Sexual Misconduct Definitions

 

The following conduct, as defined in this section, is prohibited by this policy. These definitions will be used by the Title IX Administrator and during Wayland Baptist University’s Title IX processes when evaluating whether this policy has been violated. In some instances, where conduct may constitute a criminal offense under Texas law, the Texas statutory definitions are provided in a footnote for educational and awareness purposes only.

ADVISOR – an individual selected by each complainant and respondent to provide support and guidance      throughout the investigation and resolution process. Each party is allowed one advisor.

ALCOHOL IMPAIRMENT – the state of being diminished or weakened due to the consumption of alcohol.

ALCOHOL INTOXICATION – an act or instance of inebriation or drunkenness (BAC level of .08 or greater).

ALCOHOL INCAPACITATION – reached when the individual no longer has the legal ability to act in a specified manner. In sexual misconduct situations the individual lacks the mental capability to understand the situation and is incapable of giving consent.

ACTUAL NOTICE OF COMPLAINT – a complaint, written or verbal, given to a responsible person.

AWARENESS PROGRAM- community‐wide and audience specific programming, initiatives, and strategies that increase audience knowledge and share information and resources to prevent violence, promote safety, and reduce perpetration.

BULLYING: Any verbal, nonverbal, graphic, and/or physical behavior that intimidates and/or intentionally hurts, controls and/or diminishes another person physically, emotionally and/or mentally on the basis of their membership in a category protected above. This may include behavior occurring in person and/or via electronic communication.

BYSTANDER INTERVENTION- Safe and positive options that may be carried out by an individual or individuals to prevent harm or intervene when there is a risk of dating violence, domestic violence, sexual assault, or stalking. This includes recognizing situations of potential harm and understanding institutional structures and cultural conditions that facilitate violence, overcoming barriers to intervening, identifying safe and effective intervention options, and taking actions to intervene.

CLERY ACT – the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990 requires all colleges and universities that receive federal financial aid to keep and disclose information about crime on and near their respective campuses to provide the campus community with timely, accurate and complete information about crime and the safety of campus so that they can make informed decisions to keep themselves safe.

COMPLAINANT- A person who reports he or she has been subjected to discrimination, harassment, or related retaliation.

COMPLICITY: Any act that knowingly aids, facilitates, promotes, or encourages another person to engage in conduct that violates this policy.

CONSENT-[1] Consent to sexual activity is defined as knowing, active, and voluntary permission between the participants, clearly expressed by words or by actions, to engage in mutually agreed upon sexual activity.  Consent cannot be compelled by force, threat of force, coercion, or intimidation. Consent cannot be gained by taking advantage of another person’s incapacitation, as defined herein.  Consent given under such circumstances does not constitute willing and voluntary agreement.

  1. Consent to one sexual act does not constitute consent to others.
  2. Prior consent to a given act does not constitute present or future consent.
  3. The existence of a prior or current relationship does not, in itself, constitute consent; even in the context of a relationship, there must be mutual consent.
  4. Consent must be ongoing throughout a sexual encounter and can be revoked, modified, or withdrawn at any time. Sexual contact must cease immediately once consent is withdrawn.
  5. Consent to an act with one person does not constitute consent to an act with any other person.
  6. Consent cannot be inferred from silence, passivity, or lack of resistance and relying on nonverbal communication alone may result in a violation of this policy.
  7. Consent cannot be given if it is coerced by supervisory or disciplinary authority.
  8. Consent cannot be given if there is a perceived power differential. Examples include but are not limited to: faculty-student, staff-student, supervisor-subordinate employee, and coach-athlete.
  9. Under Texas law, consent cannot be given by a person younger than 17 years of age to sexual penetration or contact by an adult (18 years of age or older) who is three or more years older.

CONSTRUCTIVE NOTICE OF COMPLAINT – in the absence of an actual notice a preponderance of evidence exists to suspect an incident occurred even without a written or verbal complaint.

DECISION MAKER- The decision-maker (who cannot be the same person as the Title IX Coordinator or the investigator) issues a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant.

DISCRIMINATION- The unlawful treatment of an individual based on the individual’s age, race, color, religion, sex, sexual orientation, gender, gender identity, gender expression, national origin, ethnic origin, disability, predisposing genetic information, covered veteran status, and any other basis protected by law that unreasonably interferes with or limits:

  1. A student’s or applicant for admission’s ability to participate in, access, or benefit from educational programs, services or activities (e.g., admission, academic standing, grades, assignment, campus housing);
  2. An employee’s or applicant for employment’s access to employment or conditions and benefits of employment (e.g. hiring, advancement, assignment);
  3. An authorized volunteer’s ability to participate in a volunteer activity; or
  4. A guest’s or visitor’s ability to participate in, access, or benefit from Wayland Baptist University’s programs. Discrimination includes failing to provide reasonable accommodations, consistent with State and federal law, to qualified persons with disabilities.

DISCRIMINATORY HARASSMENT- Students, staff, administrators, and faculty are entitled to an employment and educational environment that is free of discriminatory harassment. Wayland Baptist University’s harassment policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane but controversial or sensitive subject matters protected by academic freedom.

When speech or conduct is protected by academic freedom and/or the First Amendment, it will not be considered a violation of Wayland Baptist University policy, though supportive measures will be offered to those impacted.

Discriminatory harassment constitutes a form of discrimination that is prohibited by Wayland Baptist University policy. Discriminatory harassment is defined as unwelcome conduct by any member or group of the community on the basis of actual or perceived membership in a class protected by policy or law.

Wayland Baptist University does not tolerate discriminatory harassment of any employee, student, visitor, or guest. Wayland Baptist University will act to remedy all forms of harassment when reported, whether or not the harassment rises to the level of creating a “hostile environment.”

A hostile environment is one that unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities.[2] This discriminatory effect results from harassing verbal, written, graphic, or physical conduct that is severe or pervasive and objectively offensive.

FINDING OF NON-RESPONSIBILITY – a civil investigation finding that does not indicate a preponderance of evidence that a violation occurred.

GENDER EQUITY – the process of allocating resources, programs, and decision making fairly to both males and females without any discrimination on the basis of sex.

HOSTILE ENVIRONMENT – Unwelcome conduct by an individual or individuals against another individual based upon her/ his protected class that is sufficiently severe or pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, hostile, or offensive. A hostile environment can be created by a school employee, another student, or even someone visiting the school, such as a student or employee from another school.

Incapacitation: The inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the sexual activity is occurring. A person is mentally incapacitated when that person lacks the ability to make informed decisions about whether or not to engage in sexual activity. A person may be incapacitated as a result of the consumption of alcohol and/or other drugs, or due to a temporary or permanent physical or mental health condition.

When alcohol or other drug use is involved, incapacitation is a state beyond intoxication, impairment, or being under the influence. Alcohol and other drugs impact each individual differently, and determining whether an individual is incapacitated requires an individualized determination. Wayland Baptist University does not expect community members to be medical experts in assessing incapacitation. A person’s level of intoxication is not always demonstrated by objective signs, but individuals should look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest the impacts of alcohol or other drugs differently, typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence.

An individual’s level of intoxication may change over a period of time based on a variety of subjective factors, including the amount of substance intake, speed of intake, body mass, and metabolism. It is especially important, therefore, that anyone engaging in sexual activity be aware of their own level of intoxication and capacity to consent as well as the other person’s level of intoxication and capacity to consent. The use of alcohol or other drugs can lower inhibitions, impair perceptions and create an atmosphere of confusion about whether consent is effectively sought and freely given. If there is any doubt as to the level or extent of one’s own or the other individual’s intoxication or incapacitation, the safest course of action is to forgo or cease any sexual contact.

When evaluating consent in cases of reported incapacitation, the following will be considered: (1) Did the respondent know that the complainant was incapacitated? And if not, (2) Should a sober, reasonable person in a similar set of circumstances as the respondent have known that the complainant was incapacitated? If the answer to either of these questions is “yes,” there was no consent; and the conduct is likely a violation of this policy.

