Vols ACT Program Definitions

Dating Violence: 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 following factors:

(1) the length of the relationship;

(2) the type of relationship; and

(3) the frequency of interaction between the persons involved in the relationship. For the purpose of this definition, dating violence includes, but it 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.

Domestic Violence: A felony or misdemeanor crime of violence committed by:

(1) a current or former spouse of the victim;

(2) a person with whom the victim shares a child in common;

(3) a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner;

(4) 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; or

(5) 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 occurred.

Sexual Assault: An offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s Uniform Crime Reporting (UCR) program. Per the National Incident-Based Reporting System User Manual from the FBI UCR Program, A sex offense is “any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.”

Rape: The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim. This offense includes the rape of both males and females.

Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.

Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent.

Stalking: Engaging in a course of conduct directed at a specific person that would cause a reasonable person to—

1. Fear for the person’s safety or the safety of others; or
2. Suffer substantial emotional distress.

For the purposes of this definition—

• Course of conduct means two or more acts, including, but not limited to, acts 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 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.

“Consent” is an active agreement to participate in a sexual act. An active agreement is words and/or conduct that communicate a person’s willingness to participate in a sexual act.

• Examples of sexual act(s) include, without limitation: vaginal intercourse; anal intercourse; oral sex; any other intrusion, however slight, of a person’s finger or any object into any other person’s genitals or anus; the intentional touching of a person’s intimate parts (genital area, groin, inner thigh, buttock or breast), the intentional touching of the clothing covering the immediate area of a person’s intimate parts, or the intentional touching of any other person with a person’s own intimate parts, if that intentional touching can be reasonably construed as being for the purpose of sexual gratification.
• Consent can be revoked at any time.

Valid Consent cannot be given if:

• A person is Incapacitated and a Reasonable Person in the same situation as the Respondent would have known that the person is Incapacitated;
• A person is Forced; or
• The sexual penetration of a person by the Respondent would constitute mitigated statutory rape, statutory rape, or aggravated statutory rape under state law, based on the ages of the Respondent and the other person.
• Appendix B of the Title IX Policy explains how the University determines whether Consent was obtained. Persons subject to this Policy are responsible for understanding and conforming their conduct to the standards described in this Section 2 and Appendix B.

“Force (Forced)” means words and/or conduct that, viewed from the perspective of a reasonable person, substantially impair(s) a person’s ability to voluntarily choose whether to take an action or participate in an activity.

Examples of Force include, without limitation:

• Physical force (e.g., hitting, punching, slapping, kicking, restraining, choking, kidnapping, using a weapon, blocking access to an exit);
• Words and/or conduct that would cause a reasonable person to fear:
• Physical force or other harm to the person’s health, safety, or property, or a third person’s health, safety, or property;
• Loss or impairment of an academic benefit, employment benefit, or money;
• Disclosure of sensitive personal information or information that would harm a person’s reputation;
• Disclosure of video, audio, or an image that depicts the person’s nudity or depicts the person engaging in a sexual act(s); or
• Other immediate or future physical, emotional, reputational, financial, or other harm to the person or a third person.

“Incapacitation” means that a person lacks the ability to actively agree to sexual activity because the person is asleep, unconscious, under the influence of an anesthetizing or intoxicating substance such that the person does not have control over their body, is otherwise unaware that sexual activity is occurring, or their mental, physical, or developmental abilities renders them incapable of making a rational informed judgment. Incapacitation is not the same as legal intoxication.

• A person violates this Policy when they engage in sexual activity with another person who is Incapacitated under circumstances in which a reasonable person would have known the other person to be Incapacitated. For evaluating Incapacitation, a “reasonable person” means a sober, objectively reasonable person in the same situation, with ordinary sensitivities, and with similar identities as the Respondent.
• Incapacitation can be voluntary or involuntary. Signs of Incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness of circumstances or surroundings; emotional volatility; combativeness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances.

For evaluating Incapacitation, a “reasonable person” means a sober, objectively reasonable person in the same situation, with ordinary sensitivities, and with similar identities as the Respondent.

