Definitions of Terms

Bullying: Repeated, severe, and/or aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally on the basis of actual or perceived membership in a protected class.  Bullying falls within this policy if it is based on membership in a protected class, other forms of bullying may nonetheless violate other University policies and be referred accordingly.

Complainant: The person or entity bringing the allegations that this policy has been violated.  May also be referred to as Reporting Party or Impacted Party

Discriminatory Harassment: Unwelcome conduct that is based on an individual’s actual or perceived membership in a protected class. It may include harassment of an individual or group in connection with a stereotyped group characteristic, or because of the individual’s identification with a particular group. Harassing conduct may take various forms, including, name-calling, graphic or written statements (including the use of cell phones or the Internet), or other conduct that may be physically threatening, harmful, or humiliating.  Such harassment does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Discriminatory harassment violates this policy when it creates a hostile environment. The University may take measures to remedy all forms of harassment when reported, whether or not the harassment rises to the level of creating a hostile environment. Behavior that is offensive but does not rise to the level of creating a hostile environment or is of a generic nature, not on the basis of a protected class, may be addressed through other University policy or response.

Equity Compliance Officer: the individual responsible for tracking and overseeing reports and complaints of discrimination and harassment (a Deputy Coordinator may be designee) and also serves as the University’s Title IX/Section 504 Coordinator.

Forced Sexual Intercourse: Any sexual penetration (anal, oral, or vaginal), by any object or body part, by a person upon any other person, that occurs as a result of physical force.  Sexual intercourse includes vaginal or anal penetration by a penis, tongue, finger, or object, or oral copulation (mouth to genital contact), no matter how slight the penetration or direct contact.

Hazing: Any planned/executed action or activity by or against an active member, associate member, new member, pledge or potential member of an organization or group that causes or is likely to cause physical or mental harm, distress, anxiety, or which may demean, degrade, embarrass or disgrace any person, regardless of location, consent or intention of participants, is prohibited.  Any actions or situation(s) that intentionally or unintentionally endanger a student who is attempting admission into or affiliating with any student organization is prohibited. Hazing, when it meets the statutory definition, is also prohibited under Ohio law. For more information see the Hazing Policy, Procedure, and Resource Guide in the University of Dayton Student Handbook.  Hazing falls within this policy if it is based on membership in a protected class, other forms of hazing may nonetheless violate other University policies and be referred accordingly

Hostile Environment discriminatory harassment: Hostile environment discriminatory harassment exists when harassment based on membership in a protected class:

• is sufficiently serious (i.e., severe, pervasive, or persistent) and objectively offensive so as to deny or limit a person's ability to participate in or benefit from the University's programs, services, opportunities, or activities ; or
• when such conduct has the purpose or effect of unreasonably interfering with an individual's employment

A hostile environment can be created by anyone involved in a University program or activity (e.g., administrators, faculty members, students, and even campus guests). Mere offensiveness is not enough to create a hostile environment. Although repeated incidents increase the likelihood that harassment has created a hostile environment, a serious incident, such as a sexual assault, even if isolated, can be sufficient.

In determining whether harassment has created a hostile environment, consideration will be made not only as to whether the conduct was unwelcome to the person who feels harassed, but also whether a reasonable person in a similar situation would have perceived the conduct as objectively offensive. Also, the following factors will be considered:

• The degree to which the conduct affected one or more students' education or one or more individuals' employment;
• The nature, scope, frequency, duration, and location of incident or incidents;
• The identity, number, and relationships of persons involved;
• Academic freedom

Intimidation: Implied threats or acts that cause an unreasonable fear of harm in another on the basis of actual or perceived membership in a protected class.

Non-Consensual Sexual Contact:  Any unwelcome intentional sexual touching, however slight, with any object or body part, by a person upon another person without consent and/or force.  This includes any contact with the breasts, buttocks, groin, genitals, mouth or other bodily orifice of another, as well as the touching of another with any of these body parts, by a person upon any person, without effective consent.  Other bodily contact in a sexual manner may also constitute non-consensual sexual contact.

Non-Consensual Sexual Intercourse:  Any sexual penetration (anal, oral, or vaginal), however slight, with any object or body part, by a person upon any other person, without effective consent.

