A. Guiding Principles
This is a consent-based policy and the following concepts are guiding principles related to review and evaluation of prohibited conduct, as delineated in these Procedures.
Individuals who choose to engage in sexual activity of any type with another individual must first obtain clear consent. Consent must be clear, knowing, and voluntary. Consent is active, not passive. Consent can be given by words or actions as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity.
- In order to give consent, one must be of legal age (CRS Section 18-3-402).
- Each participant in a sexual encounter is expected to obtain and give consent to each act of sexual activity. Consent to any one form of sexual activity does not automatically imply consent to any other form of sexual activity.
- Consent consists of an outward demonstration indicating that an individual has freely chosen to engage in sexual activity. Relying on non-verbal communication can lead to misunderstandings. Silence, in and of itself, cannot be interpreted as consent. Consent may not be inferred from silence, passivity, lack of resistance, or lack of an active response alone. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent.
- When consent is requested verbally, absence of any explicit verbal response constitutes lack of consent.
- If at any time during the sexual activity, any confusion or ambiguity arises as to the willingness of the other individual to proceed, both parties should stop and clarify, verbally, the other’s willingness to continue before continuing such activity.
- Either party may withdraw consent at any time. Withdrawal of consent should be outwardly demonstrated by words or actions that clearly indicate a desire to end sexual activity. Once withdrawal of consent has been expressed, sexual activity must cease.
- Individuals with a previous or current intimate relationship do not automatically give either initial or continued consent to sexual activity. Even in the context of a relationship, there must be mutually understandable communication that clearly indicates a willingness to engage in sexual activity.
- Consent is not effective if it results from the use or threat of physical force, intimidation, or coercion, or any other factor that would eliminate an individual’s ability to exercise his or her own free will to choose whether or not to have sexual contact.
- A person who is incapacitated cannot give consent.
Coercion is unreasonable and/or persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get sexual activity from another. When someone makes clear that they do not want to engage in sexual contact, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats and blackmail. Examples of coercion include threatening to disclose another individuals’ private sexual information related to sexual orientation, gender identity, or gender expression and threatening to harm oneself if the other party does not engage in the sexual activity.
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. There is no requirement that a party resists the sexual advance or request, but resistance will be viewed as a clear demonstration of non-consent. Threat includes threats of physical violence against another person or intimidation (implied threats).
An individual who is incapacitated lacks the ability to make informed, rational judgments and cannot consent to sexual activity. Incapacitation is defined as the inability, temporarily or permanently, to give consent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring. Sexual activity with someone whom one should know to be—or based on the circumstances should reasonably have known to be—mentally or physically incapacitated (by alcohol or other drug use, or unconsciousness), constitutes a violation of these Procedures.
Where alcohol or other drugs are involved, incapacitation is a state beyond drunkenness or intoxication. The impact of alcohol and other drugs varies from person to person; however, warning signs that a person may be approaching incapacitation may include slurred speech, vomiting, unsteady gait, odor of alcohol, combativeness, or emotional volatility.
Evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects an individual’s:
- decision-making ability;
- awareness of consequences;
- ability to make informed judgments;
- capacity to appreciate the nature and the quality of the act; or
- level of consciousness.
A person may be considered unable to give consent due to incapacitation if the person cannot appreciate the who, what, where, when, why, or how of a sexual interaction.
An individual who engages in sexual activity with someone the individual knows or reasonably should know is incapacitated is a violation of these Procedures.
Possession, use and/or distribution of any rape drugs, including, but not limited to Rohypnol, Ketomine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another person is a violation of the Sexual Exploitation portion of these Procedures.
5. Alcohol and Other Drugs
In general, the University considers sexual contact while under the influence of alcohol or other drugs to be risky behavior. Alcohol and other drugs impair a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.
The perspective of a reasonable person will be the basis for determining whether a Respondent should have been aware of the extent and amount of the ingestion of alcohol or drugs by the Complainant or of the extent to which the use of alcohol or drugs impacted a Complainant’s ability to give consent. In determining whether consent has been given, the University will consider both: the extent to which a Complainant affirmatively gives words or actions indicating a willingness to engage in sexual activity; and, whether the Respondent was aware – or reasonably should have known – of the Complainant’s level of alcohol consumption and/or level of impairment.
Being intoxicated or impaired by drugs or alcohol is never an excuse for committing sexual harassment, sexual violence, stalking or relationship violence and does not diminish one’s responsibility to obtain informed and freely given consent.