Complainant – means an individual who is alleged to be the victim of conduct that could constitute Prohibited Conduct, regardless of whether that person makes a report or seeks action under this Policy.
Respondent – means an individual who has been reported to be the perpetrator of conduct that could constitute Prohibited Conduct.

Trainings for University Officials
Proceedings relating to Prohibited Conduct will be conducted by persons who receive annual training on the issues related to Prohibited Conduct. Title IX Officials, investigators, Title IX Hearing Officers, and any other person who makes decisions in a case involving Title IX Allegations, at a minimum, receive annual training on: (1) the definitions of Prohibited Conduct included in this Policy; (2) the scope of the University’s education program or activity; (3) how to conduct the grievance process outlined in the Policy and Appendix D-1 (including investigations, hearings, appeals, and informal resolution processes); and (4) how to serve impartially (including avoiding conflicts of interest, personal biases, and prejudgment of the facts of a matter). In addition, all investigators will receive training on issues of relevance and drafting an investigative report that fairly summarizes the evidence.

How to File a Formal Complaint
Prohibited Conduct may be reported to any Title IX Official identified in Section 4 of the Policy. Upon receiving a report of Prohibited Conduct, the Title IX Coordinator (or designee) will promptly contact the Complainant to explain the process for filing a Formal Complaint.
A Formal Complaint is a document filed by the Complainant (or, in some circumstances, signed by the Title IX Coordinator) alleging Prohibited Conduct against a Respondent and requesting that the University investigate the allegations.

Two types of Formal Complaints may be filed. The Title IX Coordinator or other Title IX Official can explain to a Complainant the options for Formal Complaints.

First, a Complainant may file a Title IX Prohibited Conduct Complaint in a case involving allegations that a Respondent’s conduct constitutes Sexual Harassment in the University’s education program or activity in the United States as defined in 34 C.F.R. 106.30(a) (“Title IX Allegations”). For Title IX Allegations, the University’s “education program or activity” includes locations, events, or circumstances over which the University exercised substantial control over both the Respondent and the context in which the Sexual Harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the University.

Second, the Complainant may file a Non-Title IX Prohibited Conduct Complaint in a case in which the Prohibited Conduct did not occur in the University’s education program or activity, did not occur in the United States, or is not Sexual Harassment as defined in 34 C.F.R. 106.30(a), but would, if proven, violate the Policy (i.e., allegations of misconduct in a study abroad program or off-campus misconduct committed against another member of the University community).

As soon as practicable after the filing of a Formal Complaint, OED will provide a Notice of Receipt of Formal Complaint to the parties who are known. The Notice of Receipt of Formal Complaint shall include the following information: (1) notice of the process that applies to the allegations; (2) the identities of the parties involved in the incident; (3) the conduct allegedly constituting the violation; (4) the date and location of the incident, if known; (5) a statement that the Respondent is presumed not responsible for the alleged conduct; (6) a statement that a determination regarding responsibility is made at the conclusion of the process; (7) the parties’ right to have an Advisor of their choice, who may be, but is not required to be, an attorney; (8) the parties’ right to inspect and review evidence; and (9) notice that providing false information to a University official is a violation of the Code of Conduct, HR0580.

If a Complainant files a Title IX Prohibited Conduct Complaint, the University must investigate the allegations. Under federal law, the University must dismiss a Title IX Prohibited Conduct Complaint if the conduct alleged in the complaint (i) would not be Sexual Harassment, even if proven; (ii) did not occur in the University’s “education program or activity;” or (iii) did not occur within the United States. However, if the Title IX Prohibited Conduct Complaint is dismissed, the Complainant has the option of filing a Non-Title IX Prohibited Conduct Complaint requesting the University investigate allegations that may, if proven, still violate the Policy.

The University may dismiss, but is not required to dismiss, a Formal Complaint (both Title IX and Non-Title IX) if, at any time during the investigation and hearing: (1) the Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint; (2) the Respondent is no longer employed; or (3) specific circumstances prevent the University from gathering sufficient evidence to reach a determination as to the Respondent’s responsibility.

