Auburn University - TITLE IX

Policies & Terms

Auburn University Policy Definitions and Key Terms

Sexual misconduct
Sexual misconduct is a broad term encompassing any sexual behaviors that violate Auburn University’s Title IX policy. In general, any harassing behavior or nonconsensual physical contact of a sexual nature may constitute sexual misconduct. Sexual misconduct may vary in its severity, and consists of a range of behaviors or attempted behaviors that may be grounds for student disciplinary action under university policy.

Sexual assault
Sexual assault consists of (1) sexual contact and/or (2) sexual intercourse that occurs without (3) affirmative consent.

  1. Sexual contact is:
    • Any intentional sexual touching, however slight
    • With any object or body part (as described below)
    • Performed by a person upon another person
    Sexual contact includes (a) intentional touching of the breasts, buttocks, groin or genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; (b) making another touch you or themselves with or on any of these body parts; and (c) any intentional bodily contact in a sexual manner, even where the touching does not involve contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.

  2. Sexual intercourse is:
    • Any penetration, however slight
    • With any object or body part (as described below)
    • Performed by a person upon another person
    Sexual Intercourse includes (a) vaginal penetration by a penis, object, tongue, or finger; (b) anal penetration by a penis, object, tongue or finger; and (c) any contact, no matter how slight, between the mouth of one person and the genitalia of another person.

  3. Affirmative consent is:
    • Informed (knowing)
    • Voluntary (freely given)
    • Active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed- upon sexual activity

    Alabama law specifies that individuals under the age of 16 are incapable of giving consent.

    Affirmative consent cannot be obtained by force, which includes the use of physical violence, threats, intimidation and/or coercion.

    A person who is incapacitated is unable, temporarily or permanently, to give affirmative consent because of mental or physical helplessness, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. A person may be incapacitated as a result of the consumption of alcohol or other drugs, or due to a temporary or permanent physical or mental health condition.

    The university offers the following guidance on affirmative consent and assessing incapacitation: A person who wants to engage in a specific sexual activity is responsible for obtaining affirmative consent for that activity. Lack of protest does not constitute affirmative consent. Lack of resistance does not constitute affirmative consent. Silence and/or passivity also do not constitute affirmative consent. Relying solely on non-verbal communication before or during sexual activity can lead to misunderstanding and may result in a violation of the Title IX policy. It is important not to make assumptions about whether a potential partner is consenting. In order to avoid confusion or ambiguity, participants are encouraged to talk with one another before engaging in sexual activity. If confusion or ambiguity arises during sexual activity, participants are encouraged to stop and clarify a mutual willingness to continue that activity.

    Affirmative consent to one form of sexual activity does not, by itself, constitute affirmative consent to another form of sexual activity. For example, one should not presume that affirmative consent to oral-genital contact constitutes affirmative consent to vaginal or anal penetration. Affirmative consent to sexual activity on a prior occasion does not, by itself, constitute affirmative consent to future sexual activity.

    Affirmative consent may be withdrawn at any time. An individual who seeks to withdraw affirmative consent must communicate, through clear words or actions, a decision to cease the sexual activity. Once affirmative consent is withdrawn, the sexual activity must cease immediately.

    In evaluating affirmative consent in cases of alleged incapacitation, the university asks two questions: (1) Did the person initiating sexual activity know that the other party was incapacitated? and if not, (2) Should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “YES,” affirmative consent was absent and the conduct is likely a violation of the Title IX policy.

    Incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily incapacitated merely as a result of drinking or using drugs. The impact of alcohol and other drugs varies from person to person.

    One is not expected to be a medical expert in assessing incapacitation. One must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, incontinence, or unconsciousness. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?” “Do you know how you got here?” “Do you know what is happening?” “Do you know who is with you?”

    One should be cautious before engaging in sexual contact or sexual intercourse when either party has been drinking alcohol or using other drugs. The introduction of alcohol or other drugs may create ambiguity for either party as to whether affirmative consent has been sought or given. If one has doubt about either party’s level of intoxication, the safe thing to do is to forego all sexual activity.

    Being impaired by alcohol or other drugs is no defense to any violation of this policy.

Sexual exploitation
Sexual exploitation is purposely or knowingly doing any of the following:

  • Causing the incapacitation of another person (through alcohol, drugs or any other means) for the purpose of compromising that person’s ability to give affirmative consent to sexual activity;
  • Allowing third parties to observe private sexual activity from a hidden location (e.g., closet) or through electronic means (e.g., Skype or livestreaming of images);
  • Engaging in voyeurism (e.g., watching private sexual activity without the consent of the participants or viewing another person’s intimate parts (including genitalia, groin, breasts or buttocks) in a place where that person would have a reasonable expectation of privacy);
  • Recording or photographing private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent;
  • Disseminating or posting images of private sexual activity and/or a person’s intimate parts (including genitalia, groin, breasts or buttocks) without consent;
  • Prostituting another person; or
  • Intentionally exposing another person to a sexually transmitted infection or virus without the other’s knowledge.

