WHAT IS SEXUAL HARASSMENT?
The Department of Education's Title IX Final Rule, published in May 2020, updates the legal definition of sexual harassment that applies on university campuses nationwide.
The Department of Education Title IX Final Rule defines sexual harassment broadly to include any of three types of misconduct on the basis of sex, all of which jeopardize the equal access to education that Title IX is designed to protect:
Any instance of "Quid Pro Quo" harassment by a school's employee (Quid pro quo sexual harassment occurs when an employee [faculty or staff member] conditions the provision of an aid, benefit, or service of the University on the complainant’s participation in unwelcome sexual conduct);
Any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access; or
Any instance of sexual assault (defined below), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).
Sexual Assault means any sexual act directed against a Complainant[1] without the Complainant’s Consent. Sexual Assault includes fondling, incest, rape, sexual assault with an object, sodomy, and statutory rape.[2]
BYU applies the following definitions[3] to terms used in this definition:
| Fondling means the touching of the private body parts of another person for the purpose of sexual gratification without the Consent of the victim.[4] |
Incest means nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.[7]
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Rape means 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.[8] Rape includes sodomy and sexual assault with an object.
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| Sexual act includes, but is not limited to, fondling, incest, rape, sexual assault with an object, sodomy, statutory rape,[11] and any other criminal act that would be classified as a sex offense (offenses against chastity, common decency, morals, and the like) under applicable state law, except prostitution and commercialized vice (i.e., the unlawful promotion of or participation in sexual activities for profit).[12] |
Statutory Rape means nonforcible sexual intercourse with a person who is under the statutory age of consent.[13]
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[1] Capitalized terms are defined in the BYU Sexual Harassment Policy. Italicized terms are defined on this page.
[2] See National Incident-Based Reporting System, NIBRS Definitions (“NIBRS”), pp. 5-6, “Sex Offenses, Forcible,” and “Sex Offenses, Nonforcible.”
[3] The definitions provided herein are based on definitions found in the uniform crime reporting systems of the Federal Bureau of Investigation (the Summary Reporting System (SRS) and the National Incident-Based Reporting System (NIBRS)), as required under Title IX regulations enacted by the U.S. Department of Education, and on the Utah Criminal Code. See 34 CFR 106.3)(a) (defining “Sexual harassment” under Title IX to include “‘Sexual assault’ as defined in 20 U.S.C. 1092(f)(6)(A)(v)”); 20 U.S.C. 1092(f)(6)(A)(v) (defining “sexual assault” under the Clery Act as “an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation”); 85 Fed.Reg. 30026, 30176, fn.791 (May 19, 2020) (identifying two crime reporting systems comprising the FBI UCR: The Summary Reporting System (SRS) and the National Incident-Based Reporting System (NIBRS)); Office for Civil Rights Blog – 20201007, “The Definition of Sexual Harassment under the Title IX Rule Provides Clarity to Schools” (Oct. 7, 2020) (indicating that “the Title IX Rule does not require schools to choose between the SRS and NIBRS.)
[4] See NIBRS, pp. 5-6, “Forcible Fondling.”
[5] See Utah Code § 76-5-407(3).
[6] See Utah Code § 76-5-404(1).
[7] See NIBRS, p.6, “Incest.” Marriage laws vary from one state or national jurisdiction to another. Under Utah law, sexual intercourse is incest if the actor knows the person to be a "related person," which means a person related to the actor as an ancestor, descendant, brother, sister, uncle, aunt, nephew, niece, or first cousin, and includes:
- (i) blood relationships of the whole or half blood without regard to legitimacy;
- (ii) the relationship of parent and child by adoption; and
- (iii) the relationship of stepparent and stepchild while the marriage creating the relationship of a stepparent and stepchild exists. See Utah Code § 76-7-102(1)(b).
[8] See Summary Reporting System (“SRS”), p.174, Glossary, “Rape.”
[9] See NIBRS, p.5, “Forcible Sodomy.”
[10] See NIBRS, p.5, “Sexual Assault With An Object.”
[11] See NIBRS, pp. 5-6, “Sex Offenses, Forcible,” and “Sex Offenses, Nonforcible.”
[12] See SRS, pp. 67 (Ch. III “RAPE”), 163 (Ch. V, Sec. 17, “Sex Offenses (Except Rape and Prostitution and Commercialized Vice)”), and 174, Glossary. Under the Utah Criminal Code.
[13] See NIBRS, p.6, “Statutory Rape.” Statutory consent laws vary from one state or national jurisdiction to another. The Utah consent statute states that “a sexual act is without the consent of the victim if
- (a) the victim is younger than 14 years of age;
- (b) the victim is younger than 18 years of age and at the time of the offense the actor was the victim's parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust in relation to the victim as defined in [Utah Code] Section 76-5-404.1; or
- (c) the victim is 14 years of age or older, but younger than 18 years of age, and the actor is more than three years older than the victim and entices or coerces the victim to submit or participate.” Utah Code § 76-5-406(2)(i)-(k).