2019-2020
Section 6. Definitions and Examples

  1. Definitions: There are many terms used in issues of sex discrimination. The following will provide some common definitions and examples.
    1. Awareness programs: Community‐wide or audience‐specific programming, initiatives, and strategies that increase audience knowledge and share information and resources to prevent violence, promote safety, and reduce perpetration.
    2. Bystander Intervention: Safe and positive options that may be carried out by an individual or individuals to prevent harm or intervene when there is a risk of dating violence, domestic violence, sexual assault, or stalking. Bystander intervention includes recognizing situations of potential harm, understanding institutional structures and cultural conditions that facilitate violence, overcoming barriers to intervening, identifying safe and effective intervention options, and taking action to intervene.
    3. Coercion: Coercion is unreasonable pressure for sexual activity.
    4. Reporting party: The alleged victim or individual reporting the issue of sex discrimination.
    5. Consent: Consent is an active giving of permission to engage in activity. Consent is clear, knowing and voluntary. Consent may be given through words or actions. Silence should not be interpreted as consent. Absence of protest is not consent. Previous history does not imply consent for future activity. Likewise, consent to one activity does not imply consent to another. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another. Consent can be withdrawn at any time. Consent cannot be given under pressure, force, threats, intimidation, coercion or while incapacitated due to the influence of alcohol and/or drugs. In order to give consent one must be of legal age and not incapacitated mentally or physically. Lack of consent occurs when:
      1. A person is forced to submit.
      2. The person does not expressly or implicitly agree with the respondent’s conduct under circumstances other than forcible compulsion or incapacity to consent.
      3. A person is deemed to be incapable of consenting if he/she is less than 16 years old, is mentally challenged, suffers from mental illness, or is physically helpless or is totally incapacitated.
      4. A person is rendered temporarily incapable of appraising or controlling his/her conduct as a result of a controlled or intoxicating substance administered to him/her with or without consent or knowledge.
      5. A person is unable to consent when he/she is unconscious, or for any other reason is physically unable to communicate unwillingness to act.
    6. Dating Violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.
      1. The existence of such a relationship shall be 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.
      2. For the purposes of this definition‐
        1. Dating violence includes, but is not limited to, sexual or physical
        2. Abuse or the threat of such abuse.
        3. Dating violence does not include acts covered under the definition of domestic violence.
      3. For purposes of complying with the requirements of this section and § 668.41, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.
      4. The Commonwealth of Kentucky currently does not have any laws regarding Dating Violence.
    7. Domestic Violence:
      1. Felony or misdemeanor crimes of violence committed –
        1. By a current or former spouse or intimate partner of the victim;
        2. By a person whom the victim shares a child in common;
        3. By a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner;
        4. 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
        5. By any other person against an adult or youth victim who is protected from the person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
      2. For purposes of complying with the requirements of this section and § 668.41, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.
      3. The Commonwealth of Kentucky has the below listed definitions for use in domestic violence situations:
        As used in KRS 403.715 to 403.785:
        1. “Domestic violence and abuse” means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple;
        2. “Family member” means a spouse, including a former spouse, a grandparent, a parent, a child, a stepchild, or any other person living in the same household as a child if the child is the alleged victim;
        3. “Global positioning monitoring system” means a system that electronically determines a person’s location through global positioning satellite technology, radio frequency technology, or a combination thereof and reports the location of an individual through the use of a transmitter or similar device worn by that individual and that transmits latitude and longitude data to a monitoring entity. The term does not include any system that contains or operates global positioning system technology, or any other similar technology, that is implanted or otherwise invades or violated the individual’s body; and
        4. “Member of an unmarried couple” means each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together.
    8. Force: The use of physical violence and/or imposing on someone physically to gain sexual access. Force includes threats, intimidation (implied threats) and coercion that overcome resistance or produce consent. The presence of force is not demonstrated by the absence of resistance. Sexual activity that is forced is by definition non‐consensual, but nonconsensual sexual activity is not by definition forced.
