Relevant Title IX + Sexual Misconduct Definitions
RISD expects its students to conduct themselves with awareness of their membership in a community engaged in the mutual pursuit of academic and artistic excellence and social responsibility – and therefore to comply not only with basic legal requirements, but also with additional, higher standards that enable and promote that pursuit. See a complete description of our Code of Conduct.
Title IX as defined under the Code of Federal Regulations § 106.30
Title IX is a federal civil rights law passed as part of the Education Amendments of 1972. This law protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Title IX applies to any institution receiving federal financial assistance from the Department of Education, including state and local educational agencies. Educational programs and activities that receive federal funds from the Department of Education must operate in a nondiscriminatory manner. Also, a recipient may not retaliate against any person for opposing an unlawful educational practice or policy, or because a person participated in any complaint action under Title IX.
Title IX at RISD
Consistent with Title IX of the Education Amendments of 1972, RISD does not discriminate against students, faculty or staff based on sex in any of its programs or activities, including but not limited to educational programs, employment, and admission. Sexual harassment, including sexual violence, is a kind of sex discrimination and is prohibited by Title IX and by the College.
RISD also complies with Rhode Island laws that protect individuals from discrimination on the basis of sexual orientation, as well as on the basis of gender identity. Questions or concerns about possible discrimination based on sexual orientation and/or gender identity under state law may also be directed to the Title IX Coordinator or to RISD’s Office of Institutional Discrimination + Title IX .
The College is committed to responding promptly and effectively when it learns of any form of possible discrimination based on sex. The College responds to reports of sexual harassment, including sexual violence, as part of its efforts to stop the harassment and prevent the recurrence of possible sex discrimination. An individual who has questions or concerns regarding possible discrimination based on sex should contact a Title IX Coordinator. An individual also may contact the U.S. Department of Education, Office for Civil Rights (“OCR”).
Sexual Misconduct at RISD
RISD students who engage in sexual behavior, of any kind, are expected to do so only with effective consent of all parties involved. Doing otherwise constitutes sexual misconduct and is a violation of this policy.
Sexual misconduct can occur between people of the same or different genders. For purposes of this provision, (a) it is the responsibility of the person seeking to initiate sexual contact or conduct to affirmatively obtain such consent, not of the intended recipient of such contact or conduct to affirmatively deny such consent, and (b) valid consent cannot be obtained from a person whose ability to make decisions is substantially impaired by alcohol, drugs, or other intoxicants or by mental or physical condition; who is unaware that the sexual contact or conduct is being committed; or who is compelled or coerced to grant consent by force, threat of force, deception, or supervisory or disciplinary authority.
RISD is committed to maintaining the privacy of all individuals involved in a report of sexual misconduct. In any Title IX review of a report or complaint of sexual misconduct, every effort will be made to protect the privacy and interests of the individuals involved in a manner consistent with RISD’s needs to thoroughly review the report. Such a review is essential to protecting the safety of complainant, respondent, and the broader campus community and to maintaining an environment free from sexual discrimination. At all times, the privacy of the parties will be respected and safeguarded. Information related to a report of misconduct will be shared only with those RISD employees who “need to know” in order to assist in the investigation and/or resolution of the complaint.
If a member of the RISD community wishes to obtain confidential assistance through on-campus or off-campus resources without making a report to the College, these resources are available on campus. See the Resources + Support section. If a complainant requests that her/his identity remain confidential, RISD will balance this request with its responsibility to provide a safe and non-discriminatory environment for all RISD community members, including the complainant. RISD will seek to respect the request of the complainant and where it cannot do so, it will consult with the complainant and keep her/him informed about the chosen course of action.
Against anyone for initiating or participating in good faith in the investigation of a complaint of sexual misconduct or discrimination is also prohibited (a further violation of the Code). Retaliation may consist of any adverse action taken against such person.
Due to the sensitive and sometimes violent nature of incidents involving sexual misconduct, the following definitions are provided for informational use by students 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.
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 College’s Title IX and Sexual misconduct policy is to reinforce the expectation that individuals give and receive this respect in the context of their sexual interactions.
