VI. Definitions

Due to the sensitive and sometimes violent nature of incidents involving sexual misconduct, the following definitions are provided for informational use and for guidance in the investigation and processing of alleged violation and are not intended to be fully inclusive of all conduct prohibited by this Policy. It is possible that a particular action may constitute sexual misconduct even if not specifically mentioned in this Policy.

Actual Knowledge: Notice of sexual harassment or allegations of sexual harassment to the University’s Title IX Coordinator or any official of the University who has authority to institute corrective measures on behalf of the University. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the University. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. The standard is not met when the only official of the University with actual knowledge is the Respondent.
Advisor: Someone who acts as an advisor to the Complainant or Respondent (“Party” or “Parties”) involved in an investigation or disciplinary proceeding under this Policy. Once a complaint has been filed, the Complainant and Respondent may each select an advisor of their choice. The role of the advisor is narrow in scope. The advisor is permitted to be a part of any meeting or interview connected with the grievance process that their Party is invited to attend, but the advisor may not actively participate in interviews and may not serve as a proxy for the party. University employees who provide confidential support services (Counseling Services and the Chaplain) may not serve as advisors. Additionally, the Title IX Coordinator, Director of Campus Safety, and Dean of Students/Vice President for Student Affairs, for example, have an actual or perceived conflict of interest preventing them from serving in this role. A party should select as an advisor a person whose schedule allows attendance at the scheduled dates and times for any meetings, because delays will not normally be allowed due to the scheduling conflicts of an advisor.
The advisor may not speak aloud during meetings involving the Party and the investigator, but they may confer quietly or by means of written notes with their advisee. The advisor may provide advice and consultation to the parties or the parties’ witnesses outside of the conduct of the live hearing to assist parties in handling the formal resolution process. However, while advisors may provide guidance and assistance throughout the process, all written submissions must be authored by the party or parties.

The Complainant and Respondent are not obligated to accept the counsel of an advisor. However, should the reported behavior fall under the Title IX Grievance Process, and the Complainant has signed a Formal Complaint, both parties will be required to have an advisor present at the hearing. During the live hearing under the Title IX Grievance Process, the advisors of the Complainant and Respondent will provide cross examination to the other party and witnesses who are participating in the process; otherwise, the advisor may not actively participate in the hearing. This cross examination must be conducted by an advisor and can never be conducted by the Complainant or Respondent. If either party does not have an advisor at the time of the live hearing under the Title IX Grievance Process, the University will provide an advisor to the party solely for the purposes of conducting cross-examination during the live hearing.
Complainant: An individual who is alleged to be the victim of conduct that could constitute sexual harassment.
Respondent: An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment or sexual misconduct.
Party or Parties: A term referring individually or collectively to the Complainant and/or Respondent.
Reporting Party: Person other than the Complainant who reports an alleged violation of this Policy.
Appellate Decision Maker: A one-member board charged with hearing an appeal under this Policy. If the appeal is based on the outcome of the live hearing, the Appeals Board member will be a different individual than the decisionmakers from the live hearing. Neither the Title IX Coordinator nor the Investigator can serve on the Appeals Board. The Appeals Board is drawn from a pool of members of our community or from an external agency who will receive training regarding the purpose and implementation of the Policy, as well as the disposition of complaints in a manner that protects the safety and well-being of the Parties and promotes accountability. The Appeals Board may be a University official or an external appeal member. (The appeals process is discussed later in this Policy.)
