II. Definitions

Advisor: Refers to an individual of the party’s choosing who may, but does not have to be, an attorney, and who can provide assistance to the Complainant or the Respondent during any stage of the processes covered by this Policy. Advisors may attend these processes. The College will provide a list of individuals who have received training to serve as advisors and ask questions of a party or witness during a complaint resolution hearing.

Appeals Board: Refers to a group of trained College faculty and staff members that hears and decides appeals of findings and sanctions imposed by the decision-maker(s) for all Respondents except tenured faculty, whose appeal will be heard by the Rhodes Board of Trustees. The Appeals Board will consist of three members (one of whom will be designated as the board’s chairperson), selected from a pool of trained faculty and staff who have no prior involvement in the case and are free of any conflict of interest. This three-member board is authorized to affirm, alter, or reverse the original findings and/or sanctions recommended by the decision-maker(s). Once issued, the Appeals Board’s decision is final.

Complainant: Refers to an individual who is alleged to be the victim of conduct that could constitute sexual harassment (defined below).

Complaint: See Formal Complaint below.

Coercion: Means the use of pressure to compel another individual to initiate or continue activity against their will, including psychological or emotional pressure, physical or emotional threats, intimidation, manipulation, or 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, but are not limited to threatening to “out” someone based on sexual orientation, gender identity, or gender expression; threatening to harm oneself if the other party does not engage in the sexual activity; and threatening to expose someone’s prior sexual activity to another person and/or through digital media.

Consent: Means an affirmative, conscious decision by each participant to engage in mutually agreed-upon sexual activity. The presence or absence of consent is determined by evaluating all the relevant facts and circumstances. All five of the following elements are essential in order to have consent. If one or more of the following is absent, there is no consent.

1. Consists of Mutually Understandable Communication: Communication regarding consent consists of mutually understandable words and/or actions that indicate an unambiguous willingness to engage in sexual activity. In the absence of clear communication or outward demonstration, there is no consent. 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 an erroneous conclusion as to whether consent was sought or given. Verbal communication is the best way to ensure all individuals are willing and consenting to the sexual activity.

2. 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, at the same time, in the same way.

3. Freely and Actively Given: Consent cannot be obtained through the use of force, coercion (defined above), threats, intimidation or pressuring, or by taking advantage of the incapacitation (defined below) of another individual.

4. 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.

5. Not Indefinite: 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.

   Dating Violence: A form of sexual harassment defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship is determined based on a consideration of the following factors: (i) the length of the relationship, (ii) the type of relationship, and (iii) the frequency of interaction between the persons involved in the relationship.

   Decision-maker(s): Refers to the individual or group of individuals who adjudicates complaints of sexual harassment and, if applicable, determines the appropriate sanction. Where a three- member hearing board is used, the board will be selected by the Title IX Coordinator from the available pool of faculty and staff who are trained to serve as hearing board members. One of the three board members will be designated as the chairperson. In all cases, a decision-maker will have no prior involvement in the case and be free of conflicts of interest or bias towards one party or the other.

   Domestic Violence: A form of sexual harassment defined as felony or misdemeanor crimes of violence (including threats or attempts) committed between:

   1. Individuals who are current or former spouses or intimate partners;

   2. Persons who share a child in common;

   3. Persons who currently live together or have formerly lived together as spouses or intimate partners;

   4. A person similarly situated to a spouse of the victim under the domestic or family violence laws of the school’s jurisdiction, or

   5. Any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the State of Tennessee.

   Formal Complaint: Means a document (hard copy or electronic) filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the College investigate the allegation of sexual harassment. The filing of a formal complaint triggers the College’s complaint resolution process, described in Sections IX and X.

   Incapable of Giving Consent (also known as “Incapacitation”): Means the lack of the ability to make rational, reasonable judgments as a result of alcohol consumption, other drug use, sleep, the taking of any so-called “date-rape” drug, unconsciousness, or blackout. An individual unable to make informed judgments is physically helpless. An incapacitated person cannot make rational, reasonable decisions because that person lacks the ability to fully understand the who, what, where, or how of their sexual interaction. Incapacitation is a state beyond drunkenness or intoxication, in which alcohol, drugs, or other factors render one unable to make fully informed judgments or have an awareness of consequences. Evaluating incapacitation also requires an assessment of whether a Respondent knew or should have known of the other individual's incapacitated state. While incapacitation may be caused by drugs or alcohol, it also includes the state of being asleep, during which time a person is unable to provide affirmative consent.

   Investigator: Refers to an official(s) designated by the Title IX Coordinator to conduct an investigation of alleged sexual harassment, and who acts as a witness in the event of a complaint resolution hearing. The Investigator will be a trained individual who collects and examines the facts and circumstances of potential violations of this Policy and provides an investigative report to the Title IX Coordinator and the decision-maker(s). The Investigator will be neutral and free of any conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.

