Envision a Violence Free ETSU

 

Access the ETSU Student Sexual Misconduct Policy in its entirety in the Undergraduate/Graduate Catalogs at ETSU CATALOGS This website is an additional resource as ETSU works to be Violence Free.

The ETSU sexual misconduct policy defines the forms of sexual misconduct that violate the standards of our community, identifies resources, and outlines the university's student conduct/ procedures. ETSU complies with Title IX and does not discriminate on the basis of sex in its educational programs and activities. Sexual harassment, including sexual misconduct as defined in this policy, is a form of sex discrimination prohibited by Title IX, 20 U.S.C. §§ 1581 et seq (which prohibits discrimination on the basis of sex in education programs or activities).

Bystanders:

The university community makes the following clear: Bystanders have a positive, moral obligation to take any reasonable and prudent action they can to prevent or stop an act of sexual misconduct from taking place. ETSU is dedicated to maintaining an environment which is safe and supportive of its students and employees where relationships are built on honesty, integrity, and trust.

Definitions:

Sexual Misconduct is the overarching term used by the university to identify the conduct that constitutes sexual harassment by individuals or organizations that is prohibited by Title IX. For all individuals who are part of the ETSU community, sexually harassing conduct that is sufficiently severe, pervasive, and objectively offensive as to substantially disrupt or undermine a person's ability to participate in or to receive the benefits, services, or opportunities of the university is prohibited when such conduct substantially interferes with an individual's educational performance, or equal access to the college's resources and opportunities; or such conduct creates an intimidating, hostile, or abusive educational environment. The university recognizes that anyone can be a complainant or respondent regardless of sex, gender, or gender identification.

Following are definitions based on university Student Disciplinary Policies, Part 2 Disciplinary Offenses, item (v) Sexual Misconduct, Sexual Battery or Rape:Committing any act of sexual battery or rape as defined by state law; May include any sexual act or penetration which is accompanied by threat, coercion, use of restraint or force, or any sexual act where the respondent knows, or should have known, that the victim was unable or incapable of giving consent.

Sexual Battery:

(a) Unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:

  • Force or coercion is used to accomplish the act;
  • The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;
  • The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or
  • The sexual contact is accomplished by fraud.

(b) As used in this section, "coercion" means the threat of kidnapping, extortion, force or violence to be performed immediately or in the future. (Tenn. Code Ann. § 39-13-505)

Rape:

Rape is unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:

  • Force or coercion is used to accomplish the act;
  • The sexual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent;
  • The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or
  • The sexual penetration is accomplished by fraud. (Tenn. Code Ann. § 39-13-503)

 Additional Definitions:

Advisor

A member of the community each party has selected to help prepare for the hearing who may accompany the party that he or she is assisting to the hearing. An advisor may be a student, faculty, or staff member, a family member, friend, or lawyer. This person cannot speak on behalf of the respondent or complainant during the hearing but is present only to provide advice and support.

Complainant

An individual who invokes the university's investigation and resolution process to determine if the sexual misconduct policy has been violated and identifies him or herself as a complainant of the alleged misconduct. In some circumstance, the university may assume the role of complainant.

Complicity

Assisting, facilitating, or encouraging the commission of a violation of the sexual misconduct policy.

Consent

An informed decision, freely given, made through mutually understandable words or actions that indicate a willingness to participate in mutually agreed upon
sexual activity.  Consent cannot be given by an individual who is asleep; unconscious; or mentally or physically
incapacitated, either through the effect of drugs or alcohol or for any other reason; or, is under duress, threat, coercion, or force.  Past consent does not imply future consent.  Silence or an absence of resistance does not imply consent. Consent can be withdrawn at any time.

Consensual Relationships

Intimate relationships between supervisors and their subordinates and between faculty members and students are strongly discouraged due to the inherent inequality of power in such situations. These relationships could lead to undue favoritism or the perception of undue favoritism, abuse of power, compromised judgment or impaired objectivity. Engaging in a consensual relationship with a student over whom the faculty member has either grading, supervisory, or other evaluative authority (i.e., member of dissertation committee, thesis director, etc.) constitutes a conflict of interest. The faculty member must take steps to remove the conflict by assigning a different supervisor to the student; resigning from the student's academic committees; or by terminating the relationship at least while the student is in his/her class. Likewise, it is a conflict of interest for a supervisor to engage in a consensual relationship with a subordinate over whom he or she has evaluative or supervisory authority. The supervisor must take action to resolve the conflict of interest by, for example, assigning another individual to supervise and/or evaluate the subordinate.

