Content Warning: Please note that this policy addresses issues of sexual violence and uses descriptions and examples of this conduct which can be triggering.
Tufts is committed to providing an education and work environment that is free from sexual misconduct. The University works to prevent and address sexual misconduct through educational programs, training, and complaint resolution.
Sexual Misconduct violates the dignity of individuals. It is a form of discrimination based on sex or gender that violates federal Title IX regulations and is prohibited by Tufts policy. In some cases, sexual misconduct can also be a violation of criminal law.
Tufts encourages all members of the university community to report any concerns or complaints of sexual misconduct. Managers, supervisors and other agents of the university are legally required to report promptly and appropriately all allegations of sexual misconduct that are brought to their attention.
Tufts encourages all members of the university community to report any concerns or complaints of sexual misconduct. Managers, supervisors and other agents of the university are legally required to report promptly and appropriately all allegations of sexual misconduct that are brought to their attention.
The Sexual Misconduct Adjudication Process (SMAP) is the adjudication process used for complaints against Tufts students accused of sexual misconduct (including sex and gender discrimination; sexual and sex and gender based harassment; sexual assault and rape; sexual exploitation), stalking and relationship violence (including domestic and dating violence).
This adjudication process is intended to be prompt, fair and impartial and provides for disciplinary action when appropriate.
Unlawful discrimination has no place at Tufts University. It violates the university’s core values, including its commitment to equal opportunity and inclusion, and will not be tolerated. Sex and gender based discrimination and harassment are prohibited by Tufts University policy and can constitute violations of state and/or federal law. State and federal law, including Title IX of the 1972 Education Amendments, prohibits sex and gender based discrimination in all of the University’s programs and activities, and Title VII of the 1964 Civil Rights Act, and its state counterpart, M.G.L. c. 151B, prohibits sex and gender based discrimination in employment. Tufts University policy, the Violence Against Women Act (VAWA), as amended, and other state and federal laws prohibit sexual assault, stalking and relationship violence (including dating and domestic violence).
Tufts is committed to providing a campus environment free of sex and gender based discrimination, and sex and gender based harassment. To that end, Tufts prohibits sexual misconduct, that, under this policy, can include: (1) sex and gender based discrimination; (2) sexual and sex and gender based harassment (including a hostile environment based on sex or gender); (3) sexual assault; (4) sexual exploitation; (5) stalking; and (6) relationship violence (including dating and domestic violence). Under Tufts University policy, sexual misconduct can occur in any sex or gender configuration (i.e., between the same sex or different sex or gender) and regardless of actual or perceived sex, gender, gender identity, gender expression, and/or sexual orientation. Tufts also prohibits retaliation.
Sexual misconduct is not limited to the workplace or the educational environment. It can extend beyond university property and could occur at any university sponsored program, activity, or event regardless of the location. It can occur out of state or country, such as at a conference, off-site project, study abroad, field placement, or at an externship. Sexual misconduct can occur between students, employees and third parties such as patients, visitors, vendors, contractors and other community members. Tufts’ Sexual Misconduct Policy applies broadly and in many different circumstances. Tufts will consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus.
The university takes all allegations of sexual misconduct seriously and is committed to providing information, education, resources, support, interim measures, and clear direction to Tufts community members to prevent and address such conduct.
The university will always respond to sexual misconduct that it knows or should know about in order to stop prohibited conduct, prevent the recurrence of any conduct of concern, prevent and/or eliminate any hostile environment, and, where appropriate, address any effects on campus from such prohibited conduct. Tufts University is committed to addressing and working towards preventing crimes of sexual violence that are never acceptable and will not be tolerated.
