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Universally Applicable Terms & Definitions

AMNESTY

Saint Anselm College encourages the reporting of misconduct and crimes by Complainants and witnesses and recognizes that, sometimes, individuals may hesitate to speak up because they fear that they themselves may be in violation of certain policies, such as underage drinking or use of illicit drugs at the time of the incident. Respondents may hesitate to be forthcoming during the process for the same reasons.

It is in the best interest of the College community for those harmed or who have witnessed harm to speak up, and for all individuals to be forthcoming in an investigation or other process. 

Amnesty in the Complaint Process: The College will provide Parties and witnesses amnesty from minor policy violations, such as underage alcohol consumption or the use of certain illicit drugs, related to the incident. Granting amnesty is a discretionary decision made by the College. Amnesty does not apply to more serious allegations, such as physical abuse of another or illicit drug distribution. 

Amnesty for Student Bystander/Sexual Assault: The Title IX Office believes that bystanders can make a difference. Therefore, where a bystander intervenes or renders assistance to another student who reasonably appears to be incapacitated, the Title IX Office has discretion to provide amnesty from College alcohol policies.

Amnesty for Employees: Sometimes, employees are hesitant to report discrimination, harassment, or retaliation they have experienced for fear of getting in trouble themselves. The College may, at its discretion, offer employee Complainants amnesty from such policy violations (typically more minor policy violations) related to the incident. Amnesty may also be granted to Respondents and witnesses on a case-by-case basis.

 

CLEARLY ERRONEOUS 

This is the standard the College applies when evaluating the merits of an appeal. A finding is “clearly erroneous” when the Appellate Officer is left with the definite and firm conviction that a mistake has been committed.

 

COMPLAINT 

means an oral or written request to the College that objectively can be understood as a request for an investigation and determination about whether discrimination occurred.  

 

COMPLAINANT 

means an individual alleged to have been subjected to discrimination.

 

CONFIDENTIALITY

Exists in the context of laws or professional ethics (including Title IX) that protect certain relationships, including clinical care, mental health providers, and counselors.1 Confidentiality also applies to those designated by the College as Confidential Employees for purposes of reports under this Policy, regardless of legal or ethical protections. 

When a Complainant shares information with a Confidential Employee or a designated Confidential Resource Advisor as defined in NH RSA 188-H, the Confidential Employee may not disclose that information except in the following circumstances: (1) the reporting person gives written consent for its disclosure; (2) there is a concern that the person will likely cause serious physical harm to self or others; or (3) the information concerns conduct involving suspected abuse or neglect of a minor under the age of 18, elders, or persons with disabilities. Non-identifiable information may be shared by Confidential Employees for statistical tracking purposes as required by the Clery Act/Violence Against Women Act (VAWA). Other information may be shared as required by law.

In all cases, Confidential Resources will provide the Complainant with the Title IX Coordinator’s contact information and assist the Complainant in reporting, if desired. 

 

EVIDENTIARY CONSIDERATIONS 

  • Relevant evidence is evidence that may aid a decisionmaker in determining whether alleged conduct occurred.
     
  • Previous disciplinary action of any kind involving the Respondent may not be considered unless there is an allegation of a pattern of misconduct. Such information may also be considered in determining an appropriate sanction upon a determination of responsibility. Barring a pattern allegation, this information is only considered at the sanction stage of the process and is not shared until then.
     
  • Character evidence is unlikely to be relevant unless it is fact evidence or relates to a pattern of conduct.
     
  • Impermissible Evidence - The following types of evidence are impermissible and will not be accessed or considered, except by the College to determine whether one of the exceptions listed below applies. This information will not be disclosed or otherwise used, regardless of relevance:
     
  1. Evidence that is protected under a privilege recognized by federal or state law, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
     
  2. Evidence provided to an employee designated by the College as exempt from internal reporting under this policy, unless the person who made the disclosure or otherwise provided evidence to that employee has voluntarily consented to re-disclosure;
     
  3. A party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless the College obtains that party’s or witness’s voluntary, written consent for use in its resolution procedures; and
     
  4. Evidence that relates to the complainant’s sexual interests or prior sexual conduct, unless evidence about the complainant’s prior sexual conduct is offered to prove that someone other than the respondent committed the alleged conduct or is evidence about specific incidents of the complainant’s prior sexual conduct with the respondent that is offered to prove consent to alleged sex-based harassment. The fact of prior consensual sexual conduct between the parties does not by itself demonstrate or imply the complainant’s consent to other sexual activity or preclude a determination that Prohibited Conduct occurred.

 

PARTIES 

A Complainant and Respondent are, collectively, the Parties to a Complaint. 

 

PREPONDERANCE OF THE CREDIBLE EVIDENCE

This is the standard the College applies when weighing evidence to evaluate whether an allegation is substantiated. It means “more likely than not.” 

 

PRIVACY

Means that information related to a complaint will be shared with a limited number of College employees who “need to know” in order to assist in providing supportive measures or evaluating, investigating, or resolving the Complaint. Information will be shared as necessary with Investigators, Decision-making panels, Evidence Review Facilitators, Appeal Decision-makers, witnesses, the Parties, and the Parties’ Advisors. The circle of people with this knowledge will be kept as tight as possible to preserve the Parties’ rights and privacy, and release is governed by the institution’s unauthorized disclosure policy. 

