Article 2 § D of the Code of Student Conduct or§ 4.3.7. of the Employee Handbook

Preamble: consent to sexual activity

Consent

Consent is knowing, voluntary and clear permission by word or action, to engage in mutually agreed upon sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct.

A person cannot consent if he or she is unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated and/or lacks capacity has violated this policy. It is not an excuse that the individual respondent of sexual misconduct was intoxicated and, therefore, did not realize the incapacity/lack of capacity of the other.

Incapacitation/lack of capacity

Incapacitation/lack of capacity is defined as a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also covers a person whose incapacity results from mental disability, involuntary physical restraint, and/or from the taking of incapacitating drugs.

Consent to some sexual contact, such as kissing or fondling, cannot be presumed to be consent for other sexual activity, such as intercourse. A current or previous dating relationship is not sufficient to constitute consent. The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. Silence or the absence of resistance alone is not consent.

A person can withdraw consent at any time during sexual activity by expressing in words or actions that he or she no longer wants the act to continue, and, if that happens, the other person must stop immediately.

A minor below the age of consent according to state law cannot consent to sexual activity. This means that sexual contact by an adult with a person below the age of consent is a crime as well as a violation of this policy, even if the minor appeared to have wanted to engage in the act.

Prohibited conduct

Sexual Misconduct, as defined below, is prohibited. Any violation of the Student Code of Conduct Article 2 § D or Employee Handbook, § 4.3.7 will be charged and adjudicated by the Title IX Office.

Title IX sexual misconduct

The U. S. Department of Education’s (DOE) Title IX regulations requires that when an alleged victim of one or more of the following offenses files a formal complaint with the Title IX Office, the Office must investigate and adjudicate the allegations. According to the DOE, Title IX violations only apply to conduct within a Concordia University educational program or activity against a person in the United States.

University sexual misconduct

Formal complaints that do not fall under the above Title IX Offenses but meet the definitions described below will be investigated and adjudicated by the Student Conduct Office including conduct occurring off campus and outside of the United States.

Sexual misconduct sanctions for students

The sanctions below apply to students who have been found responsible for violating the University Sexual Misconduct Policy. Therefore, the general University Code of Student Conduct adjudication process and sanctions do not apply to the Sexual Misconduct Policy.

Also the University recognizes that it has a responsibility to effectively implement remedies designed to restore or preserve a complainant’s equal educational access any time a respondent is found responsible for sexual harassment. It will be the Title IX Coordinator’s (or designee) responsibility to supervise the assigned remedies.

  • Note 1: Because sexual misconduct can manifest itself in a range of severity, the University has established 3 levels of severity. The Title IX Coordinator or Administrative Hearing Panel reserves the right to evaluate the gravity of the student’s behavior (e.g. assign a level) and impose any of the sanctions listed below.
  • Note 2: Individuals with previous violations of the Sexual Misconduct Policy or previous Code of Student Conduct/Academic violations will be sanctioned at a higher level. Sexual Misconduct violations accumulate over the student’s entire academic career. The Administrative Hearing Panel has the authority to sanction outside the parameters of this matrix for mitigating or aggravating case factors. Fines and points will not be assessed for suspension or expulsion sanctions.

Sexual misconduct sanctions for employees

The sanctions below apply to employees who have been found responsible for violating the University Sexual Misconduct Policy.

  • Note 1: Because sexual misconduct can manifest itself in a range of severity, the University has established 3 levels of severity. The Title IX Coordinator or Administrative Hearing Panel reserves the right to evaluate the gravity of the employee’s behavior (e.g. assign a level) and impose any of the sanctions listed below.
  • Note 2: Individuals with previous violations of the Sexual Misconduct Policy or previous Employee Handbook violations will be sanctioned at a higher level. The Title IX Coordinator or Administrative Hearing Panel has the authority to sanction outside the parameters of this matrix for mitigating or aggravating case factors.