Definitions

Adjudicating Party

Chosen by the Title IX Coordinator, or their designee, this person or persons determine responsibility for alleged policy violations and imposes sanctions. 

Advisor

Any person asked by the Complainant, Responding Party, or a witness to assist the resolution process. The Advisor is an inactive participant. Advisors are not permitted to directly address the Adjudication Party during formal Title IX proceedings. The Advisor may guide the person they are advising through the process, help them formulate questions, and help the person understand the Whittier College Sexual Misconduct Policy. Complaint or Responding Party may choose to have, but are not limited to, a trained faculty or staff member as their Advisor. 

Appeals Officer

The person designated to decide appeals submitted by a Complainant or Responding Party following a resolution of allegations of 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 Appeals Officer to decide an appeal. 

California Law

The following excerpts are only partially explanatory of certain California laws pertaining to sexual and interpersonal misconduct. These excerpts are not intended to be an exhaustive description or list of California laws pertaining to sexual misconduct, inappropriate or criminal sexual behavior or interpersonal misconduct.

Excerpts from Sections 11165.1 and 261 of the California Penal Code

Sexual Assault includes rape, statutory rape, rape in concert, incest, sodomy, lewd or lascivious acts upon a child, oral copulation, sexual penetration, child molestation and the following:

  1. Penetration, however slight, of the vagina or anal opening of one person by the penis of another person, whether or not there is emission of semen.
  2. Sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
  3. Intrusion by one person into the genitals or anal opening of another person, including the use of an object for this purpose, except that, it does not include acts performed for a valid medical purpose.
  4. The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs and buttocks or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.
  5. The intentional masturbation of the perpetrator’s genitals in the presence of a child.

Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

  1. Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal Consent, and this is known or reasonably should be known to the person committing the act.
  2. Where it is accomplished against a person’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury on the person or another.
  3. Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
  4. Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions: 
    1. Was unconscious or asleep. 
    2. Was not aware, knowing, perceiving or cognizant that the act occurred.
    3. Was not aware, knowing, perceiving or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact. d. Was not aware, knowing, perceiving or cognizant of the essential characteristics of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
  5. Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense or concealment practiced by the accused, with the intent to induce the belief. 
  6. Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury or death.
  7. Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. The perpetrator does not actually have to be a public official.

California law also states that “The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime” (Penal Code section 263). California law further defines both marital rape (Penal Code section 262) and “statutory rape” (Penal Code section 261.5).

Though laws vary from state to state, intercourse in which Consent was not obtained or was obtained under coercive conditions will usually be considered rape.

Excerpt from Section 67386 of the California Education Code

The governing boards of independent postsecondary institutions shall adopt a policy concerning Sexual Assault, Domestic Violence, Dating Violence and Stalking, as defined in the federal Higher Education Act of 1965 involving a Student, both on and off campus. This policy shall include an affirmative Consent standard in the determination of whether Consent was given by both parties to sexual activity.

“Affirmative Consent” means 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 or others to engage in the sexual activity. Lack of protest or resistance does not mean Consent, nor does silence mean Consent. Affirmative Consent must be ongoing throughout a sexual activity and can be revoked at any time. 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.

Excerpts from Section 261.6 and 261.7 of the California Penal Code

In prosecutions under Section 261, 262, 286, 287 or 289, in which Consent is at issue, “Consent” shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. 

A current or previous dating or marital relationship shall not be sufficient to constitute Consent where Consent is at issue in a prosecution under Section 261, 262, 286, 287 or 289. Nothing in this section shall affect the admissibility of evidence or the burden of proof on the issue of Consent. In prosecutions under Section 261, 262, 286, 287 or 289, in which Consent is at issue, evidence that the victim suggested, requested or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of Consent, is not sufficient to constitute Consent.

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.

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 unreasonably 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.

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.

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 Responding Party was reckless or intoxicated and, therefore, did not realize the incapacity of the other party.  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 mutual 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 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 within a reasonably immediate time and not resumed until the requirements above are met again.

Consent is not unlimited, and reasonable conditions on consent can be determined by the parties.  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.

Independently hired adjudicator

An external individual professionally trained to adjudicate student disciplinary matters. This adjudicator has the authority to take testimony and evidence and make a determination on an allegation. This adjudicator will be assigned to and briefed on a given case as determined by the Title IX Coordinator. 

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 is physically helpless and/or 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). 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 as the result of 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 is not a valid excuse that the Responding Party believed that the Complainant affirmatively consented to the sexual activity if the Responding Party knew or reasonably should have known that the Complainant was incapacitated.  Whether the Responding Party reasonably should have known that the Complainant was incapacitated will be evaluated using an objective reasonable person standard.  The Responding Party 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.

Responding Party

Means the individual(s) whose behavior is alleged to have violated the Student Code of Conduct.

Sexual Misconduct

Sexual misconduct as used in this Policy is an umbrella term intended to include sexual behavior or behavior on the basis of sex/gender or sexual/gender identity that includes but is not limited to the prohibited conduct set forth in the next section of this Policy. Sexual Misconduct violations may be found regardless of the sex, gender, sexual orientation and/or gender identity of those involved.

Student Conduct Review Board

The body of individuals trained to adjudicate student disciplinary matters. Each hearing board will generally consist of at least one faculty member and at least one staff member, along with a designated board chair who can wither be a faculty or staff member. The members of the Student Conduct Review Board assigned to a given case are determined by the Title IX Coordinator.

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 are forms of sex discrimination prohibited by Title IX and include 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 to investigate allegations of Sexual Misconduct under this Policy.  Title IX Investigators receive annual training on conducting and documenting adequate, reliable, and impartial investigations. While the College conducts most of its investigations allegations through its own Title IX investigators, it has the discretion to hire non-College employees to conduct investigations allegations when appropriate.

Witness

Person or persons who are identified as an individual(s) who may have relevant information to the facts of the case. This person or persons typically have knowledge of the event from personal observation or experience. 

This policy was updated on February 5, 2020