The College of New Jersey

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Key Terms


Effective Consent

“Effective Consent” is informed, freely and actively given mutually understandable words or actions which indicate a willingness to participate in mutually agreed upon sexual activity. A person may be unable to give Effective Consent when they are unable to consent due to their age, or because the person is physically helpless, mentally incapacitated, or Incapacitated from alcohol or other drugs.

  • Effective Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
  • Effective Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
  • Effective Consent may be initially given but withdrawn at any time.
  • Effective Consent cannot be given when it is the result of coercion, intimidation, force, or threat of harm.

When Effective Consent is withdrawn or can no longer be given, sexual activity with any party does not necessarily constitute consent to any other sexual act under the influence of drugs and/or alcohol force, or threat of harm must stop immediately.


Incapacitated

“Incapacitated” is being in a state where a person lacks the capacity to understand the fact that the situation is sexual, or cannot understand or make a rational and reasonable judgment about the nature and/or extent of a situation (the “who, what, when, where, why and how” of the sexual interaction). A person who knows or should reasonably know that another person is incapacitated may not engage in sexual activity with that person.

Persons who meet any of the following criteria or conditions are incapacitated:

I.  Sleeping

II. Passed out or otherwise unconscious

III. Under the age of consent or under a certain age in relation to the other party to the sexual activity (both of which are matters of state law)

IV. Due to a disability, or whom do not have the mental capacity to consent.

A person who does not meet any of those criteria or conditions for incapacity may become incapacitated through the use of alcohol or drugs. Such a person’s state of incapacity is a subjective determination that is based on all of the facts available because persons reach incapacitation at different points and as a result of different stimuli.

Alcohol related incapacity results from a level of alcohol ingestion that is more severe than that required to produce the minimum levels of influence, impairment, intoxication, inebriation, or drunkenness.  Factors that can influence a person’s status include gender, body size and composition; tolerance for alcohol and other drugs; amount and type of alcohol or other drugs taken or administered, and the mixture taken; amount of food intake prior to administration; propensity for blacking out; genetics; and time elapsed since the ingestion of the alcohol or drugs.

The effects of alcohol and Drug use often occur along a continuum. For example, alcohol intoxication can result in a broad range of effects, from relaxation and lowered inhibition to euphoria and memory impairment, and to disorientation and incapacitation. Incapacitation due to alcohol or drug use is a state beyond “mere” intoxication or even being drunk. It exists when a person lacks the ability to make or act on a considered decision to engage in sexual activity. Indicators of incapacitation may include inability to communicate, lack of control over physical movements, and/or lack of awareness of circumstances. An incapacitated person can also experience a blackout state during which the person is conscious, but has limited ability to form or retain memories, and may exhibit verbal or non-verbal (e.g., a nod) expressions that under normal circumstances between two individuals acting with full capacity might reasonably be interpreted as conveying consent. Because that person does not have the capacity to consent, despite those expressions, consent is lacking. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication due to alcohol and/or Drug use. The relevant standard that will be applied is whether the Respondent knew, or a sober reasonable person in the same position should have known, that the other party was Incapacitated and therefore could not consent to the sexual activity.

Some medical conditions may also cause incapacitation. Incapacity can result from factors including, but not limited to mental disability, involuntary physical restraint, or the administration of substances.


Physical Sexual Misconduct (Sexual Assault)

Forms of prohibited conduct that would fall under Physical Sexual Misconduct include:

  • Any sexual penetration, however slight, that occurs without the Effective Consent of a person, or that occurs when a person is unable to give consent. Sexual penetration that occurs without the consent of the person can/may include the use of threats, coercion, or physical force. Sexual penetration that occurs when a person is unable to give consent can/may include those instances where the person is unable to consent due to his or her age, or because he or she is physically helpless, mentally incapacitated, or intoxicated from alcohol or other drugs.
  • Any intentional, non-consensual sexual contact with an intimate body part of another, or forcing another to have sexual contact with an intimate body part of oneself or another, with any object or body part, or any disrobing of another without Effective Consent.
  • “Stealthing,” which involves intentionally removing a condom without the other person’s consent during sexual activity.
  • Knowingly transmitting a sexually transmitted disease or infection to another person through sexual activity.

