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Sexual Assault and Misconduct

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Sexual Assault

Introduction & Guiding Philosophy

The University of Hawaiʻi at Hilo (UH Hilo) does not condone or tolerate acts of sexual misconduct perpetrated by or against members of its student, staff and faculty community. As an institution of higher education, UH Hilo is committed to ensuring that all students, regardless of their background or identity, have access to a quality learning experience and the opportunity to pursue their academic goals in a safe, supportive learning environment. Further, all forms of sexual misconduct, including rape and sexual assault, interferes with students’ abilities to be active, engaged learners. As such, the University is actively committed to reducing and eradicating the incidence of sexual violence and ameliorating the root causes that lead to sexual violence, as well as providing appropriate support to victims and survivors when an act of sexual violence does occur. This policy is a nondiscrimination policy and applies to all students regardless of sexual orientation or gender identity as well as to third parties. UH Hilo’s Student Sexual Misconduct Policy complies with the complex and interrelated requirements of the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, as amended (“Clery Act”); the Violence Against Women Act, as amended (“VAWA”); Title IX of the Education Amendments of 1972 (“Title IX”); Title VII of the Civil Rights Act of 1964, as amended (“Title VII”); Hawaiʻi Revised Statutes (“HRS”) Title 21, Chapter 378; and other applicable laws and state and federal regulations. Please refer to the University of Hawaiʻi System Executive Policy E1.204 “Sexual Assault Policy and Procedural Guidelines.”

Definitions

The scope of “sexual misconduct” covered by this policy includes rape, acquaintance rape, and other sexual acts directed against another person, forcibly and/or against that person’s will; or when the individual is incapable of giving consent because of her/his youth or because of her/his temporary or permanent mental or physical incapacity (including incapacity due to drugs or alcohol). Sexual assault does not require the use of physical force and can be the result of a threat, expressed or implied, that places a person in fear of bodily injury.

Further sexual discrimination and sexual misconduct definitions include:

Consent

Consent in relationship to sexual activity is defined in accordance with its plain and common meaning. With respect to sexual activity, “consent” means words or actions that show a knowing and voluntary agreement to engage in mutually agreed sexual activity (including pictures/video). Mere assent (an affirmative statement or action) does not constitute consent if it is given by a person who is unable to make a reasonable judgment concerning the nature or harmfulness of the activity because of her or his incapacitating intoxication, unconsciousness, youth, language, intellectual or other disability, or other incapacity; or if the assent is the product of threat, coercion, or fraud. Past consent does not imply future consent; silence or an absence of resistance does not imply consent. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another. Consent can be withdrawn at any time. The term “consent” with respect to sexual activity is not specifically defined by Hawaiʻi Revised Statutes.

Dating Violence

VAWA definition of “dating violence” includes, but is not limited to, sexual or physical abuse or the threat of such abuse committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; and where the existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship; the type of relationship; and the frequency of interaction between the persons involved in the relationship. (For the purpose of Clery reporting, dating violence does not include acts covered under the definition of domestic violence.)

Domestic Violence

VAWA defines “domestic violence” as a felony or misdemeanor crime of violence committed by: a current or former spouse or intimate partner of the victim, a person with whom the victim shares a child in common, a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, a person similarly situated to a spouse of the victim under the domestic or family violence laws of the local jurisdiction. Hawaiʻi law on “domestic abuse” includes persons who have or have had a dating relationship and current and former roommates, children, and persons related by consanguinity.

Indecent Exposure

Under Hawaiʻi law, “indecent exposure” involves a person intentionally exposing their genitals to another person under circumstances in which the conduct is likely to cause affront.

Retaliation

Retaliation is defined as adverse actions taken against a person because of their participation in the following types of protected activities: seeking advice or assistance about a discrimination concern or possible incident of sexual violence; opposing or filing an informal or formal complaint against conduct reasonably believed to constitute discrimination or sexual violence; or testifying, assisting, or participating in an investigation or other proceeding related to a complaint of discrimination or sexual violence. Adverse actions are actions that would dissuade a reasonable person from making or supporting a complaint of discrimination, sexual harassment, sexual assault, domestic violence, dating violence, or stalking.

