Please note that some of the definitions contained below are explicit in nature.
Expand the following sections to view detailed definitions of terms to Title IX. Where applicable, difference are noted between New York state laws.
Accused – a person accused of a violation who has not yet entered the disciplinary process under this Policy.
Bystander – a person who observes a crime, impending crime, conflict, potentially violent or violent behavior, or conduct that is in violation of rules or policies of ACPHS.
Employee - a person employed by ACPHS at the time of the report of a potential violation of this policy.
Investigators - persons designated by ACPHS (who may or may not be ACPHS employees) who have received appropriate training to serve as investigators of Sexual Misconduct and Sexual Harassment complaints. Investigators receive training in conducting investigations of sexual violence, the results of trauma, impartiality, the rights of the respondent, including the right to a presumption that the respondent is "not responsible" until a finding of responsibility is made pursuant to this Policy, and other issues, including, but not limited to domestic violence, dating violence, stalking, and sexual assault.
Reporting Individual – a Student of Employee who has reported a violation of this Policy.
Respondent - a person accused of a violation of this Policy who has entered ACPHS’s disciplinary process under this Policy.
Title IX Coordinator - the employee designated by ACPHS as responsible for coordinating ACPHS's efforts to comply with its obligations under Title IX, including coordinating investigations of complaints received pursuant to Title IX and this Policy.
Title IX Panel - a panel of up to three trained ACPHS employees appointed by the Title IX Coordinator.
Sexual misconduct includes Sexual Assault, Non-consensual Sexual Activity, Stalking, Dating Violence, Domestic Violence, or Sexual Exploitation, all as defined below:
- Sexual Assault - An offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s UCR program and as set forth in Appendix A to the Clery Act regulations (34 CFR § 668.46). These terms are defined as follows:
- Rape – The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
- Fondling – the touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will; or, not forcibly or against the person’s will where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.
- Incest – sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
- Statutory Rape – sexual intercourse with a person who is under the statutory age of consent in the jurisdiction where the act takes place.
- Non-consensual Sexual Activity - As defined in the Clery Act: Any intentional sexual touching without effective consent. This includes any contact with the breasts, buttocks, groin, genitals, mouth or other bodily orifice of a person upon another person; the touching of another with any of these body parts, without effective consent; sexual intercourse or penetration (anal, oral, or vaginal) however slight, with any object or body part, by a person upon another person without effective consent ; or other intentional contact of a sexual nature without consent or as a result of force, whether by physical force or by threats, intimidation, or coercion.
- Sexual Activity - As defined in the Clery Act:
- Contact between the penis and the vulva or the penis and the anus, and for purposes of this definition contact involving the penis occurs upon penetration, however slight;
- Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
- Penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
- Intentional touching, either directly or through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
- Stalking - Stalking normally includes 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. Stalking may include persistent calling, texting, or posting on a social networking site as well as physical stalking. When the content of the messages or the nature of the physical stalking is of a sexual nature or arises out of an actual or perceived social relationship of a romantic or sexual nature, the behavior is a form of Sexual Misconduct.
- Dating Violence – As defined in the Clery Act: 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 is determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition, 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.
- Domestic Violence - As defined in the Clery Act: Felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family laws of the jurisdiction in which the crime of violence occurred, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
- Sexual Exploitation - Taking non-consensual, unfair, or abusive sexual advantage of another for his/her own advantage or benefit. Examples include, but are not limited to: non-consensual video or audio taping of sexual activity; voyeurism.
Note: “Sexual Harassment” includes all forms of “Sexual Misconduct” but also includes behavior that does not fall within the definition in this Policy of “Sexual Misconduct.”
Sexual harassment is a form of sex discrimination and means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submission to that conduct is made either explicitly or implicitly a term or condition of employment or education;
- Submission to or rejection of such conduct by an individual is used as a component of the basis for employment or education-related decisions affecting that individual; or
- The conduct has the effect of substantially interfering with an individual’s work performance, academic or education-related experience, or of creating an intimidating, hostile, or offensive working or educational environment.
Examples of sexual harassment include, but are not limited to, the following, when such acts or behavior come within one of the above definitions:
- Either explicitly or implicitly conditioning any term of employment (e.g., continued employment, wages, evaluation, advancement, assigned duties or shifts) or educational benefit on the provision of sexual favors;
- touching or grabbing a sexual part of an employee’s body;
- touching or grabbing any part of an employee’s body after that person has indicated, or it is known, that such physical contact was unwelcome;
- continuing to ask an employee to socialize on or off-duty when that person has indicated s/he is not interested;
- displaying or transmitting sexually suggestive pictures, objects, cartoons, or posters if it is known or should be known that the behavior is unwelcome;
- continuing to write sexually suggestive notes or letters if it is known or should be known that the person does not welcome such behavior;
- referring to or calling a person a sexualized name if it is known or should be known that the person does not welcome such behavior;
- regularly telling sexual jokes or using sexually vulgar or explicit language in the presence of a person if it is known or should be known that the person does not welcome such behavior;
- retaliation of any kind for having filed or supported a complaint of sexual harassment (e.g., ostracizing the person, pressuring the person to drop or not support the complaint, adversely altering that person’s duties or work or educational environment, etc.);
- derogatory or provoking remarks about or relating to an employee’s sex;
- harassing acts or behavior directed against a person on the basis of his or her sex;
“Consent” for purposes of Sexual Misconduct means “Affirmative Consent.”
“Affirmative Consent” is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
The following principles are provided as guidance for the ACPHS community:
- Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
- Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
- Consent may be initially given but withdrawn at any time.
- Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
- Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
- When consent is withdrawn or can no longer be given, sexual activity must stop.