Definition of Gender-Based Misconduct

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State law defines various violent and/or non-consensual sexual acts as crimes. While some of these acts may have parallels in criminal law, NYIT has defined categories of sexual or gender-based acts for which Code of Conduct charges may be brought against a student.

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

Specific forms of Gender-Based Misconduct include but are not limited to:

A. Nonconsensual Sexual Penetration

Committed when an individual subjects another person to sexual penetration without the consent of the person, and/or by force. Sexual penetration is defined by anal, oral, or vaginal penetration, however slight, by a penis, tongue, finger, or object.

B. Nonconsensual Sexual Contact

Any type of intentional touching, or intentional contact with, another person's sexual or intimate parts, under or over clothing without their consent.

  1. Either through force or without the person's consent, causing the other person to touch or make contact with the perpetrator's sexual or intimate parts.
  2. Touching of other parts of the body (e.g. squeezing, grabbing or pinching) for the purpose of sexually degrading or abusing the other person or for the purpose of gratifying the perpetrator's sexual desire.

Definition of Consent: Affirmative consent is a knowing, voluntary and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression.

Furthermore:

  1. Consent of any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
  2. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
  3. Consent may be initially given but withdrawn at any time.
  4. Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
  5. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
  6. When consent is withdrawn or can no longer be given, sexual activity must stop.

C. Sexual Exploitation

Taking abusive or nonconsensual sexual advantage of another. Examples include:

  1. Taking or transmitting sexual photographs, videos, or audiotapes without consent, or causing or permitting others to take or transmit such photographs, videos, or audiotapes without consent.
  2. Watching another engage in sexual activity or contact without consent; viewing another nude without consent (e.g. watching someone in the shower without consent); allowing a third party to observe sexual acts without a partner's consent.

D. Sexual or Gender-Based Harassment

  1. Unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, expressive or physical conduct of a sexual nature.
  2. Other verbal, nonverbal, or physical acts, or acts of aggression, intimidation or hostility, when based on gender or gender-stereotyping.

This conduct constitutes sexual or gender-based harassment when it either substantially interferes with an individual's ability to participate in or benefit from the institution's programs or activities or creates an intimidating, hostile, or offensive environment for learning or participating in NYIT programs and activities.

Examples include:

  1. Unwanted flirtation, advances, or propositions of a sexual nature.
  2. Insults, humor, jokes, or anecdotes (not legitimately related to the subject matter of a course, if one is involved) that belittle or demean an individual's or a group's sexuality or gender.
  3. Unwelcome comments of a sexual nature about an individual's body or clothing.
  4. Physically threatening a person because of his or her gender identity or expression or sexual orientation.

E. Domestic Violence

The use of physical violence, coercion, threats, intimidation, isolation, stalking, or other forms of emotional, sexual or economic abuse directed toward:

  1. A current or former spouse or intimate partner;
  2. A person with whom one shares a child; or
  3. Anyone who is protected from the respondent's act under the domestic or family violence laws of the state.

This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone. Domestic violence can be a single act or a pattern of behavior in relationships.

F. Dating Violence

The use of physical violence, coercion, threats, intimidation, isolation, stalking, or other forms of emotional, sexual, or economic abuse directed toward a person who is or has been in a social relationship of a romantic or sexually intimate nature with the victim.

This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone. Dating violence can be a single act or a pattern of behavior in relationships.

G. Stalking

Intentionally and for no legitimate purpose engaging in a course of conduct directed at another person, on more than one occasion, that the student knows or reasonably should know is likely to cause a reasonable person to fear for his or her safety or the safety of others or causes the other person to suffer substantial emotional damage. Such behaviors and activities may include, but are not limited to:

  1. Nonconsensual communication (including face-to-face, telephone calls, voice messages, electronic mail, written letters/notes, unwanted gifts).
  2. Threatening or obscene gestures.
  3. Pursuing or following.
  4. Electronic or any form of surveillance and/or other types of nonconsensual observation.