Definitions


The term consent is not defined in law by the State of Michigan.  However, State of Michigan courts through jury instructions have identified the term consent as: “…a person consents to a sexual act by agreeing to it freely and willingly, without being forced or coerced.”

 

The University Sexual Misconduct Policy definition of consent: Affirmative Consent is informed (knowing); voluntary (freely given); and, active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity and the consenting person is not incapacitated as defined by this policy.

Affirmative Consent cannot be obtained by Force. Force includes the use of physical violence, threats, intimidation, and/or coercion. Physical violence means that a person is exerting control over another person through the use of physical force. Examples of physical violence include but are not limited to hitting, punching, slapping, kicking, restraining, strangling, and brandishing or using any weapon. Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity.

Examples include threats to harm a person physically, to reveal private information to harm a person’s reputation, or to cause a person academic or economic harm. Intimidation is an implied threat that menaces or causes reasonable fear in another person. A person’s size, alone, does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g., blocking access to an exit). Coercion is the use of an unreasonable amount of pressure to gain sexual access. Coercion is more than an effort to persuade, entice, or attract another person to have sex. When a person makes clear a decision not to participate in a particular form of Sexual Contact or Sexual Intercourse, a decision to stop, or a decision not to go beyond a certain sexual interaction, continued pressure can be coercive. In evaluating whether coercion was used, the University will consider the frequency of the application of the pressure, the intensity of the pressure, the degree of isolation of the person being pressured, and the duration of the pressure.

Affirmative Consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated. Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity. Incapacitation is such that it renders the person incapable of self-care and protection. Incapacitation could be the result of alcohol or other drugs or due to a temporary or permanent physical or mental health condition.

Affirmative Consent to one form of sexual activity does not, by itself, constitute Affirmative Consent to another form of sexual activity.

This definition is used for the purposes of Title IX investigations and outcome determinations.

Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the reporting party’s statement and with the consideration of the length of the relationship, the type of relationship and the frequency of interaction between the persons involved in the relationship.

  • Dating violence includes, but is not limited to sexual or physical abuse or the threat of such abuse.
  • Dating violence does not include acts covered under the definition of Domestic Violence.

 

State of Michigan definition: “Dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional involvement. This term does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context. (Michigan Code of Criminal Procedure, Act 175 of 1972, 768.27b )

 

The University Sexual Misconduct Policy definition of dating violence: Dating Violence is any act of violence committed by a person who is, or has been, in a social relationship of a romantic or intimate nature with the victim that does not fall within the definition of “domestic violence.” Dating violence includes, but is not limited to, sexual or physical abuse or assault or the threat of such abuse or assault. For the purposes of determining Intimate Partner Violence, whether the relationship is of a romantic or intimate nature is determined by a variety of factors, including: the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. A relationship of a romantic or intimate nature means a relationship that is characterized by the expectation of affection or sexual involvement between the parties. An incident of dating violence can consist of a single act of violence or a pattern of violent acts that includes, but is not limited to, sexual or physical abuse, or the threat to engage in such abuse.

Felony or misdemeanor crimes of violence committed:

  • By a current or former spouse or intimate partner of the victim.
  • By a person with whom the victim shares a child in common.
  • By a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner.
  • By a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
  • By any other person against an adult or youth victim who is protected from that person’s acts under the  domestic or family violence laws of the jurisdiction in which the crime occurred.

 

State of Michigan definition:

“Domestic violence” or “offense involving domestic violence” means an occurrence of 1 or more of the following acts by a person that is not an act of self-defense:

  • Causing or attempting to cause physical or mental harm to a family or household member
  • Placing a family or household member in fear of physical or mental harm
  • Causing or attempting to cause a family or household member to engage in involuntary sexual activity by force, threat of force, or duress
  • Engaging in activity toward a family or household member that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

 “Family or household member” means any of the following:

  • A spouse or former spouse
  • An individual with whom the person resides or has resided.
  • An individual with whom the person has or has had a child in common.
  • An individual with whom the person has or has had a dating relationship.  As used in this paragraph, “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional involvement.  This term does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context.
    (Michigan Code of Criminal Procedure, Act 175 of 1972, 768.27b )

 

The University Sexual Misconduct Policy definition of domestic violence:  Domestic Violence is any act of violence committed by any of the following individuals: a current or former spouse or intimate partner of the victim; person with whom the victim shares a child in common; person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner; and/or a resident or former resident of the victim’s household in the event such household residents have a current or prior intimate relationship. An incident of domestic violence can consist of a single act of violence or pattern of violent acts that includes, but is not limited to, sexual or physical abuse, or the threat to engage in such abuse.

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.

 

State of Michigan Definition: Rape is incorporated within the State of Michigan definition for sexual assault. 

 

The University Sexual Misconduct Policy definition of rape: Rape is sexual penetration, however slight, of another person without affirmative consent. Penetration can be of the mouth, vagina, or anus, and can be with a penis, tongue, finger, or foreign object.

An offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s Uniform Crime Reporting (UCR) program. Per the National Incident-Based Reporting System User Manual from the FBI UCR Program, A sex offense is “any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.”

  • 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 their age or because of their temporary or permanent mental capacity.
  • Incest  - Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
  • Statutory Rape - Sexual intercourse with a person who is under the statutory age of consent.

 

The State of Michigan identifies sexual assault as:  Criminal Sexual Conduct (CSC).  There are four degrees of CSC: First and Third Degrees require sexual penetration; Second and Fourth Degrees require sexual contact.

Sexual contact” includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for revenge, to inflict humiliation or out of anger.

Intimate parts” includes the primary genital area, groin, inner thigh, buttock, or breast of a human being.

Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required. (MI Penal Code, Act 328 of 1931, 750.20a)

 

The University Sexual Misconduct Policy definition of sexual assault:  Sexual Assault is an offense that meets the definition of rape, fondling, incest, or statutory rape, as defined in the Federal Bureau of Investigation’s (FBI) Uniform Crime Reporting (UCR) program, as having or attempting to have sexual intercourse or sexual contact with another individual by force or threat of force; without affirmative consent; or where the person is incapacitated.

Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

  • Fear for their safety or the safety of others; or
  • Suffer substantial emotional distress.

For purposes of this definition-

  • Course of Conduct means two or more acts, including but not limited to, acts in which the stalker directly, indirectly or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
  • Reasonable Person means a reasonable person under similar circumstances and with similar identities to the victim.
  • Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

 

State of Michigan definition:  “Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

  • Course of conduct” means a pattern of conduct composed of a series of two or more separate non-continuous acts evidencing a continuity of purpose.
  • Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.
  • Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress.  Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.
  • Unconsented contact” means any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued.  (Examples of unconsented contact are included in the Act)
    (Michigan Penal Code, Act 328 of 1931, Sec 750.411h )

 

The University Sexual Misconduct Policy definition of stalking:  Stalking occurs when a person engages in a course of conduct directed at a specific person under circumstances that would cause a reasonable person to fear bodily injury or to experience substantial emotional distress. Course of conduct means two or more acts, including but not limited to acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about another person, or interferes with another person’s property. Reasonable person means a reasonable person under similar circumstances.  Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.



Page last modified August 25, 2016