A respondent’s voluntary intoxication is never an excuse for or a defense to Prohibited Conduct, and it does not diminish the responsibility to determine that the other person has given consent.

INCEST – non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law. Legal definitions and prohibitions vary by state.

INTIMIDATION- Unlawfully placing another person in reasonable fear of bodily harm through the use of threatening words and/or other conduct, but without displaying a weapon or subjecting the victim to actual physical attack.

INTIMATE PARTNER VIOLENCE (IPV)- For purposes of this policy includes both Dating Violence and Domestic Violence.

NON-CONSENUAL SEXUAL CONTACT-  Any intentional sexual touching, however slight, with any body part or object, by any individual upon another that is without consent and/or by force or coercion.

Sexual contact includes: intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts or object, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth, or other orifice.

All such acts of non-consensual sexual contact are forms of sexual assault, and therefore sexual misconduct, under this policy.

NON-CONSENSUAL SEXUAL PENETRATION- Any sexual penetration, however slight, with any body part or object, by any individual upon another that is without consent and/or by force or coercion.

Sexual penetration includes: vaginal penetration by a penis, object, tongue, or finger; anal penetration by a penis, object, tongue, or finger; and oral copulation (mouth to genital contact or genital to mouth contact); no matter how slight the penetration or contact.

All such acts of non-consensual sexual intercourse are forms of sexual assault, and therefore sexual misconduct, under this policy.

OFFICE OF CIVIL RIGHTS (OCR) – U.S. Department of Education sub-agency that is tasked with protecting civil rights in federally assisted education programs and prohibiting discrimination on the basis of race, color, national origin, sex, disability, age, or membership in patriotic youth.

ONGOING PREVENTION AND AWARENESS CAMPAIGNS- Programming, initiatives and strategies that are sustained over time and focus on increasing understanding of topics relevant to and skills for addressing dating violence, domestic violence, sexual assault, and stalking, using a range of strategies with audiences throughout the university.

PREDATION – an intent to engage in these acts prior to their occurrence demonstrating premeditation, planning or forethought, and is reflected in communicated intent (physical, verbal, visual, or written), threats directed at a party, attempts to incapacitate a party, attempts to isolate a party, utilizing violence, or other actions that a reasonable person would construe as a pre-meditation to engage in actions that are unwanted by/against the recipient. Committing any of these actions with an individual under the age of consent is also considered predatory.

PREGNANCY- Title IX provides for equal educational opportunities for pregnant and parenting students. ­ It prohibits educational institutions from discriminating against students based on pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery from any of these conditions. ­ It also prohibits schools from applying any rule related to a student's parental, family or marital status that treats students differently based on their sex.

PRIMARY PREVENTION PROGRAM- Programming, initiatives, and strategies informed by research or assessed for value, effectiveness, or outcome that are intended to stop dating violence, domestic violence, sexual assault, and stalking before they occur through the promotion of positive and healthy behaviors that foster healthy, mutually respectful relationships and sexuality, encourage safe bystander intervention, and seek to change behavior and social norms in healthy and safe direction.

PROFESSIONAL AND PASTORAL COUNSELORS- Professional, licensed counselors and pastoral counselors who provide mental-‐health counseling to members of the university community (and including those who act in that role under the supervision of a licensed counselor) are not required to report any information about an incident to the Title IX Administrator without a victim/complainant’s permission

RESPONDENT- A person who is charged with committing acts of discrimination, harassment, or retaliation.

RESPONSIBLE EMPLOYEE- A “responsible employee” is a university employee who has the authority to redress sexual violence, who has the duty to report incidents of sexual violence or other student misconduct, or who a student could reasonably believe has this authority or duty. A responsible employee must report to the Title IX Administrator all relevant details about the alleged sexual violence shared by the victim and that the university will need to determine what happened –including the names of the victim and alleged perpetrator(s), any witnesses, and any other relevant facts, including the date, time and specific location of the alleged incident.

