XXIII. Important Definitions

Advisor of Choice: An Advisor of Choice (Advisor) is an individual who provides guidance to the Complainant or Respondent throughout the Resolution Process, including any Agreement-Based Resolution Process, if applicable, as set forth in this Policy. Each Party is entitled to choose and consult with an Advisor, at their own expense, through any stage of the Resolution Process (including the Agreement-Based Resolution Process, when applicable). Parties may be accompanied by an Advisor to any meeting or proceeding to which they are required or are eligible to attend. A Party can select an Advisor at any time in the process. An Advisor can be any person, including a friend, colleague, and may be, but is not required to be, an attorney. Generally, it is not recommended that the selected Advisor be a Party or a witness in the same matter.

A Party does not have to have an Advisor during the Resolution Process.

The Advisor’s role is limited. An Advisor may never speak or write on behalf of a Party or otherwise disrupt any meetings or hearings in any manner. Any restrictions on Advisor participation will be applied equally.

A Party’s Advisor is expected to have reviewed this Policy to understand their role and expectations under this Policy prior to providing support to the Party. The Party’s Home Institution’s Title IX Coordinator and/or the TCC Title IX Administrator may require the Advisor to meet with the Party’s Home Institution’s Title IX Coordinator and/or the TCC Title IX Administrator to ensure the Advisor understands their role and the expectations under this Policy prior to their involvement in any process under this Policy. A Party and their Advisor are encouraged to contact the Party’s Home Institution’s Title IX Coordinator with any questions regarding this Policy and its Resolution Process and procedures.

TCC reserves the right to exclude an Advisor who does not abide by these procedures and expectations set forth in this Policy.

Affirmative Consent: Affirmative Consent means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that they have the affirmative consent of the other or others to engage in the sexual activity. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

• Lack of protest or resistance does not mean consent.
• Silence does not mean consent.
• The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

It shall not be a valid excuse that the Respondent believed that the Complainant affirmatively consented to the sexual activity if the Respondent knew or reasonably should have known that the Complainant was unable to consent to the sexual activity under any of the following circumstances:

• The Complainant was asleep or unconscious.
• The Complainant was incapacitated, as defined below, due to the influence of drugs, alcohol, or medication, so that the Complainant could not understand the fact, nature, or extent of the sexual activity.
• The Complainant was unable to communicate due to a mental or physical condition.

In addition, it shall not be a valid excuse to alleged lack of affirmative consent that the Respondent believed that the Complainant consented to the sexual activity under either of the following circumstances:

• The Respondent’s belief in affirmative consent arose from the intoxication or recklessness of the Respondent. A Respondent’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.
• The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the Complainant affirmatively consented.

Affirmative Consent cannot be given if any of the following are present: Incapacitation, Force, or Coercion.

Consent may not be given by an individual who has not reached the legal age of consent under applicable law, which is the age of 18 in California.

Complainant: A Complainant is any individual, including a TCC Institution student or employee (including applicants for employment, student-employees, unpaid interns, volunteers, contractors), or participant who has reported being, or is alleged to be, impacted by Prohibited Conduct as defined by this Policy, and who was employed, or participating or attempting to participate in a program or activity offered by a TCC Institution at the time of the alleged misconduct. This Policy only applies to employees of TCC Institutions as set forth above.

Complaint: A Complaint means an oral or written request to the Complainant’s Home Institution’s Title IX Coordinator that objectively can be understood as a request for the TCC Institution to investigate and make a determination about alleged Prohibited Conduct under this Policy. A Complaint may be filed with the Complainant’s Home Institution’s Title IX Coordinator in person, by mail, by phone, by electronic means (email or by submitting an online report form via the Home Institution’s Title IX Office website, if applicable), by using the contact information listed in Section II.A, or as otherwise described in this Policy. (Individuals who would like more information about making a Complaint are encouraged to contact their Home Institution’s Title IX Coordinator for additional information).

A Complaint is not required to engage in the Agreement-Based Resolution process as explained in Section XIII.B.

