Violations of the Indiana University Sexual Misconduct Policy

October 04, 2022

By Keffer Hirschauer LLP

Violations of the Indiana University Sexual Misconduct Policy 

The Indiana University Sexual Misconduct policy, which falls under the authority of their Title IX office, outlines both the prohibited conduct by members of Indiana University, as well as procedures for investigation and sanctioning. At first glance, the violations and the ensuing procedures can seem simple and straightforward. However, that apparent simplicity is precisely why Title IX investigations can be so damaging to the accused. In Title IX cases, defendants are typically not granted the same rights as they would be granted in a court of law; including the right to retain counsel, review evidence, and question witnesses. Therefore, consulting with an experienced, skilled Indiana Title IX defense attorney is key to understanding the severity of the allegations made against you, and ultimately, mounting an effective defense.  

At Keffer Hirschauer LLP, we have attorneys who are trained Title IX investigators, certified by the Association of Title IX Administrators. We combine our skills as aggressive Indianapolis criminal defense attorneys with in-depth knowledge of Indiana University Title IX procedures and other legislation that affects Title IX cases. Our clear understanding of Title IX investigations provides much-needed guidance and a forceful defense for both students and employees who face Title IX allegations. To begin working on your defense, call Keffer Hirschauer LLP at (317) 751-7186 or use our online contact form to set up a free Indiana University Title IX consultation. 

Defining Indiana University Sexual Misconduct Policy Violations 

The Indiana University Sexual Misconduct Policy explicitly prohibits discrimination based on sex or gender. This policy includes sex and gender-based discrimination; sexual harassment; sexual violence (including rape and sexual assault); dating and domestic violence; sexual exploitation and stalking. This policy applies to all members of the Indiana University community, including  

  • All students 
  • All academic appointees 
  • Full-time staff 
  • Part-time (hourly) employees 
  • Anyone on Indiana University property, including employees of third-party vendors or contractors, volunteers, visitors, and others that are involved in an off-campus Indiana University program or activity 

Indiana University Sexual Misconduct Policy: Consent and Incapacitation 

Prior to diving into the specific actions that constitute a violation of the Indiana University Sexual Misconduct Policy, it is important to fully understand how the university interprets two important words: consent and incapacitated. Although these words may seem straightforward, the university explicitly defines them in the policy and will use these definitions when making determinations in a Title IX proceeding.  

Consent: agreement or permission expressed through affirmative, voluntary words or actions that are mutually understandable to all parties involved, to engage in a specific sexual act at a specific time; Furthermore:  

  • Consent can be withdrawn at any time, as long as it is clearly communicated 
  • Consent cannot be coerced or compelled by force, threat, deception or intimidation 
  • Consent cannot be given by someone who is incapacitated, as defined below 
  • Consent cannot be assumed based on silence, the absence of “no” or “stop”, the existence of a prior or current relationship, or prior sexual activity 

Incapacitated: refers to a person is incapable of consent if they are unable to understand the facts, nature, extent, or implications of the situation due to drugs, alcohol, a mental disability, being asleep or unconscious, or based on their age (pursuant to Indiana law). Consent does not exist when the individual initiating sexual activity knew or should have known of the other person’s incapacitation. 

Sexual Harassment 

Indiana University’s sexual misconduct policy states that sexual harassment, for the purpose of the Title IX complaint resolution procedure, is conduct that is sexual in nature that satisfies one or more of the following:  

  • “An employee of the university conditioning the provision of aid, benefit, or service of the university on an individual’s participation in unwelcome sexual conduct; or  
  • Unwelcome conduct is determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” 

Furthermore, the school’s sexual misconduct policy states that sexual harassment includes sexual assault, dating violence, domestic violence, and stalking.  

Indiana University will base its evaluation of the severity, pervasiveness, and objective offensiveness of a sexual harassment complaint on the totality of the circumstances “from the perspective of a reasonable person in the same or similar circumstances as the complainant, including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.”  

