OAR 291-006-0078: Discrimination Complaints Related to Sexual Abuse or Sexual Harassment

(1) A discrimination complaint related to a claim of sexual harassment or sexual abuse will be immediately subject to investigation that is outside the department’s administrative remedies process. (2) For purposes of these rules, the term “sexual harassment” is defined in OAR 291-109-0110(20), and the phrase “related to a claim of sexual harassment or sexual abuse” includes claims of sexual abuse, fear of sexual abuse, or allegations of mishandling of an incident, issue, or investigation of sexual abuse such as retaliation for reporting or retaliation for cooperating with a sexual abuse investigation. (3) For purposes of these rules, “sexual abuse” is defined as sexual abuse of an adult in custody by another adult in custody and sexual abuse of an adult in custody by an employee. (a) The term “sexual abuse” includes any of the following acts, if the victim does not consent, is coerced into such act by overt or implied threats of violence or is unable to consent or refuse. (A) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight; (B) Contact between the mouth and the penis, vulva, or anus; (C) Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument; and (D) Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation. (b) Sexual abuse of an adult in custody by an employee, contractor or volunteer of the Department of Corrections or Oregon Corrections Enterprises includes any of the following acts, with or without consent of the adult in custody, detainee, or resident: (A) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight; (B) Contact between the mouth and the penis, vulva, or anus; (C) Contact between the mouth and any body part where an employee, contractor or volunteer of the Department of Corrections or Oregon Corrections Enterprises has the intent to abuse or arouse. (D) Penetration of the anal or genital opening, however slight, by a hand, finger, object, or other instrument, that is unrelated to official duties or where an employee, contractor or volunteer of the Department of Corrections or Oregon Corrections Enterprises has the intent to abuse, arouse, or gratify sexual desire; (E) Any other intentional contact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks that is unrelated to the official duties or where an employee, contractor or volunteer of the Department of Corrections or Oregon Corrections Enterprises has the intent to abuse, arouse or gratify sexual desire; (F) Any attempt, threat, or request by an employee, contractor or volunteer of the Department of Corrections or Oregon Corrections Enterprises to engage in the activities described by paragraphs (A) – (E) of this section; (G) Any display by an employee, contractor or volunteer of the Department of Corrections or Oregon Corrections Enterprises of their uncovered genitalia, buttocks, or breast in the presence of an AIC, detainee, or resident, and (H) Voyeurism by an employee, contractor or volunteer of the Department of Corrections or Oregon Corrections Enterprises. Voyeurism by an employee, contractor or volunteer means an invasion of the adult in custody’s privacy by an employee, contractor, or volunteer for reasons unrelated to official duties, such as peering at an adult in custody who is using a toilet in the their cell to perform bodily functions; requiring an adult in custody to expose their buttocks, genitals, or breasts; or taking images of all or part of an adult in custody’s naked body or of an adult in custody performing bodily functions. (4) A discrimination complaint related to a claim of sexual harassment or sexual abuse will not be considered or counted as a “grievance” or “discrimination complaint” under the department’s rules on Grievance Review System (OAR 291-109) or Discrimination Complaint Review System (OAR 291-006).