Violations of this policy are subject to disciplinary action. Depending on the nature of the violation, disciplinary consequences for violations of this policy may include denial of privileges, disciplinary probation, suspension and expulsion for students, and may include warnings (verbal or written), demotions, suspensions, and termination for employees. The conduct discussed in this policy may also constitute violations of the law, to which other laws and regulations may apply beyond the scope of this policy and Tufts’ disciplinary measures. Criminal definitions under state and federal law for some of the conduct described under this policy such as relationship violence (including dating and domestic violence) and stalking can be found in Important Definitions. Tufts University will abide by court ordered restraining orders and orders of protection, and will assist individuals seeking these or other law enforcement options. Tufts will honor a complainant’s/victim’s/survivor’s decision either to pursue a law enforcement remedy or to decline to pursue that avenue of remedy.
It is the responsibility of the Tufts’ Office of Equal Opportunity (OEO) to make inquiries into reports of sexual misconduct on behalf of the university. Violations of this policy can be filed through the applicable internal procedures and guidelines. The procedure that applies to complaints against students is called the Sexual Misconduct Adjudication Process (SMAP).
The Discrimination Complaint Processing Guidelines (Guidelines) apply to complaints filed against employees and third parties. OEO will conduct investigations for matters brought under the SMAP and the Guidelines. All violations of this policy will be decided by the preponderance of the evidence standard (whether it was more likely than not that university policy has been violated by the conduct alleged).
Tufts is committed to assisting and supporting complainants/victims/survivors, accused students, and witnesses through many resources.
Tufts seeks to empower complainants/victims/survivors by informing them that there are options to address sexual misconduct, both through our disciplinary process and/or through the legal system. Complainants/victims/survivors can use any or all of these options simultaneously to address sexual misconduct. The university affirms the right of complainants/victims/survivors to decide whether they wish to be involved in any process to address sexual misconduct — or not. However, should the conduct at issue pose a threat to campus safety (which includes but is not limited to threats of further violence, the use of weapons and/or repeat offenders), the university must take action regardless of whether the complainant/victim/survivor wishes to proceed with their individual employee or student complaint. Learn more about reporting.
The university will provide interim measures in response to sexual misconduct in order to stop prohibited conduct, prevent the recurrence of any conduct of concern, prevent and/or eliminate any hostile environment, and, where appropriate, address any effects on campus from such prohibited conduct.
Interim measures and other support options are available regardless of whether disciplinary or criminal claims are pursued. In some instances, interim measures may lead to a person’s immediate removal from campus. Various available and appropriate interim measures and support options include, but are not limited to: health and counseling services, stay away orders, no-contact orders, no trespass orders, schedule and housing changes, academic supports or adjustments, and information about financial aid and visa/immigration related issues. Tufts will make efforts to implement interim measures in a manner that will minimize the burden on the complainant/victim/survivor whenever possible.
Retaliation against anyone who makes a good faith report or complaint of an incident of sexual misconduct, or in any way participates in an inquiry or investigation of sexual misconduct under this policy is strictly prohibited. The prohibition against retaliation applies to a reasonable objection to conduct an individual believes, in good faith, to be a violation of law or policy. A person engaged in retaliatory conduct will be subject to disciplinary action by the university. Depending on the nature of the retaliation found, discipline may include denial of privileges, disciplinary probation, suspension and expulsion, for students, and may include warnings (verbal or written), demotions, suspensions, and termination for employees. The university will also provide interim measures in response to retaliation-related concerns in order to stop prohibited conduct, prevent its recurrence, prevent and/or eliminate any hostile environment, and, where appropriate, address any effects on campus from such conduct. In some instances, these measures may lead to an accused person’s immediate removal from campus or other various available and appropriate interim measures.
All employees of the university - with a few limited exceptions - are considered “Responsible Employees” under this policy and as a result are required to promptly report allegations of sexual misconduct that they observe or learn about to the Director of the OEO and Title IX Coordinator, Jill Zellmer (email oeo@tufts.edu or call 617-627-3298) or to any Title IX Liaison. The Title IX Coordinator is charged with the responsibility of coordinating Tufts’ efforts to comply with its obligations under Title IX, including addressing complaints of sexual misconduct, coordinating investigations and providing appropriate interim measures for the Tufts community.
Although Responsible Employees are required to report conduct under this policy to OEO, they will otherwise maintain the privacy of the information related to the matter reported.
