Acts of sexual misconduct or sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.

The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of California regard sexual harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice. 
Loma Linda University has adopted the following definitions of sexual harassment in order to address the unique environment of an academic community. One definition is required by federal law, and the other by state law. Both apply, and while they overlap, they are not identical.
California Sexual Harassment Definition:

  1. unwelcome sexual advances, or
  2. requests for sexual favors, or
  3. other verbal, visual, or physical conduct of a sexual nature,
  4. made by someone from in the work or educational setting,
  5. under any of the following conditions: 
    • submission to the conduct is explicitly or implicitly made a term or condition of an individual’s employment, academic status, or progress, or
    • submission to, or reject of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual, or
    • the conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment, or
    • submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution. 

Sexual Violence, defined as: 

  1. physical sexual acts, 
  2. perpetrated against a person without the person’s affirmative consent.

Sexual Misconduct: Sexual misconduct is unwelcome, sexual, sex-based or gender-based verbal, written, online and/or physical conduct.

Title IX Sexual Harassment as an umbrella category, includes these specific definitions of sexual harassment, sexual assault, domestic violence, dating violence, and stalking, and is defined as:

Conduct on the basis of sex, or that is sexual in nature that satisfies one or more of the following:

  1. Quid Pro Quo:
    1. an employee of the recipient, 
    2. conditions, either implicitly or explicitly, the provision of an aid, benefit, or service of the recipient,
    3. on an individual’s participation in unwelcome sexual conduct.
  2. Sexual Harassment:
    1. unwelcome conduct, 
    2. determined by a reasonable person,
    3. to be so severe, and
    4. pervasive, and,
    5. objectively offensive, 
    6. that it effectively denies a Complainant equal access to the University’s education program or activity.
       

Sexual Assault defined as:

  1. Any sexual act directed against a Complainant,   
    1. without their consent, or
    2. instances in which the Complainant is incapable of giving consent.
  2. Incest:
    1. Non-forcible sexual intercourse, 
    2. between persons who are related to each other, 
    3.  within the degrees wherein marriage is prohibited by California law. 
  3. Statutory Rape:
    1. Non-forcible sexual intercourse,
    2. with a person who is under the statutory age of consent (18 years of age in California).
FORMS OF TITLE IX Sexual Assault:

            Forcible Rape: 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, without that person’s consent.

            Forcible Sodomy: Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will (non-consensually) or not forcibly or against the person’s will in instances where they are incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

            Sexual Assault with an Object: —To use an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will (non-consensually) or not forcibly or against the person’s will in instances where they are incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

            Forcible Fondling: The touching of the private body parts of another person (buttocks, groin, breasts) for the purpose of sexual gratification, forcibly and/or against that person’s will (non-consensually) or not forcibly or against the person’s will in instances where they are incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.

Dating Violence, defined as: 

  1. violence, 
    • on the basis of sex,
    • committed by a person,
    • 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, 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 California, 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 California.

Stalking, defined as: 

  1. engaging in a course of conduct,
  2. on the basis of sex,
  3. directed at the Complainant, that 
    • would cause a reasonable person to fear for the person’s safety, or 
    • the safety of others; or
    • Suffer substantial emotional distress. 

    
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.
  • Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
  • Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.
     

Force: Force is the use of physical violence and/or physical imposition to gain sexual access.  Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent. (e.g., “Have sex with me or I’ll hit you,” which elicits the response, “Okay, don’t hit me. I’ll do what you want.”).

Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced.  Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

Coercion: Coercion is unreasonable pressure for sexual activity.  Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent.  When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.

Affirmative Consent is: 

  • knowing (conscious), and
  • voluntary, and
  • clear permission 
  • by word or action 
  • to engage in sexual activity.

Individuals may perceive and experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity. 

If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.

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. Reasonable reciprocation can be implied consent. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back. 

Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, that sexual activity should cease within a reasonably immediate time. 

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 intimate relationship is not sufficient to constitute consent. If an individual expresses conditions on their willingness to consent (e.g., use of a condom) or limitations on the scope of their consent, those conditions and limitations must be respected.

Proof of consent or non-consent is not a burden placed on either party involved in a complaint. Instead, the burden remains on the University to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged misconduct occurred and any similar and previous patterns that may be evidenced.

Incapacitation: A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drug consumption. 

In the evaluation of complaints, it shall not be a valid defense that the Respondent believed that the Complainant affirmatively consented to the sexual activity if the Respondent knew or reasonably should have known that the Complainant was unable to consent to the sexual activity under any of the following circumstances:

  1. The Complainant was asleep or unconscious.
  2. The Complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the Complainant could not understand the fact, nature, or extent of the sexual activity.
  3. The Complainant was unable to communicate due to a mental or physical condition.

Thus, it is a defense to a sexual assault policy violation that the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated. “Should have known” is an objective, reasonable person standard that assumes that a reasonable person is both sober and exercising sound judgment. In the evaluation of complaints, it shall not be a valid defense to alleged lack of affirmative consent that the Respondent believed that the Complainant consented to the sexual activity under either of the following circumstances:

  1. The Respondent’s belief in affirmative consent arose from the intoxication or recklessness of the Respondent.
  2. The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the Complainant affirmatively consented.

Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, and how” of their sexual interaction). 

Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk. 

This Policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating substances.
Examples of possible Title IX Sexual Harassment:

  • A professor offers for a student to have sex or go on a date with them in exchange for a good grade. This constitutes sexual harassment regardless of whether the student agrees to the request and irrespective of whether a good grade is promised or a bad grade is threatened.
  • A student repeatedly sends graphic, sexually oriented jokes and pictures to hundreds of other students via social media. Many don’t find it funny and ask them to stop, but they do not. Because of these jokes, one student avoids the sender on campus and in the residence hall in which they both live, eventually asking to move to a different building and dropping a class they had together.
  • A professor engages students in class in discussions about the students’ past sexual experiences, yet the conversations are not in any way germane to the subject matter of the class. The professor inquires about explicit details and demands that students answer them, though the students are clearly uncomfortable and hesitant.
  • An ex-partner widely spreads false stories about their sex life with their former partner to the clear discomfort and frustration of the former partner, turning the former partner into a social pariah on campus.
  • Chris has recently transitioned from male to nonbinary, but primarily expresses as a female. Since their transition, Chris has noticed that their African Studies professor, Dr. Mukembo, pays them a lot more attention. Chris is sexually attracted to Professor Mukembo and believes the attraction is mutual. Chris decides to act on the attraction. One day, Chris visits Dr. Mukembo during office hours, and after a long conversation about being nonbinary, Chris kisses Dr. Mukembo. Dr. Mukembo is taken aback, stops the kiss, and tells Chris not to do that. Dr. Mukembo explains to Chris that they are not sexually or romantically interested in Chris. Chris takes it hard, crying to Dr. Mukembo about how hard it is to find someone who is interested in them now based on their gender identity. Dr. Mukembo feels sorry for Chris and softens the blow by telling them that no matter whether they like Chris or not, faculty-student relationships are prohibited by the university. Chris takes this as encouragement. 

One night, Chris goes to a gay bar some distance from campus and sees Dr. Mukembo there. Chris tries to buy Dr. Mukembo a drink and, again, tries to kiss Dr. Mukembo. Dr. Mukembo leaves the bar abruptly. The next day, Chris makes several online posts that out Dr. Mukembo as gay and raise questions about whether they are sexually involved with students. Dr. Mukembo contacts the Title IX Office and alleges that Chris is sexually harassing him. 

Examples of Stalking:

  • Students A and B were “friends with benefits.” Student A wanted a more serious relationship, which caused student B to end the relationship. Student A could not let go and relentlessly pursued Student B. Student B obtained a campus no-contact order. Subsequently, Student B discovered their social media accounts were being accessed, and things were being posted and messaged as if they were from them, but they were not. Whoever accessed their account posted a picture of a penis, making it look as if Student B had sent out a picture of themselves, though it was not their penis. This caused them considerable embarrassment and social anxiety. They changed their passwords, only to have it happen again. Seeking help from the Title IX Coordinator, Student B met with the IT department, which discovered an app on their phone and a keystroke recorder on their laptop, both of which were being used to transmit their data to a third party. 
  • A graduate student working as an on-campus tutor received flowers and gifts delivered to their office. After learning the gifts were from a student they recently tutored, the graduate student thanked the student and stated that it was not necessary and they would appreciate it if the gift deliveries stopped. The student then started leaving notes of love and gratitude on the tutor’s car, both on-campus and at home. Asked again to stop, the student stated by email, “You can ask me to stop, but I’m not giving up. We are meant to be together, and I’ll do anything to make you have the feelings for me that I have for you.” When the tutor did not respond, the student emailed again, “You cannot escape me. I will track you to the ends of the earth. If I can’t have you, no one will.” 

Examples of Sexual Assault:

  • Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00 p.m. until 3:00 a.m., Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. Despite her clear communications that she is not interested in doing anything sexual with him, Bill keeps at her, questions her religious convictions, and accuses her of being “a prude.” He brings up several rumors that he has heard about how she performed oral sex on a number of other guys. Finally, it seems to Bill that her resolve is weakening, and he convinces her to “jerk him off” (hand to genital contact). Amanda would have never done it but for Bill's incessant coercion.
  • Jiang is a junior. Beth is a sophomore. Jiang comes to Beth’s residence hall room with some mutual friends to watch a movie. Jiang and Beth, who have never met before, are attracted to each other. After the movie, everyone leaves, and Jiang and Beth are alone. They hit it off, soon become more intimate, and start to make out. Jiang verbally expresses his desire to have sex with Beth. Beth, who was abused by a babysitter at the age of five and avoids sexual relations as a result, is shocked at how quickly things are progressing. As Jiang takes her by the wrist over to the bed, lays her down, undresses her, and begins to have intercourse with Beth. Beth has a severe flashback to her childhood trauma. She wants to tell Jiang to stop but cannot. Beth is stiff and unresponsive during the intercourse. 
  • Kevin and John are at a party. Kevin is not sure how much John has been drinking, but he is pretty sure it’s a lot. After the party, he walks John to his apartment, and John comes on to Kevin, initiating sexual activity. Kevin asks John if he is really up to this, and John says yes. They remove each other’s clothes, and they end up in John’s bed. Suddenly, John runs for the bathroom. When he returns, his face is pale, and Kevin thinks he may have thrown up. John gets back into bed, and they begin to have sexual intercourse. Kevin is having a good time, though he can’t help but notice that John seems pretty groggy and passive, and he thinks John may have even passed out briefly during sex, but he came to again. When Kevin runs into John the next day, he thanks him for the great night. John remembers nothing and decides to make a report to the Dean. 

Examples of Retaliation:

  • A student-athlete alleges sexual harassment by a coach; the coach subsequently cuts the student-athlete’s playing time without a legitimate justification.
  • A faculty member alleges gender inequity in pay within her department; the Department Chair then revokes approval for the faculty member to attend a national conference, citing the faculty member’s tendency to “ruffle feathers.”
  • A student from Organization A participates in a sexual harassment investigation as a witness whose testimony is damaging to the Respondent, who is also a member of Organization A; the student is subsequently removed as a member of Organization A because of their participation in the investigation.