Advisor refers to the person the complainant or respondent brings to a disciplinary hearing.
College refers to West Virginia Northern Community College.
Complainant is the alleged victim or the individual who has been the subject of interpersonal violence.
Consent requires the response of yes, not the absence of no. Consent requires conversation. The person who initiates sexual activity is responsible for asking for consent. The absence of a clear verbal signal means you do not have consent. Both parties must have unimpaired judgment (examples that may cause impairment include but are not limited to alcohol, drugs, and mental health conditions). Prior to sexual activity, both parties must disclose personal risk factors such as any known STDs, and both parties must use safer sex practices. Consent means that both partners decide together to have sex. Regardless of your prior sexual history consent is required each time you have sexual activity. Both parties must have a clear and accurate understanding of the intended sexual activity. It is not your partner’s job to resist; it is your responsibility to respect his/her boundaries. At any time when consent is withdrawn or not verbally agreed to, the sexual activity must stop. Silence is not consent. You cannot rely on assumptions on what your partner does or does not want. Incapacity of the complainant does not constitute consent on the part of the complainant. A person is determined incapable of consent when such person is less Rule Number: NC-1004 [Out for Public Comment Copy] Effective Date: Date Approved by WVNCC Board of Governors: Authority Reference: Title VII of the Civil Rights Act of 1964; West Virginia Human Rights Act Replaces previous rule dated: Sexual Assault Rule, April 1, 2008 2 than sixteen years old, or mentally defective, or mentally incapacitated, or physically helpless. Mentally defective means that the person suffers from a mental disease or defect, which renders such person incapable of appraising the nature of his or her conduct. Mentally incapacitated means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of a controlled or intoxicating substance administered to such person without his or her consent or as a result of any other act committed upon such without his or her consent. Physically helpless means that a person is unconscious or for any reason is physically unable to communicate unwillingness to an act. It is the position of the College that an interpersonal violence also occurs against the complainant who willingly takes a controlled or intoxicating substance if the sexual contact occurs after the complainant becomes temporarily incapable of appraising or controlling his or her conduct as a result of the controlled or intoxicating substance. A student charged with interpersonal violence can be prosecuted under West Virginia law AND disciplined in accordance with College policies and regulations. A student found guilty of interpersonal violence through the campus Student Conduct system may be subject to suspension or expulsion.
Dating violence means violence by a person who has been in a romantic or intimate relationship with the complainant. Whether there was such relationship will be gauged by its length, type and frequency of interaction.
Discrimination means actions that deprive others of educational or employment access, benefits or opportunities on the basis of their actual or perceived membership in a Protected Category.
Domestic Violence/Intimate Partner Violence/Abuse means the occurrence of any of the following acts/conditions between those in or having previously been in an intimate relationship to each other, including dating, domestic and/or any other intimate relationship. Attempting to cause or intentionally, knowingly or recklessly causing physical harm to another with or without dangerous or deadly weapons; Placing another in reasonable apprehension of physical harm; Creating fear of physical harm by harassment, stalking, and psychological abuse or threatening acts; Committing sexual assault, sexual abuse, domestic battery or domestic assault as those terms are defined under West Virginia criminal law; Holding, confining, detaining or abducting another person against that person's will.
Hostile Environment means an environment created by oral, written, graphic, or physical conduct that is sufficiently severe, persistent, or pervasive and objectively offensive so as to interfere with, limit, or deny the ability of an individual to participate in or benefit from educational programs or activities or employment access, benefits, or opportunities.
Incapacitation means as a state where a person cannot make rational, reasonable decisions because he or she lacks the capacity to give knowing consent (e.g., to understand the who, what, when, where, why or how of his or her sexual interaction).
Interpersonal Violence means sexual harassment, sexual misconduct, sexual assault, domestic violence, dating violence and/or stalking by any two or more individuals by any means.
Intimidation means implied threats or acts that cause an unreasonable fear of harm in another on the basis of actual or perceived membership in a Protected Category.
Minor means a person under the age of 16 years.
Non-Consensual Sexual Contact means any intentional Sexual Touching, however slight, with any object, by a person upon another person that is without consent and/or by force.
Non-Consensual Sexual Intercourse means any Sexual Penetration or intercourse (anal, oral or vaginal), however slight, with any object, by a person upon another person, that is without consent and/or by force.
Physically helpless means that a person is unconscious or for any reason is physically unable to communicate unwillingness to an act.