Responsible Employees may also report such conduct online through the Ethicspoint reporting portal, providing all known details of the situation. All Responsible Employees are required to report any incident of sexual misconduct, even if the person(s) concerned about or affected by the misconduct is unsure about pursuing a disciplinary complaint. Reported allegation(s) will be reviewed by OEO staff who will assess the report and consult with the complainant. Responsible Employees who knew about but did not report allegations of sexual misconduct may be subject to disciplinary action.
Only employees of Tufts’ Counseling and Mental Health Services, Tufts’ Student Advisory and Health Administration, Tufts’ Health Service, Tufts’ Chaplains and the EAP, all of whom have legally defined confidentiality privileges, are exempt from these reporting requirements. The Tufts University CARE Office employees have limited confidentiality privileges and, as such, are still required to report non-identifying information to OEO and TUPD about violations of policy and criminal conduct, respectively. CARE’s records may also be subpoenaed in a civil or criminal legal matter. Learn more about reporting.
Sexual Misconduct is a broad term used in this policy to encompass unwelcome or unwanted sex or gender based conduct and/or behavior of a sexual nature that is prohibited by Tufts University and may also be prohibited by federal and state law, including Title IX.
Sexual misconduct is, in many instances, a form of sex and/or gender discrimination and sex and/or gender based harassment. However, sex and gender discrimination and harassment that is not sexual in nature is also prohibited by Tufts policy. For instance, Tufts’ Non-Discrimination Policy prohibits the unequal treatment of an individual (or group) based on sex or gender or sex/gender based harassment — even when the conduct is not sexual in nature. The Non-Discrimination Policy also prohibits sex or gender discrimination resulting from the application of a neutral policy or procedures.
Example of Sex/Gender Discrimination
Carly has noticed that the professor in his lab class refers to male students as “sexy,” “abs” and “muscles” and other similar names. However, the professor always refers to females by their first names.
Sexual harassment is a form of sex and gender discrimination that involves unwelcome or unwanted conduct of a sexual nature. It can include unwelcome or unwanted sexual advances, requests for sexual favors and other physical or verbal conduct of a sexual nature. Sexual harassment can include conduct directed at a person because of their real or perceived gender. Similarly, sex and/or gender based harassment that is not sexual in nature is prohibited by this policy and can also include conduct directed at a person because of their real or perceived sex and/or gender. This conduct is harassment when:
Sexual and sex and/or gender based harassment has the purpose or effect of unreasonably interfering with an individual’s work or academic performance if, for example, it is sufficiently serious, pervasive or persistent as to create an intimidating, hostile, humiliating, demeaning, discriminatory or sexually offensive working, academic, residential or social environment under both an objective (i.e. a reasonable person’s view) and subjective (the complainant’s view) standard.
Some examples of unwelcome or unwanted conduct that could constitute sexual and/or sex and/or gender based harassment include (but are not limited to):
Sexual and/or sex and gender based harassment can occur between and/or among students, staff, faculty and/or third parties. Sexual and/or sex and gender based harassment can occur between people of unequal power or between peers. A complainant/victim/survivor does not have to be the direct recipient of the conduct; anyone affected and/or offended by the conduct may file a complaint. Sexual and/or sex and gender based harassment neither restricts itself to the workplace or the educational environment nor must it take place on University property. Sex and gender based discrimination and harassment that is not sexual in nature is prohibited under Tufts’ Non-Discrimination Policy. OEO is also responsible for investigating and addressing concerns raised under Tufts’ Non-Discrimination Policy.
Examples of Sexual and Sex and/or Gender Based Harassment
Sexual assault is the act of committing unwelcome or unwanted physical contact of a sexual nature toward someone else. There are many types of sexual assault, including rape. As explained above, such contact is unwelcome or unwanted when it occurs (1) without the consent of the other individual(s) involved (2) when the other individual(s) involved is incapacitated or otherwise incapable of giving consent, or (3) when it occurs with the use of force.
