Appendix A - Definitions

For purposes of this policy, the below definitions apply. However, some of these terms are also defined under federal and/or Texas State law. For more information regarding state law definitions, please refer to Appendix B of this policy.

Complainant

The term complainant refers to the individual(s) who has been the subject of prohibited conduct, regardless of whether that individual makes a complaint or seeks disciplinary action.

Respondent

The term respondent refers to the individual(s) who has been accused of prohibited conduct.

Consent

DBU upholds a biblical sexual ethic that promotes consenting intimate sexual expression only within a marriage between one biological man and one biological woman. Intimate sexual expression outside the Biblical boundary of marriage may increase the risk of miscommunication about consent.

Consent is voluntary, informed, and mutual.  Consent is an affirmative and willing agreement to engage in specific forms of sexual contact with another person. Consent requires an outward demonstration, through mutually understandable words or actions, indicating that an individual has freely chosen to engage in sexual contact.

Refusal to consent does not have to be verbal; it can be expressed with gestures, body language or attitude.  Consent can be withdrawn at any time. When consent is withdrawn, sexual activity must cease. A prior sexual history between the Complainant and Respondent does not constitute consent.

It is the responsibility of the initiator of any sexual activity to ensure that he or she has the other person’s consent before engaging in sexual activity. Consent may never be obtained through the use of force, coercion (manipulation), or intimidation. Sexual contact with anyone who is incapable of giving consent because he or she is incapacitated due to alcohol and/or drug consumption, because of a mental or physical impairment, or for some other reason is a violation of this policy. People who are unconscious, for any reason, or are physically unable to communicate, are assumed to be incapable of giving consent.

In evaluating whether consent was given, consideration will be given to the totality of the facts and circumstances, including, but not limited to, the extent to which a complainant affirmatively used words or actions indicating a willingness to engage in sexual contact, free from manipulation, intimidation, fear, or coercion; whether a reasonable person in the respondent’s position would have understood such person’s words and acts as an expression of consent; and whether there are any circumstances, known or reasonably apparent to the respondent, demonstrating incapacitation or fear.

Coercion or Force

Coercion is verbal and/or physical conduct, including manipulation, intimidation, unwanted contact, and express or implied threats of physical, emotional, or other harm, that would reasonably place an individual in fear of immediate or future harm and that is employed to compel someone to engage in sexual contact.

Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom of will to choose whether or not to participate in sexual contact or using one’s strength to impose on someone physically to gain sexual access.

Incapacitation

Incapacitation is the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the sexual activity is occurring. In addition, an individual is incapacitated if they demonstrate that they are unaware of where they are, how they got there, or why or how they became engaged in a sexual interaction. Some indicators of incapacitation may include, but are not limited to, lack of control over physical movements, lack of awareness of circumstances or surroundings, or the inability to communicate for any reason. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. The relevant standard that will be applied is whether the respondent actually knew, or a reasonable person in the same position should have known, that the other party was incapacitated and therefore could not consent to the sexual activity. Likewise, inducing incapacitation for sexual purposes is a violation of this policy. Inducing incapacitation for sexual purposes includes using drugs, alcohol, or other means with the intent to affect or having an actual effect on the ability of an individual to consent or refuse to consent (as “consent” is defined in this Policy) to sexual contact.

Sexual Violence

The following behaviors constitute sexual violence and are prohibited under this policy. All forms of sexual violence are serious offenses and will result in University discipline. Sexual violence involving force, duress, or inducement of incapacitation, or where the perpetrator has deliberately taken advantage of another person's state of incapacitation, will be deemed especially egregious and may result in expulsion or termination of employment. The consumption of alcohol or use of illegal substances will not ordinarily constitute a mitigating factor or circumstance when it contributes to, or is involved in, an alleged act of sexual violence.

  • Non-Consensual Sexual Penetration: Any act of vaginal or anal penetration by a person's penis, finger, other body part, or an object, or oral penetration by a penis, without consent.
  • Forceful Non-Consensual Sexual Contact: Any sexual touching other than non-consensual sexual penetration that occurs without consent and is the result of coercion, force, or incapacitation. Examples of forceful non-consensual sexual contact may include the following when it is a result of coercion, force, or incapacitation: genital or oral-genital contact not involving penetration; contact with breasts, buttocks, or genital area, including over clothing; removing the clothing of another person; and kissing.

Non-Violent Sexual Contact

Any sexual touching that occurs without consent and which does not fall within the definition of sexual violence. Examples of other non-consensual sexual contact may include the following: genital or oral-genital contact not involving penetration; contact with breasts, buttocks, or genital area, including over clothing; removing the clothing of another person; and kissing.

