Definitions Applicable in all Matters of Prohibited Conduct Covered by this Policy

  1. Responsible Administrator. The Responsible Administrator refers to the University employee charged with responsibility for the administration of this policy as described in section III. Responsibility for Administration of Policy. The Responsible Administrator will either be the Title IX Coordinator, highest level administrator in the Department of Student Development, or the highest-level administrator in the Office of Human Resources, as appropriate depending on the nature of the complaint.
     
  2. Responsible Employee. Under this Policy, a responsible employee means an employee who has the duty to report sexual harassment to an appropriate school official who has the authority to take action to redress sexual harassment or provide supportive measures to students. Responsible employee includes, but is not limited to, those individuals with any of the following positions or substantially similar positions or job duties, regardless of the specific title the institution may attach to the position:

    1. Title IX coordinator or other coordinator designated to comply with and carry out the institution’s responsibilities related to complaints of sexual harassment.
    2. Residential advisors, while performing the duties of employment by the institution.
    3. Housing directors, coordinators, or deans.
    4. Student life directors, coordinators, or deans.
    5. Athletic directors, coordinators, or deans.
    6. Coaches of any student athletic or academic team or activity.
    7. Faculty and associate faculty, teachers, instructors, or lecturers.
    8. Graduate student instructors, while performing the duties of employment by the institution.
    9. Laboratory directors, coordinators, or principal investigators.
    10. Internship or externship directors or coordinators.
    11. Study abroad program directors or coordinators.
       
  3. Responsible Employee does not include any of the individuals described above who are also any of the following:

    1. A therapist, physician, psychotherapist, member of the clergy, sexual assault counselor, or domestic violence counselor, as defined in the California Evidence Code, when acting in the course and scope of their licensure or ordination in their job at Fresno Pacific University (e.g., the campus Chaplain; not other Fresno Pacific University employees who are members of the clergy outside of their role at Fresno Pacific University).
    2. An individual acting in a professional capacity for which confidentiality is mandated by law, including, but not necessarily limited to, Confidential Resources as defined under this Policy.
       
  4. All employees of the University who receive, in the course of their employment, information that a violation of this Policy has occurred shall promptly report that information to the Title IX Coordinator, the Office of Human Resources, or the Department of Student Development, as appropriate and directed under this Policy. This includes all students who are also employees of the University when the disclosure is made to them in their capacity as an employee. The online reporting form can be accessed at https://fresno.tfaforms.net/39. Any Responsible Employee that is unsure of whether the information they have received triggers their reporting obligation should consult with the Title IX Coordinator, the Office of Human Resources or the Department of Student Development. Exceptions to the duty to report include:
     
    1. University employees who are Confidential Resources (as defined below) who receive, in the course of employment, information that a student has or may have suffered Sex-Based Misconduct, including, but not limited to, Title IX Sexual Harassment.
    2. Employees who learn of a report of Sex-Based Misconduct during the course of participation in a public awareness event such as a “Take Back the Night” or similar event.
       
  5. Confidential Resources. FPU’s confidential Resources (“Confidential Resources”) include the Campus Nurse, mental health counselors (such as On-Site Counselors), and the Campus Chaplain employed within the Office of Spiritual Formation. Confidential Resources are exempt from reporting Prohibited Conduct when working in the course and scope of their licensure or ordination; however, Confidential Resources will inform a person who discloses experiencing possible Prohibited Conduct of the discloser’s right to report directly to the Title IX Officer and how to make a report to the Title IX Officer. When Confidential Resources are not working in the course and scope of their licensure or ordination, they are considered a Responsible Employee and a report must be made if the Confidential Resource has information regarding a possible allegation of harassment, discrimination or sexual misconduct. Any Responsible Employee that is unsure of whether the information they have received triggers their reporting obligation should consult with the Title IX Coordinator, the Office of Human Resources or the Department of Student Development. This exemption does not extend to other areas of mandated reporting obligations under federal, state, or local laws, such as the California Child Abuse and Neglect Reporting Act (CANRA) or Cleary Act reporting requirement as a Campus Security Authority.
     
  6. Preponderance of Evidence. A standard of proof that requires that a fact be found when its occurrence, based on evidence, is more likely than not to be true. This shall be the standard of proof applicable to all factfinding under this Policy.
     