Sexual assault can be committed by anyone including an acquaintance or a stranger. An acquaintance may include close friends, intimate partners, coworkers, classmates, friends of friends or may be someone you just met. The parties involved can be of any actual or perceived sex/gender, gender identity, gender expression and/or sexual orientation. Under this policy, sexual assault includes, but is not limited to the following: (1) non-consensual sexual contact; (2) forced sexual contact; (3) non-consensual sexual penetration; and (4) forced sexual penetration. These terms are discussed in further detail below.
I. Non-Consensual Sexual Contact is:
Sexual contact includes, but is not limited to: touching of a person’s intimate parts, such as genitalia, groin, breast, buttocks, mouth, and/or clothing covering those parts; touching a person with one’s own intimate parts; making a person touch you or another; or any intentional bodily contact in a sexual manner, including but not limited to, unwelcome or unwanted hugging, even if that contact does not involve intimate body parts. If this contact occurs with the absence of consent, it is a violation of this policy.
Examples of Non-Consensual Sexual Contact
II. Forced Sexual Contact is:
Any intentional sexual touching, however slight
Sexual contact includes but is not limited to: touching of another person’s private parts, such as genitalia, groin, breast, buttocks, mouth, and/or clothing covering those parts; touching a person with one’s own intimate parts; making a person touch you or another; or any intentional bodily contact in a sexual manner, including but not limited to, unwelcome or unwanted hugging, even if that contact does not involve intimate body parts. Force is not limited to physical violence but also includes threats, intimidation, abuse of power, coercion and duress, or any combination of those behaviors.
Examples of Forced Sexual Contact
III. Non-Consensual Sexual Intercourse is:
Sexual intercourse includes (but is not limited to): penetration (oral, anal or vaginal), however slight with any object or body part, including (but not limited to) fingers, tongue and/or penis; or making someone penetrate another person(s). This includes but is not limited to penetration of a bodily opening or cavity and performing/receiving oral copulation (vaginal, anal or penile).
Example of Non-Consensual Sexual Intercourse
Ali and Tori are dating but had not previously engaged in sexual conduct together. Then one evening Ali asks Tori if they can kiss. The two kiss and begin to touch each other’s bodies. Without communication, Ali penetrates Tori sexually, assuming Ali is in agreement.
IV. Forced Sexual Intercourse is:
Sexual intercourse or penetration (anal, oral or vaginal), however slight
Sexual intercourse or penetration includes (but is not limited to): penetration (oral, anal or vaginal) with any object or body part, including (but not limited to) fingers, tongue and/or penis, or making someone penetrate another person(s). This includes but is not limited to penetration of a bodily opening or cavity and performing/receiving oral copulation (vaginal, anal or penile). Force should never be used to make someone participate in or submit to sexual activity. Force is not limited to physical violence, and also includes threats, intimidation, abuse of power, coercion and duress, or any combination of those behaviors.
Example of Forced Sexual Intercourse
Kai and Kyle have been kissing in Kai’s room. Kai asks Kyle to leave because he doesn’t want to have sex. Kyle won’t leave Kai’s room and stands by the door, threatening to tell everyone Kai’s secrets about his sexual past unless Kai engages in sexual activity. Kyle then removes Kai’s clothing and penetrates Kai against Kai’s will.
Sexual exploitation occurs when a person(s) takes non-consensual sexual advantage of another, for any purpose. Sexual exploitation can take many forms including those noted below. However, sexual exploitation may go beyond just the behavior listed here. If a person believes that they may have experienced something that could be considered sexual exploitation, they are encouraged to report that conduct.
I. Inducing Intoxication/Incapacitation for the Purpose of Sexual Activity
Providing drugs, alcohol or other substances to a person(s) with or without their knowledge, with the intent to impair their ability to withhold consent or their ability to knowingly consent to sexual contact or intercourse is a violation of this policy. This type of conduct constitutes sexual exploitation regardless of whether sexual contact actually occurred. If sexual contact does occur, it may also be a violation of other sections of this policy, including sexual assault.
