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HCAP

4.2.4 Applicable Federal, State, and Local Laws

Xavier's HCAP Sections 4.2.1 and 4.2.2 provides definitions of Title IX Sexual Harassment and Interpersonal Violence prohibited by the University. Ohio has separate and distinct criminal definitions of these types of conduct as does the federal Violence Against Women Act (VAWA) and the US Code. The Ohio criminal law definitions are not the same definitions used Xavier’s HCAP. Xavier’s Clery Compliance Officer must utilize the VAWA and US Code definitions to help classify crimes for Clery crime counting and reporting purposes only.

Students and employees have the right to report behavior to both the University and request a response under the University’s internal policies, and to law enforcement to request a response under the criminal law. The definitions below are taken from applicable federal and state criminal law.

4.2.4.1 Consent

Consent is defined in Ohio state criminal statutes and provides that no person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force. No person may substantially impair another person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception for the purposes of preventing resistance to sexual conduct. No person may engage in sexual conduct with another person whose ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

4.2.4.2 Sex Offenses General Definitions (ORC 2907.01)

As used in sections 2907.01 to 2907.38 of the Revised Code:
• "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

  • "Sexual contact" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.
  • "Sexual activity" means sexual conduct or sexual contact, or both.
  • "Prostitute" means a male or female who promiscuously engages in sexual activity for hire, regardless of whether the hire is paid to the prostitute or to another.
  • "Harmful to juveniles" means that quality of any material or performance describing or representing nudity, sexual conduct, sexual excitement, or sado-masochistic abuse in any form to which all of the following apply:
    (1) The material or performance, when considered as a whole, appeals to the prurient interest of juveniles in sex;
    (2) The material or performance is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for juveniles;
    (3) The material or performance, when considered as a whole, lacks serious literary, artistic, political, and scientific value for juveniles.
  • When considered as a whole, and judged with reference to ordinary adults or, if it is designed for sexual deviates or other specially susceptible group, judged with reference to that group, any material or performance is "obscene" if any of the following apply:
    (1) Its dominant appeal is to prurient interest;
    (2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, masturbation, sexual excitement, or nudity in a way that tends to represent human beings as mere objects of sexual appetite;
    (3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;
    (4) Its dominant tendency is to appeal to scatological interest by displaying or depicting human bodily functions of elimination in a way that inspires disgust or revulsion in persons with ordinary sensibilities, without serving any genuine scientific, educational, sociological, moral, or artistic purpose;
    (5) It contains a series of displays or descriptions of sexual activity, masturbation, sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such an interest is primarily for its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose.
  • "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal
  • "Nudity" means the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering of any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state.
  • "Juvenile" means an unmarried person under the age of eighteen.
  • "Material" means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, phonographic record, or tape, or other tangible thing capable of arousing interest through sight, sound, or touch and includes an image or text appearing on a computer monitor, television screen, liquid crystal display, or similar display device or an image or text recorded on a computer hard disk, computer floppy disk, compact disk, magnetic tape, or similar data storage device.
  • "Performance" means any motion picture, preview, trailer, play, show, skit, dance, or other exhibition performed before an audience.
  • "Spouse" means a person married to an offender at the time of an alleged offense, except that such person shall not be considered the spouse when any of the following apply:
    (1) When the parties have entered into a written separation agreement authorized by section 3103.06 of the Revised Code;
    (2) During the pendency of an action between the parties for annulment, divorce, dissolution of marriage, or legal separation;
    (3) In the case of an action for legal separation, after the effective date of the judgment for legal separation.
  • "Minor" means a person under the age of eighteen.
  • "Mental health client or patient" has the same meaning as in section 2305.51 of the Revised Code.
  • "Mental health professional" has the same meaning as in section 2305.115 of the Revised Code.
  • "Sado-masochistic abuse" means flagellation or torture by or upon a person or the condition of being fettered, bound, or otherwise physically restrained.

4.2.4.3 Rape (ORC 2907.02)

  • No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

(1) For the purpose of preventing resistance, the offender substantially impairs the other person's judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.

(2) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.

(3) The other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person's ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.

  • No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.

4.2.4.4 Sexual Battery (ORC 2907.03)

  • No person shall engage in sexual conduct with another, not the spouse of the offender, when any of the following apply:
    (1) The offender knowingly coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution.
    (2) The offender knows that the other person's ability to appraise the nature of or control the other person's own conduct is substantially impaired.
    (3) The offender knows that the other person submits because the other person is unaware that the act is being committed.
    (4) The offender knows that the other person submits because the other person mistakenly identifies the offender as the other person's spouse.
    (5) The offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person.
    (6) The other person is in custody of law or a patient in a hospital or other institution, and the offender has supervisory or disciplinary authority over the other person.
    (7) The offender is a teacher, administrator, coach, or other person in authority employed by or serving in a school for which the state board of education prescribes minimum standards pursuant to division (D) of section 3301.07 of the Revised Code, the other person is enrolled in or attends that school, and the offender is not enrolled in and does not attend that school.
    (8) The other person is a minor, the offender is a teacher, administrator, coach, or other person in authority employed by or serving in an institution of higher education, and the other person is enrolled in or attends that institution.
    (9) The other person is a minor, and the offender is the other person's athletic or other type of coach, is the other person's instructor, is the leader of a scouting troop of which the other person is a member, or is a person with temporary or occasional disciplinary control over the other person.
    (10) The offender is a mental health professional, the other person is a mental health client or patient of the offender and the offender induces the other person to submit by falsely representing to the other person that the sexual conduct is necessary for mental health treatment purposes.
    (11) The other person is confined in a detention facility, and the offender is an employee of that detention facility.
    (12) The other person is a minor, the offender is a cleric, and the other person is a member of, or attends, the church or congregation served by the cleric.
    (13) The other person is a minor, the offender is a peace officer, and the offender is more than two years older than the other person.