 

PRIVILEGE2

Exists in the context of laws that protect certain relationships, including attorneys, spouses, and clergy. Privilege is maintained by a provider unless a court orders release or the holder of the privilege (e.g., a client, spouse, parishioner) waives the protections of the privilege. The College treats employees who have the ability to have privileged communications as Confidential Employees. 

The College reserves the right to determine which College officials have a legitimate educational interest in being informed about student-related incidents that fall under this Policy, pursuant to FERPA.

 

REMEDIAL MEASURE 

This is a community-based response to alleged discrimination, which may come in the form of education or other programming, and is intended to clarify expectations and/or remove barriers to reporting discrimination.  

 

REPORT 

means notice to the College of a potential violation of the Nondiscrimination Policy. A report does not automatically trigger an investigation. Instead, upon receiving a report, the College will respond by providing the Complainant with information about grievance procedures and options; supportive measures; and resources available on and off campus.

 

RESOLUTION ADVISOR 

is a person trained by the Title IX Coordinator and available to assist  Complainant or Respondent.

 

RESPONDENT 

means an individual who is alleged to have violated the Nondiscrimination Policy. 

 

SUPPORTIVE MEASURES 

are individualized measures offered to a complainant or respondent as appropriate and as reasonably available, with the purpose to (1) Restore or preserve that party’s access to the College’s education program or activity, including measures that are designed to protect the safety of the parties or the College’s educational environment; or (2) Provide support during the College’s processes for responding to complaints.

Supportive Measures may not unreasonably burden a complainant or respondent; may not be intended for punitive or disciplinary reasons; and must be provided without fee or charge to the complainant or respondent.

 

Terms & Definitions Specific to Title IX

is defined as: 

  • knowing, and
  • voluntary, and
  • clear permission 
  • by word or action 
  • to engage in each form of sexual activity

 For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Consent is evaluated from the perspective of what a reasonable person would conclude are mutually understandable words or actions.

Individuals may perceive and experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity. 

  • Reasonable reciprocation can establish consent. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to be kissed back. 
  • If consent is not clearly provided prior to engaging in the activity, consent may be confirmed by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.
  • Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, sexual activity should cease within a reasonably immediate time. 
  • Silence or the absence of resistance alone should not be interpreted as consent. 
  • Consent to some sexual contact (such as kissing or fondling) cannot be assumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent. Consent on one occasion may not be interpreted to imply consent on a subsequent occasion. 
  • If an individual expresses conditions on their willingness to consent, or limitations on the scope of their consent, those conditions and limitations must be respected.3 
  • The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged misconduct occurred and any similar and previous patterns that may be evidenced. For the purpose of this Policy, a “reasonable person” is a sober person who is exercising sound judgment.

Evidence that relates to the Complainant’s sexual interests or prior sexual conduct is Impermissible Evidence, unless 1) evidence about the Complainant’s prior sexual conduct is offered to prove that someone other than the Respondent committed the alleged conduct, or 2) is evidence about specific incidents of the Complainant’s prior sexual conduct with the Respondent that is offered to prove consent. The fact of prior consensual sexual conduct between the Complainant and Respondent does not by itself demonstrate or imply the Complainant’s consent or preclude a determination that sex-based harassment occurred.

 

FORCE

is the use of physical violence and/or physical imposition to gain sexual access. Sexual activity that is forced is, by definition, non-consensual. Not all non-consensual sexual activity involves force.

Force may include threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” which elicits the response, “Okay, don’t hit me. I’ll do what you want.”). 

Coercion is unreasonable pressure for sexual activity and, if sufficiently severe, can render a person’s consent ineffective. When someone makes clear that they do not want to engage in sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. Coercion is evaluated based on the frequency, intensity, isolation, and duration of the pressure involved. 

 

INCAPACITATION

is a state where a person is incapable of giving consent. An incapacitated person cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent – that is, they cannot understand the “who, what, when, where, why, and how” of their sexual interaction. Incapacity may result from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating substances including but not limited to alcohol or drugs.

Incapacitation is determined through consideration of all relevant indicators of a person’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk. Incapacitation is evaluated from the perspective of a reasonable person under the conditions as they were at the time of the incident in question. 

If the Respondent knew or should have known that the Complainant was physically or mentally incapacitated, there can be no consent. “Should have known” is an objective, reasonable person standard that considers all of the facts and circumstances known to the Respondent at the time of the incident.


 

1 Consistent with applicable laws and regulations, members of the health care team share information as necessary to ensure continuity of care.

2 The presence of an interpreter for the hearing impaired, a foreign language interpreter, or any other interpreter necessary for that communication to take place shall not affect the confidentiality of the communication nor shall it be deemed a waiver of the privilege.

3 Consent in relationships must also be considered in context. When Parties consent to BDSM (bondage, discipline, sadism, masochism) or other forms of kink, non-consent may be shown by the use of a safe word. Resistance, force, violence, or even saying “no” may be part of the kink and thus consensual.