Example of Inducing Intoxication/Incapacitation for the Purpose of Sexual Activity
Andre and Kayce are at a party and Andre offers Kayce punch to drink. Andre does not tell Kayce that the punch is spiked with alcohol, and Kayce does not seem to realize how much alcohol is in the drink. Kayce becomes intoxicated but Andre continues to encourage Kayce to drink. Andre intends to engage in sexual contact with Kayce once Kayce has had enough to drink and has told friends that he will “get together” with Kayce “one way or another.”
II. Photographing or Video/Audio Taping of Sexual Activity
Photographing or taping someone (via audio, video or otherwise) involved in sexual contact, or in any state of undress, without their consent constitutes sexual exploitation and is a violation of this policy. The act of taking those images/recordings without consent is one form of sexual exploitation. Even if a person consented to the sexual contact or being in a state of undress, photographing or taping someone without consent goes beyond the scope of that original consent. Remember, consent to one act or behavior does not imply consent to other activities.
The act of sharing images such as photographs or video/audio of someone involved in sexual contact or in a state of undress, without their consent, constitutes an additional act of sexual exploitation that is separate from the act of taking the images/audio. This additional act of sexual exploitation can be committed by anyone in possession of the images, even if that individual was not responsible for the creation of the original images and was not engaged in the recorded sexual contact. Sharing those images or audio can be done by digitally forwarding and/or posting copies of the materials or by simply showing someone else those images without relinquishing possession. If an individual is interested in sharing these types of photographs or video/audio, they must obtain the consent of all persons involved in those images/recordings before showing or disseminating the images or recordings.
If a person consented to the taking of the images/recordings, but now has concerns that they may be shared without their consent, they may contact their Dean’s office and/or the Title IX Coordinator and Director of the OEO, Jill Zellmer (617-627-3298 or jill.zellmer@tufts.edu) to discuss options available to prevent the disclosure of this material.
Examples of Audio and Video Based Sexual Exploitation
III. Voyeurism
Voyeurism is the act of intentionally observing, spying on or listening to a person(s) involved in sexual contact or in any state of undress, without their consent. Voyeurism also occurs when an individual allows others to observe this behavior without the consent of all the person(s) involved.
Examples of Voyeurism
IV. Indecent Exposure
Indecent exposure is exposing one’s intimate parts, such as genitalia, groin, breast and/or buttocks to someone without their consent. This behavior is the deliberate showing of parts of the body and may, but does not necessarily have to, include a sexual act. Engaging in sexual activity in public, witnessed by a non-consenting person(s), is also a form of indecent exposure.
Example of Indecent Exposure
Eli becomes drunk at a work party and drops his pants, exposing his buttocks to co-workers.
Stalking is prohibited under this policy when the conduct involves a Tufts student, staff, faculty and/or other community member regardless of sex or gender.
Under this policy, stalking is defined as persistent, unwanted or unwelcome and repeated course of conduct that would cause a reasonable person to become fearful for the person’s safety or the safety of another, or suffer substantial emotional distress. A “reasonable person” means a reasonable person under similar circumstances and with similar identities to the complainant/ victim/survivor. Stalking includes the concept of “cyber stalking,” a particular form of stalking that may be over an electronic medium such as the internet, social networks, blogs, cell phones, texts or other similar devices. Such modes of contact may be used to pursue or harass someone when it is unsolicited, unwelcome and/or unwanted conduct from the stalker.
Examples of stalking include, but are not limited to, the following unwelcome or unwanted conduct:
Anyone can be stalked, regardless of sex or gender. While a few targets of stalking are selected at random, most individuals who are stalked know their stalker and have usually had some type of interactions or relationship with them. A stalker can be an intimate partner or former partner, classmate, roommate, a teacher, professor, co-worker, or any acquaintance or a stranger. An individual can be stalked for several days or many years. The stalker’s actions also can affect the family, friends and co-workers of the person being stalked.