Consent: Consent is affirmative, conscious, voluntary, and revocable. Consent to sexual activity requires of all persons involved an affirmative, conscious, and voluntary agreement to engage in specific sexual activity. Consent to one form of sexual activity does not imply consent to another form of sexual activity. It is the responsibility of each person to ensure that they have the affirmative consent of the other to engage in the sexual activity. Lack of protest, lack of resistance, or silence, do not alone constitute consent. Affirmative consent must be ongoing and can be revoked at any time during sexual activity. The existence of a dating relationship or past sexual relations between the persons involved should never by itself be assumed to be an indicator of consent (nor will subsequent sexual relations or dating relationships alone suffice as evidence of consent to prior conduct). The Respondent’s belief that the Complainant consented shall not provide a valid excuse where:
1. The Respondent’s belief arose from the Respondent’s own intoxication or recklessness;
2. The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the Complainant affirmatively consented; or
3. The Respondent knew, or a reasonable person should have known, that the Complainant was unable to consent because the Complainant was incapacitated, in that the Complainant was:
  1. Asleep or unconscious;
  2. Due to the influence of drugs, alcohol, or medication, unable to understand the facts, nature, or extent of the sexual activity; or
  3. Unable to communicate due to a mental or physical condition.
Coercion: Coercion is intimidation or conduct that would compel an individual to do something against their will by (1) the use of physical force or confinement or, (2) expressed or implied threats of physical, emotional, property, or reputational harm, or (3) pressure that would cause a reasonable person to fear such harm. Coercion is more than an effort to persuade or attract another person to engage in sexual activity. Coercion is unreasonable pressure 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. In assessing whether coercion was used, the frequency, duration, and intensity of the pressure applied will be taken into consideration.
Retaliation: Any adverse action taken against a person for making a good faith report of Prohibited Conduct, assisting someone making such a report, or participating in any proceeding under this policy. Retaliation includes threats, intimidation, harassment, discrimination, coercion or any other conduct that would discourage a reasonable person from engaging in activity protected under this policy. Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance process does not constitute retaliation, but a determination regarding responsibility, alone, is not sufficient to conclude that an individual made a materially false statement in bad faith (§106.71(b)(2)).
Complicity: Assisting, facilitating, or encouraging the commission of a violation of the Sexual Misconduct Policy.
Decision Maker(s): The individual or individuals who are responsible for the live hearing during the formal Title IX grievance process found in this policy to determine if the Respondent is responsible or not responsible for a policy violation. The decision-maker(s) are trained annually and serve impartially without prejudging the facts at issue. The decisionmaker(s) cannot be the Title IX Coordinator or investigator. The decision-maker(s) may be a University official(s), an external decisionmaker(s), or a combination of University official(s) and external decision-maker(s).
Exculpatory Evidence: Evidence that clears (exonerates), or tends to clear, a person of guilt or blame.
Inculpatory Evidence: Evidence that shows, or tends to show, a person’s involvement in an act, or evidence that can establish guilt.
Effectively Deny Equal Access: To determine whether a person has been effectively denied equal access to the University’s education program or activity, an evaluation must take place to determine whether a reasonable person in the Complainant’s position would be effectively denied equal access to education compared to a similarly situated person who is not suffering the alleged sexual harassment. Some examples may include (but are not limited to): skipping class to avoid a harasser; a decline in a student’s grade point average; or having difficulty concentrating in class.
Force: May include words or conduct. Force includes causing another’s intoxication or impairment through the use of drugs or alcohol. Coercion, intimidation, and non-physical threats can all be forms of force.
Formal Complaint: A document signed and filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the University investigate the allegation of sexual harassment. At the time of filing a formal complaint, a Complainant must be participating in or attempting to participate in the educational program or activity of the University with which the formal complaint is filed. This requirement concerns a Complainant’s status at the time a formal complaint is filed and is not affected by a Complainant’s later decision to remain at or leave the University. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail. A document filed by the Complainant means a document or electronic submission that contains the Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the person filing the complaint. Where the Title IX Coordinator signs a formal complaint, the title IX Coordinator is not a Complainant or otherwise a party and must otherwise comply with their regulatory duties.
Harm to Others: Physical violence including (but not limited to) physical abuse, assault, threats of violence, striking, shoving, or subjecting another person to unwanted physical contact.