Protected class: Means age, race, color, creed, religion, ancestry, national or ethnic origin, sex/gender, sexual orientation, gender identity, gender expression, disability, genetic information, military status, veteran status, familial status or any other protected category under applicable local, state or federal law, ordinance or regulation.

Respondent: Person or entity accused of violating this policy.  May also be referred to as the Responding Party.

Retaliation: Any adverse action taken against a person who is participating or participated in a protected activity (such as participating in or otherwise assisting with a University investigatory procedure); filing a complaint alleging prohibited discrimination (including harassment); or otherwise objecting to or reporting a practice that he or she reasonably and in good faith believed was in violation of the Nondiscrimination and Anti-Harassment Policy, where such adverse action is taken because of the person’s participation in that protected activity.  Retaliation involves intentional adverse action taken by a respondent or allied third party, absent legitimate nondiscriminatory purposes, that harms the individual as reprisal for reporting a violation of the Nondiscrimination and Anti-Harassment policy or participating or otherwise assisting in an investigation of an alleged violation of the policy. Taking intentional adverse action against a respondent where the investigation found that the respondent did not violate this policy also is impermissible.

Sexual Exploitation: Occurs when a person takes non-consensual or abusive sexual advantage of another for his or her own advantage or benefit, when such behavior does not constitute one of the other sexual misconduct offenses.  Examples include but are not limited to:

• Non-consensual recording.  Non-consensual digital, video or audio recording of sexual activity or nakedness (full or partial).  This includes the unauthorized sharing or distribution of digital, video or audio recording of sexual activity or nakedness (full or partial).
• Stalking with a sexual or gender based component. Stalking may take many forms, including persistent calling, texting or posting on a social networking site, seeking to gather information about another (online or through others), as well as physical stalking.  When the content of the messages or the nature of the physical stalking is of a sexual or gender based nature, sexual misconduct has occurred.
• Compelling Prostitution.  Compel or induce another individual to engage in sexual activity for hire.
• Voyeurism.  When one individual engages in secretive observation of another (or allows another to surreptitiously engage in this behavior) for personal sexual pleasure or  engages in nonconsensual video or audio recording of sexual acts or nakedness. This behavior is a form of sexual misconduct and violates the dignity of the affected party(ies), even if the person secretively viewed or recorded may be unaware of the observation or recording.
• Exposure. Exposure of oneself or another person’s private or intimate parts of the body (e.g., breasts, buttocks, groin, and/or genitals) in non-consensual circumstances and/or lewd manner.
• Alcohol/Drug facilitation. Administering alcohol or drugs (such as “date rape” drugs) to another person without their knowledge or consent.

Sexual harassment: Sexual harassment is a form of discriminatory harassment that can include unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, including sexual assault. Sexual harassment, including sexual assault, can involve persons of the same or opposite sex. Consistent with the law, this policy prohibits two types of sexual harassment:

1. Tangible Employment or Educational Action: This type of sexual harassment occurs when the terms or conditions of employment, educational benefits, academic grades or opportunities, living environment or participation in a University activity is conditioned upon, either explicitly or implicitly, submission to or rejection of unwelcome sexual advances or requests for sexual favors, or such submission or rejection is a factor in decisions affecting that individual's employment, education, living environment, or participation in a University program or activity. Generally, perpetrators will be agents or employees with some authority from the University.
2. Hostile Environment Sexual Harassment, i.e., sexual harassment that creates a hostile environment.

• A professor insists that a student have sex with him/her in exchange for a good grade. This is harassment regardless of whether the student accedes to the request.
• A student repeatedly sends sexually oriented jokes around on an email list s/he created, even when asked to stop, causing one recipient to avoid the sender on campus and in the residence hall in which they both live.
• Explicit sexual pictures are displayed in a professor’s office or on the exterior of a residence hall door
• Two supervisors frequently ‘rate’ several employees’ bodies and sex appeal, commenting suggestively about their clothing and appearance.
• A professor engages students in her class in discussions about their past sexual experiences, yet the conversation is not in any way germane to the subject matter of the class. She probes for explicit details, and demands that students answer her, though they are clearly uncomfortable and hesitant.
• An ex-girlfriend widely spreads false stories about her sex life with her former boyfriend to the clear discomfort of the boyfriend, turning him into a social pariah on campus
• Male students take to calling a particular brunette student “Monica” because of her resemblance to Monica Lewinsky. Soon, everyone adopts this nickname for her, and she is the target of relentless remarks about cigars, the president, “sexual relations” and Weight Watchers.
• A student grabbed another student by the hair, then grabbed her breast and put his mouth on it. While this is sexual harassment, it is also a form of sexual violence.

