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Definitions of Title IX Offenses

DISCRIMINATION

  1. Disparate Treatment Discrimination: Intentional treatment of a person, based on actual or perceived protected characteristic, that has the result of: 
    • Excludes an individual from participation in;
    • Denies the individual benefits of; or
    • Otherwise adversely affects a term or condition of an individual’s participation in a College program or activity.

EXAMPLE: Providing higher pay to women than men for performing the same job is an example of disparate treatment discrimination. 

  1. Disparate Impact Discrimination: Policies or practices that appear to be neutral but unintentionally result in a disproportionate impact on a protected group or person that: 
    • Excludes an individual from participation in;
    • Denies the individual benefits of; or
    • Otherwise adversely affects a term or condition of an individual’s participation in a College program or activity.

EXAMPLE: Hiring more men than women as construction workers based on physical strength is an example of unintentional discrimination. 

 

SEX-BASED DISCRIMINATORY HARASSMENT

Sex-based Harassment is a form of sex discrimination and means sexual harassment and other harassment on the basis of sex, including sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; sexual assault, dating violence, domestic violence, and stalking.

  1. Quid pro quo occurs when:
  • A person acting under the College’ authority,
  • explicitly or implicitly conditions the provision any aid, benefit, or service provided by the College,
  • on a person’s participation in unwelcome sexual conduct.

EXAMPLE: If a supervisor were to condition a subordinate’s promotion on the subordinate providing the supervisor sexual favors, that would be quid pro quo harassment. 

  1. Hostile environment harassment is created by: 
  • Unwelcome sex-based conduct, that
  • based on the totality of the circumstances,1
  • is subjectively and objectively offensive, and
  • is so severe or pervasive,
  • that it limits or denies a person’s ability to participate in or benefit from the College’s education program or activity. 

Stray remarks and conduct that is not severe or pervasive would not satisfy this definition. 

EXAMPLE: “Severe” relates to the egregiousness, or scale, of the conduct. “Pervasiveness” relates to the scope, or frequency, of the conduct. “Subjectively” offensive means that the Complainant was offended. The conduct at issue must also be “objectively” offensive, meaning that a reasonable person standing in the Complainant’s shoes would also be offended. 

 

RAPE

  • Genital penetration, however slight, 
  • without the consent of the Complainant,
  • including instances where the Complainant is incapable of giving consent
    • because of their age
    • because of their temporary or permanent mental or physical incapacity.

 

SODOMY

  • Oral or anal penetration, however slight, 
  • of the Complainant by the Respondent
  • without the consent of the Complainant, 
  • including instances where the Complainant is incapable of giving consent
    • because of their age
    • because of their temporary or permanent mental or physical incapacity.

 

SEXUAL ASSAULT WITH AN OBJECT

  • Respondent’s use of an object or instrument
  • to unlawfully penetrate, however slightly, the genital or anal opening
  • of the body of the Complainant,
  • without the consent of the Complainant,
  • including instances where the Complainant is incapable of giving consent
    • because of their age or 
    • because of their temporary or permanent mental or physical incapacity. 

 

FONDLING

  • The touching of the private body parts (breasts, buttocks, groin) of the Complainant by the Respondent
  • or causing the Complainant to touch the Respondent’s private body parts
  • intentionally for a sexual purpose
  • without the consent of the Complainant, including instances where the Complainant is incapable of giving consent 
    • because of their age or 
    • because of their temporary or permanent mental incapacity or physical incapacity.
       

INCEST

  • Nonforcible sexual intercourse between persons who are related to each other,
  • within the degrees wherein marriage is prohibited by New Hampshire law. 
     

STATUTORY RAPE

  • Nonforcible sexual intercourse with a person, 
  • who is under the statutory age of consent in New Hampshire.

 

DATING VIOLENCE: 

  • Violence2 committed by a Respondent,
  • who is in or has been in a social relationship of a romantic or intimate nature with the Complainant; and 
  • where the existence of such a relationship shall be determined based on a consideration of the length and type of relationship.

 

DOMESTIC VIOLENCE:

  • Felony or misdemeanor crimes committed by a person who:
    • is a current or former spouse or intimate partner of the Complainant under the family or domestic violence laws of New Hampshire or a person similarly situated to a spouse of the Complainant;
    • is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner;
    • shares a child in common with the Complainant; or 
    • commits acts against a youth or adult Complainant who is protected from those acts under the family or domestic violence laws of New Hampshire.