Cyber-stalking

A particular form of stalking 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 unwelcomed contact with another person in an unsolicited fashion. Some examples of cyber-stalking include, but are not limited to, unwelcomed or unsolicited emails, instant messages, and messages on on-line bulletin boards. It also includes, but is not limited to, unsolicited communications about a person, their family, friends, or co-workers, or sending or posting unwelcomed and unsolicited messages with another username.

Dating Violence

Violence against a person when the accuser and accused are dating, or who have dated, or who have or had a sexual relationship.  “Dating” and “dated” do not include fraternization between two (2) individuals solely in a business or non-romantic social context.  Violence includes, but is not necessarily limited to,

(1)    inflicting, or attempting to inflict, physical injury on the accuser by other than accidental means,

(2)    placing the accuser in fear of physical harm,

(3)    physical restraint,

(4)    malicious damage to the personal property of the accuser, including inflicting, or attempting to inflict, physical injury on any animal owned, possessed, leased, kept, or held by the accuser; or,

(5)    placing a victim in fear of physical harm to any animal owned, possessed, leased, kept, or held by the accuser. 

TCA 36-3-601(5)(c).

Domestic Violence

Violence against a person when the accuser and accused:

(1)    are current or former spouses;

(2)    live together or have lived together;

(3)    are related by blood or adoption;

(4)    are related or were formally related by marriage; or,

(5)    are adult or minor children of a person in a relationship described above. 

Domestic violence includes, but is not necessarily limited to,

(1)    inflicting, or attempting to inflict, physical injury on the accuser by other than accidental means;

(2)    placing the accuser in fear of physical harm;

(3)    physical restraint;

(4)    malicious damage to the personal property of the accuser, including inflicting, or attempting to inflict, physical injury on any animal owned, possessed, leased, kept, or held by the accuser; or,

(5)    placing the accuser in fear of physical harm to any animal owned, possessed, leased, kept, or held by the accuser. 

TCA 36-3-601.

Harassment

Harassment is conduct that is based on a person's race, color, religion, creed, ethic or national origin, sex, sexual orientation, gender identity/expression, disability, age (as applicable), status as a covered veteran, genetic information, or any other category protected by federal or state civil rights law, that Adversely affects a term or condition of an individual's employment, education,   participation in an institution's activities or living environment:

Has the purpose or effect of unreasonably interfering with an individual's employment or academic performance or creating an intimidating, hostile, offensive or abusive environment of the individual; or is used as a basis for or a factor in decisions that tangibly affect that individual's employment, education, participation in an institution's activities or living environment. Not every act that might be offensive to an individual or a group will be considered harassment. (TBR Policy P-O80)

Impact Statement

A statement written by a complainant in a sexual misconduct hearing that outlines how s/he has been impacted by the events in question. The hearing officer or board reviews impact statements only after an affirmative decision has been made by a hearing panel regarding responsibility for the violation(s) in question. Impact statements can be used in determining the most appropriate sanctions under the circumstances.

Incapacitation

The inability, temporarily or permanently, to give consent, because someone is mentally and/or physically helpless, unconscious, or unaware due to drug or alcohol consumption (voluntarily or involuntarily), or for some other reason. Where alcohol is involved, incapacitation is a state beyond drunkenness or intoxication. Incapacitation means a person does not have the ability to give consent. Some indicators of incapacitation may include, but are not limited to, vomiting, being unconscious, or being unable to communicate for any reason.

Non-Consensual Sexual Contact

Having or attempting to have non-consensual, non-accidental contact of a sexual nature with another person. Sexual contact can include, but is not limited to, touching or kissing another individual.

Parties

A term referring collectively to the complainant and respondent.

Past Sexual History

Any sexual behavior of any individual involved in a sexual misconduct incident. Past sexual history of a complainant or respondent is not relevant in determining responsibility in an incident of alleged misconduct and is not allowed to be discussed during the hearing.

Respondent

Any individual(s) or organization(s) alleged to have violated the sexual misconduct policy and against whom a complaint has been brought to the attention of the university.

