072-565.074.
Physical force, violence, threat, intimidation, or coercion.
The physical and/or mental inability to make informed rational judgments. States of incapacitation include, without limitation, sleep, blackouts, flash-backs, when a person is unconscious, or because of an intellectual or other disability that prevents the person from having the capacity to give consent. A person can also be incapacitated due to the use of drugs or alcohol. Where alcohol or other drugs are involved, one does not have to be intoxicated or drunk to be considered incapacitated. Rather, incapacitation is determined by how the alcohol consumed impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed decisions. The question is whether the respondent knew, or a sober, reasonable person in the position of the respondent should have known, that the complainant was incapacitated. Because incapacitation may be difficult to discern, students and employees are strongly encouraged to err on the side of caution; i.e., when in doubt, assume that another person is incapacitated and therefore unable to give consent. Being intoxicated or drunk is never a defense to a complaint of sexual misconduct under this policy.
Spoken or written words or other types of electronic communications, physical actions including gestures, or threats of retaliation that would cause a reasonable person to be put into fear or fear harm to property.
A person whose alleged conduct is the subject of a complaint under this policy and can be an NCMC employee, student, volunteer, guest, visitor or third party affiliated with the institution.
Any adverse action, to include employment or educational action, taken against a person because of the person’s participation in a complaint or investigation of discrimination or sexual misconduct. Includes, but is not limited to, threat, intimidation, reprisals, and/or adverse actions related to employment or education.
Sexual harassment is unwelcome conduct of a sexual nature and includes sexual advances, requests for sexual favors, and other verbal, physical, visual, or digital conduct of a sexual nature when: (A) Submission to such conduct is made or threatened to be made, either explicitly or implicitly, a term or condition of an individual’s employment or education; (B) Submission to or rejection of such conduct by an individual is used or threatened to be used as the basis for academic or employment decisions affecting that individual; or (C) Such conduct has the purpose or effect of substantially interfering with an individual’s academic or professional performance or creating what a reasonable person would perceive as an intimidating, hostile, or offensive employment, education, or living environment. Examples of sexual harassment include, but are not limited to, unwelcome conduct such as: (1) comments of a sexual nature, (2) sexually demeaning statements, questions, jokes, or anecdotes, (3) display of sexually explicit materials in the workplace, (4) remarks about sexual activity or speculations about sexual experiences, and (5) whistling or other sexually explicit sounds or gestures. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical.
Sexual violence is a particularly severe form of sexual harassment. Sexual violence includes physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent because of his or her temporary or permanent mental or physical incapacity, because he or she is below the minimum age of consent in the applicable jurisdiction, or because of his or her incapacitation due to the use of drugs and/or alcohol. Other types of conduct may also constitute sexual violence. Examples of sexual violence include, but are not limited to, the following: Rape or sexual assault: sexual intercourse (anal, oral, or vaginal) by a man or woman upon a man or woman without consent; The use of force or coercion to effect sexual intercourse or some other form of sexual contact with a person who has not given consent; Unwilling sexual penetration (anal, vaginal, or oral) or other sexual touching with any object or body part that is committed by force, threat, intimidation, or otherwise without consent; Having sexual intercourse with a person who is unconscious because of drug or alcohol use; Hazing that involves penetrating a person’s vagina or anus with an object; Sexual exploitation, which includes, but is not limited to, the following: Sexual voyeurism, use of the “date rape drug” to effect sexual intercourse or some other form of sexual contact with a person, knowingly transmitting a sexually transmitted disease such as HIV to another person through sexual activity, secretly videotaping or photographing sexual activity where the other party has not consented, disseminating sexual pictures or videos of another person without consent regardless if the pictures or videos were obtained with consent, or prostituting another person.
Engaging in a course of conduct directed at a specific person that would cause a reasonable person to— (A) fear for his or her safety or the safety of others; or (B) suffer substantial emotional distress. Missouri’s definition of stalking can be found at Mo. Rev. Stat. § 455.010 and § 565.225. Cyberstalking is a form of stalking. Cyberstalking is a pattern of threatening behaviors and unwanted advances directed from one individual to another over the Internet and other electronic, online and computer communications. It can involve, but is not limited to: threatening/obscene emails and text messages, online verbal abuse, and tracing a victim’s computer and internet activity.