Affirmative Consent: Means an affirmative, conscious decision by each participant to engage in mutually agreed-upon sexual activity. All five of the following elements are essential in order to have affirmative consent. If one or more of the following is absent, there is no affirmative consent.
- Consists of Mutually Understandable Communication: Communication regarding consent consists of mutually understandable words and/or actions that indicate an unambiguous willingness to engage in sexual activity. In the absence of clear communication or outward demonstration, there is no consent. Consent may not be inferred from silence, passivity, lack of resistance or lack of active response. An individual who does not physically resist or verbally refuse sexual activity is not necessarily giving consent. Relying solely upon non-verbal communication can lead to a false conclusion as to whether consent was sought or given. Verbal communication is the best way to ensure all individuals are willing and consenting to the sexual activity.
- Informed and Reciprocal: All parties must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting and a willingness to do the same thing, at the same time, in the same way.
- Freely and Actively Given: Consent cannot be obtained through the use of force, coercion, threats, intimidation or pressuring, or by taking advantage of the incapacitation of another individual.
- Not Unlimited: Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to sexual activity with one person constitute consent to activity with any other person. Each participant in a sexual encounter must consent to each form of sexual contact with each participant. Even in the context of a current or previous intimate relationship, each party must consent to each instance of sexual contact each time. The consent must be based on mutually understandable communication that clearly indicates a willingness to engage in sexual activity. The mere fact that there has been prior intimacy or sexual activity does not, by itself, imply consent to future acts.
- Not Indefinite: Consent may be withdrawn by any party at any time. Recognizing the dynamic nature of sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate clearly throughout all stages of sexual activity. Withdrawal of consent can be an expressed “no” or can be based on an outward demonstration that conveys that an individual is hesitant, confused, uncertain or is no longer a mutual participant. Once consent is withdrawn, the sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before continuing further sexual activity.
Because of the commitment to maintaining an environment that supports Rhodes’ educational mission, the College prohibits romantic, sexual, and exploitative relationships between college employees and students. (See Rhodes College Handbook-Fraternization Policy For Faculty and Staff)
Under Tennessee law, the age of consent varies depending on the age of the partner. Statutory rape occurs if the victim is at least thirteen (13) but less than eighteen (18) years of age, and the defendant is at least four (4) years older than the victim. Statutory rape also occurs if the victim is less than thirteen (13) years of age.
Appeals Board: Refers to a group of trained College faculty and staff members that hears and decides appeals of findings and sanctions imposed by the Sexual Misconduct Hearing Board (defined below). The Appeals Board will consist of three members (one of whom will be designated as the board’s chairperson), selected from the pool of faculty and staff who are trained to serve on the Sexual Misconduct and Advisor Response Team (SMART). This three-member board is authorized to affirm, alter, or reverse the original findings and/or sanctions recommended by the Sexual Misconduct Hearing Board. Once issued, the Appeals Board’s decision is final..
Claim: Refers to a formal written complaint filed with the Title IX Coordinator or the Title IX Coordinator’s designee alleging any action, policy, procedure or practice that would be prohibited by Title IX, such as Sex/Gender Discrimination or Sexual Misconduct, and indicating that they want the College to take further steps beyond the investigation. A Claim may be filed by a Claimant and may be requested by another individual who knows of or witnessed an incident of Sex/Gender Discrimination or Sexual Misconduct but who did not suffer such misconduct themselves. A report can also become a Claim if Rhodes determines that, in order to meet its Title IX obligations to provide a safe and nondiscriminatory environment for the broader Rhodes Community, it must take further steps beyond the investigation, such as holding a Formal Resolution Hearing.
Claimant: Refers to an individual who has been subjected to an incident of Sex/Gender Discrimination or Sexual Misconduct that proceeds to a Claim.t.
Clery Act: Refers to the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act, 20 U.S.C. Section 1092(f); 34 C.F.R., Part 668.46. It requires colleges and universities, both public and private, participating in federal student aid programs to disclose campus safety information, and imposes certain basic requirements for handling incidents of sexual violence and emergency situations.
Coercion: Means the use of pressure to compel another individual to initiate or continue activity against their will, including psychological or emotional pressure, physical or emotional threats, intimidation, manipulation, or blackmail. Coercion is defined under Tennessee law to include a threat of kidnapping, extortion, force or violence to be performed immediately or in the future. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include, but are not limited to threatening to “out” someone based on sexual orientation, gender identity, or gender expression; threatening to harm oneself if the other party does not engage in the sexual activity; and threatening to expose someone’s prior sexual activity to another person and/or through digital media.
