Sexual Misconduct Definitions
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. The Clery Act requires annual reporting of statistics for various criminal offenses, including sexual assault (forcible and non-forcible sex offenses). The Violence Against Women Act's (VAWA) amendments to the Clery Act add additional reporting requirements related to domestic violence, dating violence, and stalking.
Complainant. Any individual who is reported to have been subjected to sexual harassment, sexual assault, dating violence, domestic violence, or stalking, as defined in the relevant Administrative Code provisions or policies. See, e.g., Chs. UWS 4.015 (faculty), UWS 11.015 (academic staff), and UWS 17.02(2m) (students).
Confidential Employee. Any employee, who is a licensed medical, clinical, or mental health professional, when acting in that role in the provision of services to a patient or client who is a university student or employee. A Confidential Employee will not report specific information concerning a report of sexual violence or sexual harassment received by that Employee in the Employee’s professional capacity unless with the consent of the reporting individual or unless required by the Employee’s license or by law.
Confidential Resource. Individuals or agencies in the community, whose professional license or certification permits that individual or agency to preserve the confidentiality of the patient or client.
Consent. Words or overt actions by a person who is competent to give informed consent, indicating a freely given agreement to engage in sexual activity or other activity referenced in the definitions of sexual assault and sexual exploitation in this section. A person is unable to give consent if the person is in a state of incapacitation because of drugs, alcohol, physical or intellectual disability, or unconsciousness. UWS 11.015(3m)
Dating Violence. Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. UWS 11.015 (5)
Domestic Violence. Felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of Wisconsin, or by any other person against an adult or youth complainant who is protected from that person's acts under the domestic or family violence laws of Wisconsin as per ss. 813.12 (1) (am) and 968.075, Stats. UWS 11.015 (6)
Employee. Any individual who holds a faculty, academic staff, university staff, limited, student employment, employee-in-training, temporary, or project appointment. (See, e.g., UPS Operational Policy, GEN 0, General Terms and Definitions (https://www.wisconsin.edu/ohrwd/download/policies/ops/gen0.pdf))
Executive Order 54. Executive Order issued by Governor Walker in 2011 requiring that university employees report incidents of child abuse and neglect which they observe or witness in the course of their employment. Such reports must be personally and immediately made to law enforcement or the county department of social services or human services.
Incapacitation. As it applies to this policy, the state of being unable to physically and/or mentally make informed rational judgments and effectively communicate, and may include unconsciousness, sleep, or blackouts, and may result from the use of alcohol or other drugs. Where alcohol or other drugs are involved, evaluation of 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 when viewed from the perspective of a sober, reasonable person.
Office for Civil Rights. The U.S. Department of Education office that is responsible for enforcing Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and other education-based discrimination acts. http://www2.ed.gov/about/offices/list/ocr/complaints-how.html
Preponderance of the Evidence. Information that would persuade a reasonable person that a proposition is more probably true than not true. It is a lower standard of proof than “clear and convincing evidence” and is the minimum standard for a finding of responsibility. [Sections UWS 17.02(13), UWS 11.015(7), UWS 4.015(7), and UWS 7.015(5), Wis. Admin. Code]
Respondent. A student who is accused of violating a policy under Chapter UWS 17, Wis. Admin. Code, or an employee who is accused of violating a policy under Chapters UWS 4, 7, or 11, Wis. Admin. Code.
Responsible Employee. Any employee (other than a “confidential resource”):
Who has the authority to take action to redress sexual misconduct;
Who has been given the duty of reporting incidents of sexual misconduct by students or employees to the Title IX coordinator or other appropriate school designee; or
Who a student could reasonably believe has this authority or duty. April 29, 2014 “Dear Colleague Letter”, available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
Retaliation. An adverse action taken against an individual in response to, motivated by, or in connection with an individual’s complaint of discrimination or discriminatory harassment, participation in an investigation of such complaint, and/or opposition of discrimination or discriminatory harassment in the educational or workplace setting.
