Ferris Definitions

“Coercion” includes intimidation, deception, and/or express or implied threats of physical, reputational, academic, financial, or emotional harm or restraint, that would reasonably place an individual in fear of immediate or future harm and that is used to persuade or compel someone to engage in sexual contact. This includes threatening to “out” someone based on sexual orientation, gender identity and/or gender expression.

“Consent” is the voluntary agreement to engage in sexual contact.

Lack of consent is a critical factor in determining whether Sexual Harassment has occurred. As defined above, consent is the voluntary agreement to engage in sexual contact. Consent to engage in sexual contact must demonstrate that it meets the following four components: (1) informed, (2) freely and actively given, (3) mutually understandable words or actions, (4) indicating a clear agreement to engage in sexual contact of any kind.

It is the responsibility of the person who wants to engage in sexual contact to make sure that they have received consent from any person(s) involved. If an individual initiating sexual contact is not sure if they have received consent, they have an obligation to seek additional clarification.

Informed:

• Consent includes each person(s) having a clear and mutual understanding of the nature and scope of the sexual contact;
• Consent to one form of sexual contact does not constitute consent to all forms of sexual contact;
• Informed consent cannot be given by anyone under the legal age of consent (anyone under age 16).

Freely and Actively Given:

• Consent cannot be given by an incapacitated person(s) (see definition of incapacitation above);
• Consent cannot be achieved through force (see definition of force above), threat, deception, intimidation or coercion (see definition of coercion above).
• Consent cannot be assumed or implied by a current or previous dating or sexual relationship.

Mutually Understandable Words or Actions:

• Consent consists of clear communication (words or actions) that indicates each person(s) unambiguous willingness to engage in sexual contact from the beginning to end of each instance of sexual contact and for each form of sexual contact;
• Consent cannot be assumed or implied by silence, passivity, the lack of an objection. A person who does not physically resist or verbally refuse sexual contact is not necessarily giving consent.

Indicating a Clear Agreement to Engage in Sexual Contact:

• Consent can be withdrawn at any time through clear communication (words or actions) that indicates each person(s) is no longer willing to engage in sexual contact.
• In the absence of a clear agreement to engage in sexual contact, consent does not

“Dating Violence” is violence committed by a person –

1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
2. Where the existence of such a relationship will be determined based on a consideration of the following factors:
   1. The length of the relationship;
   2. The type of relationship; and
   3. The frequency of interaction between the persons involved in the relationship.

“Domestic Violence” is an act of violence[1] committed by a current or former spouse or intimate partner 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 intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of Michigan, 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 Michigan.

[1] Domestic violence is a crime under Michigan law. Specific information about the criminal offense can be found in the Michigan penal code at MCLA § 750.81 and MCLA 750.81a.

“Force” is the use or threat of physical violence and/or strength or intimidation to overcome an individual’s freedom of will to choose whether to participate in sexual contact. Force is not limited to physical violence, but also includes threats, intimidation, abuse of power, duress or any combination of these behaviors. When determining whether or not force was involved, there is no requirement that a Complainant resist the sexual advance or request. However, resistance by the Complainant will be viewed as a clear demonstration of non-consent.

“Formal Complaint” means a document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that the University investigate the allegation of Sexual Harassment in accordance with this policy. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the University’s education programs and activities. A “document filed by a Complainant” means a document or electronic submission (such as an email) that contains the Complainant’s physical or electronic signature or otherwise indicates that the Complainant is the person filing the Complaint.

“Hostile Environment Sexual Harassment” is unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person access to the University’s education programs and activities.

In determining whether a hostile environment exists, the University will consider the totality of circumstances, including factors such as the actual impact the conduct has had on the Complainant; the nature and severity of the conduct at issue; the frequency and duration of the conduct; the relationship between the parties (including accounting for whether one individual has power or authority over the other); the respective ages of the parties; the context in which the conduct occurred; and the number of persons affected. The University will evaluate the totality of circumstances from the perspective of a reasonable person in the Complainant’s position. A person’s adverse subjective reaction to conduct is not sufficient, in and of itself, to establish the existence of a hostile environment.

The University encourages members of the University Community to report any and all instances of Sexual Harassment, even if they are unsure whether the conduct rises to the level of a policy violation.

