Policy Definitions

The definitions of sexual assault, domestic violence, dating violence, and stalking used in Middlebury’s Policy Against Sexual Misconduct, Domestic and Dating Violence and Misconduct, and Stalking (SMDVS policy) are consistent with the Clery Act, as amended effective 2014. Middlebury prohibits the crimes of sexual assault, dating violence, domestic violence, and stalking as defined by the Clery Act. In addition, for the purposes of the SMDVS policy, the definitions of domestic violence and dating violence expand upon the definitions required under the Clery Act, and include other prohibited behaviors. Middlebury also prohibits sexual exploitation, and domestic and dating misconduct as well as sexual harassment and related retaliation (see the harassment and discrimination definitions under Middlebury’s Anti-Harassment/Discrimination Policy, below). 

Middlebury determines responsibility for violations of Middlebury policy through its own procedures and standards of proof (that is, by a preponderance of the evidence standard), not through the procedures or standards of proof employed in the criminal justice system. The definitions outlined below apply as a matter of Middlebury policy in all locations where Middlebury operates its programs.  

Sexual Misconduct
Sexual misconduct violates the rights of others, and demonstrates flagrant disregard for the principles of this community. Middlebury seeks to prevent all forms of sexual misconduct, and desires to establish and maintain a safe and healthy environment for all members of the community through sexual misconduct prevention, education, support, and a fair adjudication process. Use of alcohol or other drugs does not minimize or excuse a person&rss responsibility for conduct that violates this policy.

Sexual misconduct may include sexual assault, sexual exploitation, or both. The definitions below are intended to provide clarity, and do not suggest that one behavior is more severe or violating than the other.

Sexual Assault
Sexual assault may be either rape, fondling without consent, incest, or statutory rape, as defined in the Clery Act and below.

Rape is 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. 

Fondling is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent (as defined below) of the victim, including instances where the victim is incapable of giving consent because of their temporary or permanent mental incapacity. 

Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law in the applicable jurisdiction. 

Statutory rape is sexual intercourse with a person who is under the statutory age of consent in the applicable jurisdiction. 

Sexual assault can be committed by any person against any other person, regardless of gender, gender identity, sexual orientation, or past or current relationship status. Sexual assault may occur with or without physical resistance or violence.

Sexual Exploitation
Sexual exploitation occurs when a person takes sexual advantage of another person for the benefit of anyone other than that other person without that other person’s consent. Examples of behavior that could constitute sexual exploitation include but are not limited to the following:

Intentional nonconsensual contact with the private body parts of another person that does not meet the definition of behaviors prohibited under the definition of “Sexual Assault,” above;

Prostituting another person;

Recording or capturing through any means images (e.g., video, photograph) or audio of another person’s sexual activity, intimate body parts, or nudity without that person’s consent;

Distributing images (e.g., video, photograph) or audio of another person’s sexual activity, intimate body parts, or nudity, if the individual distributing the images or audio knows or should have known that the person(s) depicted in the images or audio did not consent to such disclosure and object(s) or would object to such disclosure; and

Viewing another person’s sexual activity, intimate body parts, or nudity in a place where that person would have a reasonable expectation of privacy, without that person’s consent, if the individual viewing the other person’s or persons’ sexual activity, intimate body parts, or nudity in such a place knows or should have known that the person(s) being viewed would object to that.

Exception: Middlebury’s prohibition of sexual exploitation is not intended to prohibit the use of sexually explicit materials that are reasonably related to Middlebury’s academic mission. Specifically, this section is not intended to proscribe or inhibit the use of sexually explicit materials, in or out of the classroom, when in the judgment of a reasonable person they arise appropriately to promote genuine discourse, free inquiry, and learning.

Consent
Consent means words or actions, freely and actively given by each party, which a reasonable person would interpret as a willingness to participate in agreed-upon sexual conduct.

Consent is not present or valid when a person is incapable of giving consent because they are incapacitated by drugs or alcohol; when intimidation, threats, physical force, or other actions that a reasonable person in that person’s circumstances would consider coercive are applied; when that person is placed in fear that any person will suffer imminent bodily injury; when a physical or mental condition is present such that the person cannot knowingly or voluntarily give consent; or when a person is under the age of 16. Silence, noncommunication, or a lack of resistance does not necessarily imply consent. Previous relationships or consent do not imply consent to future sexual conduct. Consent to one form of sexual activity does not imply consent to other forms of sexual activity. Consent can be rescinded at any time.

