Policy Definitions

Gettysburg College Definitions for Sexual Misconduct and Relationship Violence Policy Violations not under Title IX

Sexual Harassment

Sexual Harassment can be a single, serious incident or a series of related, repeated incidents. Sexual harassment is defined as unwelcome conduct of a sexual nature (verbal or physical conduct) when the conduct:

• is reasonably perceived as creating an intimidating or hostile work, learning or living environment,
• unreasonably interferes with, denies or limits someone’s ability to participate in or benefit from any educational program and/or activities, and is based on power differentials, the creation of a hostile environment, or retaliation.

In addition to the above, specific types of sexual harassment constituting violations of this Policy include:

Sexual Assault- This includes the following:

Sexual Penetration Without Consent: Any penetration of the mouth, sex organs, or anus of another person, however slight by an object or any part of the body, when consent is not present. This includes performing oral sex on another person when consent is not present.

Sexual Contact Without Consent: Knowingly touching or fondling a person’s genitals, breasts, buttocks, or anus, or knowingly touching a person with one’s own gentitals or breasts, when consent is not present. This includes contact done directly or indirectly through clothing, bodily fluids or with an object. It also includes causing or inducing a person, when consent is not present, to similarly touch or fondle oneself or someone else.

Statutory Sexual Assault: The age of consent for sexual activity in Pennsylvania is 16. Minors under the age of 13 cannot consent to sexual activity. Minor aged 13-15 years old cannot consent to sexual activity with anyone who is 4 or more years older than they are at the time of the activity. Minors aged 16 years of age or older can legally consent to sexual activity with anyone they choose, as long as the other person does not have authority over them as defined in Pennsylvania’s institutional sexual assault statute.

Non-Consensual Sexual Contact: Any intentional sexual touching or attempted sexual touching, without Consent.

Sexual Exploitation: Taking sexual advantage of another person or violating the sexual privacy of another when consent is not present. This includes, but is not limited to, the following actions (including when they are done via electronic means, methods or devices):

1. Sexual voyeurism or permitting others to witness or observe the sexual or intimate activity of another person without that person’s consent;
2. Indecent exposure or inducing others to expose themselves when consent is not present;
3. Recording or distributing information, images or recordings of any person engaged in sexual or intimate activity in a private space without that person’s consent.
4. Prostituting another individual;
5. Knowingly exposing another individual to a sexually transmitted disease or virus without that individual’s knowledge; and
6. Inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity.

Coercion: The use or attempted use of pressure and/or oppressive behavior, including express or implied threats, intimidation, or physical force such that the application of pressure or oppression causes the recipient of the behavior to engage in unwanted sexual activity. Coercion includes administering or pressuring another to consume a drug, intoxicant, or similar substance with the intent to impair that person’s ability to consent prior to engaging in sexual activity.

Complicity: Assisting, facilitating, or encouraging the commission of a violation of the Sexual Misconduct and Relationship Violence Policy.

Harm to Others: Physical violence including (but not limited to) physical abuse, assault, threats of violence, striking, shoving or subjecting another person to unwanted physical contact.

Harassing Conduct: Intentionally or recklessly endangering, threatening, or causing emotional harm to any person. This may also include causing physical damage to their property.

Harassment: Harassment includes any written, verbal or physical acts (including electronically transmitted acts) that is reasonably perceived as creating an intimidating or hostile work, learning or living environment, particularly if questionable behavior is repeated and/or if it continues after the offending party is informed of the objectionable and/or inappropriate nature of the behavior. Harassment can be a single incident, or a series of repeated incidents.

Sexually Inappropriate Behavior: Conduct that is lewd or obscene including sexually suggestive gestures or communication. Public masturbation, disrobing or exposure of one’s self to another person without that person’s consent is one example. This may be an isolated occurrence.

Dating Violence: Dating violence can be a single event or a pattern of behavior that includes, but is not limited to, sexual or physical abuse.

Domestic Violence: Behaviors used by one person in a relationship to control the other. Partners may be married or not married; heterosexual, LGBTQA; living together, separated or dating.

Intimate Partner Violence: Physical violence, sexual violence, and/or psychological abuse by a current or former intimate partner.

Stalking: Engaging in a course of conduct or repeatedly communicating and/or committing acts toward another person under circumstances that demonstrate or communicate an intent:

1. to place the other person in reasonable fear of bodily injury; or
2. to cause substantial emotional distress to the other person.