Education Program or Activity: For purposes of this Policy, “Education Program or Activity” refers to all the operations of each TCC Institution, including, but not limited to: in-person and online educational instruction, employment, research activities, extracurricular activities, athletics, residence life, dining services, performances, and community engagement and outreach programs. The term applies to all activity that occurs on campus or on other property owned or occupied by a TCC Institution. It also includes off-campus locations, events, or circumstances over which a TCC Institution exercises substantial control over the Respondent and the context in which the Prohibited Conduct occurs, including Prohibited Conduct occurring in any building owned or controlled by a student organization that is officially recognized by a TCC Institution. It also includes conduct subject to the Respondent’s Home Institution’s disciplinary authority that occurs off-campus and conduct that takes place via TCC Institution sponsored electronic devices, computer and internet networks and digital platforms operated by, or used in the operations of, the TCC Institution or TCC. Conduct that occurs outside of the education program or activity may contribute to a hostile environment within the program or activity and may be covered by this Policy.

Conduct that is not covered by this Policy may still be addressed through other policies and processes, such as those under a TCC Institution’s student codes of conduct, civil rights policies, discrimination and harassment policies, and/or any other applicable policy adopted by a TCC Institution.

Incapacitation: Consent cannot be given by someone who is incapacitated. Incapacitation occurs when someone cannot make rational decisions because they lack the capacity to give knowing and informed consent (e.g., to understand the “who, what, when, where, why, and how” of their sexual activity). Incapacitation is determined through consideration of all relevant indicators of a person’s state and is not synonymous with intoxication, impairment, or being under the influence of drugs, including prescription drugs, or alcohol. This Policy also covers a person whose incapacity results from temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs, or who are sleeping.

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 rational decisions.

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.

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 rational decisions; and/or,
• Capacity to appreciate the nature and the quality of the act.

Reporting Party: An individual who makes a report of alleged Prohibited Conduct, as defined by this Policy. This can be any person, including an individual unassociated with TCC. A Reporting Party is not considered a Complainant for purposes of the Resolution Process under this Policy.

Respondent: A Respondent is an individual, or individuals, who are subject to a TCC Institution’s disciplinary authority, and who has been reported to have engaged in conduct that could constitute Prohibited Conduct, as defined by this Policy. In some situations, an individual does not have to be enrolled or employed by TCC to qualify as a Respondent under this Policy and may be a third-party participant whom a TCC Institution has the ability to take corrective action against. This Policy only applies to employees of TCC Institutions as set forth above.

Responsible Employee: A Responsible Employee is designated by each TCC Institution. Please refer to your Home Institution for their Responsible Employee Policy definition of this term.

Supportive Measures: Individualized measures offered as appropriate, as reasonably available, without unreasonably burdening a Complainant or Respondent, not for punitive or disciplinary reasons, and without fee or charge to the Complainant or Respondent to:

• Restore or preserve that Party’s access to any TCC Institution education program or activity, including measures that are designed to protect the safety of the Parties or the TCC Institution educational or working environment; or.
• Provide support during the TCC Resolution Process, including during an Agreement-Based Resolution process.

The range of Supportive Measures available is listed in Section VI of this Policy.

Support Person: A Support Person is an individual who provides emotional support to a Complainant or Respondent throughout the Resolution Process, including any Agreement-Based Resolution Process, if applicable, as set forth in this Policy. Each Party is entitled to one Support Person to provide them support through every stage of the Resolution Process (including the Agreement-Based Resolution Process. A Party’s Support Person may not be acting as an attorney, nor may they be another Party or witness in the same matter.

The Support Person may never speak or write on behalf of a Party or otherwise disrupt any meetings or hearings in any manner.

A Party’s Support Person is expected to have reviewed this Policy to understand their role and expectations under this Policy prior to providing support to the Party. The Party’s Home Institution’s Title IX Coordinator and/or the TCC Title IX Administrator may require the Support Person to meet with the Party’s Home Institution’s Title IX Coordinator and/or the TCC Title IX Administrator to ensure the Support Person understands their role and the expectations under this Policy prior to their involvement in any process under this Policy. A Party and their Support Person are encouraged to contact the Party’s Home Institution’s Title IX Coordinator with any questions regarding this Policy and its Resolution Process and procedures. TCC reserves the right to exclude a Support Person who does not abide by these procedures.