XIII.  Definitions

Please also refer to Section II.B. for more information about certain key definitions.

Advisor: Refers to an attorney or a non-attorney advisor who can provide assistance to the Complainant or the Respondent during Resolution Hearings, Informal Resolution conferences, and any other stage of the processes covered by this Policy, although they are not permitted to directly participate. Rhodes will provide a list of individuals who have received training to serve as Advisors, but parties retain the right to select their own Advisor if they so choose.  

Affirmative 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 the relevant facts and circumstances. All five of the following elements are essential in order to have affirmative consent. If one or more of the following is absent, there is no affirmative consent.

  • 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.
  • 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.
  • Freely and Actively Given: Consent cannot be obtained through the use of force, coercion, threats, or intimidation, or by taking advantage of the incapacitation of another individual.
  • 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.
  • 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 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.

Because of the commitment to maintaining an environment that supports Rhodes’ educational mission, the College prohibits romantic, sexual, and exploitative relationships between college employees and students. (See Rhodes College Handbook-Fraternization Policy For Faculty and Staff)

Under Tennessee law, people under the age of eighteen (18) may not be able to legally consent under certain circumstances.

Appeals Board: Refers to a group of trained Rhodes faculty and staff members that hears and decides appeals of findings and sanctions imposed by the Sexual Misconduct Hearing Board (defined below). 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 had no prior involvement in the case. This three-member board is authorized to affirm, alter, or reverse the original findings and/or sanctions recommended by the Sexual Misconduct Hearing Board. Once issued, the Appeals Board’s decision is final.

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.

Complaint: Refers to a written complaint filed with the Title IX Coordinator alleging any action, policy, procedure or practice that would be prohibited by Title IX, such as Sex/Gender Discrimination or Sexual Misconduct, and indicating that they want Rhodes to take further steps, such as a full investigation and possibly holding an adjudication to resolve the alleged issue. A Complaint may be filed by a Complainant. A third-party who knows of or witnessed an incident of Sex/Gender Discrimination or Sexual Misconduct but who did not suffer such misconduct themselves may request that Rhodes treat their third-party Report as a Complaint. Rhodes can convert a Report to a Complaint if Rhodes determines that, in order to meet its Title IX obligations to provide a safe and nondiscriminatory environment for the broader Rhodes Community, it must take further steps to address and resolve the matter. A Formal Complaint under the Formal Grievance Policy is a type of Complaint. See Formal Grievance Policy, Section IV.A., regarding Formal Complaints found here.

Complainant:Refers to an individual who is alleged to have been subjected to an incident of Sex/Gender Discrimination or Sexual Misconduct (i.e., a First-Party Reporter or a victim or person who has otherwise been affected by sex/gender discrimination or sexual misconduct, or under the Formal Grievance Policy governing sexual harassment, an individual who is alleged to be the victim of conduct that could constitute sexual harassment). A Reporter who reports witnessing sex/gender discrimination or sexual misconduct happening to or affecting someone else (i.e., a Third-Party Reporter) can file a Report and request that it be treated as a Complaint, but that does not make them a Complainant. Similarly, the fact that the Title IX Coordinator may elevate a Report to a Complaint does not make the Title IX Coordinator a Complainant.

ConsentSee Affirmative Consentabove.

Dating Violence:  See Sexual Harassment below, Subsection B.

Domestic Violence:  See Sexual Harassment below, Subsection C.

Formal Complaint: See Complaint above. See also Formal Grievance Policy, Section IV.A found here..

Formal Grievance Process: The process described in the Formal Grievance Policy for addressing and resolving a Formal Complaint, as required by the new Title IX Regulations, effective August 14, 2020.

Incapacitation: Means the lack of 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 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 includes 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. 

Informal Resolution: A process intended to allow the Complainant and the Respondent to provide information about the alleged incident(s) of discrimination or harassment, and to reach a mutually agreeable resolution. An Informal Resolution process may take many forms upon the agreement of the parties and the Title IX Coordinator. This process aims to assure fairness, to facilitate communication, and to maintain an equitable balance of power between the parties.

Investigator: Refers to an official(s) designated by the Title IX Coordinator to conduct an investigation of alleged Sex/Gender Discrimination or Sexual Misconduct. The Investigator will be a trained individual who objectively collects and examines the facts and circumstances of potential violations of this Policy and documents them for review. The Investigator will be neutral and will not have a conflict of interest or bias or against the Complainant or Respondent. The Investigator may act as a witness in the event of a Resolution Hearing.

Mandatory Reporter: Refers to an individual who is obligated to report any knowledge they may have of Sex/Gender Discrimination and Sexual Misconduct. If a Mandatory Reporter observes, is informed of, or otherwise learns of an act of sexual misconduct, they must report it to the Title IX Coordinator.Rhodes defines all faculty and staff as mandatory reporters except certain “confidential resources” staff.  (See Section VIII above.)  The only students who are designated as Mandatory Reporters are Resident Assistants and members of the Peer Advocate Center. 

