Appendix

Definitions of Prohibited Conduct

This appendix provides a summary of relevant definitions. For more complete definitions and the full policy, see titleix.utk.edu.

Sexual Harassment

Sexual Assault
Rape
Fondling
Incest
Statutory Rape
Dating Violence
Domestic Violence
Stalking
Sexual Exploitation
Retaliation

Sexual Harassment is an umbrella term that encompasses sexual assault, dating violence, domestic violence, and stalking. Sexual harassment is conduct on the basis of sex that satisfies one or more of the following: (1) An employee of the university conditioning the provision of an aid, benefit, or service of the university 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 university’s education program or activity; or (3) Sexual assault, dating violence, domestic violence, and/or stalking. for the definition of sexual harassment, “reasonable person” means a reasonable person under similar circumstances as and with similar identities to the complainant. To determine whether words and/or conduct constitute sexual harassment, the university will consider the totality of the circumstances, including without limitation: the context in which the conduct and/or words occurred; and the frequency, nature, and severity of the words and/or conduct.

Sexual Assault

Sexual assault is an umbrella term for any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent. Sexual assault includes rape, fondling, incest, and statutory rape.

Rape means 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.
Fondling means the touching of the private body 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.
Incest means sexual intercourse between persons who are related to each other within degrees wherein marriage is prohibited by law.
Statutory rape means sexual intercourse with a person who is under the statutory age of consent.

Dating violence means violence committed by a person—(A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship. (ii) The type of relationship. (iii) The frequency of interaction between the persons involved in the relationship.

Domestic violence 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 in which the crime occurs, 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 in which the crime occurs. In cases involving allegations of mutual acts or threats of acts of violence, the designated investigator(s) will, when appropriate, identify the primary aggressor in the situation based on the totality of the information gathered, including without limitation: the history of violence between the parties; the relative severity of the injuries inflicted on each person; information gathered from the persons involved in the situation and witnesses to the situation; and whether the acts or threats were done in self-defense. The primary aggressor will be considered the Respondent for purposes of evaluating domestic violence.

Stalking 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.

Course of conduct means two or more acts, including, but not limited to, acts in which a person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates with or about another person, or interferes with another person’s property.
Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
For the definition of stalking, “reasonable person” means a reasonable person under similar circumstances and with similar identities to the complainant.
Acts that may be involved in a course of conduct include, without limitation:
Cyberstalking, a particular type of stalking in which electronic media such as the internet, social networks, apps, blogs, texts, cell phones, or a similar action, method, device, or means is used;
Following a person;
Being or remaining in close proximity to a person;
Entering or remaining on or near a person’s property, residence, or place of employment;
Monitoring, observing, or conducting surveillance of a person;
Threatening a person (directly or indirectly);
Giving gifts or objects to, or leaving items for, a person; or
Damaging or harming a person’s property (including pets) or interfering with a person’s use of property.

Stalking also may be a form of sex discrimination prohibited by federal and state antidiscrimination laws, such as Title VII and Title IX, and/or may constitute a crime in Tennessee.

Sexual Exploitation

Sexual exploitation means taking sexual advantage of another person, without that person’s active agreement. An active agreement is words and/or conduct that communicate a person’s willingness to participate in an act. A person cannot actively agree to an act if: (1) the person is incapacitated, if either the person claiming to have obtained the other person’s active agreement knows that the other person is Incapacitated or a reasonable person would know that the other person is Incapacitated; or (2) the person is forced to act or participate in an activity. Examples of sexual exploitation include, without limitation:

Surreptitiously observing, photographing, audiotaping, videotaping, or recording an image of a person who is engaging in sexual act(s), or a person’s breasts, buttocks, groin, or genitals, when the person being observed/ photographed/ audiotaped/ videotaped/ recorded is in a place in which the person has a reasonable expectation of privacy
Allowing or enabling a person to surreptitiously observe, photograph, audiotape, videotape, or record an image of another person who is engaging in sexual act(s), or another person’s breasts, buttocks, groin, or genitals, when the person being observed/ photographed/ audiotaped/ videotaped/ recorded is in a place in which the person has a reasonable expectation of privacy;
Showing, posting, or sharing video, audio, or an image that depicts a person who is engaging in sexual act(s), or a person’s breasts, buttocks, groin, or genitals, when the person being observed/ photographed/ audiotaped/ videotaped/ recorded is in a place in which the person has a reasonable expectation of privacy, if all persons who are depicted have not agreed to having the video/ audio/ image shown, posted, or shared;
Prostituting another person or engaging in sex trafficking;
Knowingly exposing another person to a sexually transmitted infection or disease without informing the other person that one has a sexually transmitted infection or disease;
Forcing a person to participate in sexual act(s) with a person other than oneself; Forcing a person to expose the person’s breasts, buttocks, groin, or genitals;
Forcing a person to take an action against that person’s will by threatening to show, post, or share video, audio, or an image that depicts the person’s nudity or depicts the person engaging in sexual act(s);
Forcing a person to take an action of a sexual nature against that person’s will by threatening to disclose information that would harm a person’s reputation;
Forcing a person to take an action against that person’s will by threatening to disclose information of a sexual or intimate nature that would harm a person’s reputation; and/or
Causing or requesting an incapacitated person to expose the person’s breasts, buttocks, groin, or genitals or to participate in sexual act(s) with a person other than oneself.

Retaliation

Retaliation means to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by the Policy on Sexual Harassment, Sexual Assault, Dating and Domestic Violence, and Stalking, 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. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or 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 sexual harassment, for the purpose of interfering with any right or privilege secured by this Policy constitutes retaliation. (1) The exercise of rights protected under the First Amendment does not constitute retaliation. (2) Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation. Retaliation is a violation of the Policy on Sexual Harassment, Sexual Assault, Dating and Domestic Violence, and Stalking regardless of whether the underlying allegation of a violation of the policy is ultimately found to have merit. Determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.