| Sexual Misconduct Policy |
Appendix B. Illustrative Examples
There are six illustrative examples provided here to assist members of the University community in exploring how issues of sexual misconduct are defined by this policy.
- Mary and Bob meet at a party. They spend the evening dancing and getting to know each other. Bob convinces Mary to come up to his room. From 11:00 p.m. until 3:00 a.m., Bob uses every line he can think of to convince Mary to have sex with him, but she adamantly refuses. Finally, it seems to Bob that her resolve is weakening when he tells her he won't consider it sexual relations. He convinces her to give him a "hand job" (hand to genital contact). Mary would never have done it but for Bob's incessant advances. He feels that he successfully seduced her and that she wanted to do it all along, but was playing shy and hard to get. Why else would she have come up to his room alone after the party? If she really didn't want it, she could have left.
Bob is responsible for violating the MICHIGAN TECH Nonconsensual sexual Contact policy. This is not a Nonconsensual Sexual Intercourse case. Bob coerced Mary into performing unwanted sexual touching upon him. Where sexual activity is coerced, it is forced. Consent is not effective when forced. Sex without effective consent is sexual misconduct.
- Kate and Bill met at a movie. They started to date on and off. One night, Kate and Bill went out drinking. After the bars closed, they went to Kate's dorm room. Kate was very drunk and engaged in sex with Bill despite his protests. Bill was not as drunk as Kate. Kate argues that even if she might have had nonconsensual sex with Bill, it's not her fault because of how drunk she was. She believes she was so drunk she didn't even know she was having sex with him, let alone that it was something he didn't want. Is Kate guilty of sexual misconduct?
Yes, intoxication of a party is no excuse for violation of the sexual misconduct policy. If it were, drunken people could be excused for drunk driving, because they were so drunk they didn't realize they were driving. Further, rape is not an intent-based infraction. Whether or not Kate intended to rape Bill is irrelevant. The fact that she had sex with him without his consent is sufficient to satisfy the elements of the offense.
- Jack is a junior. Sue is a sophomore. Jack comes to Sue's dorm room with some mutual friends to watch a movie. Jack and Sue, who have never met before, are attracted to each other. After the movie, everyone leaves and Jack and Sue are alone. They hit it off, and are soon becoming more intimate. They start to make out. Jack verbally expresses his desire to have sex with Sue. Sue, who was abused by a baby-sitter when she was five, and has not had any sexual relations since, is shocked at how quickly things are progressing. As Jack takes her by the wrist over to the bed, lays her down, undresses her, and begins to have intercourse with her, Sue has a severe flashback to her childhood trauma. She wants to tell Jack to stop, but cannot. Sue is stiff and unresponsive during the intercourse.
Jack would be held responsible in this scenario for violating the policy on Nonconsensual Sexual Intercourse. It is the duty of the sexual initiator, Jack, to make sure that he has mutually understandable consent to engage in sex. Though consent need not be verbal, it is the clearest form of consent. Here, Jack had no verbal or nonverbal mutually understandable indication from Sue that she consented to sexual intercourse. Of course, wherever possible, students should attempt to be as clear as possible as to whether or not sexual contact is desired, but students must be aware that for psychological reasons, or because of alcohol or drug use, your partner may not be in a position to provide you with as clear an indication as our policy requires.
- Harry is a junior. Karen is a senior. Harry comes to Karen's dorm room with some mutual friends to watch a movie. Harry and Karen, who have never met before, are attracted to each other. After the movie, everyone leaves and Harry and Karen are alone. They hit it off, and are soon becoming more intimate. They start to make out. Harry verbally expresses his desire to have sex with Karen. Karen isn't ready to do it with Harry, since they just met. But, she likes him and doesn't want to scare him off either. She decides to satisfy him orally, hoping they can get to know one another better later before engaging in intercourse. Perceiving the oral sex as foreplay, Harry stops Karen, lays her back on the bed, takes off her clothes, and engages in intercourse with her. Karen is unresponsive during the intercourse.
Again, this behavior by Harry would violate the sexual misconduct policy. Engaging in one form of sexual behavior does not necessarily imply consent to another. Clearly, Karen consented by her actions to oral sex with Harry. But, Harry had no mutually understandable indication from Karen that she consented to sexual intercourse. Some verbal or clear overt action would be necessary to show Harry that Karen wanted to have more than oral sex with him.
- Ed is a junior. Sally is a sophomore. Ed comes to Sally's room with some mutual friends to watch a movie. Ed and Sally, who have never met before, are attracted to each other. After the movie, everyone leaves and Ed and Sally are alone. They hit it off, and are soon becoming more intimate. They start to make out. Ed verbally expresses his desire to have sex with Sally. Sally responds by removing all of her clothing and lying down on the bed. No further words are exchanged between them. Ed and Sally have sexual intercourse, during which Sally is rigid and unresponsive. Ed is aware of this, but does not stop or check to see if everything is okay.
This scenario tests the strictness of the definition. The definition requires consent to be communication that is mutually understandable. The definition requires a meeting of the minds of the participants on an agreement to do the same thing in the same way at the same time. While reasonable people might consider Sally's body language as sufficient to constitute consent to them, the standard is not that subjective. The question is not how you might view her actions, but whether or not Sally and Ed communicated a true meeting of the minds to each other. For example, Sally could have been hot, and decided to take her clothes off to cool off. More realistically, she might be willing to consent to some form of sexual behavior, but not necessarily intercourse. Thus, Ed's actions represent an assumption on his part if Sally claims that she meant something other than permission for sexual intercourse by her actions. This does not relieve Sally of responsibility for communicating her intentions to Ed, but it does not place her at fault for not doing so. The responsibility is on the initiator of the sexual activity to make sure she/he has consent to the desired sexual activity. Finally, the definition says consent must be actively given. Active means that Sally does something to Ed or herself.
- Pete is a sophomore. Ellie is a sophomore. Ellie comes to Pete's residence hall room with some mutual friends to hang out. Pete and Ellie, who have never met before, are attracted to each other. There is a quite a lot of drinking in the room. Ellie and Pete are soon beyond intoxicated. Later on in the evening, everyone leaves, and Pete and Ellie are alone. They hit it off, and are soon becoming more intimate. They start to make out and before long they are engaged in intercourse. While engaged in intercourse, Pete's roommate Andy comes into the room to retrieve a forgotten key. He observes Pete and Ellie, but leaves quickly, feeling embarrassed. The next day, Pete and Ellie remember nothing of the night before, except kissing each other. When Andy mentions that he saw them having intercourse, Pete is shocked (not that Andy saw them, but that he lost his virginity and has no memory of it). Feeling very violated and taken advantage of, Pete charges Ellie with rape.
Two people had sex while incapacitated, it matters not that Pete is the one who feels violated. By the definition, the logical answer is that they raped each other, unless it can be shown that one or the other was clearly the aggressor or initiator or used some type of force (and this cannot be demonstrated by the facts given). But the logical answer here is not the proper result. It makes very little sense to suspend or expel both Pete and Ellie for raping each other. The University would treat this as an opportunity for educating Pete and Ellie about the risks of drinking and hooking up. Both should have warnings placed in their files, and both should be dealt with more harshly if they are found responsible for being so disrespectful of another person in the future.
- What if the situation is reversed? Ellie and Pete are in Ellie's room. Ellie's roommate, Julie walks in on them. Ellie and Pete remember nothing, but the next day, Julie tells Ellie what she saw. Upset and hurt, Ellie charges Pete with rape. Does your decision change at all? It should not.