Goshen College recognizes that everyone’s experience with sexual harassment and violence is unique and may not fit into a specific legal or policy definition. The College provides the following definitions of terms used to describe sex-based crimes covered by this policy and recognizes that the following definitions may not fit your situation.
These definitions are intended to help you consider your options for addressing and remedying your situation through the College’s Title IX Office, through other College grievance processes, or in a legal process. See also Goshen College Title IX Policy on Sexual Harassment and Assault (2020).
When filing a report, you do not need to worry about definitions and categories, although the online reporting form provides options for you to consider and select as you describe what has happened. The Title IX Deputy Coordinator will meet with you to better understand your situation and help you consider the options you may have for addressing and remedying your situation in a way that is most helpful to you.
The behaviors listed below are serious violations of the College’s Community Standards and are detrimental to both relationships and to individual self-esteem. All members of the College community, students, employees, and guests are expected “to support an environment of mutual respect and accountability, to care for the personal dignity of others and to have integrity in their conduct and communication.; these also violate the caring nature of our community” (Goshen College Community Standards). See also the examples provided of bias-related discrimination and harassment, which include gender-based harassment and other forms of bias.
Given the nature of this type of conduct and the serious effects such conduct can have, Goshen College treats violations of this policy seriously and will work promptly and equitably to address and remedy situations involving gender and sexual harassment and work to prevent them from happening again.
Definitions
The College has adopted the following definitions in order to address the unique environment of an academic community, which consists not only of employers and employees, but also of students. See Appendix A for a glossary of terminology used in this policy and procedures.
Affirmative consent: A verbal agreement given by individuals before and during sexual activity that must be informed, voluntary, and mutual, and can be withdrawn at any time. In relationships of every level of intimacy, affirmative consent should be a process of communicating the desires and needs of each person. See also consent.
Consent: An informed, voluntary, and mutual agreement between individuals to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission to engage in sexual activity. Consent cannot be given by an individual who one knows to be, or based on the circumstances should reasonably have known to be, substantially impaired (e.g., by alcohol or other drug use, unconsciousness, etc.), incapacitation, or by an individual who is under the age of consent in the state of Indiana (age 16). Substantial impairment includes:
- A state when an individual cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction).
- Individuals whose substantial impairment results from other physical or mental conditions including mental disability, sleep, involuntary physical restraint, or from the consumption of alcohol or other
Being impaired by alcohol or other drugs will never function as a defense for any behavior that violates this policy. See also the definition for incapacitation.
Consent for one individual or each sexual interaction may be defined differently in different contexts. Therefore, each party is responsible for determining that the other individual has clearly consented before engaging in the activity and ensuring ongoing consent to continue sexual activity through clear communication.
- Consent is never implied, assumed, coerced, or owed.
- Coercion, force, or threat of either invalidates consent.
- Silence or absence of resistance does not imply consent.
- Consent may be withdrawn at any time during sexual activity.
- A person who does not want to consent to sex is not required to resist or verbally object in order for the behavior to be nonconsensual.
- Past consent, regardless of when given or in what medium (verbal, visual, social media, written) does not imply future consent.
- Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another.
- Consent to any one form of sexual activity does not imply consent to any other forms of sexual activity.
For the terms of this policy, the existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances.
Dating violence: A form of sexual violence committed by a person who is or has been in a romantic or intimate relationship with the complainant. Whether there was such a relationship is gauged by length, type, and frequency of interaction. The existence of such a relationship will be determined based on the complainant’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. Dating violence includes, but is not limited to, physical, emotional, verbal, sexual, and economic abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence. See definition below. This definition aligns with federal definitions of “dating violence” in 34 U.S.C. 12291(a)(10).
Domestic violence: Sexual violence committed by the current or former spouse, a current or former cohabitant with whom the complainant had an intimate relationship, and/or a person with whom the complainant shares a child in common.19 To be categorized as domestic violence, the relationship between the respondent and the complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship. Domestic violence is defined in Indiana Code as conduct that is an element of an offense under IC 35-42 (criminal offenses against the person) or a threat to commit an act described in IC 35-42 as occurring from a person against a person who: (1) is or was a spouse of; (2) is or was living as if a spouse of; (3) has a child in common with; (4) is a minor subject to the control of the other person regardless of whether the act or threat has been reported to a law enforcement agency, or results in a criminal prosecution. This definition aligns with federal definitions of “domestic violence” as defined in 34 U.S.C. 12291(a)(8).
Force: The use of physical violence and/or physical imposition to gain sexual access to another individual. 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. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent. See also Consent.
