Alleged Victim: A person who perceives that they have been the victim or survivor of Sexual Misconduct as defined in this Policy. 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 under this Policy. In the case of students, that person is typically the Dean of Students; in the case of employees, that person is typically the Director of Human Resources. Depending on the circumstances of each case, the College reserves its right to select a different Appellate Officer to decide an appeal. Cases involving faculty are handled in accordance with the Faculty Handbook.
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” in this policy, requires U.S. colleges and universities that receive federal financial assistance to disclose information about crime on and around their campuses and 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 set forth in this Policy to the Title IX Coordinator, Deputy Title IX Coordinator or Title IX Investigators identified in 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 he or she has 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. 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:
- Informed and reciprocal: All Parties 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.
- 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.
- 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.
- Not indefinite: Affirmative consent 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 all Parties must obtain mutually expressed or clearly stated consent before continuing further sexual activity.
- 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. Even in the context of a current or previous intimate relationship, each party must consent to each instance of sexual contact each time. The consent must be based on mutually understandable communication that clearly indicates a willingness to engage in sexual activity. The mere fact that there has been prior intimacy or sexual activity does not, by itself, imply consent to future acts.
- Age: The state of California considers sexual intercourse with a minor (under age 18) to be unlawful. A person who engages in felony “unlawful” sexual intercourse as described in the California Penal Code does so without effective consent as defined by the College’s Sexual Misconduct Policy. Specifically, there is no effective consent under the College’s Sexual Misconduct Policy where one party (the “minor”) is under the age of 18, and the other party is more than three years older than the minor.
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 a clear demonstration of a lack of consent.
Coercion: Coercion is unreasonable pressure used to compel another individual to participate in sexual activity, and includes threats and Intimidation, to overcome resistance or produce consent. Coercion 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 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., to understand the who, what, when, where, why, or how of 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; or (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 Complainant affirmatively consented to the sexual activity if the Respondent knew or reasonably should have known that the Complainant was unable to consent to the sexual activity under any of the following circumstances: (1) the Complainant was asleep or unconscious; (2) the Complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the Complainant could not understand the fact, nature, or extent of the sexual activity; (3) the Complainant was unable to communicate due to a mental or physical condition.
Whether the Respondent reasonably should have known that the Complainant was incapacitated will be evaluated using an objective reasonable person standard. The fact that the Respondent was actually unaware of the Complainant’s incapacity is irrelevant to this analysis, particularly where the Respondent’s failure to appreciate the Complainant’s incapacitation resulted from the Respondent’s failure to take reasonable steps to determine the Complainant’s incapacitation or where the Respondent’s own incapacitation (from alcohol or drugs) caused the Respondent to misjudge the Complainant’s incapacity.
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.
Being intoxicated by drugs or alcohol is no defense to any violation of this Policy and does not diminish one’s responsibility to obtain consent.
Respondent: Anyone accused of Sexual Misconduct defined in this Policy and against whom an informal or formal complaint has been submitted to the Title IX Coordinator or Title IX Investigators identified in this Policy.
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.
Sexual Misconduct Adjudication Board (the “Board”): A minimum of two College Officials designated by the Title IX Coordinator who receives annual training relating to Title IX, sexual misconduct and sexual misconduct investigations charged with the responsibility of adjudicating Sexual Misconduct cases. The Sexual Misconduct Adjudication Board is presented with a report containing the results of a Sexual Misconduct investigation and a recommendation regarding whether the Respondent should be found responsible for the charged violation(s). The Board, in a closed meeting, after consideration of the report and consultation with the investigators, and using the preponderance of evidence standard, makes a determination of responsibility and sanctions, if any. The decision of the Board is final unless a proper appeal as provided in this Policy is pursued.
Title IX: "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. Title IX prohibits discrimination on the basis of sex in educational programs operated by institutions that receive federal financial assistance. Programs and activities that may be included are: admissions, recruitment, financial aid, academic programs, athletics, housing and employment. 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 who receives annual training regarding conducting and documenting an adequate, reliable, and impartial investigation, including one that protects the safety of Alleged Victims and reporting parties and promotes accountability. Title IX investigators interview Alleged Victims, Complainants, Respondents, and witnesses and compile a report that includes a recommended finding of “responsible” or “not responsible”, based on the preponderance of evidence standard, for violations of the Sexual Misconduct Policy. This report is then provided to the Sexual Misconduct Adjudication Board.
This policy was edited on August 11, 2016.