Appendix B: Illustrative Examples
There are illustrative examples provided here to assist members of the University community in exploring how issues of sexual and relationship misconduct are defined by this policy.
Samitha and Lucas
Samitha and Lucas meet at a party. They spend the evening dancing and getting to know each other. Lucas convinces Samitha to come up to his room. From 11:00 p.m. until 3:00 a.m., Lucas uses every line he can think of to convince Samitha to have sex with him, but she adamantly refuses. Finally, it seems to Lucas 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). Samitha would never have done it but for Lucas'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. Lucas is responsible for violating the University's Nonconsensual Sexual Contact policy. Lucas coerced Samitha 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 and relationship misconduct.
Kate and Josh
Kate and Josh met at a movie. They started to date on and off. One night, Kate and Josh went out drinking. After the bars closed, they went to Kate's dorm room. Kate was very drunk and engaged in sex with Josh despite his protests. Josh was not as drunk as Kate. Kate argues that even if she might have had nonconsensual sex with Josh, 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 and relationship misconduct? Yes, intoxication of a party is no excuse for violation of the sexual and relationship 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 Josh is irrelevant. The fact that she had sex with him without his consent is sufficient to show misconduct.
Jamaal and Talia
Jamaal is a junior. Talia is a sophomore. Jamaal comes to Talia's dorm room with some mutual friends to watch a movie. Jamaal and Talia, who have never met before, are attracted to each other. After the movie, everyone leaves and Jamaal and Talia are alone. They hit it off, and are soon becoming more intimate. They start to make out. Jamaal verbally expresses his desire to have sex with Talia. Talia, 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 Jamaal takes her by the wrist over to the bed, lays her down, undresses her, and begins to have intercourse with her, Talia has a severe flashback to her childhood trauma. She wants to tell Jamaal to stop, but cannot. Talia is stiff and unresponsive during the intercourse. Jamaal would be held responsible in this scenario for violating the policy on Nonconsensual Sexual Contact. It is the duty of the sexual initiator, Jamaal, 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, Jamaal had no verbal or nonverbal mutually understandable indication from Talia 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.
Tyler and Keiko
Tyler is a junior. Keiko is a senior. Tyler comes to Keiko's dorm room with some mutual friends to watch a movie. Tyler and Keiko, who have never met before, are attracted to each other. After the movie, everyone leaves and Tyler and Keiko are alone. They hit it off, and are soon becoming more intimate. They start to make out. Tyler verbally expresses his desire to have sex with Keiko. Keiko isn't ready to do it with Tyler, 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, Tyler stops Keiko, lays her back on the bed, takes off her clothes, and engages in intercourse with her. Keiko is unresponsive during the intercourse. Again, this behavior by Tyler would violate the sexual and relationship misconduct policy. Engaging in one form of sexual activity does not necessarily imply consent to another. Clearly, Keiko consented by her actions to oral sex with Tyler. But, Tyler had no mutually understandable indication from Keiko that she consented to sexual intercourse. Some verbal or clear overt action would be necessary to show Tyler that Keiko wanted to have more than oral sex with him.
Diego and Ciera
Diego is a junior. Ciera is a sophomore. Diego comes to Ciera's room with some mutual friends to watch a movie. Diego and Ciera, who have never met before, are attracted to each other. After the movie, everyone leaves and Diego and Ciera are alone. They hit it off, and are soon becoming more intimate. They start to make out. Diego verbally expresses his desire to have sex with Ciera. Ciera responds by removing all of her clothing and lying down on the bed. No further words are exchanged between them. Diego and Ciera have sexual intercourse, during which Ciera is rigid and unresponsive. Diego 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 Ciera'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 Ciera and Diego communicated a true meeting of the minds to each other. For example, Ciera 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 activity, but not necessarily intercourse. Thus, Diego's actions represent an assumption on his part if Ciera claims that she meant something other than permission for sexual intercourse by her actions. This does not relieve Ciera of responsibility for communicating her intentions to Diego, 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 Ciera does something to Diego or herself.
Sara and Madison
Sarah is a sophomore. Madison is a sophomore. Madison comes to Sarah's residence hall room with some mutual friends to hang out. Sarah and Madison, who have never met before, are attracted to each other. There is a quite a lot of drinking in the room. Madison and Sarah are soon beyond intoxicated. Later on in the evening, everyone leaves, and Sarah and Madison are alone. They hit it off, and are soon becoming more intimate. They start to make out and before long they are sexually intimate. While engaged in sexual intimacy, Sarah's roommate Allison comes into the room to retrieve a forgotten key. She observes Sarah and Madison, but leaves quickly, feeling embarrassed. The next day, Sarah and Madison remember nothing of the night before, except kissing each other. When Allison mentions that she saw them engaged in oral sex, Sarah is shocked (not that Allison saw them, but that she was sexually intimate and has no memory of it). Feeling very violated and taken advantage of, Sarah charges Madison with rape (nonconsensual sexual intercourse). Two people had sex while they were both incapacitated, it matters not that Sarah 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 Sarah and Madison for raping each other. The University would treat this as an opportunity for educating Sarah and Madison 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.
