Definitions
There are numerous terms used by Buena Vista University in our policy and procedures.
- Victim: an individual who is alleged to have been subject to conduct that violates this policy.
- Accused: an individual who has been accused of prohibited conduct under this policy.
- Complainant: the individual filing a complaint with the University under this policy. In addition, the term “complainant” may also be used to refer generally to persons alleged to have been subjected to conduct that violates this policy, whether or not they have filed a complaint.
- Respondent: the individual named as the accused in a complaint with the University under this policy.
- Report: an account of sexual misconduct that has allegedly occurred that could be provided to the University by the complainant, a third party, or an anonymous source.
- Complaint: an alleged policy violation that begins a complaint resolution process as set forth in the Procedures for Sexual Misconduct Complaint Resolution.
- Sex Discrimination: conduct based upon an individual’s sex 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 program or activity. Sex discrimination encompasses all forms of sexual harassment, sexual violence, differential treatment, and gender-based harassment. Sex discrimination includes discrimination based on gender, gender expression, gender identity, and sex. Discrimination based on sexual orientation also is prohibited. For the University’s general nondiscrimination policy (which covers sex discrimination), please see BVU’s Policy Against Harassment and Discrimination.
- Sexual Misconduct: as used in this policy, sexual misconduct means the following forms of sex discrimination and other misconduct: sexual harassment, sexual assault, domestic violence, dating violence, stalking,1 and sexual exploitation, as each of those terms is defined below.
- Sexual Harassment: is a form of unlawful sex discrimination. It may involve any member of the campus community regardless of gender. Sexual harassment is defined as unwelcome sexual or gender-based verbal, physical, or other conduct or communication that is sufficiently severe, persistent or pervasive that it unreasonably interferes with, limits, or deprives someone of the ability to participate in or benefit from the University’s educational program or activities or employment benefits or opportunities. The unwelcome behavior may be based on power differentials (such as in quid pro quo harassment where submission to or rejection of unwelcome sexual conduct by an individual is used, explicitly or implicitly, as the basis for employment or academic decisions), or may create of an intimidating, hostile, or offensive environment for that individual’s employment, education, living environment, or participation in a University activity. Examples of sexual harassment may include, but are not limited to:
- Unwanted sexual attention or other verbal or physical conduct of a sexual nature;
- Implied or overt threats of punitive action as a result of rejection of sexual advances;
- Conditioning a benefit on an individual’s acceding to sexual advances;
- Unwelcome, sexually explicit messages, statements, or materials;
- Attempting to coerce an unwilling person into a romantic or sexual relationship
- Sexual violence;
- Gender-based bullying;
- Verbal abuse of a sexual nature or obscene language;
- Gender- or sexually-oriented jokes and comments;
- Displaying derogatory or sexually suggestive pictures or other objects in an office, on the exterior of a residence hall door, or on a computer monitor in a public space;
- “Rating” individuals’ bodies and sex appeal, commenting suggestively about their clothing and appearance, or other verbal commentary about an individual’s body;
- Visual conduct such as leering or making gestures;
- Gossip about sexual relations;
- Repeated and unwelcome sexual flirtations, attention, or advances.
- Sexual assault: is any actual or attempted sexual contact, with any object, with another person without that person’s consent. As used in this policy, sexual contact includes intentional contact by the accused with the victim’s genital area, groin, inner thigh, buttocks, or breasts, whether clothed or unclothed; touching another with any of these body parts, whether clothed or unclothed; coerced touching by the victim of another’s genital area, groin, inner thigh, buttocks, or breasts, whether clothed or unclothed; forcing another to touch oneself or him/herself with or on any of these body parts; or any intentional bodily contact in a sexual manner, though not involving contact with/of/by the genital area, groin, inner thigh, buttocks, or breasts.
- Sexual assault includes but is not limited to an offense that meets any of the following definitions:
- 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, or oral contact with the sex organ of another person, without the consent of the victim.
- Fondling: the touching of the intimate parts (including the genital area, groin, inner thigh, buttocks, or breast) of another person for the purpose of sexual gratification, without the consent of the victim.
- 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; in Iowa the age of consent is 16.
