Part IV - Definitions and Hearing Considerations
A knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
The following six principles, along with above definition, will be used to evaluate whether sexual activity was consensual:
|Complainant||The individual who reportedly experienced sexual misconduct, regardless of whether such individual reports such sexual misconduct to the College or participates in the College’s conduct process for responding to complaints of sexual misconduct described herein.|
|Confidentiality||May be offered by an individual who is not required by law to report known incidents of sexual assault or other crimes to institution officials, in a manner consistent with state and federal law, including but not limited to 20 U.S.C. 1092 (f) and 20 U.S.C. 1681 (a). Licensed mental health counselors, medical providers, and pastoral counselors are examples of College employees who may offer Confidentiality.|
|Force||The use of physical violence and/or imposing on someone physically to engage in sexual contact or intercourse. Force can also include threats, intimidation (implied threats), or coercion used to overcome resistance. The use of force to cause someone to engage in sexual activity is, by definition, non-consensual contact, and is prohibited.|
|Incapacitation||Occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by a lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.|
|Intimidation||Implied threats that reasonably cause another to fear for his/her safety or well-being.|
|No Contact Order||A directive prohibiting contact between or among designated individuals through any means, direct or indirect, including personal contact, email, telephone, text message, social media, or by means of a third party.|
|Privacy||May be offered by an individual when such individual is unable to offer Confidentiality under the law but shall still not disclose information learned from a reporting individual or Bystander to a crime or incident more than necessary to comply with applicable laws, including informing appropriate College employees.|
|Reporting Individual||Encompasses the terms victim, survivor, Complainant, claimant, witness with victim status, or any other term used by the College to reference an individual who brings forth a report of a violation of this Policy.|
|Respondent||The individual alleged to have committed acts constituting sexual misconduct, regardless of whether such individual has entered into the College’s conduct process for responding to complaints of sexual misconduct described herein.|
|Responsible Employee||A Responsible Employee is a College employee who has the authority to redress sexual misconduct, who has a duty to report incidents of sexual misconduct, or who a student could reasonably believe has this authority or duty. This definition encompasses virtually every College employee, including all faculty, staff, and administrators. A Responsible Employee must report all relevant details about the learned incident to the Title IX Coordinator.|
|Retaliation||Taking any adverse action or attempting to take adverse action against a person for making a good faith report of sexual misconduct or participating in any proceeding under this Policy. Retaliation includes intimidating, threatening, coercing, or in any way discriminating against an individual because of the individual’s complaint of sexual misconduct or participation in an investigation or proceeding related to alleged sexual misconduct.|
The descriptions below are definitions of prohibited conduct. Reports of prohibited conduct that meet the sexual harassment definition and jurisdiction requirements under Title IX grievance policy will be addressed under Part III of this policy. All other prohibited conduct will be addressed under Part II of this policy or if applicable, the Discrimination and Harassment Policy, or Student Conduct Policy.
Prohibited Conduct Terms and Definitions
|Cyberstalking||The use of technology to stalk, harass, or threaten another person, often used in conjunction with offline stalking.|
|Dating Violence||(As defined in the Violence Against Women Act (VAWA) amendments to the Clery Act), includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) The type of relationship; (iii) The frequency of interaction between the persons involved in the relationship.|
|Domestic Violence||(As defined in the VAWA amendments to the Clery Act), includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under New York State’s domestic or family violence laws or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of New York State.|
Includes any “sexual act” or “sexual contact.”
A “sexual act” means (a) contact between the penis and vulva or the penis and the anus where penetration occurs, however slight; (b) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (c) the penetration, however slight of the anal or genital opening of another by hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (d) the intentional touching, not through the clothing of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
“Sexual contact” means the intentional touching, either directly or through the clothing of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person.
|Sexual Assault||(As defined in the Clery Act), includes any sexual activity directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent.|
|Sexual Coercion||The application of unreasonable pressure, including emotionally or physically manipulative actions or statements, or direct or implied threats, in order to compel the person to engage in sexual activity.|
Abuse or exploitation of another person’s sexuality without consent, for the perpetrators own advantage or benefit, or for the benefit or advantage of anyone other than the one being exploited.
