Scope of the Policy, Prohibited Conduct, and Related Definitions

II. Scope of the Policy, Prohibited Conduct, and Related Definitions

A.    Scope

The prohibitions in this policy apply to all University community members, including students, faculty, administrators, staff, volunteers, vendors, independent contractors, visitors, alumni and any individuals regularly or temporarily employed, studying, living, visiting, conducting business or having any official capacity with the University or on University property.  In particular, off-campus conduct is subject to this policy if the conduct occurred in the context of an education program or activity of the University or had continuing adverse effects on campus or in an off-campus education program or activity.

B.    Prohibited Conduct

Sex Discrimination:  

Discrimination that occurs when conduct or a policy has the purpose or effect of restricting or denying access to opportunities, programs, or resources in relation to sex in a manner that interferes with an individual’s ability to participate in a University education program or activity.  For the purposes of this policy, “sex discrimination” shall include but not be limited to any acts of sexual assault, sexual violence, and sexual harassment.  In compliance with Title IX of the Educational Amendments of 1972, sex discrimination applies but is not limited to:  recruitment, admissions, housing, athletic and extracurricular activities, rules and regulations, discipline, class enrollment, access to programs, courses and internships, distribution of financial assistance, distribution of institutional resources, hiring practices, employment, promotion, and policies.   Such discrimination does not include behavior explicitly permitted by federal regulations, including single-gender housing, athletic participation, chorus participation, and hiring when sex/gender is a bona fide occupational qualification reasonably necessary to the normal operation of the University.  

Sexual Harassment – Title IX:

Sexual harassment is antithetical to biblical and academic values and to a work environment free from the fact or appearance of coercion.  Sexual harassment is a form of sex discrimination, a violation of University policies, and may result in serious disciplinary action. 

There are six types of prohibited conduct that qualify as “sexual harassment” as defined by the federal Title IX regulations in 34 C.F.R. 106.30, each of which is defined more specifically below:  (1) quid pro quo, (2) unwelcome conduct, (3) sexual assault, (4) dating violence, (5) domestic violence, and (6) stalking.  The definitions used here are required by federal regulations.

For reported behavior to qualify as prohibited conduct under this section, in addition to meeting the elements of the specific type of sexual harassment below, it must meet all of the following threshold requirements, as determined by the Title IX Coordinator and as mandated by federal regulations:

1. The conduct must have occurred against a person in the United States.
2. The conduct must have occurred within the University’s education program or activity.  For purposes of this provision, this means that the conduct must have occurred either (a) in a location, event, or circumstances over which the University exercised substantial control over both the respondent and the context in which the sexual harassment occurs or (b) in relation to a building owned or controlled by a student organization that is officially recognized by the University.
3. The complainant must be participating in or attempting to participate in the education program or activity of the University at the time the formal complaint is filed.   

Behavior that ultimately is shown not to meet these threshold requirements is subject to a Title IX Dismissal from the hearing process, but may still be resolved through the procedures outlined in this policy.

Sexual Harassment – Title IX is any of the following:

1. Quid Pro Quo - Conduct on the basis of sex where a University employee conditions the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct;
2. Unwelcome Conduct - Unwelcome conduct on the basis of sex 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 – a forcible or non-forcible sex offense as classified under the Uniform Crime Reporting system of the FBI, to include:
   1. Rape – The carnal knowledge of a person, 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 mental or physical incapacity.  Carnal knowledge is defined as the slightest penetration of the sexual organ of the female (vagina) by the sexual organ of the male (penis).
   2. Sodomy – Oral or anal sexual intercourse with another person, 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 mental or physical incapacity.
   3. Sexual Assault With An Object – To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, 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 mental or physical incapacity.  An object or instrument is anything used by the offender other than the offender’s genitalia, e.g., a finger, bottle, handgun, stick.
   4. 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 mental or physical incapacity.
   5. Incest – Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.  This varies by state.  In Ohio, Revised Code Section 3101.01(A) prohibits marriage between individuals closer in kin than second cousins.
   6. Statutory Rape – Sexual intercourse with a person who is under the statutory age of consent.  This varies by state.  In Ohio, no person may have sex with a child under the age of thirteen, nor may a person over the age of eighteen have sex with a child under the age of sixteen.  See Ohio Revised Code Sections 2907.02(A)(1)(b), 2907.04(A).