4.2.4.5 Unlawful Sexual Conduct with a Minor (ORC 2907.04)

  • No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.

4.2.4.6 Gross Sexual Imposition (ORC 2907.05)

  • No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
    (1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.
    (2) For the purpose of preventing resistance, the offender substantially impairs the judgment or control of the other person or of one of the other persons by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.
    (3) The offender knows that the judgment or control of the other person or of one of the other persons is substantially impaired as a result of the influence of any drug or intoxicant administered to the other person with the other person's consent for the purpose of any kind of medical or dental examination, treatment, or surgery.
    (4) The other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person.
    (5) The ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age.
    • No person shall knowingly touch the genitalia of another, when the touching is not through clothing, the other person is less than twelve years of age, whether or not the offender knows the age of that person, and the touching is done with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

4.2.4.7 Sexual Imposition (ORC 2907.06)

  • No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:
    (1) The offender knows that the sexual contact is offensive to the other person, or one of the other persons, or is reckless in that regard.
    (2) The offender knows that the other person's or one of the other person's, ability to appraise the nature of or control the offender's or touching person's conduct is substantially impaired.
    (3) The offender knows that the other person, or one of the other persons, submits because of being unaware of the sexual contact.
    (4) The other person, or one of the other persons, is thirteen years of age or older but less than sixteen years of age, whether or not the offender knows the age of such person, and the offender is at least eighteen years of age and four or more years older than such other person.
    (5) The offender is a mental health professional, the other person or one of the other persons is a mental health client or patient of the offender, and the offender induces the other person who is the client or patient to submit by falsely representing to the other person who is the client or patient that the sexual contact is necessary for mental health treatment purposes.

4.2.4.8 Domestic Violence (ORC 2919.25 Criminal)

  1. No person shall knowingly cause or attempt to cause physical harm to a family or household member.
  2. No person shall recklessly cause serious physical harm to a family or household member.
  3. No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.

Ohio has a different definition of Domestic Violence applied in civil legal contexts (also separate from Xavier’s HCAP policies):

Domestic violence definitions - hearings (Civil)
As used in this section: "Domestic violence" means the occurrence of one or more of the following acts against a family or household member:

  1. Attempting to cause or recklessly causing bodily injury;
  2. Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 or 2911.211 of the Revised Code;
  3. Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 of the Revised Code;
  4. Committing a sexually oriented offense.

4.2.4.9 Dating Violence

Dating violence is not specifically defined in Ohio state criminal statutes; however, Dating Violence is one form of prohibited Title IX Sexual Harassment (Section 4.2.1) as well as one form of Interpersonal Violence (Section 4.2.2) prohibited by Xavier.  The definition that must be utilized for Clery purposes is below at Section 4.2.4.1.2.

4.2.4.10 Menacing by Stalking (ORC 2903.211)

(1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.
(2) No person, through the use of any electronic method of remotely transferring information, including, but not limited to, any computer, computer network, computer program, or computer system, shall post a message with purpose to urge or incite another to commit a violation of division (A) (1) of this section.
(3) No person, with a sexual motivation, shall violate division (A) (1) or (2) of this section.

4.2.4.11 Felonious Assault (OCR 2903.11)

No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's unborn;
(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance.
• No person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall knowingly do any of the following:
• Engage in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct;
• Engage in sexual conduct with a person whom the offender knows or has reasonable cause to believe lacks the mental capacity to appreciate the significance of the knowledge that the offender has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome;
• Engage in sexual conduct with a person under eighteen years of age who is not the spouse of the offender.

4.2.4.12 Violence Against Women Act and the US Code Definitions

The following definitions are taken from the Violence Against Women Act and the US Code are the definitions used by Xavier's Clery Compliance Officer to classify crimes for counting purposes.

Sexual Assault: "Sexual assault" means an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI's Uniform Crime Reporting system. A sex offense is any act directed against another person, without the consent of the victim, including instances where the victim if incapable of giving consent, and includes:

  • Rape: 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: the touching of the private parts of another person for the purposes of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity.
  • Incest: non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
  • Statutory Rape: a non-forcible sexual intercourse with a person who is under the statutory age of consent.

Domestic Violence:

1) Felony or misdemeanor crimes 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; or
  • 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.

2) For the purposes of complying with the requirements of this section and section 668.41, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.

Dating Violence: The term ''dating violence'' means violence committed by a person:

1) Who is or has been in a social relationship of a romantic or intimate nature with the victim and

2) The existence of such a relationship shall be 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.
  • Dating Violence does not include acts covered under the definition of domestic violence.

For the purposes of complying with the requirements of this section and section 668.41, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.

Stalking: The term "stalking" means:

1) 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.

2) 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.
  • Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
  • Reasonable persons means a reasonable person under similar circumstances and with similar identities to the victim.

3) For the purposes of complying with the requirements of this section and section 668.41, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.