REPORTER – an individual who observed or was made aware of an alleged violation and who provides an    initial oral or written account of an alleged violation of this regulation.

RETALIATION- Action taken against any person because he/she opposed or made a good faith internal or external report or complaint of conduct of the type prohibited by this policy or because he/she has testified, assisted or participated in an investigation of conduct of the type prohibited by this policy or in related proceedings. Retaliation can take many forms, including, but not limited to, adverse action or violence, threats, acts of intimidation, other acts of harassment or discrimination that would discourage a reasonable person (under similar circumstances and with similar identities to the complainant) from engaging in a protected activity.

RISK REDUCTION- Options designed to decrease perpetration and bystander inaction, and to increase empowerment for victims in order to promote safety and to help individuals and communities address conditions that facilitate violence.

SEXUAL ASSAULT-[3] For purposes of this policy it means any sexual act directed against another person without his/her consent, including instances where he/she is incapable of giving consent. For purposes of this policy, Sexual Assault includes Non-Consensual Sexual Contact, Non-Consensual Sexual Intercourse, Incest and Statutory Rape as those terms are defined herein.

SEXUAL EXPLOITATION- Purposely or knowingly doing any of the following:

  • Observing and/or watching other(s) engaged in intimate behaviors including, but not limited to, undressing, sexual activity, using the bathroom, bathing, or other actions usually considered to be of a private nature, without the other person’s knowledge or consent (often referred to as voyeurism);
  • Recording, photographing, transmitting, showing, viewing, streaming, or distributing pictures, video or audio of another person in a sexual act, or in any other intimate/private activity without the knowledge and consent of all persons involved in the activity;
  • Exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent);
  • Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV), a sexually transmitted disease (STD) or infection (STI) without informing the other person of the infection;
  • Administering alcohol or drugs (such as “date rape” drugs) to another person without their knowledge or consent; or
  • Exposing one’s genitals in non-consensual circumstances.
  • Prostituting another person
  • Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections
  • Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity
  • Knowingly soliciting a minor for sexual activity
  • Engaging in sex trafficking
  • Creation, possession, or dissemination or child pornography

 

SEXUAL HARRASSMENT- Sexual Harassment, as an umbrella category, includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking, and is defined as:

Conduct on the basis of sex that satisfies one or more of the following:

  • Quid Pro Quo:
    1. an employee of the recipient,
    2. conditions the provision of an aid, benefit, or service of the recipient,
    3. on an individual’s participation in unwelcome sexual conduct; and/or
  • Sexual Harassment:
    1. unwelcome conduct,
    2. determined by a reasonable person,
    3. to be so severe, and
    4. pervasive, and,
    5. objectively offensive,
    6. that it effectively denies a person equal access to Wayland Baptist University’s education program or activity.
  • Sexual assault, defined as:
  1. Sex Offenses, Forcible:
    1. i) Any sexual act directed against another person,
    2. ii) without the consent of the Complainant,
  • iii) including instances in which the Complainant is incapable of giving consent.
  1. Forcible Rape:
    1. i) Penetration,
    2. ii) no matter how slight,
  • iii) of the vagina or anus with any body part or object, or
  1. iv) oral penetration by a sex organ of another person,
  2. v) without the consent of the Complainant.
  1. Forcible Sodomy:
    1. i) Oral or anal sexual intercourse with another person,
    2. ii) forcibly,
  • iii) and/or against that person’s will (non-consensually), or
  1. iv) not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age[4] or because of temporary or permanent mental or physical incapacity. 
  1. Sexual Assault with an Object:
    1. i) The use of an object or instrument to penetrate,
    2. ii) however slightly,
  • iii) the genital or anal opening of the body of another person,
  1. iv) forcibly,
  2. v) and/or against that person’s will (non-consensually),
  3. vi) or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. 
  1. Forcible Fondling:
    1. i) The touching of the private body parts of another person (buttocks, groin, breasts),
    2. ii) for the purpose of sexual gratification,
  • iii) forcibly,
  1. iv) and/or against that person’s will (non-consensually),
  2. v) or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. 
  1. Sex Offenses, Non-forcible:
    1. i) Incest:
      • Non-forcible sexual intercourse,
      • between persons who are related to each other,
      • within the degrees wherein marriage is prohibited by Texas state law. 
    2. ii) Statutory Rape:
      • Non-forcible sexual intercourse,
      • with a person who is under the statutory age of consent of 17.
  • Dating Violence, defined as:
    1. violence,
    2. on the basis of sex,
    3. committed by a person,
    4. who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.
      1. The existence of such a relationship shall be determined based on the Complainant’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. For the purposes of this definition—
      2. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
  • Dating violence does not include acts covered under the definition of domestic violence.
  • Domestic Violence, defined as:
    1. violence,
    2. on the basis of sex,
    3. committed by a current or former spouse or intimate partner of the Complainant,
    4. by a person with whom the Complainant shares a child in common, or
    5. by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
    6. by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of Texas, or
    7. by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of