Sexual Harassment

Sexual harassment is any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when the conduct falls into one of the following categories:

  • Conduct on the basis of sex by which an employee of the University conditions the provision of an aid, benefit, or service of the University on a student’s or employee’s participation in unwelcome sexual conduct
  • Conduct on the basis of sex that constitutes unwelcome conduct determined by a reasonable person to be so severe, pervasive and[1] objectively offensive that it effectively denies a student or employee equal access to the University’s education program or activity.

1: Note that this definition is defined in the regulations for Title IX. Under Texas State law, this definition is substantially the same, but includes an “or” rather than “and” in the phrase “severe, pervasive, or objectively offensive.” For Title IX Cases, the definition using “and” will be used, while for Texas Law Cases, the definition using “or” will be used.

Sex Discrimination

Sex discrimination is adverse treatment of an individual based on biological sex, rather than individual merit. Examples of conduct that can constitute sex discrimination because of sex include, but are not limited to:

  • Singling out or targeting an individual for different or adverse treatment (e.g., more severe discipline, lower salary increase relative to peers, etc.);
  • Failing or refusing to hire or allow participation by an individual in a University activity;  
  • Terminating or removing an individual from employment or an educational program; or
  • Verbally harassing, abusing, or demeaning a targeted individual with conduct designed to impact that individual adversely.

Domestic or Dating Violence

This policy prohibits acts of violence, threat, or intimidation that harm or injure a partner in a current or former social, dating, or marital relationship. These acts include, but are not limited to, sexual or physical abuse or the threat of such abuse. Dating or marital relationship violence can be a single act or pattern of behavior.

Stalking

Stalking under this policy is a course of conduct (i.e., more than one act) directed at a specific person which would cause a reasonable person to feel fear, to experience substantial emotional distress, or to fear for their safety or the safety of a third person. Acts that together constitute stalking may be direct actions or may be communicated by a third party, and can include, but are not limited to, threats of harm to self, others, or property; pervasive pursuing or following; pervasive non-consensual (unwanted) communication by any means; trespassing; and surveillance or other related types of observation performed in a harassing or menacing manner.

Sexual Exploitation

Sexual exploitation occurs when a person takes non-consensual or abusive sexual advantage of another for anyone’s advantage or benefit other than the person being exploited. Examples of behavior that could rise to the level of sexual exploitation include:

  • Visual (e.g., video, photograph) or audio-recording of sexual activity;
  • Producing, obtaining and/or distributing photos, videos, audio recordings, streaming, other images, or information of an individual's sexual activity, intimate body parts, or nakedness;
  • Intentionally observing another individual's nudity or sexual activity or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved;
  • Knowingly transmitting a sexually transmitted infection (STI), such as HIV, to another without disclosing your STI status;
  • Exposing one's genitals, buttocks, or breasts (if female) in non-consensual circumstances, or inducing another to expose his or her genitals, buttocks, or breasts (if female); 
  • Distributing or forcing others to view pornography; or
  • The exploitation of a person through force, fraud, or coercion for the purpose of sex.

Sexually Inappropriate Conduct

Sexually Inappropriate Conduct is defined as: Sexual conduct that is unwelcome, abusive, unprofessional, or falls within the definitions under “Other Institutional Offenses” below that may not rise to the level of sexual violence, non-violent sexual contact, sexual harassment, or sexual exploitation, but that is sexual in nature. Examples include, but are not limited to, lewdness and obscene or sexually offensive or sexually suggestive gestures and comments; creating a sexually inappropriate work environment; sexually touching that is unwelcome, abusive or unprofessional; requests for sexually inappropriate or sexually suggestive tasks or favors; sexually inappropriate invasion of personal space or privacy; or other sexually inappropriate behavior in the living, learning or workplace environment.

Retaliation

This policy prohibits any attempt to seek retribution against an individual or group of individuals involved in filing a complaint or report under this policy, filing an external 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, but not limited to, adverse action or violence, threats, 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 his/her university responsibilities. All individuals and groups of individuals are prohibited from engaging in retaliation and will be held accountable under this policy.

Preserving Evidence

An individual who experiences any form of sexual assault is strongly encouraged to seek immediate medical care at a hospital or other medical facility that provides services for victims of sexual assault. Individuals can undergo a medical exam to properly collect and preserve physical evidence of the sexual assault with or without the police’s involvement. It is important to preserve forensic and other physical evidence that may assist in proving the alleged criminal offense occurred and such evidence may be helpful in obtaining a protection order against the respondent. Therefore, a medical exam should be performed immediately after the event, if possible. With the individual’s consent, the physical evidence collected during this medical exam can be used as part of a criminal investigation.

Clear and Convincing Evidence Standard

“Clear and convincing” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established [Texas Civil Practices and Remedies Code 41.001(2)].