Consent: See Affirmative Consent above
Dating Violence: See Sexual Misconduct below, Subsection A.
Domestic Violence or Domestic Assault: See Sexual Misconduct below, Subsection B.
Formal Resolution: Refers to the College's formal disciplinary proceeding through which the Sexual Misconduct Hearing Board evaluates evidence related to a Claim to determine whether a Respondent is in violation of this policy, based on the criteria of a preponderance of evidence..
Incapacitation: Means the lack of the ability to make rational, reasonable judgments as a result of alcohol consumption, other drug use, sleep, the taking of any so-called “date-rape” drug, unconsciousness, or blackout. An individual unable to make informed judgments is physically helpless. An incapacitated person cannot make rational, reasonable decisions because that person lacks the ability to fully understand the who, what, where, or how of their sexual interaction. Incapacitation is a state beyond drunkenness or intoxication, in which alcohol, drugs, or other factors render one unable to make fully informed judgments or have an awareness of consequences. Evaluating incapacitation also requires an assessment of whether a Respondent knew or should have known of the other individual's incapacitated state. While incapacitation may be caused by drugs or alcohol, it also includes the state of being asleep, during which time a person is unable to provide affirmative consent.
Informal Resolution Conference: Is intended to allow the Claimant and the Respondent to provide information about the alleged incident(s) of discrimination or harassment, and to reach a mutually agreeable resolution. This process aims to assure fairness, to facilitate communication, and to maintain an equitable balance of power between the parties.
Investigator: Refers to an official(s) designated by the Title IX Coordinator to conduct an investigation of alleged Sex/Gender Discrimination or Sexual Misconduct, and who acts as a witness in the event of a Formal Resolution Hearing. The Investigator will be a trained individual who objectively collects and examines the facts and circumstances of potential violations of this policy and documents them for review. The Investigator will be neutral and will hold no biases in the investigation.
Mandatory Reporter: Refers to an individual who is obligated to report any knowledge they may have of Sex/Gender Discrimination and Sexual Misconduct. Rhodes College defines all faculty and staff as mandatory reporters except certain “confidential resources” staff. (See Section XIII above.) The only students who are designated as Mandatory Reporters are Resident Assistants and members of the Peer Advocate Center.
Non-Consensual Sexual Contact: See Sexual Misconduct below, Subsection C.
Non-Consensual Sexual Penetration: See Sexual Misconduct below, Subsection D.
Preponderance of Evidence: Refers to the standard by which it is determined at a hearing whether or not a violation of this policy has occurred, and means that an act of sex discrimination is “more likely than not” to have occurred. This standard applies for all claims of sex discrimination, including sexual harassment and sexual violence.
Rape: See Sexual Misconduct below, Subsection E.
Report: Refers to any communication that puts a Rhodes Mandatory Reporter on notice of an allegation that sex/gender discrimination or sexual misconduct occurred or may have occurred. Rhodes will investigate all reports it receives of sex/gender discrimination and sexual misconduct. After making a report, an individual may choose to end their involvement in the process there, may choose to be involved or not be involved in the College’s investigation and related proceedings, or may choose to file a formal Claim and pursue Formal Resolution or an Informal Resolution Conference. The College strongly encourages all individuals to report incidents of sexual misconduct and sex/gender discrimination even if the individual does not intend to pursue a Claim.
Reporter: Refers to an individual who notifies a Rhodes Mandatory Reporter of an alleged violation of the Sex/Gender Discrimination and Sexual Misconduct policy. A Reporter can be any individual who reports to Rhodes that they are a victim or survivor of sex/gender discrimination or sexual misconduct; that they have been affected by sex/gender discrimination or sexual misconduct, or that they have knowledge of sex/gender discrimination and sexual misconduct happening to or affecting someone else.
Respondent: Refers to an individual against whom a Claim has been filed or report has been made and whose conduct is alleged to have violated this policy.
Sex/Gender Discrimination: Refers to the unequal treatment of an individual based on their sex or gender in any employment decision, education program or educational activity receiving Federal financial assistance. Such programs or activities include, but are not limited to, admission, hiring and recruitment, financial aid, academic programs, student treatment and services, counseling and guidance, discipline, classroom assignment, grading, vocational education, recreation, physical education, athletics, housing and employment. The prohibition on sex discrimination also covers unlawful discrimination based on gender identity, sexual orientation, pregnancy, termination of pregnancy, childbirth or related conditions. Also prohibited as sex discrimination is any act which is based on parental, family, or marital status and which is applied differently based on sex.
Sexual Assault: See Sexual Misconduct below, Subsection F.
Sexual Exploitation: See Sexual Misconduct below, Subsection G.
Sexual Harassment: See Sexual Misconduct below, Subsection H.
Sexual Misconduct: Is a broad term that encompasses sexually-motivated misconduct as described in this policy, including conduct of an unwelcome and/or criminal nature, whether such conduct occurs between strangers, acquaintances, or intimate partners. For the purposes of this policy, the following terms are collectively referred to as “Sexual Misconduct” and will be defined in detail below: Dating Violence, Domestic Violence, Nonconsensual Sexual Contact, Nonconsensual Sexual Penetration, Rape, Sexual Assault, Sexual Exploitation, Sexual Harassment, Sexual Violence, and Stalking.
A. Dating Violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the alleged victim. The existence of such a relationship will be determined based on a consideration of the length of the relationship; the type of relationship; and the frequency of interaction between the persons involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence. 34 C.F.R. § 668.46. There is no definition of "dating violence" under Tennessee law.
B. Domestic Violence or "Domestic Assault": Under Tennessee law, a person commits domestic assault when they intentionally, knowingly or recklessly causes bodily injury, a reasonable fear of imminent bodily injury or physical contact that would be regarded as extremely offensive or provocative to persons falling within the following categories:
- Adults or minors who are current or former spouses;
- Adults or minors who live together or who have lived together;
- Adults or minors who are dating or who have dated or who have or had a sexual relationship, but does not include fraternization between two individuals in a business or social context;
- Adults or minors related by blood or adoption;
- Adults or minors who are related or were formerly related by marriage; or
- Adult or minor children of a person in a relationship that is described in one of the categories listed above.
C. Non-Consensual Sexual Contact: "Sexual contact" is defined under Tennessee law as the intentional touching of another person's intimate parts, or the intentional touching of the clothing covering the immediate area of the other person's intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification. Such contact is deemed non-consensual if done without the other person's affirmative consent (see definition above).
D. Non-Consensual Sexual Penetration: "Sexual penetration" is defined under Tennessee law as sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, by any part of a person's body or by any object into the genital or anal openings of any other person's body. Such contact is deemed non-consensual if done without the other person's affirmative consent (see definition above).
E. Rape: is defined under Tennessee law as the unlawful Sexual Penetration of a person accompanied by any of the following circumstances:
- Force or coercion is used to accomplish the act;
- The act is accomplished without the other person's consent and the perpetrator knows or has reason to know at the time of the penetration that the person did not consent;
- The perpetrator knows or has reason to know that the person is mentally or physically incapacitated or helpless; or
- The act is accomplished by fraud.
F. Sexual Assault: Is defined as any type of sexual conduct, activity or behavior that occurs without the explicit consent of the recipient of the unwanted sexual conduct, activity or behavior, and includes forced sexual intercourse, sodomy, child molestation, incest, fondling, rape, attempted rape, statutory rape, sexual battery and aggravated sexual battery.
G. Sexual Exploitation: Occurs when a person takes non-consensual or abusive sexual advantage of another for their own advantage or benefit, or the benefit of anyone other than the one being exploited. Examples of sexual exploitation include, but are not limited to:
- Non-consensual video or audio-taping of sexual activity or other private activity, even if that activity occurs in a public or semi-public place;
- Non-consensual dissemination of video, photographs, or audio of sexual activity or other private activity, including dissemination by a third party or a person not involved in the original conduct;
- Exceeding the boundaries of consent (such as, permitting others to hide in a closet and observe consensual sexual activity, videotaping of a person using a bathroom or engaging in other private activities);
- Engaging in voyeurism, exposing one’s breasts, buttocks, or genitals in a non-consensual circumstance or inducing another to expose their breasts, buttocks, or genitals without affirmative consent;
- Prostituting another person;
- Engaging in consensual sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease or infection (STD or STI,) and without informing the other person of such disease or infection; and
- Sexually-based stalking and/or bullying.
H. Sexual Harassment: Conduct that is sexual in nature, is unwelcome and interferes with a Rhodes College community member’s ability to perform a job, participate in activities, and/or participate fully in the college’s education programs. It is a form of misconduct that is demeaning to others and undermines the integrity of the employment relationship and/or learning environment. It includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact, or other verbal, written, or electronic communication of a sexual nature when: (1) Submission to that conduct or communication is made a term or condition, explicitly or implicitly, of obtaining employment or education; (2) Submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment or education; or (3) That conduct or communication has the purpose or effect of substantially interfering with an individual’s employment or education, or of creating an intimidating, hostile, or offensive employment or educational environment. Sexual harassment may be a one-time event or it may be part of a persistent and pervasive pattern.
Sexual harassment is unlawful and prohibited regardless of whether it is between or among members of the same sex or opposite sex. Sexual harassment may also consist of inappropriate gender-based comments and gender stereotyping. Examples of conduct constituting sexual harassment and which could create a hostile environment include, but are not limited to:
- Engaging in unlawful conduct based on one's gender, sexual orientation, gender identity or expression, including, but not limited to, acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex/gender or sex/gender-stereotyping, even if the acts do not involve conduct of a sexual nature;
- Making unwelcome sexual advances, propositions or other sexual or gender-based comments, such as sexual or gender-oriented gestures, sounds, remarks, jokes or comments about an individual's gender, sex, sexuality or sexual experiences;
- Requesting sexual favors, or engaging in other verbal or physical conduct of a sexual nature;
- Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, or suggestive or obscene letters, notes, drawings, pictures or invitations, or through digital media;
- Conditioning any aspect of an individual’s employment or academic participation on their response to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature;
- Creating an intimidating, hostile or offensive working or academic environment through digital media or by sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; and
- Conduct that is criminal in nature, such as rape, sexual assault, domestic violence, dating violence, sexually motivated stalking and other forms of sexual violence.
I. Sexual Violence: Consists of physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the student from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including, but not limited to, rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.
J. Stalking: Is defined as engaging in 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 to suffer substantial emotional distress. Under Tennessee law, stalking means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested. The phrase "course of conduct" means a pattern of direct or indirect conduct composed of a series of two (2) or more separate non-continuous acts evidencing a continuity of purpose, 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.
Types of stalking could include, but are not limited to:
- Following the targeted person;
- Approaching or confronting that person in a public place or on private property;
- Persistent and unwelcome attempts to contact the person by phone, electronic communication (including via the internet and cellphones), or regular mail, either anonymously or non-anonymously;
- Vandalizing the person’s property or leaving unwanted items for the person;
- Persistently appearing at the person’s classroom, residence, or workplace without that person's permission or other lawful purpose;
- Cyber-stalking, in which a person follows, observes, monitors, or surveils another person through the use of electronic media such as the Internet, digital media networks, blogs, cell phones, texts or other similar devices; and
- Using visual or audio recording devices or hidden or remote cameras used without the subject’s consent.
Sexual Misconduct and Advisor Response Team (SMART): Refers to the pool of faculty and staff members who are trained to serve in various roles under this policy, including as Advisors for the Claimant or Respondent, as members of the Sexual Misconduct Hearing Board, or as members of the Appeals Board. To avoid potential conflicts of interest, an individual from the Sexual Misconduct and Advisor Response Team(SMART) is limited to serving only one role during proceedings associated with a report or Claim and any related reports or Claims.
Sexual Misconduct Hearing Board: Refers to the three-member decision-making body composed of College faculty and staff, who serve on the Sexual Misconduct and Advisor Response Team (SMART), that considers cases brought under this policy. Each particular Hearing Board is constituted, as needed, from the available pool of faculty and staff who are trained to serve as Advisors and Board members. One of the three Board members will be designated as the chairperson. The Hearing Board hears the facts and circumstances of an alleged policy violation as presented by the Investigator, a Claimant, a Respondent and/or witnesses at a Formal Resolution Hearing. This body is responsible for determining if a policy violation has occurred and whether/what sanctions are appropriate.
Sexual Violence: See Sexual Misconduct above, Subsection I.
Stalking: See Sexual Misconduct above, Subsection J.
Supporter: Refers to any person, regardless of their association with the college, who a Reporter, Claimant, or Respondent may want to support them through a portion of or the entire process. A Supporter is not required, but is encouraged to help the party with emotional and personal support. When present during interviews, hearings, and appeals, the Supporter cannot take an active role. A supporter can be a friend, family member, or any trusted person who can provide needed care to a party.
Title IX: Refers to a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. Title IX prohibits the use of federal money to support sex discrimination in education programs and provides individual citizens effective protection against those practices. Title IX applies, with a few specific exceptions, to all aspects of federally funded education programs or activities. In addition to traditional educational institutions such as colleges, universities, and elementary and secondary schools, Title IX also applies to any education or training program operated by a recipient of federal financial assistance.