 

STALKING:

  • Engaging in a course of conduct3 on the basis of sex, that is,
  • directed at a specific person that would cause a reasonable person4 to:
    • fear for the person’s safety, or
    • the safety of others; or
    • suffer substantial emotional distress.5

A “course of conduct” requires that there be more than one incident and the conduct must be directed at a specific person. 

The “reasonable person” standard is an objective standard meaning a person in the Complainant’s shoes (having similar characteristics/demographics to the Complainant).

Stalking can occur in person or using technology, and the duration, frequency, and intensity of the conduct should be considered. Stalking tactics can include, but are not limited to watching, following, using tracking devices, monitoring online activity, unwanted contact, property invasion or damage, hacking accounts, threats, violence, sabotage, and attacks. 

Merely annoying conduct, even if repeated, is a nuisance but is not typically chargeable as stalking.

 

SEXUAL EXPLOITATION6

Sexual exploitation occurs when an individual takes non-consensual or abusive sexual advantage of another, that does not constitute Sex-Based Harassment as defined above. Examples of Sexual Exploitation include, but are not limited to:

  • Sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed)
  • Invasion of sexual privacy 
  • Knowingly making an unwelcome disclosure of (or threatening to disclose) an individual's sexual orientation, gender identity, or gender expression
  • Taking pictures, video, or audio recording of another in a sexual act, or in any other sexually-related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity; or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent), including the making or posting of non-consensual pornography
  • Prostituting another person
  • Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections (e.g., spoofing)
  • Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity
  • Creating or disseminating synthetic media, including images, videos, or audio representations of individuals doing or saying sexually-related things that never happened, or placing identifiable real people in fictitious pornographic or nude situations without their consent (i.e., Deepfakes)

 

  1. SANCTION RANGES

Sanctions can be assigned outside the ranges below based on aggravating or mitigating circumstances, the cumulative conduct record of the Respondent, or the totality of other relevant circumstances.

  • Sanction Range: A warning through expulsion or termination will generally be considered for the following substantiated conduct:
  • Sex Discrimination
  • Quid Pro Quo Harassment 
  • Hostile Environment Harassment 
  • Sexual Exploitation
  • Retaliation
  • Sanction Range: Suspension through expulsion/termination will generally be considered for the following substantiated conduct:
    • Rape
    • Sexual Assault with an Object 
    • Sodomy
    • Fondling
    • Incest
  • Sanction Range: Probation through expulsion/termination will generally be considered for the following substantiated conduct:
    • Stalking
    • Dating/Domestic Violence 

Where a pattern is found, it can be the basis to enhance sanctions, accordingly.

 

  1. RETALIATION PROHIBITED 

Those who make a complaint or participate in a process under this policy are protected from retaliation. Retaliation is defined as follows: 

  • against any person,
  • by the College, a student, employee, or a person authorized by the College to provide aid, benefit, or service under the College’s education program or activity,
  • for the purpose of interfering with any right or privilege secured by law or this Policy, or
  • because the person has engaged in protected activity, including reporting information, making a Complaint, testifying, assisting, or participating or refusing to participate in any manner in an investigation or Resolution Process under this Policy and related Procedures.


 

1 Relevant factors as set forth in § 106.2 include: (1) the degree to which the conduct affected the Complainant’s ability to access the College’s education program or activity; (2) the type, frequency and duration of the conduct; (3) the parties’ ages, roles within the College’s education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct; (4) the location of the conduct and the context in which the conduct occurred; and (5) other sex-based harassment in the College’s education program or activity.

2 For purposes of this Policy, violence is defined as intentionally or recklessly causing the Complainant physical, emotional, or psychological harm. Legitimate use of violence for self-defense is not chargeable under this Policy because the purpose is safety, not harm. 

3 

4 Reasonable person is an objective standard meaning a person in the Complainant’s shoes (having similar characteristics/demographics to the Complainant). 

5 In the context of stalking, a Complainant is not required to obtain medical or other professional treatment and counseling is not required to show substantial emotional distress. 

6 This offense is not classified under Title IX as “Sex-Based Harassment,” but it is included in this Policy as a tool to address a wider range of behaviors.