Sexual assault, dating violence, domestic violence or stalking as those offenses are defined in the Clery Act, 20 U.S.C. § 1092(f), and the Violence Against Women Act, 34 U.S.C. § 12291(a).
- Sexual Assault: Sexual acts directed against another person (Complainant) without the consent of the Complainant, including instances in which the Complainant is incapable of giving consent; incest; and sexual intercourse with a person who is under the statutory age of consent of 16 years old.
- Dating Violence: Dating means violence committed by a person—
a) who is or has been in a social relationship of a romantic or intimate nature with the victim; and
b) 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.
(iii) The frequency of interaction between the persons involved in the relationship.
- Domestic Violence: Violence, on the basis of sex, committed by a current or former spouse or intimate partner of the Complainant, or by a person with whom the Complainant shares a child in common.
- Stalking: engaging in a course of conduct, on the basis of sex, 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.
Sexual Harassment: Unwelcome conduct determined by a reasonable person to be so severe, and pervasive, and objectively offensive that it effectively denies a person equal access to Carroll College’s education program or activity.
Retaliation: any adverse employment or educational action, including efforts to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy and the Title IX Grievance Procedures.
Force, Coercion, Consent, and Incapacitation
As used in the offenses above, the following definitions and understandings apply:
Force: Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” “Okay, don’t hit me, I’ll do what you want.”).
Coercion: Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
Consent: a conscious and voluntary agreement to engage in any type of sexual activity. It is an informed decision made freely, actively and voluntarily by all parties. Affirmative consent must be ongoing throughout sexual activity and can be revoked at any time. Lack of protest or resistance does not mean consent, nor does silence mean consent. Consent cannot be obtained by threat, coercion, or force. A current or previous dating or sexual relationship between the persons involved or the manner of dress should never by itself be assumed to be an indicator of consent. Being intoxicated does not diminish one’s responsibility to obtain consent.
A person cannot give consent if they
1. are a minor under age 16;
2. have a mental disorder or developmental or physical disability that renders him or her incapable of giving consent, and this is known or reasonably should have been known to the alleged Respondent;
3. are unconscious of the nature of the act, and this is known to the alleged Respondent; or
4. are incapacitated from alcohol or other drugs, or other condition detailed in the Incapacitation Definition, and this condition is known or reasonably should have been known to the alleged Respondent.
Consent Withdrawal: Consent can be withdrawn at any time for any reason. This can be in the form of verbal withdrawal, or any expression of an unwillingness to engage in any instance of sexual activity.
Incapacitation: A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this policy if they engage in sexual activity with someone who is incapable of giving consent.
It is a defense to a sexual assault policy violation that the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated. “Should have known” is an objective, reasonable person standard that assumes that a reasonable person is both sober and exercising sound judgment.
Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction).
Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.
This policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs.