External Investigator Supplemental Training

Denison University ⬝ Granville, Ohio

Title IX Sexual Harassment

Title IX Sexual Harassment means conduct on the basis of sex that satisfies the definition of one or more of the following:

1. Quid Pro Quo Sexual Harassment; or
2. Hostile Environment Sexual Harassment; or
3. Sexual Assault; or
4. Dating Violence; or
5. Domestic Violence; or
6. Stalking

​

Denison University ⬝ Granville, Ohio

Consent

The University considers consent voluntary agreement through words or action freely given, which could be reasonably interpreted as a willingness to participate in sexual activity. Indications that consent is not present include:

(1) when physical force is used or there is a reasonable belief of the threat of physical force; (2) when duress is present; (3) when one individual overcomes the physical limitations of another individual; and (4) when an individual is incapable of making an intentional decision to participate in a sexual act, which could include instances when the individual is in a state of incapacitation.

Denison University ⬝ Granville, Ohio

Consent, continued

• Silence or an absence of resistance does not necessarily indicate consent.
• Consent on a prior occasion does not constitute consent on a subsequent occasion, and consent cannot be inferred solely by the existence of a past sexual or dating relationship.
• Consent must exist throughout the sexual encounter and can be withdrawn or modified at any time, and consent to one form of sexual activity does not automatically imply consent to other forms of sexual activity.

Denison University ⬝ Granville, Ohio

Incapacitation

Incapacitation (or incapacity) is the state in which an individual’s perception or judgment is so impaired that the individual lacks the cognitive capacity to make or act on conscious decisions to engage in sexual activity.

Examples: sleep, unconsciousness, intermittent consciousness, physical helplessness, or any state in which an individual is not fully aware what is occurring

ATIXA: inability to understand the “who, what, when, where, why, or how” of the sexual interaction

Denison University ⬝ Granville, Ohio

Incapacitation - Factors to consider

• Slurred speech
• Lack of motor skills or balance
• Inability to focus
• Confusion
• Vomiting
• Emotional volatility or reactiveness
• Unusual behavior
• Bloodshot eyes
• Smell of alcohol on breath

Others?

Denison University ⬝ Granville, Ohio

Incapacitation and Blacking Out

Incapacitation is not the same as an alcohol-induced “blackout.” An alcohol-induced blackout is defined as a lack of memory for events occurring after consuming alcohol without a loss of consciousness.

Blackouts vs. Brownouts?

Although a blackout does not mean that the person was incapacitated, it is an indicator of heavy alcohol or drug consumption (or fast consumption). Thus, it is still an important factor to consider when assessing incapacitation.

Denison University ⬝ Granville, Ohio

Incapacitation and the Respondent

Evaluating incapacitation requires an assessment of whether a Respondent knew or should have known of the Complainant’s incapacitation based on objectively and reasonably apparent indications of impairment when viewed from the perspective of a sober, reasonable person in the Respondent’s position.

Being impaired by alcohol or other drugs is not a defense to any violation of the policy.

Denison University ⬝ Granville, Ohio

Title IX Scope

For Sexual Harassment to fall under the scope of Title IX, it must occur:

• In an education program or activity of the university; and
• Against a person in the United States.

An education program or activity of the university is (a) a location, event, or set of circumstances over which the university exercised substantial control over both the respondent and the context in which the sexual harassment occurred, or (a) any building owned or controlled by a student organization that is officially recognized by the university.

In addition, the complainant must be participating or attempting to participate in the education program or activity of the university at the time they file a formal complaint.

​

Denison University ⬝ Granville, Ohio

Two Processes for Student Respondents

For all sexual harassment that falls under Title IX, we use the investigation and hearing process described in the Sex Discrimination and Sexual Misconduct Policy.

For all other sexual misconduct that includes allegations against a student respondent, we use the process described in the Code of Student Conduct, with some minor modifications due to VAWA.

Denison University ⬝ Granville, Ohio

Non-Title IX Sexual Harassment

Non-Title IX Sexual Harassment means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when one of the following occurs:

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or access by the individual to aid, benefits, or services; = Quid Pro Quo
• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual or access by the individual to aid, benefits, or services; or = Quid Pro Quo
• Such conduct has the purpose or effect of unreasonably interfering with an individual’s job performance or learning ability or creating an intimidating, hostile, or offensive working environment. = severe or pervasive, objective

Denison University ⬝ Granville, Ohio

Sexual Exploitation

“Sexual Exploitation” is an act or acts committed through non-consensual abuse or taking advantage of another person’s sexuality for the purpose of sexual gratification, financial gain, personal benefit or advantage, or any other non-legitimate purpose.

Some examples →

• Recording or attempting to record someone who is nude or engaging in sexual activity without their consent
• Possession or distribution of child pornography
• Exposing oneself to another without consent
• Prostituting another person
• “Stealthing”

Denison University ⬝ Granville, Ohio

Sex/Gender Discrimination

Discrimination occurs when a behavior or policy has the purpose or effect of restricting or denying an individual’s or group’s access to opportunities, programs, or resources in relation to sex, gender, gender identity, gender expression, or sexual orientation in a manner that interferes with an individual’s working, academic, residential, or social environment or athletic participation or performance.

(Federal exceptions are referenced and built in.)

Denison University ⬝ Granville, Ohio

Retaliation

Neither Denison nor any other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by this Policy, or 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 under the regulations.

Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or Title IX Sexual Harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or Formal Complaint of Title IX Sexual Harassment, for the purpose of interfering with any right or privilege secured by Title IX or the regulations, constitutes retaliation.

​

Denison University ⬝ Granville, Ohio

Formal Process

Denison University ⬝ Granville, Ohio

Alternate Resolution

• Requires submission of Formal Complaint
• Must be requested in writing
• Other party must agree in writing
• Must be initiated prior to determination regarding responsibility
• Not available when an employee is accused of Title IX Sexual Harassment toward a student
• Can be facilitated by Community Values & Student Conduct, Office of the Provost, Human Resources, Civil Rights & Title IX, or Denison-identified third party
• Final agreement does not constitute disciplinary action by Denison

​

Denison University ⬝ Granville, Ohio

Other Denison Facts

1. All nonstudent employees are mandatory reporters with the exception of medical staff, counseling staff, and Spiritual Life clergy. Some student employees (e.g., CAs, Orientation Leaders) are also mandatory reporters.
2. Emergency removal/ interim restricted access/ interim suspension for sexual misconduct is initiated by the Title IX Coordinator following an individualized safety and risk analysis.
3. University-appointed advisors are available upon request, though these are primarily intended to assist with live hearings.

​

Denison University ⬝ Granville, Ohio