• These examples are taken from the model developed by The NCHERM Group, LLC / ATIXA, which the University of Dayton has a license to use. All other rights reserved. © 2013. The NCHERM Group, LLC/ATIXA.

Sexual Misconduct: The University has defined categories of sex discrimination as sexual misconduct. Generally speaking, the University considers Non-Consensual Sexual Intercourse violations to be the most serious, and therefore typically imposes the most severe sanctions on such violations, including suspension or expulsion for students and termination for employees.  However, the University reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any act of sexual misconduct or other gender-based offenses including intimate partner or relationship (dating and/or domestic) violence, non-consensual sexual contact and stalking, based on the facts and circumstances of the particular complaint. Acts of sexual misconduct may be committed by a person upon any other person, regardless of the sex, sexual orientation, or gender identity of those involved.  Sexual Misconduct encompasses; Sexual harassment, Non-Consensual Sexual Intercourse, Non-Consensual Sexual Contact, and/or Sexual Exploitation.

Stalking: A course of conduct directed at a specific person on the basis of actual or perceived membership in a protected class that is unwelcome and would cause a reasonable person to feel fear.  Repetitive and menacing pursuit, following, harassing and/or interfering with the peace and/or safety of another is also stalking. Stalking may take many forms, including but not limited to persistent calling, texting, or posting on a social networking site, seeking to gather information about another (online or through others), as well as physical stalking.

The following definitions can help one understand the boundaries that exist and the expectation the university has of individuals when engaging in sexual activity. The following definitions are from the University's sexual misconduct policy within the Nondiscrimination & Anti-Harassment policy. Learn more about healthy relationships and sexual violence prevention education from the office of Sexual Violence Prevention (https://udayton.edu/studev/health_wellness/brook/sexualviolenceprevention/index.php)

Effective Consent: Effective consent is granted when a person freely, actively and knowingly agrees at the time to participate in a particular sexual act with a particular person. Effective consent exists when mutually understandable words and/or actions demonstrate a willingness to participate in mutually agreed-upon activity at every stage of that sexual activity. Consent can be withdrawn once given, as long as the withdrawal is clearly communicated through words or actions.

Force: The use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcome resistance.

Coercion: Exists when a person engages in threats, sexual pressuring or oppressive behavior that violates the University community’s expectation of respect for the dignity of another person by causing another person to engage in unwanted sexual activity.  Real or perceived power differentials between the individuals involved may create an atmosphere of coercion. Coercion can be differentiated from seduction by a repetition of the coercive activity in the face of resistance, the degree of pressure applied or the initiator’s knowledge that the pressure is unwanted.

Incapacitation: There is no consent when someone engaging in sexual behavior knew or should have known that the other person was incapacitated. A state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent.  A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep or unconscious for any reason, including due to alcohol or other substances. The perspective of a sober and reasonable person will be the basis for determining whether an individual did or should have known about the impact of the use of alcohol, drugs, mental illness, etc., on another’s ability to give consent. Because incapacitation may be difficult to discern, the person seeking the sexual behavior is strongly encouraged to err on the side of caution; i.e., when in doubt, assume the other person is incapacitated and therefore unable to give effective consent.

Consent: Effective consent has time boundaries. Consent at one time does not imply consent at any other time. The existence of a dating/romantic relationship between the persons involved or the fact of a previous sexual relationship does not automatically establish effective consent for future sexual activity. There is no consent when agreement is only inferred from a person’s silence or lack of resistance; there is threat of physical force, harm or intimidation; or there is coercion. There is no consent when the person is under the age of 16.