Example of Stalking
Carlos dated Bryce a couple of times but eventually stopped. Then Bryce began sending Carlos multiple emails a day. Carlos told Bryce he wasn’t interested and to stop contacting him. Carlos also changed his email address but somehow Bryce found his new address and began sending even more emails. Bryce also hacked into Carlos’ computer and is accessing Carlos’s private social media accounts.
Under this policy, relationship violence is intentionally violent and/or controlling behavior by a person who is currently or was previously in a dating, sexual romantic, domestic or other intimate relationship with the complainant/victim/survivor. This conduct is prohibited by Tufts policy regardless of the sex/gender of the individuals involved. Relationship violence can also involve domestic violence committed by a person with whom the complainant/victim/survivor shares a child and/or domicile in common.
Relationship violence is used to gain or maintain power and control over another person. Relationship violence includes actual or threatened physical injury, sexual assault or other sexual violence, economic control and psychological and emotional abuse. Relationship violence includes behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure or wound someone. Relationship violence can occur in all types of romantic, intimate and/or sexual relationships (e.g. those in same sex/gender or different sex/gender relationships). Relationship violence can occur at any stage in a relationship, including after its termination.
Relationship violence can include, but is not limited to:
Examples of Relationship Violence and/or Dating/Domestic Violence
Retaliation is an adverse or negative action taken against an individual for raising good faith concerns about conduct or otherwise reporting behavior that may be prohibited by law or policy. Any member of the University community has the right to file a good faith complaint of sexual misconduct without fear of retaliation. It is unlawful and it is a violation of University policy to retaliate against an individual for filing a complaint of sexual misconduct or for cooperating in a sexual misconduct investigation. Retaliation against anyone who reports an incident of sexual misconduct or who in any way participates in an inquiry or investigation of sexual misconduct is strictly prohibited. The prohibition against retaliation protects an individual who raises a reasonable objection to conduct that individual in good faith to be a violation of law or policy. Any person who retaliates against an individual reporting sexual misconduct, for filing a sexual misconduct complaint or for participating in a sexual misconduct investigation is subject to disciplinary action up to and including expulsion or termination by the University.
Retaliation can include but is not limited to:
Examples of Retaliation
Consent is an affirmative process. It is the responsibility of the person who wants to engage in sexual activity to make sure that they have received consent from any other person(s) involved. If an individual initiating sexual activity is not sure if they have received consent, they have an obligation to seek additional clarification. Failure to do so could violate this policy and lead to disciplinary action. Consent cannot be based on assumptions.
Tufts policy always requires that individuals obtain consent before engaging in sexual activity.
Consent occurs when individuals willingly, unambiguously and knowingly agree to engage in sexual activity in a clear and affirmatively communicated way that is understood by all of the parties involved.
It is important to remember:
Example of Consent
Hanne wants to engage in oral sex with Nika. Hanne asks Nika if it is okay to perform oral sex and Nika says yes.
Consent may not be inferred from silence, passivity or a lack of objection. Individuals who do not physically oppose or verbally refuse sex are not necessarily giving consent. The absence of a negative response, such as silence or a failure to resist does not equal consent. It is the responsibility of the person initiating each stage of sexual activity to make sure that they have received consent at each of those stages from all person(s) engaged in the sexual activity. If a person is not sure, they have an obligation to seek additional information to make sure that they have received consent. The use of alcohol or other substances does not relieve an individual of their obligation to obtain consent before initiating and/or engaging in sexual activity.
Some behaviors and comments that do not indicate affirmative consent include (but are not limited to):
If an individual receives an unclear response, they have an obligation to get additional information before engaging in this sexual activity. Consent must be received for each individual sexual act that an individual wishes to engage in with another person(s). Without knowledge of what is happening, such as a state of incapacity, an individual cannot consent.
Consent can never be obtained by use of force, which includes physical force, violence, threats, intimidation, abuse of power/authority, coercion and/or duress.
Example of an Absence of Consent
Corin and Jaya are consensually kissing in Corin’s bed. Corin gets up, gets a condom and puts it on without saying anything to Jaya. Jaya says nothing. Corin then undresses and penetrates Jaya.