   Mandatory Reporter: Refers to an individual who is obligated to report any knowledge they may have of sexual harassment. Rhodes College defines all faculty and staff as mandatory reporters except certain “confidential resources” staff. See mandatory reporting policy at https://sites.rhodes.edu/titlenine/reporting/mandatory-reporting.

   Medical records: A party’s records that are maintained by a physician, nurse, nurse practitioner, psychiatrist, psychologist, licensed clinical social worker, therapist or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party.

   Preponderance of Evidence: Refers to the standard by which it is determined at a hearing whether or not a violation of this Policy has occurred, and means that an act of sexual harassment is “more likely than not” to have occurred.

   Report: Refers to any communication to the Title IX Coordinator, the Provost or the Chief Human Resources Officer of an allegation that sexual harassment occurred or may have occurred. Rhodes will investigate all reports it receives of sexual harassment. After making a report, an individual may choose to end their involvement in the process or may choose to be involved or not be involved in the College’s investigation and related proceedings. The College strongly encourages all individuals to report incidents of sexual harassment even if the individual does not intend to be further involved.

   Reporter: Refers to an individual who makes a report of conduct that could constitute sexual harassment. Reporters include persons who believe they have been the victim of sexual harassment or someone who has observed or has knowledge of conduct that may be sexual harassment.

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

   Sex Discrimination: Refers to the unequal treatment of an individual based on their sex in any employment decision, education program or educational activity receiving federal financial assistance. Such programs or activities include, but are not limited to, admission, hiring and recruitment, financial aid, academic programs, student treatment and services, counseling and guidance, discipline, classroom assignment, grading, vocational education, recreation, physical education, athletics, housing and employment. The prohibition on sex discrimination also covers unlawful discrimination based on gender identity, sexual orientation, marital or family status, pregnancy, termination of pregnancy, childbirth or related conditions.

   Sexual Assault: A form of sexual harassment defined as an act of sexually-motivated physical contact directed towards another person when the other person does not consent or is incapable of giving consent. The definition of sexual assault under Title IX includes the following:

   1. Rape: The penetration, no matter how slight, of the vagina or anus with any body part or object or instrument, or oral penetration by a sex organ of another person, without the consent of the other person or where the other person is incapable of giving consent, including instances where the other person is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity. Attempted rape is included. An object or instrument is anything used by the offender other than their genitalia.

   2. Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of that person, including instances where the other person is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity.

   3. Incest: Non-forcible sexual intercourse between persons who are related to each other within the degrees where marriage is prohibited by law.

   4. Statutory Rape: Non-forcible sexual intercourse with a person who is under the statutory age of consent.

   Sexual Harassment: Conduct on the basis of sex that satisfied one or more of the following:

   1. A Rhodes employee’s conditioning the provision of an aid, benefit or service on an individual’s participation in unwelcome sexual conduct.

   2. Unwelcome sexual conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Rhodes’ education programs or activities.

   3. Sexual Assault (defined above).

   4. Dating Violence (defined above).

   5. Domestic Violence (defined above).

   6. Stalking (defined below).

   Stalking: A form of sexual harassment defined as engaging in a course of conduct directed at a specific person that would cause a reasonable person to (1) fear for the person’s safety or the safety of others; or (2) to suffer substantial emotional distress.

   Types of stalking could include, but are not limited to:

   1. Following the targeted person;

   2. Approaching or confronting that person in a public place or on private property;

   3. Persistent and unwelcome attempts to contact the person by phone, electronic communication (including via the internet and cellphones), or regular mail, either anonymously or non-anonymously;

   4. Vandalizing the person’s property or leaving unwanted items for the person;

   5. Persistently appearing at the person’s classroom, residence, or workplace without that person's permission or other lawful purpose;

   6. Cyber-stalking, in which a person follows, observes, monitors, or surveils another person through the use of electronic media such as the Internet, digital media networks, blogs, cell phones, texts or other similar devices; and

   7. Using visual or audio recording devices or hidden or remote cameras used without the subject’s consent.

   Supporter: An individual who provides emotional support to a party by accompanying them to any hearing, conference or related proceedings. Supporters may not actively participate during complaint resolution hearings and informal resolution conferences.

   Supportive measures: Individualized services reasonably available to a Complainant or Respondent that are non-punitive, non-disciplinary, and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment. See Section IX.A. of this Policy for examples of supportive measures.

   Title IX Coordinator: Refers to the Rhodes official who oversees the Title IX process at Rhodes, and includes the Deputy Title IX Coordinator(s).