In accordance with the University’s Discrimination and Harassment Policy, Section 3.10.010, the following is an explanation of Prohibited Conduct under these Procedures:
It is a violation of these Procedures to discriminate in the provision of educational or employment opportunities, benefits or privileges; to create discriminatory work or academic conditions; or to use discriminatory evaluative standards in employment or educational settings if the basis of that discriminatory treatment is, in whole or in part, the person’s race, color, national origin, age, religion, disability, sex, sexual orientation, gender identity, gender expression, marital status, or veteran status.
Discrimination of these kinds are prohibited by a variety of federal, state and local laws, including: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; Title IX of the Education Amendments of 1972; the Age Discrimination Act of 1975; the Americans with Disabilities Act of 1990; the Vietnam Era Readjustment Assistance Act; Title 24, Article 34 of the Colorado Revised Statute; and Denver Municipal 2 of 6 Ordinance. These Procedures are intended to comply with the prohibitions of these anti-discrimination laws.
Harassment on the basis of any legally protected characteristic is a form of discrimination and is likewise prohibited by these Procedures. Prohibited harassment occurs if an environment has been created that is sufficiently severe, pervasive, or persistent so as to unreasonably interfere with a person’s work or academic performance or participation in University programming/activities.
Prohibited harassment may take the form of (but is not limited to) offensive slurs, jokes, and other offensive oral, written, computer-generated, visual or physical conduct.
3. Sexual Harassment
Sexual harassment is a form of discrimination prohibited by these Procedures.
Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature will constitute “sexual harassment” when:
i. Submission to such conduct is either explicitly or implicitly a term or condition of an individual’s employment or status in a course, program or University-sponsored activity; or
ii. Submission to or rejection of such conduct is used as the basis for employment or educational decisions affecting that individual; or
iii. Such conduct has the purpose or effect of unreasonably interfering with an individual’s academic or work performance, i.e. it is sufficiently serious, pervasive, or persistent as to create an intimidating, hostile or offensive environment for working or learning under both an objective (a reasonable person’s view) and subjective (the Complainant’s view) standard.
Sexual harassment also includes harassment based on gender, sexual orientation, gender identity, or gender expression, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex/gender or sex/gender- stereotyping, even if the acts do not involve conduct of a sexual nature.
A single, isolated incident of sexual harassment alone may create a hostile environment if the incident is sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to create a hostile environment, particularly if the harassment is physical. The determination of whether an environment is “hostile” must be based on all the circumstances. These circumstances could include, but are not limited to:
- The frequency of the speech or conduct;
- The nature and severity of the speech or conduct;
- Whether the conduct was physically threatening;
- Whether the speech or conduct was humiliating;
- The effect of the speech or conduct on the Complainant’s mental and/or emotional state;
- Whether the speech or conduct was directed at more than one person;
- Whether the speech or conduct arose in the context of other discriminatory conduct;
- Whether the speech or conduct unreasonably interfered with the Complainant’s educational opportunities or performance (including study abroad), university-controlled living environment, work opportunities or performance;
- Whether a statement is a mere utterance of an epithet which engenders offense in an employee or a student or offends by mere discourtesy or rudeness; and/or
- Whether the speech or conduct deserves the protections of academic freedom.
Determining what constitutes sexual harassment depends on the specific facts and context in which the conduct occurs. For example, sexual harassment:
- May be blatant and intentional and involve an overt action, a threat or reprisal, or may be subtle and indirect, with a coercive aspect that is unstated.
- Does NOT have to include intent to harm, be directed at a specific target, or involve repeated incidents.
- May occur by or against an individual of any sex, gender identity, gender expression, or sexual orientation.
- May be committed by anyone, regardless of gender, age, position, or authority. Including between peers or between individuals in a hierarchical relationship.
- May be aimed at coercing an individual to participate in an unwanted sexual relationship or may have the effect of causing an individual to change behavior or performance.
- May occur in the classroom, in the workplace, in residential settings, over electronic media (including the internet, telephone, and text), or in any other setting.
- May be committed in the presence of others or when the parties are alone.
- May consist of repeated actions or may arise from a single incident if sufficiently egregious.
- May affect the Complainant and/or third parties who witness or observe harassment.
4. Non-Consensual Sexual Contact
Non-Consensual Sexual Contact is a form of discrimination prohibited by these Procedures.
Non-Consensual Sexual Contact is any intentional sexual touching, however slight, with any object, by any individual upon any individual that is without consent; by force, coercion, or threat; or where that individual is incapacitated.
Sexual Contact includes:
i. Having or attempting to have sexual contact, including vaginal or anal penetration, however slight, with a body part (e.g., penis, tongue, finger, hand) or object, or oral penetration involving mouth to genital contact.
ii. Intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts;
iii. Any intentional bodily contact in a sexual manner, though not involving contact with/of/by the breasts, buttocks, groin, genitals, mouth or other orifice;
iv. Any other act which a reasonable person would associate with sexual contact.