Given the importance of sexual autonomy and the potential impact on those subjected to nonconsensual sexual activity, the College places the responsibility for obtaining effective consent on the person who initiates the sexual activity. That responsibility is significant.
The College 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 College will consider the entirety of the sexual interaction and the relevant circumstances.
Consent, as it relates to various forms of sexual misconduct, may fall outside the scope of the federal definition of Title IX, but will still fall under RISD’s Sexual Misconduct Policy.
Effective consent is: conscious, informed, voluntary words or actions, that give permission for specific sexual activity.
- freely and voluntarily given;
- mutually understandable words or actions which indicate a willingness to participate in mutually agreed upon sexual activity.
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 (A) overtly degrading, humiliating, and shaming someone for not participating in sexual activity; (B) blackmail; and (C) threats to reputation; physical intimidation and threats, which can be communicated by words, conduct, and/or physical force.
Effective consent cannot be obtained from someone who is incapable of giving consent for any reason, including, but not limited to 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 (in Rhode Island, those under the age of 16); or
- the person is asleep, unconscious, physically helpless or, for any other reason, is physically unable to communicate an unwillingness to engage in an act, 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 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 are not indicative of 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 but the absence of physical or verbal resistance is also no indication that there is effective consent.
Some behaviors and statements do not indicate consent, including but not limited to the following:
- “I don’t know;”
- Without more, ambiguous responses such as: “uh huh” or “mm hmm,” and/or 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 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.
- No categories
means the use of an unreasonable amount of pressure to initiate or continue sexual activity against an individual’s will. Coercion is more than an effort to gain consent, persuade, entice, or attract another person to engage in sexual activity. If coercion, intimidation, threats, and/or physical force is used, there is no consent.
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 that 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 but not limited to 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?
Unwelcome conduct that is gender-based verbal, non-verbal, written online, and/or physical conduct that unreasonably interferes with, denies, or limits an individual’s ability to participate in or benefit from the institution’s educational, employment, social, or residential programs.
Harassment of a Sexual Nature:
Unwelcome sexual, or sex based and/or gender-based verbal, written, online, and/or physical conduct that a reasonable person would determine to be severe, persistent, or objectively offensive.
Intimate Partner Dating/Domestic Violence:
RISD prohibits intimate partner violence. Intimate Partner Violence is defined as actual or threatened physical violence, intimidation, psychological abuse or any other forms of physical or sexual abuse, within an intimate relationship, irrespective of the relationship length or gender of the individuals in the relationship, 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.
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.
Dating Violence: 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, psychological, or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence.
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.
Nonconsensual Sexual Contact:
Is any physical contact with another person that is of a sexual nature, without effective consent, including but not limited to: 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 the Clery Act definition of fondling: the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental incapacity.
Nonconsensual Sexual Intercourse:
Any sexual penetration or attempted sexual penetration, however slight, of any bodily opening with any object or body part, by a person upon another person, that is without effective consent and/or by force (expressed or implied, violence, duress, menace, fear, or fraud); or when a person is incapacitated or unaware of the nature of the act, due to unconsciousness, sleep, and/or intoxicating substances.
Intercourse includes: vaginal or anal penetration by a penis, object, tongue or finger, and oral copulation (mouth to genital contact, no matter how slight the penetration or contact.)
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, including instances in which the victim is incapable of giving consent; the Clery Act definition of incest: non-forcible 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: non-forcible sexual intercourse with a person who is under the statutory age of consent (In Rhode Island the age of consent is 16).
An intentional or unintentional act that adversely affects employment and/or educational opportunities because of a person’s sex, marital or parental status including pregnancy and pregnancy related conditions, sexual orientation, gender identity or expression, or sex stereotype. Discrimination may be classified as either disparate impact (facially neutral practices that fall more harshly on one group than another and cannot be justified by business necessity) or disparate treatment (treatment of an individual that is less favorable than treatment of others based upon unlawful discriminatory reasons.)
Sexual exploitation occurs when an individual(s) takes non-consensual or abusive sexual advantage of another, for their own advantage or benefit, or to benefit or advantage anyone other than the person being exploited. This includes, but is not limited to:
- 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; or
- Knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection, including HIV, without their knowledge.
