Section 5: Definitions
As used in this policy, the following phrases and words shall have the meanings set forth below:
Coercion - Unreasonable pressure for sexual activity, which can include use of express or implied threats of violence or other act of retaliation or other intimidating behavior that puts a person in immediate fear, to compel that person into sexual activity.
Complainant(s) – The person claiming to be a victim of Sexual Misconduct and, as appropriate, persons reporting Sexual Misconduct.
Consent - A knowing, voluntary, and clear permission by word or action to engage in sexual activity.
Individuals may experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity.
If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset by both parties is strongly encouraged.
For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Reasonable reciprocation can be implied. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.
Consent can also be withdrawn once given at any time, as long as the withdrawal is reasonably and clearly communicated by word or action. If consent is withdrawn, that sexual activity should cease within a reasonable time.
Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent.
Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, it remains for the College to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person, including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.
Consent is relationships must also be considered in context. When parties consent to bondage, discipline/dominance, submission/sadism, masochism (BDSM) or other forms of kink, non-consent may be shown by the use of a safe word. Resistance, force violence, or even saying "no" may be part of the kink and thus consensual, so the College's evaluation of communication is kink situations should be guided by reasonableness, rather than strict adherence to policy that assumes non-kink relationships as a default.
Counseling Employees - Pastoral and professional counselors employed by the College in these roles who are licensed by the Commonwealth of Kentucky and other non-licensed employees working under the direct supervision and control of licensed professional counselors.
Dating Violence - Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of the relationship, and Violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. This definition does not include acts covered under the definition of Domestic Violence.
Domestic Violence - A felony or misdemeanor crime of violence committed by: (a) a current or former spouse or intimate partner of the victim, (b) a person with whom the victim shares a child in common, (c) a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner, (d) a person similarly situated to a spouse of the victim under any applicable domestic or family violence laws, or (e) any other person against an adult or youth victim who is protected from that person’s acts under any applicable domestic or family violence laws.
Educational Setting - All of the College’s academic programs and other activities of whatever nature on the College’s campus, the College’s farms, forest, other property owned by the College and at every other location where the College conducts authorized programs or activities.
Force - 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.
Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.
Incapacitation - A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. 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.
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 restrain, and/or the consumption of incapacitating drugs.
Intimidation - The intentional act of coercing, threatening, or frightening someone to engage or not engage in conduct of a sexual nature against that person’s will.
Hostile Environment - “Hostile Environment” means activity or conduct that is severe or pervasive and objectively offensive that it interferes with, limits, or effectively denies a person's ability to participate in or benefit from the College’s program or in their place of employment.
Non-Consensual Sexual Contact - Any physical touching of a sexual nature that is not preceded by consent or that continues after a previous consent is withdrawn.
Non-Consensual Sexual Intercourse - Any sexual intercourse that is not preceded by consent or which continues after a previous consent is withdrawn. “Sexual intercourse” includes vaginal or anal penetration by a penis, object, tongue, or finger and oral copulation.
Required Reporters - All employees of Berea College (including all administrators, faculty, and staff, other than student labor).
Respondent - An individual who has been reported to be the perpetrator of conduct that could constitute a violation of this policy.
Retaliation - Any materially adverse action by intimidating, threatening, coercing, harassing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by law or policy, or because the individual has made a report or complaint, testified, assisted, or participated in or refused to participate in any manner in an investigation, proceeding, or hearing under this policy and procedure.
Sexual Exploitation - Taking non-consensual or abusive sexual advantage of another for one's own benefit or for the benefit of anyone other than the person being exploited, and conduct which does not otherwise constitute sexual harassment under this policy. Examples of Sexual Exploitation include, but are not limited to:
- Sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed).
- Invasion of sexual privacy.
- Taking pictures, video, or audio recording of another in a sexual act, or in any other sexually-related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person's consent), including the making or posting of revenge pornography.
- Prostituting another person.
- Engaging in sexual activity with another person while knowingly infected with a sexually-transmitted disease (STD) or infection (STI), without informing the other person of the infection.
- Causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person's ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity.
- Misappropriation of another person's identity on apps, websites, or other venues designed for dating or sexual connections.
- Forcing a person to take an action against that person's will by threatening to show, post, or share information, video, audio, or an image that depicts the person's nudity or sexual activity.
- Knowingly soliciting a minor for sexual activity.
- Engaging in sex trafficking.
- Creation, possession, or dissemination of child pornography.
Sexual Harassment - Unwelcome conduct of a sexual nature. Sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly as a requirement of employment or participation in a College program or activity, or (2) submission to or rejection of such conduct by an individual is used as the basis for employment, grading or other College decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance or creating an intimidating, hostile, or offensive working, academic, or campus environment.
The College recognizes two types of sexual harassment: quid pro quo (something for something) and hostile environment misconduct. Quid pro quo harassment occurs where sexual activity is sought in exchange for an actual, tangible job or academic benefit. In this policy, quid pro quo harassment differs from the Title IX Sexual Harassment Policy, because the respondent may be an employee or a student. Hostile environment misconduct takes place where the conduct is so frequent or severe it creates an environment in which an individual’s professional or academic performance is impaired or such person’s ability to function within the College community is hindered.
Sexual Misconduct - Any act of Sexual Harassment, Non-consensual Sexual Contact, Non-consensual Sexual Intercourse, Sexual Exploitation, Stalking, Dating Violence, Domestic Violence, or any act that creates a Hostile Environment or any act of retaliation against a Complainant or anyone involved in a grievance procedure under this policy.
Stalking - Engaging in a course of conduct directed at a specific person that would cause a reasonable person to (a) fear for the person’s safety or the safety of others, or (b) suffer substantial emotional distress. As used in 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; and “reasonable person” means a person under similar circumstances and with similar identities to the victim.
Title IX Coordinator - The person designated as such by the President of the College or a person temporarily designated by the Title VII/IX Coordinator to serve in that capacity during the Title VII/IX Coordinator’s incapacity or absence from the College’s campus.