Non-Consensual Sexual Contact: See Sexual Misconduct below, Subsection A.

Non-Consensual Sexual Penetration: See Sexual Misconduct below, Subsection B.

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 sex discrimination is “more likely than not” to have occurred. This standard applies for all claims of sex discrimination, including sexual harassment and other sexual misconduct.

Report: Refers to any communication that puts Rhodes on notice of an allegation that sex/gender discrimination or sexual misconduct occurred or may have occurred. Anyone can report an incident of sex/gender discrimination and sexual misconduct to Rhodes under the procedure described in Section VIII of this Policy. Notice may be given directly to the Title IX Coordinator (“actual notice”) or to any Mandatory Reporter who has a duty to report such information to the Title IX Coordinator. Once the Title IX Coordinator learns of any Report of alleged sex/gender discrimination or sexual misconduct, whether from a direct Report or from a Mandatory Reporter, they will implement supportive measures as needed and initiate an investigation into the alleged incident. The form of the investigation may vary, particularly if the conduct alleged is governed by the U.S. Department of Education’s Title IX Regulations, in which case Rhodes’ Formal Grievance Policy found here will apply. Following an investigation, the Title IX Coordinator has authority to resolve a Report, including the implementation of any supportive measures, and close the case if the Report does not constitute or become a Complaint.

After making a Report, an individual may choose to end their involvement in the process; may choose to be involved or not be involved in Rhodes’ investigation and related proceedings; or may choose to file or request a Complaint and pursue resolution (under this policy or the Formal Grievance Policy, as applicable) or, if applicable, an Informal Resolution involving the Respondent.

Rhodes strongly encourages all individuals to report incidents of sexual misconduct and sex/gender discrimination even if the individual does not intend to pursue a Complaint.

Reporter:  Refers to an individual who notifies the Title IX Coordinator or a Mandatory Reporter of an alleged violation of this Policy. A Reporter can be any individual who reports to Rhodes that they are a victim or survivor of sex/gender discrimination or sexual misconduct; that they have been affected by sex/gender discrimination or sexual misconduct; or that they have knowledge of sex/gender discrimination and sexual misconduct happening to or affecting someone else.

Resolution Hearing: Refers to Rhodes’ disciplinary proceeding through which the Sexual Misconduct Hearing Board evaluates evidence related to a Complaint to determine whether a Respondent is in violation of this Policy, based on the criteria of a preponderance of evidence. This process differs from the Formal Grievance Process for sexual harassment required by the new Title IX Regulations, effective August 14, 2020.

Respondent: Refers to an individual who has been accused in a Report or Complaint of conduct that could constitute sexual misconduct prohibited under this Policy (or, under the Formal Grievance Policy governing sexual harassment, an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment).  

Sex/Gender Discrimination: Refers to the unequal treatment of an individual based on their sex, gender or sexual orientation 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, pregnancy, termination of pregnancy, childbirth or related conditions. Also prohibited as sex discrimination is any act which is based on parental, family, or marital status and which is applied differently based on sex.

Sexual Assault: See Sexual Harassment below, Subsection A.

Sexual Exploitation: See Sexual Misconduct below, Subsection C.

Sexual Harassment: “Sexual harassment” is defined in the new Title IX Regulations (34 C.F.R. § 106.30), effective August 14, 2020, to be conduct on the basis of sex that satisfies one or more of the following:

  1. A Rhodes employee conditioning the provision of an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct (“quid pro quo”);
  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 Rhodes’ education program or activity; or
  3. Sexual assault, dating violence, domestic violence, or stalking. 
  • Sexual Assault: An act of sexually-motivated physical contact directed towards another person when the other person does not consent or is incapable of giving consent. This includes but is not limited to rape, sodomy, sexual battery, fondling, incest, and statutory rape. See Title IX Regulations, which cite to 20 U.S.C. § 1092(f)(6)(A)(v).
  • Dating Violence: The term “dating violence” is defined in the new Title IX Regulations by reference to federal statute 34 U.S.C. § 12291(a)(10), which defines the term as 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 a relationship shall be 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.
  • Domestic Violence: The term “domestic violence” is defined in the new Title IX Regulations by reference to federal statute 34 U.S.C. § 12291(a)(8), which defines the term as felony or misdemeanor crimes of violence committed between:
      • individuals who are current or former spouses or intimate partners,
      • persons who share a child in common,
      • persons who currently live together or have formerly lived together as spouses or intimate partners,
      • a person similarly situated to a spouse of the victim under the domestic or family violence laws of the school’s jurisdiction, or
      • 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 school’s jurisdiction.

 

  • Stalking: The term “stalking” is defined in the new Title IX Regulations by reference to federal statute 34 U.S.C. § 12291(a)(30), which defines the term as 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.