The use of alcohol or drugs does not minimize or excuse a person’s responsibility for committing sexual misconduct, or that person’s responsibility for determining whether another is capable of giving consent, as described above. 

Capability to Give Consent
An objective standard will be used in determining whether a person is incapable of giving consent due to the person’s incapacitation by the use or consumption of drugs or alcohol, or if a physical or mental condition as described above is present. That is, consent is not present or valid when:

From the standpoint of a reasonable person, the respondent knew, or reasonably should have known, that the person was incapable of giving consent because the person was incapacitated by the person’s use or consumption of drugs or alcohol, or that the person’s physical or mental condition would prevent knowing and voluntary consent; and

The person was, in fact, incapable of giving consent because the person was incapacitated by the person’s use or consumption of drugs or alcohol, or the person was incapable of providing knowing or voluntary consent due to a physical or mental condition. 

Coercion
Coercion is defined as compelling someone to act by applying pressure, harassment, threats, intimidation, or other actions a reasonable person would consider to be coercive.

Domestic Violence
Domestic violence is violence committed—

By a current or former spouse or intimate partner of the person subjected to the violence;

By a person with whom the person subjected to the violence shares a child in common;

By a person who is cohabitating with, or has cohabitated with, the person subjected to the violence as a spouse or intimate partner;

By a person similarly situated to a spouse of the person subjected to the violence under the domestic or family violence laws of the jurisdiction in which the violence occurred; or

By any other person against an adult or youth who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the violence occurred.

For the purposes of this definition, domestic violence includes but is not limited to sexual or physical abuse or the threat of such abuse, if involving individuals who are or have been in a domestic relationship as defined here.

For the purposes of this definition, “violence” means conduct that involves the use or threatened use of physical force against a person, or creates a reasonable belief that physical force may be used against a person in the course of the conduct.

Dating Violence
Dating violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the person subjected to the violence. 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, if involving individuals who are or have been dating as defined here.

For the purposes of this definition, “violence” means conduct that involves the use or threatened use of physical force against a person, or creates a reasonable belief that physical force may be used against a person in the course of the conduct.

Dating violence does not include acts covered under the definition of domestic violence stated above.
 

Domestic or Dating Misconduct
Domestic or dating misconduct is defined as threatening or coercive behavior that does not involve violence, but that occurs in the context of a domestic or dating relationship. The criteria for determining the existence of a domestic or dating relationship are provided in the above definitions of domestic violence and dating violence. Examples of domestic or dating misconduct include but are not limited to the following, when occurring in the context of a domestic or dating relationship: 

  • Conduct that may reasonably be expected to exploit or coerce;
  • Kidnapping and/or restraint;
  • Prevention of another’s ability to communicate or move freely;
  • Violation of another’s privacy;
  • Unauthorized entry and/or uninvited or unwanted presence in another’s room or office.

Stalking
“Stalking” 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 in which the alleged 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 person subjected to the stalking.

Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

Examples of stalking behaviors or activities include, but are not limited to, the following, if they occur in the context of stalking as defined above:

  • Nonconsensual communication, including face-to-face communication, telephone calls, voice messages, emails, text messages, written letters, gifts, or any other communications that are unwelcome.
  • Use of online, electronic, or digital technologies in connection with such communication, including but not limited to:   

◊ Posting pictures or text in chat rooms or on websites;
◊ Sending unwanted/unsolicited email or talk requests;
◊ Posting private or public messages on Internet sites, social networks, and/or school bulletin boards;
◊ Installing spyware on a person’s computer;
◊ Using Global Positioning Systems (GPS) or similar technology to monitor a person.          

  • Pursuing, following, waiting for, or showing up uninvited at or near a residence, workplace, classroom, or other places frequented by the person
  • Surveillance or other types of observation including staring or “voyeurism”
  • Trespassing
  • Vandalism
  • Nonconsensual touching
  • Direct verbal or physical threats
  • Gathering information about an individual from friends, family, or coworkers
  • Accessing private information through unauthorized means
  • Threats to harm self or others
  • Defamation and/or lying to others about the person, or
  • Using a third party or parties to accomplish any of the above

Complainant
A complainant is usually an individual filing a complaint of a violation of Middlebury policies. In some cases (e.g., cases in which a person involved in an incident of alleged sexual misconduct, domestic or dating violence or misconduct, stalking, or related retaliation does not wish to participate in the process but Middlebury decides that the alleged misconduct needs to be investigated), Middlebury may pursue an investigation and adjudication under this policy without a designated complainant. In these cases Middlebury may extend some or all of the rights of a complainant as defined in this policy to affected parties as deemed appropriate by a Human Relations Officer or Judicial Affairs Officer, as applicable.

