Definitions
III. Definitions
A. Accuser/Accused and Complainant/Respondent. The alleged victim of conduct prohibited by this policy, often known as an “accuser,” will be referred to as the “Complainant” during the process set forth herein. The “accused” party, reported to be the perpetrator of conduct prohibited by this policy, will be referred to as the “Respondent” during this process. The University will treat a person as a Complainant any time the University has notice that the person is alleged to be the victim of conduct that could constitute Sexual Discrimination and/or Harassment (regardless of whether the person themselves reported, or a third party reported the Sexual Discrimination and/or Harassment), and irrespective of whether the Complainant ever chooses to file a Formal Complaint. All Complainants will be offered Supportive Measures.
BB. Advisor. Complainants and Respondents are entitled to be accompanied and assisted by one Advisor of their choosing at any meetings or investigation interviews. Advisors are required for hearings. Complainants and Respondents may choose any person to serve as their Advisor, but accommodations, including scheduling of interviews or hearings will not be made for any advisers, including parents, guardians, or attorneys, if they unduly delay the process. No training or qualification is necessary for a person to serve as an Advisor. A party may elect to change Advisors during the process, and is not obligated to use the same Advisor throughout. The parties are expected to inform the investigators of the identity of their Advisor at least 1 business day before the date of their first meeting with investigators (or as soon as possible if a more expeditious meeting is necessary or desired). The parties are expected to provide timely notice to investigators if they change Advisors at any time. If a party does not have an Advisor present at the live hearing, the University will provide an appropriate Advisor, free of charge to the party.
1. In Interviews and Investigations: Advisors may not participate in the process or speak on behalf of the Complainant or Respondent during interviews, although they may ask to suspend any meetings or interviews briefly to provide consultation. Advisors are expected to refrain from interference with the University’s investigation and resolution. Any Advisor who steps out of their role will be warned once and only once. Advisors disrupting the interview will be asked to leave. If the Advisor continues to disrupt or otherwise fails to respect the limits of the Advisor role, the Advisor will be asked to leave the meeting. When an Advisor is removed from a meeting, that meeting will typically continue without the Advisor present. Subsequently, the Title IX Coordinator will determine whether the Advisor may be reinstated or replaced by a different Advisor.
2. In Live Hearings: Advisors may ask either party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s Advisor of choice and never by a party personally. Only relevant cross-examination and other questions may be asked of a party or witness. (See Section IX. F.)
C. Amnesty. A policy that generally protects help-seeking behavior, including participation in Title IX investigations.
D. Coercion. The attempt to exert power or control over another person by use of force, pressure, manipulation, threats, or intimidation in an effort to compel participation in sexual activity. Determinations regarding whether actions or statements amount to Coercion will be made on a case-by-case basis. For example, repeated advances or requests to engage in sexual activity may amount to Coercion depending on all of the relevant facts and circumstances.
E. Consent. The positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter. Consent must be an informed decision, freely given made through mutually understandable words or actions that indicate a willingness to participate in mutually agreed upon sexual activity. A clear “yes,” verbal or otherwise, is necessary.
When "no" to a form of sexual activity is communicated by word or action, that sexual activity must cease immediately. Repeated requests to engage in a form of sexual activity may amount to Coercion. However, there is no requirement that a person express non-Consent, i.e. someone might not Consent to sexual activity even though they do not say “no” or physically resist. As such, Consent cannot be inferred merely from the absence of a “no.” Some behaviors and statements do not indicate Consent, including the following:
• “I don’t know.”
• "Maybe.”
• Without more, ambiguous responses such as “uh huh” or “mm hmm”
• A verbal “no,” even if it may sound indecisive or insincere.
• Moving away.
Consent to some sexual acts does not constitute Consent to others, nor does past Consent to a given act constitute present or future Consent. Consent must be ongoing throughout a sexual encounter and can be revoked by any participant at any time.
