7.3 Definitions

Download as PDF

Sex Discrimination:

Conduct that denies or limits an individual’s ability to benefit from or fully participate in educational programs, activities, co-curricular programs including athletics, or employment opportunities because of an individual’s sex, gender, gender identity, gender expression or sexual orientation, and discrimination based on an individual’s pregnancy.

Sexual Harassment:

Sexual harassment is a form of sex discrimination and means conduct on the basis of sex that satisfies one or more of the following:

  1. An employee of the College conditioning the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct—i.e., quid pro quo sexual harassment;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education program or activity; or
  3. Sexual assault, dating violence, domestic violence, or stalking.

Sexual Conduct:

Examples of sexual conduct include, but are not limited to:

  1. Making sexual propositions or pressuring an individual for sexual favors;
  2. Touching of a sexual nature;
  3. Writing graffiti of a sexual nature;
  4. Displaying or distributing sexually explicit drawings, pictures, or written materials;
  5. Performing sexual gestures or touching oneself sexually in front of others;
  6. Telling sexual or dirty jokes;
  7. Spreading sexual rumors or rating other students as to sexual activity or performance; or
  8. Circulating or showing e-mails or websites of a sexual nature.

Not all physical contact is sexual in nature. Legitimate nonsexual touching or conduct generally will not be considered sexual harassment. However, it may rise to that level if it takes on sexual connotations.

Sexual harassment encompasses both unwelcome conduct of a sexual nature, as well as other forms of unwelcome conduct on the basis of sex.

Unwelcome Conduct v. Consent:

The “conditioning” or “bargain” proposed in quid pro quo harassment may be express or implied from the circumstances. The inquiry into whether sexual conduct is unwelcome does not equate to whether an individual consented to the sexual conduct. When a complainant acquiesces to unwelcome conduct to avoid potential negative consequences, such “consent” does not necessarily mean that the sexual conduct was not “unwelcome” or that quid pro quo harassment did not occur. Whether conduct is considered to be “unwelcome” is a subjective inquiry (i.e., whether the complainant viewed the conduct as unwelcome).

Consent:

For purposes of this Policy, consent is defined as the act of knowingly and willingly agreeing verbally or non-verbally to engage in sexual activity. An individual cannot consent if he/she/they

  1. Is incapacitated;
  2. Is impaired by any drug or intoxicant;
  3. Has been purposely compelled by force,  including threats,
  4. intimidation, or coercion;
  5. Is unaware that the act is being committed;
  6. Is impaired because of a mental or physical condition; or
  7. Pursuant to Ohio law, is under the age of sixteen (16).

Consent must exist throughout a sexual encounter and can be withdrawn at any time.

Incapacity:

Incapacity means a state in which rational or reasonable decision-making and the ability to consent is rendered impossible because of a person’s temporary or permanent physical or mental impairment including, but not limited to, physical or mental impairment resulting from drugs or alcohol, disability, sleep, unconsciousness, involuntary physical restraint, or illness.

  1. An incapacitated person cannot give consent.
  2. Sexual activity with someone who one knows or should know to be incapacitated is not consented sexual activity and, therefore, is a violation of this policy.
  3. Incapacitation may result from taking “rape drugs.” A rape drug is any drug intentionally used to incapacitate another victim to assist in the execution of drug-facilitated sexual assault. Possession, use and/or distribution of any so-called “rape drug” is prohibited, and administering these drugs to another person is a violation of this policy.
  4. Being under the influence of alcohol or other drugs will not excuse behavior that violates this policy.

Force:

Force means the use of physical violence or physical imposition to gain sexual access, including the use of threat, intimidation (implied threats), or coercion to overcome a person’s free will or resistance.

Threat or intimidation:

Threat or intimidation mean actual or implied declarations to inflict physical or psychological harm, to cause damage, or to commit other hostile actions to obtain sexual activity from an unwilling participant.

Coercion:

Coercion means unreasonable pressure for sexual activity from an unwilling participant.

Severe, Pervasive, and Objectively Offensive:

Elements of severity, pervasiveness, and objective offensiveness are evaluated in light of the known circumstances and depend upon the facts of each situation and are determined from the perspective of a reasonable person standing in the shoes of the complainant. Whether conduct is so severe, pervasive, and objectively offensive depends upon the surrounding circumstances, expectations, and relationships, including, but not limited to, the ages, number, disability status, and positions of authority of the individuals involved, among other factors.

Sexual Assault:

Sexual assault is defined under the Clery Act as an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation (“UCR”).

UCR defines a forcible sex offense as a sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent, and includes the following:

Forcible Rape

The carnal knowledge of a person, forcibly and/oragainst that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her/their temporary or permanent mental or physical incapacity.

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 in instances where the victim is incapable of giving consent because of his/her/their youth or because of his/her/their temporary or permanent mental or physical incapacity.

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, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her/their youth or because of his/her/their temporary or permanent mental or physical incapacity.

Forcible Fondling

The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her/their youth or because of his/her/their temporary or permanent mental or physical incapacity.

UCR defines a nonforcible sex offense as unlawful, nonforcible sexual intercourse and includes the following:

Incest

Nonforcible sexual intercourse between two persons who are related to each other within the degrees wherein marriage is prohibited by law.

Statutory rape

Nonforcible sexual intercourse with a person who is under the statutory age of consent.

Dating Violence:

Dating Violence is defined under the Violence Against Women Act (“VAWA”) as:

  1. Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim/survivor; and
    1. Where the existence of such a relationship shall be determined based on consideration of the following factors: the length of the relationship;
    2. the type of relationship; and
    3. the frequency of interaction between the persons involved in the relationship.

Domestic Violence:

Domestic violence is defined under VAWA as: Felony or misdemeanor crimes of violence committed:

  1. by a current or former spouse or intimate partner of the victim/survivor;
  2. by a person with whom the victim/survivor shares a child in common;
  3. by a person who is cohabitating with or has cohabitated with the victim/survivor as a spouse or intimate partner;
  4. by a person similarly situated to a spouse of the victim/survivor;
  5. by any other person against an adult or youth victim/survivor who is protected from that person’s acts under the state’s domestic or family violence laws.

Stalking:

Stalking is defined under VAWA as:

  1. Engaging in a course of conduct,
  2. Directed at a specific person,
  3. That would cause a reasonable person to
    1.  fear for his or her safety or the safety of others, or
    2. to suffer substantial emotional distress.

Stalking includes the concept of cyber-stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used to pursue, harass, or to make unwelcome contact with another person in an unsolicited fashion.

Sexual assault, dating violence, domestic violence, or stalking are inherently serious sex-based offenses. However, stalking may not always be “on the basis of sex”—e.g., when a student stalks an athlete due to celebrity worship rather than sex. When stalking is “on the basis of sex”—e.g., when the stalker desires to date the victim—stalking constitutes sexual harassment. Stalking that does not constitute sexual harassment may still be prohibited under the College’s student code of conduct.