Definitions

 

Advisor: A person chosen by a party, or appointed by the University in Title IX Matters, to accompany the party to meetings related to the resolution process, to advise the party on that process.  In Title IX Matters, the advisor may conduct cross-examination for the party at the hearing, if any.

Business Day: Monday-Friday, excluding official University holidays.

Complainant: An individual who is alleged to be the victim of the conduct that could constitute harassment, discrimination, or sexual misconduct, or retaliation for engaging protected activity.

Discrimination (Unlawful or Prohibited): A difference in treatment based on a person’s status in a protected class. Harassment based on one’s membership in a protected class is a form of unlawful discrimination. Prohibited discrimination includes unlawful discrimination and discrimination based on other protected classes defined by University regulation or policy. A violation of this policy may occur regardless of any finding of “unlawful” conduct, as the standards for finding a violation of this policy are independent. Discrimination includes disparate treatment and disparate impact.

Disparate Impact: When policies, practices, rules or other systems that appear to be neutral result in a disproportionate impact on a protected group.  Disparate impact may be unintentional.

Disparate Treatment: When a person is treated differently than others who were similarly situated based on a protected characteristic and is denied a benefit under FAU’s educational program or activities or a benefit of employment.  Disparate treatment on the basis of a class not protected by federal, state or local law shall not constitute discrimination or harassment if such disparate treatment is required by federal or state law.

Educational Program or Activity: Location, events, or circumstances where the University exercised substantial control over both the Respondent and the context in which the allegations occurred, including but not limited to any building owned or controlled by a student organization that is officially recognized by the University.

Formal Complaint: A complaint that has been signed by a Complainant or by the Title IX Coordinator alleging harassment or discrimination based on a protected class or retaliation based on a protected activity against a Respondent and requesting that OEI investigate the allegation. A Formal Complaint is required for investigations in Title IX Matters.

Hostile Environment Harassment: Unwelcome verbal and/or physical conduct based on a person’s protected class that: is severe or pervasive and has the purpose or effect of: (a) creating an objectively intimidating, hostile or offensive work or educational environment; (b) unreasonably interfering with an individual’s work or learning performance; or (c) otherwise unreasonably adversely affects an individual’s employment or educational opportunities. Examples could include making comments (“humorous” or “non-humorous”) based on a protected characteristic, objectionable epithets/slurs, threatened or actual physical harm or abuse, the display of hostile symbols/objects, and other intimidating or insulting conduct directed against the individual because of their membership in a protected class. 

Investigator: The person or persons charged by OEI with gathering facts about an alleged violation of this policy, assessing relevance and credibility, synthesizing the evidence, and compiling information into an investigative report. 

Parties: Complainant and Respondent.  Witnesses are not parties.

Respondent: An individual reported to be the perpetrator of conduct that could constitute harassment, discrimination, or sexual misconduct, or retaliation for engaging in protected activity.

Retaliation: Intimidating, threatening, coercive, or discriminatory behavior by the University or any person over whom the University holds jurisdiction against any individual for the purpose of interfering with any right or privilege secured by this policy, because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing. Retaliation may be a claim under Title IX or under other harassment or discrimination.

Quid Pro Quo Harassment: Submission or rejection of conduct is used, explicitly or implicitly, as the basis for decisions affecting an individual’s education, employment, or participation in a University program or activity. 

Title IX Matters: Complaints in which the alleged violation includes sexual harassment, sexual assault, domestic violence, dating violence, or stalking, and where the University’s response and procedures are governed by Title IX of the Education Amendments Act of 1972 and its implementing regulations, FAU Regulation 7.008, and this University Policy.

 

Title IX Specific Definitions

Consent: An agreement between two or more individuals for activity that is affirmative, informed, freely given and mutually understood. Consent shall be determined based on consideration of the following factors: (i) it is the responsibility of each person involved in any sexual activity to ensure that they have the affirmative consent of the other or others to engage in the sexual activity; (ii) the existence of a dating or sexual relationship between the persons involved, or the fact of past sexual relations, should never by itself be assumed to be an indicator of consent for any current or future sexual encounter; (iii) consent cannot be obtained by force, threat, coercion, manipulation, reasonable fear of injury, intimidation, use of position of influence, or through the use of one’s mental or physical helplessness or incapacity; (iv) consent must be ongoing throughout a sexual activity and can be revoked at any time; (v) within each sexual encounter, there may be separate individual sexual acts involved.  Consent to one act by itself does not constitute consent to another act; (vi) consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another; (vii) lack of protest or resistance does not mean consent; and (viii) silence does not mean consent has been granted.

Dating Violence: Violence committed by a person who is 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, the type of relationship, and 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. Dating violence does not include acts covered under the definition of Domestic Violence.

Domestic Violence:  Violence 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; by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner; by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of Florida; 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 Florida.

Sexual Assault: Includes Sex Offenses, Forcible or Nonforcible.

Sex Offenses, Forcible: Any sexual act directed against another person, without the consent of the Complainant including instances where the Complainant is incapable of giving consent. Includes Forcible Rape, Forcible Sodomy, Sexual Assault with an Object, and Forcible Fondling.

• Forcible Fondling: The 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 where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
• Forcible 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 Complainant.
• Forcible Sodomy:  Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against the person’s will (non-consensually) in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
• Sexual Assault with an Object : To use an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will or not forcibly or against the person’s will (non-consensually) in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
  

Sex Offenses, Nonforcible : Nonforcible sexual intercourse, including Incest and Statutory Rape.

• Incest: Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by Florida law.
• Statutory Rape: Nonforcible sexual intercourse with a person who is under the statutory age of consent.
• Sexual Harassment: Conduct on the basis of sex that satisfies one or more of the following: (i) an employee of FAU conditioning the provision of an aid, benefit, or service of FAU on an individual’s participation in unwelcome sexual conduct; or (ii) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to FAU’s educational program or activity.
• Stalking: Engaging in a course of conduct 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. For the purposes of this definition, 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; reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant; and substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily require medical or other professional treatment or counseling.