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- Any of the following forms of behavior will be considered a violation of this policy.
- Sexual/Gender-Based Harassment Offenses
- Sexual/gender-based harassment is unwelcome sexual or gender based verbal or physical conduct that unreasonably interferes with or deprives others of their right to access and benefit from the educational and other programs and services of the University. Sexual violence is a form of sexual harassment. Sexual harassment offenses fall into two general categories.
- Hostile Environment- harassing conduct that is sufficiently severe, pervasive/persistent and patently/objectively offensive that it substantially interferes with the conditions of education or employment, from both a subjective (the alleged victim's) and an objective (reasonable person's) viewpoint. The determination of whether an environment is "hostile" will be based on all of the circumstances. These circumstances could include but are not limited to:
- the frequency of the conduct;
- the nature and severity of the conduct;
- whether the conduct was physically threatening;
- whether the conduct was humiliating;
- whether the conduct was directed at a specific individual or more than one person;
- whether the conduct arose in the context of other discriminatory conduct;
- whether the conduct unreasonably interfered with the alleged Complainant's educational or work performance;
- whether the statement is an utterance of an epithet which offends an employee or student, or offends by discourtesy or rudeness; or
- whether the speech or conduct is excluded from the protections of free speech or academic freedom.
- Quid-pro-Quo - A violation of this type exists when there are:
- unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; and
- submission to or rejection of such conduct results in adverse educational access or employment action
- Sexual Misconduct Offenses and Definitions
- Sexual Assault is any offense that meets the definitions listed below for rape, fondling, incest or statutory rape.
- In the State of New Jersey, sexual assault is defined under N.J.S.A. 2C:14-2 as:
- An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) The victim is less than 13 years old; (2) The victim is at least 13 but less than 16 years old; and (a) The actor is related to the victim by blood or affinity to the third degree, or (b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status, or (c) The actor is a resource family parent, a guardian, or stands in loco parentis within the household; (3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape; (4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object; (5) The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion; (6) The actor uses physical force or coercion and severe personal injury is sustained by the victim;(7) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated. Aggravated sexual assault is a crime of the first degree. b. An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim. c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury; (2) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status; 3) The victim is at least 16 but less than 18 years old and: (a) The actor is related to the victim by blood or affinity to the third degree; or (b) The actor has supervisory or disciplinary power of any nature or in any capacity over the victim; or (c) The actor is a resource family parent, a guardian, or stands in loco parentis within the household;(4) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim. Sexual assault is a crime of the second degree.
- An actor is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) The victim is less than 13 years old; (2) The victim is at least 13 but less than 16 years old; and (a) The actor is related to the victim by blood or affinity to the third degree, or (b) The actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status, or (c) The actor is a resource family parent, a guardian, or stands in loco parentis within the household; (3) The act is committed during the commission, or attempted commission, whether alone or with one or more other persons, of robbery, kidnapping, homicide, aggravated assault on another, burglary, arson or criminal escape; (4) The actor is armed with a weapon or any object fashioned in such a manner as to lead the victim to reasonably believe it to be a weapon and threatens by word or gesture to use the weapon or object; (5) The actor is aided or abetted by one or more other persons and the actor uses physical force or coercion; (6) The actor uses physical force or coercion and severe personal injury is sustained by the victim;(7) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated. Aggravated sexual assault is a crime of the first degree. b. An actor is guilty of sexual assault if he commits an act of sexual contact with a victim who is less than 13 years old and the actor is at least four years older than the victim. c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances: (1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury; (2) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status; 3) The victim is at least 16 but less than 18 years old and: (a) The actor is related to the victim by blood or affinity to the third degree; or (b) The actor has supervisory or disciplinary power of any nature or in any capacity over the victim; or (c) The actor is a resource family parent, a guardian, or stands in loco parentis within the household;(4) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim. Sexual assault is a crime of the second degree.
- Non-Consensual Sexual Contact- any intentional sexual touching, however slight, with any body part or any object, without the consent of the victim. a. Fondling is defined as the touching of the private parts of another person for the purposes of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.
- Non-Consensual Sexual Intercourse or Penetration (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 another person, without the consent of the victim.
- Incest is defined as sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
- Statutory Rape is defined as sexual intercourse with a person who is under the statutory age of consent.
- Sexual Exploitation – behavior that takes non-consensual sexual advantage of any person to benefit any other person when the behavior does not otherwise constitute a sexual misconduct violation. Examples of sexual exploitation include, but are not limited to:
- prostituting another person;
- non-consensual video or audio-recording of sexual activity, or transmitting or distributing video or audio-recordings without permission;
- voyeurism or spying on persons where they have a reasonable expectation of privacy;
- knowingly transmitting a sexually transmitted infection or HIV to another person;
- stalking with a sexual component. Stalking may take many forms, including persistent calling, texting, or posting on a social networking site as well as physical stalking. When the content of the messages or the nature of the physical stalking is of a sexual nature, sexual misconduct has occurred.