- Sexual assault is a crime under Iowa law. See Iowa Code Section 709.1 et seq. Under Iowa law, sexual abuse is defined as any sex act committed against another by force or against the victim’s will, including when the consent or acquiescence of the victim is procured by threats of violence toward any person or when the act is done while the victim is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, or when the victim 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. Iowa law broadly defines “sex act” to include intercourse, oral or anal sex, or any contact between the genitals, hands, or fingers of one person and the genitals or anus of another. Violent sexual conduct may also be prosecuted as an assault (an act intended to cause pain, injury, or offensive physical contact, or place another in fear of pain or injury); for example, using any object to sexually penetrate another.
- Sexual assault includes but is not limited to an offense that meets any of the following definitions:
- Consent: is clear, knowing, and voluntary. Consent is active, not passive Effective consent can be given by words or overt actions, as long as those words or actions create mutually understandable, clear permission regarding willingness to engage in (and the conditions of) sexual activity. The words or overt actions must clearly and affirmatively communicate a freely given agreement to perform a particular sexual act at the time of the act. It is the responsibility of the person initiating the specific sexual activity to obtain consent for that activity. It is important not to make assumptions about whether a potential partner is consenting. In order to avoid confusion or ambiguity, participants are encouraged to talk with one another before engaging in sexual activity. If confusion or ambiguity arises during sexual activity, participants are encouraged to stop and clarify a mutual willingness to continue that activity. Consent may be withdrawn at any time. An individual who seeks to withdraw consent must communicate, through clear words or actions, a decision to cease the sexual activity. Once consent is withdrawn, the sexual activity must cease immediately. The conditions of obtaining consent are subject to the following:
- Consent is a mutually understood and freely given “yes,” not the absence of “no.”
- Consent to one form of sexual activity cannot imply consent to other forms of sexual activity.
- Silence or failing to resist does not imply consent.
- Previous relationships or previous consent does not imply consent to future sexual acts.
- An existing sexual, romantic, or marital relationship does not imply consent.
- Prior sexual activity with other individuals does not imply consent.
- Consent cannot be obtained, explicitly or implicitly, by use of force, intimidation, threats, or coercion.
- There can be no consent to sexual activity with someone known to be—or who should be known to be—mentally or physically
- Use of alcohol or other drugs will never function to excuse behavior that violates this policy. Consent can only be given if one is of legal age. In Iowa, the legal age of consent is 16 years old.
- Incapacitation: the physical and/or mental inability to understand the fact, nature, or extent of the sexual situation (i.e., to understand the “who, what, when, where, why, or how” of his/her sexual interaction). Incapacitation may result from mental or physical disability, sleep, unconsciousness, involuntary physical restraint, or from the influence of drugs or alcohol. With respect to incapacitation due to alcohol or other drug ingestion, consumption of alcohol or other drugs alone is insufficient to establish incapacitation A person is not necessarily incapacitated merely as a result of drinking or using other drugs. The impact of alcohol and other drugs varies from person to person. Where alcohol or other drugs are involved, incapacitation is determined on a case-by-case basis based on the facts and circumstances of the particular situation, looking at whether the individual was able to understand the fact, nature, or extent of the sexual situation; whether the individual was able to communicate decisions regarding consent, nonconsent, or the withdrawal of consent; and whether the accused knew, or a sober, reasonable person in the position of the accused should have known, that the victim was incapacitated.
- One is not expected to be a medical expert in assessing incapacitation. One 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.
- Possession, use, and/or distribution of any of these substances, including but not limited to, Rohypnol, Ketamine, GHB, Burundanga is prohibited, and administering one of these drugs to another person is a violation of this policy. More information on these drugs can be found at http://www.911rape.org.
- Being impaired by alcohol or other drugs is not a defense against allegations of sexual misconduct and does not diminish personal accountability or criminal liability.