Harassing Conduct: Conduct that includes but is not limited to intentionally or recklessly endangering, threatening, or causing emotional harm to any person. This may also include causing physical damage to their property.
Harassment: Harassment includes, but is not limited to, any written, verbal or physical acts (including electronically transmitted acts) that is reasonably perceived as creating an intimidating or hostile work, learning or living environment, particularly if questionable behavior is repeated and/or if it continues after the offending party is informed of the objectionable and/or inappropriate nature of the behavior. Harassment can be a single incident, or a series of repeated incidents.
Incapacitation: A person who lacks the ability to make informed, rational judgments is incapacitated and, therefore, cannot consent to sexual contact or activity. Incapacitation is the inability, temporarily or permanently, to give consent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring. Mentally helpless means a person is incapable, on a temporary or permanent basis, of appraising or controlling one’s own conduct. Physically helpless means a person is physically unable to verbally or otherwise communicate consent or unwillingness to an act.
Merely consuming or being under the influence of alcohol or drugs does not constitute incapacitation. Incapacitation is beyond a state of drunkenness or intoxication, and the level of impairment must be significant enough to render the person unable to give consent. Where alcohol or other drugs are involved, evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects a person in the following areas:
1. decision-making ability;
2. awareness of consequences;
3. ability to make informed rational judgments;
4. capacity to appreciate the nature and quality of the act; or
5. level of consciousness.
The assessment is based on objectively and reasonably apparent indications of incapacitation when viewed from the perspective of a sober, reasonable person.
Notice: Means, but is not limited to, a report of sexual harassment to the Title IX Coordinator as described in 34 CFR § 106.8(a).
Physical Assault or the Threat of Physical Assault: Threatening or causing physical harm or engaging in other conduct that threatens or endangers the health or safety of any person.
Preponderance of the Evidence: A standard of proof that requires that a fact be found when its occurrence, based on evidence, is more likely than not to be true. This is the standard used by the University of Jamestown to determine whether a Title IX violation took place.
Report: Defined as notification of an incident of sexual misconduct or sexual harassment reported to the Title IX Coordinator by any responsible employee or reporting person. A report may be accompanied by a request for supportive measure, no further action, or a request to initiate a formal or informal resolution process through the University. While the report is not a formal complaint, should a formal or informal process with the University be initiated, the report may be used as part of the formal complaint as defined above.
Title IX: Title IX of the Education Amendment Act of 1972, 20 U.S.C. §1681 et seq., and its implementing regulations, 32 C.F.R. Part 106, which prohibit discrimination on the basis of sex, gender identity, or gender expression in education programs or activities operated by recipients of Federal financial assistance. University of Jamestown is required to comply with Title IX.
Title IX Grievance Process: This is the formal name used in the Title IX regulations for a school’s process for addressing formal complaints of sexual harassment under Title IX.
Investigator: Official(s) who will be responsible for coordinating any investigation into an alleged violation of Sexual Misconduct or Sexual Harassment. This may be a University official, an external investigator, or a combination of University official(s) and external investigator(s). If investigators are requested to be at the hearing by either party or the Decision-maker(s), they must be consulted prior to the scheduling of the hearing to determine their availability. Investigators are not witnesses, as their role is to collect evidence and provide a summary of the relevant evidence. Therefore, investigators should not be subject to cross-examination in a hearing. The Decisionmaker(s) may ask questions of the investigator. Additionally, parties may submit questions for the investigator to the Decision-maker(s). The Decision-maker(s) will evaluate the relevance of the question(s) and, if the question is determined to be relevant, will ask it on behalf of the party. During a hearing, investigators will only refer to the investigative report, as all information is contained in that report. Investigators will not offer any opinions or assessment on credibility, evidence, responsibility, or any other aspect of the case. Though investigators will summarize relevant evidence in the investigative report, the ultimate determination on relevancy and the weighing of evidence is the sole purview of the decision-maker(s).
