Title IX

Prohibited Conduct includes the following behavior as defined in Section D of the policy:

• Discrimination
• Harassment
• Non-Title IX Sexual Harassment (Term or condition of employment or education, Hostile Environment, Sexual Assault, Dating Violence, Domestic Violence, Stalking)
• Title IX Sexual Harassment (Quid Pro Quo, Hostile Environment, Sexual Assault, Dating Violence, Domestic Violence, Stalking)
• Sexual Exploitation
• Complicity
• Retaliation

Non-Title IX Sexual Harassment is a form of discrimination based on sex that does not fall within the definition and/or jurisdiction of Title IX Sexual Harassment (i.e., behavior that did not occur within the United States such as study abroad and/or within a CNU program or activity such as an off-campus residence). It is defined as unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature including: verbal (e.g., specific demands for sexual favors, sexual innuendoes, sexually suggestive comments, jokes of a sexual nature, sexual propositions, or sexual threats); non-verbal (e.g., sexually suggestive emails, other writings, articles or documents, objects or pictures, graphic commentaries, suggestive or insulting sounds or gestures, leering, whistling, or obscene gestures); or physical (e.g., touching, pinching, brushing the body, any unwelcome or coerced sexual activity, including sexual assault). Sexual harassment, including sexual assault, can involve persons of the same or different sexes.

The Discrimination, Harassment and Sexual Misconduct policy prohibits the following types of Non-Title IX Sexual Harassment:

• Term or condition of employment or education: This type of Non-Title IX Sexual Harassment (often referred to as "quid pro quo" harassment) occurs when the terms or conditions of employment, educational benefits, academic grades or opportunities, living environment or participation in a CNU activity are conditioned upon, either explicitly or implicitly, submission to or rejection of unwelcome sexual advances or requests for sexual favors, or such submission or rejection is a factor in decisions affecting that individual's employment, education, living environment, or participation in a CNU program or activity.
• Hostile environment may be conduct in any medium (e.g. oral, written, graphic, or physical) that is sufficiently severe, persistent or pervasive and objectionably offensive that interferes with, limits or denies the ability of an individual to participate in or benefit from education programs, services, opportunities, or activities or the individual’s employment access, benefits or opportunities. Mere subjective offensiveness is not enough to create a hostile environment. In determining whether conduct is severe, persistent or pervasive, and thus creates a hostile environment, the following factors will be considered:
  • The degree to which the conduct affected one or more individuals’ education or employment;
  • The nature, scope, frequency, duration, and location of the incident(s);
  • The identity, number, and relationships of persons involved;
  • The perspective of a “reasonable person” in the same situation as the person subjected to the conduct; and
  • The nature of higher education.

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

• Quid Pro Quo is when an employee of CNU conditions the provision of an aid, benefit, or service of CNU on an individual’s participation in unwelcome sexual contact. (Quid Pro Quo is when a student, not in an employee role, of CNU conditions the provision of an aid, benefit, or service of CNU on another student’s participation in unwelcome sexual contact and shall be addressed under Process B.)
• Hostile environment is unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that is effectively denies a person equal access to CNU’s education program or activity.
• Unwelcomeness is subjective. Severity, pervasiveness, and objective offensiveness are evaluated on the totality of the circumstances from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred and any similar, previous patterns.

Hostile Environment may be conduct in any medium (e.g. oral, written, graphic, or physical) that is sufficiently severe, persistent or pervasive and objectionably offensive that interferes with, limits or denies the ability of an individual to participate in or benefit from education programs, services, opportunities, or activities or the individual’s employment access, benefits or opportunities. Mere subjective offensiveness is not enough to create a hostile environment. In determining whether conduct is severe, persistent or pervasive, and thus creates a hostile environment, the following factors will be considered:

• The degree to which the conduct affected one or more individuals’ education or employment;
• The nature, scope, frequency, duration, and location of the incident(s);
• The identity, number, and relationships of persons involved;
• The perspective of a “reasonable person” in the same situation as the person subjected to the conduct; and
• The nature of higher education.

Sexual Assault is:

• Forcible Sex Offenses: Any sexual act directed against another person without the consent of the Complainant including instances where the Complainant is incapable of giving consent.
  • A “sexual act” is specifically defined by federal regulations to include one or more of the following:
    • Rape: 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 without the consent of the Complainant.
    • Sodomy: Oral or anal sexual intercourse with another person, forcibly, and/or against that person’s will (non-consensual), or not forcibly or against the person’s will in instances in where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
    • Sexual Assault with an Object: The use of an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will (non-consensual) or not forcibly or against that person’s will in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
    • Fondling: The touching of the private body parts of another person (buttocks, groin, genetalia, breasts, or the clothing covering those areas) for the purposes of sexual gratification, forcibly and/or against that person’s will (non-consensual) or not forcibly or against the person’s will in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
• Non-Forcible Sex Offenses:
  • Incest: Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by the law of the Commonwealth of Virginia.  (See Va. Code §18.2-366).
  • Statutory Rape: Non-forcible sexual intercourse with a person who is under the statutory age of consent in the Commonwealth of Virginia, which is 17.

Dating Violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of (1) the length of the relationship; (2) the type of relationship; and (3) the frequency of interaction between the persons involved in the relationship.

For purposes of this definition:

• 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.

