Title IX Definitions

For more information on Kapiæolani Community College’s sexual misconduct policies and definitions, go to UH Executive Policy 1.204: Sexual Harassment, Sexual Assault.

Affirmative Consent in relationship to sexual activity is defined in accordance with its plain and common meaning.  With respect to sexual activity, “consent” means affirmative words or actions that show a knowing and voluntary agreement to engage in mutually agreed sexual activity (including pictures/video).  For the purposes of this section, “affirmative consent” means affirmative, conscious, and voluntary agreement by both parties to engage in sexual activity.  Mere assent (an affirmative statement or action) does not constitute consent if it is given by a person who is unable to make a reasonable judgment concerning the nature or harmfulness of the activity because of her or his incapacitating intoxication, unconsciousness, youth, language, intellectual or other disability, or other incapacity; or if the assent is the product of threat, coercion, or fraud.  Past consent does not imply future consent; silence or an absence of resistance does not imply consent.  Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another.  Consent must be ongoing throughout sexual activity and can be withdrawn at any time.

Complainant is the person who is filing a report or complaint of sexual misconduct.

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 victim; and where the existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.  Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse (For the purpose of Clery reporting, dating violence does not include acts covered under the definition of domestic violence.)

Domestic Violence is a felony or misdemeanor crime of violence committed by:  a current or former spouse or intimate partner of the victim, a person with whom the victim shares a child in common, a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, a person similarly situated to a spouse of the victim under the domestic or family violence laws of the local jurisdiction.  Hawaiʻi law on “domestic abuse” includes persons who have or have had a dating relationship.

Indecent Exposure  involves a person intentionally exposing their genitals to another person under circumstances in which the conduct is likely to cause affront.

Respondent is the person accused of sexual misconduct.

Retaliation is defined as adverse actions taken against a person because of their participation in the following types of protected activities:

  1. seeking advice or assistance about a discrimination concern or possible incident of sexual violence;
  2. opposing or filing an informal or formal complaint against conduct reasonably believed to constitute discrimination or sexual violence; or
  3. testifying, assisting, or participating in an investigation or other proceeding related to a complaint of discrimination or sexual violence.

Adverse actions are actions that would dissuade a reasonable person from making or supporting a complaint of discrimination, sexual harassment, sexual assault, domestic violence, dating violence, or stalking.

Examples of adverse actions that might constitute retaliation include a significant change in one’s status, such as suspension, unsatisfactory or unfair evaluations, unfair grades, unfair assignments, firing, failing to promote, reassignment with significantly different responsibility or a decision causing a significant change in benefits, direct or implied threats, coercion, harassment, intimidation, or encouragement of others to retaliate.

Sexual Assault:  Under Hawaiʻi sexual offense laws, a person commits sexual assault, including but not limited to, when the person knowingly or recklessly subjects another person to an act of nonconsensual sexual penetration or sexual contact.  This includes knowingly engaging in the behavior with a person who is unable to give consent due to incapacitation, intellectual disability, and age.  Sexual assault also includes statutory rape, indecent exposure, and voyeurism or trespassing on property to engage in surreptitious surveillance for sexual gratification.  Sexual assault can be committed by men or women and can occur between persons of the same or different sex.

Hawaiʻi law categorizes sexual offenses as first, second, third, or fourth degree sexual assault, which takes into account factors such as severity, context, age of the victim, capacity for giving consent, and whether the acts involved forcible compulsion, lack of consent, threats of property damage, etc.
For the purpose of this policy “incapacitation” means the person’s decision-making ability is impaired such that the person lacks the ability to make a rational, reasonable decision due to an intellectual or other disability, sleep, involuntary physical restraint, alcohol, drugs, or so-called “date-rape” drugs.