A course of conduct is when a person engages in two or more acts that include, but are not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveys, threatens, or communicates to or about a person in a prohibited way, or interferes with a person’s property.

Stalking includes the concept of cyberstalking, in which electronic media such as the Internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used to pursue, harass, or to make unwelcome contact with another person in an unsolicited fashion.

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For Title IX Policy Violations

Sexual Harassment (as defined by Title IX) is conduct on the basis of sex that satisfies one or more of the following:

1. An employee of the College conditioning the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct;
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 the College’s educational program or activity;
3. “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

Sexual Assault (as defined by Title IX) is an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s Uniform Crime Reporting (UCR) program. Per the National Incident-Based Reporting System User Manual from the FBI UCR Program, A sex offense is “any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.”

1. 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. This definition also includes attempts to commit rape.
2. Fondling: The touching of the private 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 his/her age or because of his/her temporary or permanent mental incapacity.
3. Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
4. Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent.

Dating Violence (as defined by Title IX) is violence committed by a person

1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
2. 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
   3. The frequency if interaction between the persons involved in the relationship.

Domestic Violence (as defined by Title IX) includes felony or misdemeanor crimes 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 receiving grant monies, 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.

Stalking (as defined by Title IX) means engaging in a course of conduct directed at a specific person that would cause a reasonable person to— (A) fear for his or her safety or the safety of others; or (B) suffer substantial emotional distress

Note: For reported incidents that meet the definitions above for a Title IX related policy definition, the College will follow the Title IX grievance procedure found in Section VIII.

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Other Definitions

Actual Knowledge: notice of sexual harassment or allegations of sexual harassment to the College’s Title IX Coordinator or any official of the College who has authority to institute corrective measures on behalf of the College. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. The standard is not met when the only official of the College with actual knowledge is the respondent.

Adjudicator(s): The College administrative official who will be responsible for disposition and resolution of a Sexual Misconduct or Relationship Violence Grievance Process. Typically, this will be a panel or the Vice President for College Life and Dean of Students or designee, based on availability. The adjudicator has the discretion to consult with others as appropriate or refer to the appropriate designee.

Advisor: Someone who acts as an advisor to the Complainant or Respondent involved in an investigation or disciplinary proceeding under this Policy. Once a complaint has been filed, the Complainant and Respondent may each select an Advisor of their choice. The Advisor is permitted to be a part of any meetings their student may have. College employees who provide confidential support services (Advocates, Counseling Services staff, Health Services staff, and pastoral counselors) may not serve as Advisors. Additionally, the Title IX Coordinator, Director of Student Rights and Responsibilities, Department of Public Safety, and the Dean of Students, for example have an actual or perceived conflict of interest preventing them from serving in this role. A student should select as an advisor a person whose schedule allows attendance at the scheduled date and time for any meetings because delays will not normally be allowed due to the scheduling conflicts of an advisor.

The Advisor may not speak aloud during meetings involving the student and an investigator/adjudicator, but may confer quietly or by means of written notes with their advisee. The Student Conduct Administrator keeps a list of trained Advisors. Although the Parties are not required to select a trained Advisor, because knowledge of the disciplinary process is important to the Advisor’s role, it is highly recommended that they do so.

The Complainant and Responding Party are not obligated to accept the counsel of an Advisor.

Should the reported behavior fall under the Title IX Grievance Process, found in Section VIII, and the complainant has signed a formal complaint, both parties will be required to have an advisor present at the hearing. During the live hearing under the Title IX Grievance Process, the Advisors of the complainant and the respondent will provide cross examination to the other party and witnesses who are participating in the process. This cross examination must be conducted by an Advisor, and cannot be conducted by the complainant or respondent. If either party does not have an Advisor at the time of the live hearing under the Title IX Grievance process, then the College will provide an Advisor to the party.

Amnesty: The College will not pursue disciplinary action against any person for possession or consumption of alcohol or low level drugs use when that possession or consumption is revealed in the course of a good faith report of sexual misconduct or relationship violence or other good faith statements made in connection with an investigation under this policy.

