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Definitions

Monday, October 19, 2020

Complainant:   Any individual who is alleged to be the victim of conduct that could constitute sexual harassment. At the time of the filing of a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed. Any person may report sex discrimination, including harassment, whether or not the person reporting is the person alleged to be the victim of discrimination or harassment.

Consent: Consent is clear, knowing, and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent.   Consent can be given by words or actions, if those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity. If coercion, intimidation, threats, or physical force are used, there is no consent.   

If a person is mentally or physically incapacitated so that the person cannot understand the fact, nature, or extent of the sexual situation, there is no consent. Incapacitation can be due to alcohol or drugs or being asleep or unconscious. This policy also covers incapacity due to mental disability, involuntary physical restraint, or from the taking of rape drugs. Possession, use and/or distribution of any of these substances, including Rohypnol, Ketamine, GHB, Brundage, etc. is prohibited, and administering one of these drugs to another person is a violation of this policy.   More information on these drugs can be found at http://www.911rape.org/

Use of alcohol or other drugs will never function as a defense to a violation of this policy. An individual violates this policy if the individual initiates and engages in sexual activity with someone who is incapacitated, and (1) the individual knew the other person was incapacitated, or (2) a sober reasonable person under similar circumstances as the person initiating the sexual activity would have known the other person was incapacitated.

 There is also no consent when there is force, expressed or implied, or use of duress or deception upon the victim. Whether an individual has taken advantage of a position of influence over an alleged victim may be a factor in determining consent.

Force is the use of physical violence and/or imposing on someone physically to gain sexual access.   Force also includes overt threats, implied threats, intimidation, and coercion that overcome resistance or produce consent.

Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another.   When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.  

Under Arkansas law, the age of consent varies with the degrees of assault, the age of the actor, and the relationship of the actor to the other party.   For specific information, please refer to Arkansas statutes (e.g., Arkansas Code Annotated § 5-14-125, Sexual Assault in the Second Degree).

Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity.   In addition, previous relationships or prior consent cannot imply consent to future sexual acts.

Dating Violence:   Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim and where the existence of such relationship is determined based on consideration of the following factors: (1) the length of the relationship; (2) the type of relationship; and (3) the frequency of interaction between the persons involved in the relationship.

Days: Refers to working days, rather than calendar days, unless otherwise specified.

Domestic Violence:   The term includes felony or misdemeanor crimes of violence committed by a current 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 Arkansas, or by any other person against an adult or youth victim who is protected from that person’s acts under the laws of Arkansas. Under the Arkansas law on domestic abuse, “family or household members” means spouses, former spouses, parents and children, persons related by blood within the fourth degree of consanguinity, in-laws, any children residing in the household, persons who presently or in the past have resided or cohabitated together, persons who have or have had a child in common, and persons who are presently or in the past have been in a dating relationship together.

Education Program or Activity:   Includes locations, events, or circumstances over which the College exercised substantial control over both the respondent and the context in which the sexual harassment occurred, and also includes any building owned or controlled by an officially recognized student organization.  

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 recipient investigate the allegation of sexual harassment. The phrase “document filed by a complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the College) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.

Party : The complainant or respondent.

Preponderance of the Evidence:   A standard of proof where the conclusion is based on facts that are more likely true than not.

Respondent:   An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

Sanctions:   The determination of sanctions to be imposed against a respondent who is found to have been responsible for violating this policy will depend upon the nature and gravity of the misconduct, any record of prior discipline for a violation of this Policy, or both.   Sanctions against students may include, without limitation, expulsion or suspension from the College, disciplinary probation, expulsion from campus housing, mandated counseling, and/or educational sanctions. Sanctions against employees and other non-students may include, without limitation, a written reprimand, disciplinary probation, suspension, termination, demotion, reassignment, revision of job duties, reduction in pay, exclusion from campus or particular activities, and/or educational sanctions deemed appropriate.

Sexual Assault: The term “sexual assault” means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. A nonforcible sex offense includes incest ( i.e., the nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law) and statutory rape ( i.e., nonforcible sexual intercourse with a person who is under the statutory age of consent). A forcible sex offense is any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent.   A forcible sex offense includes:

  • Forcible rape : the penetration, no matter how slight, of the vagina or anus with any part of the body or object, or oral penetration by a sex organ of another person, without the consent of the victim.
  • Forcible sodomy : Oral or sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against that person’s will in instances where the victim is incapable of giving consent because of his/her youth 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, forcibly and/or against that person’s will or not forcibly or against that person’s will in instances where the victim is incapable of giving consent because of his/her youth or because his/her temporary or permanent or physical incapacity.
  • Forcible fondling : The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will or not forcibly or against that person’s will in instances where the victim is incapable of giving consent because of his/her youth or because his/her temporary or permanent or physical incapacity.

Sexual Harassment: Sexual harassment is conduct on the basis of sex constituting one of the following:

(1)    An employee of the College conditioning the provision of an aid, benefit, or service of the institution on an individual’s participation in unwelcome sexual conduct;

(2)   Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the College’s educational programs or activities; or

(3) Any of the following:

    (A) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v) and this policy

    (B) “Dating violence” as defined in 34 U.S.C. 12291(a)(10) and this policy

    (C) “Domestic violence” as defined in 34 U.S.C. 12291(a)(8) and this policy

    (D) “Stalking” as defined in 34 U.S.C. 12291(a)(30) and this policy  

Stalking:   Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress.

Supportive Measures:   Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without a fee or charge to the complaint or respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the College’s educational environment or deter sexual harassment.