II (22). Sexual Misconduct

(updated January 30, 2018; effective February 6, 2018)

 

MIT is committed to providing a productive living and learning community in which students can pursue their educational goals. Sexual misconduct undermines this commitment and affects the ability of students to focus on their educational achievement. Therefore, MIT will not tolerate nor condone any form of sexual misconduct. MIT students are prohibited from engaging in sexual misconduct, as defined below. Moreover, MIT may take additional action in response to sexual misconduct as required by state and federal law, including Title IX (see TitleIX.mit.edu).

 

No one shall be retaliated against for, in good faith, objecting to a behavior that may violate this policy, reporting a violation of this policy, or participating in the Institute’s complaint resolution procedure in any capacity, including as a complainant, witness, or investigator.

 

A. Definitions

Due to the sensitive and sometimes violent nature of incidents involving sexual misconduct, the following definitions are provided for informational use by students and for guidance in the investigation and processing of alleged violations. It is possible that a particular action may constitute sexual misconduct even if not specifically mentioned in these examples.

 

1. Sexual Misconduct

Sexual misconduct is a broad term used to encompass a range of behaviors including sexual harassment, nonconsensual sexual contact, nonconsensual sexual penetration, and sexual exploitation. This definition of sexual misconduct includes sexual assault (rape, fondling, incest, or statutory rape) as defined by the Clery Act. The Clery Act is a federal law on campus safety and security – more information on the Clery Act can be found in MIT’s Annual Security Report.

 

Sexual misconduct can occur between individuals who know each other, individuals who do not know each other, individuals who have an established relationship, and individuals who have previously engaged in consensual sexual activity.

 

Sexual misconduct can be committed by persons of any gender identity, and it can occur between people of the same or different sex.

 

Use of alcohol or other drugs will not excuse any behavior that violates this policy.

 

2. Effective Consent

MIT students who engage in sexual behavior of any kind are expected to do so only with the effective consent of all parties involved. Doing otherwise constitutes sexual misconduct and is a violation of this policy.

 

Consent is ultimately about respecting another’s autonomy to make choices about their own body, their own boundaries, and their own behavior. The fundamental purpose of the Institute’s sexual misconduct policy is to reinforce the expectation that individuals give and receive this respect in their sexual interactions.

 

Given the importance of sexual autonomy and the potential impact on those subjected to nonconsensual sexual activity, the Institute places the responsibility for obtaining effective consent on the person who initiates the sexual activity. That responsibility is significant.

 

The Institute recognizes that there are a wide variety of sexual interactions, that there is no single way to communicate consent, and that context matters. At all times, each party is free to choose where, when, and how they participate in sexual activity. Accordingly, when evaluating whether sexual activity was consensual, the Institute will consider the entirety of the sexual interaction and the relevant circumstances.

 

Effective Consent is:

 

• informed;

• freely and voluntarily given;

• mutually understandable words or actions which indicate willing participation in mutually agreed upon sexual activity.

 

Further:

 

By definition, effective consent cannot be obtained by

  •  unreasonable pressure, which can generally be understood as conduct that pressures another person to “give in” to sexual activity rather than to choose freely to participate; factors that may be considered include (1) the frequency, nature, duration, and intensity of the requests for sexual activity; (2) whether and how previous requests were denied; and (3) whether the person initiating the sexual activity held a position of power over the other person;
  • emotional intimidation, which can include (1) overtly degrading, humiliating, and shaming someone for not participating in sexual activity; (2) blackmail; and (3) threats to reputation;
  • physical intimidation and threats, which can be communicated by words or conduct, and physical force.

Effective consent cannot be obtained from someone who is incapable of giving consent for any reason, including when:

  • the person has a mental, intellectual, or physical disability that causes the person to be temporarily or permanently unable to give consent;
  • the person is under the legal age to give consent;
  • or the person is asleep, unconscious, physically helpless, or otherwise incapacitated, including by alcohol or other drugs.

An individual violates this policy if the individual initiates and engages in sexual activity with someone who is incapacitated, and (1) the individual knew the other person was incapacitated, or (2) a sober reasonable person under similar circumstances as the person initiating the sexual activity would have known the other person was incapacitated.

 

For purposes of this policy, silence and passivity do not signal consent.

 

There is no requirement that a person express non-consent or that they resist a sexual advance or request. For example, someone might not consent to sexual activity even though they do not say “no” or physically resist in any way. Physical or verbal resistance is evidence that there was not effective consent.

