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Definitions Related to Title IX and Sexual Misconduct

Section 800.10 of Eastern Florida State College's Procedures Manual, covering Sexual Misconduct - Title IX Grievance Procedure, includes a formal procedure for formal complaints of Sexual Misconduct based on the definitions below.

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Actual Knowledge

Means notice of Sexual Misconduct or allegations of Sexual Misconduct provided to the College’s Title IX Coordinator, or any College Vice President, Associate Vice President, Provost, Dean, Associate Provost, Student Life Coordinator/Student Ombudsman, Varsity Athletics Coach, Director of Support Services, Resident Assistant, or Campus Security Officer. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the College with actual knowledge is the respondent.

Complainant

Means an individual who is alleged to be the victim of conduct that could constitute Sexual Misconduct.

Consent

Means an act or statement that is knowing, freely given, and mutually understood to communicate a willingness to engage in an activity.

  1. It is the responsibility of each person involved in any sexual act to ensure that they have the consent of the other(s).
  2. The existence of a dating or sexual relationship between the people involved, or the existence of a past sexual encounter, is not by itself an indication of consent for any current or future sexual encounter.
  3. Consent cannot be obtained by force, threat, coercion, or by causing a reasonable fear of imminent injury.
  4. For sexual activity to be consensual, consent must be ongoing throughout the sexual encounter. A person can withdraw consent at any time. Consent to one sexual act does not automatically constitute consent to another sexual act.
  5. A person withdraws consent by clearly communicating withdrawal through words or actions.
  6. Consent to engage in sexual activity with one person does not automatically constitute consent to engage in sexual activity with another person.
  7. Lack of protest or resistance, alone, is not consent.
  8. A person who is incapacitated cannot give consent.

The above definition will be used in determining whether a respondent is responsible for violating the College’s Sexual Misconduct policy and procedure.

In Florida, the term “consent” is statutorily defined as intelligent, knowing, and voluntary consent and does not include coerced submission. Consent shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender. See Florida Statute 794.011.

Dating Violence

Dating Violence is violence committed on the basis of sex by a person who is or has been in romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

The above definition will be used in determining whether a respondent is responsible for violating the College’s Sexual Misconduct policy and procedure.

In Florida, the term “dating violence” is statutorily defined as violence between persons who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:

  1. A dating relationship must have existed within the past 6 months;
  2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and
  3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.

Florida law enforcement agencies will utilize this definition in determining whether to pursue criminal Dating Violence charges.  See Florida Statute 784.046.

Domestic Violence

Domestic Violence is defined as felony or misdemeanor crimes of violence committed on the basis of sex by a current or former spouse of the victim, or by a person with whom the victim shares a child in common, or by a person who is cohabitating with or has cohabitated with the victim as a spouse, or by a person similarly situated to a spouse of the victim under the domestic or family violence laws of Florida, 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 Florida.

The above definition will be used in determining whether a respondent is responsible for violating the College’s Sexual Misconduct policy and procedure.

In Florida, the term “Domestic Violence” is statutorily defined as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.  “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common, regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Florida law enforcement agencies will utilize this definition in determining whether to pursue criminal Domestic Violence charges. See Florida Statute 741.28.

Education Program or Activity

For purposes of the College’s Sexual Misconduct policy and procedure, an “education program or activity” means locations, events, or circumstances over which the College exercises substantial control over both the respondent and the context in which the Sexual Misconduct occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the College.

Fondling

The touching of the private body parts of another person for the purpose of sexual gratification without the consent of the other person, including instances where the other person is incapable of giving consent.

Formal Complaint

Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging Sexual Misconduct against a respondent and requesting that the College investigate the allegation of Sexual Misconduct. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in an education program or activity of the College. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by e-mail, by using the contact information listed in Section D - Reporting Sexual Misconduct. As used in this paragraph, the phrase “document filed by a complainant” means a document or electronic submission that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.

Impaired

Means a person’s normal faculties are diminished in some material respect. Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of daily life.

