Definitions

Advisor: Refers to an attorney or a non-attorney advisor who can provide assistance to the Complainant or the Respondent during Resolution Hearings, Informal Resolution conferences, and any other stage of the processes covered by this Policy, although they are not permitted to directly participate except for conducting cross examination at a Formal Grievance Hearing. The parties retain the right to select their own Advisor if they so choose, but if one is not chosen for conducting cross examination at a Formal Grievance Hearing, SHU will appoint an advisor only for that limited purpose.

Affirmative Consent: Means an affirmative, conscious decision by each participant to engage in mutually agreed-upon sexual activity. The presence or absence of consent is determined by evaluating the relevant facts and circumstances. All five of the following elements are essential in order to have affirmative consent. If one or more of the following is absent, there is no affirmative consent.

A. Consists of Mutually Understandable Communication: Communication regarding consent consists of mutually understandable words and/or actions that indicate an unambiguous willingness to engage in sexual activity. In the absence of clear communication or outward demonstration, there is no consent. Consent may not be inferred from silence, passivity, lack of resistance or lack of active response. An individual who does not physically resist or verbally refuse sexual activity is not necessarily giving consent. Relying solely upon non-verbal communication can lead to an erroneous conclusion as to whether consent was sought or given. Verbal communication is the best way to ensure all individuals are willing and consenting to the sexual activity.

B. Informed and Reciprocal: All parties must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting and a willingness to do the same thing, at the same time, in the same way.

C. Freely and Actively Given: Consent cannot be obtained through the use of force, coercion, threats, or intimidation, or by taking advantage of the incapacitation of another individual.

D. Not Unlimited: Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to sexual activity with one person constitute consent to activity with any other person. Each participant in a sexual encounter must consent to each form of sexual contact with each participant. Even in the context of a current or previous intimate relationship, each party must consent to each instance of sexual contact each time. The consent must be based on mutually understandable communication that clearly indicates a willingness to engage in sexual activity. The mere fact that there has been prior intimacy or sexual activity does not, by itself, imply consent to future acts.

E. Not Indefinite: Consent may be withdrawn by any party at any time. Recognizing the dynamic nature of sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate clearly throughout all stages of sexual activity. Withdrawal of consent can be an expressed “no” or can be based on an outward demonstration that conveys that an individual is confused, uncertain or is no longer a mutual participant. Once consent is withdrawn, the sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before continuing further sexual activity.

Coercion: Means the use of pressure to compel another individual to initiate or continue activity against their will, including psychological or emotional pressure, physical or emotional threats, intimidation, manipulation, or blackmail. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include, but are not limited to threatening to “out” someone based on sexual orientation, gender identity, or gender expression; threatening to harm oneself if the other party does not engage in the sexual activity; and threatening to expose someone’s prior sexual activity to another person and/or through digital media.

Complainant: A Complainant is an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

Confidential Resources: If a student, staff, or faculty member wishes the details of an incident to be kept confidential, the student, staff, or faculty member can speak with:

A. Counselors, including at the SHU Counseling Center;

B. Health providers, such as SHU Health Services and local hospitals;

C. Off-campus rape crisis resources, such as The Center for Family Justice;

D. Vowed Spiritual Leaders or religious (priests, deacons, rabbis, imams and religious sisters and brothers) staff working within Campus Ministry and who are operating in that role.

These individuals will honor confidentiality unless there is an imminent danger to the person involved or to others.

Formal Complaint: The Title IX Regulations define a Formal Complaint as “a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment [as defined by the Title IX Regulations] against a respondent and requesting that [SHU] investigate the allegation of sexual harassment.” At the time of filing a Formal Complaint, “a complainant must be participating in or attempting to participate in the education program or activity.” See Title IX Regulations at § 106.30.

Formal Grievance Process: The process described in the Formal Grievance Policy for addressing and resolving a Formal Complaint, as required by the Title IX Regulations, effective August 14, 2020.

Hearing Panel: Refers to the three-member decision-making body, composed of trained SHU faculty and/or staff that considers cases brought under the Formal Grievance Policy. One of the three Board members will be designated as the chairperson. The Hearing Board hears the facts and circumstances of an alleged policy violation as presented by the Investigator, a Complainant, a Respondent and/or witnesses at a Resolution Hearing. This body is responsible for determining if a policy violation has occurred and whether/what sanctions are appropriate.

Incapacitation: Means the lack of ability to make rational, reasonable judgments as a result of alcohol consumption, other drug use, sleep, the taking of any so-called “date-rape” drug, unconsciousness, or blackout. An incapacitated person cannot make rational, reasonable decisions because that person lacks the ability to fully understand the who, what, where, or how of their sexual interaction. Incapacitation is a state beyond drunkenness or intoxication, in which alcohol, drugs, or other factors render one unable to make fully informed judgments or have an awareness of consequences. While incapacitation may be caused by drugs or alcohol, it also includes the state of being asleep, during which time a person is unable to provide affirmative consent.