Sexual Exploitation also includes the unauthorized dissemination of indecent materials under Rhode Island General Law § 11-64-3: The unauthorized dissemination of a sexually explicit visual image of another person when the person intentionally, or by any means, disseminates, publishes or sells: (1) a visual image that depicts another identifiable person 18 years or older engaged in sexually explicit conduct or of the intimate areas of that person; (1) the visual image was made, captured, recorded, or obtained under circumstances in which a reasonable person would know or understand that the image was to remain private; (3) the visual image was disseminated, published, or sold without the consent of the depicted person; and (4) with knowledge or with reckless disregard for the likelihood that the depicted person will suffer harm, or with the intent to harass, intimidate, threaten, or coerce the depicted person.
Sexual Harassment is unwelcome conduct on the basis of sex, such as unwelcome sexual advances, requests for sexual favors, or other verbal, written, nonverbal, or physical conduct of a sexual nature, when:
- An employee conditions the submission of such conduct on another individual either explicitly or implicitly as a term or condition of an individual’s employment or academic standing
- Submission to or rejection of such conduct by an individual is used as the basis for significant employment decisions (such as advancement, performance evaluation, or work schedule) or academic decisions (such as grading or letters of recommendation) affecting that individual
- The unwelcome conduct is so severe, persistent, and objectively offensive that a reasonable person would determine it to be intimidating, hostile, or abusive and it effectively denies an individual’s equal access to an educational, work, or living environment.
A partial list of examples of conduct that may be deemed to constitute sexual harassment if sufficiently severe , persistent, and pervasive include: Examples of verbal sexual harassment may include unwelcome conduct such as sexual flirtation, advances or propositions or requests for sexual activity or dates; asking about someone else’s sexual activities, fantasies, preferences, or history; discussing one’s own sexual activities, fantasies, preferences, or history; verbal abuse of a sexual nature; suggestive comments; sexually explicit jokes; turning discussions at work or in the academic environment to sexual topics; and making offensive sounds such “wolf whistles.”
Examples of nonverbal sexual harassment may include unwelcome conduct such as displaying sexual objects, pictures, or other images; invading a person’s personal body space, such as standing closer than appropriate or necessary or hovering; displaying or wearing objects or items of clothing which express sexually offensive content; making sexual gestures with hands or body movements; looking at a person in a sexually suggestive or intimidating manner; or delivering unwanted letters, gifts, or other items of a sexual nature.
*This definition of sexual harassment is also fully adopted to include the College’s policy of Harassment of a Sexual Nature.
Stalking, whether or not sexual in nature, is prohibited by RISD. Stalking is defined as engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or to 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 reported party directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, pursues, harasses, observes, surveils, threatens, communicates to or about a person, interferes with a person’s property, gives unwanted attention or unwanted physical, verbal or electronic contact, threatens by use of words and/or conduct, or any exhibits other course of conduct that is repetitive and menacing, directed at a specific person(s) which interferes with their peace, or would otherwise cause a reasonable person to fear for their safety; or safety of others; or suffer substantial emotional distress,
“Reasonable person” means a reasonable person under similar circumstances. “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
Stalking can take many forms. Some examples of stalking include, but are not limited to: two or more instances of the following conduct (that also meet the definition of stalking above): following a person; appearing at a person’s home, class or work; continuing to contact a person after receiving requests not to; leaving written messages, objects, or unwanted gifts; vandalizing a person’s property; photographing a person; and other threatening, intimidating, or intrusive conduct. Stalking may also involve the use of electronic media such as the internet, social networks, blogs, cell phones, texts, or other similar devices (often referred to as cyber-stalking). Such conduct may include, but is not limited to, non-consensual communication, telephone calls, voice messages, emails, texts, letters, notes, gifts, or any other communication that are repeated and undesired.
All Title IX+ Sexual Misconduct investigative and sanction proceedings, and notices or statements issued by the institution will comply with the requirements of FERPA, the Clery Act, Title IX, VAWA, and institutional policy. No information shall be released from such proceedings by RISD except as required or permitted by law or institutional policy.