Definitions from the Campus SaVE Act Policy for Faculty, Staff, House Staff, Postdoctoral Fellows or Trainees

Definitions of Specific Offenses

• Dating Violence is sexual or physical abuse or the threat of such abuse, or other violence, committed by a person who is or has been in a social relationship of a romantic or intimate nature with the person against whom the violence is perpetrated. The existence of a social relationship of a romantic or intimate nature may be determined by the length of the relationship, the type of relationship, the frequency of the interactions between the persons involved in the relationship, and other relevant contextual factors. Dating violence does not include acts covered under the definition of domestic violence.
• Domestic Violence is a felony or misdemeanor crime of violence committed by
  • a person who is the current or former spouse or intimate partner of the person against whom the violence is perpetrated;
  • a person who shares a child in common with the person against whom the violence is perpetrated;
  • a person who is cohabitating or has cohabitated as a spouse or in the context of a social relationship of a romantic or intimate nature with the person against whom the violence is perpetrated; or
  • a person who has another type of intimate relationship, including as a parent, guardian, or other status defined by Tennessee law or University policy, with the person against whom the violence is perpetrated.
• Sexual Assault is any of the following offenses:
  • Rape is 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 effective consent of the person against whom the act is perpetrated.
  • Fondling is the touching of the private body parts of another person for the purpose of sexual gratification, without the effective consent of the person against whom the act is perpetrated.
  • Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
  • Statutory rape is sexual intercourse with a person who is under the statutory age of consent.
• Stalking is a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others or suffer substantial emotional distress. 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 with or about a person, or interferes with a person’s property.
• Retaliation is any adverse action, or attempted adverse action, against an individual (or group of individuals) because of their participation in any manner in an investigation, proceeding, or hearing, including individuals who file a third-person report. Retaliation can take many forms, including sustained abuse or violence, threats, and intimidation. Any individual or group of individuals, not just a respondent or complainant, can engage in retaliation.

Clarifications

• Effective Consent is consent that is informed and freely and actively given. Effective consent requires mutually understandable words or actions indicating a willingness to engage in mutually agreed-upon sexual activity.
  • The person who wishes to engage in sexual activity with another bears the burden of specifically asking/obtaining permission if effective consent is in question or ambiguous.
  • Effective consent must be maintained by both parties throughout the sexual interaction.
  • Effective consent to sexual activity may be revoked at any time, at which point sexual activity must cease immediately.
  • A person who is the object of sexual aggression is not required to physically or otherwise resist a sexual aggressor in order to convey or demonstrate a lack of effective consent.
  • This policy is predicated upon the requirement to obtain effective consent (communicating “yes” by word or action) rather than denial (saying “no”).
  • Previous sexual relationships of the complainant and the respondent with others are irrelevant, but a previous and/or current sexual relationship between the complainant and the respondent may or may not be relevant depending on the facts and circumstances, as to whether effective consent was sought or obtained.
  • Effective consent expires. Effective consent lasts for a reasonable time, depending on the circumstances. For example, effective consent on one occasion, whether on the same day or another day, may not carry over to another time.
  • Effective consent cannot be implied by attire, nor can it be inferred from the buying of dinner, the spending of money on a date, being invited or accepting an invitation to a person’s residence, or engaging in kissing or other foreplay.
  • One who is incapacitated as a result of alcohol or other drug consumption (voluntary and/or involuntary), or who is unconscious, unaware, asleep, or otherwise physically helpless, is incapable of giving effective consent. Because effective consent must be informed, an individual may not engage in sexual activity with another whom the individual knows, or should reasonably know, is incapacitated.
  • Because effective consent can never be provided by an incapacitated person, effective consent is deemed withdrawn when an individual becomes incapacitated at any point during sexual activity.
  • Agreement or acquiescence obtained through the use of fraud or force (actual or implied), whether that force be physical force, threats, intimidation, or other forms of coercion, is not effective consent.
  • A person’s age may be a factor in determining the ability to give effective consent.
  • Agreement or acquiescence is not effective consent when given by the following:
    • individuals with a cognitive disability or other conditions that significantly limit their ability to understand the nature or extent of the action for which effective consent was requested;
    • incapacitated persons. (See “Incapacitation” below.)
  • Force includes physical force (such as pushing, hitting, pinning down), threats (direct or indirect expressions of intent to inflict harm to self or others), intimidation (implied or indirect threats), and/or other forms of coercion.
  • To coerce is to attempt to cause another person to act or think in a certain way by use of force, pressure, threats, or intimidation; to compel is to coerce.
  • Blacking out is an 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. Afterwards the person has no recollection of all or part of the events that occurred during the blackout. There is a distinction between passing out (falling asleep or becoming unconscious) due to drug or alcohol use and blacking out in that a person in a blackout remains conscious and operative.
  • Incapacitation includes the inability to make a rational, reasonable decision. Incapacitation can result from the taking of GHB, Rohypnol, Burundang, Ketamine, or other sedatives or “date-rape” drugs, or excessive use of alcohol or other drugs. Evidence of incapacitation may include, but is not limited to, one or more of the following:
    • slurred speech
    • bloodshot eyes
    • the smell of alcohol on the breath
    • shaky equilibrium
    • vomiting
    • outrageous or unusual behavior
    • unconsciousness
    • elevated blood alcohol level
    • blacking out

A person wishing to engage in sexual activity with another must specifically determine the capacity of that potential sexual partner to provide “Effective Consent,” as explained above.

• • Intoxication refers to a state of stupefaction, exhilaration or euphoria resulting from the ingestion of alcohol or other chemical substances.

Blacking out, incapacitation, and intoxication do not provide a valid explanation or excuse for violation of this policy.

Depending on the facts and circumstances, proof of intent may or may not be required to find a violation of this policy. For example, engaging in intercourse without obtaining effective consent constitutes a violation of the policy regardless of intent. On the other hand, intent may be an appropriate consideration in some complaints (such as when one person brushes up against another person in a crowded room).