Definitions Related to Sexual Misconduct

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Aiding or Facilitating Sexual Misconduct

Aiding or Facilitating Sexual Misconduct is defined as promoting, aiding, facilitating or encouraging the commission of any behavior prohibited under the College’s Sexual Misconduct policy and procedure.

Aiding or Facilitating Sexual Misconduct is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Aiding or Facilitating Sexual Misconduct under the College’s Sexual Misconduct policy and procedure.

Consent 

a. Consent is informed. Consent consists of an affirmative, conscious decision by each participant to engage in mutually agreed-upon sexual activity. Consent to some form of sexual activity does not imply consent to other forms of sexual activity.

b. Consent is voluntary. It is given without coercion, force, threats, or intimidation; it is a positive cooperation in the act or expression of intent to engage in the act pursuant to an exercise of free will.

c. Consent is given when the person is not impaired or incapacitated. A person cannot consent if s/he is unconscious or coming in and out of consciousness. A lack of “no” does not mean “yes.” A person cannot consent if s/he is under the threat of violence, bodily injury or other forms of coercion, or has a mental disorder, developmental disability, or physical disability that would impair his/her understanding of the act. Consent cannot be given by persons who have not yet reached the legal age of consent in the State of Florida.

d. Incapacitation is the physical and/or mental inability to make informed, rational judgments. States of incapacitation include, but are not limited to, unconsciousness, sleep and blackouts.

e. Where alcohol and/or drugs are involved, incapacitation is distinct from drunkenness or intoxication, and is defined with respect to how the alcohol or other drugs consumed impacts a person’s decision-making capacity, awareness of consequences, and ability to make fully informed judgments. The factors to be considered include whether the accused knew, or a reasonable person in the position of the accused should have known, that the complainant was impaired or incapacitated.

f. In Florida, the term “consent” is statutorily defined as intelligent, knowing, and voluntary consent and does not include coerced submission. Consent shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender. See Florida Statute §784.011(1)(a).

Dating Violence

Dating Violence is violence committed by a person who is or has been in romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

Dating Violence is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Dating Violence under the College’s Sexual Misconduct policy and procedure.

In Florida, the term “dating violence” is statutorily defined as violence between persons who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:

  1. A dating relationship must have existed within the past 6 months;
  2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and
  3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.

Florida law enforcement agencies will utilize this definition in determining whether to pursue criminal Dating Violence charges. See Florida Statute 784.046.

Domestic Violence

Domestic Violence is defined as felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, or by a person with whom the victim shares a child in common, or by a person who is cohabitating with or has cohabitated with the victim as a spouse, or by a person similarly situated to a spouse of the victim under the domestic or family violence laws of Florida, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of Florida. Domestic violence is not tolerated by the College.

Domestic Violence is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Domestic Violence under the College’s Sexual Misconduct policy and procedure.

In Florida, the term “Domestic Violence” is statutorily defined as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common, regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Florida law enforcement agencies will utilize this definition in determining whether to pursue criminal Domestic Violence charges. See Florida Statute 741.28.

Gender-Based Harassment

Gender-Based Harassment is unwelcome conduct of a non-sexual nature based upon an individual’s actual or perceived sex, including conduct based on an individual’s sexual orientation, gender identity, gender expression, and nonconformity with gender stereotypes.

Gender-Based Harassment that creates a Hostile Environment is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Gender-Based Harassment under the College’s Sexual Misconduct policy and procedure.

Hostile Environment

A Hostile Environment exists when conduct is sufficiently serious to deny or limit an individual’s ability to participate in or benefit from the College’s programs or activities. A hostile environment can be created by anyone involved in a College’s program or activity (e.g., administrators, faculty members, students, and campus visitors).

In determining whether conduct has created or evinced a Hostile Environment, the College considers the conduct in question from both a subjective and objective perspective. It will be necessary, but not enough, that the conduct was unwelcome to the individual who was harassed. But the College will also need to find that a reasonable person in the individual’s position would have perceived the conduct as undesirable or offensive in order for that conduct to create or contribute to a Hostile Environment.

