Definitions from the Student Sexual Misconduct Policy

For purposes of this policy, the following terms and definitions will be used throughout:

• Sexual Misconduct – all forms of sexual misconduct, sexual assault, sexual harassment, and intimate partner violence, including dating violence, domestic violence, and stalking, as outlined in the Offenses and Definitions section of this policy.
• Report – any complaint or information provided to the Title IX and Student Discrimination Office (Title IX Office) or to a mandatory reporter regarding an incident of sexual misconduct, whether provided by the complainant, a third party, or another.
• Complainant – the person who is reported to have been subjected to sexual misconduct.
• Respondent – the person against whom allegations of sexual misconduct have been made; if the respondent is a student organization, a representative from the organization will be designated to participate in the process on behalf of the organization.

Definitions of Specific Offenses

• Sexual Assault – Intercourse is any vaginal and/or anal penetration – however slight – by any body part (e.g., penis, tongue, or finger) or object, and/or oral copulation (mouth to genital contact), by any person upon another without effective consent. Sexual Assault – Intercourse also includes an individual causing someone else to penetrate him/her/them vaginally, anally, or orally without effective consent.

• Sexual Assault – Contact is any contact of a sexual nature – however slight – with the breasts, buttocks, groin, genitals, mouth, or other body part of another, by any person upon another without effective consent. Sexual Assault – Contact also includes an individual causing someone else to touch him/her/them with, or on, any of these body parts without effective consent.

• Sexual Harassment is any unwelcome sexual advance, request for sexual favors, or other unwanted conduct of a sexual nature, whether verbal, non-verbal, graphic, physical, or otherwise, when:
  • Submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of a person’s employment, academic standing, or participation in any University programs and/or activities or is used as the basis for University decisions affecting the individual (often referred to as quid pro quo harassment); and/or
  • Such conduct creates a hostile environment. A hostile environment exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits, or deprives an individual from participating in or benefiting from the University’s education or employment programs and/or activities. The severity, persistence, and pervasiveness of conduct are assessed from both a subjective and objective perspective. A hostile environment can be created by persistent or pervasive conduct or by a single or isolated incident, if sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. A single incident of sexual assault, for example, may be sufficiently severe to constitute a hostile environment. In contrast, a single offensive verbal or written expression, standing alone, is often not sufficient to constitute a hostile environment. In evaluating whether a hostile environment exists, the totality of the circumstances, including, but not limited to, the following will be considered:
    • The frequency, nature, and severity of the conduct;
    • Whether the conduct was physically threatening;
    • The effect of the conduct on the complainant’s mental or emotional state;
    • Whether the conduct was directed at more than one person;
    • Whether the conduct arose in the context of other discriminatory conduct;
    • Whether the conduct unreasonably interfered with the complainant’s educational or work performance and/or participation in University programs or activities; and
    • Whether the conduct implicates concerns related to academic freedom or protected speech.
• Sexual Exploitation is non-consensual abuse or exploitation of another person’s sexuality for the purpose of sexual gratification, financial gain, personal benefit or advantage, or any other improper purpose. Forms of sexual exploitation include, but are not limited to, the following:

• • Invasion of privacy of a sexual nature;
  • Non-consensual digital, video, or audio recording of nudity or sexual activity;
  • Voyeurism;
  • Procuring, offering, or promoting prostitution;
  • Knowingly exposing someone to or transmitting a sexually transmitted infection, sexually transmitted disease, or HIV (human immunodeficiency virus);
  • Intentionally or recklessly exposing one’s genitals in non-consensual circumstances or inducing another to expose their genitals; and
  • Intentionally disclosing or threatening to disclose the sexual orientation, gender identity, and/or gender expression of another if the person has kept, or sought to keep, their status private from the person(s) to whom it is disclosed.

• Attempting to commit sexual misconduct.
• Facilitating, aiding, encouraging, concealing, and/or otherwise assisting a violation of this policy.

• 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.
• Dating Violence is sexual, psychological, or physical abuse or the threat of such abuse 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. Whether the alleged conduct constitutes abuse or the threat of abuse will depend on a number of factors, including, but not limited to, the nature, severity, and frequency of the conduct. Whether a party was acting in self-defense may also be considered.  Dating violence does not include acts covered under the definition of domestic violence.
• Domestic Violence is sexual, psychological, or physical abuse or the threat of such abuse committed by

• • a person who is the current or former spouse or domestic 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 is a party to another type of intimate relationship, including as a parent, guardian, or other status defined by Tennessee law, except platonic roommates, or by University policy, with the person against whom the violence is perpetrated.