  7. Relevancy of Evidence. Throughout this policy, references are made to relevant evidence, both in the investigation phase or adjudication phase of a matter. Relevant evidence means evidence which has any tendency in reason to prove or disprove a disputed fact, including both inculpatory and exculpatory evidence, that is of consequence in determining whether the allegations of Prohibited Conduct are true or not true under the preponderance of the evidence standard. Relevant evidence includes evidence regarding the credibility of a party or witness. However, notwithstanding the above, the following evidence must be excluded:
     
    1. Evidence which is disclosed to a Confidential Employee, operating within the scope of their work, unless the disclosing party and the Confidential Employee provide voluntary written consent to its use.
    2. Evidence which is protected by a legally recognized privilege unless the appropriate party has provided voluntary written consent to its use. Legally recognized privileges including, but not limited to, the following: the attorney- client privilege, evidence maintained by a physician, psychiatrist, psychologist or other recognized professional or paraprofessional when acting in the professional’s or paraprofessional’s capacity or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party.
    3. Evidence of a complainant’s prior sexual history unless one of the following exceptions applies: (i) if such information is offered to prove that someone other than the respondent committed the conduct alleged by the Title IX Complainant; or (ii) if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
       
  8. Sex-Based Misconduct. Sex-Based Misconduct includes:
     
    1. All forms of discrimination and harassment on the basis of sex, gender, pregnancy or perceived pregnancy, childbirth, breastfeeding or medical conditions related to pregnancy, childbirth or breastfeeding.
    2. California Sexual Harassment, as defined herein.
    3. Sexual Harassment under the California Education Code, as defined herein.
    4. Title IX Sexual Harassment, as defined herein, and other conduct which violates Title IX of the Education Amendments of 1972.
    5. Exposing one’s genitals in a public place for the purpose of sexual gratification.
    6. Other sex-related misconduct involving extortion, exploitation, or other non- consensual conduct including assisting with or being an accessory to Sexual Misconduct.
    7. Attempts to engage in any Sex-Based Misconduct, even if not completed.
       
  9. Sexual Harassment Under the California Education Code. Sexual Harassment means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:
     
    1. Submission to the conduct is explicitly or implicitly made a term or a condition of an individual’s employment, academic status, or progress.
    2. Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.
    3. The conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.
    4. Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.
       
  10. Sexual harassment includes sexual violence, sexual battery, and sexual exploitation as defined herein.
     
  11. Sexual Violence. Sexual violence means physical sexual acts perpetrated against a person without the person’s affirmative consent. Physical sexual acts include both of the following:
     
    1. Rape, defined as penetration, no matter how slight, of the vagina or anus with any part or object, or oral copulation of a sex organ by another person, without consent of the victim.
    2. Sexual battery, defined as the intentional touching of another person’s intimate parts without consent, intentionally causing a person to touch the intimate parts of another without consent, or using a person’s own intimate part to intentionally touch another person’s body without consent.
       
  12. Sexual Exploitation. Sexual exploitation means a person taking sexual advantage of another person for the benefit of anyone other than that person without that person’s consent, including but not limited to, any of the following acts:

    1. The prostituting of another person.
    2. The trafficking of another person, defined as the inducement of a person to perform a commercial sex act, or labor or services, through force, fraud or coercion.
    3. The recording of images, including video or photograph, or audio of another person’s sexual activity or intimate parts, without that person’s consent.
    4. The distribution of images, including video or photograph, or audio of another person’s sexual activity or intimate parts, if the individual distributing the images or audio knows or should have known that the person depicted in the images or audio did not consent to the disclosure.
    5. The viewing of another person’s sexual activity or intimate parts, in a place where that other person would have a reasonable expectation of privacy, without that person’s consent, for the purpose of arousing or gratifying sexual desire.
       
