State and Federal Criminal Definitions
Some of the conduct prohibited by the Equity Policy and Process may also constitute violations of the law, in addition to or beyond the scope of this policy and Berklee’s disciplinary measures.
The following is a summary of the federal and state definitions applicable to certain offenses (domestic violence, dating violence, sexual offenses, and stalking).
Domestic violence means a felony or misdemeanor crime of violence committed by any of the following individuals: a current or former spouse of the victim; a person with whom the victim shares a child in common; a person who is cohabitating with or has cohabitated with the victim as a spouse; a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies; or 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. See 42 U.S.C. 13925(a).
Under state law, domestic abuse is defined to be the occurrence of one or more of the following acts between family or household members: attempting to cause or causing physical harm, placing another in fear of imminent serious physical harm; and causing another to engage involuntarily in sexual relations by force, threat, or duress. Under this law, family or household members include people who are or were married, residing in the same household, related by blood or marriage, have a child together, or have a substantive dating or engagement relationship. See M.G.L. c. 209A, § 1.
Dating violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. Violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. The existence of a social relationship of a romantic or intimate nature with the victim is determined based on the length of the relationship; the type of the relationship; and the frequency of interaction between the persons involved in the relationship. The term "dating violence" does not include acts covered under the federal definition of “domestic violence.” See 42 U.S.C. 13925(a).
Massachusetts law has no statutory definition of dating violence, but that crime is covered under the definition of domestic violence.
Stalking is defined under federal law as engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or to suffer substantial emotional distress. See 42 U.S.C. 13925(a). For purpose of this definition:
- The term “course of conduct” means two or more acts, including, but not limited to, acts in 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.
- The term “substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
- The term “reasonable person” means a reasonable person under similar circumstances and with similar identities to the victim.
Under Massachusetts law, M.G.L., c. 265, §43, an individual engages in stalking if s/he: 1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress; and 2) makes a threat with the intent to place the person in imminent fear of death or bodily injury.
Sexual offenses means any sexual act directed against another person, without the consent of that person, including instances when the person is unable to give consent. Sexual offenses including the following:
“Rape,” which is defined as 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. Under state law, rape occurs when the offender has “sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his/her will, or compels such person to submit by threat of bodily injury.” See M.G.L. c. 265, § 22. A sexual assault that does not meet the legal definition of rape may constitute “indecent assault and battery,” which occurs when the offender, without the victim’s consent, intentionally has physical contact of a sexual nature with the victim. See M.G.L. c. 265, §13H.
- “Fondling,” which is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
- “Non-forcible sex offenses,” which is defined as unlawful, non-forcible sexual intercourse, including:
- “Incest,” which is defined as the non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; and
- “Statutory rape,” which is defined as non-forcible sexual intercourse with a person who is under the statutory age of consent. In Massachusetts the statutory age of consent is 16 years of age. See M.G.L., c. 265, §23.
Relevant federal law does not include a definition of the term “consent.” See Violence Against Women Act (Final Rule), 79 Fed. Reg. 62,572 (Oct. 20, 2014) (codified 34 C.F.R. 668). There is currently no state statutory definition of consent. The college’s policy definition of consent is to be applied in cases of alleged sexual assault.