h. “Institution” means any and all of NSHE’s eight (8) institutions, including the College of Southern Nevada; the Desert Research Institute; Great Basin College; Nevada State College; Truckee Meadows Community College; the University of Nevada, Las Vegas; the University of Nevada, Reno; and Western Nevada College, and NSHE’s System Administration offices. i. “Consent” means an affirmative, clear, unambiguous, knowing, informed, and voluntary agreement between all participants to engage in sexual activity. • Consent is active, not passive. Silence or lack of resistance cannot be interpreted as consent. • Seeking and having consent accepted is the responsibility of the person(s) initiating each specific sexual act regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. • The existence of a dating relationship or past sexual relations between the participants does not constitute consent to any other sexual act. • Affirmative consent must be ongoing throughout the sexual activity and may be withdrawn at any time. When consent is withdrawn or cannot be given, sexual activity must stop. • Consent cannot be given when it is the result of any coercion, intimidation, force, deception, or threat of harm. • Consent cannot be given when a person is incapacitated. Incapacitation occurs when an individual lacks the ability to fully, knowingly choose to participate in sexual activity. Incapacitation includes: impairment due to drugs or alcohol (whether such use is voluntary or involuntary); inability to communicate due to a mental or physical condition; the lack of consciousness or being asleep; being involuntarily restrained; if any of the parties are under the age of 16; or if an individual otherwise cannot consent. • The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity or gender expression. 3. Response to Sexual Harassment An institution with actual knowledge of sexual harassment allegations in an education program or activity of the institution, as all defined in Subsection 2, against a person in the United States must respond promptly in a manner that is not deliberately indifferent. An institution is “deliberately indifferent” only if its response to sexual harassment allegations is clearly unreasonable in light of the known circumstances. An institution’s response must treat complainants and respondents equitably by offering supportive measures as defined in Subsection f of Subsection 2 to all parties, and by following a complaint process that complies with Subsection 5 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in Subsection f of Subsection 2 against a respondent. An institution shall provide this policy which addresses supportive measures to both complainants and respondents. The institution’s Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in Subsection f of Subsection 2, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. An institution’s treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under Title IX. Depending on the specific nature of the problem, supportive measures and remedies may include, but are not limited to: 35
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