Definitions
Complainant
A complainant is anyone (a) who is alleged to be the victim of Sexual Harassment as defined by this policy, and (b) who, at the time of filing a formal complaint, is participating in or attempting to participate in an education program or activity of the school with which the formal complaint is filed. Note that anyone who shares a report about alleged Sexual Harassment impacting another person is considered a third-party reporter—not a complainant.
Respondent
The respondent is any current member of the University Community who is reported and alleged to have engaged in conduct that if true may constitute Sexual Harassment within the University’s jurisdiction or conduct that occurred in an educational program or activity where the University has substantial control over the respondent as well as the context in which the act occurred.
University Community
The University Community includes current students, student employees, faculty, staff, appointees, volunteers, supplier/contractors, and visitors.
Student
For Title IX processes, a student is an individual to whom an offer of admission has been extended, paid an acceptance fee, registered for credit or non-credit bearing classes, or otherwise entered into another agreement with the University to take instruction. Student status lasts until an individual graduates, is permanently dismissed, or is not registered for two consecutive terms. This definition does not alter the Title IX jurisdictional requirements.
Actual Knowledge
Actual knowledge is when the University’s Title IX Coordinator or a designated University official with the authority to institute corrective disciplinary action (as specified in the chart under the header “Reporting”) receives a report or notice of allegations of Sexual Harassment. The University response obligation begins when actual knowledge of an alleged Sexual Harassment has been reported to a designated University official.
Report
A report is an allegation of Sexual Harassment, which can be made by anyone including students, employees, University community members, or other individuals who are directly involved in, observe or reasonably believe that Sexual Harassment may have occurred. A report can be filed by completing the online Title IX Report Form. A person making a report of alleged Sexual Harassment impacting another person is considered a third-party reporter.
Formal Complaint
A formal complaint is a complaint filed in writing by the complainant or by the Title IX Coordinator through the completion of the online Title IX Formal Complaint Form that triggers the University's mandatory dismissal assessment and, if not dismissed, a full investigation and hearing.
Decision-Maker Panel
A Decision-Maker Panel is composed of three members and an appointed chairperson who review the case, provide any hearing, make a determination of responsibility and determine any corrective disciplinary actions which take place as part of the formal resolution process.
Effective Consent
It is important not to make assumptions about whether another party or potential partner is consenting. The burden to obtain effective mutually understood consent is on the initiator of the sexual act.
- Effective consent is informed, voluntary, and freely and actively given.
- Effective consent cannot be obtained from threat, force, threat of force, intimidation, coercion or incapacitation.
- Effective consent cannot be given by minors, mentally disabled individuals, or individuals who are mentally or physically incapacitated (such as by alcohol or drug use, etc.)—see “incapacitation” definition below.
- Consent can be communicated by words or can be manifested through action.
- Consent must be mutually understandable.
- Consent to one form of sexual activity does not imply consent to other forms of sexual activity.
- Consent at one time does not imply consent to another time.
- Silence, passivity or the absence of resistance alone is not consent. While resistance is not required or necessary, it is a clear demonstration of non-consent. Consent can be withdrawn at any time.
- The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged misconduct occurred and any similar or previous patterns.
Force
Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or to produce consent (e.g., “Have sex with me or I’ll hit you,” “Okay, don’t hit me, I’ll do what you want.”). Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced.
Coercion
Coercion is unreasonable pressure (without physical force) for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
Incapacitation
When incapacitated, an individual lacks the physical and/or mental ability to make informed, rational judgments (e.g., to understand the “who, what, when, where, why or how” of their sexual interactions) and thus cannot give effective consent to sexual activity.
- Incapacitation may be temporary or permanent and result from mental disability as well as states including, but not limited to, sleep, unconsciousness, blackouts resulting in memory loss, etc. Incapacitation may also occur in persons who, as a result of alcohol or drug use, appear to be functional or coherent but still may not be able to make a rational decision or give effective consent. Individuals who consent to sex must be able to understand what they are doing. Keep in mind that under this policy, “no” always means “no,” but “yes” may not always mean “yes.”
- The impact of consuming alcohol or drugs will vary from person to person. Evaluating incapacitation due to the use of substances requires an assessment of each individual. Warning signs that a person may be approaching incapacitation may include slurred speech, vomiting, unsteady gait, odor of alcohol, combativeness, emotional volatility, etc.
- Because incapacitation may be difficult to discern, especially where alcohol and drugs are involved, persons are strongly encouraged to err on the side of caution; when in doubt, assume the other person is incapacitated and therefore unable to give effective consent.
- Being intoxicated or impaired by drugs or alcohol is not a valid defense to an allegation.
- In evaluating effective consent in cases of alleged incapacitation, the University asks two questions: (1) did the respondent know that the other party was incapacitated? and (2) if not, would a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “YES,” effective consent was absent and the conduct by the respondent is likely a violation of this policy.
