Addendum B

2020 Title IX Prohibited Conduct Definitions

As stated in the 2024 The Claremont Colleges Sexual Misconduct and Sex-Based Harassment Interim Policy (“2024 TCC SM and SBH Policy”), the 2020 TCC Title IX Policy has been retired and replaced by the 2024 TCC SM and SBH Policy. For conduct alleged to have occurred between August 14, 2020 and July 31, 2024, the 2020 Title IX Resolution Procedures outlined in Addendum A will be used, and the following 2020 Title IX Prohibited Conduct Definitions will be applied. Other conduct of concern that does not fall within the below definitions may be addressed by the appropriate campus policy.

1. Sexual Harassment

Sexual Harassment is conduct on the basis of sex that satisfies one or more of the following:

a) An employee of TCC conditioning the provision of an aid, benefit, or service of the Institution on an individual’s participation in unwelcome sexual conduct (also known as quid pro quo Sexual Harassment).

  • Complainant’s statement that they found the conduct to be unwelcome is sufficient to constitute “unwelcome conduct.”

b) Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to TCC’s Education Programs or Activities.

  • “Unwelcome conduct” depends on a variety of factors and must be evaluated in light of the known circumstances.
  • “Severe, pervasive, and objectively offensive” must be evaluated in light of the known circumstances, and is dependent on the facts in each situation. However, this element must be determined from the perspective of a reasonable person standing in the shoes of the Complainant.

c) Sexual assault (as defined in the Clery Act), or dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).

  • A single instance of any conduct as defined below is sufficient to constitute Sexual Harassment. Any instance of any of the conduct defined below does not need to demonstrate severity, pervasiveness, objective offensiveness, or denial of equal access to education or employment, because denial of equal access is assumed.

Sexual Assault. As defined in the Clery Act (20 USC 1092(f)(6)(A)(v)), Sexual Assault is: an offense that meets the definition of rape, fondling, incest, or statutory rape, as used in the FBI’s Uniform Crime Reporting (UCR) Program. The relevant FBI UCR definitions are as follows:

  • Rape. 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 Complainant.
  • Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the Complainant, including instances where the Complainant is incapable of giving consent because of age or permanent mental incapacity.
  • Incest. Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
  • Statutory Rape. Sexual intercourse with a person who is under the statutory age of consent. In California, the statutory age of consent is 18.

d) Dating Violence. As defined in VAWA (34 USC 12291(a)(10)), Dating Violence is: violence committed by a person:

  • Who is 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 following factors:
    • The length of the relationship;
    • The type of relationship; and,
    • The frequency of interactions between the persons involved in the relationship.

e) Domestic Violence. As defined in VAWA (34 USC 12291(a)(8)), Domestic Violence is: acts that include felony or misdemeanor crimes of violence committed by one of the following:

  • A current or former spouse or intimate partner of the Complainant;
  • A person with whom the Complainant shares a child in common;
  • A person who is cohabitating with or has cohabitated with the Complainant as a spouse or intimate partner;
  • A person similarly situated to a spouse of the Complainant under the domestic or family violence laws of the state of California; or,
  • Any other person whose acts an adult or youth Complainant is protected from under the domestic or family violence laws of the state of California.

The following applies only for the purpose of these 2020 Title IX Prohibited Conduct definitions of dating violence and domestic violence:

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 Hearing Decisionmaker will use all available, relevant evidence to evaluate the assertion, including reasonableness of the defensive actions and which party is the predominant aggressor.

f) Stalking. As defined in VAWA (34 USC 12291(a)(30), Stalking is: engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

  • Fear for their safety or the safety of others; or,
  • Suffer substantial emotional distress.

2. Retaliation

No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or 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 this Policy.

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 Title IX or this Policy, constitutes Retaliation.

Associated Definitions

3. 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 clean 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 iscoerced by a supervisory or disciplinary authority.
    • Force: violence, compulsion, or constraint physically exerted by any means upon o against a person.
    • Coercion: the application of pressure by the Respondent that unreasonably interfere 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.

4. 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.

[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.