Section 504-26-221 - Sexual misconduct(1) Sexual misconduct is an egregious form of sex discrimination/sexual harassment. Sexual misconduct is defined as: (a) Sex offense. Any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.(b) Rape (except statutory rape). The carnal knowledge of a person, 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 or physical incapacity.(c) Sodomy. Oral or anal sexual intercourse with another person, 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 or physical incapacity.(d) Sexual assault with an object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, 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 or physical incapacity.(e) 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 or physical incapacity.(f) Incest. Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.(g) Sexual exploitation, which occurs when a person takes nonconsensual or abusive sexual advantage of another for their own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses explained above. Examples of sexual exploitation may include, but are not limited to: (i) Causing or attempting to cause the incapacitation of another person to gain sexual advantage over such other person.(ii) Invading another person's sexual privacy.(iii) Prostituting another person.(iv) Engaging in voyeurism. A person commits voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, they knowingly view, photograph, record, or film another person, without that person's knowledge and consent, while the person being viewed, photographed, recorded, or filmed is in a place where they have a reasonable expectation of privacy.(v) Knowingly or recklessly exposing another person to a significant risk of sexually transmitted disease or infection.(vi) Exposing one's intimate parts in nonconsensual circumstances.(h) Statutory rape. Sexual intercourse with a person who is under the statutory age of consent.(i) Sexually based stalking and/or bullying.(2) Consent. Consent to any sexual activity must be clear, knowing, and voluntary. Anything less is equivalent to a "no." Clear, knowing, and voluntary consent to sexual activity requires that, at the time of the act, and throughout the sexual contact, all parties actively express words or conduct that a reasonable person would conclude demonstrates clear permission regarding willingness to engage in sexual activity and the conditions of such activity. Consent is active; silence or passivity is not consent. Even if words or conduct alone seem to imply consent, sexual activity is nonconsensual when: (a) Force or coercion is threatened or used to procure compliance with the sexual activity. (i) Force is the use of physical violence, physical force, threat, or intimidation to overcome resistance or gain consent to sexual activity.(ii) Coercion is unreasonable pressure for sexual activity. When an individual makes it clear through words or actions that the individual does not want to engage in sexual contact, wants to stop, or does not want to go past a certain point of sexual interaction, continued pressure beyond that point may be coercive. Other examples of coercion may include using blackmail or extortion to overcome resistance or gain consent to sexual activity.(b) The person is asleep, unconscious, or physically unable to communicate their unwillingness to engage in sexual activity; or(c) A reasonable person would or should know that the other person lacks the mental capacity at the time of the sexual activity to be able to understand the nature or consequences of the act, whether that incapacity is produced by illness, defect, the influence of alcohol or another substance, or some other cause. When alcohol or drugs are involved, a person is considered incapacitated or unable to give valid consent if the individual cannot fully understand the details of the sexual interaction (i.e., who, what, when, where, why, and how), and/or the individual lacks the capacity to reasonably understand the situation and to make rational, reasonable decisions.(3) Use of alcohol or other drugs is not a valid defense to a violation of this policy.Wash. Admin. Code § 504-26-221
Amended by WSR 14-11-025, filed 5/12/14, effective 6/12/2014Amended by WSR 17-13-049, Filed 6/15/2017, effective 7/16/2017Amended by WSR 21-07-057, Filed 3/15/2021, effective 4/15/2021Statutory Authority: RCW 28B.30.150. 06-23-159, § 504-26-221, filed 11/22/06, effective 12/23/06.