Definitions

Alleged Victim

A person who perceives that they have been the victim of Sexual Misconduct. An Alleged Victim may also be a Complainant.

Accused

A person who has been accused of Sexual Misconduct. An Accused may also be a Respondent.

Appellate Officer

The person designated to decide appeals submitted by a Complainant or Respondent following an adjudication of alleged Sexual Misconduct. In the case of students, that person is the Associate Dean of Students.  Depending on the circumstances of each case, the College reserves its right to select a different Appellate Officer to decide an appeal. 

Clery Act

The Jeanne Clery Disclosure of Campus Security Policy and Crime Statistics Act (20 USC § 1092(f)), also known as “Clery” or “the Clery Act,” requires U.S. colleges and universities that receive federal financial assistance to disclose information about crime on and around their campuses.  The Clery Act is enforced by the United States Department of Education. At Whittier College, Campus Safety maintains compliance with the Clery Act by collecting data and reporting it in the Annual Security Report and on the Whittier College website.

Complainant

One who submits an informal or formal complaint of Sexual Misconduct to a Title IX Coordinator, or to any Mandated Reporters as described on page 7 of this Policy.  A Complainant may or may not be an Alleged Victim.

Consent

An affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that they have the affirmative consent of the other(s) to engage in the sexual activity. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent. It is not an excuse that the person accused of Sexual Misconduct was reckless or intoxicated and, therefore, did not realize the incapacity of the other.  The following are essential components of Consent:

  1. Informed and reciprocal:  All persons must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting and a willingness to do the same thing and at the same time.
  2. Freely and actively given:  Consent cannot be obtained through the use of force, coercion, threats, intimidation or pressuring, or by taking advantage of the incapacitation of another individual.
  3. Mutually understandable:  Communication regarding consent consists of mutually understandable words and/or actions that indicate a mutually unambiguous willingness to engage in sexual activity. Consent may not be inferred from silence, passivity, lack of resistance, or lack of active response. An individual who does not physically resist or verbally refuse sexual activity is not necessarily giving consent. Relying solely upon non-verbal communication can lead to a false conclusion as to whether consent was sought or given.
  4. Capacity to Consent:  A person under the age of 18 does not have the legal capacity to consent.  The state of California considers sexual intercourse with a minor (under age 18) to be unlawful. (Cal. Penal Code §261.5) A person who engages in sexual intercourse with a person under age 18 does so without effective consent as defined by this Policy.  Also, in order to give consent, a person must not be mentally or physically incapacitated (see definition of Incapacitation below).

Affirmative consent is not indefinite and must be ongoing throughout the activity. Consent may be withdrawn by any party at any time. Recognizing the dynamic nature of sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate clearly throughout all stages of sexual activity. Withdrawal of consent can be an expressed “no” or can be based on an outward demonstration that conveys that an individual is hesitant, confused, uncertain, or is no longer a mutual participant. Once consent is withdrawn, the sexual activity must cease immediately and not resumed until the requirements above are met again.

Consent is not unlimited. Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to sexual activity with one person constitute consent to activity with any other person. Each participant in a sexual encounter must consent to each form of sexual contact with each participant.

Force

The use or threat of physical violence and/or imposing on someone physically to gain sexual access. Consent obtained by force is not valid. For the use of force to be demonstrated, there is no requirement that a Complainant resist the sexual advance or request. However, evidence of resistance by the Complainant will be viewed as indicative of a lack of consent.

Coercion

Coercion is unreasonable pressure used to compel another individual to participate in sexual activity. This can include a wide range of behaviors, including Intimidation, manipulation, threats, and blackmail. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include threatening to “out” someone based on sexual orientation, gender identity, or gender expression and threatening to harm oneself if the other party does not engage in the sexual activity. When someone indicates, verbally or physically, that they do not want to engage in a particular sexual activity, that they want to stop a particular activity, or that they do not want to go past a certain point of sexual interaction, continued activity or pressure to continue beyond that point can be coercive. The College will evaluate the following in determining whether coercion was used: (a) the frequency of the application of pressure, (b) the intensity of the pressure, (c) the degree of isolation of the person being pressured, and (4) the duration of the pressure.
Intimidation:  The use of implied threats, whether physical, mental or emotional, to gain sexual access. Consent obtained by Intimidation is not valid. 

Incapacitation

A state where an individual cannot make an informed and rational decision to engage in sexual activity because of a lack of conscious understanding of the fact, nature, or extent of the act (e.g., who, what, when, where, why, or how relating to the sexual interaction) and/or is physically helpless. For example, an individual is incapacitated, and therefore unable to give consent, if the individual is asleep, unconscious, or otherwise unaware that sexual activity is occurring.  An individual will also be considered incapacitated if the person cannot understand the nature of the activity or communicate due to a mental or physical condition.

Incapacitation may result from the use of alcohol, drugs, or other medication. Consumption of alcohol or other drugs alone is insufficient to establish Incapacitation. The impact of alcohol and drugs varies from person to person, and evaluating Incapacitation requires an assessment of how the consumption of alcohol and/or drugs impacts an individual’s (1) decision-making ability, (2) awareness of consequences, (3) ability to make informed judgments and (4) capacity to appreciate the nature and the quality of the act.

It shall not be a valid excuse that the Respondent believed that the Alleged Victim affirmatively consented to the sexual activity if the Respondent knew or reasonably should have known that the Complainant could not consent.  Whether the Respondent reasonably should have known that the Alleged Victim was incapacitated will be evaluated using an objective reasonable person standard.  The Respondent being intoxicated by drugs or alcohol is no defense to any violation of this Policy and does not diminish one’s responsibility to take reasonable steps to determine the other’s incapacitation or to obtain consent.

It is the responsibility of each party to be aware of the intoxication level of the other party before engaging in sexual activity. In general, sexual activity while under the influence of alcohol or other drugs poses a risk to all parties. If there is any doubt as to the level or extent of the other individual’s intoxication, it is safest to forgo or cease any sexual contact or activity.

Respondent

Anyone accused of Sexual Misconduct defined in this Policy and against whom an informal or formal complaint has been submitted to a Title IX Coordinator or Title IX Investigators.
Sexual Misconduct:  Sexual misconduct as used in this Policy is an umbrella term intended to include harmful behavior when done because of a person’s sex/gender or sexual/gender identity, and includes but is not limited to the prohibited conduct set forth in the next section of this Policy. Acts of Sexual Misconduct may be committed by any person upon another person regardless of the sex, gender, sexual orientation and/or gender identity of those involved.

Title IX

Title IX is a federal statute that provides, "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..."  20 U.S.C. § 1681. Sexual harassment and sexual misconduct of students is a form of sex discrimination prohibited by Title IX and includes acts of sexual violence. Students of all gender identities are protected from sexual harassment and/or violence in all educational programs and activities operated by Whittier College. 

Title IX Investigator

A member of the College staff or faculty charged with the responsibility of investigating claims of Sexual Misconduct under this Policy.  Title IX Investigators receive annual training regarding conducting and documenting adequate, reliable, and impartial investigations and, when students are Respondents, determining whether, based on the preponderance of the evidence, a student has violated this Policy.  While the College conducts most of its investigations and adjudicates complaints through its own Title IX investigators, it has the right to hire non-College employees to conduct investigations and adjudicate such complaints when it deems appropriate.

This policy was edited on August 6, 2018