What is Title IX?
Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex. All recipients of federal financial assistance must comply with the Title IX implementing regulations. Title IX requires all recipients to have policies and procedures in place to respond to formal complaints of sexual misconduct that happen on-campus or during campus-sponsored events, which occur within the United States.
Individuals are encouraged to report any suspected violation of this policy as soon as possible in order to maximize the University’s ability to respond promptly and effectively. Person who want to Report may do so without committing to any formal course of action and by reporting, are offered access to supportive measures. A Formal Complaint is required if the harmed party wishes to have the University informally resolve the complaint or to initiate an investigation and resolution. Reports and Formal Complaints may be made at any time without regard to how much time has elapsed since the incident(s) in question.
If the Respondent is no longer a student or employee at the time of the Report or Formal Complaint, the University may not be able to take disciplinary action against the Respondent, but it will still seek to meet its Title IX or other legal obligations by offering supportive measures for the Complainant.
For Title IX to apply, the incident must be reported while the Parties are all associated property owned or controlled by the University, in the United States. Additionally, during the time the misconduct is reported to have occurred, the University must have had substantial control of the Respondent and the context of the misconduct.
Sexual Misconduct at Wilmington University and Title IX
This policy governs Prohibited Conduct that constitutes sex-based harassment and/or sex-based discrimination, however, the government defines “sexual harassment” differently in certain settings. Additionally, this policy covers behaviors that fall outside of the jurisdiction required for response by Title IX. The University will determine whether an allegation should proceed utilizing the grievance processes mandated by Title IX or the University’s grievance process for non-Title IX Sexual Misconduct, based on the constellation of facts and circumstances surrounding the report or Complaint and the following factors:
- applicable law
- what is reported to have occurred
- the status of the Complainant as student, employee, or third-party
- the status of the Respondent as student, employee or third-party
- the context in which the harassing behavior is reported to have occurred
- whether or not the reported behavior occurred within the United States; and/or
- whether there are continuing effects of such reported behavior on campus or within the University’s educational programs or associated activities.
The Title IX Coordinator is the University official designated to evaluate reports to determine which law(s) attach, what threshold each law holds under the various laws, and which grievance process to utilize to resolve such reported behavior.
As outlined above, the University prohibits behaviors that fall outside the scope of conduct prohibited by Title IX. If a report constitutes behavior as described below, the University will determine which grievance process to utilize to resolve the Complaint.
For purposes of this policy, all of the following definitions constitute conduct to be “on the basis of sex.” The University will treat attempts to commit any Sexual Misconduct as if those attempts had been completed.
Definitions of Prohibited Conduct
Quid Pro Quo Sexual Harassment
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submission to or rejection of such conduct is made implicitly or explicitly a term or condition of instruction, employment, or participation in any University activity or benefit; or
- Submission to or rejection of these behaviors by an individual is used as a basis for evaluation in making academic or personnel decisions.
To reach the threshold for a claim under Title IX, the person conditioning the provision of the aid, benefit, or service must be an employee.1
Hostile Environment Sexual Harassment
Any unwelcome sexual advance, request for sexual favors, or other unwelcome verbal, electronic or physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance; i.e. it is sufficiently serious, pervasive or persistent as to create an intimidating, hostile, humiliating, demeaning, or sexually offensive working, academic, or social environment under both a subjective and an objective standard.
Gender-based harassment is a form of discrimination that includes verbal, written, or physical behavior, directed at someone, or against a particular group, because of that person’s or group’s sex, gender identity, actual or perceived sexual orientation, or based on gender stereotypes, when that behavior is unwelcome and has the purpose or effect of substantially interfering with the individual’s work or educational performance by creating an intimidating, hostile, or demeaning environment for employment, education or associate activities of the University.
Such conduct does not need to be directed at or to a specific individual in order to constitute sexual harassment but may consist of generalized unwelcome and inappropriate behaviors or communications based on sex, gender identity, actual or perceived sexual orientation, or gender stereotypes. Determination of whether alleged conduct constitutes sexual harassment requires consideration of all the circumstances, including the context in which the alleged incidents occurred.
