For purposes of this policy, the below definitions apply. However, some of these terms are also defined under federal and/or Texas State law. For more information regarding state law definitions, please refer to “Appendix B of this policy” below.
The term complainant refers to the individual(s) who has been the subject of prohibited conduct, regardless of whether that individual makes a complaint or seeks disciplinary action.
The term respondent refers to the individual(s) who has been accused of prohibited conduct.
DBU upholds a biblical sexual ethic that promotes consenting intimate sexual expression only within a marriage between one biological man and one biological woman. Intimate sexual expression outside the Biblical boundary of marriage may increase the risk of miscommunication about consent.
Consent is voluntary, informed, and mutual. Consent is an affirmative and willing agreement to engage in specific forms of sexual contact with another person. Consent requires an outward demonstration, through mutually understandable words or actions, indicating that an individual has freely chosen to engage in sexual contact.
Refusal to consent does not have to be verbal; it can be expressed with gestures, body language or attitude. Consent can be withdrawn at any time. When consent is withdrawn, sexual activity must cease. A prior sexual history between the Complainant and Respondent does not constitute consent.
It is the responsibility of the initiator of any sexual activity to ensure that he or she has the other person’s consent before engaging in sexual activity. Consent may never be obtained through the use of force, coercion (manipulation), or intimidation. Sexual contact with anyone who is incapable of giving consent because he or she is incapacitated due to alcohol and/or drug consumption, because of a mental or physical impairment, or for some other reason is a violation of this policy. People who are unconscious, for any reason, or are physically unable to communicate, are assumed to be incapable of giving consent.
In evaluating whether consent was given, consideration will be given to the totality of the facts and circumstances, including, but not limited to, the extent to which a complainant affirmatively used words or actions indicating a willingness to engage in sexual contact, free from manipulation, intimidation, fear, or coercion; whether a reasonable person in the respondent’s position would have understood such person’s words and acts as an expression of consent; and whether there are any circumstances, known or reasonably apparent to the respondent, demonstrating incapacitation or fear.
Coercion or Force
Coercion is verbal and/or physical conduct, including manipulation, intimidation, unwanted contact, and express or implied threats of physical, emotional, or other harm, that would reasonably place an individual in fear of immediate or future harm and that is employed to compel someone to engage in sexual contact.
Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom of will to choose whether or not to participate in sexual contact or using one's strength to impose on someone physically to gain sexual access.
Incapacitation is the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the sexual activity is occurring. In addition, an individual is incapacitated if they demonstrate that they are unaware of where they are, how they got there, or why or how they became engaged in a sexual interaction. Some indicators of incapacitation may include, but are not limited to, lack of control over physical movements, lack of awareness of circumstances or surroundings, or the inability to communicate for any reason. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. The relevant standard that will be applied is whether the respondent actually knew, or a sober reasonable person in the same position should have known, that the other party was incapacitated and therefore could not consent to the sexual activity. Likewise, inducing incapacitation for sexual purposes is a violation of this policy. Inducing incapacitation for sexual purposes includes using drugs, alcohol, or other means with the intent to affect or having an actual effect on the ability of an individual to consent or refuse to consent (as “consent” is defined in this Policy) to sexual contact.
The following behaviors constitute sexual violence and are prohibited under this policy. All forms of sexual violence are serious offenses and will result in University discipline. Sexual violence involving force, duress, or inducement of incapacitation, or where the perpetrator has deliberately taken advantage of another person's state of incapacitation, will be deemed especially egregious and may result in expulsion or termination of employment. The consumption of alcohol or use of illegal substances will not ordinarily constitute a mitigating factor or circumstance when it contributes to, or is involved in, an alleged act of sexual violence.
- Non-Consensual Sexual Penetration: Any act of vaginal or anal penetration by a person's penis, finger, other body part, or an object, or oral penetration by a penis, without consent.
- Forceful Non-Consensual Sexual Contact: Any sexual touching other than non-consensual sexual penetration that occurs without consent and is the result of coercion, force, or incapacitation. Examples of violent non-consensual sexual contact may include the following when it is a result of coercion, force, or incapacitation: genital or oral-genital contact not involving penetration; contact with breasts, buttocks, or genital area, including over clothing; removing the clothing of another person; and kissing
Non-violent Sexual Contact
Any sexual touching that occurs without consent and which does not fall within the definition of sexual violence. Examples of other non-consensual sexual contact may include the following: genital or oral-genital contact not involving penetration; contact with breasts, buttocks, or genital area, including over clothing; removing the clothing of another person; and kissing
Sexual harassment is any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submission to, or rejection of, such conduct is made implicitly or explicitly a term or condition of instruction, employment, or participation in any University activity or benefit;
- Submission to, or rejection of, these behaviors by an individual is used as a basis for evaluation in making academic or personnel decisions; or
- These behaviors are sufficiently severe and/or pervasive to have the effect of unreasonably interfering with an individual's educational experience, working conditions, or living conditions by creating an intimidating, hostile, or offensive environment
Sex discrimination is adverse treatment of an individual based on biological sex, rather than individual merit. Examples of conduct that can constitute sex discrimination because of sex include, but are not limited to:
- Singling out or targeting an individual for different or adverse treatment (e.g., more severe discipline, lower salary increase);
- Failing or refusing to hire or allow participation by an individual in a University activity;
- Terminating or removing an individual from employment or an educational program; or
- Verbally harassing, abusing, or demeaning a targeted individual with conduct designed to impact that individual adversely.