 

Some behaviors and statements do not indicate consent, including the following:

  • “I don’t know.”
  • "Maybe.”
  • Without more, ambiguous responses such as “uh huh” or “mm hmm,” and giggling.
  • A verbal “no,” even if it may sound indecisive or insincere.
  • Moving away.

​A factor that may be considered when evaluating consent is whether, under similar circumstances as the person initiating the sexual activity, a sober reasonable person would have concluded that there was effective consent.

 

It is important for those who initiate sexual activity to understand that:

  • even though someone gave effective consent to sexual activity in the past, that does not mean they have given effective consent to sexual activity in the future;
  • even though someone gives effective consent to one type of sexual activity during a sexual interaction, that does not automatically mean they have given effective consent to other types of sexual activity;
  • effective consent can be withdrawn at any time, and once a person withdraws effective consent, the other person must stop.

Effective consent is clearest when obtained through direct communication about the decision to engage in specific sexual activity. Effective consent need not be verbal, but verbal communication is the most reliable and effective way to seek, assess, and obtain consent. Nonverbal communication can be ambiguous. For example, heavy breathing or moaning can be a sign of arousal, but it can also be a sign of distress. Talking with sexual partners about desires, intentions, boundaries, and limits can be uncomfortable, but it serves as a strong foundation for respectful, healthy, positive, and safe intimate relationships.

 

3. Incapacitation

Incapacitation is the physical and/or mental inability to make informed, rational judgments and decisions. Someone is incapacitated if they are asleep or unconscious. Someone can also be incapacitated by alcohol or other substances.

 

Because the impact of alcohol and other drugs varies from person to person, one should be cautious before engaging in sexual contact or intercourse when either person has been drinking alcohol or using other drugs. The use of alcohol or other drugs may create ambiguity about consent. If there is any doubt about either party’s level of intoxication, the safe thing to do is to forgo all sexual activity.

 

Where alcohol or other substances are involved, incapacitation is determined by how the substance impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. Incapacitation is a state beyond drunkenness or intoxication, and a person is not incapacitated merely because they have been drinking or using drugs.

 

Incapacitation is not determined by technical or medical definitions. The question is whether a person has the physical and/or mental ability to make informed, rational judgments and decisions.

 

Although each individual is different, there are some common and observable signs that someone is incapacitated or approaching incapacitation, including slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand or answer coherently some or all of the following questions:

  • Do you know where you are?
  • Do you know how you got here?
  • Do you know what is happening?
  • Do you know who you are with?

4. Nonconsensual Sexual Penetration

Nonconsensual sexual penetration is the sexual penetration or attempted sexual penetration of any bodily opening with any object or body part without effective consent.

  • Nonconsensual sexual penetration includes the Clery Act definition of rape: the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim; the Clery Act definition of incest: sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; and the Clery Act definition of statutory rape: sexual intercourse with a person who is under the statutory age of consent.

5. Nonconsensual Sexual Contact

Nonconsensual sexual contact is any physical contact with another person of a sexual nature without effective consent, including touching someone’s intimate parts (such as genitalia, groin, breast, or buttocks, either over or under clothing); touching a person with one’s own intimate parts; or forcing a person to touch another’s intimate parts.

  • Nonconsensual sexual contact includes the Clery Act definition of fondling: 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 incapacity.

6. Sexual Harassment

Sexual Harassment is unwelcome conduct of a sexual nature, such as unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature, when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic standing
  • Submission to or rejection of such conduct by an individual is used as the basis for significant employment decisions (such as advancement, performance evaluation, or work schedule) or academic decisions (such as grading or letters of recommendation) affecting that individual
  • The conduct is sufficiently severe or pervasive that a reasonable person would consider it intimidating, hostile, or abusive and it adversely affects an individual’s educational, work, or living environment.

A partial list of examples of conduct that might be deemed to constitute sexual harassment if sufficiently severe or pervasive include:

 

Examples of verbal sexual harassment may include unwelcome conduct such as sexual flirtation, advances or propositions or requests for sexual activity or dates; asking about someone else’s sexual activities, fantasies, preferences, or history; discussing one’s own sexual activities, fantasies, preferences, or history; verbal abuse of a sexual nature; suggestive comments; sexually explicit jokes; turning discussions at work or in the academic environment to sexual topics; and making offensive sounds such “wolf whistles.”