For ease of reference, the term “complainant” is also used throughout Middlebury’s SMDVS policy to refer generally to an individual who was allegedly subjected to prohibited conduct as defined in this policy.  

Respondent
A respondent is an individual whose alleged conduct is being investigated to determine if it is in violation of Middlebury’s policies.

For ease of reference, the term “respondent” is also used throughout Middlebury’s SMDVS policy to refer generally to an individual who allegedly engaged in prohibited conduct as defined in this policy.

Covered Third Parties
Under Title IX and/or Middlebury policy, third parties who participate in Middlebury’s programs or activities are protected from sexual misconduct, domestic and dating violence and misconduct, stalking, and related retaliation arising out of those programs or activities. Such individuals are referred to in Middlebury’s SMDVS policy as “covered third parties.” Thus, any covered third party who participates in any Middlebury program or activity may report a complaint of sexual misconduct, domestic or dating violence or misconduct, stalking, or related retaliation under the SMDVS policy, as applicable. Also, Middlebury will take appropriate action, to the extent practicable given Middlebury’s limited authority, in response to a report or complaint of sexual misconduct, domestic or dating violence or misconduct, stalking, or related retaliation by a student, faculty, or staff member against a third party.   

Human Relations Officer
A Human Relations Officer (HRO) is an administrator responsible for overseeing investigations and adjudicating complaints under this policy. HROs are also the Title IX coordinator’s designees responsible for overseeing investigations and adjudicating sexual misconduct complaints in accordance with Middlebury’s SMDVS policy.

Judicial Affairs Officer
A Judicial Affairs Officer (JAO) is an administrator responsible for facilitating the investigation and adjudication of complaints under this policy. JAOs are also the Title IX coordinator’s designees responsible for facilitating the investigation and adjudication of sexual misconduct complaints in accordance with this policy. Other Middlebury officials may be designated to serve in this capacity as needed.

Title IX Coordinator
The Title IX coordinator is the administrator responsible for coordinating Middlebury’s efforts to comply with and carry out its responsibilities under Title IX. The Title IX coordinator’s responsibilities include overseeing the process for handling and responding to all complaints of possible sex discrimination and identifying and addressing any patterns or systemic problems that arise during the review of such complaints. Middlebury’s Title IX coordinator also participates in Middlebury’s handling of and responding to complaints of sexual misconduct, domestic and dating violence and misconduct, and stalking, as defined in the SMDVS policy.

No Contact Order
When sexual misconduct, domestic or dating violence or misconduct, stalking, related retaliation, or other forms of interpersonal misconduct have been reported, or when otherwise deemed appropriate under the circumstances, the vice president for student affairs and dean of the College, dean of students, Commons deans, JAOs, HROs, Public Safety staff, Title IX coordinator, or appropriate supervisory authority for the program at issue may issue No Contact Orders to the persons involved, whether or not disciplinary action is taken. A No Contact Order is used to restrict encounters and communications between individuals. While a No Contact Order in and of itself does not constitute discipline and will not appear in an employee’s personnel file or on a student’s disciplinary record, refusal to adhere to the order after written or verbal notification of its terms is prohibited and may result in disciplinary action.

No Trespass Notice
A No Trespass Notice prohibits the presence of an individual on Middlebury property or other properties on which Middlebury programs are occurring. Violating a No Trespass Notice is considered to be a violation of Middlebury policy. As No Trespass Notices are legally enforceable, a violation may lead to arrest and prosecution.

Relief from Abuse Orders, Orders of Protection, and Restraining Orders
In the United States, a relief from abuse order, also called a protection order or restraining order, is a court order that is designed to stop violent, harassing, and threatening behavior. It can also stop the respondent from any contact or communication with the complainant, and protect the complainant and the complainant’s family members, as appropriate, from the respondent. Such orders may be awarded by courts in the United States on a temporary basis, in which case they are instituted by a judge immediately and reviewed subsequently through a court hearing process where it is determined whether they will remain in effect for a longer term. Similar resources may exist in the other countries in which Middlebury operates programs. For more information, please see Appendix C to Middlebury’s SMDVS policy.