Examples of Sexual Exploitation include:
Means unwelcome conduct of a sexual nature, including but not limited to, sexual advances, requests for sexual favors, and other verbal, nonverbal, graphic or physical conduct of a sexual nature, when:
For the purposes of Title IX grievance process, sexual harassment is defined as conduct, on the basis of sex, that:
A broad term that encompasses a wide range of prohibited behaviors of a sexual nature that is committed without consent or by intimidation, coercion, threat, or force. Sexual Misconduct includes, but is not limited to, Sexual Assault, Sexual Coercion, Sexual Exploitation, Sexual Harassment, Dating Violence, Domestic Violence, and stalking.
Refers to a sexual act 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. School employees, other students, or third parties can carry out Sexual Violence. All such acts of Sexual Violence are forms of sex discrimination prohibited by Title IX.
|Stalking||TIX (as defined in the VAWA amendments to the Clery Act), engaging in a course of conduct directed at a specific person that would cause a reasonable person to-- (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.|
Conduct that violates the College Policy may also violate New York State laws and subject the perpetrator to criminal prosecution. Sex Offenses under New York law are described in Sections 130.00 to 130.96 of the New York State penal Code, available at http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO.
Students’ Bill of Rights
The following Students’ Bill of Rights lists the rights students have when reporting sexual offenses (sexual assault, stalking), relationship violence (dating violence, domestic violence), and any other sexual activity that otherwise violates the College’s code of conduct, to the designated administrators of the college.
All students have the right to:
- Make a report to local law enforcement and/or state police;
- Have disclosures of domestic violence, dating violence, stalking, and sexual assault treated seriously;
- Make a decision about whether or not to disclose a crime or violation and participate in the conduct process and/or criminal justice process free from pressure by the institution;
- Participate in a process that is fair, impartial and provides adequate notice and a meaningful opportunity to be heard;
- Be treated with dignity and to receive from the institution courteous, fair and respectful health care and counseling services, where available;
- Be free from any suggestion that the reporting individual is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid such crimes or violations;
- Describe the incident to as few institution representatives as practicable and not be required to unnecessarily repeat a description of the incident;
- Be protected from retaliation by the institution, any student, the accused and/or the respondent, and/or their friends, family and acquaintances within the jurisdiction of the institution;
- Access to at least one level of appeal of a determination;
- Be accompanied by an advisor of choice, in accordance with appropriate regulations*, who may assist and advise a reporting individual, accused, or respondent throughout the judicial or conduct process including during all meetings and hearings related to such process;
- Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or judicial or conduct process of the institution.
Basically, a relevant question will ask whether the facts material to the allegations under investigation are more or less likely to be true. A question not directly related to the allegations will generally be irrelevant. Relevance decisions should be made on a question-by-question basis, looking narrowly at whether the question seeks information that will aid the decision-maker in making the underlying determination. The relevance decision should not be based on who asked the question, their possible (or clearly stated) motives, who the question is directed to, or the tone or style used to ask about the fact. Relevance decisions should not be based in whole or in part upon the sex or gender of the party for whom it is asked or to whom it is asked, nor based upon their status as complainant or respondent, past status as complainant or respondent, any organizations of which they are a member, or any other protected class covered by federal or state law (e.g. race, sexual orientation, disability).
If a question is relevant but offered in an abusive or argumentative manner, the decision-maker has the discretion to ask the advisor to rephrase the question in an appropriate manner, consistent with the institution’s decorum policy for hearings.
Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless:
- such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
- if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
General Considerations for Evaluating Testimony and Evidence
While the opportunity for cross-examination is required in all Title IX hearings, determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the Decision-maker.
Decision-makers shall not draw inferences regarding a party or witness’ credibility based on the party or witness’ status as a complainant, respondent, or witness, nor shall it base its judgments in stereotypes about how a party or witness would or should act under the circumstances.
Generally, credibility judgments should rest on the demeanor of the party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence.
Still, credibility judgments should not rest on whether a party or witness’ testimony is non-linear or incomplete, or if the party or witness is displaying stress or anxiety.
Decision makers will afford the highest weight relative to other testimony to first-hand testimony by parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove and disprove the allegations) evidence will be weighed in equal fashion.
Except where specifically barred by the Title IX Final Rule, a witness’ testimony regarding third-party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred.
Parties may be allowed to call character witnesses and “expert witnesses”. Both will be subject to cross examination. The Administrative Hearing Officer will afford their testimony appropriate weight in making a determination.
Where a party or witness’ conduct or statements demonstrate that the party or witness is engaging in retaliatory conduct, including but not limited to witness tampering and intimidation, the Administrative Hearing Officer may draw an adverse inference as to that party or witness’ credibility.