5. Sexual Exploitation
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.
Determining what constitutes sexual exploitation depends on the specific facts and context in which the conduct occurs. Sexual exploitation may take many forms, subtle and indirect or blatant and overt. For example, it may include:
i. Prostituting another person;
ii. Video or audio-taping sexual activity, or posting said media, without the knowledge and agreement of the other party;
iii. Going beyond the boundaries of consent (such as letting someone observe a sexual act without the knowledge or agreement of the other party);
iv. Engaging in voyeurism (observing another party’s nudity or sexual activity without their knowledge or agreement);
v. Endangering the health and safety without effective consent (such as knowingly exposing another individual to a sexually-transmitted infection);
vi. Exposing one’s genitals in a non-consensual circumstance, or inducing another to expose their genitals; and
vii. Inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity.
Stalking occurs when a person engages in a course of conduct or repeatedly commits acts, displays or communications toward another person under circumstances that demonstrate either of the following:
- Placing the person in reasonable fear for one’s safety; or
- Reasonably causing substantial injury or emotional distress to the person.
Stalking includes the concept of cyber-stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used to pursue, harass, or to make unwelcome contact with another person in an unsolicited fashion.
Prohibited stalking may take the form of (but is not limited to) intentionally following another person; attempting to contact a person through telephone, emails, text messages, or social media; extortion of money of valuables; repeated oral or written threats; or unwelcome/unsolicited communications about a person, their family, friends, or co- workers.
7. Physical Misconduct
Physical misconduct occurs when there are any acts causing or likely to cause, bodily harm to any person, regardless of intent; any act resulting in physical contact with another person, when performed over their objections; or any implied or actual threats or acts that cause an unreasonable fear of harm in another.
When these acts occur in the context of relationship violence or when the behavior is perpetrated on the basis of a legally protected characteristic, the conduct will be resolved under these Procedures.
8. Bullying and Hazing
Bullying includes any intentional electronic, written, verbal or physical act, or a series of acts, directed at another individual, that is severe, persistent, or pervasive and that has the intended effect of doing any of the following: (i) substantially interfering with a student’s education; (ii) creating a threatening environment; or (iii) substantially disrupting the orderly operation of the University.
Hazing is any action or situation, with or without the consent of the participants, which recklessly, intentionally, or unintentionally endangers the mental, physical, or academic health or safety of another individual. This includes circumstances, which create a risk of injury; cause discomfort or embarrassment; involve harassment, degradation, humiliation or ridicule; or involve intentional destruction or removal of public or private property for the purpose of initiation or admission into, affiliation with, or as a condition for continued membership in an organization.
When these acts occur in the context of relationship violence or when the behavior is perpetrated on the basis of a legally protected characteristic, the conduct will be resolved under these Procedures.
Retaliation is any act or attempt to retaliate against or seek retribution from any individual or group of individuals involved in the investigation and/or resolution of a report under these Procedures. Retaliation can take many forms, including, but not limited to, abuse or violence, threats, physical intimidation, verbal, written, electronic or behavioral acts that are vulgar or obscene which produce or attempt to produce isolation, ridicule, embarrassment or intimidation as a result. Any individual or group of individuals, including a Complainant or Respondent, can engage in retaliation and will be held accountable under these Procedures.
Actions are considered retaliatory if they are motivated by disclosure of real or perceived University-related misconduct pursuant to these Procedures and the actions have a substantial adverse effect on the working, academic, university-controlled living environment or social functioning in the University community of a faculty, employee or student; or if the faculty, employee, or student can no longer effectively carry out his or her University responsibilities.
No hardship, no loss of benefit, and no penalty may be imposed on any student, faculty, or staff as punishment for:
i. filing or responding to a good faith complaint of discrimination or harassment;
ii. appearing as a witness in the investigation of a complaint; or
iii. serving as an investigator or as a member of any Equal Opportunity review.
Retaliation, intimidation, or attempts of this kind is a violation of the Discrimination and Harassment Policy, Section 3.10.010 and will be subject to sanctions up to and including termination or expulsion.
10. Groundless and Malicious Complaints
The University takes the validity of information very seriously as a charge of harassment, discrimination, or sexual misconduct may have severe consequences. Anyone who abuses these Procedures or the Discrimination and Harassment Policy, Section 3.10.010 by bringing groundless or malicious complaints or intentionally giving false information during the course of a review violates these Procedures. This provision does not apply to reports made in good faith, even if the facts alleged in the report are not substantiated by an investigation.