MIT Policies and Procedures, Section 9.5.1.2: Sexual Misconduct, provides the following definitions:
Sexual misconduct is a broad term that includes sexual assault (rape, “criminal sexual contact” (formerly referred to as “fondling”), incest, or statutory rape) as well sexual exploitation and sexual harassment. Further definitions can be found on the Institute Discrimination & Harassment Response Office website.
Domestic violence and dating violence by an MIT faculty, staff or other community member also violate this policy. Domestic violence and dating violence are defined on the Institute Discrimination & Harassment Response Office website.
Further definitions of Sexual Misconduct and Domestic Violence and Dating Violence, collectively Intimate Partner Violence, for members of the MIT community:
Sexual Misconduct Definitions
Due to the sensitive and sometimes violent nature of incidents involving sexual misconduct, the following definitions are provided for informational use by members of the MIT community and for guidance in the investigation and processing of alleged violations. It is possible that a particular action may constitute sexual misconduct even if not specifically mentioned in these examples.
1. Sexual Misconduct
Sexual misconduct is a broad term used to encompass a range of behaviors including sexual harassment, nonconsensual sexual contact, nonconsensual sexual penetration, and sexual exploitation. This definition of sexual misconduct includes sexual assault (rape, “criminal sexual contact (formerly referred to as “fondling”), incest, or statutory rape) as defined by the Clery Act. The Clery Act is a federal law on campus safety and security – more information on the Clery Act can be found in MIT’s Annual Security Report.
Sexual misconduct can occur between individuals who know each other, individuals who do not know each other, individuals who have an established relationship, and individuals who have previously engaged in consensual sexual activity.
Sexual misconduct can be committed by persons of any gender identity, and it can occur between people of the same or different sex.
Use of alcohol or other drugs will not excuse any behavior that violates this policy.
2. Effective Consent
MIT community members who engage in sexual behavior of any kind are expected to do so only with the effective consent of all parties involved. Doing otherwise constitutes sexual misconduct and is a violation of this policy.
Consent is ultimately about respecting another’s autonomy to make choices about their own body, their own boundaries, and their own behavior. The fundamental purpose of the Institute’s sexual misconduct policy is to reinforce the expectation that individuals give and receive this respect in their sexual interactions.
Given the importance of sexual autonomy and the potential impact on those subjected to nonconsensual sexual activity, the Institute places the responsibility for obtaining effective consent on the person who initiates the sexual activity. That responsibility is significant.
The Institute recognizes that there are a wide variety of sexual interactions, that there is no single way to communicate consent, and that context matters. At all times, each party is free to choose where, when, and how they participate in sexual activity. Accordingly, when evaluating whether sexual activity was consensual, the Institute will consider the entirety of the sexual interaction and the relevant circumstances.
Effective Consent is:
- informed;
- freely and voluntarily given;
- mutually understandable words or actions which indicate willing participation in mutually agreed upon sexual activity.
Further:
By definition, effective consent cannot be obtained by
- unreasonable pressure, which can generally be understood as conduct that pressures another person to “give in” to sexual activity rather than to choose freely to participate; factors that may be considered include (1) the frequency, nature, duration, and intensity of the requests for sexual activity; (2) whether and how previous requests were denied; and (3) whether the person initiating the sexual activity held a position of power over the other person;
- emotional intimidation, which can include (1) overtly degrading, humiliating, and shaming someone for not participating in sexual activity; (2) blackmail; and (3) threats to reputation;
- physical intimidation and threats, which can be communicated by words or conduct, and physical force.
Effective consent cannot be obtained from someone who is incapable of giving consent for any reason, including when:
- the person has a mental, intellectual, or physical disability that causes the person to be temporarily or permanently unable to give consent;
- the person is under the legal age to give consent;
- or the person is asleep, unconscious, physically helpless, or otherwise incapacitated, including by alcohol or other drugs.
An individual violates this policy if the individual initiates and engages in sexual activity with someone who is incapacitated, and (1) the individual knew the other person was incapacitated, or (2) a sober reasonable person under similar circumstances as the person initiating the sexual activity would have known the other person was incapacitated.
For purposes of this policy, silence and passivity do not signal consent.
There is no requirement that a person express non-consent or that they resist a sexual advance or request. For example, someone might not consent to sexual activity even though they do not say “no” or physically resist in any way. Physical or verbal resistance is evidence that there was not effective consent.
Some behaviors and statements do not indicate consent, including the following:
- “I don’t know.”
- “Maybe.”
- Without more, ambiguous responses such as “uh huh” or “mm hmm,” and giggling.
- A verbal “no,” even if it may sound indecisive or insincere.
- Moving away.
A factor that may be considered when evaluating consent is whether, under similar circumstances as the person initiating the sexual activity, a sober reasonable person would have concluded that there was effective consent.
It is important for those who initiate sexual activity to understand that:
- even though someone gave effective consent to sexual activity in the past, that does not mean they have given effective consent to sexual activity in the future;
- even though someone gives effective consent to one type of sexual activity during a sexual interaction, that does not automatically mean they have given effective consent to other types of sexual activity;
- effective consent can be withdrawn at any time, and once a person withdraws effective consent, the other person must stop.
