a. Sexual Harassment Defined 

Consistent with Title IX, Luther College has adopted the following definition of Sexual Harassment in order to address the unique environment of an academic community, which consists not only of employer and employees, but of students as well. 
Acts of sexual harassment are defined as being committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved. 

Sexual Harassment, as an umbrella category, includes the offenses below:  

1) Quid Pro Quo: 

• an employee of the College 
• conditions the provision of an aid, benefit, or service of the College, 
• on an individual’s participation in unwelcome sexual conduct; and/or 

2) Hostile Environment: 

• unwelcome conduct, 
• on the basis of sex, 
• determined to be so severe, and 
• pervasive, and, 
• objectively offensive, 
• that it effectively denies a person equal access to the College’s educational program or activity. 

Unwelcomeness is subjective and determined by the Complainant (except when the  Complainant is below the age of consent). Severity, pervasiveness, and objective  offensiveness are evaluated based on the totality of the circumstances from the  perspective of a reasonable person in the same or similar circumstances, including the  context in which the alleged incident occurred and any similar, previous patterns that  may be evidenced. Acknowledging most of the time unwelcome behavior will stop if addressed, the College, at the request of the complainant, will assist complainants with addressing unwanted and unwelcome behavior to the respondent.

3) Sexual assault, defined as: 

• a) Rape: 
  • i) 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, 
  • ii) without the consent of the Complainant, including instances in which the Complainant is incapable of giving consent, whether due to incapacity or due to being below the statutory age of consent. 
• b) Fondling: 
  • i) The touching of the private body parts of another person (buttocks, groin, breasts), 
  • ii) for the purpose of sexual gratification, 
  • iii) without the consent of the Complainant, including instances in which the Complainant is incapable of giving consent. 
• c) Incest: 
  • i) Sexual intercourse, 
  • ii) between persons who are related to each other within the degrees wherein marriage is prohibited by law. 

4) Dating Violence: Violence committed by a person who has been in a romantic or intimate relationship with another. 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. Violence can occur in relationships regardless of gender. 

5) Domestic Violence: Felony or misdemeanor crime of violence (has as an element the use, attempted use, or threatened use of physical force against the person or property of another) committed by:

•  i. A current or former spouse or intimate partner of the victim 
• ii. A person with whom the victim shares a child in common 
• iii. A person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner 
• iv. Person similarly situated to a spouse of the victim under the laws of the State of Iowa or the jurisdiction in which the incident reported occurred and 
• v. Any other person against an adult or youth victim who is protected from that person’s act under the laws of the State of Iowa 

6) Stalking, defined as: 

• a. engaging in a course of conduct, 
• b. towards another person, that would cause a reasonable person to i. fear bodily injury to themselves or another; or 
  • ii. Suffer substantial emotional distress. 

For the purposes of this definition— 

• (i) A course of conduct means two or more acts, 
• (ii) Reasonable person means a reasonable person under similar circumstances, and 
• (iii) Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling. 

b. Consent, Incapacitation, Coercion, and Force 

As used in the offenses above, the following definitions and understandings apply: 

Consent is: 

• knowing, and 
• voluntary, and 
• clear permission 
• by word or action 
• to engage in each specific sexual 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. 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, but a display of clear communication (word or action) is necessary. 

Reasonable reciprocation can be implied. 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. A person can withdraw consent at any time during sexual activity by expressing in words or actions that they no longer want the act to continue, and, if that happens, the other person must stop immediately. 

Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). Past consent to engage in sexual activity cannot be presumed to be consent to engage in sexual activity in the future. 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. A current or previous intimate relationship is not sufficient to constitute consent. 

Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on the College 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 incident occurred and any similar, previous patterns that may be evidenced. 

Consent in relationships must also be considered in context. When parties consent to BDSM (bondage, discipline/dominance, submission/sadism, masochism) or other forms of kink, non-consent may be shown by the use of a safe word. Resistance, force, violence, or even saying “no” may be part of the kink and thus consensual, so the College’s evaluation of communication in kink situations should be guided by reasonableness, rather than strict adherence to the policy that assumes non-kink relationships as a default. 

Consent is not effective if a party is incapacitated, or it results from the use of fraud, force, threats, intimidation, or coercion. 

Incapacitation: 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, or how” of their sexual interaction). Incapacitation can result from the use of alcohol or other controlled substances; disoriented, helpless, asleep, or unconscious; or from mental or physical incapacity. 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. 

It is a not a defense to  this policy violation if the Respondent knew or should have known the Complainant to be incapacitated. “Should have known” is an objective, reasonable person standard which assumes that a reasonable person is both sober and exercising sound judgment. It is not an excuse that the individual respondent of sexual misconduct was intoxicated and, therefore, did not realize the incapacity of the other. 

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 may be coercive. 

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 does not constitute 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.