III. Relevant Terms

Advisor

An Advisor is an individual who provides guidance to the Complainant or Respondent throughout the Grievance and Alternative Resolution process, as set forth in this Policy.  Each party is entitled to one Advisor through every stage of the Grievance process (including the Alternative Resolution process, when applicable). A party can select an Advisor of their choice at any time in the process.  An Advisor can be any person, including an attorney, who is not otherwise a party or a witness.

A party does not have to have an Advisor during the investigation and Alternative Resolution process. TCC will not provide any party with an Advisor during the investigation process. However, as outlined below, each party is required to have an Advisor during the hearing. If a party has not already obtained an Advisor prior to the start of the hearing, the party’s Home Institution’s Title IX Coordinator will be responsible for ensuring their respective Respondent and/or Complainant is appointed an Advisor at no fee or charge to the party. TCC will not pay for, nor will TCC reimburse any party for the cost of, an Advisor selected by the party.

The Advisor is responsible for questioning witnesses and other parties during the hearing. Other than this responsibility, the Advisor’s role is limited. See Section IX.D.7 for a full overview of the Advisor’s role. Outside the role of questioning during a hearing, an Advisor may never speak on behalf of a party or otherwise disrupt any meetings or hearings in any manner. TCC reserves the right to exclude an Advisor who does not abide by these procedures.

Support Person

A Support Person is an individual who provides emotional support to a Complainant or Respondent throughout the Grievance and Alternative Resolution process, as set forth in this Policy. Parties are entitled to one Support Person through every stage of the Grievance and Alternative Resolution process.

The Support Person may never speak on behalf of a party or otherwise disrupt any meetings or hearings in any manner. See Section IX.A.7 for a full description of the Support Person’s role. TCC reserves the right to exclude a Support Person who does not abide by these procedures.

Complainant

A Complainant is an individual alleged to be the victim of conduct that could constitute Sexual Harassment, as defined by this Policy. For purposes of this Policy, a Complainant must be participating in, or attempting to participate in, an education program or activity of TCC. An individual who is on leave from their TCC employment or TCC student status is considered to be a person attempting to participate in an education program or activity for purposes of this Policy.

Confidential Resource

A Confidential Resource is a campus- or community-based resource that has the duty of confidentiality. The duty of confidentiality is an obligation on the part of the resource provider to keep a person’s information private and confidential unless consent to release or share the information is provided by the disclosing person.  Each Institution’s Title IX Coordinator maintains a list of Confidential Resources.

There are two types of Confidential Resources at TCC:

  • Confidential Resources with the legal privilege of confidentiality.

Communications with these resources have legal protections from disclosure in court. These resources also possess professional obligations (the duty of confidentiality) to hold such communications in confidence and they cannot divulge information about an individual seeking their services to a third party without that individual’s consent. There are established limits to confidentiality and these must be communicated to the individual seeking services.

Examples include, but are not limited to: Chaplains, Monsour and Project Sister Counselor at EmPOWER. Some campus Advocates are Confidential Resources with legal privilege – please check with your individual Institution for a definitive list of confidential resources with legal privileges.

  • Institution-designated Confidential Resources.

Communications with these resources do not have legal privilege and as such are not provided legal protections from disclosure in court. These individuals and/or offices do possess professional obligations (the duty of confidentiality) to hold communications in confidence and they cannot divulge information about an individual seeking their services to a third party without that individual’s consent.

In addition to established limits to confidentiality that must be communicated to the individual seeking services, Institution-designated Confidential Resources also have limited reporting responsibilities federally mandated by the Clery Act. Under the Clery Act, their reporting obligation arises when they become aware of information or allegations of criminal behavior and must report the information regarding an incident to the Institution’s Clery Coordinator. They do not have to report identifying information about the individuals involved in an incident. Institution-designated Confidential Resources are not obligated to inform the Title IX Coordinator of a report/disclosure unless requested by the individual seeking their services.

Examples include, but are not limited to: the EmPOWER Center and the Director at the Queer Resource Center (QRC).

Consent

Consent is affirmative, clear, knowing, voluntary, conscious, and revocable permission. Consent is active, not passive.  Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in sexual activity, and the physical conditions of sexual activity (e.g., use of a condom).[1]

Affirmative Consent must be ongoing and can be revoked at any time during sexual activity.  It is the responsibility of each person to ensure they have the Affirmative Consent of the other to engage in the sexual activity. The existence of a dating relationship between the persons involved, or the fact of past or subsequent sexual relations between them, should never by itself be presumed to be an indicator of consent.

  • Consent to any one form of sexual activity does not automatically imply consent to any other forms of sexual activity.
  • Consent can be withdrawn at any time.
  • Previous relationships or prior consent does not imply consent to future sexual acts; this includes “blanket” consent (i.e., permission in advance for any/all actions at a later time/place).
  • It is the obligation of the person initiating the sexual activity to obtain consent.
  • An individual cannot consent who has been coerced, including being compelled by force, threat of force, or deception; who is unaware that the act is being committed; or, who is coerced by a supervisory or disciplinary authority.
    • Force: violence, compulsion, or constraint physically exerted by any means upon or against a person.
    • Coercion: the application of pressure by the Respondent that unreasonably interferes with the Complainant’s ability to exercise free will. Factors to be considered include, but are not limited to, the intensity and duration of the conduct.
  • A person who does not want to engage in sexual activity is not required to resist or to verbally object.
  • Withdrawal of consent can be manifested through conduct and need not be a verbal withdrawal of consent (e.g., crying, pulling away, not actively participating, uncomfortable or upset facial expressions).
  • Consent may not be given by an individual who has not reached the legal age of consent under applicable law.

Affirmative Consent cannot be given by a person who is asleep, unconscious, or incapacitated.  A person with a medical or mental disability may also lack the capacity to give consent.  The definition of incapacitation follows.

Incapacitation

A person is unable to consent when incapacitated due to the influence of drugs, alcohol, or medication so that the person could not understand the fact, nature, or extent of the sexual activity.

Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why or how of the sexual interaction) or is physically unable to consent (e.g., asleep or unconscious).

Incapacitation may result from the use of alcohol or drugs.  However, consumption of alcohol or other drugs alone is insufficient to establish incapacitation.  Whether an intoxicated person (as a result of using alcohol or other drugs) is incapacitated depends on the extent to which the alcohol or other drugs impact the person’s decision-making ability, awareness of consequences, and ability to make informed judgments. A person’s own intoxication or incapacitation from drugs or alcohol does not diminish that person’s responsibility to obtain Affirmative Consent before engaging in sexual activity.

In general, sexual contact while under the influence of alcohol or other drugs poses a risk to all parties.  Alcohol and drugs impair a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication.  If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.

Being intoxicated or impaired by drugs or alcohol is never an excuse for Sexual Harassment, sexual violence, stalking, or intimate partner violence, and does not diminish one’s responsibility to obtain consent.

The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol or drugs impacts an individual’s:

  • Decision-making ability;
  • Awareness of consequences;
  • Ability to make informed judgments; and/or,
  • Capacity to appreciate the nature and the quality of the act.

A Respondent must either have known, or reasonably should have known, that a Complainant was unable to consent to sexual activity under any of the following circumstances:

  • The person was asleep or unconscious;
  • The person was incapacitated due to the influence of drugs, alcohol or medication, so that the person could not understand the fact, nature or extent of the sexual activity; or,
  • The person was unable to communicate due to a mental or physical condition.

It shall not be a valid excuse that the Respondent believed the Complainant consented to sexual activity under either of the following circumstances:

  • The Respondent’s belief in Affirmative Consent arose from the intoxication or recklessness of the Respondent; and/or,
  • The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the Complainant affirmatively consented.

Education Program or Activity

Alleged Sexual Harassment is only covered under this Policy if the alleged conduct occurred within TCC’s “Education Program or Activity.”