Informal Resolution: A process intended to allow the Complainant and the Respondent to provide information about the alleged incident(s) of harassment, and to reach a mutually agreeable resolution. An Informal Resolution process may take many forms upon the agreement of the parties and the Title IX Coordinator. This process aims to assure fairness, to facilitate communication, and to maintain an equitable balance of power between the parties.

Investigator: Refers to an official(s) designated by the Title IX Coordinator to conduct an investigation of sexual harassment. The Investigator will be a trained individual who objectively collects and examines the facts and circumstances of potential violations of this Policy and documents them for review. The Investigator will be neutral and will not have a conflict of interest or bias based on gender or against the Complainant or Respondent.

Mandatory Reporter: SHU defines these as employees who: 

  • have the authority to redress harassment;
  • have the duty to report sexual harassment by students or employees to appropriate school officials; or
  • are a student that could reasonably believe has this authority or responsibility. 

At Sacred Heart University, all employees (faculty, staff and administrators), including student resident success assistants, coaches, and graduate assistants, are “mandatory reporters.” As such, they are required by Title IX law and University policy to report any information they have concerning possible sexual harassment or sexual misconduct (which are defined in this policy) to the Title IX Coordinator.

Mandatory Reporting Obligation: Mandatory Reporters who receive information about any suspected or potential Sexual Harassment, whether from the student, faculty, or staff involved or from a third party, must report the information to the Title IX Coordinator. Employees may provide support and assistance to a Complainant, witness, or Respondent; but, mandatory reporters cannot promise confidentiality or withhold information from the Title IX Coordinator about allegations of Sexual Harassment.

Preponderance of Evidence: Refers to the standard by which it is determined at a hearing whether or not a violation of the Formal Grievance Policy has occurred, and means that sexual harassment is “more likely than not” to have occurred. This standard applies for all claims of sexual harassment.

Reporter: Refers to an individual who notifies the Title IX Coordinator or a Mandatory Reporter of an alleged violation of the Formal Grievance Policy. A Reporter can be any individual who reports to SHU that they are a victim or survivor of sexual harassment; that they have been affected by sexual harassment; or that they have knowledge of sexual harassment happening to or affecting someone else.

Resolution Hearing: Refers to SHU’s disciplinary proceeding through which the Sexual Harassment Hearing Board evaluates evidence related to a Formal Complaint to determine whether a Respondent is in violation of the Formal Grievance Policy.

Respondent: A Respondent is an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

Sexual Harassment: “Sexual harassment” is defined in the new Title IX Regulations (34 C.F.R. § 106.30), effective August 14, 2020, to be conduct on the basis of sex that satisfies one or more of the following:

1. A SHU employee conditioning the provision of an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct (“quid pro quo”);

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 SHU’s education program or activity; or

3. Sexual assault, dating violence, domestic violence, or stalking.

A. Sexual Assault: An offence that meets the definition of rape, fondling, incest or statutory rape as used in the FBI's Crime Reporting system. A sex offence is any sexual act directed against another person without the consent of the victim, including instances where the victim is incapable of giving consent.

    • 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, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental 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.

B. 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. The existence of such a relationship shall be determined based upon the reporting party's statement with consideration of the following factors:

(i) the length of the relationship,

(ii) the type of relationship, 

(iii) the frequency of interaction between the persons involved in the relationship.

Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.

C. Domestic Violence: A felony or misdemeanor crime of violence committed

o by a current or former spouse or intimate partner of the victim;

    • by a person with whom the victim shared a child in common; 

o by a person who is cohabitating with, or has cohabitated with the victim as a spouse or intimate partner;

o 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

o 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.

D. Stalking: Engaging in a course of conduct directed at 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.

    • 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.
    • Substantial Emotional Distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
    • Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.
    • Types of stalking could include, but are not limited to:
      • Following the targeted person;
      • Approaching or confronting that person in a public place or on private property;
      • Persistent and unwelcome attempts to contact the person by phone, electronic communication (including via the internet and cellphones), or regular mail, either anonymously or non-anonymously;
      • Vandalizing the person’s property or leaving unwanted items for the person;
      • Persistently appearing at the person’s classroom, residence, or workplace without that person's permission or other lawful purpose;
      • Cyber-stalking, in which a person follows, observes, monitors, or surveils another person through the use of electronic media such as the Internet, digital media networks, blogs, cell phones, texts or other similar devices; and
      • Using visual or audio recording devices or hidden or remote cameras used without the subject’s consent.

It is important to note that the Title IX Regulations’ use of federal definitions of sexual assault, dating violence, domestic violence, and stalking may differ from state law. Accordingly, any criminal proceeding brought by state or local law enforcement authorities may use different definitions.