Sexual Violence and Misconduct


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According to the Centers for Disease Control and Prevention's (CDC) National Intimate Partner and Sexual Violence Survey (NIPSVS), about 20% of women and 2% of men have been raped; and approximately 44% of women and 23% of men have been the victim of sexual violence other than rape.

That said, federal and state laws and CSU/Cal State LA policies prohibit sexual violence, as well as dating and domestic violence, stalking, and other forms of misconduct. This prohibition applies to students, employees, and others; as well as to conduct both on and off-campus. Perpetrators can be subject to campus sanctions such as suspension, expulsion, and employment termination; as well as arrest, criminal prosecution, restitution, and civil justice. Victims and survivors have numerous rights granted by federal and state laws (see Survivors' Rights). Additionally, sexual violence is also considered to be a Title IX violation.

Sexual Violence Overview

What is sexual violence? Sexual violence encompasses a variety of behaviors that involve nonconsensual sexual conduct. Sexual violence may include:

Examples from the National Intimate Partner and Sexual Violence Survey

  • Being made to penetrate someone else includes times when the victim was made to, or there was an attempt to make them, sexually penetrate someone without the victim’s consent because the victim was physically forced (such as being pinned or held down, or by the use of violence) or threatened with physical harm, or when the victim was drunk, high, drugged, or passed out and unable to consent.

    • Among women, this behavior reflects a female being made to orally penetrate another female’s vagina or anus.

    • Among men, being made to penetrate someone else could have occurred in multiple ways: being made to vaginally penetrate a female using one’s own penis; orally penetrating a female’s vagina or anus; anally penetrating a male or female; or being made to receive oral sex from a male or female. It also includes female perpetrators attempting to force male victims to penetrate them...

  • Non-contact unwanted sexual experiences are those unwanted experiences that do not involve any touching or penetration, including someone exposing their sexual body parts, flashing, or masturbating in front of the victim, someone making a victim show his or her body parts, someone making a victim look at or participate in sexual photos or movies, or someone harassing the victim in a public place in a way that made the victim feel unsafe.

  • Rape is defined as any completed or attempted unwanted vaginal (for women), oral, or anal penetration through the use of physical force (such as being pinned or held down, or by the use of violence) or threats to physically harm and includes times when the victim was drunk, high, drugged, or passed out and unable to consent. Rape is separated into three types, completed forced penetration, attempted forced penetration, and completed alcohol or drug facilitated penetration.

    • Among women, rape includes vaginal, oral, or anal penetration by a male using his penis. It also includes vaginal or anal penetration by a male or female using their fingers or an object.

    • Among men, rape includes oral or anal penetration by a male using his penis. It also includes anal penetration by a male or female using their fingers or an object.

  • Sexual coercion is defined as unwanted sexual penetration that occurs after a person is pressured in a nonphysical way. In NISVS, sexual coercion refers to unwanted vaginal, oral, or anal sex after being pressured in ways that included being worn down by someone who repeatedly asked for sex or showed they were unhappy; feeling pressured by being lied to, being told promises that were untrue, having someone threaten to end a relationship or spread rumors; and sexual pressure due to someone using their influence or authority.

  • Unwanted sexual contact is defined as unwanted sexual experiences involving touch but not sexual penetration, such as being kissed in a sexual way, or having sexual body parts fondled or grabbed.