Harassment

Harassment is defined as verbal, written, visual, or physical conduct based on or motivated by an individual’s actual or perceived sex, sexual orientation, gender identity or expression, race, creed, color, place of birth, ancestry, ethnicity, religion, national origin, age, disability, marital status, or other characteristics as defined and protected by law in the location where a particular program is operating, that has the purpose or effect, from the point of view of a reasonable person, of objectively and substantially:

a. undermining and detracting from or interfering with an individual’s educational or work performance or access to Middlebury resources; or

b. creating an intimidating, hostile, or offensive educational, work, or living environment.

Harassment may include repeated slurs; taunts in the guise of jokes; disparaging references to others; and use of epithets, stereotypes, comments, gestures, threats, graffiti, display or circulation of written or visual materials, taunts on manner of speech, and negative reference to customs when such conduct is based on or motivated by one or more of the protected characteristics identified above, or other characteristics as defined and protected by applicable law.

In Middlebury’s Vermont programs, harassment may also include conduct of the type described above that is based on or motivated by a student’s family member’s actual or perceived race, creed, color, national origin, marital status, sex, sexual orientation, gender identity, or disability, which has the type of purpose or effect described above.

With respect to Middlebury programs operating in states other than Vermont (e.g., California, Nevada, New Mexico, and Washington, D.C.), harassment shall be defined as stated in this section unless the local law applicable to the program at issue mandates a broader definition, in which case such law will apply.

See also Addendum to Middlebury’s Anti-Harassment/Discrimination policy, which is applicable to California employees only.

Sexual Harassment

Harassment may also include so-called quid pro quo sexual harassment, meaning unwelcome sexual advances, requests for sexual favors, and other verbal, written, visual, or physical conduct of a sexual nature when:

a. submission to that conduct is made either explicitly or implicitly a term or condition of employment or educational status; or

b. submission to or rejection of such conduct is used as a component of or as the basis for employment decisions (such as wages, evaluation, advancement, assigned duties, or shifts) or educational/student life-related decisions (such as grades, class assignments, or letters of recommendation, or residence-related decisions) affecting an individual.

Other examples of sexual harassment include, but are not limited to, the following:

  • Touching or grabbing a sexual part of a student’s or employee’s body;
  • Touching or grabbing any part of a student’s or employee’s body after that person has indicated, or it is known or reasonably should be known, that such physical contact was unwelcome;
  • Continuing to ask a student or employee to socialize on or offduty when that person has indicated s/he is not interested;
  • Displaying or transmitting sexually suggestive pictures, objects, cartoons, or posters if it is known or reasonably should be known that the behavior is unwelcome;
  • Continuing to write sexually suggestive notes or letters if it is known or reasonably should be known that the person does not welcome such behavior;
  • Referring to or calling a person a sexualized name if it is known or reasonably should be known that the person does not welcome such behavior;
  • Regularly telling sexual jokes or using sexually vulgar or explicit language in the presence of a person if it is known or reasonably should be known that the person does not welcome such behavior;
  • Derogatory or provoking remarks about or relating to a student’s or employee’s sex or sexual orientation;
  • Harassing acts or behavior directed against a person on the basis of his or her sex or sexual orientation.

See also Addendum applicable to California employees only.

Discrimination

Middlebury complies with all applicable provisions of state and federal law that prohibit discrimination in employment, or in admission or access to its educational or extracurricular programs, activities, or facilities. Discrimination is defined as conduct directed at an individual based on his/her race, creed, color, place of birth, ancestry, ethnicity, national origin, religion, sex, sexual orientation, gender identity or expression, age, marital status, service in the armed forces of the United States, positive HIV-related blood test results, or genetic information, or against qualified individuals with disabilities on the basis of disability and/or any other status or characteristic as defined and to the extent protected by applicable law.

With respect to Middlebury programs operating in states other than Vermont (e.g., California, Nevada, New Mexico, and Washington, D.C.), discrimination shall be defined as stated in this section unless the local law applicable to the program at issue mandates a broader definition, in which case such law will apply.

See also Addendum applicable to California employees only.