Definitions Specific to My School
17 Feb, 2020Definition Specific Categories
Applicable Wisconsin Statutes
In examining allegations of sexual misconduct, stalking, domestic abuse, or other related crimes, it is important to consider the potential that the allegations rise to the level of criminal conduct. The following list of Wisconsin Sexual Assault statutes is not all-inclusive and other conduct not covered under these specific statutes may be considered a criminal offense. Section 940.225 of the Wisconsin Statues created four degrees of sexual assault. The degrees of sexual assault are based upon the amount of force used by the perpetrator and the harm done to the victim. Section 948.02 regards age of the victim. First, second and third degree sexual assaults are felonies; fourth degree sexual assault is a misdemeanor.
Sexual Assault Categories:
First Degree Sexual Assault: A person can be imprisoned not more than 40 years for committing first degree sexual assault. This includes:
· Sexual intercourse or sexual contact without consent which inflicts great bodily harm or pregnancy, or
· Sexual intercourse or sexual contact without consent accomplished by using or threatening to use a dangerous weapon, or
· Sexual intercourse or sexual contact without consent while aided by one of more persons by use of threat of force or violence, or
· Sexual intercourse or sexual contact, with or without consent, with a person under the age of 13.
Second Degree Sexual Assault: A person can be imprisoned not more than 20 years and/or fined not more than $10,000 for committing second degree sexual assault. This includes:
- Sexual intercourse or sexual contact without consent through the use or threat of violence, or
- Sexual intercourse or sexual contact without consent which causes injury, including illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care, or Sexual intercourse or sexual contact with a person known by the perpetrator or be unconscious or mentally ill or under the influence of an intoxicant to a degree which renders that person incapable of appraising the person’s conduct, or
- Sexual intercourse or sexual contact without consent while aided by one or more persons, or
- Sexual intercourse or sexual contact, with or without consent, with a person who has not attained the age of 16 years
Third Degree Sexual Assault: A person can be imprisoned not more than five years or fined not more than $10,000 for committing third degree sexual assault. This includes:
· Sexual intercourse with a person without consent of that person, or
· Sexual contact with intentional penile ejaculation with a person without consent of that person.
Fourth Degree Sexual Assault: A person can be imprisoned not more than nine months in the county jail and/or fined not more than $10,000 for committing fourth degree sexual assault. This includes:
- Having sexual contact with a person without that person's consent. Sexual contact means any of the following: Intentional touching, by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts, if that intentional touching is either for the purpose of sexually degrading or humiliating the complainant, or sexually arousing or gratifying the defendant.
Consent:Southwest Tech defines Consent as follows: the equal approval, given freely, willingly and knowingly of each participant to desired sexual involvement. Consent is an affirmative, conscious decision — indicated clearly by words or actions — to engage in mutually accepted sexual contact. A person compelled to engage in sexual contact by force, threat of force, or coercion has not consented to contact.
Violence Against Women’s Act:
- Domestic Violence: (VAWA definition): A felony or misdemeanor crime of violence committed:
- By a current or former spouse or intimate partner of the victim;
- By a person with whom the victim shares a child in common;
- By a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner;
- By a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred;
- 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 the jurisdiction in which the crime of violence occurred.
- Dating Violence : (VAWA definition): Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.
- 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.
- For the purposes of this definition, dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
- Dating violence does not include acts covered under the definition of domestic violence.
- Any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.
- Stalking: (VAWA Definition): Stalking means engaging in a repeated Course of Conduct directed at a specific person that would cause a Reasonable Person to fear for his/her or others’ safety or to suffer Substantial Emotional Distress. For purposes of this definition.
- Sexual Assault (As defined under Sexual Assault Categories above)
- Course of Conduct means two or more acts, including but not limited to, acts in which the stalker directly, indirectly, or through Third Parties, by any action, method, device, or means, 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 the same Protected Status(es) as the Complainant;
- Substantial Emotional Distress means significant mental suffering or anguish that may, but does not necessarily require medical or other professional treatment or counseling.