Sexual harassment
Sexual harassment is any unwelcome sexual advance, request for sexual favors or other unwanted conduct of a sexual nature, whether verbal, non-verbal, graphic, physical or otherwise, when the conditions outlined in (1) and/or (2), below, are present.

Gender-based harassment includes harassment based on gender, sexual orientation, gender identity or gender expression, which may include acts of aggression, intimidation or hostility, whether verbal or non-verbal, graphic, physical or otherwise, even if the acts do not involve conduct of a sexual nature, when the conditions outlined in (1) and/or (2), below, are present.

  1. (1) Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing or participation in any university programs and/or activities or is used as the basis for university decisions affecting the individual (often referred to as “quid pro quo” harassment); or
  2. (2) Such conduct creates a hostile environment. A “hostile environment” exists when the conduct is sufficiently severe, persistent or pervasive that it unreasonably interferes with, limits or deprives an individual from participating in or benefitting from the university’s education or employment programs and/or activities. Conduct must be deemed severe, persistent, or pervasive from both a subjective and an objective perspective. In evaluating whether a hostile environment exists, the university will consider the totality of known circumstances, including, but not limited to:
    • The frequency, nature and severity of the conduct;
    • Whether the conduct was physically threatening;
    • The effect of the conduct on the 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 and/or university programs or activities; and
    • Whether the conduct implicates concerns related to academic freedom or protected speech.

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, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. A single incident of sexual assault, for example, may be sufficiently severe to constitute a hostile environment. In contrast, the perceived offensiveness of a single verbal or written expression, standing alone, is typically not sufficient to constitute a hostile environment.

Stalking occurs when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear for the person’s safety or the safety of others, or to experience substantial emotional distress. Stalking will be addressed under the Title IX policy if it is sexual or gender-based.

Course of conduct means two or more acts, including, but not limited to, acts in which a person directly, indirectly, or through third parties, by any action, method, device or means, follows, monitors, observes, surveils, threatens or communicates to or about another person, or interferes with another 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. Reasonable person means a person under similar circumstances and with similar identities to the victim.

Stalking includes “cyber-stalking,” in which a person uses electronic media, such as the internet, social networks, blogs, phones, texts or other similar devices or forms of contact.

Intimate partner violence
Intimate partner violence (includes domestic violence and dating violence) is 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 or other intimate relationship.

Retaliation means any adverse action taken against a person for making a good faith report of prohibited conduct or participating in any proceeding under the Title IX policy. Retaliation includes threatening, intimidating, harassing, coercing or any other conduct that would discourage a reasonable person from engaging in activity protected under the Title IX policy. 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.

Complicity is any act taken with the purpose of aiding, facilitating, promoting or encouraging the commission of an act of prohibited conduct by another person.

Campus Security Authorities (CSAs)
Campus Security Authorities are officials with significant responsibility for student and campus activities. CSAs – no matter their role on campus – are under obligation to relay reports of certain crimes to the Department of Public Safety and Security at Auburn University. CSAs do not share any personally identifiable information with the department without the authorization of the survivor. Department staff will evaluate whether there is an ongoing threat to the campus community, and assess the report for inclusion on the daily crime log and in annual crime statistics. If it is determined that there is an ongoing threat to the campus community, a timely warning message will be sent to advise the community of the crime and steps that they can take to protect themselves from similar crimes. The confidentiality of the survivor will be protected to the extent possible. Department staff will not relay the complaint to the Auburn Police Division. That option is solely up to the complainant.

Clery Act
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) is a federal statute requiring all colleges and universities receiving federal funding to record and report certain crimes, disclose certain statistics, provide campus safety and security policy statements, and notify the campus community regarding certain crimes and other serious incidents.

An individual who files a complaint regarding sexual misconduct alleging a violation of the campus Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence.

Confidential resource
An individual who is not required to disclose reports of sexual misconduct to Auburn University or law enforcement.

Non-confidential resource
An individual who is required to disclose reports of sexual misconduct to Auburn University or law enforcement.

An individual who is alleged to have violated the campus Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence.

Responsible employee
Any university employee

  • who has the authority to take action to address complaints of sexual violence;
  • who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX Coordinator or other appropriate university officials; or
  • whom a student could reasonably believe has this authority or duty.

An individual who has experienced sexual misconduct.

Title IX
Title IX of the Education Amendments of 1972 is a federal law prohibiting sex discrimination, including sexual misconduct, in education programs and activities for institutions that receive federal financial assistance.

Title IX Coordinator
The Auburn University official is responsible for coordinating the university’s efforts to comply with and carry out its responsibilities under Title IX of the Education Amendments of 1972.

Last Updated: October 27, 2015