Examples from the National Domestic Violence Hotline

  • Sexually abusive methods of retaining power and control include an abusive partner:
    • Forcing you to dress in a sexual way
    • Insulting you in sexual ways or calls you sexual names
    • Forcing or manipulating you into having sex or performing sexual acts
    • Holding you down during sex
    • Demanding sex when you're sick, tired or after hurting you
    • Hurting you with weapons or objects during sex
    • Involving other people in sexual activities with you against your will
    • Ignoring your feelings regarding sex
    • Forcing you to watch pornography
    • Purposefully trying to pass on a sexually transmitted disease to you
  • Sexual coercion
    • Sexual coercion lies on the 'continuum' of sexually aggressive behavior. It can vary from being egged on and persuaded, to being forced to have contact. It can be verbal and emotional, in the form of statements that make you feel pressure, guilt, or shaame. You can also be made to feel forced through more subtle actions. For example, an abusive partner:
      • Making you feel like you owe them - For example, because you're in a relationship, because you've had sex before, because they spent money on you or bought you a gift
      • Giving you drugs and alcohol to "loosen up" your inhibitions
      • Playing on the fact that you're in a relationship, saying things such as: "Sex is the way to prove your love for me," "If I don't get sex from you I'll get it somewhere else"
      • Reacting negatively with sadness, anger or resentment if you say no or don't immediately agree to something
      • Continuing to pressure you after you say no
      • Making you feel threatened or afraid of what might happen if you say no
      • Trying to normalize their sexual expections, for example "I need it, I'm a man"
    • Even if your partner isn't forcing you to do sexual acts against your will, being made to feel obligated is coercion in itself. Dating someone, being in a relationship, or being married never means that you owe your partner intimacy of any kind.
  • Reproductive coercion
    • Reproductive coercion is a form of power and control where one partner strips the other of the ability to control their own reproductive system. It is sometimes difficult to identify this coercion because other forms of abuse are often occuring simultaneously.
    • Reproductive coercion can be exerted in many ways:
      • Refusing to use a condom or other type of birth control
      • Breaking or removing a condom during intercourse
      • Lying about their methods of birth control (for example, lying about having a vasectomy, lying about being on the pill)
      • Refusing to "pull out" if that is the agreed upon method of birth control
      • Forcing you to not use any birth control (for example, the pill, condom, shot, ring, etc.)
      • Removing birth control methods (for example, rings, IUDs, contraceptive patches)
      • Sabotaging irth control methods (for example, poking holes in condoms, tampering with pills or flushing them down the toilet)
      • Withholding finances needed to purchase birth control
      • Monitoring your menstrual cycles
      • Forcing pregnancy and not supporting your decision about when or if you want to have a child
      • Forcing you to get an abortion, or preventing you from getting one
      • Threatening you or acting violent if you don't comply with their wishes to either end or continue a pregnancy
      • Continually keeping you pregnant (getting you pregnant again shortly after you give birth)

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Consent

Consent as Defined by the California Penal Code

California Penal Code §261.6 states consent is “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution.” Per California Penal Code §261.7, a request by a victim for a sexual violence perpetrator to “use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.”

Consent as Defined by the California Education Code

California Education Code §67386 establishes an affirmative consent standard. This is the basis by which campus complaints are decided. "'Affirmative consent' means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent..."

So, keep these important facts in mind when considering consent

The key to preventing sexual violence and misconduct is to obtain valid consent for all sexual activity — from kissing or touching someone on the butt, to oral, vaginal or anal penetration. If consent has not been given or has been withdrawn, sexual activity must be stopped immediately. Important factors to consider about consent include:

  • It is the responsibility of every individual involved in a sex act to obtain clear, ongoing, affirmative consent - even when under the influence of alcohol or other drugs.

  • Individuals under the age of 18 cannot give legal consent.

  • Consent is based on personal choice and requires active participation in decision-making.

  • Consent is not valid if given as a result of fear, coercion, force, violence, threat of violence or retribution.

  • The absence of a “yes” means “no.”

  • A request for condom or birth control use does not, in and of itself, constitute consent.

  • Relationship status, being "in love," previous sexual intimacy with a person, spending money on someone, helping a classmate with a project, or any other circumstance does not obligate anyone to be sexually intimate with someone else if the person does not want to be; nor do these or any other factors entitle anyone to sex.

  • California law allows consent to be withdrawn at any time - including after penetration.

  • Silence and lack of protest or resistance do not mean consent has been given.

  • An incapacitated person cannot give consent. Examples of incapacitation include when an individual:
    • Is asleep.
    • Is unconscious, coming in and out of consciousness, or blacked out.
    • Is under the influence of alcohol, drugs, medications, or other substances to the point where their judgment and decision-making abilities are impaired and the person does not fully understand the sexual activity.
    • Has a mental or physical condition or disability that prevents giving consent.

  • Consent for one act (e.g., intimate touching, oral sex) does not establish consent for other acts (e.g., vaginal sex, anal sex).

So, in a nutshell, only "Yes" means "Yes."

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Criminal Sexual Conduct

Sexual Contact

  • Assault with intent to commit rape, sodomy, oral copulation (§220)...

  • Oral copulation (§288a): Oral-genital or oral-anal contact.

  • Rape (§261): Sexual intercourse with someone who is not the spouse of the perpetrator. Any sexual penetration, however slight, is sufficient to complete the crime of rape.

  • Sexual battery (§243.4): Touching an intimate part (e.g., genitals, anus, groin, or buttocks of anyone; breast of a female).

  • Sexual penetration with a foreign object (§289): Penetration, however slight, of the genital or anal opening of any person or causing someone else to penetrate the perpetrator or another person with any foreign object (including body parts other than a penis), substance, instrument, device, or unknown object.

  • Sodomy (§286): Contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.

  • Spousal rape (§262): Sexual intercourse with the spouse of the perpetrator. Any sexual penetration, however slight, is sufficient to complete the crime.

