Standards of Analysis

In determining whether behaviors were consensual, welcome or unwelcome, denied access to an NSU program or otherwise created a hostile environment, NSU evaluates the behaviors (both in Title IX Resolution Procedures and in the other applicable NSU procedures) in accordance with the following definitions and standards:

Consent: Consent is informed, voluntary, and mutual agreement to engage in sexual activity. Giving consent means that a person understands a specific behavior that someone wants to do with them and they voluntarily give that person permission to engage in that behavior. In addition:

Consent must be sought by the initiator of each act
Consent can be withdrawn at any time.
There is no consent when force, whether expressed or implied, is used.
There is no consent when coercion, intimidation, threats, and/or duress is applied.
Whether a person has taken advantage of a position of influence over another person may be a factor in determining consent.
Silence or absence of resistance does not imply consent.
If a person is mentally or physically incapacitated or impaired so that such person cannot understand the fact, nature, or extent of the sexual situation, there is no consent. This includes impairment due to alcohol or drug consumption that reaches the level of incapacitation, being asleep or unconscious or being under the legal age to give consent.

Hostile Environment: In assessing whether a hostile environment has been created, and/or the extent to which a person was denied access to an educational program or activity, due to sex-based discrimination, the following factors are considered:

Subjective and objective consideration of the conduct in question – not just that the conduct was unwelcome to the receiver but that a reasonable person in the receiver’s position would have perceived the conduct as undesirable or offensive,
Severity, type, frequency, and duration of the conduct,
Identity, number, and relationships of persons involved,
Location of the conduct and the context in which it occurred, and
Degree to which the conduct affected one or more student’s education.

Unwelcome Conduct: Conduct is considered unwelcome If the person did not request or invite it and considered the conduct to be undesirable or offensive. In addition, unwelcome conduct:

May occur through a variety of forms, including, name-calling, graphic or written statements (including the use of cell phones or the Internet), or other conduct that may be physically threatening, harmful, or humiliating.
Does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.
May involve persons of the same or different sexes or gender identities.
May have occurred even if an individual participated in the conduct (if they were coerced or treated into doing so, for example) or failed to report/complain about the conduct.
May have occurred, even if a person welcomed similar conduct previously or welcomed a portion of the conduct but not all of it.