Sexual Assault 

Indiana University’s sexual misconduct policy states that sexual assault, for the purpose of the Title IX complaint resolution procedure, is any forcible sexual act that is directed without consent against another person. This also includes situations where the complainant is not able to provide consent. More specifically, the university’s sexual misconduct policy classifies the following offenses as sexual assault:   

  • Forcible Rape: “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 Complainant. 
  • Forcible Sodomy: “Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against the person’s will (non-consensually) in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. 
  • Sexual Assault with an Object: “To use an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will or not forcibly or against the person’s will (non-consensually) in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. 
  • Forcible Fondling: “The touching of the private body parts of another person (buttocks, groin, breasts) for the purpose of sexual gratification, forcibly and/or against that person’s will (non-consensually) or not forcibly or against the person’s will in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. 

In addition to the offenses listed above, the university also classifies two non-forcible sex offenses as sexual assault: incest, as defined by Indiana Code 35-46-1-3, and statutory rape, as defined by Indiana Code 35-42-4-9. 

Sexual Exploitation 

Indiana University policy states that sexual exploitation, for the purpose of Title IX complaint resolution procedure, is any conduct that goes beyond the bounds of consensual sexual activity, with or without the knowledge of the other individual for any purpose, whether it’s personal benefit, financial gain, sexual gratification, or other non-legitimate purposes. Some examples of sexual exploitation include:  

  

  • Photographing, streaming (audio or video), or transmitting intimate or sexual sounds, images, or utterances without the explicit consent of all parties involved 
  • Engaging in any form of voyeurism (e.g., “peeping”) 
  • Allowing other people to view sexual acts (in-person or via a video camera or other recording device) without the explicit consent of all parties involved 
  • Compelling another person to touch their own or another person’s (third-party) intimate parts without consent 
  • Promoting the prostitution of another person  
  • Knowingly exposing another person to a sexually transmitted disease (STD) or virus without that individual’s knowledge 
  • Using deception regarding the use of contraceptives 
  • Inducing incapacitation (e.g. “spiking a drink” or “giving a roofie”) for the purpose of making another person vulnerable to non-consensual sexual activity 

Dating Violence 

Dating violence, per the university’s sexual misconduct policy, relates to any violence that is committed by a person who is or has been at some point in a romantic or intimate relationship with the complainant. It includes, but is not limited to, sexual or physical abuse or the threat of sexual or physical abuse. For the purpose of the Title IX complaint resolution procedure, the existence of such a relationship will be determined based on the statement from the complainant and with consideration of the relationship’s length and type, as well as the frequency of interaction between the two parties involved in the relationship.  

Domestic Violence 

Indiana University’s sexual misconduct policy defines domestic violence, for the purpose of the Title IX complaint resolution procedure, as an act of violence that would constitute a felony or misdemeanor crime of violence under Indiana law, committed by:  

  • A current or former spouse or intimate partner 
  • A person with whom the complainant shares a child in common 
  • A person who is cohabitating with, or has cohabitated with, the complainant as a spouse or intimate partner 
  • A person similarly situated to a spouse of the complainant under the domestic or family violence laws of Indiana 
  • Any other person against an adult or youth complainant who is protected from that person’s acts under the domestic or family violence laws of Indiana 

Stalking 

For the Title IX complaint resolution procedure, IU’s sexual misconduct policy defines stalking as “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.”  

However, the sexual misconduct policy goes further when defining stalking regarding the university’s complainant resolution procedure. It states that stalking involves “repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that causes the victim to feel terrorized, frightened, intimidated or threatened. The term does not include statutorily or constitutionally protected activity.”  

Furthermore, it states that to qualify as stalking the conduct would need to take place two or more times, although conduct may be directly or indirectly from the respondent, or through third parties.  

Facing Allegations of Sexual Misconduct? Call an Indiana Title IX Defense Lawyer Today.  

If you’re facing allegations of a violation of the Indiana University Sexual Misconduct policy, you will need experienced Indiana Title IX defense attorneys on your side. The attorneys at Keffer Hirschauer LLP are well-qualified to successfully represent Indiana college students, employees, and others accused of Title IX violations. Our team works diligently to protect the futures, degrees, and careers of the accused by fighting Title IX allegations and related penalties, such as suspension, expulsion, or termination. But you’ll need to act quickly. Call Keffer Hirschauer LLP today at (317) 751-7186 or use our online contact form to set up a free Indiana University Title IX consultation. 

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