- Other Sexual Misconduct – inappropriate sexual behaviors not covered previously in this section. Examples include but are not limited to sexual activity in public places.
- Domestic violence means a felony or misdemeanor crime of violence committed:
- By a current or former spouse or intimate partner 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 or intimate partner,
- By 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
- 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 in which the crime of violence occurred.
- In the State of New Jersey, domestic violence is defined under 2C:25-19.
- Under 2C:25-19, "Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor: (1) Homicide N.J.S.2C:11-1 et seq.; (2) Assault N.J.S.2C:12-1; (3) Terroristic threats N.J.S.2C:12-3; (4) Kidnapping N.J.S.2C:13-1; (5) Criminal restraint N.J.S.2C:13-2; (6) False imprisonment N.J.S.2C:13-3; (7) Sexual assault N.J.S.2C:14-2; (8) Criminal sexual contact N.J.S.2C:14-3; (9) Lewdness N.J.S.2C:14-4; (10) Criminal mischief N.J.S.2C:17-3; (11) Burglary N.J.S.2C:18-2; (12) Criminal trespass N.J.S.2C:18-3; (13) Harassment N.J.S.2C:33-4; (14) Stalking P.L.1992, c.209 (C.2C:12-10).
- Under 2C:25-19, "Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor: (1) Homicide N.J.S.2C:11-1 et seq.; (2) Assault N.J.S.2C:12-1; (3) Terroristic threats N.J.S.2C:12-3; (4) Kidnapping N.J.S.2C:13-1; (5) Criminal restraint N.J.S.2C:13-2; (6) False imprisonment N.J.S.2C:13-3; (7) Sexual assault N.J.S.2C:14-2; (8) Criminal sexual contact N.J.S.2C:14-3; (9) Lewdness N.J.S.2C:14-4; (10) Criminal mischief N.J.S.2C:17-3; (11) Burglary N.J.S.2C:18-2; (12) Criminal trespass N.J.S.2C:18-3; (13) Harassment N.J.S.2C:33-4; (14) Stalking P.L.1992, c.209 (C.2C:12-10).
- Dating violence means 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 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.
- Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
- In the State of New Jersey, dating violence is defined under 2C:25-19(d).
- Under 2C:25-19(d), "Victim of domestic violence" means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. "Victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
- Under 2C:25-19(d), "Victim of domestic violence" means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. "Victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
- Stalking means 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. (A) Course of conduct means two or more acts, including, but not limited to, acts 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. (B) Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim. (C) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
- In the State of New Jersey, stalking is defined under 2C:12-10*.
- Under 2C:12-10 , "A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress."
- In the State of New Jersey, stalking is defined under 2C:12-10*.
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- In order for individuals to engage in sexual contact of any kind, there must be clear consent between the individuals involved.
- The person giving consent must be capable of doing so freely, with the ability to understand what they are doing and the specific details (who, what, when, where and how) of the sexual contact they are consenting to.
- Consent can be given by words or actions, as long as those words or actions create mutually understandable permission regarding the conditions of sexual activity.
- It is the obligation of the person initiating sexual contact to obtain clear consent for the specific type of sexual contact sought.
- Silence or passivity without words or actions that communicate mutually understandable permission cannot be assumed to convey consent.
- Consent for one form of sexual contact does not imply consent to other forms.
- Past consent does not constitute consent for future sexual activity. Use of violence, threats, coercion, or intimidation invalidates any consent given.
- Persons who are incapacitated due to the use of drugs or alcohol cannot give consent.
- Consent cannot be given by a person who is unconscious or sleeping. If consent has been given while a person is conscious or awake, and then that person becomes unconscious or falls asleep, consent terminates at that point.
- Persons, who are unable to give valid consent under the law (i.e. minors, individuals with mental health disabilities), will be considered unable to give consent under this policy.
- The University will apply a reasonable person standard in determining whether or not consent was given and whether a person was incapacitated, unless otherwise required by law.
- In the State of New Jersey, consent in relation to sexual activity is defined under 2C:2-10. In relation to consent for sexual activity, :
2C:2-10
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provides
a. In general. The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
b. Consent to bodily harm. When conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if:
(1) The bodily harm consented to or threatened by the conduct consented to is not serious; or
(2) The conduct and the harm are reasonably foreseeable hazards of joint participation in a concerted activity of a kind not forbidden by law; or
(3) The consent establishes a justification for the conduct under chapter 3 of the code.
c. Ineffective consent. Unless otherwise provided by the code or by the law defining the offense, assent does not constitute consent if: (1) It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
(2) It is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature of harmfulness of the conduct charged to constitute an offense; or
(3) It is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.
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