Right to an Advisor
The Complainant and the Respondent have the right to be assisted by an Advisor during all stages of the Prohibited Conduct investigation and, if applicable, hearing process, including all meetings, investigative interviews, and hearings. The Advisor may be, but is not required to be, an attorney. In general, an Advisor is not permitted to speak for or on behalf of a Complainant or Respondent, appear in lieu of a Complainant or Respondent, participate as a witness, or participate directly in any other manner during any phase of the process, except in a Title IX Hearing. In a Title IX Hearing, the Advisor, and not the party, must ask the other party and any witnesses all relevant questions and follow-up questions If a Complainant or Respondent does not have an Advisor at a Title IX Hearing, the University will provide one (selected by the University) without fee or charge to that party.

Right to a Support Person
The Complainant and the Respondent also have the right to be assisted by a support person during all stages of the Prohibited Conduct investigation, and if applicable hearing process, including all meetings, investigative interviews, and hearings. A support person may be a friend, a family member, or any individual who is not otherwise a potential witness in the Prohibited Conduct investigation. The support person is not permitted to speak for or on behalf of a Complainant or Respondent, appear in lieu of a Complainant or Respondent, participate as a witness, or participate directly in any other manner during any phase of the investigation or grievance process.

Investigations
Within three (3) business days of receiving a Formal Complaint, the Title IX Coordinator will refer the Formal Complaint to an investigator, who will investigate the allegations. In all investigations of Prohibited Conduct, the University must ensure that the burden of proof and the burden of gathering evidence rests on the University and not on the parties. The University may interview and re-interview the Complainant, the Respondent, and/or any other person at any time during the investigation in order to obtain additional and/or clarifying information. The University will provide an equal opportunity for the parties to identify and present witnesses for interview, including fact witnesses and expert witnesses, and present other inculpatory and exculpatory evidence. The University will provide written notice of the date, time, location, participants, and purpose of all investigative interviews and other meetings, with sufficient time to prepare to participate.

At the end of the investigation, the University will prepare an investigative report setting forth a preliminary recommendation as to whether the Respondent shall be held responsible or not. The investigative report will be provided to the parties and the appropriate University administrator in Non-Title IX Prohibited Conduct Cases, and provided to the parties and the Title IX Hearing Officer in Title IX Prohibited Conduct Cases. In Title IX Prohibited Conduct cases, the preliminary recommendation will be removed from the report before it is provided to the Title IX Hearing Officer.

Prior to preparing a written investigative report, the University will provide both parties with an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint. The parties will have ten (10) business days to submit a written response, which the investigator will consider prior to completion of the investigative report. The investigation will generally be completed within sixty-five (65) business days.

The University will send the investigative report to each party and the party’s Advisor. Within ten (10) business days after being sent the reports, each party may make a written response to the investigative report, which will be provided to the other party. A hearing, if required, shall not take place until the ten (10) days to respond has lapsed, even if a response from a party has been received earlier.

TCA Code § 39-17-315 defines Stalking as a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

By TCA, “Course of conduct” means a pattern of conduct composed of a series of two (2) or more separate, noncontinuous acts evidencing a continuity of purpose, including, but not limited to, acts in which the defendant directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to a person, or interferes with a person’s property;

“Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling;

“Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose;

“Unconsented contact” means any contact with another person that is initiated or continued without that person’s consent, or in disregard of that person’s expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:
(A) Following or appearing within the sight of that person;
(B) Approaching or confronting that person in a public place or on private property;
(C) Appearing at that person’s workplace or residence;
(D) Entering onto or remaining on property owned, leased, or occupied by that person;
(E) Contacting that person by telephone;
(F) Sending to that person mail or any electronic communications, including, but not limited to, electronic mail, text messages, or any other type of electronic message sent using the Internet, web sites, or a social media platform; or
(G) Placing an object on, or delivering an object to, property owned, leased, or occupied by that person; and

“Victim” means an individual who is the target of a willful course of conduct involving repeated or continuing harassment.

TCA does not define Sexual Assault specifically but categorizes a number of crimes under Sexual Offenses including:

TCA 39-13-503 defines Rape as unlawful sexual penetration of a victim by the defendant or of the defendant by a victim accompanied by any of the following circumstances:
(1) Force or coercion is used to accomplish the act;
(2) The sexual penetration is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the penetration that the victim did not consent;
(3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or
(4) The sexual penetration is accomplished by fraud.