Other Institutional Offenses:

The following types of sexual misconduct violate DBU’s Scriptural beliefs about human sexuality:

  1. Sexual activity with another person outside of a monogamous heterosexual marriage between one biological male and one biological female;
  2. Touching, caressing, and other physical conduct of a sexual nature that is inappropriate or contrary to DBU’s Scriptural beliefs about human sexuality;
  3. Participation in advocacy groups and/or activities that are contrary to DBU’s Scriptural beliefs about human sexuality;
  4. The possession or viewing of pornographic material; or
  5. Other expressions or actions that are discordant with DBU’s scriptural beliefs about human sexuality and gender.
  6. Sexually Inappropriate Conduct or Sexual Exploitation, as defined in the Definitions section of this policy; or
  7. Other sexual misconduct cases involving sexual assault, sexual violence, sexual harassment, sexual discrimination, domestic or dating violence, stalking, sexual exploitation, sexually inappropriate conduct, and other sexual misconduct outlined in the Definitions section of this policy which do not meet the geographic or other requirements to be handled as Title IX cases or Texas Law cases, but in which the nexus to DBU’s campus or one of its educational activities or some other compelling reason weighs in favor of DBU protecting its faculty, staff, students, and visitors by exercising jurisdiction over the case.

Good Faith and False Statements

All parties, witnesses, and advisors in any proceeding under this policy are expected to be honest and truthful when meeting with Title IX officials, investigators, when testifying in any proceeding, providing written evidence, or engaging in any other communication relating to a proceeding under this policy. It is a violation of this policy for any party, witness, or advisor to make a false or misleading statement of any kind in a communication that is part of these proceedings.

Obstruction of Justice

It is a violation of this policy to obstruct justice by interfering with the orderly administration of an investigation or adjudication of a sexual misconduct case or potential case. Obstruction of justice may include, but is not limited to, influencing, threatening, harming, intimidating, or impeding a witness, potential witness, investigator, adjudicator, or ACTS Committee member, or by furnishing false information or otherwise impeding a sexual misconduct case or potential case.

Appendix B - Related Information and Statutes

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 and its implementing regulations, 34 C.F.R. Part 106

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-2000e-17 and its implementing regulations 29 C.F.R. §1604 11.

Clery Act, 20 U.S.C. 1092(f) and its implementing regulations 34 C.F.R. Part 668

If a person would like to press criminal charges for an alleged violation of any of the below criminal laws, or would like to seek an order of protection, the definitions contained in the Texas Penal Code and Family Code would apply, not the internal definitions used in this policy.

Dating Violence: “an act, other than a defensive measure to protect oneself, by an actor that is committed against a victim or applicant for a protective order: with whom the actor has or has had a dating relationship; or because of the victim’s or applicant’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault... ‘Dating relationship’ means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: the length of the relationship; the nature of the relationship; and the frequency and type of interaction between the persons involved in the relationship. A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a ‘dating relationship.’” Texas Family Code Section 71.0021.

Domestic (Family) Violence: “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself, or abuse by a member of a family or household toward a child of the family or household, or dating violence.” Texas Family Code Section 71.004.

Sexual Assault: “a person commits an offense if the person (1) intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or (2) intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means; causes the penetration of the mouth of a child by the sexual organ of the actor; causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.

A sexual assault is without the consent of the other person if: the actor compels the other person to submit or participate by the use of physical force, violence, or coercion, the actor compels the other person to submit or participate by threatening to use force or violence against the other person, or to cause harm to the other person, and the other person believes that the actor has the present ability to execute the threat; the other person has not consented and the actor knows the other person is unconscious or physically unable to resist; the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it; the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring; the actor has intentionally impaired the other person's power to appraise or control the other person's conduct by administering any substance without the other person's knowledge; the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability to execute the threat; the actor is a public servant who coerces the other person to submit or participate; or the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by exploiting the other person's emotional dependency on the actor. The actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser; or the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other. ‘Child’ means a person younger than 17 years of age. ‘Spouse’ means a person who is legally married to another.” Texas Penal Code Section 22.011.

Stalking: “a person who, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that: (1) the person knows or reasonably should know the other person will regard as threatening including bodily injury or death for the other person, bodily injury or death for a member of the other person’s family or household or for an individual with whom the other person has a dating relationship, or fear that an offense will be committed against the other person’s property, and (2) causes the other person, a member of the other person's family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or fear that an offense will be committed against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and (3) would cause a reasonable person to fear bodily injury or death for himself or herself, or bodily injury or death for a member of the person's family or household or for an individual with whom the person has a dating relationship, or fear that an offense will be committed against the person’s property; or feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. A fact finder may find that different types of conduct described above, if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct.” Texas Penal Code Section 42.072.