Terms that are mandated to be defined by the Final Rule § 106.30 (a) have been written specifically as required by the U.S. Department of Education. Words used in this policy will have those meanings defined herein and if not defined herein will be construed according to their plain and ordinary meaning.
Actual Knowledge (Notice)
Actual knowledge means notice of Sexual Harassment or allegations of Sexual Harassment to the College's Title IX Coordinator or any official of the College who has the authority to institute corrective measures.
Advisor of Choice
From the point a Formal Complaint is made, and until an investigation, adjudication, and appeal are complete, the Complainant and Respondent will have the right to be accompanied by an advisor of their choice to all meetings, interviews, and hearings that are part of the investigation, adjudication, and appeal process. The advisor may be any person of the party's choosing and does not have to be unbiased or be free of conflict of interest. The advisor may be an attorney. If the party does not choose an advisor, the College may select an individual to serve in this role, free of charge, for the limited purpose of conducting the cross-examination at a live hearing, if requested by the party. The College will have sole discretion to select the advisor it provides. The advisor the College provides may be, but is not required to be, an attorney. An advisor cannot communicate with the Investigator and/or Title IX Coordinator on behalf of the party; communication is between the party and the investigator and/or Title IX Coordinator. The Advisor's main purpose is cross-examination at a live hearing.
Appeal
An appeal is when a party asks for the Appellate Officer to reverse the determination regarding responsibility made by the decision-maker for the Formal Complaint or any allegations therein. Appeals may also be filed for a dismissal or be sought for failure to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence, during the investigative process. Appeals must be requested within the required number of business days as specified in the policy, be in writing, and include rationale. Both parties have the option to appeal on the bases outlined in the Complaint Resolution Procedure.
Appellate Officer
The Appellate Officer is the person deciding if the determination of responsibility for the Formal Complaint or any allegations therein may be reversed. The Appellate Officer must be different from anyone who made the determination regarding responsibility or dismissal and must not be the investigator or Title IX Coordinator. The Appellate Officer must be free from conflict of interest and bias and must have received appropriate training as defined in the Final Rule § 106.45(b)(3)(iii).
Coercion
When direct or implied force or intimidation is used to persuade a reasonable person of ordinary susceptibility to perform an act which otherwise would not have been performed or acquiesce in an act to which one would otherwise not have submitted. This includes physical, emotional, psychological, social, or other threat. This also applies when a person is incapacitated. This behavior is prohibited. Coercion can include unreasonable and sustained pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. A person’s words or conduct cannot amount to Coercion for purposes of this policy unless they wrongfully impair the other’s freedom of will and ability to choose whether or not to engage in sexual activity.
Consent
Consent refers to words or actions that a reasonable person in the perspective of the Respondent would understand as agreement to engage in the sexual conduct at issue. Consent is informed, freely given, and mutually understood. Consent requires an affirmative act or statement by each participant. Consent is not passive. A person who is Incapacitated is not capable of giving Consent. Lack of consent is a critical factor in determining whether sexual harassment has occurred. - If coercion, intimidation, threats, and/or physical force are used, there is no consent; a person’s lack of verbal resistance or submission resulting from the use or threat of force does not constitute consent.
- If a person is mentally or physically incapacitated or impaired by alcohol or drugs such that the person cannot understand the fact, nature, or extent of the sexual situation, there is no consent.
- Warning signs of when a person may be incapacitated due to drug and/or alcohol use include: slurred speech, falling down, passing out, and/or vomiting.
- If a person is asleep or unconscious, there is no consent.
- A person who is under the statutory age of consent in the applicable jurisdiction cannot provide consent to sexual activity.
- Consent to one form of sexual activity does not imply consent to other forms of sexual activity.
- Consent to past sexual activity does not imply consent to future sexual activity.
- Dressing in a certain manner does not constitute consent.
- Consent to sexual activity with one person does not constitute consent to engage in sexual activity with another.
- Consent can be withdrawn. A person who initially consents to sexual activity is deemed not to have consented to any sexual activity that occurs after he or she withdraws consent.
- Being in a romantic relationship with someone does not imply consent to any form of sexual activity.
- Effective consent may not exist when there is a disparity in power between the parties (e.g., faculty/student, supervisor/employee).
Dating Violence
The term “dating violence” means 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
The term “domestic violence” represents 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 the domestic or family violence laws of Ohio, 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 Ohio.
