Definitions for the Title IX Misconduct Policies

Definitions  

The Conservatory reserves the right to update the definitions in this document to create more clarity for our community.  If an updated definition changes any of the listed prohibited conduct, the Conservatory will communicate that to the Parties if relevant to any pending proceeding.  Similarly, the Conservatory may be required to update or change such definitions in response to state and federal laws.  Accordingly, please ensure that you review the Definitions section to make sure you have the most updated definitions.  If you have any questions about the definitions, regardless of whether you are involved in a process under either Policy, please contact the Title IX Coordinator.

Advisor

A person chosen by a party, who may but need not be an attorney, who provides support and advice to the party during any stage of the process set forth in the GBM Policy. 

Complainant

A person who alleges they experienced prohibited conduct by an NEC community member as defined by the GBM Policy.  

Consent and Related Concepts  

The Conservatory defines consent and the related concepts as follows:

Consent

  • Sexual consent is when all parties agree to engage in sexual activity.  Consent should always be mutual, voluntary and given without pressure, intimidation, or fear.
  • Consent must be freely and affirmatively communicated in order to participate in sexual activity or behavior.  It can be expressed either by words or clear, unambiguous actions. It is the responsibility of the person who wants to engage in sexual activity to ensure consent of their partner(s).
  • Consent must be obtained at each step and be present throughout the sexual activity.  A participant can withdraw consent or communicate that they no longer consent to continuing the activity.  If there is confusion as to whether anyone has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion is clearly and mutually resolved.
  • Silence, lack of protest, or lack of resistance does not indicate consent. 
  • Consent is not present if it results from the use of physical force, threat of physical force, intimidation, coercion (see below), incapacitation (see below), or any other factor that would eliminate an individual’s ability to exercise free will to choose whether or not to have sexual contact.
  • A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent.  Even in the context of a relationship, a willingness to engage in sexual activity must be freely and affirmatively communicated each time.

Coercion 

  • Coercion is the use or attempted use of pressure and/or oppressive behavior, including express or implied threats, intimidation, or physical force, which places a person in fear of immediate harm or physical injury or causes a person to engage in unwelcome sexual activity.  A person’s words or conduct cannot amount to coercion unless they wrongfully impair the other’s freedom of will and ability to choose whether or not to engage in sexual activity.  Coercion also includes administering or pressuring another to consume a drug, intoxicant, or similar substance with the intent to impair that person’s ability to consent prior to engaging in sexual activity.  
     

Incapacitation

  • Incapacitation is defined as the inability, temporarily or permanently, to give consent, because an individual is mentally and/or physically helpless, unconscious, or unaware that the sexual activity is occurring.  This may or may not be due to alcohol or other drugs (see below).
  • An individual who is incapacitated cannot consent to sexual activity. 

     

The Impact of Alcohol or Other Drugs on Consent

Alcohol and drugs impair a person’s decision-making capacity, awareness of the consequences, and ability to make informed judgments.  Being intoxicated or impaired by drugs or alcohol is never an excuse for sexual harassment, misconduct, or violence and does not diminish one’s responsibility to obtain consent.

The use of alcohol or drugs can limit a person’s ability to freely and clearly give consent.   Similarly, the use of alcohol or drugs can create confusion over whether or not consent has been freely and clearly sought or given.  It is important 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.

  • Warning signs of incapacitation due to the use of alcohol or other drugs may include, but are not limited to, one or more of the following: slurred speech, vomiting, unsteady gait, combativeness, emotional volatility, and/or sleeping.
  • The perspective of a reasonable person will be the basis for determining whether a Respondent should have been aware of the amount of the ingestion of alcohol or drugs by a Complainant, or of the extent to which the use of alcohol or drugs impacted a Complainant’s ability to give consent. 
  • For example, an individual who is in a blackout may appear to act normally and be giving consent, but may not actually have conscious awareness or the ability to consent to or later recall the events in question.  The extent to which a person in this state affirmatively gives words or actions indicating a willingness to engage in sexual activity (and the person reasonably could not have known of the person’s level of alcohol consumption and/or level of impairment) must be evaluated in determining whether consent has been given.

Educational Program or Activity

Locations, events, or circumstances in which the Conservatory exercises substantial control over the location or context in which the conduct occurs, as well as in any building owned or controlled by a student organization that is officially recognized by the Conservatory.

Formal Complaint

A document submitted by a Complainant alleging that a Respondent engaged in conduct prohibited by the GBM Policy and requesting that the Conservatory investigate the allegation.  In exceptional situations, the Title IX Officer may sign a formal complaint in place of a Complainant.  If the Title IX Officer signs a formal complaint, the Title IX Officer is not a party to a matter and the party who has standing to be a Complainant under the GBM Policy shall receive all requisite rights.  Similarly, the Respondent will receive the name of the Complainant, written notice as described in the Formal Complaint section of the GBM Policy, and all other requisite rights.  

Parties 

The Complainant(s) and the Respondent(s).  

Relevant

As used in the GBM Policy, “relevant” refers to a fact, witness, or other piece of information that a reasonable person could conclude makes a material disputed fact or event more or less likely to be true.   

Respondent  

A member of the NEC community who is reported to have engaged in conduct that is prohibited under the GBM Policy.   

Sanctions

Punitive or educational measures imposed by the Conservatory in response to a determination that a Respondent has violated the GBM Policy or another Conservatory policy. Sanctions may include, but are not limited to: expulsion, termination, suspension, probation, reprimand, warning, restitution, education/counseling requirement; restrictions on participation in a program or activity; loss of privileges; loss of leadership opportunities or positions; housing restriction; and/or restrictions on employment by the Conservatory.  If a Respondent is found to have violated the GBM Policy or other NEC policies, a determination of appropriate sanctions will include consideration of the nature and circumstances of the misconduct; the impact of the misconduct on the complainant and/or on others in the Conservatory community; the disciplinary history of the Respondent; and any other mitigating or aggravating circumstances.   

Supportive Measures 

Non-disciplinary, non-punitive individualized services, offered as appropriate, as reasonably available, and without fee or charge to either the Complainant or the Respondent before or after the filing of a formal complaint or where no formal complaint has been filed.  Supportive measures are designed to restore or preserve equal access to the Conservatory’s educational programs or activities, and they will be designed so as not to unreasonably burden the other party.  Supportive measures may include but are not limited to: counseling; academic accommodations, such as extensions of deadlines or other course-related adjustments; course changes or drops; modifications of work or class schedules; campus escort services; mutual restrictions on contact between the parties; residential accommodations, including but not limited to arranging for new housing, or providing temporary housing options, as appropriate; changes in work locations; leaves of absence; increased security and monitoring of certain areas of the campus; and no trespass notices, among others. Factors to be considered in determining reasonable supportive measure may include the following:

  • the specific need expressed by the party;
  • the burden on the non-requesting party;
  • the severity and/or pervasiveness of the allegations;
  • whether the Parties share the same residence hall, dining hall, class, extracurricular activities, transportation and/or job location; and
  • whether other judicial measures have been taken to protect a party or the parties.