Examples of sexual assault include but are not limited to:

  • Acts of sexual intercourse where such an act is accomplished against a person’s consent by means of force or threat of harm.
  • Nonconsensual intercourse by a friend or acquaintance.
  • Sexual assault with an object.
  • Acts of sexual fondling or sexual intercourse where the person is prevented from resisting or is incapable of giving consent because of her or his youth, intellectual or other disability, or is unconscious at the time of the act, and this fact is known or reasonably should be known to the person committing the act.
  • Electronic surveillance, recording, photographing, or transmitting identifiable images of private sexual activity and/or intimate body parts without the knowledge and consent of the parties involved.

Sexual harassment is a form of sex discrimination that is strictly prohibited by this policy, as well as by UH Executive Policy EP 1.202 which prohibits discrimination and harassment based on protected categories, including sex, gender identity or expression, and sexual orientation.

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when

  1. submission to or rejection of the conduct is either an explicit or implicit term or condition of an individual’s employment, education, or participation in a University program, activity, or service;
  2. submission to or rejection of the conduct by an individual is used as a basis in decisions affecting that individual’s employment, education, or participation in a University program, activity, or service; or
  3. when such conduct is unwelcome to the person to whom it is directed or to others directly aware of it, and when such conduct is:
    1. severe or pervasive; and
    2. has the purpose or effect of either:
      1. unreasonably interfering with the employee’s work performance or student’s academic performance, or
      2. creating an intimidating, hostile, or offensive   work or educational environment.

The conduct must be both objectively and subjectively perceived as offensive.  That is, the reporting party must view the conduct as offensive, and a reasonable person with the same fundamental characteristics as the reporting party (e.g., age, race, gender) must also view the conduct as offensive.

The following are examples of behavior that can constitute hostile environment sexual harassment if unwelcome and persistent, pervasive, or severe:

  • sexually offensive jokes or ridicule of a person’s sexuality, sexual orientation or gender identity
  • remarks of a sexual nature about a person’s clothing or body
  • remarks about sexual activity or speculations about previous sexual experiences
  • unnecessary and unwanted touching, patting, hugging, or brushing  against a person’s clothing or body
  • pressure for sexual activity, an element of which may be nonverbal conduct, such as repeated and unwanted staring or sexually suggestive gestures
  • displays of offensive objects or pictures, including  the use of electronic technology to send derogatory, demeaning, threatening, or hostile materials based on sex
  • requests for sexual favors accompanied by direct or implied rewards or threat
  • taking, sending, or sharing photos, videos, or audio recordings of sexual activity without the person’s consent, regardless of whether the sexual activity itself was consensual
  • intimidation, threats of harm, or actual assaults against a person based on their sex, sexual orientation, or gender identity
  • sexual assault, domestic violence, dating violence, stalking

The above list of examples is not all-inclusive; in addition, each situation must be considered in light of the specific facts and circumstances to determine if there has been a violation of this policy.  The determination as to whether behavior is sexual harassment will take into account the totality of the circumstances, including the nature of the behavior and the context in which it occurred.  Harassing conduct often involves a pattern of offensive behavior.  However, a serious incident, such as sexual assault, even if isolated, can be sufficient to establish a hostile environment and a violation of this policy.  Factors considered include the severity or pervasiveness of the conduct; the degree to which the conduct affected the student’s education or the employee’s work environment; the type and duration of the conduct; and the identity of and relationship between the respondent and the student or employee.

Sexual misconduct is a broad term used to encompass a range of behaviors including sexual harassment, sexual assault, domestic violence, dating violence, and stalking. Sexual misconduct can occur between individuals who know each other, have an established relationship, have previously engaged in consensual sexual activity, and between individuals who do not know each other. Sexual misconduct can be committed by persons of any gender identity, and it can occur between people of the same or different sex.

Sexual Violence is a form of sex discrimination and a violation of Title IX of the Education Amendments of 1972.  The term “sexual violence”8 refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the student from having the capacity to give consent).  A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual violence can be carried out by school employees, other students, or third parties.  All such acts of sexual violence are forms of sex discrimination prohibited by Title IX.

Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress.

“Course of conduct” means two or more acts, including, but not limited to, unwelcome acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means (including cyberstalking) follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person’s property.

“Reasonable person” means a reasonable person under similar circumstances and with similar identities to the victim.

“Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

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