1. Someone who is incapacitated:
A person can be incapacitated through the use of drugs, alcohol or any other intoxicating substance, or when they are unconscious, asleep or otherwise unaware the sexual activity is occurring. It is a violation of the Sexual Misconduct Policy to engage in sexual activity with someone an individual knew or should have known was incapacitated.
2. Someone under the legal age of consent:
The legal age of consent in the Commonwealth of Massachusetts is sixteen (16). Sexual activity with a person who is under the age of consent (16) is an automatic or per se violation of the Sexual Misconduct Policy, regardless of whether or not the person under the age of 16 was a willing participant in the conduct.
3. Someone who is mentally disabled or cognitively impaired:
Certain mental disabilities or cognitive impairments can cause a person to be unable to knowingly consent to sexual activity. It is a violation of the Sexual Misconduct Policy to engage in sexual activity with a person whose mental disability or cognitive impairment renders them incapable of giving consent and the disability/impairment is known or should have been known to the non-disabled sexual partner. Under these circumstances, the conduct is non-consensual regardless of whether or not the person appeared to be a willing participant.
Engaging in sexual activity while under the influence of alcohol or drugs can impair an individual’s ability to make sure they have received consent. A person who has consumed alcohol and/or drugs still has a responsibility to obtain ongoing consent for any sexual activity with another person(s).
The use of alcohol and/or other drugs by the person initiating sexual activity will never be an excuse for failing to obtain consent. A complainant/victim/survivor that was using alcohol and/or drugs is never responsible for being subjected to sexual misconduct.
Witnesses and complainants/victims/survivors should be assured that the focus in matters of sexual misconduct is always on the reported behavior, not on whether a complainant/victim/survivor or witness was using alcohol or drugs at the time. To the extent allowed by applicable laws and University policy, Tufts will exercise leniency regarding secondary conduct violations (e.g. underage drinking/drug use that does not endanger the safety of other individuals) and these issues will not be subjected to adjudication against a complainant/victim/survivor as part of the Sexual Misconduct Adjudication Process (SMAP).
As discussed in more detail below (see Incapacity), once a person has reached the point of incapacitation by alcohol or drugs, they can no longer consent to sexual activity under this policy. Because it can be difficult to know when someone has passed from the state of intoxication to a point of incapacitation, if you have any doubt about a person’s ability to consent, you should not engage in sexual contact with them.
Incapacity is a state in which someone cannot make a decision because they lack the ability to fully understand what is happening and therefore cannot consent even if they appear to be a willing participant. An individual who is intoxicated may be able to consent to sexual activity. However, when an individual passes from intoxication to a state of incapacitation, they no longer have the ability to give consent under this policy. When incapacitated, an individual moves from being simply drunk and/or under the influence of drugs and/or alcohol and becomes physically and/or mentally debilitated due to their drug or alcohol consumption. Individuals can also be incapacitated because they are unconscious or asleep.
It is important to remember that an individual’s response to alcohol, medication and other substances can vary over time and circumstances. It is often difficult to tell when someone has moved from being intoxicated and become incapacitated. Therefore, engaging in sexual activity while under the influence of alcohol and/or other substances can impair an individual’s ability to assess whether someone has moved from intoxication to incapacitation. If there is any question or doubt about whether an individual has become incapacitated, it is best not to engage in sexual activity with them.
Some indications of incapacity include (but are not limited to):
These signs alone do not necessarily indicate incapacitation. An individual can be incapacitated without displaying any of these signs. For instance, in some circumstances, a person in a blackout state can appear to be conscious when they are actually incapacitated and unable to consent.
Engaging in sexual activity with someone a person knew or should have known was incapacitated is a violation of this policy regardless of whether the person appeared to be a willing participant. It is the responsibility of the individual who wants to engage in sexual activity to make sure that the other individual(s) involved are able to consent. Failure to do so could lead to disciplinary and/or legal action.
