This page provides an overview of the scope of Western Michigan University's Sexual and Gender-Based Misconduct Policy, including which individuals and locations are covered, and what conduct is prohibited. For more details on the policy scope, refer to the full policy.
The policy applies to prohibited conduct committed by
- WMU students.
- WMU faculty, staff and administrators.
- Members of the WMU Board of Trustees.
- Consultants, vendors and others engaged to do business with the University.
- Guests and visitors.
- Other third parties under circumstances within the University's control.
The policy applies to prohibited conduct that takes place
- On campus.
- In the context of an education program or activity of the University regardless of location (e.g., service-learning activities, study abroad and internship programs).
- Where both the complainant and respondent are members of the campus community, regardless of location.
- Off campus when the conduct has continuing adverse effects on campus or if the conduct occurs in an off-campus education program or activity.
- Online and/or social media conduct may also violate this policy if it meets the definition of any form of prohibited conduct.
Blogs or Web page entries on sites such as Instagram, Facebook or Twitter, and other similar online postings are in the public sphere and are not private. These postings can subject a student to allegations of conduct violations. The University does not regularly search for this information but may take action if and when such information is brought to the attention of University officials.
Conduct prohibited under the policy
Sexual and Gender-Based Misconduct Policy Prohibited Behavior Definitions*
The University will treat attempts to commit any Prohibited Behavior as if those attempts had been completed.
Sexual Harassment: any unwelcome sexual advance, request for sexual favors, or other unwelcome verbal, electronic or physical conduct of a sexual nature when:
- submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of an individual's employment, evaluation of academic work, or participation in any aspect of a University program or activity (e.g., quid pro quo);
- submission to or rejection of such conduct by an individual is used as a basis for decisions affecting the individual (e.g., quid pro quo); or
- such conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance; i.e. it is sufficiently serious, pervasive or persistent as to create an intimidating, hostile, humiliating, demeaning, or sexually offensive working, academic, residential, or social environment under both a subjective and an objective standard.
A single isolated incident of Sexual Harassment may jeopardize equal access to a program or activity if it is sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to be found responsible for a Policy violation, particularly if the behavior is physical. Examples of conduct that may constitute Sexual Harassment are listed in the Procedures.
Gender-Based Harassment: acts of verbal, nonverbal, or physical aggression or contact, intimidation, threats, abuse or hostility based on sex or sex stereotyping, even if those acts do not involve conduct of a sexual nature; sexual harassment based on gender, gender identity, gender expression or sexual orientation.
Non-Consensual Sexual Intercourse: having or attempting to have Sexual Intercourse with another individual by force or threat of force, without Consent or when that individual is Incapacitated; sexual assault. Sexual Intercourse is defined as vaginal or anal penetration, however slight, with a body part (e.g., penis, tongue, finger, hand) or object; oral penetration involving mouth to genital contact.
Non-Consensual Sexual Contact: Sexual Contact with another individual by force or threat of force, without Consent or when that individual is Incapacitated. Sexual Contact is defined as intentional contact with the Intimate Parts of another, causing another to touch one's Intimate Parts, or disrobing or exposure of another's Intimate Parts without permission.
Sexual Exploitation: taking non-consensual or abusive sexual advantage of another for one's own advantage or benefit or for the benefit or advantage of anyone other than the one being exploited. Examples include, but are not limited to:
- surreptitiously observing another individual's nudity or sexual activity or allowing another to observe consensual sexual activity without the knowledge and Consent of all parties involved;
- non-consensual sharing or streaming of images, photography, video, or audio recording of sexual activity or nudity, distributing such without the knowledge and Consent of all parties involved;
- exposing one's genitals or inducing another to expose their own genitals in non-consensual circumstances;
- knowingly exposing another individual to a sexually transmitted disease or virus without their knowledge;
- sex-based bullying; or
- inducing Incapacitation for the purpose of making another person vulnerable to non-consensual activity.
Harm to Others: behaviors that threaten or endanger the health or safety of any person, which include physical abuse, verbal abuse, threats, intimidation and/or harassment. Non-sexual or non-gender-based Harm to Others will be treated as a violation of the WMU Student Code and will be referred accordingly.
Stalking: a course of physical or verbal conduct directed at another individual on the basis of sex or gender identity, in a manner that could be reasonably regarded as likely to alarm, harass, or cause fear of harm or injury to that person or to a third party. A course of conduct consists of at least two acts. The feared harm or injury may be physical, emotional or psychological, or related to the personal safety, property, education or employment of that individual. Stalking may include cyber-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.