Sex Discrimination. Discrimination on the basis of sex or gender. Sexual harassment and sexual assault are forms of sex discrimination. [See 20 USC §§ 1681-1688]
Sexual Assault. “Sexual assault" means an offense that meets any of the following definitions:
(a) “Rape” means 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 the complainant, without the consent of the complainant.
(b) “Fondling” means the touching of the private body parts of the complainant for the purpose of sexual gratification, without the consent of the complainant, including instances where the complainant is incapable of giving consent because of the complainant's age or because of the complainant's temporary or permanent mental incapacity.
(c) “Incest” means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law as per s. 944.06, Stats.
(d) “Statutory Rape” means sexual intercourse with a complainant who is under the statutory age of consent as per s. 948.02, Stats.
Sexual Contact. Intentional touching, whether direct or through clothing, if that intentional touching is for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under § 940.19(1) or § 940.225(5)(b)(1), Wis. Stats.
Sexual Exploitation. “Sexual exploitation” means attempting, taking or threatening to take, nonconsensual sexual advantage of another person. Examples include:
(a) Engaging in the following conduct without the knowledge and consent of all participants:
1. Observing, recording, or photographing private body parts or sexual activity of the complainant.
2. Allowing another person to observe, record, or photograph sexual activity or private body parts of the complainant.
3. Otherwise distributing recordings, photographs, or other images of the sexual activity or private body parts of the complainant.
(b) Masturbating, touching one's genitals, or exposing one's genitals in the complainant's presence without the consent of the complainant, or inducing the complainant to do the same.
(c) Dishonesty or deception regarding the use of contraceptives or condoms during the course of sexual activity.
(d) Inducing incapacitation through deception for the purpose of making the complainant vulnerable to non-consensual sexual activity.
(e) Coercing the complainant to engage in sexual activity for money or anything of value.
(f) Threatening distribution of any of the following, to coerce someone into sexual activity or providing money or anything of value:
1. Photos, videos, or recordings depicting private body parts or sexual activity of the complainant.
2. Other information of a sexual nature involving the complainant, including sexual history or sexual orientation.
(2) “ Sexual harassment" means conduct on the basis of sex that satisfies any of the following:
(a) Quid pro quo sexual harassment.
1. An employee of the institution conditions the provision of an aid, benefit, or service of the institution directly or indirectly on an individual's participation in unwelcome sexual conduct; or
2. An employee of the institution either, explicitly or implicitly, conditions the provision of an academic, professional, or employment-related opportunity, aid, benefit, or service on an individual's participation in unwelcome sexual conduct.
(b) Hostile environment sexual harassment.
UWS 4.016(2)(b)1.1. Unwelcome conduct of a sexual nature directed towards a student, an employee, or a person participating in a program or activity of the university that, when using the legal “reasonable person” standard, is so severe, pervasive, and objectively offensive that it effectively denies the person equal access to the institution's education program or activity; or
2. Unwelcome conduct of a sexual nature directed towards an individual that, when using the legal “reasonable person” standard, is so severe or pervasive and objectively offensive that it has the purpose or effect of unreasonably interfering with an individual's academic or work performance or participation in an university sponsored or supported activity.
Sexual Intercourse. Penetration, as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal opening either by the defendant or upon the defendant’s instruction [§ 940.225(5)(c), Wis. Stats.].
Sexual Violence. The phrase, as used in this policy, refers to incidents involving sexual assault, sexual harassment, stalking, dating violence, and domestic violence.
Stalking. Engaging in a course of conduct directed at the complainant that would cause a reasonable person to fear for their safety or the safety of others; or suffer substantial emotional distress. UWS 11.015(11)
Student. “Student” means any person who is registered for study in a University of Wisconsin System institution for the academic period in which the alleged act of sexual violence or sexual harassment occurred, or between academic periods for continuing students. [See Chapter UWS 17.02(14), Wis. Admin. Code.]
Violence Against Women Act (VAWA). Federal law enacted in 1994, which promotes the investigation and prosecution of violent crimes against women, among other objectives. Recently, it affected amendments to the Clery Act [42 U.S.C. §§ 13701-14040], through the Campus Sexual Violence Elimination Act (SaVE) provision, Section 304.