Definitions Related to Sexual Misconduct
Complaint: The submission of information to MSU Denver regarding alleged conduct of the Student Code of Conduct or other University policy (including Title IX). Complaints can be filed by: students, faculty, staff, or other outside agencies not affiliated with the University.
Confidential Resource: Refers to individuals who may not share information without your expressed consent unless there is imminent danger to yourself or others, or as required by law.
Non-Confidential Resource (or Mandatory Reporter): Refers to individuals who share information on a need-to-know basis or as required by law. The information shared may be shared only with individuals involved in a case.
Complainant: The Complainant is an individual who has been directly impacted by behavior which may constitute a violation of the Student Code of Conduct or other University policy (including Title XI).
Respondent: The Respondent is an individual accused of a violation under the Student Code of Conduct and other University policy (including Title IX).
Witnesses: Witnesses are individuals who have been identified as someone who may have witnessed the alleged conduct or have information related to the Title IX Investigation. The Complainant and Respondent have the right to provide the Investigator with names of individuals who could provide additional information to the investigation.
Intimate Partner: is a person with whom one has a close personal relationship that can be characterized by the following: Emotional connectedness, regular contact, or ongoing physical contact and/or sexual behavior.
Title IX Investigator (or “the Investigator”): The Investigator is the individual responsible for investigating allegations of prohibited conduct. The role of the Investigator is to act as a neutral party to oversee a fair, impartial, and reliable investigation. The Investigator will gather information pertaining to the allegation, write a findings report, and submit the report to the Student Conduct Coordinator to process under the Student Code of Conduct. Title IX Investigator is not responsible for assigning sanctions or making a determination on Student Code of Conduct violations.
Student Conduct Coordinator (or designee): The Student Conduct Coordinator (or designee) is a staff member in the Dean of Students Office whose primary responsibilities include overseeing the administration of the Student Code of Conduct. The Student Conduct Coordinator has the discretion to make determinations of responsibility and assign sanctions if applicable.
Title IX Coordinator: The Title IX Coordinator has primary responsibility for coordinating the University’s efforts to comply with and carry out its responsibilities under Title IX, which prohibits sex discrimination in all the operations of this University, as well as retaliation for the purpose of interfering with any right or privilege secured by Title IX. The Title IX Coordinator is located in the Office of Equal Opportunity.
Sexual misconduct against students, staff and faculty including sexual harassment, rape, dating violence, domestic violence, stalking and sexual exploitation, can be a form of sex discrimination under Title IX. The Title IX Coordinator oversees the University’s response to reports and complaints that involve possible sex discrimination to monitor outcomes, identify and address any patterns, and assess effects on the campus climate, so the University can address issues that affect the wider school community.
Consent between two or more people is defined as an affirmative agreement—through clear actions and words—to engage in sexual activity. Consent is informed, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. 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.
Consent to one form of sexual activity cannot imply consent to other forms of sexual activity. Previous relationships or consent cannot imply consent to future sexual acts. Consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction by their actions words or attitude, continued pressure beyond that point can be coercive.
In order to give effective consent, one must be of legal age. Consent may be withdrawn at any time.
In Colorado, consent is defined in state statute 18-3-401 and means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provisions of this part 4. Submission under the influence of fear shall not constitute consent. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this part 4.
Sexual activity with someone known to be, or should be known to be mentally or physically incapacitated (by alcohol or other drug use, unconsciousness or blackout), is in violation of Article V of the MSU Denver Student Code of Conduct (Sexual Misconduct Policy and Procedures). Incapacitation is a state where one cannot make a rational, reasonable decision because they lack the ability to understand the: who, what, when, where, why or how of their sexual interaction.
This policy also covers someone whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of any drug, including but not limited to ethyl alcohol that would facilitate unwanted sexual activity or incapacitate the person’s ability to make a rational consensual choice.
Use of alcohol or other drugs will never function to excuse behavior that violates this policy.
A relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.
Preponderance of Evidence:
A standard of proof used by MSU Denver in the conduct process that says what is alleged to have happened is, more likely than not, what actually happened (i.e. it is 51% likely that the alleged incident occurred).
Any action directed towards anyone involved in a student conduct case, including witnesses, intended to cause harm or distress, or to dissuade someone’s participation in or interfere with an investigation. Retaliation in any form for reporting a conduct issue or for cooperating in a conduct investigation is strictly prohibited and may be addressed as a separate violation of the Student Code of Conduct.
Sexual Harassment: Gender‐based verbal or physical conduct that unreasonably interferes with or deprives someone of educational access, benefits or opportunities. There are two forms of Sexual Harassment.
1. Quid Pro Quo:
Quid pro quo sexual harassment occurs when submission to, or rejection of, unwelcome sexual conduct is used as a basis for academic, educational, or employment decisions affecting an individual. Quid pro quo sexual harassment is perpetrated by someone who is in a position of authority over the victim. Such harassment can occur between members of the opposite or same sexes. The law does not require the victim of sexual harassment to expressly notify the perpetrator that the conduct is unwelcome. Nor does the law require that the perpetrator explicitly or deliberately base a decision on submission to or rejection of the conduct. Circumstantial evidence linking sexual conduct with an adverse or favorable employment or educational decision may justify a finding of quid pro quo sexual harassment by a jury, court, or administrative tribunal.
Examples of quid pro quo sexual harassment include, but are not limited to:
1. Direct propositions of a sexual nature that expressly or by implication link employment, work status, promotion, wage increases, course or program status, grades, letters of recommendation, or other tangible employment or educational actions to submission to sexual advances;
2. Direct or implied promises or threats linking employment, work status, promotion, wage increases, course or program status, grades, letters of recommendation, or other tangible employment or educational actions to submission to sexual advances.
