Prohibited Conduct Under Non Title IX Sexual Harassment

If the Title IX Sexual Harassment Policy and Procedures are applicable, Title IX and Sexual Harassment Policy and Procedures must be applied in lieu of the Non-Title IX Sexual Harassment Policy and Procedures. The university may substitute any alternative process instead of the Non-Title IX Sexual Harassment Policy and Procedures, if desired.

In the university’s discretion, these procedures may also be used to address other conduct arising out of the same circumstances with the alleged sexually harassing or retaliatory conduct (e.g., vandalism, physical abuse of another). All other allegations of misconduct unrelated to incidents covered by this Policy will be addressed, as applicable, through the procedures elaborated in the respective student and employee manuals.

Definitions of Non-Title IX Sexual Harassment Prohibited Conduct

Non-Title IX Sexual Harassment includes conduct that does not meet the definition of Title IX Sexual Harassment but otherwise constitutes unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal, electronic, or physical conduct of a sexual nature when:

Sexual Harassment includes conduct on the basis of sex, or that is sexual in nature, that satisfies one or more of the following:

Quid Pro Quo Sexual Harassment occurs when:

1. an employee of the recipient,
2. conditions the provision of an aid, benefit, or service of the recipient,
3. on an individual’s participation in unwelcome sexual conduct.

Such conduct could include, but is not limited to, sexual advances, requests for sexual favors, sexually motivated physical contact, or other verbal, nonverbal, or conduct or communication of a sexual nature.

Hostile Environment Sexual Harassment occurs when there is unwelcome conduct determined by a reasonable person, to be so severe, and pervasive, or objectively offensive, that it effectively denies a Complainant equal access to the University’s education program or activity. Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the totality of the circumstances.

A hostile environment can be created by persistent or pervasive conduct or by a single or isolated incident, if sufficiently severe. The more severe the conduct is, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. In contrast, the perceived offensiveness of a single verbal or written expression, standing alone, is typically not sufficient to constitute a hostile environment.

The determination of whether an environment is “hostile” must be based on the totality of the circumstances. These circumstances include, but are not limited to, the following:

• The frequency of the conduct
• The nature and severity of the conduct
• Whether the conduct was physically threatening
• Whether the conduct was humiliating
• The effect of the conduct on the alleged Complainant’s mental or emotional state
• Whether the conduct was directed at more than one person
• Whether the conduct arose in the context of other discriminatory conduct
• Whether the conduct unreasonably interfered with the Complainant’s educational or work performance

Sexual Assault (Rape) is defined as any sexual act from the list below that is directed against a Complainant that is:

1. without their consent; or
2. instances in which the Complainant is incapable of giving consent.

A Sexual Act, as defined in this Policy, is specifically defined by federal regulations to include one or more of the following:

1. 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,
   1. without their consent,
   2. including instances where they are incapable of giving consent because of age (the statutory age of consent in North Carolina is 16) or because of temporary or permanent mental or physical incapacity.
2. Oral or anal sexual contact with a Complainant,
   1. forcibly, and/or
   2. against their will (non-consensually), or
   3. not forcibly or against their will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
3. The use of an object or instrument to penetrate,
   1. however slightly,
   2. Of the genital or anal opening of the body of the Complainant,
   3. forcibly, and/or against their will (non-consensually), or
   4. not forcibly or against their will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

Non-Consensual Sexual Contact (formerly Fondling) (not involving penetration) is defined as:

1. The intentional touching of clothed or unclothed body parts of the Complainant (buttocks, genital area, groin, inner thigh, breasts), 
2. for the purpose of sexual gratification, sexual degradation, or sexual humiliation,
3. forcibly, and/or
4. against their will (non-consensually), or
5. not forcibly or against their will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

Dating Violence is defined as:

1. violence,
2. on the basis of sex,
3. committed by a person,
4. who is in 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 the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

For the 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.

Domestic Violence is defined as:

1. violence,
2. on the basis of sex,
3. committed by a current or former spouse or intimate partner of the Complainant,
4. by a person with whom the Complainant shares a child in common, or
5. by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
6. by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of North Carolina, or
7. 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 North Carolina.

To categorize an incident as Domestic Violence under this Policy, the relationship between the Respondent and the Complainant 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.

Sex-Based Stalking is defined as engaging in a course of conduct,

1. on the basis of sex,
2. directed at the Complainant, that;
3. would cause a reasonable person to fear for the person’s safety, or the safety of others; or
4. suffer substantial emotional distress.

Stalking can include, but is not limited to:

• Repeated, unwanted, intrusive, or frightening communications by phone, mail, text, email, and/or social media or related applications;
• Repeatedly leaving or sending unwanted items or gifts;
• Following or lying in wait for a person at places such as the person’s residence hall, school activities, work, or recreational places;
• Making direct or indirect threats to harm a person or a person’s relatives, friends, or pets;
• Damaging or threatening to damage a person’s property;
• Excessive posting of information or spreading rumors about a person on the internet, in a public place, or by word of mouth; or
• Unreasonably obtaining personal information about a person for no legitimate purposes.

For the purposes of this definition, 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.

Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

Pursuing a violation of Prohibited Conduct for making a materially false statement in bad faith in the course of a grievance proceeding under this Policy and procedure does not constitute retaliation, provided that the determination of responsibility, by itself, is not sufficient to conclude that any party has made a materially false statement in bad faith.

Retaliation means any adverse action, or any action likely to deter a reasonable person from engaging in protected activity, taken against a person for making a good faith report of Prohibited Conduct, participating in any proceeding under this Policy, and/or acting in good faith to oppose conduct that constitutes a violation of this Policy. Retaliation includes threatening, intimidating, harassing, coercing, or discriminating against an individual because the person made a report or complaint, assisted, participated in, or refused to participate in any manner in an investigation, proceeding, and/or hearing. Retaliation may be present even where there is a finding of “no responsibility” on the allegations of Prohibited Conduct. Retaliation does not include good faith actions lawfully pursued in response to a report of Prohibited Conduct, or the exercise of rights protected under this or other University Policy.

Any reports of retaliation related to this Policy should be made to the Title IX Coordinator and will be adjudicated by the Title IX Office.

Sexual Exploitation occurs when one 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, and that behavior does not otherwise constitute one of the other sexual misconduct offenses. Examples include, but are not limited to:

1. Invasion of sexual privacy;
2. Prostituting another person;
3. Non-consensual digital, video or audio recording of nudity or sexual activity;
4. Altering the manner of consensual sexual activity without consent;
5. Unauthorized sharing or distribution of digital, video or audio recording of nudity or sexual activity;
6. Engaging in voyeurism;
7. Knowingly exposing someone to or transmitting an STI, STD, HIV, or other infectious disease or virus to another person through engaging in sexual activity;
8. Intentionally or recklessly exposing one’s genitals in non-consensual circumstances or inducing another to expose their genitals in non-consensual circumstances;
9. Sexually-based stalking and/or bullying may also be forms of sexual exploitation.

Note: Conduct which violates any other University Policy may fall under this Policy when it is allegedly motivated by actual or perceived sex or gender.