- Due Process: Due Process involves the rights and protections offered to a student so that no person is denied her/his legal rights without properly application of the law.
- Family Educational Rights and Privacy Act (FERPA): The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.
- Force: Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcome resistance for the purpose of engaging in unwanted sexual activity.
- Formal Complaint: a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment or sexual discrimination against a respondent and requesting that the school investigate the allegation.
- Gender: Gender means sex, and includes a person’s gender identity and gender expression. Gender expression means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth. Sex includes but is not limited to pregnancy, childbirth, breastfeeding or associated medical condition(s). The sexual orientation and/or gender identity of individuals engaging in sexual activity is not relevant to allegations under this policy. They are Protected Statuses.
- Harassment: Harassment means unwelcome conduct, based on the Complainant’s Protected Status, that is sufficiently severe, persistent or pervasive that its effect, whether or not intended, could be considered by a reasonable person in the shoes of the Complainant, and is in fact considered by the Complainant, as limiting their ability to participate in or benefit from the services, activities or opportunities offered by the College.
- Hostile Environment: Hostile Environments includes any situations in which there is harassing conduct that is sufficiently severe, pervasive and objectively offensive that it alters the conditions of employment or limits, interferes with or denies educational benefits or opportunities, from both a subjective (the alleged victim’s) and an objective (reasonable person’s) viewpoint. The determination of whether an environment is “hostile” must be based upon all the analysis of all factors and circumstances. These factors and circumstances could include the following:
o The frequency of the conduct;
o The nature and severity of the conduct;
o Whether the conduct was physically threatening;
o Whether the conduct was humiliating;
o The effect of the conduct on the alleged victim’s mental or emotional state;
o Whether the conduct was directed at more than one person;
o Whether the conduct arose in the context of other discriminatory conduct;
o Whether the conduct unreasonably interfered with the alleged victim’s educational or work performance. Examples of such conduct may include:
o an attempt to coerce an unwilling person into a sexual relationship;
o to repeatedly subject a person to egregious, unwelcome sexual attention;
o to punish a refusal to comply with a sexual based request;
o to condition a benefit on submitting to sexual advances;
o sexual violence; intimate partner violence;
o stalking; gender-based bullying.
· Incapacitation: Incapacitation is a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also covers a person whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of rape drugs. Possession, use and/or distribution of any of these substances, including Rohypnol, Ketamine, GHB, etc. is strictly prohibited, and administering one of these drugs to another student is a violation of this policy.
· Medical necessity: is a determination made by a health care provider of a student’s choosing.
· Non-Consensual Sexual Contact: Any sexual contact, however slight, upon another person that is without affirmative consent.
· Non-Consensual Sexual Intercourse: Any sexual intercourse, however slight, upon another person that is without affirmative consent.
· Pregnancy and pregnancy-related conditions include pregnancy, childbirth, false pregnancy, termination of pregnancy, breastfeeding, conditions arising in connection with pregnancy and recovery from any of these conditions.
· Pregnancy discrimination includes excluding or treating a student who was or is pregnant or affected by a pregnancy-related condition less favorably than similar individuals not so affected, and includes failure to excuse a student’s absences because of pregnancy or childbirth or to provide other accommodations mandated by law.
· Pregnant student/Birth-parent refers to the student who is or was pregnant. Although the pronoun she and her are used herein, this policy and its pregnancy-related protections apply to all pregnant persons regardless of gender identity or expression.
· Preponderance of Evidence: Preponderance of the Evidence means the greater weight of the evidence; i.e., that the evidence on one side outweighs, preponderates over, or is more than, the evidence on the other side. The Preponderance of the Evidence is the applicable standard for demonstrating facts and reaching conclusions in an investigation conducted pursuant to this policy, and applies to both staff and students.
· Protected Status: Protected Status includes Age, Disability, Gender, Genetic Information, Gender Identity or Expression, Nationality, Marital Status, Race or Ethnicity, Religion, Sexual Orientation, and Veteran or Military Status.