To make the ultimate determination of whether a Hostile Environment exists for an individual or individuals, the College considers a variety of factors related to the severity, persistence, or pervasiveness of the conduct including: (1) the type, frequency, and duration of the conduct; (2) the identity and relationships of persons involved; (3) the number of individuals involved; (4) the location of the conduct and the context in which it occurred; and, (5) the degree to which the conduct affected one or more student’s education.

The more severe the conduct, the less need there is to show a repetitive series of incidents to find a Hostile Environment. Indeed, a single instance of Sexual Violence (defined below) may be sufficient to create a Hostile Environment. Likewise, a series of incidents may be sufficient even if the conduct is not particularly severe.

First Amendment Considerations - This procedure does not impair the exercise of rights protected under the First Amendment; rather, it prohibits only conduct that creates a Hostile Environment. In this way, the College applies and enforces this procedure in a manner that respects the First Amendment rights of students, faculty, and others.

Responsible College Employee

While every employee strives to perform their respective duties in a responsible manner, the term “Responsible Employee” is a special designation under Title IX. The Department of Education defines Responsible Employee as: (1) any employee who has the authority to take action to redress sexual or gender-based harassment or violence; or (2) who has been given the duty of reporting such incidents to other college officials; or (3) whom a student could reasonably believe has this authority or duty.

Most employees at Eastern Florida State College are designated as Responsible Employees. As such, they must report any known information about Sexual Misconduct to the individuals identified above, or to their supervisor, in a timely manner (within 24 hours). For more information, please review “Responsible Employees at EFSC.”

Retaliation

Retaliation is defined as taking adverse action against an individual making a report under the College’s Sexual Misconduct policy and procedure or against any person cooperating or participating in the investigation of a report or the enforcement of any interim measures or sanctions under this procedure. Retaliation includes intimidation, threats, harassment, and other adverse action including adverse job action and adverse academic action against any such complainant or third party.

Retaliation is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Retaliation under the College’s Sexual Misconduct policy and procedure.

Sexual Exploitation

Sexual Exploitation occurs when a person takes advantage of the sexuality of another person without consent or in a manner that goes beyond the boundaries of consensual sexual activity without the knowledge of the other individual for any purpose, including sexual gratification, financial gain, personal benefit, or any other non-legitimate purpose. Examples of behavior that could rise to the level of Sexual Exploitation include:

  • Viewing another person’s sexual activity, intimate body parts, or nakedness in a place where that person would have a reasonable expectation of privacy, without the consent of all parties involved;
  • Recording, distributing, publishing, or streaming images (e.g. video, photograph) or audio of another person’s sexual activity, intimate body parts, or nakedness without that person’s consent;
  • Prostituting another person;
  • Exposing one’s intimate body parts in unwelcome or non-consensual circumstances, or inducing another person to so expose;
  • Knowingly exposing another individual to a sexually transmitted infection or disease; and
  • Inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity.

Sexual Exploitation is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Sexual Exploitation under the College’s Sexual Misconduct policy and procedure.

Sexual Harassment

Sexual Harassment is defined as unwelcome conduct of a sexual nature, including but not limited to unwelcome sexual advances, requests for sexual favors, other verbal, nonverbal, visual, or physical conduct of a sexual nature, such as acts of Sexual Violence (defined below), or other offensive behavior directed toward an individual because of or on account of the individual’s sex or sexual orientation, whether by a person of the same or opposite gender, when either:

a. Submission to, rejection, or toleration of such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, education, or participation in a College program or activity, or is used as a basis or factor in decisions affecting an individual’s employment, education, or participation in a College program or activity (“Quid Pro Quo Sexual Harassment”); or
b. Such conduct creates a Hostile Environment (defined term).