*To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.

  • Stalking, defined as:
    1. engaging in a course of conduct,
    2. on the basis of sex,
    3. directed at a specific person, that
      1. would cause a reasonable person to fear for the person’s safety, or
      2. the safety of others; or
  • Suffer substantial emotional distress.

                                For the purposes of this definition—

  • Course of conduct means two or more acts, including, but not limited to,

acts in which the Respondent 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.

  • Reasonable person means a reasonable person under similar circumstances

and with similar identities to the Complainant.

  • Substantial emotional distress means significant mental suffering or

anguish that may but does not necessarily require medical or other professional treatment or counseling.

SEXUAL MISCONDUCT – term that encompasses sexual harassment, sexual violence, and stalking. Can occur between individuals who know one another, have an established relationship, have previously engaged in consensual sexual activity, or individuals who do not know one another.

SEXUAL VIOLENCE – category that includes sexual assault, rape, stalking, domestic/intimate partner violence, and dating violence. Sexual Violence represents conduct involving physical sexual acts

perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s incapacity. An individual’s incapacity may arise from use of drugs or alcohol or individual conditions including intellectual or other disability.

STALKING, defined as:

  1. engaging in a course of conduct,
  2. on the basis of sex,
  3. directed at a specific person, that
    1. would cause a reasonable person to fear for the person’s safety, or
    2. the safety of others; or
  • Suffer substantial emotional distress.
  1. For the purposes of this definition—
    1. Course of conduct means two or more acts, including, but not limited to,
    2. acts in which the Respondent 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.
  • Reasonable person means a reasonable person under similar circumstances
  1. and with similar identities to the Complainant.
  2. Substantial emotional distress means significant mental suffering or
  3. anguish that may but does not necessarily require medical or other professional treatment or counseling.

STATUTORY RAPE [5] Sexual intercourse with a person who is under the statutory age of consent.

TITLE IX – portion of the 1972 Education Amendments to the Civil Rights Act of 1964 which states “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

UNFOUNDED CRIME – a crime may be “unfounded” only if sworn or commissioned law enforcement personnel have fully investigated the reported crime and, based on the results of the full investigation and evidence, have made a formal determination that the crime report is false or baseless and therefore “unfounded.” Both “founded” and “unfounded” crimes must be reported on the Clery Annual Security Report.

VAWA – the Violence Against Women Act passed in 2013 amended the Clery Act to include Dating Violence, Domestic Violence and Stalking incidents (DVDVS). It also details the role of law enforcement, the types of crimes mandated for reporting, and stipulates the need for violence prevention programming.

VOYEURISM- Trespassing, spying, or eavesdropping.

[1] When assessing whether a criminal offense of sexual assault has been committed, see Texas Penal Code §22.011 for information on consent.

[2] Sexual Harrassment Guidance: https://www2.ed.gov/about/offices/list/ocr/docs/shguide.html 

[3] See 34 CFR 668.46(a) for the source of this definition. For the definition of sexual assault under the Texas Penal Code, see Texas Penal Code, §22.011(a).

[4] Per state law.

[5] See 34 CFR 668.46(a)for the source of this definition.