Date of Current Revision: 08-14-2014

Responsible Office: Office of Student Accountability and Restorative Practices

James Madison University prohibits sexual misconduct. Sexual misconduct includes sexual assault, sexual violence, sexual harassment, dating violence, domestic violence, relational violence, sexual exploitation, stalking, and all other forms of misconduct on the basis of or because of a Reporter’s sex, sexual orientation, gender, or gender identity. Reporting parties who want to report they are victims of sexual misconduct, or are unsure if behavior constitutes sexual misconduct, can meet with Title IX Staff to explore their options for the investigation and adjudication of the allegation in accordance with JMU Policy 1340. Title IX Staff can also implement interim measures on behalf of the Reporting Party in accordance with JMU Policy 1340.

All acts of Sexual Misconduct are covered by the terms of this policy, provided that at least a substantial portion of the alleged wrongful behavior either occurred by a JMU student and on university-controlled, university-leased or university-owned property or otherwise had a significant connection to or effect on the activities of the university or the learning or working environment for the Reporter. Off-campus incidents that cause continuing effects on campus are specifically covered by this policy.

Students who report sexual misconduct will not be charged with violations of J38-101 Alcohol or J38-102 Drugs, even if these substances were involved. Furthermore, student witnesses for the Accused Student or Reporting Party will not be charged with violations of J38-101 Alcohol or J38-102 Drugs as a result of their statements in the case. Reporting Parties and Accused Students should review JMU Policy 1340 for their roles in the investigation of an allegation and the OSARP Sexual Misconduct Accountability Process for their roles in the adjudication of an allegation. Both parties will be assigned an advisor in the Office of Student Accountability and Restorative Practices to guide them through the Sexual Misconduct Accountability Process.

The following behavior is prohibited at JMU:

J34-101 Sexual Assault – Any physical contact of a sexual nature that is forced on another person, including unwelcome sexual touching of any kind. This includes engaging or attempting to engage in any unwelcome sexual intercourse (oral, anal or vaginal) or penetration, however slight, with any object or body part without consent, or intentional touching (either of another person or when the person is forced to touch) of a body part in a sexual manner without consent, directly or through clothing. Sexual Assault includes nonconsensual attempted or completed sexual intercourse, penetration with any part of the body or an object, touching or forcing another person to touch in a sexual manner, kissing, physical contact with any part of the body for sexual purposes or forcing another to touch himself or herself in a sexual manner.

J34-103 Sexual Exploitation - Taking sexual advantage of another person without that individual’s consent. Examples include but are not limited to prostituting another person; causing or attempting to cause the incapacitation of another person for a sexual purpose; recording, photographing or transmitting sexual utterances, sounds or images of another person without that person’s consent; allowing a Third Party to observe sexual activity without the consent of the participants; knowingly transmitting sexually transmitted infections or other diseases without the knowledge of the person’s sexual partner; inducing another to expose his/her body for sexual purposes; and viewing another person’s sexual activity, intimate body parts or nakedness in a place where that person would have a reasonable expectation of privacy without that person’s consent.

J34-104 Sexual Harassment – unwelcome or offensive sexual advances, requests for sexual favors, sex-based harassment directed toward stereotypical notions of what is female/feminine or male/masculine or a failure to conform to those gender stereotypes, or other conduct of a sexual nature that creates a hostile environment or is a term or condition of employment, education, or membership including:

      • Verbal Conduct – including but not limited to specific demands for sexual favors, sexual innuendoes, sexually suggestive comments, jokes of a sexual nature, sexual propositions, or sexual threats

      • Non-verbal Conduct – including but not limited to sexually suggestive emails, other writings, articles or documents, objects or pictures, graphic commentaries, suggestive or insulting sounds or gestures, leering, whistling, or obscene gestures

      • Physical Conduct – including but not limited to touching, pinching, brushing the body, or any unwelcome or coerced sexual activity, including sexual assault

J34-105 Relational Violence – A form of Sexual Violence which consists of physical assaults or serious threats of bodily harm, including but not limited to domestic violence and dating violence.

J34-106 Stalking - Repeated conduct which places a person or his/her family in reasonable fear of death, sexual assault or bodily injury.

In adjudicating allegations of violating J34-100 Sexual Misconduct the following definitions will be applied:

Consent: An outward demonstration through understandable words or actions that convey a knowing and voluntary agreement to engage in mutually agreed-upon sexual activity. Consent cannot be gained by force that is express or implied, coercion, intimidation, threats or duress. Consent cannot be obtained by ignoring or acting in spite of the objections of another, by previous consent or by taking advantage of another person’s incapacitation or physical helplessness where one knows or reasonably should have known of such incapacitation or helplessness. An individual who is incapacitated because of age, disability, voluntary activity or through the acts of others cannot give consent. Silence or absence of resistance does not imply consent. Consent is voluntary and may be withdrawn at any time by communicating the withdrawal through an outward demonstration of understandable words or actions.

Dating Violence: A form of sexual violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with another person, where the existence of such a relationship shall be determined based on a consideration of the following factors:

      • The length of the relationship.

      • The type of relationship.

      • The frequency of interaction between the persons involved in the relationship.

Domestic Violence: An incident or pattern of physically, sexually and/or emotionally abusive behavior used by one individual to assert power or maintain control over another in the context of an intimate or family relationship. Depending on the circumstances, this may be a form of sexual violence.

Hostile Environment: A hostile environment may be created by oral, written, graphic or physical conduct that is sufficiently severe, persistent or pervasive and objectively offensive that it interferes with limits or denies the ability of a person’s ability to participate in or benefit from the Institute's educational programs, services, opportunities, or activities or the individual's employment access, benefits or opportunities.  Mere subjective offensiveness is not enough to create a hostile environment.  In determining whether conduct is severe, persistent or pervasive, and thus creates a hostile environment, the following factors will be considered: (a) the degree to which the conduct affected one or more individuals' education or employment; (b) the nature, scope, frequency, duration, and location of the incident(s); (c) the identity, number, and relationships of persons involved; (d) the perspective of a “reasonable person” in the same situation as the person subjected to the conduct, and (e) the nature of higher education.

Incapacitation: Physical or mental inability to make informed, rational judgments. States of incapacitation include, without limitation, sleep, blackouts, unconsciousness, and the inability to make such decisions due to the voluntary or involuntary use of alcohol or drugs. Incapacitation may occur because of age, disability, voluntary activity or through the acts of others.

Sexual Violence: Physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the person’s age, mental state or use of drugs or alcohol, or because an intellectual or other disability prevents the person from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse and sexual coercion. Sexual violence is a form of sex discrimination and harassment, and is not limited by gender, gender identity or sexual orientation of the Reporter or the Respondent.

Unwelcome Conduct: Conduct is considered unwelcome if the individual subjected to the conduct did not request, consent to or invite it and reasonably considers the conduct to be undesirable or harmful.

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