2. Hostile Environment:
Hostile environment sexual harassment is unwelcome conduct, generally, although not necessarily, of a sexual nature, that insults, demeans, ridicules or evinces hostility toward a person because of his or her gender, and that is sufficiently severe or pervasive that it alters the conditions of education and creates an environment that a reasonable person would find hostile, intimidating, or offensive.
In determining whether conduct has created an impermissibly hostile environment, all of the relevant circumstances must be considered. These circumstances include, but are not limited to, the severity and frequency of the conduct, its context, and whether it is physically threatening or humiliating. Hostile environment sexual harassment can be perpetrated by students, faculty, staff, or administrators, and by some third parties authorized to use the college facilities, such as contract employees, and service, and repair personnel.
Hostile environment sexual harassment can occur between peers (co-workers and fellow students) and between members of the opposite or same sexes. The conduct must offend the victim, but it does not have to be offensive to everyone. Conduct that offends the victim but would not offend a reasonable person in his or her position does not constitute hostile environment sexual harassment. The test is whether, considering all of the circumstances, the conduct would offend a reasonable person in the victim’s position. As with quid pro quo sexual harassment, a finding of hostile environment sexual harassment may be justified even if the perpetrator did not intend to offend the victim.
The following subparagraphs describe some, but not all, kinds of conduct that can constitute sexual harassment if they are sufficiently severe or pervasive to alter the conditions of employment or education and create an environment that a reasonable person would find hostile, intimidating, or offensive:
1. Direct propositions of a sexual nature;
2. Conduct that is offensive or humiliating in nature that includes, but is not limited to:
a. Sexually explicit comments, statements, questions, jokes or anecdotes; comments, statements, questions, jokes anecdotes, or innuendoes with sexual connotations;
b. Display of sexually explicit materials in the workplace or classroom or their use in the classroom without a defensible academic purpose;
c. Unnecessary touching, patting, hugging, or brushing against a person’s body;
d. Remarks about sexual activity or speculation about sexual experiences;
e. “Wolf whistling,” obscene sounds, or obscene gestures; and,
f. Nonsexual physical or verbal conduct that insults, demeans, ridicules or otherwise evinces hostility toward a person because of gender. Examples include, but are not limited to: hazing, pranks, horseplay, and ridicule.
Sexual Misconduct: An umbrella term that includes acts of a sexual nature that are unwelcome. Sexual misconduct includes, but is not limited to, the following examples of prohibited conduct:
Any sexual act done against the will of another. Examples of sexual assault include, but are not limited to, the following behaviors when consent is not present:
1. Sexual intercourse (vaginal, anal, oral); or,
2. Penetration of an orifice (anal, vaginal, oral) with the penis, finger, or other object; or,
3. Unwanted touching of the genitals, buttocks, breast, or other body part inside or outside of the clothing; or,
4. Coercion or force to make someone else touch one's genitals, buttocks, breast, or other body part; or,
5. Inducing sexual activity through drugs or alcohol; or,
6. Engaging in sexual activity with a person who is unable to provide consent due to the influence of drugs, alcohol, or other condition.
In Colorado state statute 18-3-402, sexual assault is defined as:
Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: (a) The actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will; or (b) The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or (c) The actor knows that the victim submits erroneously, believing the actor to be the victim's spouse; or (d) At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or (e) At the time of the commission of the act, the victim is at least fifteen years of age but less than seventeen years of age and the actor is at least ten years older than the victim and is not the spouse of the victim; or (f) The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search; or (g) The actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices; or (h) The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.
Taking non-consensual, unjust or abusive sexual advantage of another. Examples include, but are not limited to:
1. Prostituting another person; or,
2. Non-consensual video or audio-taping of sexual activity; or,
3. Going beyond the boundaries of consent (such as knowingly allowing another to surreptitiously watch otherwise consensual sexual activity); or,
4. Engaging in non-consensual voyeurism; or,
5. Knowingly transmitting or exposing an Sexually Transmitted Disease (STD) or Human Immunodeficiency Virus (HIV) to another student without the knowledge of the student.
Indecent exposure is defined as the exposure of the private or intimate parts of the body, in a lewd manner, in public or in private premises, when the accused may be readily observed. This could include masturbation in public.
Stalking is a pattern of behavior directed at a specific person based on sex or gender that would cause a reasonable person to feel fear or emotional distress. Stalking behaviors include but are not limited to: Nonconsensual communication, including face-to-face communication, telephone calls, voice messages, e-mails, written letters, gifts, or any other communications that are undesired and place another person in fear.
The State of Colorado definition of stalking, found in state statute 18-3-602, is: A person commits stalking if directly, or indirectly through another person, if the person knowingly:
1. Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship; or,
2. Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or,
3. Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this section (c), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.
Physical Assault is threatening or causing physical harm or engaging in other conduct that threatens or endangers the health or safety of any person. Physical Assault will be addressed under this policy if it involves Sexual or Gender-Based Harassment, Intimate Partner Violence, or is part of a course of conduct under the Stalking definition.
Intimate Partner Violence:
Intimate Partner Violence includes any act of violence or threatened act of violence that occurs between individuals who are involved or have been involved in a sexual, dating, spousal, domestic, or other intimate relationship. Intimate Partner Violence includes “dating violence” and “domestic violence,” as defined by VAWA. Consistent with VAWA, the University will evaluate the existence of an intimate relationship based upon the Complainant’s statement and taking into consideration the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. Intimate Partner Violence may include any form of Prohibited Conduct under this policy, including Sexual Assault, Stalking, and Physical Assault (as defined above).