Incapacitation/Incapacitated

Incapacitation is a temporary or permanent state in which a person is physically or mentally unable to communicate a willful, voluntary, and knowing decision. A person can be incapacitated because of age, alcohol or drug consumption, being unconscious or asleep, a disability, or any other circumstance that prevents a person from having the capacity to give consent. For a person to be rendered incapacitated by alcohol or drugs, the person must be so impaired that they are unable to give consent. This level of impairment must be obvious to a reasonable person; it is not enough for a person to be merely under the influence of, or to have impaired judgment because of, alcohol or drugs.

Incest

Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

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 other person.

Relevant Evidence and Questions

Relevant evidence and questions refer to any questions and evidence that tends to make an allegation of Sexual Misconduct more or less likely to be true. Relevant evidence and questions do not include the following types of evidence and questions, which are deemed “irrelevant” at all stages of the Title IX Grievance Process:

  1. Evidence and questions about the complainant’s sexual predisposition or prior sexual behavior unless:
    • They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
    • They concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 34 C.F.R. § 106.45(6)(i).
  2. Evidence and questions that constitute, or seek disclosure of, information protected under a legally recognized privilege.
  3. Any party’s medical, psychological, and similar records unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020).

Respondent

An individual who has been reported to be the perpetrator of conduct that could constitute Sexual Misconduct.

Sexual Assault

An offense that meets the definition of Rape, Fondling, Incest, or Statutory Rape, as those terms are defined herein.

The above definition will be used in determining whether a respondent is responsible for violating the College’s Sexual Misconduct policy and procedure.

In Florida, the term “Sexual Assault” is legally referred to as “Sexual Battery” and law enforcement and the court system will utilize the following definition in determining whether to pursue criminal charges: any oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object without consent; however, sexual battery does not include an act done for a bona fide medical purpose. See Florida Statute 794.011.

Sexual Harassment

Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following:

  1. An employee (staff or faculty) of the College conditioning the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education program or activity; or
  3. Sexual Assault, Dating Violence, Domestic Violence, or Stalking, as those terms are defined herein.

Sexual Misconduct

Conduct that constitutes, or allegations that if proven would constitute, Sexual Harassment, Sexual Assault, Dating Violence, Domestic Violence, or Stalking, as those terms are defined herein.

Stalking

Stalking is defined as engaging on the basis of sex in a repetitive course of conduct (e.g. repeatedly following, harassing, threatening, or intimidating another by telephone, mail, electronic communication, social media, or any other action, device, or method) directed at a specific person that would cause a reasonable person to (a) fear for his or her safety or the safety of others or (b) suffer substantial emotional distress. For purposes of 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.

Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.

Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

The above definition will be used in determining whether a respondent is responsible for violating the College’s Sexual Misconduct policy and procedure.

In Florida, the term “Stalking” is defined as the willful, malicious and repeated following or harassing of a specific person that would cause a reasonable person to fear for his or her safety or the safety of others; or suffer substantial emotional distress; or an aggravated stalking, which means the willful, malicious and repeated following or harassing another with credible threats with the intent to place that person in reasonable fear of death or bodily injury; or willfully, maliciously, repeatedly following or harassing a minor under age 16; or after injunction for protection or any court-imposed prohibition of conduct, knowingly, willfully, maliciously and repeatedly follows or harasses another person.

Sexual Cyberharassment in Florida means to publish a sexually explicit image of a person that contains or conveys the personal identification information of the depicted person to an Internet website without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person.

Florida law enforcement agencies will utilize these definitions in determining whether to pursue criminal Stalking and/or Sexual Cyberharassment charges.  See Florida Statutes 784.048 and 784.049. 

Statutory Rape

Sexual intercourse with a person who is under the statutory age of consent.

Supportive Measures

Means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to a complainant or respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the College’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the College’s educational environment, or deter Sexual Misconduct. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact or communication between individuals, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The College must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the College to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

Unwelcome Conduct

Conduct is considered unwelcome if a person did not request or invite it and considered the conduct to be undesirable or offensive. Unwelcome 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. Unwelcome conduct does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Unwelcome conduct can involve persons of the same or opposite sex. Participation in the conduct or the failure to complain does not always mean that the conduct was welcome. The fact that a person may have welcomed some conduct does not necessarily mean that the person welcomed other conduct. Also, the fact that a person requested or invited conduct on one occasion does not mean that the conduct is welcome on a subsequent occasion.