Gettysburg College recognizes that students who have been drinking and/or using drugs (ether such use is voluntary or involuntary) at the time sexual misconduct occurs may be hesitant to report such incidents due to hear of potential consequences for their own conduct. The College strongly encourages students to report incidents of sexual misconduct. A witness to or individual who experiences sexual misconduct, acting in good faith, who discloses any incident of sexual misconduct to the College will not be sanctioned under the College’s Code of Conduct for violations of alcohol and/or drug use policies occurring at or near the time of the incident(s) of sexual harassment or sexual violence. Amnesty does not preclude or prevent action by police or other legal authorities pursuant to relevant state or federal criminal statutes.

The College will also not pursue disciplinary action against any person for violations under the COVID-19 behavioral rubric in a good faith report of sexual misconduct or relationship violence.

Appeals Board: A three-member board charged with hearing an appeal under this Policy. The Appeals Board is drawn from a pool of members of our community who will receive training regarding the purpose and implementation of this Policy as well as the disposition of Complaints in a manner that protects the safety and well-being of the Parties and promotes accountability. The Appeals Board typically is composed of one faculty member and two administrators. The Student Conduct Administrator has the discretion to make exceptions to this composition to ensure a timely appeal hearing. One member of the Appeals Board shall be appointed to serve as the Appeals Board Chair. All three members of the board are voting members.

Complaint: When the complainant requests that formal or informal process is started through the College, the complainant will be asked to provide a written statement for the purpose of initiating disciplinary proceedings under the Sexual Misconduct and Relationship Violence Policy. This includes complaints submitted through the Community Concern Form.

For reported incidents that fall under conduct that is a violation of Title IX prohibited conduct, a Formal Complainant, as defined below is required to start the grievance process under Title IX.

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

Consent: Consent to engage in sexual activity must exist from beginning to end of each instance of sexual activity. Consent is demonstrated through mutually understandable words and/or actions that clearly indicate a willingness to engage in, and continue to engage in, a specific sexual activity. In order to be valid, consent must be knowing, voluntary, active, present, and ongoing.

To give consent, a person must be awake, of legal age, and have the capacity to reasonably understand the nature of their actions. Individuals who are physically or mentally incapacitated cannot give consent. Some indicators that an individual is incapacitated due to intoxication may include, but are not limited to, vomiting, unresponsiveness, inability to communicate coherently, inability to dress/undress without assistance, inability to walk without assistance, slurred speech, loss of coordination, or inability to perform other physical or cognitive tasks without assistance. When alcohol is involved, incapacitation is a state beyond drunkenness or intoxication. When drug use is involved, incapacitation is a state beyond being under the influence of or impaired by the use of the drug. Alcohol and other drugs impact individuals differently. Determining whether an individual is incapacitated requires an individualized determination.

Silence, without actions evidencing permission, does not demonstrate consent. Where force or coercion is alleged, the absence of resistance does not demonstrate consent. The responsibility of obtaining consent rests with the person initiating sexual activity. The College encourages verbal consent to be present at all times at each step of sexual activity.

Consent to engage in sexual activity may be withdrawn by either person at any time. A previous or current dating or sexual relationship, by itself, is not sufficient to constitute consent. 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 (due to falling asleep or passing out into a state of unconsciousness, for example).

When determining whether a person has the capacity to provide consent, the College will consider whether a sober, reasonable person in the same position knew or should have known that the other party could or could not consent to the sexual activity. When determining whether consent has been provided, all the circumstances of the relationship between the parties will be considered.

Decision Maker(s): The individual or individuals who are responsible for the live hearing during the formal Title IX Grievance processes found in this policy and determine if the respondent is responsible or not responsible for a policy violation. The decision-maker(s) are trained annually and serve impartially without prejudging the facts at issue. The decision-maker(s) cannot be the Title IX Coordinator or the Investigator.

Formal Complaint: a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the College 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 educational program or activity of the College with which the formal complaint is filed. A formal complainant may be filed with the Title IX Coordinator in person, by mail, or by electronic mail. A document filed by the complainant, means a document or electronic submission that contains the complaint’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.

Investigator: The College administrative official who will be responsible for coordinating any investigations into an alleged violation of the Sexual Misconduct and Relationship Violence Policy. Typically, this will be the Department of Public Safety, the Student Conduct Administrator or other investigator designated by the Dean of Students; however, this may also be an external investigator. The Investigator will conduct a fact-finding inquiry, and prepare an Investigation Report for the Title IX Coordinator for the purpose of resolving the complaint.

Party or Parties: A term referring individually or collectively to the Complainant and/or Respondent.