- Incapacitation: the physical and/or mental inability to understand the fact, nature, or extent of the sexual situation (i.e., to understand the “who, what, when, where, why, or how” of his/her sexual interaction). Incapacitation may result from mental or physical disability, sleep, unconsciousness, involuntary physical restraint, or from the influence of drugs or alcohol. With respect to incapacitation due to alcohol or other drug ingestion, consumption of alcohol or other drugs alone is insufficient to establish incapacitation A person is not necessarily incapacitated merely as a result of drinking or using other drugs. The impact of alcohol and other drugs varies from person to person. Where alcohol or other drugs are involved, incapacitation is determined on a case-by-case basis based on the facts and circumstances of the particular situation, looking at whether the individual was able to understand the fact, nature, or extent of the sexual situation; whether the individual was able to communicate decisions regarding consent, nonconsent, or the withdrawal of consent; and whether the accused knew, or a sober, reasonable person in the position of the accused should have known, that the victim was incapacitated.
- Coercion: is unreasonable pressure or intimidation for sexual activity that would compel an individual to do something against their will by the use of psychological pressure, physical force, or threats of severely damaging consequences.
- The use of physical force may violate other University regulations as well and may constitute a stand-alone, non-sexual misconduct offense such as physical assault in addition to a sexual misconduct violation.
- There is no requirement that a person resists a sexual advance or request, but resistance is a clear demonstration of non-consent.
- When someone makes clear that he/she does not want to engage in sex or a sexual activity, that he/she wants to stop, or that he/she does not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
- Coercive behavior differs from seductive behavior based on the degree and type of pressure someone uses to obtain consent from another.
- Coercion is more than an effort to persuade or attract another person to engage in sexual activity.
- 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 the other sexual misconduct offenses. Examples of sexual exploitation include, but are not limited to:
- Invasion of sexual privacy;
- Prostituting another person;
- Non-consensual taking of photographs/images, video recording, and/or audio recording of a sexual activity;
- Non-consensual distribution of photographs/images, video recording, audio recording, or live-streaming of a sexual activity;
- Allowing third parties to observe sexual activities without consent;
- Engaging in non-consensual voyeurism;
- Knowingly transmitting HIV or another Sexually Transmitted Infection to another person;
- Exposing one’s genitals in non-consensual circumstances;
- Inducing another to expose his/her genitals in non-consensual circumstances.
- Domestic Violence: a felony or misdemeanor crime of violence committed by:
- A current or former spouse or intimate partner of the victim;
- A person with whom the victim shares a child;
- A person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner;
- A person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or
- 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 in which the crime of violence occurred. In addition to the relationships described above, Iowa law defines “domestic abuse” to include assault committed between family or household members (defined as spouses, persons cohabiting, parents, or other persons related by consanguinity or affinity) who resided together at the time of the assault or who resided together within the past year and assault between persons who are in an intimate relationship or have been in an intimate relationship and have had contact within the past year. See Iowa Code § 236.2.
- Dating Violence: 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 victim’s statement with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
- 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.
- As of the date of this publication, there is no law defining “dating violence” in Iowa. Iowa law defines “domestic abuse” to include assault between persons who are in an intimate relationship or have been in an intimate relationship and have had contact within the past year. See Iowa Code § 236.2.
- Stalking:
- Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
- Fear for his or her safety or the safety of others; or
- Suffer substantial emotional distress.
- Course of conduct means two or more acts, including but not limited to, acts in which the stalker 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.
- Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or professional treatment or counseling.
- Stalking is also prohibited by Iowa law. See Iowa Code 708.11. Under Iowa law, a person commits stalking when all of the following occur:
- 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.
- 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.
- Retaliation: any adverse action taken against a person for the person making a good faith report of a potential violation of this policy, supporting another person’s report, participating in good faith in a complaint resolution process, or opposing in good faith a practice or conduct that the person reasonably believes is in violation of this policy. Retaliation includes any form of intimidation, threats, coercion, reprisal, or harassment. See the No Retaliation section below for more information.
- Complicity: is any act taken with the purpose of aiding, facilitating, promoting or encouraging the commission of an act of prohibited conduct by another person.
1 Some instances of dating violence, domestic violence, and stalking may not be sexual in nature. For purposes of this policy, the term "sexual misconduct" encompasses all instances of dating violence, domestic violence, and stalking (as those terms are defined in this policy), regardless of whether there is a sexual component to the behavior.