  13. Consent. Consent is affirmative, conscious, voluntary, and revocable. Consent to sexual activity requires of all persons involved an affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person to ensure they have the affirmative consent of the other to engage in the sexual activity. Lack of protest, lack of resistance, or silence does not alone constitute consent. Affirmative consent must be ongoing and can be revoked at any time during sexual activity, even after penetration occurs. If confusion or ambiguity arises as to the willingness of the other individual to proceed, then consent should be re-obtained. The existence of a dating relationship or past sexual relations between the persons involved should never by itself be assumed to be an indicator of consent (nor will subsequent sexual relations or dating relationship alone suffice as evidence of consent to prior conduct). The following provisions apply to the definition of consent:
     
    1. Incapacitation: Incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily incapacitated merely as a result of drinking, using drugs or taking medication.
    2. The Respondent’s belief that the alleged victim consented will not provide a valid defense unless the belief was actual and reasonable. In making this determination, the factfinder will consider all of the facts and circumstances the Respondent knew, or reasonably should have known, at the time. In particular, the Respondent’s belief is not a valid defense where:
      1. The Respondent’s belief arose from the Respondent’s own intoxication or recklessness;
      2. The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the alleged victim affirmatively consented; or
      3. The Respondent knew or a reasonable person should have known that the alleged victim was unable to consent because the alleged victim was incapacitated, in that the alleged victim was: asleep or unconscious; unable to understand the fact, nature or extent of the sexual activity due to the influence of drugs, alcohol or medication; unable to communicate due to a mental or physical condition. Anyone engaging in sexual activity should be aware of the other person’s level of intoxication.
         
  14. Credibility. The credibility of complainants, alleged victims, respondents and witnesses must be evaluated when there are conflicting versions of relevant events related to a matter under investigation required by this Policy. Credibility means whether or not a particular version of events should be believed. In assessing credibility of any person, factors to consider include, but are not necessarily limited to: inherent plausibility of the person’s statement; their demeanor and attitude toward the matter; whether they have motivation to inaccurately state facts; whether or not other persons or evidence corroborate their version of events (such as an eye witness or someone who discussed the events with the person around the time the events took place); the character of the testimony; the extent of the person’s capacity to perceive, remember or communicate regarding the matter; consistent or inconsistent statements made by the same person; admissions of untruthfulness. No one factor is necessarily determinative of credibility. The mere fact that there was no eye witness to an alleged event does not mean a person is not credible, and similarly whether a respondent had previously engaged in similar misconduct does not mean the respondent is not credible as to the current matter being investigated.
     
  15. Preventative and Corrective Measures. Services, accommodations, corrective actions, sanctions, remedies or other measures put in place as a result of final resolution of a complaint of conduct prohibited by this Policy. Possible Preventative and Corrective Measures imposed under this Policy include:
     
    1. Participation in a voluntary, facilitated restorative process including related documentation of the outcome;
    2. Written or verbal apology;
    3. Written or verbal warning, or other counseling memorandum;
    4. Training or other educational requirements, such as an assigned reading, a research or reflective paper, attendance at an educational seminar or program, or similar activity, and the requirement to pay for the cost associated with such activity consistent with law;
    5. A behavioral agreement outlining expectations for behavior and future corrective actions for misconduct;
    6. Assistance from or check-ins with campus safety personnel;
    7. Mandatory or voluntary counseling;
    8. Mentorship, accountability meetings or coaching assignments;
    9. Community service or other volunteer activities;
    10. Fines not to exceed $500.00 per violation, where permitted by law and accreditation standards;
    11. Restitution, which may or may not be monetary (if monetary not to exceed $2,000.00);
    12. Modifications to housing assignments, job position or work assignments (such as a transfer or modification of job duties), or delivery of curriculum or course requirements (such as required courses, independent study, adjusted deadlines, or remote learning);
    13. Disciplinary probation, which may include monitoring of progress, review of behavior, limitations on campus privileges, or other restrictions on participation in University events, extra-curricular programs (such as athletics or leadership programs) or co-curricular activities (such as clubs and organizations) over a set period of time;
    14. Prohibition from living in on-campus housing or from utilizing certain campus facilities;
    15. No-contact directives;
    16. Drug testing and/or drug and alcohol counseling programs;
    17. Temporary or permanent exclusion from attending University events or activities;
    18. Suspension from employment or participation in an academic program, extra-curricular or co-curricular activities;
    19. Expulsion from the University’s academic programs or separation from employment;
    20. Other actions which seek to make a victim whole or which seek to prevent a recurrence of Prohibited Conduct.