Respondent: An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment or sexual misconduct.

Responsible Reporters: Responsible Reporters are persons who, as a result of their profession, may be aware of cases of abuse or violence. At Gettysburg College, all faculty, select administrators, staff, and student staff (with the exception of, psychological counselors, health care providers, victim services advocates and pastoral counselors while performing that role as their primary employment with the College) are designated as responsible reporters with regard to cases of suspected sexual assault/violence, sexual misconduct, and relationship violence. It is every person’s responsibility to keep our community safe and free from discrimination and violence. Suspected incidents need to be immediately reported to the Department of Public Safety (DPS). In the State of Pennsylvania, employees of institutions of higher learning who suspect incidents of child abuse (including incidents of suspected child sex abuse) must report such incidents to the Department of Public Welfare’s Child Line (800-932-0313 or https://www.compass.state.pa.us/cwis/public/home), the police having jurisdiction, and to their supervisor. Pennsylvania recognizes matriculated students under the age of 18 as “children” for purposes of this law and, as such, the college is mandated to report a criminal complaint of abuse or sexual abuse involving any victim under the age of 18 immediately to ChildLine and the police having jurisdiction.

Report: A report is defined as notification of an incident of sexual misconduct or sexual harassment to the Title IX Coordinator by any responsible employee or reporting person. A report may be accompanied by a request for supportive measures, no further action, or a request to initiate a formal or informal resolution process through the College. Should a complainant decide to initiate a formal or informal process with the College, then the report is used as part of the complaint or formal complaint as defined above.

Retaliation: Acts or attempted acts to retaliate or seek retribution against anyone who has reported Sexual Misconduct or Relationship Violence or who has participated (or is expected to participate) in any manner in an investigation, proceeding, or hearing under this Policy. Prohibited retaliatory acts include, but are not limited to, intimidation, threats, coercion, or discrimination. A finding of retaliation under this policy is not dependent on a finding that the underlying sexual misconduct occurred. Retaliation constitutes a violation of the Sexual Misconduct Policy.

Student Conduct Administrator: College administrative official responsible for facilitating the adjudication of a Complaint filed under this policy including pre-hearing procedures. Normally, the Student Conduct Administrator will be the Title IX Coordinator or Director of Student Rights and Responsibilities.

Student Conduct Investigative Report: A report prepared by an Investigator and submitted to the Student Conduct Administrator for the purpose of resolving a Complaint.

Supportive Measures: Non-disciplinary, non- punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the College’s educational program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the College’s educational environment or deter sexual harassment. Supportive measures may include:

• Counseling;
• Extensions of deadlines or other course- related adjustments;
• Modifications of work or class schedules;
• Campus escort services;
• Mutual restrictions on contact between the parties;
• Changes in work or housing locations;
• Leaves of absence;
• Increased security and monitoring of certain areas of the campus; and
• Other similar measures.

The college maintains confidentiality, to the highest extent possible, for the complainant or the respondent when it comes to the requested supportive measures by either party. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

Title IX: Title IX of the Educational Amendments of 1972, 20 U.S.C. §§1681 et seq., and its implementing regulations, 32 C.F.R. Part 106, which prohibit discrimination on the basis of sex, gender identity, or gender expression in education programs or activities operated by recipients of federal financial assistance. Gettysburg College is required to comply with Title IX.

Threshold of Information: Determination as to whether the allegations would provide sufficient information upon which a hearing panel could find a violation of this policy. For all Sexual Misconduct and Sexual Harassment reports including those that reach Title IX as defined by the Department of Education, the College uses the preponderance of the evidence standard of proof for determining responsibility.

Victim: A person who has experienced sexual or relationship violence. A Victim may also be identified as a Survivor or as a Complainant when this person invokes the formal College Hearing Process.

Witness: Any individual who has seen, heard, or otherwise knows or has relevant information about a violation or attempted violation of this Policy. Witnesses are expected to provide a statement during a hearing. Witnesses are protected from retaliation, which includes retaliation from the Complaint, Respondent, or from another party or parties.

Witnesses who provide statements pertaining to a formal grievance process under Title IX will be asked to participate in the live hearing process that is part of the formal grievance process. During the live hearing, witnesses may be asked questions for the complainant or respondent’s advisor. If the witness does not participate in the cross examination by a party’s advisor, then there statement will not be considered by the decision-maker(s) in their determination of responsibility.