TCA 39-13-505 defines Sexual battery as unlawful sexual contact with a victim by the defendant or the defendant by a victim accompanied by any of the following circumstances:
(1) Force or coercion is used to accomplish the act;
(2) The sexual contact is accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the contact that the victim did not consent;
(3) The defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or
(4) The sexual contact is accomplished by fraud.

TCA 39-13-506 defines Statutory rape as the unlawful sexual penetration of a victim by the defendant or of the defendant by the victim when:
(1) The victim is at least thirteen but less than fifteen years of age and the defendant is at least four years but less than ten years older than the victim; or
(2) The victim is at least fifteen but less than eighteen years of age and the defendant is more than five but less than ten years older than the victim.

TCA 39-15-302 defines Incest by a person who engages in sexual penetration as defined in § 39-13-501, with a person, knowing the person to be, without regard to legitimacy:
(1) The person’s natural parent, child, grandparent, grandchild, uncle, aunt, nephew, niece, stepparent, stepchild, adoptive parent, adoptive child; or
(2) The person’s brother or sister of the whole or half-blood or by adoption.

Several other offenses are included under TCA Sexual Offenses. For a list of offenses and their definitions, see TCA codes 39-13-501 through 39-13-511.

TCA does not define Domestic Violence specifically as there is no criminal offense code for Domestic Violence. However, TCA 39-13-111 defines Domestic Assault and a domestic abuse victim as the following:

Any person who falls within the following categories:
(1) Adults or minors who are current or former spouses;
(2) Adults or minors who live together or who have lived together;
(3) Adults or minors who are dating or who have dated or who have or had a sexual relationship, but does not include fraternization between two individuals in a business or social context;
(4) Adults or minors related by blood or adoption;
(5) Adults or minors who are related or were formerly related by marriage; or
(6) Adult or minor children of a person in a relationship that is described in subdivisions (1)-(5).

For purposes of this definition, TCA 39-13-101 defines “Assault” as: A person commits assault who:
(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

Per TCA 36-3-601, “Abuse” means inflicting, or attempting to inflict, physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, malicious damage to the personal property of the abused party, including inflicting, or attempting to inflict, physical injury on any animal owned, possessed, leased, kept, or held by an adult or minor, or placing an adult or minor in fear of physical harm to any animal owned, possessed, leased, kept, or held by the adult or minor; (2) “Adult” means any person eighteen (18) years of age or older, or who is otherwise emancipated.

TCA does not define Dating Violence. Anyone in a dating relationship would fall within TCA 39-13-111 for Domestic Assault as seen in section three of the definition.

In Tennessee, Consent with respect to most criminal offenses relating to sexual activity, sexual activity is criminal if:
(1) the activity was accomplished without the consent of the victim and the defendant knows or has reason to know at the time of the activity that the victim did not consent;
(2) force or coercion is used to accomplish the activity;
(3) the defendant knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless; or
(4) the sexual activity is accomplished by fraud.

“Consent” is not explicitly defined in Tennessee statutory law, for purposes of criminal offenses relating to sexual activity.

“Coercion” means a threat of kidnapping, extortion, force, or violence to be performed immediately or in the future. (Tennessee Code Annotated § 39-13-501(1))

“Mentally defective” means that a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of the person’s conduct. (Tennessee Code Annotated § 39-13-501(3))

“Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling the person’s conduct due to the influence of a narcotic, anesthetic or other substance administered to that person without the person’s consent, or due to any other act committed upon that person without the person’s consent. (Tennessee Code Annotated § 39-13-501(4))

“Physically helpless” means that a person is unconscious, asleep or for any other reason physically or verbally unable to communicate unwillingness to do an act. (Tennessee Code Annotated § 39-13-501(5))

With respect to criminal offenses relating to sexual activity with a person under the age of eighteen (18) years of age, consent is irrelevant because Tennessee law deems a minor as incapable of consenting to sexual activity. However, Tennessee law provides a close-in-age exception to that general rule that allows minors who are at least the age of thirteen (13) and less than the age of eighteen (18) to give consent to sexual acts with another person who is less than four (4) years older than the minor.