Policy Terminology and Sex Offense Definitions

Sex Offense Definitions

The following are the definitions of conduct prohibited by the APSU sexual harassment policy:

Sexual Harassment, as an umbrella category includes the offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking and is defined as:

Unwelcome conduct on the basis of sex—including sexual orientation, sex stereotypes, gender identity and gender expression—or that is sexual in nature that satisfies one or more of the following:

Quid Pro Quo:

• an employee of the College/University

• conditioning—implicitly or explicitly—the provision of an aid, benefit, or service of APSU,

• on an individual’s participation in unwelcome sexual conduct.

Sexual Harassment:

• Unwelcome conduct,

• Determined by a reasonable person,

• To be so severe,

• pervasive, and

• objectively offensive

• that it effectively denies a person equal access to APSU education program or activity

Sexual Assault, defined as:

• any sexual act—including the six sub-offenses clearly defined in the Policy—directed against another person

• without the consent of the Complainant,

• including instances in which the Complainant in incapable of giving consent.

Dating Violence, defined as:

• violence,

• on the basis of sex,

• committed by a person,

• who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.

  • The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, they type of relationship, and the frequency of interaction between the person involved in the relationship. For the purposes of this definition,

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

    • Dating violence does not include acts covered under the definition of domestic violence.

Domestic Violence, defined as:

• Violence,

• On the basis of sex,

• Committed by a current or former spouse or intimate partner of the Complainant,

• By a person with whom the Complainant shares a child in common, or

• By a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or

• By a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of your state, or

• By any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of your state.

Stalking, defined as:

• Engaging in 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

  • Suffer substantial emotional distress.

Sexual Exploitation, defined as:

• One person taking non-consensual or abusive sexual advantage of another for their 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

Consent

Knowing, voluntary, and clear permission by word or action to engage in sexual activity.

In all sexual encounters, it is important that you obtain consent. Each of us is responsible for obtaining consent and has a right to choose to give consent or not give consent.

Consent is:

• Informed, knowing, and voluntary (freely given)

• Active (not passive)

• Affirmative, clear words or actions that create mutually understandable permission regarding the conditions of sexual or intimate activity

• Not something that can be given by someone who is known to be, or who should be known to be, mentally or physically incapacitated

• Not something that can be obtained by use of physical force, compelling threats, intimidating behavior, or coercion

If consent is withdrawn, sexual activity must stop reasonably immediately. Any party can place conditions on their willingness to consent, and those conditions must be respected.

People may experience the same interactions differently, therefore each party is responsible for making sure that their potential partner has provided ongoing, clear consent to engage in any sexual activity or contact.

Consent to some forms of sexual activity (e.g., kissing, fondling, etc.) should not be construed as consent for other kinds of sexual activities (e.g., intercourse).

To legally give consent in Tennessee, individuals must be at least 18 years old.

Terminology

Force

Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” which elicits the response, “Okay, don’t hit me, I’ll do what you want.”).

Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

Coercion

Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive 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.

Incapacitation

This is defined as a state in which individuals are unable to make rational, reasonable decisions because they lack the capacity to understand the “who, what, when, where, why, or how” of a situation or interaction. Individuals cannot sexually consent if they are unable to understand what is happening, or if they are disoriented, helpless, asleep, or unconscious for any reason. That applies even if it is because they voluntarily consumed alcohol or drugs. Unless consent is “knowing,” it is not valid. Individuals engaging in sexual activity who know or should have known that the other party is incapacitated are engaging in sexual misconduct.

The fact that a Respondent was intoxicated and therefore did not realize that the Complainant was incapacitated does not excuse sexual assault.