2 42 USC § 13925(a) (10) [40002(a) of VAWA] and 34 CFR Part 668 § 668.46

See Appendix A - HRS § 586-1 and HRS § 707-734.

Sexual Assault

Under Hawaiʻi sexual offense laws, a person commits sexual assault, including but not limited to, when the person knowingly or recklessly subjects another person to an act of nonconsensual sexual penetration or sexual contact. This includes knowingly engaging in the behavior with a person who is unable to give consent due to incapacitation, intellectual disability, and age. Sexual assault also includes statutory rape, indecent exposure, and voyeurism or trespassing on property to engage in surreptitious surveillance for sexual gratification. Sexual assault can be committed by men or women and can occur between persons of the same or different sex.

Hawaiʻi law categorizes sexual offenses as first, second, third, or fourth degree sexual assault, which takes into account factors such as severity, context, age of the victim, capacity for giving consent, and whether the acts involved forcible compulsion, lack of consent, threats of property damage, etc.

For the purpose of this policy “incapacitation” means the person’s decision-making ability is impaired such that the person lacks the ability to make a rational, reasonable decision due to an intellectual or other disability, sleep, involuntary physical restraint, alcohol, drugs, or so-called “date-rape” drugs.

Sexual Harassment

Sexual harassment is a form of sex discrimination that is strictly prohibited by this policy, as well as by UH Executive Policy EP 1.202 which prohibits discrimination and harassment based on protected categories, including sex, gender identity or expression, and sexual orientation.

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: submission to or rejection of the conduct is either an explicit or implicit term or condition of an individual’s employment, education, or participation in a University program, activity, or service; submission to or rejection of the conduct by an individual is used as a basis in decisions affecting that individual’s employment, education, or participation in a University program, activity, or service; or when such conduct is unwelcome to the person to whom it is directed or to others directly aware of it, and when such conduct is: severe or pervasive; and has the purpose or effect of either: unreasonably interfering with the employee’s work performance or student’s academic performance, or creating an intimidating, hostile, or offensive work or educational environment.

The conduct must be both objectively and subjectively perceived as offensive. That is, the reporting party must view the conduct as offensive, and a reasonable person with the same fundamental characteristics as the reporting party (e.g., age, race, gender) must also view the conduct as offensive.

Sexual Misconduct

For the purpose of this policy, sexual misconduct is a broad term that encompasses sexual harassment, sexual assault, and may include domestic violence, dating violence, indecent exposure and stalking. Sexual misconduct can occur between strangers or acquaintances, including people involved in an intimate or sexual relationship. Sexual misconduct can be committed by men or women, and can occur between people of the same or different sex. Sexual misconduct may be a form of sex discrimination prohibited by federal and state discrimination laws, including Title IX, Title VII, and Chapter 378 of the HRS. In addition, some forms of sexual misconduct violate the criminal laws of the State of Hawaiʻi.

Sexual Violence

The U.S. Department of Education Office for Civil Rights (OCR) considers sexual violence to be a form of sex discrimination and a violation of Title IX of the Education Amendments of 1972. The term “sexual violence” refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the student from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual violence can be carried out by school employees, other students, or third parties. All such acts of sexual violence are forms of sex discrimination prohibited by Title IX.

Stalking

VAWA defines “stalking” as engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress. “Course of conduct” means two or more acts, including, but not limited to, unwelcome acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means (including cyberstalking) 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. (Note: Hawaiʻi law requires proof of intent; however, this policy includes hostile environment harassment.)

“Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

Applicability

This policy prohibits sexual harassment, sexual assault, domestic violence, dating violence, and stalking in any University workplace, educational program, activity, or service, which includes all academic, extracurricular, student housing, athletics, and other programs. The policy applies OCR Questions and Answers on Title IX and Sexual Violence, 4/29/2014, VAWA and 34 CFR Part 668 § 668.46, See Appendix A - HRS §711-1106.5 to University community members, volunteers, and visitors to campus. This includes guests, patrons, independent contractors, or clients of the University. This policy applies to sexual misconduct on University premises; at University sponsored activities; that has an adverse impact on the education or employment of a member of the University community; or otherwise threatens the health or safety of a member of the University community.