Domestic or Dating Violence
This policy prohibits acts of violence, threat, or intimidation that harm or injure a partner in a current or former social, dating, or marital relationship. These acts include, but are not limited to, sexual or physical abuse or the threat of such abuse. Dating or marital relationship violence can be a single act or pattern of behavior.
Stalking under this policy is a course of conduct (i.e., more than one act) directed at a specific person which would cause a reasonable person to feel fear, to experience substantial emotional distress, or to fear for their safety or the safety of a third person. Acts that together constitute stalking may be direct actions or may be communicated by a third party, and can include, but are not limited to, threats of harm to self, others, or property; pursuing or following; non-consensual (unwanted) communication by any means; unwanted gifts; trespassing; and surveillance or other related types of observation.
Sexual exploitation occurs when a person takes non-consensual or abusive sexual advantage of another for anyone’s advantage or benefit other than the person being exploited, and that behavior does not otherwise constitute one of the preceding sexual misconduct offenses. Examples of behavior that could rise to the level of sexual exploitation include:
- Visual (e.g., video, photograph) or audio-recording of sexual activity;
- Producing, obtaining and/or distributing photos, videos, other images, or information of an individual's sexual activity, intimate body parts, or nakedness;
- Exceeding the boundaries of consent;
- Engaging in non-consensual voyeurism;
- Knowingly transmitting a sexually transmitted infection (STI), such as HIV, to another without disclosing your STI status;
- Exposing one's genitals in non-consensual circumstances, or inducing another to expose his or her genitals; and
- Distributing or forcing others to view pornography.
Sexually Inappropriate Conduct
Unwelcome sexual conduct that may not rise to the level of sexual harassment or sexual exploitation, but that is sexual in nature, is also prohibited under this policy. Examples include, but are not limited to, lewdness and obscene or sexually offensive gestures and comments.
This policy prohibits any attempt to seek retribution against an individual or group of individuals involved in filing a complaint or report under this policy, filing an external complaint, participating in a disciplinary process, or opposing in a reasonable manner an action believed to constitute a violation of this policy. Retaliation can take many forms, including, but not limited to, adverse action or violence, threats, and intimidation. Actions in response to a good faith report or response under this policy are considered retaliatory if they have a materially adverse effect on the working, academic, or University-controlled living environment of an individual or if they hinder or prevent the individual from effectively carrying out his/her university responsibilities. All individuals and groups of individuals are prohibited from engaging in retaliation and will be held accountable under this policy.
An individual who experiences any form of sexual assault is strongly encouraged to seek immediate medical care. Individuals can undergo a medical exam to properly collect and preserve physical evidence of the sexual assault with or without the police’s involvement. It is important to preserve forensic and other physical evidence that may assist in proving the alleged criminal offense occurred and such evidence may be helpful in obtaining a protection order against the respondent. Therefore, a medical exam should be performed immediately after the event, if possible. With the individual’s consent, the physical evidence collected during this medical exam can be used as part of a criminal investigation.
Clear and Convincing Evidence Standard
Clear and convincing means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established [Texas Civil Practices and Remedies Code 41.001(2)].
Related Information & Statutes
If a person would like to press criminal charges for an alleged violation of any of the below criminal laws, or would like to seek an order of protection, the definitions contained in the Texas Penal Code and Family Code would apply, not the internal definitions used in this policy.
Dating Violence: “an act, other than a defensive measure to protect oneself, by an actor that is committed against a victim or applicant for a protective order: with whom the actor has or has had a dating relationship; or because of the victim’s or applicant’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault... ‘Dating relationship’ means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: the length of the relationship; the nature of the relationship; and the frequency and type of interaction between the persons involved in the relationship. A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a ‘dating relationship.’” - Texas Family Code Section 71.0021.
Domestic (Family) Violence: “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself, or abuse by a member of a family or household toward a child of the family or household, or dating violence.” - Texas Family Code Section 71.004.
Sexual Assault: “a person commits an offense if the person (1) intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or (2) intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means; causes the penetration of the mouth of a child by the sexual organ of the actor; causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
A sexual assault is without the consent of the other person if: the actor compels the other person to submit or participate by the use of physical force, violence, or coercion, the actor compels the other person to submit or participate by threatening to use force or violence against the other person, or to cause harm to the other person, and the other person believes that the actor has the present ability to execute the threat; the other person has not consented and the actor knows the other person is unconscious or physically unable to resist; the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it; the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring; the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge; the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat; the actor is a public servant who coerces the other person to submit or participate; or the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor. The actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other. ‘Child’ means a person younger than 17 years of age. ‘Spouse’ means a person who is legally married to another.” - Texas Penal Code Section 22.011.
Stalking: “a person who, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that: (1) the person knows or reasonably should know the other person will regard as threatening including bodily injury or death for the other person, bodily injury or death for a member of the other person’s family or household or for an individual with whom the other person has a dating relationship, or fear that an offense will be committed against the other person’s property, and (2) causes the other person, a member of the other person's family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or fear that an offense will be committed against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and (3) would cause a reasonable person to fear bodily injury or death for himself or herself, or bodily injury or death for a member of the person's family or household or for an individual with whom the person has a dating relationship, or fear that an offense will be committed against the person’s property; or feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. A fact finder may find that different types of conduct described above, if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct.” - Texas Penal Code Section 42.072.