· Remedies: Measures intended to support the complainant in achieving access to educational opportunities once a determination of responsibility has made against the respondent.
· Respondent: The individual against whom a complaint is filed against.
· Retaliation: Retaliation means Adverse Action taken against a Student because s/he has or is believed to have:
o Exercised rights under this policy;
o Reported or opposed conduct which s/he reasonably and in good faith believes is in violation of this policy;
o Assisted or participated in a policy-related investigation/proceeding regardless of whether the Complaint was substantiated; or,
o Assisted someone in reporting or opposing a violation of this policy, or assisted someone in reporting or opposing Retaliation under this policy.
o Retaliation may occur whether or not there is a power or authority differential between the individuals involved.
- Sanctions: Any disciplinary or punitive measures directed at the respondent once a determination of responsibility has been established through the appeal process.
- Sexual Assault Victim’s Advocate Sexual Assault Victim's Advocate refers to third party professionals appointed to support Complainants reporting Sexual Misconduct. They must be certified and have received specialized training to provide advice and assistance, including but not limited to the provision of information about available options in the Complaint, law enforcement, legal, and medical processes, and with emotional and decision making support. Sexual Assault Victim’s Advocates may serve as the Complainant’s Advisor and assist in seeking services. They are committed to maintain the highest possible level of confidentiality permissible under state and federal law in their communications with the persons they assist. Sexual Assault Victim’s Advocates are appointed based on experience and demonstrated ability to effectively provide services to victims/survivors/Complainants.
- Sexual Contact: Sexual Contact includes the following:
o 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;
o any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.
- Sexual Exploitation: Sexual Exploitation occurs when a student takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses. Examples of sexual exploitation include, but are not limited to:
- Invasion of sexual privacy;
- Forcing another student to engage in prostitution or forced sexual activity;
- Non-consensual video or audio-taping of sexual activity;
- Going beyond the boundaries of consent
- Engaging in voyeurism;
- Knowingly transmitting an STI or HIV to another student;
- Exposing one’s genitals in non-consensual circumstances or inducing/forcing another to expose their genitals;
- Sexually-based stalking and/or bullying
· Sexual Harassment: For the purposes of Title IX, Sexual Harassment, means conduct on the basis of sex that satisfies one or more of the following:
o A School employee conditioning education benefits on the participation in unwelcome sexual conduct (i.e., quid pro quo sexual harassment)
o Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to College’s education program or activities
o Conduct involving the following offenses:
- Sexual Assault
- Dating Violence
- Domestic Violence
- Sexual Assault
- Sexual Intercourse: vaginal or anal penetration by a penis, object, tongue or finger, and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.
- Sexual Misconduct: All sexual activity between members of the Southwest Tech community must be based on Affirmative Consent. Engaging in any sexual activity without first obtaining Affirmative Consent to the specific activity is Sexual Misconduct, whether or not the conduct violates any civil or criminal law. Sexual activity includes, but is not limited to, kissing, touching intimate body parts, fondling, intercourse, penetration of any body part, and oral sex. It also includes any unwelcome physical sexual acts, such as unwelcome sexual touching, Sexual Assault, Sexual Battery, Rape, and Dating Violence. When based on Gender, Domestic Violence or Stalking also constitute Sexual Misconduct. Sexual Misconduct may include using physical force, violence, threat, or intimidation, ignoring the objections of the other person, causing the other person’s intoxication or incapacitation through the use of drugs or alcohol, or taking advantage of the other person’s incapacitation (including voluntary intoxication) to engage in sexual activity. Men as well as women can be victims of these forms of Sexual Misconduct. Sexual activity with a minor is never consensual when the Complainant is under 18 years old, because the minor is considered incapable of giving legal consent due to age.
- Sexual Assault is a form of Sexual Misconduct and is an attempt, coupled with the ability, to commit a violent injury on the person of another because of that person’s Gender or sex.
- Sexual Battery is a form of Sexual Misconduct and is any willful and unlawful use of force or violence upon the person of another because of that person’s Gender or sex as well as touching an intimate part of another person against that person’s will and for the purpose of sexual arousal, gratification, or abuse.
