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Laws and Definitions

Laws

Title IX

Title IX of the Education Amendments of 1972 (Title IX) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded educational programs and activities. Under Title IX, sexual assault and sexual harassment are forms of discrimination on the basis of sex. The Department of Education’s Office for Civil Rights, which enforces Title IX, has recently provided detailed guidance on how educational institutions like Illinois Tech must investigate and respond to complaints of sexual assault and sexual harassment. Learn more in Questions and Answers on Title IX and Sexual Violence from the Department of Education

The Clery Act

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics (the Clery Act) is a federal law and accompanying regulations that require colleges and universities to disclose certain timely and annual information about campus crime, as well as security and safety policies. Compliance with the Clery Act is a condition for universities, like Illinois Tech, that participate in the federal student aid program, and is administered by the U.S. Department of Education’s Federal Student Aid Office. As a part of its Clery program, Illinois Tech collects and publishes statistical information on crimes occurring on and around campus, as well as relevant crime and safety information, in its annual crime and safety report which can be found here.

The Violence Against Women Act (VAWA)

The federal Violence Against Women Act amendments and accompanying regulations (VAWA) clarify the duties of universities to investigate and respond to reports of sexual assault, stalking, and dating and domestic violence, and to publish policies and procedures related the handling of these cases. Under VAWA, universities also must provide training to the campus communities on sexual misconduct. Compliance with VAWA is a condition for universities, like Illinois Tech, that participate in the federal student aid program, and is administered by the Department of Education’s Federal Student Aid Office. New VAWA regulations were published by the U.S. Department of Education in October 2014 and became effective July 1, 2015.

Illinois Preventing Sexual Violence in Higher Education Act

On August 21, 2015, Governor Rauner signed the new Illinois Preventing Sexual Violence in Higher Education Act Public Act 099-0426 into law. The law imposed a number of requirements on Illinois higher education institutions related to comprehensive policies, reporting procedures, provision of services, prevention and awareness programming, and responses to sexual violence on campus between students. While the law took effect immediately, most of the Act’s requirements did not apply until on or after August 1, 2016. Many of the Act’s requirements mirror the federal law requirements under Title IX of the Education Amendments of 1972 (Title IX) and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.

Definitions

a. Consent

Consent represents the cornerstone of respectful and healthy intimate relationships. Illinois Tech strongly encourages its community members to communicate--openly, honestly, and clearly--about their actions, wishes, and intentions when it comes to sexual behavior, and to do so before engaging in intimate conduct. It is always a requirement of the individual initiating sexual contact (or undertaking a new type of sexual activity) to ensure that consent is present before acting and is present during sexual activity.

When determining whether consent was present, Illinois Tech will consider whether a reasonable person in the same circumstances should have known whether the other party could or could not consent to the sexual activity. Thus, to have sex with someone who you know to be, or should have known to be incapable of making a rational, reasonable decision about a sexual situation is a violation of this policy (e.g. an intoxicated person or someone with a temporary or permanent mental or emotional impairment).

Consent is not present when an individual does not have capacity to give consent, voluntarily or involuntarily, due to age (younger than 17 in Illinois), physical condition, or disability that impairs the individual’s ability to give consent. Reasons why one could lack capacity to give consent due to a physical condition include, but are not limited to, consumption of drugs or alcohol (voluntarily or involuntarily) or being in a state of unconsciousness, sleep, or another state in which a person is unaware that sexual activity is occurring. To be clear, a person may appear to be giving consent but may not have the capacity to do so; in which case, the apparent consent is not effective. If there is any doubt as to another person’s capacity to give consent, one should assume that the other person does not have the capacity to give consent. Being intoxicated or impaired by drugs or alcohol does not excuse one from responsibility to obtain consent. Being intoxicated or impaired by drugs or alcohol is never an excuse to commit sexual misconduct.

With the foregoing, consent means the existence of clearly understandable words or actions that manifest a knowing, active, voluntary, and present and ongoing agreement to engage in specific sexual or intimate conduct. Consent must be all of the following:

Knowing
Consent must demonstrate that all individuals are in a state of mind to understand, to be aware of, and to agree to the “who” (same partners), “what” (same acts), “where” (same location), “when” (same time), and “how” (the same way and under the same conditions) of sexual or intimate activity.

Active
Consent must be communicated in clearly understandable words or actions that reveal one’s expectations and agreement to engage in specific sexual or intimate activity. This means that silence, passivity, submission, or the lack of verbal or physical resistance (including the lack of a “no”) should not--in and of itself-- be understood as consent. Consent cannot be inferred by an individual’s manner of dress, the giving or acceptance of gifts, the extension or acceptance of an invitation to go to a private room or location, or going on a date.

Voluntary
Consent must be freely given and cannot be the result of forces (violence, physical restraint, or the presence of a weapon), threats (indication of intent to harm, whether direct or indirect), intimidation (extortion, menacing behavior, bullying), coercion (under pressure), or fraud (misrepresentation or material omission about oneself or the present situation in order to gain permission for sexual or intimate activity).

Present and ongoing
Consent must exist at the time of sexual or intimate activity. Consent to previous sexual or intimate activity does not imply consent to later sexual or intimate acts; similarly, consent to one type of sexual or intimate activity does not imply consent to other sexual or intimate acts. Consent may also be withdrawn at any time by the person making known, by articulated word or concrete action, his or her intention to withdraw it, and thereupon, the sexual or intimate activity should immediately cease.

b. Sexual Misconduct

I. Sexual Assault

1. Sexual penetration without consent (e.g. rape)
Any penetration of the sex organs or anus of another person when consent is not present, or any penetration of the mouth of another person with a sex organ when consent is not present. This includes penetration or intrusion, however slight, of the sex organs or anus of another person by an object or any part of the body, specifically including cunnilingus, fellatio, vaginal intercourse, and anal intercourse.