To reach the threshold for a claim under Title IX, the conduct must be determined to be unwelcome conduct of a sexual nature determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s education program or activity as well as meet the required jurisdictional elements.
An evaluation of when an offense meets the definition for Title IX will be determined by the Title IX Coordinator based on the constellation of facts and circumstances surrounding the report or Complaint.
Non-Consensual Sexual Penetration
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.
Non-Consensual Sexual Contact
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. Private body parts for purposes of this Policy are breast, buttocks, and groin.2
For purposes of this Policy, incest means sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law. In Delaware, this includes sexual contact between persons who are brothers and sisters, parents, and children, including stepparents, stepchildren, and adopted persons, as well as aunts/uncles with nieces/nephews and between grandparents and grandchildren.3
b. Statutory Rape
Sexual intercourse with a person who is under the statutory age of consent, which in Delaware is 16 years of age.4
A felony or misdemeanor crime of violence committed
- by a current or former spouse or intimate partner of the victim.
- by a person with whom the victim shares a child in common.
- by a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner.
- by 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;
- by 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 of violence occurred.
According to Section 16 of title 18 of the United States Code, the term “crime of violence” means
- an offense under Delaware State law or New Jersey state law (depending on where the incident is reported to have occurred) that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
- any other offense that is a felony in Delaware or New Jersey (depending on where the incident is reported to have occurred) and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Domestic violence5, as defined by Title IX, is considered relationship violence and must be “on the basis of sex.” For purposes of this Policy, Domestic Violence does not include acts that meet the definition of domestic violence under Delaware and New Jersey laws that are based solely on cohabitation (e.g. roommates) or family relationship (e.g. parent/child). While non-relationship violence would not be addressed using this policy, it could still be counted for purposes of Clery Act reporting and may be addressed under other University policies or grievance procedures. If you need information on how to obtain a Protection from Abuse Order in the State of Delaware, please visit https://courts.delaware.gov/family/pfa/index.aspx. If you need information on how to obtain a Protection from Abuse Order in New Jersey, visit https://www.njsp.org/division/operations/domestic-violence-info.shtml
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 length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.6
Stalking7 is defined as engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others; or 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.
To reach the threshold for a claim under Title IX, the stalking behavior must be determined to be based on sex. Non-sex-based stalking complaints will be resolved using this policy’s definitions but under the Non-Title IX Resolution Procedures by status of the Respondent as Student or Employee.
Any act whereby one person violates the sexual privacy of another or takes unjust or abusive sexual advantage of another who has not provided consent, and that does not constitute another offense as defined above. Examples may include acts such as recording, photographing, streaming or otherwise transmitting, viewing or distributing intimate or sexual images or sexual information without the knowledge and consent of all Parties involved; voyeurism (i.e., spying on others who are in intimate or sexual situations), knowingly transmitting a sexually transmitted infection to another, or facilitation the sexual harm/abuse of another person. Sexual exploitation, when it does not in and of itself constitute sexual harassment, will be resolved using the institution’s non-Title IX grievance process.
Retaliation is any attempt to seek retribution against an individual or group of individuals involved in making a good faith report, filing a Complaint, participating in a disciplinary process, or opposing in a reasonable manner an action believed to constitute a violation of this policy. Retaliation can take many forms, including abuse or violence, threats, coercion, and intimidation. Actions in response to a good faith report or response under this policy are considered retaliatory if they have a materially adverse effect on the working, academic or University controlled living environment of an individual or if they hinder or prevent the individual from effectively carrying out their University responsibilities. Any individual or group of individuals can engage in retaliation and will be held accountable under this policy.
Allegations of Retaliation will proceed under Student Conduct or the Title VII policy depending on the status of the Respondent as student or employee.
Definition of Consent
Voluntary, informed, uncoerced agreement through words and/or actions freely given, which a reasonable person would interpret as a willingness to participate in mutually agreed-upon sexual acts. Consensual sexual activity happens when each partner willingly and affirmatively chooses to participate.
Indications that consent is not present include:
- when physical force is used or there is a reasonable belief of the threat of physical force, including when one person overcomes the physical limitations of another person.