Forcible Fondling: Touching of the private body parts of another person (buttocks, groin, breasts), for the purpose of sexual gratification, forcibly, and/or against that person’s will (non-consensually), or not forcibly or against the person’s will in instances in which a complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
Harassment: Conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes (IC-35-45-10-2).
Hostile environment: A situation where sexual harassment or violence is directed at an individual because they are actually or perceived to be a member of a legally protected class. Harassment creates a hostile environment when it is sufficiently severe, persistent or pervasive and objectively offensive to a reasonable person. A hostile environment is always uncomfortable but it is tied to discrimination when the behavior impacts tangible work or educational benefits, interferes unreasonably with an individual’s job performance or academic performance, or creates what a reasonable person would perceive is an intimidating, hostile or offensive work or learning environment. Physical violence always creates a hostile environment, but a hostile environment does not require the presence of physical violence. Although harassment of an individual who is not a part of a protected class may not create a hostile environment, the behavior violates the College’s community standards and should be reported.
Incapacitation: The physical or mental inability to make informed, rational judgments; to evaluate or control conduct; or communicate or grant consent. Incapacitation is created when the individual is unconscious, asleep, intoxicated, or under the influence of other drugs or is, for any other reason, physically, mentally or legally unable to communicate or grant consent.
Intimidation: Unlawfully placing another person in reasonable fear of bodily harm through the use of threatening words and/or other conduct, but without displaying a weapon or subjecting the victim to actual physical attack. Intimidation includes any communication of a threat to another person in any medium or by a third party in order to force that person to engage in conduct against their will.
Non-forcible sex offenses: Forms of sexual conduct with individuals who are incapable of consenting to sexual acts because they are underage, physically helpless, or mentally incompetent. Consent given by such individuals cannot be valid. The College prohibits non-forcible sex offenses as defined by federal and Indiana law, such as incest (non-forcible sexual intercourse, between persons who are related to each other, within the degrees wherein marriage is prohibited by Indiana law) and statutory rape (non-forcible sexual intercourse with a person who is under 16, the statutory age of consent in Indiana).
Quid Pro Quo Harassment: When a person who has power or authority over another makes unwelcome sexual advances, requests sexual favors, and other verbal or physical conduct of a sexual nature, and uses submission to such sexual conduct as a condition for access to or receiving the benefits of any educational program or employment. This includes explicit statements or implicit suggestions that submission to such conduct is a condition of rating or evaluating an individual’s educational and/or employment progress, development, or performance.
Rape: A specific form of sexual assault that includes an act of sexual intercourse accomplished against a person who does not consent to the sexual contact or is incapable of consenting (see Consent and Incapacitation). Intercourse is defined as penetration, no matter how slight, of a bodily orifice (vagina, anus, mouth) with a body part or object.
Sexual assault: A forcible sex offense, which is any sexual act directed against another person without their consent, including instances in which an individual is incapable of giving consent through incapacitation or substantial impairment (see Consent above). “Without consent” is interpreted to mean that the person being assaulted is: (1) compelled to submit to the assault, attempted or actual, by force or the imminent threat of force; or (2) so mentally disabled or deficient that consent to the touching cannot be given. See definitions of specific forms of sexual assault: forcible assaults, such as rape, dating violence, domestic violence, stalking; or non-forcible sexual offenses such as incest or statutory rape. This definition complies with federal definition of sexual assault 20 U.S.C.1092(f)(6)(A)(v).
Sexual Coercion: Unreasonable pressure for sexual activity. Coercive sexual conduct differs from seductive sexual conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
Sexual Exploitation: A non-forcible offense in which an individual takes non-consensual or abusive sexual advantage of another person for their own benefit or for the benefit of anyone other than the person being exploited. Examples 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), which may involve invasion of privacy by 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 disseminating sexual pictures without the photographed person’s consent);
- Prostituting another person;
- Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or 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; and/or
- Creation, possession, or dissemination or child pornography.
Sexual harassment: Unwanted conduct of a sexual nature that is 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. Sexual harassment includes, but is not limited to, unwelcome sexual advances, requests for sexual favors, or other verbal or nonverbal conduct of a sexual nature, including rape, sexual assault and sexual exploitation. Dating violence, domestic violence and stalking are also forms of sexual harassment.
Stalking: A course of conduct, on the basis of sex, 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. For the purposes of this definition “course of conduct” means two or more acts, including, but not limited to, acts in which the respondent 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.23
Title IX is a legislative act dating from 1972 that prohibits gender-based discrimination. Title IX states that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” With regard to sexual assault and harassment, Title IX requires that universities and colleges receiving federal funding uphold survivors’ rights and respond to their needs, so that students have equal access to education.