The College’s highest priority is the physical and mental health, safety, and well-being of individual students and the campus community. An element of promoting safety is providing clear, responsible methods of reporting and addressing incidents of sexual misconduct. Therefore, in order to remove potential barriers to reporting sexual misconduct, the Office of Title IX nor the Office of Student Conduct will charge a student with violating any expectations of student conduct regarding alcohol or other drugs if that student reports such conduct within a complaint of possible sexual misconduct. However, adjudication for behavior may be considered in the event that the use/administration of alcohol and/or drugs were used to facilitate the alleged sexual misconduct.


Sexual Harassment

Conduct of a sexual nature or based on gender or sexuality that is severe or pervasive enough to create a Hostile Environment as defined by a reasonable person under similar circumstances. This may include unwanted, unwelcome, or inappropriate sexual or gender-based activities, or comments.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to such conduct is made a condition of the conferral of any benefit, or rejection of such advance, request, or conduct implies that a person will suffer adverse consequences from another person in an express or implied position of authority.

Third Party Harassment. This Policy also applies to third party harassment. Third Party harassment is unwelcome behavior involving any of the Protected Categories referred to above that is not directed at an individual but exists in the workplace/educational environment and interferes with an individual’s ability to do his or her job as an employee or a student. Third Party harassment based upon any of the aforementioned Protected Categories is prohibited by this Policy.


Stalking

Purposefully or knowingly engaging in a Stalking Behavior directed at a specific person that would cause a reasonable person to fear for their safety or the safety of a third person, or suffer other emotional distress. Such Stalking Behavior include but are not limited to alarming conduct, following a specific person or otherwise communicating with a person repeatedly in a manner likely to cause fear for safety, or seriously annoy a reasonable person under similar circumstances.

“Stalking Behavior” means repeatedly maintaining a visual or physical proximity to a person; following, monitoring, observing, surveilling, threatening, or communicating to or about a person directly or through third parties, by any action, method, device, or means; interfering with a person’s property; repeatedly committing harassment against a person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of Communication or threats implied by conduct or a combination thereof directed at or toward a person.


Dating or Domestic Violence 

(As listed under Physical Abuse in the Student Conduct Code)

Any action, statement, or use of force against a person where a previous or current personal, intimate, or special relationship exists (defined by marriage, civil union, dating, family membership, or co-habitation) which includes physical, sexual, emotional, economic, and/or psychological actions or threats of actions that a reasonable person in similar circumstances and with similar identities would find intimidating, terrorizing, or threatening. Such behaviors may include threats of violence to one’s self or one’s family member.

Abusive or harassing conduct directed at a person or group because of actual or perceived membership in a Protected Category (sometimes generally known as “bias” or “hate crimes”) may result in an enhanced sanction.


Invasion Of Privacy

  • Unauthorized making of an explicit or objectively offensive recording (including but not limited to photographs, video, and/or audio) of another person.
  • Unauthorized display, publication, transmission, or other dissemination (including via the Internet) of explicit or objectively offensive recordings (including but not limited to photographs, video and/or audio) of another person. Consent to be recorded does not imply consent for such records to be displayed, published, transmitted, or otherwise disseminated.
  • Unauthorized intrusion upon a person’s private property or communications.
  • Unauthorized appropriation and/or use of someone’s identifying or personal data or documents.
  • An act or acts committed through abuse or exploitation of another person’s sexuality for the purpose of sexual gratification, financial gain, personal benefit or advantage, or other non-legitimate purpose without the Effective Consent of the person.

Retaliation

This policy prohibits retaliation against any Student, faculty, or staff member who in good faith alleges that they were the victim of Sexual Violence, harassment, or discrimination, or provides information in the course of an investigation; or is accused of violating Prohibited Conduct. No Employee or Student who in good faith files a report, provides information for an investigation, or testifies in any proceeding under this policy shall be subjected to adverse employment or educational consequences based upon such involvement or be the subject of retaliation. For information regarding examples of retaliation in the workplace please refer to

The Policy Prohibiting Discrimination in the Workplace/Educational Environment. For information regarding retaliation prohibited by the Student Conduct Code please refer to section II. Definitions, U. Retaliation.


Protected Category

“Protected Category” collectively refers to one or more of the following categories:  age, race, creed, color, national origin, nationality, ancestry, sex/gender (including pregnancy), marital status, civil union status, domestic partnership status, familial status, religion, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for service in the Armed Forces of the United States, or disability.


 

For more information or to review these terms, see TCNJ’s Title IX Policy

Every Choice & Clarifying Consent online programs are due by October 7, 2019Access Program
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