Sexual Harassment may include incidents between any members of the College community, including faculty and other academic appointees, staff, coaches, residents and interns, students, student employees (when acting within the course and scope of employment), and non-student or non-employee participants in College programs, such as vendors, contractors, visitors, and patients. Sexual Harassment may occur in hierarchical relationships or between peers, or between persons of the same sex or opposite sex.

Sexual Harassment may occur in many forms. When determining whether alleged conduct constitutes Sexual Harassment, the conduct will be evaluated based upon the standard of a reasonable person in the position of the reporting party, taking into consideration the context and circumstances in which the conduct occurred. Examples of behavior that might be considered Sexual Harassment include, but are not limited to:

  • Threats, either directly or by implication, of adverse employment or academic action if sexual favors are not granted or punishing, either directly or by implication, for refusing to tolerate harassment, for refusing to submit to sexual activity, or for reporting harassment;
  • Promising favorable treatment or continued employment in return for sexual favors;
  • Change of academic or employment responsibilities (increase in difficulty or decrease of responsibility) based on sex or gender-related status;
  • Unwanted, unnecessary or objectively inappropriate physical contact or suggestive body language, such as touching, patting, pinching, hugging, kissing, or brushing against an individual’s body, especially after being told to such behavior was unwanted, unnecessary or inappropriate;
  • Any act of Sexual Violence (defined term);
  • Physical coercion or pressure of an individual to engage in sexual activity or punishment for a refusal to respond or comply with sexual advances;
  • Display or distribution of pornographic material or sexual explicit drawings, pictures, or written materials;
  • Sexual rumors or ratings of sexual activity/performance or the circulation, display, or creation of e-mails or websites of a sexual nature;
  • Excessively offensive remarks, including unwelcome graphic or suggestive comments about an individual’s body, appearance or dress;
  • Jokes and humor about sex or gender-specific traits;
  • Inappropriate use of sexually explicit or offensive language or derogatory language directed at another person’s sexuality, gender, gender identity, sexual orientation or gender expression;
  • Insults and threats based on sex, gender, gender identity, sexual orientation or gender expression;
  • The display in the workplace of sexually suggestive objects or pictures which create an intimidating or Hostile Environment;
  • The display or circulation of written materials or pictures degrading to an individual(s) or gender group where such display is not directly related to an educational/pedagogical, artistic, or work goal;
  • Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping. Harassment for exhibiting what is perceived as a stereotypical characteristic for one’s sex, or for failing to conform to stereotypical notions of masculinity and femininity, regardless of actual or perceived gender related status of the harasser or her/his/their target;
  • Abusive, disruptive or harassing behavior, whether verbal or physical, which endangers another's mental or physical health, including but not limited to threats, acts of violence, or assault based on gender related status and/or in the context of intimate partner violence;
  • Other unwelcome and unwanted conduct of a sexual nature, such as leering, name calling, suggestive comments and sexual propositions or innuendos and other oral, written or electronic communications of a sexual nature that an individual communicates is unwanted and unwelcome.

Sexual Harassment in any form is prohibited by the College, and the above definition and examples will be used in determining whether a responding party is responsible for committing Sexual Harassment under the College’s Sexual Misconduct policy and procedure; with the understanding that while the above examples are illustrative, the list is not exhaustive.

See the EFSC Procedures Manual Section 800.10(Q)(1).

Sexual Misconduct

Broad term that includes sexual or gender-based harassment, sexual violence, dating violence, domestic violence, stalking, sexual exploitation, retaliation, and aiding or facilitating. See the EFSC Procedures Manual Section 800.10.

Sexual Violence

Sexual Violence is defined as physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g. due to the person’s age or use of drugs or alcohol, or because of an intellectual or another disability that prevents the person from having the capacity to give consent). A number of different acts may fall under the category of Sexual Violence, including:

a. Sexual Assault
Sexual Assault is defined to include actual or attempted:

Non-Consensual Sexual Contact: Any intentional sexual touching, however slight, with any object, by a person upon another person that is without consent and/or by force. Sexual contact includes intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; or any other intentional bodily contact in a sexual manner; or

Non-Consensual Sexual Intercourse: Any sexual intercourse, however slight, with any object, by a person upon another person that is without consent and/or by force. Intercourse includes vaginal or anal penetration by a penis, object, tongue, or finger, and oral copulation (mouth to genital contact), no matter how slight the penetration or contact.