Protected Category means a category under which an individual falls or is perceived to fall that is protected under federal, state, or local anti-discrimination laws, including race, color, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, age, marital status, veteran or military status, disability, or genetic information.
Retaliation means any adverse action taken against a person who complained about harassment, supported a complainant involving harassment, or who participated in the investigation of a claim of harassment because of that person’s participation in filing the complaint of harassment, supporting a complainant involving harassment, or for participating in the investigation of a claim of harassment.
Respondent is the alleged offender or the individual(s) who has been accused of interpersonal violence.
Sexual assault is sexual intercourse or sexual intrusion without consent. There are three levels of sexual assault in West Virginia:
- 1st Degree: The perpetrator inflicts serious bodily injury, uses a deadly weapon, or the perpetrator is over age 14 and the complainant is younger than 12 years old and is not married to that person. Penalty: An indeterminate term of not less than 15 nor more than 35 years in a state correctional facility; and/or a fine of not less than $1,000 nor more than $10,000. However, if the defendant is 18 or older and complainant is younger than 12, the penalty is not less than 25 nor more than 100 years in a state correctional facility, and or a fine of not less than $5,000 nor more than $25,000.
- 2nd Degree: Sexual intercourse or intrusion without consent and lack of consent is due to forcible compulsion or physical helplessness. Penalty: An indeterminate term of not less than 10 nor more than 25 years in a state correctional facility; and/or a fine of not less than $1,000 nor more than $10,000.
- 3rd Degree: Sexual intercourse or intrusion with someone who is mentally defective or mentally incapacitated, or when someone age 16 or older assaults someone less than 16 who is at least 4 years younger than the perpetrator and not married to him/her. Penalty: An indeterminate term of not less than 1 nor more than 5 years in a state correctional facility; and/or a fine of not more than $10,000.
There is no statute of limitations for felony sex offenses (all degrees of sexual assault and 1st degree sexual abuse); 2nd and 3rd degree sexual abuse must be charged within 1 year after the offense was committed (WVC§61-11-9).
Sexual Exploitation means a situation in which a person takes non-consensual or abusive sexual advantage of another, and situations in which the conduct does not fall within the definitions of Sexual Harassment, Non-Consensual Sexual Intercourse, or Non-Consensual Sexual Contact. The term includes, but is not limited to, the following situations: Sexual voyeurism, such as watching a person undressing, using the bathroom or engaging in sexual acts without the consent of the person observed; Taking pictures or video or audio recording another in a sexual act, or in any other private activity without the consent of all involved in the activity, or exceeding the boundaries of consent, such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent;
Sexual Harassment means any unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual/gendered-related nature. A form of sexual harassment occurs when submission to such conduct is made either explicitly or implicitly, a term or condition of an individual’s employment or academic status, submission to or rejection of such conduct by an individual is used as the basis of employment or academic decisions affecting such individual, or such conduct creates a hostile environment.
Sexual Offenses means any sexual act directed against another person, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the complainant is incapable of giving consent.
A forcible sexual offense is any sexual act directed against another person, including unwanted touching, that is against that person's will or which involves the use of force, violence or the threat of force or violence, or a sexual act against a person incapable of giving consent. Forcible sexual offenses include 5 sexual assault, sodomy, sexual assault with an object, and all forms of nonconsensual touching such as fondling.
Non-forcible sexual offenses are acts of unlawful sexual activity against persons incapable of giving consent, such as statutory sexual assault. Acts which are commonly expressive of familiar or friendly affection and accepted medical purposes are not included.
Sexual Penetration means vaginal or anal penetration by a penis, tongue, finger or object, or oral copulation by mouth to genital contact or genital to mouth contact.
Sexual Harassment or Assault under Title IX can qualify as discrimination if it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an education opportunity or benefit.” Davis v. Monroe County Bd. of Educ., 526 U.S. 633 (1999)
Sexual Touching means any bodily contact with the breasts, groin, genitals, mouth or other bodily orifice of another individual, or any other bodily contact in a sexual manner.
Stalking means a course of conduct (i.e., repetitive and/or menacing pursuit, following, harassment and/or interference with the peace and/or safety of another) directed at a specific person that is unwelcome and would cause a reasonable person to feel fear.
Third Party refers to any other participant in the process, including an individual who makes a report, participates in an investigation or judiciary process as a witness, or is affected by a prohibited conduct.
Title IX Coordinator is the Chief Human Resources Officer.