The term Sexual Misconduct, as used in this Policy, includes, but is not limited to, those acts listed in Sections A and B below.
Coercion is the practice of forcing another party to act in an involuntary manner by use of intimidation or threats or some other form of pressure or force. Coercion may include the use of emotional manipulation to persuade someone to do something the person may not want to do. Being coerced into having sex or performing sexual acts is not consenting sex and may be considered Sexual Misconduct.
Consent is informed. Consent is an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.
Consent is voluntary. It must be given without coercion, force, threats, or intimidation. Consent means positive cooperation in the act or expression of intent to engage in the act pursuant to an exercise of free will.
Consent is revocable. Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion. A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Even in the context of a relationship, there must be mutual consent to engage in sexual activity. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. Once consent is withdrawn, the sexual activity must stop immediately.
Consent cannot be given when a person is incapacitated. A person cannot consent if s/he is unconscious or coming in and out of consciousness. A person cannot consent if s/he is under the threat of violence, bodily injury or other forms of coercion. A person cannot consent if his/her understanding of the act is affected by a physical or mental impairment. For purposes of this Policy, the age of consent is eighteen (18).
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation and coercion that overcomes resistance or produces consent.
Incapacitation is the state where someone cannot make rational, reasonable decisions due to a lack of capacity to give knowing consent (e.g., to understand the “who, what, when, where, why, and how” of the sexual interaction). Sexual activity with someone who is, or based on circumstances should reasonably have known to be, mentally or physically incapacitated (i.e., by alcohol or other drug use, unconsciousness or blackout) constitutes a violation of this Policy. A person whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the consumption (voluntary or otherwise) of incapacitating drugs cannot give consent.
Sexual Harassment is a subset of Sexual Misconduct and includes unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, on or off campus, when: 1) submission to such conduct is made either explicitly or implicitly a condition of an individual's employment or academic standing or progress; or 2) submission to or rejection of such conduct is used as the basis for employment decisions or for academic evaluation, grades, or advancement; or 3) such conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance or creating an intimidating or hostile academic or work environment. Sexual harassment may take many forms. Sexual Harassment may consist of repeated actions or may even arise from a single incident if sufficiently extreme.
Sexual harassment may include incidents between any members of the School community, including faculty and other academic appointees, staff, student employees, students, interns, and non-student or non-employee participants in School programs (e.g., vendors, contractors, or visitors). Sexual harassment may occur in hierarchical relationships, between peers, or between individuals of the same sex or opposite sex. To determine whether the reported conduct constitutes sexual harassment, consideration shall be given to the record of the conduct as a whole and to the totality of the circumstances, including the context in which the conduct occurred.
Examples of sexual harassment include, but are not limited to: subtle or persistent pressure for sexual activity; unnecessary touching, pinching or brushing against a person; requesting or demanding sexual favors concerning employment, academic activities or other school activities; unwelcome communications (verbal, written, electronic, etc.) of a sexual nature; and failure to accept the termination of a consensual relationship with repeated and persistent requests and behavior. For this Policy, sexual harassment and sex discrimination may also include the following acts.
Rape is forced sexual intercourse that is perpetrated against the will of a person or when the person is unable to give consent (i.e., unconscious, asleep, or under the influence of alcohol or drugs) and may involve physical violence, coercion, or the threat of harm to the individual.
Sexual Assault includes physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s mental or physical incapacitation. The conduct may include physical force, violence, threat or intimidation, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
Sexual Battery is any incident in which the victim’s intimate part is touched without consent of the victim, and with specific intent to achieve sexual arousal, gratification, or sexual abuse.
Sexual Exploitation refers to a situation in which a person takes or attempts to take non-consensual or abusive sexual advantage of another. Examples of sexual exploitation include, but are not limited to:
Sexual voyeurism (such as watching a person undressing, using the bathroom or engaged in sexual acts without the consent of the person observed); and
Taking pictures, 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).
VAWA identifies four specific complaints that may fall under the Title IX Policy: Sexual Assault, which is defined above, Domestic Violence, Dating Violence, and Stalking.
Dating Violence is violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim and where the existence of such a relationship will be determined based on a consideration of the following factors: 1) the length of the relationship, 2) the type of relationship, and 3) the frequency of interaction between the persons involved in the relationship.
Domestic Violence is defined as abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.
Stalking includes conduct directed at a specific person that would cause a reasonable person to— 1) fear for his or her safety or the safety of others; or 2) suffer substantial emotional distress. Such behaviors or activities may include, but are not limited to non-consensual communications (i.e., face-to-face, telephone, email, and social media), threatening or obscene gestures, surveillance, or showing up outside the targeted individual's classroom, residence or workplace. Under California law, stalking means “any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking…”