    9. Incapacitation: Incapacitation is a state where an individual cannot make a rational or reasonable decision because he/she lacks the ability or information to understand the sexual interaction to the fullest extent. Incapacitation can result from mental or physical disabilities, drug or alcohol use, physical restraints, “date‐rape” drugs, or anything that affects the individual’s ability to make a clear and informed decision. Incapacitation occurs anytime sexual activity takes place where the alleged victim does not understand the “who, what, when, where, why and how.”
    10. Intimidation: Intimidation is the act of using coercion, instilling fear or making threats to induce submission, compliance or acquiescence from another.
    11. Non‐Consensual Sexual Contact: Non‐consensual sexual contact is any intentional sexual touching, however slight with any object, by a man or a woman upon a man or a woman that is without consent and/or by force
    12. Ongoing prevention and awareness campaigns: Programming, initiatives, and strategies that are sustained over time and focus on increasing understanding of topics relevant to and skills for addressing dating violence, domestic violence, sexual assault, and stalking, using a range of strategies with audiences throughout the institution.
    13. Primary Prevention Programs: Programming, initiatives, and strategies informed by research or assessed for value, effectiveness, or outcome that are intended to stop dating violence, domestic violence, sexual assault, and stalking before they occur through the promotion of positive and healthy behaviors that foster healthy, mutually respectful relationships and sexuality, encourage safe bystander intervention, and seek to change behavior and social norms in healthy and safe directions.
    14. Proceeding: All activities related to a non‐criminal resolution of an institutional disciplinary complaint, including, but not limited to, fact‐finding investigations, formal or informal meetings, and hearings. Proceeding does not include communications and meetings between officials and victims concerning accommodations or protective measures to be provided to a victim.
    15. Rape: 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.
    16. Respondent: The alleged perpetrator of any form of gender discrimination
    17. Result: Any initial, interim, and final decision by any official or entity authorized to resolve disciplinary matters within the institution. The result must include any sanctions imposed by the institution. Notwithstanding section 444 of the General Education Provisions Act (20 U.S.C. 1232g), commonly referred to as the Family Educational Rights and Privacy Act (FERPA), the result must also include the rationale for the result and the sanctions.
    18. Retaliation: Retaliation occurs when an individual seeks a form of revenge against another for a perceived wrong
    19. Risk Reduction: Options designed to decrease perpetration and bystander inaction, and to increase empowerment for victims in order to promote safety and to help individuals and communities address conditions that facilitate violence.
    20. Sex Discrimination/Sexual Misconduct: Sex Discrimination and Sexual Misconduct occurs anytime a person’s sex becomes a factor or basis in treating them unfairly. Sex Discrimination may also occur when an individual is treated unfairly due to his/her connection with a group or organization that is typically associated with a certain sex. Sex discrimination includes behaviors such as sexual assault, sexual harassment, any non‐consensual behavior of a sexual nature, domestic or dating violence, and stalking. Such behaviors could be committed by force, intimidation or use of a victim’s incapacity (physical, mental or through the use of drugs or  alcohol.
    21. Sexual Assault: Sexual assault is defined as sexual intercourse or sexual contact with another person by forcible compulsion and/or without consent. Forcible compulsion may be committed by means such as physical power, coercion or incapacitation. Acts of sexual assault include rape, oral or anal intercourse, and other sexual acts not involving intercourse to which participants are not both consenting. Absence of protest is not consent.
    22. Sexual Contact: Sexual contact includes intentional contact with the breasts, buttocks, groin, or genitals, or touching another with any of these body parts, or making another person touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.
    23. Sexual Exploitation: Sexual exploitation occurs when a student takes non‐ consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses. Examples of sexual exploitation include:
      1. Invasion of sexual privacy
      2. Non‐consensual video or audio‐taping of sexual activity
      3. Going beyond the boundaries of consent (such as letting friends view you having consensual sex without the other party knowing)
      4. Sexually‐based stalking and/or bullying
      5. Engaging in voyeurism
      6. Knowingly transmitting an STI or HIV to another student
    24. Sexual Harassment: Sexual Harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
      1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or educational experience.