Does your decision change at all if the situation involves two females, two males, a male accusing a female or a female accusing a male? It should not.
Mike and Jenny
Mike and Jenny have been dating since high school. Mike is now 19 and a student at Michigan Tech. Jenny is 16 and is still a student in high school out of state. Jenny and Mike stay in touch by emailing, texting, and video chatting online. They both post messages and pictures to each other's websites. Jenny's little brother Billy walked by Jenny's room and saw Mike's website. Billy saw partially nude pictures of his sister, and he told his parents. Jenny's parents contacted their local police and prosecuted Mike for sexual exploitation of a minor because Mike had partially nude pictures of Jenny, who is still a minor. Did Mike violate the Michigan Tech Sexual and relationship misconduct policy? Yes, Mike has committed sexual exploitation, which is prohibited by the Michigan Tech Sexual and relationship misconduct policy. Jenny is a minor and cannot give effective consent to posting sexually explicit photographs on the internet. Mike may also still face prosecution in Jenny's local jurisdiction for sexual exploitation and/or statutory rape as well, depending on the laws of the local jurisdiction.
Erin and Leif
Erin and Leif met online. Erin is a student at Michigan Tech, and Leif lives in another state. They have been talking on the phone and using video chat. They have had sexually explicit chat sessions online. They have been "sexting" by exchanging sexually explicit text messages with each other. Leif agrees to drive up to visit Erin for the weekend. He stays in a hotel room off campus. When they meet in person for the first time, Erin realizes she is not really attracted to Leif but she does not want to hurt his feelings. She goes with Leif on walks, to dinner, and to a party. Erin and Leif both drink a lot at the party, and Erin wakes up the next day in Leif's hotel room. She knows that they had sex. Leif gives Erin a ride back to her dorm room and tries to make plans for that day. Erin declines and says she has to study for a test. Did nonconsensual sexual contact occur? This is a difficult case of "he said/she said". Erin did not show by words or actions that her feelings for Leif had changed. Erin has the right to change her mind regarding sexual activity with Leif, but she must communicate this to Leif. Leif did not realize that Erin was no longer interested in a sexual relationship. However, Leif is not entitled to sex just because he drove a long distance, rented a hotel room, and paid for dinner. Erin may be confused about her feelings, about not being assertive enough, about being taken advantage of while she had been drinking. She can receive support and assistance on campus at Counseling and Wellness Services or off campus through Dial Help. As she does not know Leif very well, and she does not know if protection was used, she may want to seek medical assistance to check for sexually transmitted diseases.
Ashish and Samitha
Ashish and Samitha are both enrolled in online courses at Michigan Tech. After exchanging emails and chatting online, they decide to meet in person to work on a class project. Samitha offers to let Ashish stay with her at her apartment. After the weekend, Ashish returns home. Samitha and Ashish continue to work on the class project. Ashish learns from a friend that there are nude pictures on a website that look a lot like him. Ashish goes to the website and realizes that the pictures were taken while he was sleeping at Samitha's house. He confronts her and demands that she remove the pictures. She says she does not control the website and it is out of her control. Has Samitha violated the Michigan Tech Sexual and relationship misconduct Policy? Yes, posting nude photographs without the consent of the person is a clear violation of the Michigan Tech Sexual and relationship misconduct Policy. Even if Samitha took the pictures down, she still violated the policy. Samitha can expect to receive sanctions from Michigan Tech, and she may face local prosecution if Ashish chooses to pursue the charges locally.
During the summer break between his junior and senior year at Michigan Tech, Steve takes time off from school to travel and visit friends and family. While on the break from school, Steve is charged with statutory rape in another state. A trial is held and he is found guilty. The court puts Steve on probation, and he is allowed to return to finish school. Has Steve violated the Sexual and relationship misconduct Policy? Yes. Michigan Tech students are expected to uphold the Sexual and relationship misconduct Policy during the entire time that they are students at Michigan Tech. The policy applies on weekends, during holiday breaks within the semester, and during breaks that occur between semesters. As long as the student is enrolled, the policy applies. The policy applies wherever the student may travel, within the United States and abroad. Steve should expect additional sanctions from Michigan Tech.
Mai and Raj
Special acknowledgement to Brett Sokolow, President and CEO of the National Center for Higher Education Risk Management (The NCHERM Group), for his consultation and support in the initial development of this policy and supporting materials.
History: Revised September 2013