Examples may be emotional, economic, or psychological actions or threats of actions that influence another person including behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone

Domestic Violence is a felony or misdemeanor crime of violence committed by:

• A current or former spouse or intimate partner of the Complainant;
• A person with whom the Complainant shares a child in common;
• A person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner;
• A person similarly situated to a spouse of the Complainant under the domestic or family violence laws of the Commonwealth of Virginia, and
• 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 the Commonwealth of Virginia.

The relationship between the Complainant and Respondent must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.

Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (1) fear for the person’s safety; (2) the safety of others; or (3) suffer substantial emotional distress meaning significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

A “course of conduct” means two or more acts, including, but not limited to, acts in which the Respondent 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.

Sexual Misconduct includes Non-Title IX Sexual Harassment, Title IX Sexual Harassment, Sexual Assault, Sexual Exploitation, Dating Violence, Domestic Violence, and Stalking.

Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent including the criminal acts of rape, sexual assault, sexual battery, sexual abuse and sexual coercion as found under Virginia law (Article 4 of Chapter 4 of Title 18.2).

Consent is given by voluntary words or actions that communicate a willingness to engage in a specific sexual activity. The existence of consent will be inferred from all of the facts and circumstances. Consent may be withdrawn at any time. Silence, in and of itself, is not consent. Lack of protest or resistance is not consent. Consent to one form of sexual activity does not imply consent to other forms of sexual activity. A previous or current relationship does not imply consent to sexual activity. Past consent does not imply future consent.

• Consent cannot be obtained by the use of force to include physical violence, threats, intimidating behavior, and/or coercion.
  • Physical violence means that a person is exerting control over another person through the use of physical force. Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking, strangulation, and brandishing or using any object as a weapon.
  • Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples include threats to harm a person physically, to reveal private information to harm a person's reputation, or to cause a person academic or economic harm.
  • Intimidation is an implied threat that menaces or causes reasonable fear in another person. A person's size, alone, does not constitute intimidation; however, a person can use their size or physical power in a manner that constitutes intimidation (e.g., by blocking access to an exit).
  • Coercion is the use of an unreasonable amount of pressure to gain sexual access. Coercion is more than an effort to persuade, entice or attract another person to engage in sexual activity. When a person makes clear that they do not want to participate in a particular form of sexual contact or sexual intercourse, that they want to stop or that they do not want to go beyond a certain sexual activity, continued pressure may be coercive. In evaluating whether coercion was used, the frequency of the application of pressure, the intensity of the pressure, the degree of isolation of the person being pressured, and the duration of the pressure are all relevant factors.
• If an individual knows or reasonably should know someone is incapable of giving consent, it is a violation of this policy to engage in sexual activity with that person.
• Consent cannot be given by the following individuals:
  • Individuals who are asleep or unconscious
  • Individuals who are incapacitated due to the influence of drugs, alcohol, medication, or other substances
  • Individuals who are unable to consent due to a mental or physical condition
  • Individuals who are minors
• Incapacitation: An incapacitated person is incapable of giving consent. Incapacitation means that a person lacks the ability to make informed, reasonable judgments about whether or not to engage in sexual activity. An incapacitated person lacks the ability to understand the who, what, when, where, why and/or how of the sexual interaction. A person is not necessarily incapacitated merely as a result of consuming alcohol, drugs, medications and/or other substances. The impact of alcohol, drugs, medications and/or other substances varies from person to person. Incapacitation is not synonymous with intoxication, impairment, blackout, and/or being drunk
• Alcohol, medications and other drugs: The use of alcohol, medications and other drugs by the Respondent is not an excuse for being unable to assess if the Complainant gave consent.

Sexual Exploitation occurs when a person takes non-consensual or abusive sexual advantage of another for anyone's advantage or benefit other than the person being exploited, when that behavior does not otherwise constitute Prohibited Conduct under this policy. Sexual exploitation includes, but is not limited to:

• prostituting another person,
• non-consensual recording or photographing sexual activity and/or a person’s intimate body parts,
• non-consensual distribution of photos, other images, or recordings of an individual's sexual activity and/or intimate body parts,
• non-consensual voyeurism,
• knowingly transmitting HIV or an STD to another,
• causing or attempting to cause the incapacitation of another person for a sexual purpose,
• or exposing one's genitals to another in non-consensual circumstances.

Complicity is any act taken with the purpose of aiding, facilitating, promoting or encouraging the commission of a violation of this policy by another person. Complicity is prohibited by this policy.

Retaliation is any adverse action taken or threatened against a person for making a good faith report of Prohibited Conduct or participating in any proceeding under this policy. Retaliation includes intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by this policy or law, or because the individual has made a report or Formal Complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. Action is generally deemed adverse if it would deter a reasonable person in the same circumstances from opposing practices prohibited by this policy.

Retaliation is a separate offense and may result in disciplinary or other action independent of the sanctions or supportive measures imposed in response to the underlying allegations of Prohibited Conduct.

Charging an individual for making a materially false statement in bad faith in the course of the Resolution Process under this policy does not constitute retaliation, provided that the determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

Retaliation does not include good faith actions lawfully pursued in response to a report of Prohibited Conduct or the exercise of rights protected under the First Amendment.

Online Misconduct occurring completely outside of CNU’s control (i.e. not on CNU’s networks, websites, or between CNU email accounts) will only be subject to the Discrimination, Harassment and Sexual Misconduct policy when such online conduct causes a substantial effect on a student’s or employee’s participation in a CNU education program or activity or infringement on the rights of others. Otherwise, such communication is considered speech protected by the First Amendment.