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Title IX and Sexual Misconduct

Definitions

Advisor of Choice

This advisor can be any person who the student or employee chooses but may not have personal involvement regarding any facts or circumstances of the alleged misconduct.  This advisor's only function shall be to assist and/or consult with the student or employee. This advisor may not act as a spokesperson. This advisor may be an attorney, but participation shall be limited as stated above.

A student or employee has the right to have an "advisor of choice" or a "confidential advisor" present during any meeting conducted under PM-73.

Coercion

The use of express or implied threats, intimidation, or physical force which places an individual in fear of immediate harm or physical injury or causes a person to engage in unwelcome sexual activity. Coercion also includes administering a drug, intoxicant, or similar substance with the intent to impair that person's ability to consent prior to engaging in sexual activity.

Complainant

Any student or employee who alleges a violation under PM-73.

Confidential Advisor

A person trained in accordance with law and designated by the campus who the student or employee can choose to have support and advise them in accordance with law during the complaint process. This confidential advisor may be present during any meeting conducted under PM-73 to assist and/or consult with the student or employee. This confidential advisor may not act as a spokesperson.

A student or employee has the right to have an "advisor of choice" or a "confidential advisor" present during any meeting conducted under PM-73.

Consent

Consent to engage in sexual activity must exist from the beginning to the end of each instance of sexual activity. Consent is demonstrated through mutually understandable words or actions that clearly indicate a willingness to engage in a specific sexual activity. Silence alone, without actions evidencing permission, does not demonstrate consent.  Consent must be knowing and voluntary.  To give consent, a person must be of legal age. Assent does not constitute consent if obtained through coercion or from a person who the alleged offender knows or should reasonably know is incapacitated.  The responsibility of obtaining consent, through mutually understandable words or actions, rests with the person initiating sexual activity. Use of alcohol or drugs does not diminish the responsibility to obtain consent. Consent to engage in sexual activity may be withdrawn by any person at any time. Once withdrawal of consent has been expressed, the sexual activity must cease. Consent is automatically withdrawn by a person who is no longer capable of giving consent. A current or previous consensual dating or sexual relationship between the parties does not itself imply consent or preclude a finding of responsibility.

Dating Violence (Defined by Clery Act)

Violence including, but not limited to, sexual or physical abuse or the threat of such abuse, 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 and type of relationship and the frequency of interaction.

Dating Violence (Defined by Louisiana Law)

Includes, but is not limited to, physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one dating partner against the other (La. RS § 46.2151(C)). For purposes of this Section, "dating partner" means any person who is or has been in a social relationship of a romantic or intimate nature with the victim and where the existence of such a relationship shall be determined based on a consideration of the following factors: (1) The length of the relationship, (2) The type of relationship, and (3) The frequency of interaction between the persons involved in the relationship.

Domestic  Abuse (Defined  by Louisiana Law)

Abuse and violence including, but not limited to, physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another.  La. RS 46:2132(3).

Domestic Violence (Defined by Clery Act)

Violence including, but not limited to, sexual or physical abuse or the threat of such abuse, committed by a current or former spouse or intimate partner or any other person from whom the alleged victim is protected under federal or Louisiana law.   Felony or misdemeanor crime 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 violence 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.

Family Violence (Defined by Louisiana Law)

Any assault, battery, or other physical abuse which occurs between family or household members, who reside together or who formerly resided together. La. RS § 46.2121.1(2).

Hostile Environment  

Includes conduct of a sexual nature that is sufficiently severe, persistent, or pervasive to limit a student's or employee's ability to participate in or benefit from the education program or from one's employment, or to create a hostile or abusive educational or work environment.

Incapacitation

An individual is considered to be incapacitated if, by reason of mental or physical condition, the individual is manifestly unable to make a knowing and deliberate choice to engage in sexual activity.  Being drunk or intoxicated can lead to incapacitation; however, someone who is drunk or intoxicated is not necessarily incapacitated, as incapacitation is a state beyond drunkenness or intoxication. Individuals who are asleep, unresponsive or unconscious are incapacitated. Other indicators that an individual may be incapacitated include, but are not limited to, inability to communicate coherently, inability to dress/undress without assistance, inability   to walk without assistance, slurred speech, loss of coordination, vomiting, or inability to perform other physical or cognitive tasks without assistance.

Non-Consensual       Sexual Contact

Any intentional sexual touching, or attempted sexual touching, without consent.

Non-Consensual       Sexual Intercourse

Having, or attempting to have, sexual intercourse, cunnilingus, or fellatio without consent. Sexual intercourse is defined as anal or vaginal penetration by a penis, tongue, finger, or inanimate object.

Respondent

Any student or employee against whom a complaint under PM-73 has been made.

Responsible Person  

Any employee who has the authority to take action to redress sexual violence or who has been given the duty of reporting incidents of sexual violence or any other misconduct prohibited by PM-73 by students or employees to the Title IX coordinator or other appropriate school designee. Responsible persons do not include victims' advocates, mental health counselors, or clergy.