Education Programs or Activities
"Education programs or activities" refers to all the operations of the College, including, but not limited to, in-person and online educational instruction, employment, research activities, extracurricular activities, and community engagement and outreach programs. The term applies to all activity that occurs on campus or on other property owned or occupied by the College. It also includes off-campus locations, events, or circumstances over which the College exercises substantial control over the Respondent and the context in which the Sexual Harassment occurs.
Employee (and Other Respondents) Administrative Leave Non-student employee respondents may be placed on administrative leave at any time after receiving a report of Sexual Harassment, including during the pendency of the investigation and adjudication process.
For all other Respondents, including independent contractors and guests, the College retains broad discretion to prohibit such persons from entering onto its campus and other properties at any time, and for any reason, whether after receiving a report of Sexual Harassment or otherwise.
Evidence
Evidence is the available body of information that may indicate whether the Formal Complaint allegation is valid or invalid. - Character evidence is information supporting how a person responded based on the disposition of the person. This usually will be excluded.
- Exculpatory evidence is information favorable to the Respondent that exonerates or tends to exonerate the Respondent of responsibility.
- Inculpatory evidence shows or tends to show responsibility on the part of the Respondent.
- New evidence refers to evidence not previously available which may be used to aid the decision-making process, particularly within the appeal process.
- Relevant evidence is information that makes a fact of consequence more likely true than not true.
False Statement in Bad Faith
This is making an untrue statement(s) that relates to the Formal Complaint with the intent to deceive during a grievance proceeding. It is a violation of this policy for any person to submit a report or Formal Complaint that the person knows, at the time the report or Formal Complaint is submitted, to be false or frivolous. It is also a violation of this policy for any person to knowingly make a materially false statement during the course of an investigation, adjudication, or appeal under this policy. The individual may be charged with a code of conduct violation for this action and that charge would not be considered retaliation.
Formal Complaint
A document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that the College investigate the allegation of Sexual Harassment in accordance with this policy. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the College’s Education Programs or Activities. A “document filed by a Complainant” means a document or electronic submission (such as an email) that contains the Complainant’s physical or electronic signature or otherwise indicates that the Complainant is the person filing the Complaint. For purposes of this policy, either a physical signature or digital signature will be sufficient to satisfy any obligation that a document be signed. Where this policy provides that written consent must be provided, consent in either physical or electronic form, containing a physical or digital signature, as the case may be, will suffice.
Filing a Formal Complaint via a Christ College or Christ Hospital email account would meet this obligation. The receipt of a Formal Complaint triggers the College's obligation to investigate. Formal Complaints must be filed in order to pursue either an Informal or Formal Resolution Process. Where the Title IX Coordinator signs a Formal Complaint, the Title IX Coordinator is not the Complainant or a party during a grievance process.
Grievance/Resolution Process
The College's management and adjudication of Formal Complaints of Sexual Harassment must treat all parties fairly and reach appropriate determinations based on the evidence collected and reasonably available.
Interim Removal Occurring at any time after receiving a report of Sexual Harassment, the Chief Academic Officer (CAO) may remove a student Respondent from one or more of the College's education program or activities. It is not an indication of a determination of responsibility or sanction. It is used when there is an emergency situation arising from alleged conduct that could constitute Sexual Harassment. A five-step process is used to determine Interim Removal. This includes: a prompt individualized safety and risk analysis, a finding of an immediate threat to the physical health or safety of a student or another individual arising from the allegations of Sexual Harassment, evaluation of applicability of disability laws to the removal decision, consideration of supportive measures in lieu of removal. Lastly, in the event the CAO imposes an interim removal, the CAO must offer to meet with the Respondent within twenty-four hours and provide the Respondent an opportunity to challenge the interim removal.
Investigation
The process utilized by an impartial, trained Investigating Officer to seek out information and relevant inculpatory and exculpatory evidence related to the Formal Complaint. During the investigation, both the Complainant and Respondent will have the opportunity to describe their allegations, respond to allegations, and identify and present supporting witnesses or other evidence. The investigator will explore evidence and look into witness(es) statements. All parties and witnesses involved in the investigation are expected to provide complete and truthful information.