Effective consent is clearest when obtained through direct communication about the decision to engage in specific sexual activity. Effective consent need not be verbal, but verbal communication is the most reliable and effective way to seek, assess, and obtain consent. Nonverbal communication can be ambiguous. For example, heavy breathing or moaning can be a sign of arousal, but it can also be a sign of distress. Talking with sexual partners about desires, intentions, boundaries, and limits can be uncomfortable, but it serves as a strong foundation for respectful, healthy, positive, and safe intimate relationships.
3. Incapacitation
Incapacitation is the physical and/or mental inability to make informed, rational judgments and decisions. Someone is incapacitated if they are asleep or unconscious. Someone can also be incapacitated by alcohol or other substances.
Because the impact of alcohol and other drugs varies from person to person, one should be cautious before engaging in sexual contact or intercourse when either person has been drinking alcohol or using other drugs. The use of alcohol or other drugs may create ambiguity about consent. If there is any doubt about either party’s level of intoxication, the safe thing to do is to forgo all sexual activity.
Where alcohol or other substances are involved, incapacitation is determined by how the substance impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. Incapacitation is a state beyond drunkenness or intoxication, and a person is not incapacitated merely because they have been drinking or using drugs.
Incapacitation is not determined by technical or medical definitions. The question is whether a person has the physical and/or mental ability to make informed, rational judgments and decisions.
Although each individual is different, there are some common and observable signs that someone is incapacitated or approaching incapacitation, including slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand or answer coherently some or all of the following questions:
- Do you know where you are?
- Do you know how you got here?
- Do you know what is happening?
- Do you know who you are with?
4. Nonconsensual Sexual Penetration
Nonconsensual sexual penetration is the sexual penetration or attempted sexual penetration of any bodily opening with any object or body part without effective consent.
- Nonconsensual sexual penetration includes the Clery Act definition of rape: the 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 the consent of the victim; the Clery Act definition of incest: sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; and the Clery Act definition of statutory rape: sexual intercourse with a person who is under the statutory age of consent.
5. Nonconsensual Sexual Contact
Nonconsensual sexual contact is any physical contact with another person of a sexual nature without effective consent, including touching someone’s intimate parts (such as genitalia, groin, breast, or buttocks, either over or under clothing); touching a person with one’s own intimate parts; or forcing a person to touch another’s intimate parts.
- Nonconsensual sexual contact includes “criminal sexual contact,” (formerly referred to as “fondling”). “Criminal sexual contact” is defined as: The intentional touching of the clothed or unclothed body parts without consent of the victim for the purpose of sexual degradation, sexual gratification, or sexual humiliation. The forced touching by the victim of the actor’s clothed or unclothed body parts, without consent of the victim for the purpose of sexual degradation, sexual gratification, or sexual humiliation. This offense includes instances where the victim is incapable of giving consent because of age or incapacity due to temporary or permanent mental or physical impairment or intoxication for the purpose of sexual degradation, sexual gratification, or sexual humiliation.
6. Sexual Harassment
7. Sexual Exploitation
Sexual exploitation means taking sexual advantage of another person and includes:
- Providing alcohol or other drugs to someone without that person’s knowledge, or unreasonably pressuring the person to consume alcohol or drugs, with the purpose of causing incapacitation in order for one to take sexual advantage of the person.
- Recording, photographing, transmitting, or allowing another to view images of private sexual activity and/or the intimate parts of another person without effective consent.
- Allowing third parties to observe private sexual acts without effective consent.
- Voyeurism, including by electronic means.
- Indecent exposure.
- Knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection, including HIV, without their knowledge.
Intimate Partner Violence Definitions
MIT prohibits intimate partner violence. Intimate Partner Violence is defined as actual or threatened physical violence, intimidation, or other forms of physical or sexual abuse directed toward a partner in an intimate relationship that would cause a reasonable person to fear harm to self or others. For this policy, “intimate relationship” means marriage, domestic partnership, engagement, casual or serious romantic involvement, and dating, whether current or former. Intimate Partner Violence can occur between persons of any gender identity, any sexual orientation, and it can occur in any type of intimate relationship including monogamous, non-committed, and relationships involving more than two partners. Intimate Partner Violence can be a single act or a pattern of behavior. Intimate Partner Violence also includes, without limitation, dating violence and domestic violence as defined by the Clery Act. (The Clery Act is a federal law on campus safety and security – more information can be found in MIT’s Annual Security Report.)
Dating violence is defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship is determined based on the reporting party’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 is defined as a felony or misdemeanor crime of violence committed by a current or former spouse or dating/domestic of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with, or has cohabitated with, the victim as a spouse or dating/ domestic, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred. To be considered domestic violence, the relationship must be more than just two people living together as roommates.
Intimate Partner Violence can take many forms. Examples include, but are not limited to, situations in which the following behaviors are directed toward a partner in a current or former intimate relationship: hitting, kicking, punching, strangling, or other violence; property damage; and threat of violence to one’s self, one’s partner, or the family members, friends, pets, or personal property of the partner.