Whether the alleged conduct constitutes abuse or the threat of abuse will depend on a number of factors, including, but not limited to, the nature, severity, and frequency of the conduct.  Whether a party was acting in self-defense may also be considered.

• Retaliation is any adverse action threatened or taken, whether directly or through a third party, against another person because they have complained about, reported, or participated in the investigation or disposition of alleged sexual misconduct.  Retaliation in an effort to discourage a person from reporting sexual misconduct or participating in a sexual misconduct investigation, or to punish a person for doing so, is also prohibited.  Individuals involved in investigations or disciplinary proceedings are encouraged to exercise discretion in sharing information in order to safeguard the integrity of the process and to avoid the appearance of retaliation. While discretion regarding the process is important, complainants and respondents are not restricted from discussing and sharing information with others who may support or assist them during the process.  The University will take appropriate action to address any reports of retaliation.

These definitions may or may not be the same as those for criminal offenses under Tennessee state law.

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 obtaining effective consent. If effective consent is in question or ambiguous, then the person who wishes to engage in sexual activity must clarify or explicitly ask for permission.
• Effective consent must be maintained by both parties throughout the sexual interaction.
• Effective consent for one form of sexual activity does not constitute effective consent for another form of sexual activity.
• 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 that sexual activity may amount to coercion, as explained below.
• Effective consent to sexual activity may be withdrawn at any time, at which point sexual activity must cease immediately.
• There is no requirement for a person to resist, physically or otherwise, in order to demonstrate a lack of effective consent. Effective consent means communicating “yes” by word or action; the absence of saying or indicating “no” does not equate to 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.
• Effective consent expires. Effective consent lasts for a reasonable time, depending on the circumstances. Thus, effective consent on one occasion, whether on the same day or another day, may not carry over to another sexual interaction.
• Effective consent is never implied by a person’s attire, the person’s extension or acceptance of an invitation to dinner, a date (social function), or a person’s residence, or the person’s consensual participation in kissing or other foreplay.
• Because effective consent must be informed, an individual must not engage in sexual activity with another person if the individual knows or reasonably should know the person is incapacitated.
• Effective consent is deemed withdrawn when an individual knows or reasonably should know that the other person has become incapacitated at any point during sexual activity.
• Agreement or acquiescence obtained through the use of fraud, force (actual or implied), or other forms of coercion, as defined below, is not effective consent.
• Effective consent requires mutual understanding and agreement regarding the use and/or method of prophylaxis and contraception.
• A person’s age may be a factor in determining the ability to give effective consent. For example, under Tennessee law, a person who is under the age of 18 cannot effectively consent to sexual intercourse with a person four or more years older than the underage person.

• The existence of a cognitive disability or other condition that significantly limits a person’s ability to understand the nature of an action for which effective consent is requested may be a factor in determining the ability to give effective consent.
• The existence of a physical disability or other circumstances may prevent a person from giving effective consent.
• The intoxication of a respondent does not excuse the failure to obtain effective consent.

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 exert power or control over another person by use of force, pressure, manipulation, threats, or intimidation. 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 or may not amount to coercion depending on all of the relevant facts and circumstances.

Alcohol and drugs
The impact of alcohol and other drugs varies from person to person. A person wishing to engage in sexual activity with another whom the person knows or reasonably should know has consumed alcohol or other drugs must specifically determine the capacity of the other person to provide “effective consent,” as explained above. Depending on the level of a person’s intoxication, the person may or may not be able to give effective consent. Determinations regarding whether a person’s level of intoxication affects the person’s ability to give effective consent will be made on a case-by-case basis.

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

Incapacitation means the inability to make or carry out a rational, reasonable decision. One who is incapacitated cannot give effective consent. Incapacitation can result from intoxication from alcohol or other drugs, or from the voluntary or involuntary taking of GHB, Rohypnol, Burundang, Ketamine, or other 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
• blacking out
• sleeping

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.

Blacking out, incapacitation, and intoxication do not provide a valid explanation or excuse for engaging in any form of sexual misconduct.

Depending on the facts and circumstances, intent may or may not be required to violate 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 instances (such as when one person brushes up against another person in a crowded room).