      2. Submission to or rejection of such conduct by an individual is used as the basis for employment or educational decisions affecting such individual. This can also include retaliating against the victim by the respondent or by friends of the respondent or others who are sympathetic to the respondent. In addition, retaliation directed toward a third party due to their participation in a grievance process, or for supporting a grievance may be retaliatory harassment.
      3. Such conduct is sufficiently severe, pervasive and persistent so as to alter the conditions of, or have the effect of substantially interfering with, an individual’s educational opportunity by creating an intimidating, hostile, or offensive environment.
      4. Types of sexual harassment include:
        1. Quid Pro Quo: Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or educational experience.
        2. Retaliatory: Submission to or rejection of such conduct by an individual is used as the basis for employment or educational decisions affecting such individual. This can also include retaliating against the victim by the respondent or by friends of the respondent or others who are sympathetic to the respondent. In addition, retaliation directed toward a third party due to their participation in a grievance process or for supporting a reporting party may be retaliatory harassment.
        3. Hostile Environment: Such conduct is sufficiently severe, pervasive and persistent so as to alter the conditions of, or have the effect of substantially interfering with, an individual’s educational opportunity by creating an intimidating, hostile, or offensive environment.
    25. Stalking:
      1. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to –
        1. Fear for the person’s safety or the safety of others; or
        2. Suffer substantial emotional distress.
      2. For the purposes of this definition –
        1. Course of conduct means two or more acts, including, but not limited to, acts 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.
        2. Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or professional treatment or counseling.
        3. Reasonable persons means a reasonable person under similar circumstances and with similar identities to the victim.
      3. For purposes of complying with the requirements of this section and § 668.41, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.
  2. Examples of Sexual Misconduct
    Examples of conduct prohibited by this policy include, but are not limited to, the following, when such conduct meets the aforementioned criteria above:
    1. Direct or implied threats that submission to sexual advances or rejection of sexual advances will be a condition of employment, work status or assignments, promotion, grades, letters of recommendation, salary, academic standing, or receipt of financial aid;
    2. Persistent unwelcome flirtation, advances and/or propositions of a sexual nature, intimidating conduct which exerts pressure for sexual favors, including inappropriate behavior or offensive advances (e.g., sexual propositions when the other person has made it clear that they are not interested) without threat of punishment for noncompliance and without promise of reward for compliance;
    3. Repeated insults, humor, jokes, and/or stories that belittle or demean an individual’s or group’s gender, race, color, religion, or national origin, and physical conduct or verbal innuendo which, because of one’s gender, race, color, religion, or national origin creates an intimidating, hostile, or offensive environment.
    4. Repeated unwelcome comments of a sexual nature about an individual’s body or clothing.
    5. A pattern of conduct in class, in the work‐place, or in the general campus environment that a reasonable person would identify as creating a sexist atmosphere; that is, an atmosphere that demeans or oppresses people simply by virtue of their gender. Examples of such patterns of conduct might include persistent denigration of women or men through sexist humor or remarks, assignment according to gender of tasks that are not gender‐specific, or other activities that, by alienating or discouraging members of one sex, tend to impair their academic or professional performance or their ability to function within the community (e.g., hanging of signs which depict women/men in a derogatory manner, yelling sexist remarks from windows as women/men walk by);
    6. Behavior that would cause discomfort or humiliate a reasonable person through one or more of the following:
      1. Inappropriate touching, patting, pinching, unwanted hugging, or brushing against a person’s body,
      2. Remarks of a sexual nature about a person’s clothing or body,
      3. Remarks about sexual activity or speculation about previous sexual experience or sexual orientation, or other sexually suggestive remarks or insults.

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