For purposes of this Policy, “Education Program or Activity” refers to all the operations of TCC, including, but not limited to: in-person and online educational instruction, employment, research activities, extracurricular activities, athletics, residence life, dining services, performances, and community engagement and outreach programs.  The term applies to all activity that occurs on campus or on other property owned or occupied by TCC.  It also includes off-campus locations, events, or circumstances over which TCC exercises substantial control over the Respondent and the context in which the Sexual Harassment occurs, including Sexual Harassment occurring in any building owned or controlled by a student organization that is officially recognized by TCC.

Conduct that does not occur within TCC’s Education Programs or Activities, as defined by this Policy, including conduct that takes place off-campus or within a TCC study abroad program, may still be addressed through other policies and processes, such as those under the Institution’s student codes of conduct, civil rights policies, discrimination and harassment policies, and/or any other applicable policy adopted by an individual Institution.

Formal Complaint

A document – including an electronic submission – filed and signed by a Complainant (or with other indication that the Complainant is the person filing the Formal Complaint) or signed by the Title IX Coordinator, alleging Sexual Harassment against a Respondent that occurred within TCC’s Education Programs r Activities, and requesting initiation of the procedures consistent with this Policy to investigate the allegations.

Any individual may make a report of Sexual Harassment.  This individual is known as a Reporting Party. If the Reporting Party is not the Complainant, the Title IX Coordinator may initiate and sign the complaint. If the Formal Complaint is signed by the Title IX Coordinator, the Title IX Coordinator is not treated as a Complainant, nor is the Title IX Coordinator treated as a party to the complaint. At the time of filing the Formal Complaint, the Complainant must be participating in, or attempting to participate in, an education program or activity of TCC.[2]

Individuals can report alleged Sexual Harassment verbally or in writing.

Reporting Party

An individual who makes a report of alleged Sexual Harassment, as defined by this Policy. This can be any person, including an individual unassociated with TCC. A Reporting Party is not considered a Complainant for purposes of this process.

Respondent

A Respondent is an individual who has been reported to have engaged in conduct that could constitute Sexual Harassment, as defined by this Policy. An individual does not have to be enrolled or employed by TCC to qualify as a Respondent under this Policy. TCC may dismiss a Formal Complaint if the Respondent is no longer enrolled or employed by TCC; however, the decision to dismiss will be made on an individual basis, with consultation between each involved Institution’s Title IX Coordinators.

Responsible Employee

Responsible Employees are TCC employees who, upon receipt of a disclosure or report of Sexual Harassment, are required to report the alleged conduct to the Institution’s Title IX Coordinator.  Responsible Employees will maintain confidentiality to the greatest extent possible and will only relay the disclosed or reported information to the Title IX Coordinator or designee.

A Responsible Employee is defined by each Institution. Please refer to your Home Institution for their definition of this term.

Supportive Measures

Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge, to the Complainant and/or the Respondent. The range of Supportive Measures available is listed in Section VI. of this Policy.

Violence

For purposes of this Policy, violence can be physical violence or patterns of abusive behavior.

  • Physical violence: Physical conduct that intentionally or recklessly threatens the health and safety of the recipient of the behavior.
  • Patterns of Abusive Behavior: This may consist of, or include, non-physical tactics such as threats, isolation, property destruction, abuse of pets, economic control, displaying weapons, degradation, or exploitation of a power imbalance.

Conduct by an individual in defense of self or another is not violence under this Policy. If either party asserts that they acted in defense of self or another, the Adjudicator (see Section IX.D.) will use all available, relevant evidence to evaluate the assertion, including reasonableness of the defensive actions and which party is the predominant aggressor.

[1] “Condom stealthing” refers to a person’s knowing or intentional removal of, or failure to use, a condom during sexual activity without the consent of the other person(s), when consent to the sexual activity was conditioned on the use of a condom.

[2] The Complainant need not initiate nor sign the Formal Complaint (see definition of “Complainant” in Section III., above) to be designated a Complainant.