Intimate Partner Violence: often referred to as dating violence, domestic violence or relationship violence; one act or ongoing behavior that includes by is not limited to:
- any actual or threatened act of physical, sexual, emotional violence or economic abuse against an intimate partner (person who is, or has been involved in, a sexual, dating, domestic or other intimate relationship with the initiating individual);
- threats, assault, property damage, violence or threat of violence to oneself, an intimate partner, or to the family members or friends of that partner; or
- Sexual Harassment, Non-Consensual Sexual Intercourse, Sexual Exploitation, Harm to Others, Stalking or Retaliation of an intimate partner.
Retaliation: acts, words, or attempts to take adverse action against the Complainant, Respondent, or any individual or group of individuals because of their good faith Complaint or participation in an investigation and/or resolution of a Complaint. Retaliation may be committed by any individual or group of individuals.
Retaliation may take many forms, including threats, intimidation, pressuring, continued abuse, violence, other forms of Harm to Others. Retaliation may also occur by moving someone to a less desirable workspace, altering work hours, removing or limiting privileges. All forms of Retaliation are prohibited under this Policy as well as under state and federal law.
When the University evaluates responsibility for alleged prohibited behavior, it considers the existence or non-existence of the following:
Coercion: the improper use of pressure to compel another individual to initiate or continue sexual activity against the individual's will. Coercion may include intimidation, manipulation, threats and blackmail. Words or conduct may constitute coercion if they wrongfully impair another individual's freedom of will and ability to choose whether to engage in sexual activity. Examples include; threatening to "out" someone based on sexual orientation, gender identity or gender expression; threatening to harm oneself if the other party does not engage in the sexual activity.
Consent: affirmative, conscious decision by a participant to engage in sexual activity. Consent must be freely and voluntarily given with knowledge of the nature of the act or transaction involved. The University will consider the following when evaluating whether to Complainant has given consent:
- level of mutual understanding of the nature and scope of the act to which the individual Consented and a willingness to do the same thing, at the same time, in the same way;
- whether Consent was obtained through the use of force coercion, threats or intimidation, or by taking advantage of the Incapacitation of another individual;
- whether communication regarding Consent used mutually understandable words and/or actions that indicated an unambiguous willingness to engage in sexual activity. If there is no evidence of clear communication or outward demonstration, the University will find that Consent was not given;
- whether Complainant withdrew Consent; and/or
- whether, once withdrawn, the sexual activity ceased immediately and/or all parties received mutually expressed or clearly stated Consent before continuing further sexual activity
The University will not consider Consent to one form of sexual contact as Consent to all forms of sexual contact; nor will it consider Consent to sexual activity with one person as Consent to activity with any other person. Each participant in a sexual encounter must Consent to each form of sexual contact with each participant.
Even in the context of a current or previous intimate relationship, the University will evaluate whether each party Consented to each instance of sexual contact each time.
Complainant need not resist the sexual advance or request to demonstrate lack of Consent; however, the University will view Complainant's resistance as a clear demonstration of non-Consent.
Force: the use or threat of physical violence, restraint or intimidation to overcome an individual's choice whether to participate in Sexual Activity.
Incapacitation: a state in which an individual cannot make the informed and rational decision to engage in Sexual Activity because the individual lacks conscious knowledge of the nature of the act (e.g., cannot understand the who, what, when, where, why or how of the sexual interaction) and/or is physically helpless.
An Incapacitated person is unable to give Consent. An individual is Incapacitated when asleep, unconscious, or otherwise unaware that sexual activity is occurring. This includes an individual who cannot give consent because of their age or their temporary or permanent mental incapacity. Incapacitation may result from the use of alcohol and/or other drugs.
Because of the impact of alcohol and drugs varies from person to person, the University will not find an individual Incapacitated solely based on that person's consumption of alcohol or other drug, impairment, inebriation or intoxication. Instead, it will conduct a case-by-case evaluation to assess how the consumption of alcohol and/or drugs impacts an individual's decision-making ability, awareness of consequences, ability to make informed judgments, or capacity to appreciate the nature and the quality of the behavior.
In any particular claim, the University will evaluate whether Respondent knew or should have known that Complainant was Incapacitated when viewed from the position of a sober, reasonable person.
The University will not accept being intoxicated or impaired by drugs or alcohol as an excuse for Covered Behavior; nor will it consider intoxication or such impairment to diminish a Respondent's responsibility to obtain Consent.
Questions about the definitions should be directed to the WMU Title IX Coordinator, Felicia Crawford, firstname.lastname@example.org.
*Related definitions are capitalized and further explained either in this document or in the Policy (www.wmich.edu/sexualmisconduct)