A student or employee who reports to the University that they believe they have experienced sexual harassment, sexual assault, domestic violence, dating violence, or stalking, whether the offense occurred on- or off-campus, shall be offered appropriate assistance and be provided with a written explanation of the student or employee's rights and options under campus procedures.

Prevention Efforts

Through a variety of curricular and co-curricular programs, UH Hilo strives to provide individuals with the information, skills and values necessary to help reduce the risk of sexual violence and prevent it from occurring in the first place. We believe that both men and women should be active partners in dialogue about this issue, and that the responsibility for providing sexual violence prevention education is distributed across all campus constituents and administrative areas. Because of their special and salient relationship with students, faculty members serve a particularly important role in helping to educate students about sexual misconduct. Attention is given to capitalizing on the unique culture of Hawaiʻi to ensure educational efforts and prevention strategies are culturally relevant. Specific initiatives to educate the campus community may include, but are not limited to, the following:

  • The Office of the Vice Chancellor for Student Affairs provides overall coordination for curricular and co-curricular programs targeted to new first-year students such as UNIV 101 (the freshmen seminar) and new student orientation, that address prevention education, campus policies, risk reduction strategies, and available campus resources;
  • Student Health & Wellness Programs implements a mandatory training for new students and a wide array of ongoing primary prevention programming throughout the academic year, addressing rape, sexual assault, domestic violence, stalking, cyber-harassment, and other forms of interpersonal violence, including the student-driven initiative, MEN OF STRENGTH;
  • The residential life program in University Housing provides one-on-one consultations to on- campus residents about personal safety concerns through its peer and professional staff team, as well as sponsors educational programs throughout the academic year about healthy relationships and sexual assault prevention and intervention;
  • The Campus Security Department is available to arrange workshops and seminars throughout the academic year for students, staff and faculty about personal safety and crime prevention;
  • The Women’s Center and the LGBTQ+ Center sponsor events and activities to increase campus awareness about issues related to violence against women, as well as facilitate student, faculty and staff partnerships to promote gender and gender identity equity, and, to ameliorate other root causes of violence and bias.

Intervention Efforts

UH Hilo is committed to ensuring that students who are the victims/survivors of sexual misconduct are treated in a respectful, supportive and caring manner. When sexual misconduct is reported to the University, we are committed to ensuring that:

  • A victim’s/survivor’s safety, privacy and confidentiality is preserved to the greatest extent possible;
  • S/he is able to access advocacy, medical, mental health and other support services both on- and/or off-campus in a timely manner with minimal hardship;
  • Reasonable academic and other accommodations will be instituted to facilitate the victim/survivor’s recovery;
  • Accurate and complete information about all options for recourse, including judicial, civil and criminal, will be communicated to the victim/survivor;
  • A victim/survivor will be empowered with regard to choosing her/his options for recourse; and
  • A victim/survivor’s choices will be honored to the greatest extent possible and will not influence the manner in which the University provides advocacy or support to that individual.

The University takes all allegations of sexual misconduct seriously and is obligated to respond with due diligence and implement actions and consequences accordingly that ensure the safety of our community. Should a victim/survivor wish that the incident not be investigated, the University will work with her/him to honor her/his wishes whenever reasonable and possible. Students who wish to report an allegation of sexual misconduct are strongly encouraged to ask about confidentiality issues and the extent of privacy that will be accorded when they report the incident.

Sex Offender Registration Information

Campus Sex Crimes Prevention Act of 2000, which amends the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, the Clery Act and the Family Educational Rights and Privacy Act of 1974 (FERPA), requires institutions of higher education to issue a statement advising the campus community where law enforcement information provided by a state concerning registered sex offenders may be obtained. It also requires sex offenders already required to register in a state, to provide notice of each institution of higher education in the state at which the person is employed, carries a vocation, or is a student. In the State of Hawai‘i, certain convicted sex offenders must register with the Sex Offender Registration Act maintained by the Attorney General of Hawai‘i. The Hawai‘i law requiring sex offenders and other covered offenders to register with the Attorney General can be found at http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0846E/. Registry can be searched at http://sexoffenders.ehawaii.gov/sexoffender/welcome.html Registry information provided under this section shall be used for the purpose of the administration of criminal justice, screening of current or prospective employees, volunteers or otherwise for the protection of the public in general and children in particular.