• an employee of the University,
• conditions the provision of an aid, benefit, or service of the University,
• on an individual’s participation in unwelcome sexual conduct.

• unwelcome conduct,
• determined by a reasonable person,
• to be so severe, and
• pervasive, and,
• objectively offensive,
• that it effectively denies a person equal access to a University Program or Activity.

• Non-consensual touching, or coercing or forcing another to touch a person’s intimate body parts (defined as genital area, groin, inner thigh, or breast);
• Penetration, no matter how slight, of a person’s vagina or anus, by any body part or object, or oral penetration by a sex organ of another person without consent; or
• Sexual intercourse between persons who are related to each other to the degree they cannot marry under state law.

Consent is informed, freely given, and mutual. If coercion, intimidation, threats, or physical force are used there is no consent.  If a person is mentally or physically incapacitated, under the statutory age of consent, or impaired so that such person cannot understand the fact, nature or extent of the sexual situation, there is no consent; this includes impairment or incapacitation due to alcohol or drug consumption, or being asleep or unconscious. There is no consent when there is force, expressed or implied, or use of duress or deception upon the victim.  Silence does not necessarily constitute consent.  Past consent to sexual activities does not imply ongoing future consent.  Whether an individual has taken advantage of a position of influence over an alleged victim may be a factor in determining consent.

Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on the University to determine whether its Policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred.

Force: Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” “Okay, don’t hit me, I’ll do what you want.”). Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. The absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

Coercion: Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.

Incapacitation: Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction). A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this Policy if they engage in sexual activity with someone who is incapable of giving consent. Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.

• violence,
• committed by a person,
• who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.
  • The existence of such a relationship shall be determined based on the Complainant’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.

• violence,
• committed by a current or former spouse or intimate partner of the Complainant,
• by a person with whom the Complainant shares a child in common, or
• by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
• by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of Montana, or
• by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of Montana.

To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.

• engaging in a course of conduct,
• directed at a specific person, that
  • would cause a reasonable person to fear for the person’s safety, or
  • the safety of others; or
  • 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 Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
• Reasonable person means a reasonable person under similar circumstances
• and with similar identities to the Complainant.
• Substantial emotional distress means significant mental suffering or
• anguish that may but does not necessarily require medical or other professional treatment or counseling.

Sexual Exploitation is any instance in which a person takes non-consensual or abusive sexual advantage of another for any person’s benefit other than the person being exploited. Sexual Exploitation is conduct that falls within other categories of Sexual Harassment but is identified separately for clarity. Examples of behavior that could rise to the level of Sexual Exploitation include:

• Prostituting another person;
• Non-consensual visual (e.g., video, photograph) or audio-recording of sexual activity;
• Non-consensual distribution of photos, other images, or information of an individual’s sexual activity, intimate body parts, or nakedness, with the intent to or having the effect of embarrassing an individual who is the subject of such images or information;
• Going beyond the bounds of consent (such as letting your friends hide in the closet to watch you having consensual sex);
• Inducing incapacitation for sexual purposes;
• Engaging in non-consensual voyeurism;
• Knowingly transmitting an STI, such as HIV, to another without disclosing your STI status;
• Exposing one’s genitals in non-consensual circumstances, or inducing another to expose their genitals; or
• Possessing, distributing, viewing or forcing others to view illegal pornography.