- when coercion is present. Coercion means the improper use of pressure to compel another individual to initiate or continue sexual activity against the individual’s will. Coercion may include intimidation, manipulation, and/or blackmail. Words or conduct may constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether to engage in sexual activity.
- when a person is incapable of making an intentional decision to participate in a sexual act, which could include instances in which the person is in a state of incapacitation, which could be permanent or temporary. Evaluations of capacity will be viewed in hindsight using a reasonable person standard.
Important points regarding consent include:
- Consent to one act does not constitute consent to another act.
- Consent on a prior occasion does not constitute consent on a subsequent occasion.
- The existence of a prior or current relationship does not, in itself, constitute consent.
- Consent can be withdrawn or modified at any time.
- Consent is not implicit in a person’s manner of dress.
- Accepting a meal, a gift, or an invitation for a date does not imply or constitute consent.
- A person’s lack of verbal or physical resistance or submission resulting from the use or threat of force does not constitute consent.
- Silence and passivity do not necessarily constitute consent.
- Initiation by someone who a reasonable person knows or should have known to be deemed incapacitated is not consent.
- A person’s consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another.
A person cannot consent to sexual activity if that person is unable to understand the nature of the activity or give knowing consent due to circumstances, including without limitation when a person is incapacitated or not of legal age.
A person who is asleep or unconscious is considered incapacitated and unable to consent. Additionally, a person may be incapacitated due to a temporary or permanent mental or physical disability.
In the context of this policy, incapacitation is the state in which a person’s perception or judgment is so impaired that he or she lacks the cognitive capacity to make or act on conscious decisions. The use of drugs or alcohol can cause incapacitation, which is a state beyond mere intoxication. An individual who is incapacitated is unable to consent to a sexual activity. Engaging in sexual activity with an individual who is incapacitated (and therefore unable to consent), where a person knows or ought reasonably to have understood that the individual is incapacitated, constitutes Sexual Misconduct and is a violation of this Policy.
Any person may report an incident of Sexual Misconduct as defined by this policy however Employees must report. The University encourages anyone who experiences or becomes aware of Sexual Misconduct to immediately contact one of the options listed below including law enforcement, school administrators and off campus confidential options. Reports may be made by the person who experienced the Sexual Misconduct or by a third-party, including, but not limited to, a friend, family member, advisor, or faculty member. Reports to the Title IX Coordinator may be made in person, by mail, by telephone, or by electronic mail, using the contact information listed below, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time (including during non-business hours) by using the listed telephone number or electronic mail address, or by physical mail to the office address.
1 Volunteers are not considered employees for the purposes and application of Title IX. Back to 1
2 The touching of non-private body parts could constitute “Sexual Harassment”. See Sections 2.1.1 and 2.1.2 of this policy. Back to 2
3 See Delaware Code Title 11 and Criminal Procedure § 766. Back to 3
4 See Delaware Code Title 11 and Criminal Procedure § 770. As a side, Delaware law states that in some situations, a person must be at least 18 years of age to engage in consensual, lawful activity. Back to 4
5 Delaware Criminal Code does not delineate Domestic Violence as a specific statute but defines such acts for the appropriate jurisdiction for prosecutorial action: 'Domestic violence' means abuse perpetrated by one member against another member of the following protected classes: Family, as that term is defined in 10 Del. C, §901(9), regardless, however, of state of residence of the parties; Former spouses, a man and a woman cohabitating together with or without a child of either or both, or a man and a woman living separate and apart with a child in common. Back to 5
6 Delaware has no separate statute for dating violence, but a definition for “teen dating violence: Delaware Criminal Code defines Dating Violence in the School Teen Dating Violence and Sexual Assault Act, Title14, Section 4112E(a)(2) as: "Teen dating violence". — As used in this section, "teen dating violence" means assaultive, threatening or controlling behavior, including stalking as defined in § 1312 of Title 11, that 1 person uses against another person in order to gain or maintain power or control in a current or past relationship. The behavior can occur in both heterosexual and same sex relationships, and in serious or casual relationships. Back to 6
7 See Delaware Code Title 11 and Criminal Procedure § 1311 and § 1312. Back to 7