 

Examples of nonverbal sexual harassment may include unwelcome conduct such as displaying sexual objects, pictures, or other

images; invading a person’s personal body space, such as standing closer than appropriate or necessary or hovering; displaying or wearing objects or items of clothing which express sexually offensive content; making sexual gestures with hands or body movements; looking at a person in a sexually suggestive or intimidating manner; or delivering unwanted letters, gifts, or other items of a sexual nature.

 

RELATED POLICY: The Institute’s complete harassment policy, addressing all forms of harassment, can be found in Section 9.4 of the Institute Policies and Procedures. Students should be aware that Section 9.4 prohibits all gender-based harassment (including harassment based on gender, sex, sex-stereotyping, sexual orientation, or gender identity), not just harassment that is sexual in nature. See also Mind & Hand Book § II (11).

 

RELATED POLICY: Individuals should be aware that unwelcome conduct of a sexual nature that does not rise to the level of “sexual harassment” and gender-based harassing conduct that does not rise to the level of “harassment” may still violate Section 9.1 of the Institute Policies and Procedures and/or the Institute Expectations of Student Behavior and Integrity policy – Mind & Hand Book § II (16).

 

7. Sexual Exploitation

Sexual exploitation means taking sexual advantage of another person and includes:

  1. Providing alcohol or other drugs to someone without that person’s knowledge, or unreasonably pressuring the person to consume alcohol or drugs, with the purpose of causing incapacitation in order for one to take sexual advantage of the person.
  2. Recording, photographing, transmitting, or allowing another to view images of private sexual activity and/or the intimate parts of another person without effective consent.
  3. Allowing third parties to observe private sexual acts without effective consent.
  4. Voyeurism, including by electronic means.
  5. Indecent exposure.
  6. Knowingly or recklessly exposing another person to a significant risk of sexually transmitted infection, including HIV, without their knowledge.

B. Retaliation

Retaliation, as described above and in Mind & Hand Book § II (21), is prohibited.

 

C. Reporting Sexual Misconduct and Resources for Students

Students are encouraged to report sexual misconduct that is perpetrated against them or other members of the MIT community. Students have numerous options for reporting the misconduct and obtaining support; which option a student chooses depends upon the nature and severity of the misconduct, whether the student wishes the report to remain confidential, and whether the student wishes to pursue a formal complaint.

 

For information about reporting, campus resources, and grievance procedures, visit the Title IX website or contact the Institute Title IX Coordinator:

Sarah Rankin, Title IX Coordinator
120 Massachusetts Ave.
Cambridge, MA 02139
Building W31-223
(617) 324-7526

Students may also choose to make a report to law enforcement and may simultaneously pursue criminal action and resolution through the Institute process. Students who choose to pursue criminal action can contact law enforcement directly:

  • MIT Police (617) 253-1212 or by dialing 100 from any MIT phone
  • Cambridge Police Department (617) 349-3381
  • Boston Police Department (617) 343-4400

An advocate from MIT’s on-campus Violence Prevention and Response program (VPR) is available to assist in contacting law enforcement and/or reporting to the Title IX Office. VPR’s 24-hour hotline is (617) 253-2300.

 

D. MIT’s Response

The procedure for resolving complaints of gender-based discrimination (including sexual misconduct) alleged to have been committed by students at the Institute can be found in the Committee on Discipline Rules & Regulations, including Sections XII-XV.

 

The procedure for resolving complaints of gender-based discrimination alleged to have been committed by employees of the Institute, including faculty and staff, can be found in Section 9.8 of the Institute Policies and Procedures

 

The sanctions of disciplinary suspension and disciplinary expulsion will be strongly considered when a student is found to have violated any part of the nonconsensual sexual contact, nonconsensual sexual penetration, sexual exploitation, or retaliation provisions of this policy; and for severe violations of the sexual harassment provision.

 

E. Interim Measures During Investigations

While an investigation or grievance proceeding is pending, MIT will provide written notification to a complainant about interim measures to assist or protect that person. Interim measures may include, for example, changing the living and/or transportation arrangements, class schedule, or work schedule of the person who was the subject of the alleged misconduct and/or the person alleged to have committed the misconduct, a no-contact order, or similar action. MIT will also provide written notification to students about existing counseling, health, mental health, victim advocacy, legal assistance, visa and immigration assistance, student financial aid, and other services available for victims, both at the Institute and off campus. Support services for respondents are also available. Interim measures may also be taken to protect the community.