Some specific examples of conduct that may constitute Sexual Harassment if unwelcome include, but are not limited to:

• Unreasonable pressure for a dating, romantic, or intimate relationship or sexual contact
• Unwelcome kissing, hugging, or massaging
• Sexual innuendos, jokes, or humor
• Displaying sexual graffiti, pictures, videos, or posters
• Using sexually explicit profanity
• Asking about, or telling about, sexual fantasies, sexual preferences, or sexual activities
• E-mail and Internet use that violates this policy
• Leering or staring at someone in a sexual way, such as staring at a person’s breasts or groin
• Sending sexually explicit emails, text messages, or social media posts
• Commenting on a person’s dress in a sexual manner
• Giving unwelcome personal gifts such as lingerie that suggest the desire for a romantic relationship
• Disseminating sexual pictures or videos of another person without consent regardless of whether the pictures or videos were obtained with consent
• Insulting, demeaning, or degrading another person on the basis of gender or gender stereotypes

“Incapacitation” is a state where an individual cannot make an informed and rational decision to consent to engage in sexual contact because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the “who, what, where, when, why or how” of the sexual interaction) and/or is physically or mentally helpless.

Incapacitation is a state where an individual cannot make an informed and rational decision to consent to engage in sexual contact because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the “who, what, where, when, why or how” of the sexual interaction) and/or is physically or mentally helpless. An individual is also considered incapacitated, and therefore unable to give consent, when asleep, unconscious, or otherwise unaware that sexual contact is occurring.

Incapacitation can only be found when the Respondent knew or should have known that the Complainant was incapacitated when viewed from the position of a sober, reasonable person. One’s own intoxication is not an excuse for failure to recognize another person’s incapacitation.

Incapacitation may result from the use of alcohol and/or other drugs; however, consumption of alcohol of other drugs, inebriation, or intoxication alone are insufficient to establish incapacitation. Incapacitation is beyond mere drunkenness or intoxication. The impact of alcohol or drugs varies from person to person, and evaluating incapacitation requires an assessment of how consumption of alcohol and/or drugs impacts an individual’s:

• Decision-making ability
• Awareness of consequences
• Ability to make informed judgments
• Capacity to appreciate the nature of circumstances of the act.

No single factor is determinative of incapacitation. Some common signs that someone may be incapacitated include slurred speech, confusion, shaky balance, stumbling or falling down, vomiting, and unconsciousness.

“Quid Pro Quo Sexual Harassment” is an employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual contact.

“Retaliation” is intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by Title IX and its implementing regulations or because an individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy.

“Sexual Assault” includes the sex offenses of Rape, Sodomy, Sexual Assault with an Object, Fondling, Incest, and Statutory Rape.[1]

1. “Rape” is the carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. There is “carnal knowledge” if there is the slightest penetration of the vagina or penis by the sexual organ of the other person. Attempted Rape is included.
2. “Sodomy” is oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
3. “Sexual Assault with an Object” is using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. An “object” or “instrument” is anything used by the offender other than the offender’s genitalia.
4. “Fondling” is 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 his/her age or because of his/her temporary or permanent mental or physical incapacity.
5. “Incest” is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by Michigan law.
6. “Statutory Rape” is sexual intercourse with a person who is under the statutory age of consent as defined by Michigan law.

[1] The University’s definition of “Sexual Assault” is mandated by federal regulations implementing Title IX of the Education Amendments of 1972. Those regulations require the University to adopt a definition of “Sexual Assault” that incorporates various forcible and non-forcible sex crimes as defined by the FBI’s Uniform Crime Reporting System. See 34 C.F.R. § 106.30(a).

“Sexual Harassment” is conduct on the basis of sex that constitutes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, or Stalking. Sexual Harassment does not depend on the gender, gender identity, or sexual orientation of the Complainant and Respondent. Thus, Sexual Harassment can occur between persons who consider themselves to be of the same gender, the opposite gender, or to otherwise have differing gender identities. This term is used throughout this policy and the Title IX Grievance Process when collectively referring to these types of conduct.

“Stalking” is 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
• Suffer substantial emotional distress.

“Supportive Measures” are non-disciplinary, non-punitive individualized services offered, as appropriate, and reasonably available, and without fee or charge, that are designed to restore or preserve equal access to the University’s Education Programs and Activities without unreasonably burdening another party, including measures designed to protect the safety of all parties implicated by a report or the University’s education environment, or to deter Sexual Harassment. Supportive measures may include: counseling, extensions of academic or other deadlines, course-related adjustments, modifications to work or class schedules, campus escort services, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar measures. Supportive Measures may also include mutual restrictions on contact between the parties implicated by a report.