2. Sexual contact without consent (e.g. fondling)
Knowingly touching or fondling a person’s genitals, breasts, thighs, groin, or buttocks, or knowingly touching a person with one’s own genitals, breasts or buttocks, when consent is not present. This includes contact done directly or indirectly through clothing, bodily fluids, or with an object. It also includes causing or inducing a person, when consent is not present, similarly to touch or fondle oneself or someone else.

3. Incest
Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by the laws of the state in which the incident occurred.

4. Statutory Rape
Sexual intercourse with a person who is under the statutory age of consent under the laws of the state in which the incident occurred, which, under the laws of the State of Illinois, the age of consent is 17.

II. Sexual Exploitation

Taking sexual advantage of another person for the benefit of oneself or a third party in any of the following ways or by any of the following means, including via electronic means, methods or devices, includes but not limited to:

  1. Sexual voyeurism or permitting others to witness or observe the sexual or intimate activity of another person without that person’s consent;
  2. Indecent or lewd exposure or inducing others to expose themselves when consent is not present;
  3. Recording any person engaged in sexual or intimate activity in a private space without that person’s consent;
  4. Distributing sexual information, images, or recordings about another person without that person’s consent;
  5. Recruiting, harboring, transporting, providing, or obtaining another person for the purpose of sexual exploitation;
  6. Inducing incapacitation in another person with the intent to engage in sexual conduct, regardless of whether prohibited sexual conduct actually occurs.

III. Stalking

The following elements constitute stalking:

  1. Engaging in a course of conduct, meaning two or more acts, that is directed at a specific person;
  2. In which a perpetrator - directly, indirectly or through third parties--by any action, method, device or means, or including electronic: follows, monitors, observes, surveils, threatens or communicates to or about said person or interferes with said person’s property; and
  3. Such that a reasonable person, meaning one under similar circumstances, and with similar identities to the person to whom in the conduct is directed, would: fear for his or her safety or the safety of others; or suffer substantial emotional distress, meaning significant mental suffering or anguish regardless of whether such anguish does or does not require medical or other professional treatment or counseling.

Provided all of the foregoing elements are satisfied, the following is a non-exhaustive list of examples of acts that could constitute stalking: following a person; being or remaining in close proximity to a person; entering or remaining on or near a person’s property, residence, or place of employment; using electronic devices to monitor, observe, or conduct surveillance of a person; threatening, by word or deed, a person; unwelcome, incessant electronic or telephonic communication or electronic posting to or about a person; giving gifts or objects to or leaving items for a person; and interfering with or damaging a person’s possessions or pets.

iv. Dating/Domestic Violence

Intimidation; harassment; physical abuse, including hitting, slapping, shoving, grabbing, pinching, biting, hair pulling or any act that would constitute a crime of violence under state law; sexual abuse, including rape, attacks on sexual parts of the body, forcing sex after physical violence, treating one in a sexually demeaning manner, coercing or attempting to coerce any sexual contact or behavior without consent; psychological or emotional abuse, including any pattern of behavior undermining an individual’s sense of self-worth or self-esteem through constant criticism, diminishing one’s abilities, name-calling or damaging one’s relationship with one’s children; or interference with personal liberty of any person by someone in an intimate relationship, as described below.

In the case of Dating Violence, the following intimate relationships are covered: persons who have or have had a dating relationship; and persons who have or have had a social relationship of a romantic or intimate nature. The existence of such a relationship is determined based on the reporting party’s statements and with consideration to the length of the relationship, the type of relationship, and the frequency of interaction between persons involved in the relationship.

In the case of Domestic Violence, the following intimate relationships are covered: current and former spouses; current and former domestic partners; intimate partners or dating partners who share or formerly shared a common dwelling; persons who otherwise have a child in common or share a relationship through a child; and any other person protected by the domestic and family laws of the State of Illinois.

Amnesty for Sexual Misconduct Complainants and Witnesses

Illinois Tech encourages reporting of sexual misconduct and seeks to remove any barriers to an individual making a report. To this end, Illinois Tech recognizes that an individual who was drinking or using drugs at the time of such an incident may be hesitant to make a report because of potential consequences for their own conduct. Accordingly, an individual(s) who, in good faith, reports sexual misconduct that was directed at them or another person, either as a Complainant or a third party witness, will not be subject to disciplinary action by Illinois Tech solely for their own personal consumption of alcohol or drugs.

Retaliation

Illinois Tech strictly prohibits any material adverse action against any individual for, in good faith, reporting, providing information, exercising one’s rights or responsibilities under this Section N or the Code of Conduct, or otherwise being involved in the process of responding to, investigating, or addressing allegations of sexual misconduct.

All reasonable measures will be taken to assure that no one involved in any complaint, investigation, or remedy suffers retaliation as a result of the proceedings. To this end, any retaliatory actions, including, but not limited to, intimidation, threats, coercion, denial of benefits or the like, against any such individual for having engaged in good faith in any of the above activities, is prohibited and will be addressed in the most serious way by Illinois Tech. Anyone who suffers retaliation, or is aware of possible retaliation, or has other concerns regarding the response to a complaint of sexual misconduct, should report such concerns to the Title IX Coordinator or the Dean of Students; either party will investigate the matter and make findings so Illinois Tech can take appropriate actions to address such conduct in a fair and impartial manner.

Virginia Foster
Title IX Coordinator
Phone: 312.567.5725
Email: foster@iit.edu