Retaliation

Retaliation is prohibited by the university. Retaliation may be defined as the seeking of revenge, reprisal or injury to another who has exercised the right to file a complaint or make a report of sexual or racial harassment, or has participated in an investigation into allegations of sexual or racial harassment. Any retaliation against a person filing a complaint is strictly prohibited regardless of the outcome of the investigation and may, in itself, be grounds for disciplinary action. Title VII also prohibits discrimination (and harassment) of individuals based on color, ethnicity, national origin, and religion. University policy prohibits discrimination based on sexual orientation. Complaints of discrimination on these grounds may be filed with the University EEO/AA Officer and/or pursuant to the university's grievance and complaint procedures. However, the procedure utilized for these complaints differs from the process used for sexual and racial harassment complaints.

Sexual Assault

The nonconsensual sexual contact with the accuser by the accused, or the accused by the accuser when force or coercion is used to accomplish the act, the sexual contact is accomplished without consent of the accuser, and the accused knows or has reason to know at the time of the contact that the accuser did not or could not consent.  Sexual contact includes, but is not limited to, the intentional touching of the accuser’s, the accused’s, or any other person’s intimate parts, or the intentional touching of the clothing covering the immediate area of the accuser’s, the accused’s, or any other person’s intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual arousal or gratification.

Sexual Coercion

The use of, or attempt to use, pressure and/or oppressive behavior, such that the application of such pressure or behavior causes the person who is the object of the pressure or behavior to engage in unwelcomed sexual activity. Coercion can take the form of pressure, threats, intimidation, or the use of physical force, either expressed or implied, which places a person in fear of immediate harm or physical injury. Coercion can also take the form of pressure to consume alcohol or other drugs prior to engaging in a sexual act.

Sexual Exploitation

An act or acts attempted or committed by a person for sexual gratification, financial gain, or advancement through the abuse or exploitation of another person's sexuality. Examples include observing individuals without consent, non-consensual audio or video taping of sexual activity, unauthorized presentation of recordings of a sexual nature, prostituting another person, allowing others to observe a personal consensual sexual act without the knowledge or consent of all involved parties, and knowingly exposing an individual to a sexually transmittable infection or virus without his or her knowledge.

Sexual Harassment

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when one of the following criteria is met: submission to such conduct is made either explicitly or implicitly as a term or condition of the individual's employment or of the individual's status in a program, course, or activity; submission to or rejection of such conduct by an individual is used as a basis for employment decisions, a criterion for evaluation, or a basis for academic or other decisions affecting such individual; such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or educational experience, or creating an intimidating, hostile, or offensive work or educational environment. Whether the alleged conduct constitutes sexual harassment depends upon the record as a whole and the totality of the circumstances, such as the nature of sexual advances in the context within which the alleged incident occurs. Verbal expressions or written material that is relevant and appropriately related to course subject matter or curriculum may not be considered harassment. Sexual harassment and racial harassment have been held to constitute forms of discrimination prohibited by Title VI, Title VII of the Civil Rights Act of 1964, as amended, and Title IX of the Educational Amendments of 1972. The University may be held liable pursuant to Title VI or Title VII and/or lose federal funds pursuant to Title IX for failure to properly investigate and remedy claims of sexual or racial harassment.

Stalking

Stalking is a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the accuser to feel terrorized, frightened, intimidated, threatened, harassed, or molested.  Harassment means conduct directed toward the accuser that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the accuser to suffer emotional distress.  Harassment does not include constitutionally protected activity or conduct that serves a legitimate
purpose. TCA 39-17-315

Student

Any student enrolled at ETSU at the time of the alleged sexual misconduct. For the purposes of this policy, student status begins when a student has accepted an offer for admission to ETSU and ends when the student has graduated, withdrawn, been expelled, or otherwise separated permanently from the university.

Title IX

Title IX refers to the Educational Amendments of 1972 (Title IX), 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 in education programs or activities operated by recipients of federal financial assistance. ETSU is required to comply with Title IX. Sexual harassment of students, which includes acts of sexual misconduct described in this policy, is a form of sex discrimination prohibited by Title IX.

Title IX Officer

A senior administrator at the university appointed by the President to ensure ETSU complies with Title IX who can be contacted by any member of the ETSU community with questions. The ETSU Title IX Officer is:

Mary Jordan, Senior Special Assistant to the President for Equity and Diversity
206 Burgin E. Dossett Hall
Phone: 423-439-4211
Fax: 423-439-4004
Email: jordanm@etsu.edu

Witness

Any individual who has seen, heard, or otherwise knows or has information about a violation or attempted violation of the sexual misconduct policy.

 

 

 
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