Consent cannot be given by an individual who is asleep, unconscious, or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason. Engaging in sexual activity with a person whom you know—or reasonably should know —to be incapacitated constitutes Sexual Harassment. Effective Consent is deemed withdrawn at any point during sexual activity when an individual knows or reasonably should know that the other person has become or is Incapacitated. Consent cannot be obtained by Coercion, including threat or force. Agreement under such circumstances does not constitute Consent.
The University recognizes that there are a wide variety of sexual interactions, that there is no single way to communicate Consent, and that context matters. When evaluating whether sexual activity was consensual, the University will consider the entirety of the sexual interaction and the relevant circumstances. A factor that may be considered when evaluating Consent is whether, under similar circumstances as the person initiating the sexual activity, a sober reasonable person would have concluded that there was effective Consent. Previous sexual relationships of the Complainant and the Respondent with others are generally irrelevant to the existence of effective Consent, but a previous, current, and/or subsequent sexual relationship between the Complainant and the Respondent may or may not be relevant to demonstrating or establishing, depending on the facts and circumstances, whether effective Consent was sought or obtained. Relevancy of a previous, current, and/or subsequent sexual relationship between the Complainant and Respondent or others will be evaluated on a case by-case basis.
F. Dating Violence. Violence against a person when the accuser and accused are dating, or who have dated, or who have or had a sexual relationship. “Dating” and “dated” do not include fraternization between two individuals solely in a business or non-romantic social context, but includes social relationships of a romantic or intimate nature as determined by the length and type of relationship and the frequency of interactions between the persons in the relationship.2 Violence includes, but is not necessarily limited to:
1. Inflicting, or attempting to inflict, physical injury on the accuser by other than accidental means;
2. Placing the accuser in fear of physical harm;
3. Physical restraint;
4. Malicious damage to the personal property of the accuser, including inflicting, or attempting to inflict, physical injury on any animal owned, possessed, leased, kept, or held by the accuser; or,
5. Placing the accuser in fear of physical harm to any animal owned, possessed, leased, kept, or held by the accuser.
G. Domestic Violence. Felony or misdemeanor crimes of violence committed under the following conditions:
1. Violence against a person when the accuser and accused:
a. Are current or former spouses;
b. Live or have lived together as a spouse or intimate partner;
c. Are related by blood or adoption;
d. Are related or were formally, or similarly situated to being, related by marriage;
e. Are adult or minor children of a person in a relationship described above; or
f. Shares a child in common.
2. Violence includes, but is not necessarily limited to:
a. Inflicting, or attempting to inflict, physical injury on the accuser by other than accidental means;
b. Placing the accuser in fear of physical harm;
c. Physical restraint;
d. Malicious damage to the personal property of the accuser, including inflicting, or attempting to inflict, physical injury on any animal owned, possessed, leased, kept, or held by the accuser; or,
e. Placing the accuser in fear of physical harm to any animal owned, possessed, leased, kept, or held by the accuser.
H. Formal Complaint. Information provided to the Title IX Office or to a Responsible Employee regarding an incident of Sexual Discrimination or Sexual Harassment, whether provided by the Complainant or a third party, along with a request that the University investigate the allegation.
I. Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, without the Consent of the victim, including instances where the victim is incapable of giving Consent because of his/her age or because of his/her temporary or permanent Incapacity.
J. Incest. Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
K. Intoxication. A state of stupefaction, exhilaration or euphoria resulting from the ingestion of alcohol or other chemical substances.