4. “ Dating violence” means violence committed by a person on the basis of sex:

   1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
   2. Where the existence of such a relationship shall be determined based on a consideration of the following factors:
      1. The length of the relationship;
      2. The type of relationship;
      3. The frequency of interaction between the persons involved in the relationship.

5. “Domestic violence,” which includes the use, or attempted use, of physical abuse or a pattern of any other coercive behavior committed, or enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may, or may not, constitute criminal behavior, by a person who 

   1. Is a current or former spouse or dating partner of the victim, or other person similarly situated to a spouse of the victim; 
   2. Is cohabitating with, or has cohabitated with, the victim as a spouse or dating partner; 
   3. Is sharing a child in common with the victim; 
   4. Is an adult family member of, or paid or non-paid caregiver in an ongoing relationship of trust with a victim aged 50 or older or an adult victim with disabilities; or 
   5. Is committing acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the State of Ohio.
      
      
   6. “Economic Abuse,” in the context of “domestic violence” means behavior that is coercive, deceptive, or unreasonably controls or restrains a person’s ability to acquire, use, maintain economic resources to which they are entitled, including using coercion, fraud, or manipulation to 
   1. Restrict a person’s access to money, assets, credit, or financial information; 
   2. Unfairly use a person’s personal economic resources, including money, assets, and credit, for one’s own advantage; or 
   3. Exert undue influence over a person’s financial and economic behavior or decisions, including forcing default on joint or other financial obligation, exploiting powers or attorney, guardianship, or conservatorship, or failing or neglecting to act in the best interests of a person to whom one has a fiduciary duty. 
      
   7. 
      “Technological Abuse” in the context of “domestic violence” means an act or pattern of behavior that occurs within domestic violence, sexual assault, dating violence, or stalking and is intended to harm, threaten, intimidate, control, stalk, harass, impersonate, exploit, extort, or monitor, except as otherwise permitted by law, another person, that occurs using any form of technology, including but not limited to: internet enabled devices, cameras and imaging programs, apps, location tracking devises, or communication technologies, or any other emerging technologies. 

6. “Stalking” means engaging in a course of conduct on the basis of sex directed at a specific person that would cause a reasonable person to:

   1. Fear for his or her safety or the safety of others; or
   2. Suffer substantial emotional distress.

Sexual Harassment – Non Title IX

Sexual harassment is antithetical to biblical and academic values and to a work environment free from the fact or appearance of coercion.  Sexual harassment is a form of sex discrimination, a violation of University policies, and may result in serious disciplinary action.  In addition to the prohibitions set forth under the Title IX regulations, the University also prohibits “Sexual Harassment – Non Title IX” as defined here. Sexual Harassment – Non Title IX consists of any unwelcome sexual advances, requests for sexual favors, or other unwanted conduct of a sexual nature, whether verbal, nonverbal, graphic, physical, or otherwise, when:

1. Submission to or rejection of such conduct is an explicit or implicit condition of an individual’s employment, evaluation of academic work, or participation in any aspect of a University program or activity; or 
2. Submission to or rejection of such conduct by an individual is used as the basis for decisions affecting the individual; or
3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance, i.e. it is sufficiently severe, pervasive, or persistent as to create an intimidating, hostile, humiliating, demeaning, or sexually offensive working, academic, residential, or social environment under both a subjective and an objective standard. 

Sexual Harassment – Non Title IX may be found in a single episode, as well as in persistent behavior.  Conduct that occurs in the process of application for admission to a program or selection for employment, as well as conduct directed toward University students, faculty, or staff members, is covered by this definition.  

Sexual Assault – Non Title IX

Sexual Assault – Non Title IX is defined as conduct that meets the definition of one of the types of Sexual Assault under the definition of “Sexual Harassment – Title IX,” but that does not meet the threshold requirements under “Sexual Harassment – Title IX,” above.

Dating Violence – Non Title IX

Dating Violence – Non Title IX is defined as conduct that meets the definition of Dating Violence under the definition of “Sexual Harassment – Title IX,” but that does not meet the threshold requirements under “Sexual Harassment – Title IX,” above.