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

      • Following the targeted person;
      • Approaching or confronting that person in a public place or on private property;
      • 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;
      • Vandalizing the person’s property or leaving unwanted items for the person;  
      • Persistently appearing at the person’s classroom, residence, or workplace without that person's permission or other lawful purpose;
      • 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
      • Using visual or audio recording devices or hidden or remote cameras used without the subject’s consent.

It is important to note that the Title IX Regulations’ use of federal definitions of sexual assault, dating violence, domestic violence, and stalking may differ from state law. Accordingly, any criminal proceeding brought by state or local law enforcement authorities may use different definitions.

Sexual Misconduct: Is a broad term that includes “sexual harassment” defined by the Title IX Regulations and also encompasses other sexually-motivated or gender-biased misconduct beyond sexual harassment. Examples may include sexual exploitation and many forms of verbal harassment that may not meet the Regulations’ definition of “sexual harassment.”

Additionally, if sexual misconduct is alleged to have occurred that does not satisfy the Title IX Regulations’ jurisdictional criteria, such as off-campus sexual misconduct (including sexual harassment) alleged to have an on-campus effect or occurring during a study abroad program, then it may be addressed under this comprehensive Sexual Misconduct Policy. Such off-campus sexual harassment may be referred to as Non-Consensual Sexual Contact (“NCSC”) or Non-Consensual Sexual Penetration (“NCSP”) (defined below) to avoid confusion between charges brought under this Policy and its procedures as compared to the Title IX Regulations’ “sexual harassment” definitions and requirements, which are governed by Rhodes’ Formal Grievance Policy found here.

Sexual misconduct is conduct that is unwanted or unwelcome and is sexual in nature. Experiencing sexual misconduct may interfere with a Rhodes community member’s ability to perform a job, participate in activities, and/or participate fully in Rhodes’ education programs. Sexual misconduct is demeaning to others and undermines the integrity of the employment relationship and/or learning environment by creating an intimidating, hostile or offensive working or academic environment through verbal or physical conduct of a sexual nature. Sexual misconduct is prohibited regardless of whether it occurs between or among members of any sex. Sexual misconduct may also consist of inappropriate gender-based comments and gender stereotyping, even if the acts do not involve conduct of an overtly sexual nature.

  • Non-Consensual Sexual Contact: “Sexual contact” includes the intentional touching of another person's intimate parts, or the intentional touching of the clothing covering the other person's intimate parts, for the purpose of sexual arousal or gratification. Such contact is non-consensual if done without the other person's affirmative consent (see definition above).
  • Non-Consensual Sexual Penetration: “Sexual penetration” includes sexual intercourse, oral-genital contact, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of any other person’s body.  Such contact is non-consensual if done without the other person's affirmative consent (see definition above).
  • Sexual Exploitation: Occurs when a person takes non-consensual or abusive sexual advantage of another for their own advantage or benefit, or the benefit of anyone other than the one being exploited. Examples of sexual exploitation include, but are not limited to:
          • Non-consensual video or audio-taping of sexual activity or other private activity, even if that activity occurs in a public or semi-public place;
          • Non-consensual dissemination of video, photographs, or audio of sexual activity or other private activity, including dissemination by a third party or a person not involved in the original conduct;
          • Exceeding the boundaries of consent (such as, permitting others to hide in a closet and observe consensual sexual activity, videotaping of a person using a bathroom or engaging in other private activities);
          • Engaging in voyeurism, exposing one’s breasts, buttocks, or genitals in a non-consensual circumstance or inducing another to expose their breasts, buttocks, or genitals without affirmative consent;
          • Prostituting another person;
          • Engaging in consensual sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease or infection (STD or STI) and without informing the other person of such disease or infection; and
          • Sexually-based stalking and/or bullying.

Sexual Misconduct Hearing BoardRefers to the three-member decision-making body, composed of trained Rhodes faculty and/or staff, that considers cases brought under this Policy. One of the three Board members will be designated as the chairperson. The Hearing Board hears the facts and circumstances of an alleged policy violation as presented by the Investigator, a Complainant, a Respondent and/or witnesses at a Resolution Hearing. This body is responsible for determining if a policy violation has occurred and whether/what sanctions are appropriate.

Stalking: See Sexual Harassment above, Subsection D.

Supporter: Refers to any person, regardless of their association with Rhodes, who a Reporter,  Complainant, or Respondent may want to support them through a portion of or the entire process. A Supporter is not required, but is encouraged to help the party with emotional and personal support. When present during interviews, hearings, and appeals, the Supporter cannot take an active role. A supporter can be a friend, family member, or any trusted person who can provide needed care to a party.

Title IX: Refers to a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. Title IX prohibits the use of federal money to support sex discrimination in education programs and provides individual citizens effective protection against those practices. Title IX applies, with a few specific exceptions, to all aspects of federally funded education programs or activities. In addition to traditional educational institutions such as colleges, universities, and elementary and secondary schools, Title IX also applies to any education or training program operated by a recipient of federal financial assistance.