- Rape is a form of Sexual Misconduct and is non-consensual sexual intercourse that may also involve the use of threat of force, violence, or immediate and unlawful bodily injury or threats of future retaliation and duress. Any sexual penetration, however slight, is sufficient to constitute Rape. Sexual acts including intercourse are considered non-consensual when a person is incapable of giving consent because s/he is incapacitated from alcohol and/or drugs, is under 18 years old, or if a mental disorder or developmental or physical Disability renders a person incapable of giving consent. The Respondent’s relationship to the person (such as family member, spouse, friend, acquaintance or stranger) is irrelevant. (See complete definition of Affirmative Consent above.)
- Acquaintance Rape is a form of Sexual Misconduct committed by an individual known to the victim. This includes a person the victim may have just met; i.e., at a party, introduced through a friend, or on a social networking website. (See above for definition of Rape.)
- Student: For the purposes of the Title IX / Sexual Assault Grievance Process, an individual who is participating in or attempting to participate in an education program or activity of the Southwest Wisconsin Technical College.
- Stalking: (VAWA Definition): Stalking means engaging in a repeated Course of Conduct directed at a specific person that would cause a Reasonable Person to fear for his/her or others’ safety or to suffer Substantial Emotional Distress. For purposes of this definition:
- Course of Conduct means two or more acts, including but not limited to, acts in which the stalker directly, indirectly, or through Third Parties, by any action, method, device, or means, 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 the same Protected Status(es) as the Complainant;
- Substantial Emotional Distress means significant mental suffering or anguish that may, but does not necessarily require medical or other professional treatment or counseling.
- Supportive Measures: individualized services reasonably available that are non-punitive, non-disciplinary, and not reasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment.
- Title IX Coordinator: Campus authority tasked with complying with Title IX provisions.
- Title IX Investigator: Investigator means the person tasked by a Campus with investigating a Complaint
- Quid Pro Quo: Quid pro quo sexual harassment exists when there are: unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; and submission to or rejection of such conduct results in adverse educational or employment action.
Authority and Jurisdiction
The College will respond when sexual or gender discrimination, sexual harassment or sexual misconduct occurs in a college educational program or activity, on-campus or off-campus, against a person in the United States. Education program or activity includes locations, events, or circumstances over which the College exercised substantial control over both the respondent and the context in which sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. The College’s response begins when the Title IX Coordinator or other official with authority to institute corrective measures receives actual knowledge of a potential infraction.
Public Dissemination of Information
The College will post the following information on its website to allow for public access and review:
- The College’s Title IX Policy
- Training Materials used to train the Title IX Response Team
- Contact information for the Title IX Coordinator
- Information on how to report allegations of gender discrimination and sexual misconduct
Prohibited Behaviors
Upon receipt of actual knowledge or a formal complaint, the College will promptly investigate all allegations of sexual or gender discrimination, including sexual harassment and sexual misconduct. The following examples will serve as a guide for what type of infractions may require investigation:
Gender Discrimination
- Gender Discrimination is defined as the following by Title IX:
o Discrimination or harassment based upon one's gender (sex)
o Unfair treatment, attitudes, or behaviors towards an individual based upon their gender (sex)
o Gender identity discrimination as covered by Title VII
o Disproportionate athletic programs or activities offered to all genders in relationship to the college's enrollment
· Examples of Gender Discrimination
- Gender-based bullying
- Derogatory or sexist remarks
- Gender discrimination in an activity, athletics, program, office, or classroom
- Pregnancy-based discrimination
Sexual Harassment
· Sexual Harassment is defined as the following by Title IX:
o Unwanted sexual behavior, advances, or requests for favors
o Unwelcomed verbal, visual, or physical sexual conduct
o Offensive, severe, and/or frequent remarks about a person's sex
o Harassment of a sexual nature which interferes with an individual's right to an education and participation in a program or activity
· Examples