Incapacitation
The state of being impaired or in a physical or mental state where the person lacks the ability to knowingly and deliberately make a choice including due to the effect of drugs or alcohol, medical condition or disability, or due to a state of unconsciousness or asleep. A person who is asleep, unconscious, or involuntarily restrained is incapacitated and cannot give effective consent. Indicators of incapacitation include, but are not limited to: - outrageous/unusual behavior;
- inability or diminished ability to accurately discern one’s environment (who, what, where, when and/or how); slurred speech; vomiting; severe intoxication;
- loss of voluntary motor skills;
- loss of involuntary motor skills;
- disjointed speech patterns (unable to follow a conversation or verbalize complete thoughts);
- and/or sleepiness that demonstrates an inability to control one’s ability to stay awake.
Because incapacitation may be difficult to discern, the person seeking the sexual behavior is strongly encouraged to err on the side of caution; i.e., when in doubt, assume the other person is incapacitated and therefore unable to give effective consent.
"Individuals" for the Sexual Harassment Policy
Individuals are considered “Employees” for the purposes of this policy when they are currently being paid by the College in conjunction with the College's determination of their employee/non-employee status prescribed by federal and state law. Employees other than the President, Deans, and Title IX Coordinator and Deputy are strongly encouraged to disclose to the Title IX Coordinator any report of sexual harassment of which they are aware. The President, Deans, and Title IX Coordinator and Deputy are Mandatory Reporters and therefore must report.
Individuals are considered “Students” after their matriculation fee has been paid and recorded until graduation or when they have been withdrawn or dismissed from the College. Individuals may be further defined as a Complainant or Respondent: - 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.
Informal Resolution
At any time after the parties are provided written notice of the Formal Complaint and before the completion of any appeal, the parties may voluntarily consent, with the Title IX Coordinator’s approval, to engage in mediation, facilitated resolution, or other form of dispute resolution the goal of which is to enter into a final resolution resolving the allegations raised in the Formal Complaint by agreement of the parties. Informal resolution may offer mediation, restorative justice, or another process if each party voluntarily agrees to such a process after giving informed, written consent. The informal resolution process does not require the holding of a live hearing with cross-examination. During the pendency of the informal resolution process, the investigation and adjudication processes that would otherwise occur are stayed and all related deadlines are suspended. If the parties reach a resolution through the informal resolution process, and the Title IX Coordinator agrees that the resolution is not clearly unreasonable, the Title IX Coordinator will reduce the terms of the agreed resolution to writing and present the resolution to the parties for their written signature. Once both parties and the Title IX Coordinator sign the resolution, the resolution is final, and the allegations addressed by the resolution are considered resolved and will not be subject to further investigation, adjudication, remediation, or discipline by the College, except as otherwise provided in the resolution itself, absent a showing that a party induced the resolution by fraud, misrepresentation, or other misconduct or where required to avoid a manifest injustice to either party or to the College. A party may withdraw their consent to participate in informal resolution at any time before a resolution has been finalized. Informal resolution will not be permitted if the Respondent is a non-student employee accused of committing Sexual Harassment against a student. Facilitators for informal resolutions will have received training needed for that role.
Live Hearing
This is a proceeding before a trained hearing officer that oversees the process and determines the relevance of any question or evidence. Both sides have equal opportunity to present their facts and evidence. If questioning of a witness takes place, it may only be done by an advisor or the hearing officer. If neither a party nor their advisor appear at the hearing, the College will provide an advisor to appear "on behalf of" the non-appearing party. Both parties' advisors are allowed the opportunity to cross-examine witnesses and the other party with restrictions.
At the College's discretion or either party's request, the hearing may be conducted in separate locations, with the parties able to see and hear each other in real time. All hearings will be recorded. Neither party may choose to "waive" the right to a live hearing, but they have the right to choose whether to participate in the hearing or answer cross-examination questions. Like parties, witnesses are not required to participate in a live hearing process, but without their live testimony the Hearing Officer cannot rely on their statements.
Live hearings will have an audio/audiovisual recording or transcription. The hearing is not a "public hearing." The recording or transcript will be made available to the parties within the time period when an appeal may be granted.
Mandatory (Mandated) Reporter. The College President, Vice Presidents, Dean, Title IX Coordinator and Deputy are Mandatory Reporters who are individuals with the authority to institute corrective action. The Mandatory Reporters are required to promptly forward a report of Sexual Harassment to the Title IX Coordinator. This helps ensure the College is able to provide a prompt, thorough, and supportive response. Confidential reporters are exempt from this requirement. Complainants are not required to take any specific course of action, or any action at all, with regard to any process under this Policy as a result of a report made by a Mandatory Reporter.