Sexual Assault is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Sexual Assault under the College’s Sexual Misconduct policy and procedure.

b. Sexual Coercion
Sexual Coercion is the improper use of unreasonable and persistent pressure to compel another person to initiate or continue sexual activity against a person’s will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail. Coercion may be emotional, intellectual, psychological, or moral. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another person’s freedom of will and ability to choose whether or not to engage in sexual activity.

Sexual Coercion is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Sexual Coercion under the College’s Sexual Misconduct policy and procedure.

c. Force
Force is the use or threat of physical violence or intimidation to overcome a person’s freedom of will to choose whether or not to participate in sexual activity.

Force is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Force under the College’s Sexual Misconduct policy and procedure.

d. Inducing Incapacitation for Sexual Purposes
Using drugs, alcohol, or other means with the intent to affect, or having an actual effect on, the ability of a person to consent or refuse to consent to sexual contact.

Inducing Incapacitation for Sexual Purposes is prohibited by the College, and the above definition will be used in determining whether a responding party is responsible for committing Inducing Incapacitation for Sexual Purposes under the College’s Sexual Misconduct policy and procedure.

e. Sexual Battery
In the state of Florida, Sexual Assault is legally referred to as “sexual battery” and law enforcement and the court system will utilize this definition in determining whether to pursue criminal charges. Florida Statute 794.011 defines sexual battery as “any oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

Stalking 

Stalking is defined as engaging in a repetitive course of conduct (e.g. repeatedly following, harassing, threatening, or intimidating another by telephone, mail, electronic communication, social media, or any other action, device, or method) directed at a specific person that would cause a reasonable person to (a) fear for his or her safety or the safety of others; or (b) suffer substantial emotional distress.

The College also considers Stalking to include the concept of Cyber-Stalking, a particular form of Stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used to pursue, harass, or to make unwelcome contact with another person in an unsolicited fashion.

Stalking and Cyber-Stalking are prohibited by the College, and the above definitions will be used in determining whether a responding party is responsible for committing Stalking under the College’s Sexual Misconduct policy and procedure. Stalking in Florida is defined as the willful, malicious and repeated following or harassing of 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; or an aggravated stalking, which means the willful, malicious and repeated following or harassing another with credible threats with the intent to place that person in reasonable fear of death or bodily injury; or willfully, maliciously, repeatedly following or harassing a minor under age 16; or after injunction for protection or any court-imposed prohibition of conduct, knowingly, willfully, maliciously and repeatedly follows or harasses another person.

Sexual Cyberharassment in Florida means to publish a sexually explicit image of a person that contains or conveys the personal identification information of the depicted person to an Internet website without the depicted person’s consent, for no legitimate purpose, with the intent of causing substantial emotional distress to the depicted person.

Florida law enforcement agencies will utilize these definitions in determining whether to pursue criminal Stalking and/or Sexual Cyberharassment charges. See Florida Statutes 784.048 and 784.049.

Unwelcome Conduct

Conduct is considered unwelcome if a person did not request or invite it and considered the conduct to be undesirable or offensive. Unwelcome conduct may take various forms, including name-calling, graphic or written statements (including the use of cell phones or the Internet), or other conduct that may be physically threatening, harmful, or humiliating. Unwelcome conduct does not have to include intent to harm, be directed at a specific target, or involve repeated incidents. Unwelcome conduct can involve persons of the same or opposite sex. Participation in the conduct or the failure to complain does not always mean that the conduct was welcome. The fact that a person may have welcomed some conduct does not necessarily mean that the person welcomed other conduct. Also, the fact that a person requested or invited conduct on one occasion does not mean that the conduct is welcome on a subsequent occasion.