Prohibited Conduct: The following conduct is prohibited regardless of the sexual orientation, gender, gender identity, or gender expression of the Complainant or Respondent:
1. Sexual Harassment: Conduct on the basis of sex that satisfies one or more of the following:
  1. An employee of the University conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
  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 recipient’s education program or activity;
  3. Sexual Assault is any attempted or actual sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent. Consent is defined elsewhere in this policy. Sexual assault is an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI Uniform Crime Reporting (USR) program.
    1. Rape is the penetration, no matter how slight, of the vagina or anus, with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim. This offense includes the rape of both males and females.
    2. Fondling is 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 his/her age or because of his/her temporary or permanent mental incapacity.
    3. Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
    4. Statutory Rape is sexual intercourse with a person who is under the statutory age of consent.
  4. Dating Violence includes violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
    1. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
    2. Dating violence does not include acts covered under the definition of domestic violence.
  5. Domestic Violence includes felony or misdemeanor crimes of violence committed:
    1. By a current or former spouse or intimate partner of the Complainant;
    2. By a person with whom the Complainant shares a child in common;
    3. By a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner;
    4. By a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred;
    5. By any other person against a Complainant who is protected from that person’s acts under the domestic family violence laws of the jurisdiction in which the crime of violence occurred.
  6. Stalking is defined as engaging in a course of conduct directed at a specific person that would cause a reasonable person to (A) fear for their own safety or the safety of others; or (B) suffer substantial emotional distress. The University’s Title IX Policy covers instances of stalking based on sex – including stalking that occurs online or through messaging platforms, commonly known as cyber-stalking – when it occurs in the University’s education programs or activities.
    For the purposes of this definition:
    1. Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
    2. Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
    3. Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment of counseling.
  7. Gender-Based Harassment: Harassment based on sex or gender, sexual orientation, gender identity, or gender expression, which may include acts of intimidation or hostility, whether verbal or non-verbal, graphic, physical, or otherwise, even if the acts do not involve conduct of a sexual nature.
  In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances, including, but not limited to:
  - The frequency, nature and severity of the conduct;
  - Whether the conduct was physically threatening;
  - The effect of the conduct on the Complainant’s mental or emotional state;
  - Whether the conduct was directed at more than one person;
  - Whether the conduct arose in the context of other discriminatory conduct;
  - Whether the conduct unreasonably interfered with the Complainant’s educational or work performance and/or University programs or activities; and
  - Whether the conduct implicates concerns related to academic freedom or protected speech.
  Examples of conduct that may constitute Sexual or Gender-Based Harassment under the quid pro quo or hostile environment analysis includes, but are not limited to:
  - Sexual Assault, Sexual Exploitation, Relationship Violence, or Stalking;
  - Inappropriate physical conduct, including unwelcome touching or sexual advances within the working, living, or learning environment;
  - Persistent and inappropriate personal attention from one colleague or student to another in the face of repeated rejection;
  - Inappropriate verbal conduct, including lewd or sexually suggestive comments, jokes, or innuendoes, or unwelcome comments about an individual’s sexual orientation, gender, gender identity, or gender expression;
  - Inappropriate written conduct, including letters, notes, or electronic communications, containing comments, words, jokes, or images that are lewd or sexually suggestive or relate in an unwelcome manner to an individual’s sexual orientation, gender, gender identity, or gender expression;
  - Voyeurism (such as watching or taking pictures, videos, or audio recordings of another person in a state of undress or of another person engaging in a sexual act without the consent of all parties involved);
  - Disseminating, streaming, or posting pictures or video of another in a state of undress or of a sexual nature without the person’s consent.
  - Exposing one’s genitals to another person without their consent; or
  - Knowingly exposing another individual to a sexually transmitted infection or virus without the other individual’s knowledge and consent.
  In evaluating allegations of sexual harassment, the allegations are evaluated from both a subjective and objective perspective considering the totality of the circumstances.