Preponderance of the Evidence
A preponderance of the evidence means that the information or evidence provided makes a claim more likely than not to be true.
Prohibited Conduct
Behavior banned by this policy. This includes, for purposes of this policy, Sexual Harassment, which includes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, and Stalking.
Remedies
Any necessary measures determined at the conclusion of the resolution process to restore or preserve the Complainant’s equal access to the College’s education program or activity. Remedies will be monitored by the Title IX Coordinator throughout the Complainant’s enrollment, employment, and/or engagement with the College.
Retaliation
“Retaliation” is intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by Title IX and its implementing regulations or because an individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy.
Sexual Assault Defined by 20 U.S.C. 1092(f)(6)(A)(v)
Sexual Assault includes the sex offenses of Rape, Sodomy, Sexual Assault with an Object, Fondling, Incest, and Statutory Rape. (The College's definition of “Sexual Assault” is mandated by federal regulations implementing Title IX of the Education Amendments of 1972. Those regulations require the College to adopt a definition of “Sexual Assault” that incorporates various forcible and non-forcible sex crimes as defined by the FBI’s Uniform Crime Reporting System. See 34 C.F.R. § 106.30(a).) - Rape (except Statutory Rape)
The carnal knowledge of a person, 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 or physical incapacity. There is "carnal knowledge" if there is the slightest penetration of the vagina or penis by the sexual organ of the other person. Attempted Rape is included. Oral or anal sexual intercourse with another person, 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 or physical incapacity. - Sexual Assault with an Object
Using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity An “object” or “instrument” is anything used by the offender other than the offender’s genitalia, e.g., a finger, bottle, handgun, stick. 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 or physical incapacity. Incest means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law. Statutory rape means sexual intercourse with a person who is under the statutory age of consent. In Ohio, anyone under 13 years old cannot consent and if under 16 years old they cannot consent to those older than 18 years old.
Sexual Harassment
Sexual Harassment is conduct on the basis of sex that constitutes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence or Stalking. - Quid Pro Quo Sexual Harassment
Occurs when an employee of the College conditions the provision of an aid, benefit, or service of the College on an individual's participation in unwelcome sexual contact. - Hostile Environment Sexual Harassment
Occurs when unwelcome conduct is determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person access to the College's Education Programs or Activities. In determining whether a hostile environment exists, the College will consider the totality of circumstances, including factors such as the actual impact the conduct has had on the Complainant; the nature and severity of the conduct at issue; the frequency and duration of the conduct; the relationship between the parties (including accounting for whether one individual has power or authority over the other); the respective ages of the parties; the context in which the conduct occurred; and the number of persons affected. The College will evaluate the totality of circumstances from the perspective of a reasonable person in the Complainant’s position. A person’s adverse subjective reaction to conduct is not sufficient, in and of itself, to establish the existence of a hostile environment. - Examples of Sexual Harassment include:
-
Pressure for a dating, romantic, or intimate relationship -
Unwelcome touching, kissing, hugging, rubbing, or massaging -
Pressure for sexual activity -
Unnecessary references to parts of the body -
Sexual innuendos, jokes, humor, or gestures -
Displaying sexual graffiti, pictures, videos or posters -
Using sexually explicit profanity -
Asking about, or telling about, sexual fantasies, sexual preferences, or sexual activities -
Social media use that violates this policy -
Leering or staring at someone in a sexual way, such as staring at a person’s breasts or groin -
Sending sexually explicit emails or text messages - Commenting on a person’s dress in a sexual manner
- Giving unwelcome personal gifts such as flowers, chocolates, or lingerie that suggest the desire for a romantic relationship
Stalking
The term “stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to-- (A) fear for his or her safety or the safety of others; or (B) suffer substantial emotional distress.” Stalking conduct on the basis of sex falls under this policy.
Supportive Measures
These are free, non-disciplinary, non-punitive individualized services offered to the Complainant or Respondent designed to restore or preserve equal access to the College's education programs or activities, protect safety, or deter Sexual Harassment. These are services that are offered as appropriate, reasonably available, and are free of charge. These may be put in place after a report of alleged Sexual Harassment is received by the Title IX Coordinator. These may include, but are not limited to: counseling, extensions of deadlines, modifications of work or class schedules, campus escort services, increased security or monitoring of parts of campus, and mutual restrictions on contact between individuals. The Complainant's wishes will be considered when supportive measures are utilized. |