L. Incapacitation. The inability to make or carry out a rational, reasonable decision. An Incapacitated person lacks the ability to actively agree to sexual activity because the person is asleep, unconscious, under the influence of alcohol or other drugs such that the person does not have control over their body, is unaware that sexual activity is occurring, or their mental, physical or developmental abilities render them incapable of making rational informed decisions. Incapacitation is not the same as legal Intoxication. A person violates this policy when they engage in sexual activity with a person who is incapacitated and a reasonable person in the same situation would have known that the person is Incapacitated. Incapacitation can result from the voluntary or involuntary use of alcohol, marijuana, or other drugs, including, but not limited to, sedatives or "date-rape" drugs. Evidence of Incapacitation may include, but is not limited to, one or more of the following:
• slurred speech
• bloodshot eyes
• dilated pupils
• the smell of alcohol on the breath
• shaky equilibrium
• unsteady gait
• vomiting
• outrageous or unusual behavior
• unconsciousness
• elevated blood alcohol level
• sleeping
• blacking out (amnesia-like state that may be brought on by drugs, heavy drinking, or Intoxication; blacking out is not necessarily incompatible with the ability to engage in simple or even complex behavior)
M. Preponderance of Evidence. The evidentiary standard used by the University. Under the preponderance standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true.
N. Rape. The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the Consent of the victim.
O. Relevant. Tending to make a fact more or less likely to be true. Examples of information not deemed relevant include but are not limited to privileged information, including treatment information, unless parties agree to the disclosure of such information, and information regarding a Complainant’s sexual predisposition or prior sexual behavior unless they are offered to prove that someone other than the Respondent committed the Sexual Harassment, or if the information concerns specific incidents of the Complainant’s prior sexual behavior with the Respondent and are offered to prove Consent.
P. Responsible Employee. An Cumberland University employee who has the duty to report incidents of Sexual Discrimination and/or Sexual Harassment; or, whom a student could reasonably believe has this authority or duty. (See Section V. D. 2.)
Q. Sexual Assault. An offense that meets the definition of Rape, Fondling, Incest or Statutory Rape as used in the FBl's Uniform Crime Reporting system. A 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.
R. Sexual Discrimination. Treating individuals less favorably because of their sex (including pregnancy or sexual orientation/ gender identity/expression) or having a policy or practice that has a disproportionately adverse impact on protected class members.
S. Sexual Harassment. Conduct on the basis of sex that satisfies one or more of the following:
1. An employee of the university conditioning the provision of an aid, benefit, or service of the recipient 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 recipient’s education program or activity; or
3. Sexual Assault (as defined in the Clery Act), Dating Violence, Domestic Violence, or Stalking as defined in the Violence Against Women Act (VAWA).
Sexual Harassment, including Sexual Assault, can involve persons of the same or opposite sex. Sexual Harassment includes harassment based on sexuality, gender non-conformity, stereotypical notions of what is female/feminine versus male/masculine, or a failure to conform to those gender stereotypes. Harassment does not have to include intent to harm, be directed at a specific person or group of people, or involve repeated incidents.
Examples of conduct that might rise to the level of Sexual Harassment include, but are not limited to, the following:
a. Sexual propositions, invitations, or pressure for sexual activity;
b. Sexual innuendoes, comments, remarks, or inquiries about a person’s clothing, body, activities, or experiences;
c. Refusing to hire, promote, or grant or deny certain privileges because of acceptance or rejection of sexual advances;
d. Promising a work-related benefit or a grade in return for sexual favors;
e. Implied or overt sexual threats;
f. Suggestive or obscene gestures;
g. Suggestive or insulting sounds;
h. Whistling in a suggestive manner;
i. Humor and jokes about sex that denigrate men or women;
j. Patting, pinching, and other inappropriate touching;
k. Unnecessary touching or brushing against the body;
l. Attempted or actual kissing or Fondling;
m. Suggestive or inappropriate acts, such as comments, innuendoes, or physical contact based on one’s actual or perceived sexual orientation and/or gender identity/expression;
n. Use in the classroom of sexual jokes, stories, remarks, or images that are in no way or only marginally Relevant to the subject matter of the class;
o. Suggestive or inappropriate communications, email, notes, letters, or other written materials displaying objects or pictures, which are sexual in nature, that would create hostile or offensive work, living, or educational environments, including comments about an individual’s body, comments about an individual’s sexual activity, deficiencies, or prowess
p. Graphic or written statements (including the use of cell phones and the internet), or other conduct that may be physically threatening, harmful, or humiliating in a manner related to sex
T. 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. Stalking includes any willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the accuser to feel terrorized, frightened, intimidated, threatened, harassed, or molested. Conduct includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the accuser to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.