Domestic Violence – Non Title IX

Domestic Violence – Non Title IX is defined as conduct that meets the definition of Domestic Violence under the definition of “Sexual Harassment – Title IX,” but that does not meet the threshold requirements under “Sexual Harassment – Title IX,” above.  Domestic Violence – Non Title IX is also defined as conduct that would meet the definition of Domestic Violence under the definition of “Sexual Harassment – Title IX,” except that it is not on the basis of sex, regardless of whether it meets the threshold requirements under “Sexual Harassment – Title IX,” above.

Stalking – Non Title IX

Stalking – Non Title IX is defined as conduct that meets the definition of Stalking under the definition of “Sexual Harassment – Title IX,” but that does not meet the threshold requirements under “Sexual Harassment – Title IX,” above.  Stalking – Non Title IX is also defined as conduct that would meet the definition of Stalking under "Sexual Harassment – Title IX,” except that it is not on the basis of sex, regardless of whether it meets the threshold requirements under “Sexual Harassment – Title IX,” above.

Sexual Acts not Involving Contact

Sexual misconduct often includes nonconsensual sexual contact, however, physical contact is not a necessary component of sexual misconduct.  A sexual act not involving contact may also violate this policy, provided that the act was nonconsensual.  For example, texting content of a sexual nature, photographing, or the auditory or visual recording of sexual activity, if done without the consent of one or both parties, is sexual misconduct that would violate this policy.  Similarly, sharing such recordings or photographs without consent is a form of sexual exploitation and would violate this policy.

C.    Related Definitions

Advisor

Advisor means a person chosen by a party or appointed by the University to accompany the party to meetings related to the resolution process, to advise the party on that process, and to conduct questioning for the party at the hearing, if any.

Coercion

Coercion is the use of unreasonable pressure to compel another to engage in sexual activity against the individual’s will and to such an extent that participation is no longer voluntary. 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. Examples of coercion include threatening to harm oneself or expose personal secrets of the individual if the individual does not engage in sexual activity.

Complainant

A complainant is an individual who is reported to have experienced Prohibited Conduct or retaliation for having participated in a Title IX activity as protected in this policy.

Complaint (formal) - means a document submitted or signed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment or sex discrimination or retaliation for engaging in a protected activity, against a Respondent and requesting that the University investigate the allegation.

Consent

Sexual activity requires consent as a matter of state and federal law.  For legal purposes, consent is defined as clear, unambiguous, and voluntary agreement between the parties to engage in sexual activity.  

Consent cannot be obtained from someone who is not of legal age to consent, who is asleep, or who is otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other temporary or permanent, physical or mental disability or condition.  If a person is unconscious or unaware that sexual activity is occurring, consent is not possible.  An individual cannot claim that sexual activity was consensual if the individual knows or reasonably should have known that the other party was incapable of making a rational, reasonable decision regarding consent.  Consent cannot be obtained by threat, coercion, or force.  Agreement given under such conditions does not constitute consent.

Employee

Employee means any person employed by the University, whether as a faculty or staff member, whether full-time, part-time, adjunct, tenure-track or non-tenure track.

Force

Force means physical force, violence, threat, intimidation, or coercion.

Incapacitation

Incapacitation is defined as the inability, temporarily or permanently, to give consent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring, or lacks the ability to make informed, rational judgements (if a person is unable to understand the “who, what, when, where, why, or how” of their sexual interaction) in order to give consent. Evaluating incapacitation also requires an assessment of whether a respondent knew or should have known of the complainant's Incapacitation based on objectively and reasonably apparent indications of impairment when viewed from the perspective of a sober, reasonable person in the respondent’s position.

Respondent

A respondent is an individual who is reported to have engaged in Prohibited Conduct or retaliation toward an individual who participated in a Title IX activity as provided in this policy. There is a presumption that a respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

University

University means Cedarville University, Cedarville, Ohio.

University Community

For purposes of this policy, “University community” includes students, Trustees, faculty, administrators, staff, volunteers, vendors, independent contractors, visitors and any individuals regularly or temporarily employed, studying, living, visiting, conducting business or having any official capacity with the University or on University property.

University Student

University student means any individual who has gained admission to the University or who is registered or enrolled at the University at the time of the alleged Prohibited Conduct.