- Stalking or obscene phone calls, texts, emails, or gestures
- Sexually suggestive jokes, whistles, catcalls, or innuendos
- Inappropriate touching
- Intimidation
Sexual Misconduct
· Sex Violence is defined as the following by Title IX:
o Sexual abuse or assault, battery, or coercion
o Unwanted sexual contact that stops short of rape or completed rape
o Use of force or manipulation of unwanted sexual activity
o Physical acts where a person is incapable of giving consent or is against a person's will
· Examples
o Sexual assault, battery, or coercion
o Attempted or completed rape
o Inappropriate touching
o Physical and/or aggressive sexual advances
o Non-consensual sexual contact
o Non-consensual sexual intercourse
o Sexual Exploitation
- Sexual misconduct (as defined in this policy)
Retaliation
· Retaliation is defined as the following by Title IX:
- A strike back in response to another's action or accusation
- A form of revenge or reaction because of a filed complaint against a person
- Refusal to promote, advance, or accurately support/qualify a person due to a complaint filed
· Examples
o Demotion or prohibiting advancement due to a filed complaint
o Firing, loss of benefits, or the like due to a filed complaint
o Unfair treatment or discrimination due to a filed complaint
Hostile Environment
· Hostile Environment is defined as the following by Title IX:
o A situation of discriminatory or sexual nature that has occurred and created a adverse setting
o An intimidating or offensive environment that causes a person to be fearful
o A setting that denies, limits, or interferes with a person's ability to participate in or benefit from a program, activity, or job
· Examples
- Bullying, abusive or intimidating comments and actions
- Intimidating or offensive comments that alter the conditions of a person's work, classroom, team, or program environment
- Continual offensive comments or surroundings of a discriminatory or sexual nature
Additionally, the following acts are strictly prohibited and are considered Title IX violations when the basis of the conduct is directed at person’s sex or gender:
· Threatening or causing physical harm, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of any person;
· Discrimination, defined as actions that deprive other members of the community of educational or employment access, benefits or opportunities on the basis of gender;
· Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another;
· Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within Southwest Tech community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity (as defined further in the Hazing Policy);
· Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally (that is not speech or conduct otherwise protected by the 1st Amendment).
· Violence between those in an intimate relationship to each other;
· Stalking, as defined in this policy
· Intimidation or harassment of family members, witnesses or associates of the complainant in a Title IX investigation.
Applicable Wisconsin Statutes
In examining allegations of sexual misconduct, it is important to consider the potential that the allegations rise to the level of criminal conduct. The following list of Wisconsin Sexual Assault statutes is not all-inclusive and other conduct not covered under these specific statutes may be considered a criminal offense. Section 940.225 of the Wisconsin Statues created four degrees of sexual assault. The degrees of sexual assault are based upon the amount of force used by the perpetrator and the harm done to the victim. Section 948.02 regards age of the victim. First, second and third degree sexual assaults are felonies; fourth degree sexual assault is a misdemeanor.
Involvement of Law Enforcement and Campus Authorities
Although the College strongly encourages all members of its community to report violations of this policy to law enforcement, it is the victim’s choice whether or not to make such a report if they are over the legal age. Furthermore, victims have the right to decline to notify law enforcement. However, the College will assist any victim with notifying law enforcement if the victim so desires. Fennimore Police Department may also be reached directly by calling (608) 822-3215, in person at 860 Lincoln Ave, Fennimore WI. Additional information about the Fennimore Police department may be found online at: https://www.fennimore.com/city-government/police-department/ .
Reporting Incidents of Domestic Violence, Dating Violence, Sexual Assault and Stalking
If you have been the victim of domestic violence, dating violence, sexual assault, or stalking, you should report the incident promptly to the Title IX Coordinator, Dan ImhoffDirector of Facilities, Safety and Security at 608.822.2401, dimhoff@swtc.edu or Building 500 Room 514. Reports of all domestic violence, dating violence, sexual assault and stalking will automatically be referred to the Title IX Coordinator for investigation regardless of if the complainant choses to pursue criminal charges.