For the purposes of this definition:
Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person’s property. Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
U. Statutory Rape. Sexual intercourse with a person who is under the statutory age of Consent (which is 18 in the State of Tennessee).
V. Supportive Measures. Reasonable administrative action that is appropriate to provide equal access to education. Supportive Measures will be offered to every Complainant, regardless of whether a Formal Complaint is filed. The Title IX Coordinator is responsible for implementing the supportive measure(s). Examples include, but are not limited to:
• Restrictions on contact between the parties
• Modifications of work or class schedules
• Changes in work or housing locations
• Providing or assistance with counseling and/or medical services
• Providing academic support services, such as tutoring
• Extensions of time or other course-related adjustments
• Campus escort services
• Increased security and monitoring of certain areas of campus
• Leaves of absence
• Arranging for the Complainant to re-take a course or withdraw from a class. (Withdrawal may have financial aid implications. Students are encouraged to contact Financial Aid prior to withdrawing.)
Supportive Measures may be applied to one, both, or multiple parties involved with considerable attention paid to providing students, faculty, and staff members reasonable educational access pending the outcome of the investigation. Cumberland will not place undue burden on any one party and will seek to make Supportive Measures as equitable as possible.
Student Respondents may be placed on interim suspension or an emergency removal pending the outcome of the investigation under the appropriate circumstances, i.e. after an individualized safety and risk analysis has determined an immediate threat to the physical health or safety of an individual.
In appropriate circumstances and consistent with Human Resource policies, employee Respondents may be placed on administrative leave pending the outcome of the matter.
The University may also issue a “Timely Warning” under the Clery Act.
W. Title IX Coordinator. The Title IX Coordinator is the Cumberland University official responsible for overseeing the University’s response to Sexual Discrimination and Sexual Harassment reports and complaints and for addressing any patterns or systemic problems identified by such reports and complaints. This official oversees and coordinates the University’s programs and training efforts with regard to Sexual Discrimination and Sexual Harassment. The Title IX Coordinator conducts investigations and has the authority to implement all Supportive Measures deemed appropriate. All requests by Complainants for confidentiality should be evaluated by the Title IX Coordinator.
1. The Title IX Coordinator’s responsibilities include, but are not limited to, the following:
a. Investigation or oversight of investigations of allegations related to Title IX;
b. Coordination and oversight of educational programs including mandatory training for new students and employees and awareness campaigns for current students and employees;
c. Coordination with University Security on matters related to allegations of Sexual Discrimination and/or Harassment;
d. Coordination and oversight of training for anyone involved in responding to, investigating, or adjudicating Sexual Discrimination and/or Harassment;
e. Coordination and oversight of training for employees related to their responsibility when they are aware of Sexual Discrimination and/or Harassment;
f. Coordination and oversight of annual training for investigators, decision makers, hearing officers and hearing committee members on the issues related to Sexual Discrimination and/or Harassment and on how to conduct an investigation and hearing process that protects the safety of Complainants and promotes accountability;
g. Maintenance of all records of trainings (including attendance records and training materials), case files, investigations, hearings, informal resolutions, and other processes for a minimum of seven (7) years;
h. Publish all training materials (actual materials and lists of titles and sources of proprietary materials which are available for viewing for inspection only in the Title IX office by request) on the University’s website; and
i. Attending appropriate training annually on topics related to responding to or investigating allegations of Sexual Discrimination and/or Harassment.
2. The Title IX Coordinator may designate deputies and investigators (designees) to assist in carrying out any of the responsibilities related to implementing this policy.