Examples of an Absence of Consent Due to Incapacity
The use of force to cause someone to engage in sexual activity is by definition, non-consensual contact. Force is not limited to physical violence, but also includes threats, intimidation, abuse of power, coercion, duress or any combination of these behaviors. The use of force is never acceptable in any circumstance and could also violate other university codes of conduct. The presence of force negates any indications of consent and is automatically or per se sexual misconduct.
Physical force is the use of power, violence or strength upon another person’s body. An individual’s use of physical force or, violence, or threat of physical force or violence to make another person participate in or perform a sexual activity they might not have otherwise agreed to, or did not want to engage in, is a violation of this Sexual Misconduct Policy.
Physical force and violence includes (but is not limited to):
Example of an Absence of Consent Due to the Use of Force
Jared and Maya return to his room after a party. They consensually begin kissing. Jared says he wants to have sex and Maya says nothing. When Maya tries to get off the bed, Jared restrains Maya with his body weight and penetrates Maya.
A threat often occurs when someone says or implies that there will be negative consequences from failing to acquiesce to or comply with sexual activity. It is a violation of this policy if an individual uses threats to make another person participate in or perform a sexual activity that they might not have agreed to engage otherwise.
This behavior can include (but is not limited to) threats to:
Threats can be implied, veiled and/or non-verbal.
Example of an Absence of Consent Due to Use of Threat
Ian confides in Sean that he has recently started self-identifying as queer, but most people do not know. Sean and Ian start kissing. Sean wants Ian to perform oral sex, but Ian says he is not interested in that. Sean threatens to “out” Ian on Facebook if he does not do it. Ian submits to Sean sexually because he is afraid of the threat of being “outed.”
Intimidation or abuse of power/authority occurs when individuals use their real or perceived authority to influence other people to acquiesce or submit to sexual activity. Intimidation happens through a real or perceived display of superior wealth, status or power that someone uses to make another do what they want them to do. Real or perceived power can come from things such as class, social status, a teaching position, a mentorship, membership in a team or group and/or an individual’s status within a team or group. It implies a power imbalance between the parties. When an individual uses this power/authority/control to influence another to participate in or perform a sexual activity that they might not have agreed to engage in otherwise, they have used force.
Tufts has a Consensual Relationship Policy which prohibits relationships between those in authority and their subordinates, including teachers/professors and their students, because such relationships can create an automatic or per se power imbalance. Under certain circumstances a violation of the Sexual Misconduct Policy may also apply.
Example of an Absence of Consent Due to Intimidation or Abuse of Power/Authority
Rian is a student who is working on his thesis with a faculty advisor, Falon. Rian is struggling and comes to Falon for academic support. Falon suggests to Rian that they should get together off-campus to discuss Rian’s work. When Rian hesitates, Falon puts an arm around Rian and implies that the only way to save Rian’s thesis is for Rian to agree to engage in sexual conduct with Falon. Rian is afraid and submits to sexual conduct with Falon.
Under this policy, coercion and duress occur when continual pressure is used to compel someone to engage in sexual activity. The use of this pressure violates the free will of another. Coercion and/or duress can be bullying an individual into sexual activity that they did not and/or would not have wanted to participate in but for the coercion and/or duress.
Coercion or duress can also be physical or verbal and often involves persistently badgering someone. Coercion can be a process that happens over a period of time. In assessing whether coercion was used, the frequency, duration and intensity of the pressure applied will be taken into consideration.
Example of an Absence of Consent Due to Coercion or Duress
Erin recently lost a parent and has had a hard time. Dale comes over to watch a movie with Erin. When Erin starts crying, Dale hugs Erin. Erin and Dale start kissing and touching one another. Erin wants to stop but Dale says, “You’ve made me so hot, how can you stop now?” When Erin tells Dale to stop because Erin wants to be alone, Dale asks what kind of a friend Erin is to leave like this when Dale came over to help Erin. Erin is confused and emotionally vulnerable. Dale pressures Erin throughout the movie reminding Erin that Dale can end Erin’s social life and intimidatingly implies that Erin owes Dale sex for Dale’s support. Erin concedes to Dale’s coercion and has sex with Dale.