Retaliation

Title IX prohibits retaliation.  Any acts or attempted acts for the purpose of interfering with any report, investigation, or proceeding under PM-73, or as retribution or revenge against anyone who has reported sexual misconduct or who has participated (or is expected to participate) in any manner in an investigation, or proceeding under PM-73. Prohibited retaliatory acts include, but are not limited to, intimidation, threats, coercion, or discrimination.

Sexual Assault

Any type of sexual contact or behavior that occurs, or is attempted, without the explicit consent of the recipient. Sexual assault includes, but is not limited to, sexual acts, or attempted sexual acts, such as rape, fondling, incest or statutory rape, forced sexual intercourse, sodomy, child molestation, any sexual touching, and includes sexual acts against people who are unable to consent either due to age or incapacitation.

Sexual assault also includes sexual battery as defined in La. R.S.14:43.1.

Sexual Assault (Defined by Clery Act)

Any offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI's UCR program.

Sexual Discrimination

Behaviors and actions that deny or limit a person's ability to benefit from, and/or fully participate in the educational programs, activities, and services because of a person's gender.

Sexual Exploitation

Any act attempted or committed by a person for sexual gratification, financial gain, or other advancement through the abuse or exploitation of another person's sexuality. Examples of sexual exploitation include, but are not limited to, non-consensual observation of individuals who are undressed or engaging in sexual acts, non-consensual audio- or videotaping of sexual activity, prostituting another person, allowing others to observe a personal consensual sexual act without the knowledge or consent of all involved parties, and knowingly exposing an individual to a sexually transmitted infection without that individual's knowledge.

Sexual Harassment

The unwelcome conduct of a sexual nature when i) submission to such conduct is made either explicitly or implicitly a term or condition of a person's employment or education; ii) submission to or rejection  of such conduct by a person is used as the basis for a decision affecting that  person's employment or education; or iii) such conduct has the purpose or effect of unreasonably interfering with a person's employment  or  education, or  creating an intimidating,  hostile, or  offensive  employment  or educational environment, and has no legitimate relationship to the subject matter of a course or academic research. Sexual harassment also includes non-sexual harassment or discrimination of a person because of the person's sex and/or gender, including harassment based on the person's nonconformity with gender stereotypes. For purposes of PM-73, the various forms of prohibited sexual harassment are referred to as "sexual misconduct."

Sexual Misconduct

A sexual act or  contact of  a  sexual nature  that  occurs, regardless of  personal relationship, without the consent of the other person(s), or that occurs when the person(s) is unable to give consent or whose consent is coerced or obtained in a fraudulent manner. For the purpose of PM-73, sexual misconduct includes, but is not limited to, sexual assault, sexual abuse, violence of a sexual nature, sexual harassment, non-consensual sexual intercourse, sexual exploitation, video voyeurism, contact of a sexual nature with an object, or the obtaining, posting or disclosure of intimate  descriptions, photos, or videos without  the express consent or the persons depicted therein, as well as dating violence, domestic violence and stalking, as well as crimes of a sexual nature as defined in Title 14 or the Louisiana Revised Statutes or at La. R.S. 44:51.

Sexually-Oriented Criminal Offense 

Any sexual assault offense as defined in La. R.S. 44:51, and any sexual abuse offense as defined in La. R. S. 14:403.

Stalking (Defined by Clery Act)

(1) The intentional and repeated following or harassing that would cause a reasonable person to feel alarmed or that would cause a reasonable person to suffer emotional distress; or (2)  the intentional and repeated uninvited presence at another person's: home, work place, school, or any other place which would cause a reasonable person to be alarmed or would cause a reasonable person to suffer emotional distress as a result of verbal or behaviorally implied threats of death, bodily injury, sexual assault, kidnapping or any other statutory criminal act to the victim or any member of the victim's family or any person with whom the victim is acquainted. 34 CFR 668.46(a)(ii).

Stalking (Defined by Louisiana Law) 

The intentional and repeated following or harassing of another person that would cause a reasonable person to feel alarmed or to suffer emotional distress. Stalking shall include, but not be limited to, the intentional and repeated uninvited presence of the perpetrator at another person's home, workplace, school, or any place which would cause a reasonable person to be alarmed, or to suffer emotional distress as a result of verbal or behaviorally implied threats of death, bodily injury, sexual assault, kidnaping, or any other statutory criminal act to himself or any member of his family or any person with whom he is acquainted. La. RS § 14:40.2(A)

"Harassing" means the repeated pattern of verbal communications or nonverbal behavior without invitation which includes, but is not limited to, making telephone calls, transmitting electronic mail, sending messages via a third party, or sending letters or pictures.  "Pattern of conduct" means a series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional distress upon the person. Constitutionally protected activity is not included within the meaning of pattern of conduct. La. RS § 14:40.2(C).