  • Unlawful sexual intercourse (§261.5): Sexual intercourse with someone who is a minor (less than 18 years of age) and not the perpetrator’s spouse.

Without Consent

  • When a person is incapable of giving legal consent.

  • Against a person’s will with the use of force, violence, coercion, threats, or fear of immediate injury on the victim or another person.

  • With someone who is younger than 18 years of age.

  • When the person is incapable of giving legal consent because of a mental disorder or developmental or physical disability.

  • When a person is prevented from resisting by an intoxicating or other substance (e.g., alcohol).

  • Where a person was unconscious or asleep or not aware of the act.

  • When a person is illegally restrained.

  • Against the victim’s will by threatening to retaliate in the future against the victim or any other person.

  • When deceit is used to make a victim believe the sexual contact is being done by someone other than the person doing it.

  • Against the person’s will by threatening to use the authority of a public official.

  • While voluntarily helping another person to perpetrate the crime.

  • Causing another person to commit these crimes.

Note: The above list does not include all forms of criminal sexual conduct (e.g., indecent exposure).

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Sexual Misconduct as Defined by CSU Policies

CSU Executive Order 1096     |     CSU Executive Order 1097 

Sexual Misconduct. All sexual activity between members of the CSU community must be based on Affirmative Consent. Engaging in any sexual activity without first obtaining Affirmative Consent to the specific activity constitutes Sexual Misconduct and is a violation of this policy, whether or not the conduct violates any civil or criminal law.

Sexual Misconduct is a form of Sexual Harassment and may create a sexually hostile environment that affects access to or participation in CSU programs and activities. CSU prohibits all such conduct whether or not it also amounts to Sexual Harassment.

Sexual activity includes but is not limited to kissing, touching intimate body parts, fondling, intercourse, penetration of any body part, and oral sex.

Affirmative Consent means an informed, affirmative, conscious, voluntary, and mutual agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that s/he has the Affirmative Consent of the other participant(s) to engage in the sexual activity. Lack of protest or resistance does not mean Affirmative Consent, nor does silence mean Affirmative Consent. Affirmative Consent must be voluntary, and given without coercion, force, threats or intimidation.

The existence of a dating or social relationship between those involved, or the fact of past sexual activities between them, should never by itself be assumed to be an indicator of Affirmative Consent. A request for someone to use a condom or birth control does not, in and of itself, constitute Affirmative Consent. 

Affirmative Consent can be withdrawn or revoked. Consent to one form of sexual activity (or one sexual act) does not constitute consent to other forms of sexual activity. Consent given to sexual activity on one occasion does not constitute consent on another occasion. There must always be mutual and affirmative consent to engage in sexual activity. Consent must be ongoing throughout a sexual activity and can be revoked at any time, including after penetration. Once consent is withdrawn or revoked, the sexual activity must stop immediately.

Affirmative Consent cannot be given by a person who is incapacitated. A person is unable to consent when s/he is asleep, unconscious or is incapacitated due to the influence of drugs, alcohol or medication so that s/he could not understand the fact, nature or extent of the sexual activity.  A person is incapacitated if s/he lacks the physical and/or mental ability to make informed, rational decisions.

Whether an intoxicated person (as a result of using alcohol or other drugs) is incapacitated depends on the extent to which the alcohol or other drugs impact the person’s decision-making ability, awareness of consequences, and ability to make informed judgments. A person’s own intoxication or incapacitation from drugs or alcohol does not diminish that person’s responsibility to obtain Affirmative Consent before engaging in sexual activity. 

A person with a medical or mental disability may also lack the capacity to give consent.

Sexual activity with a minor (a person under 18 years old) is not consensual, because a minor is considered incapable of giving consent due to age.  

It shall not be a valid excuse that a person affirmatively consented to the sexual activity if the Respondent knew or reasonably should have known that the person was unable to consent to the sexual activity under any of the following circumstances:

  • The person was asleep or unconscious;
  • The person was incapacitated due to the influence of drugs, alcohol or medication, so that the person could not understand the fact, nature or extent of the sexual activity;
  • The person was unable to communicate due to a mental or physical condition.

It shall not be a valid excuse that the Respondent believed that the person consented to the sexual activity under either of the following circumstances:

  • The Respondent’s belief in Affirmative Consent arose from the intoxication or recklessness of the Respondent;
  • The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the person affirmatively consented.

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Sexual Harassment and Title IX

Title IX of the Education amendments of 1972 prohibits denying or limiting, on the basis of sex, a student's ability to participate in or to receive benefits, services, or opportunities in a school's programs. Title IX protects all students — female, male, transgendered, gender non-conforming, gay, lesbian, bisexual... — in all of the academic, educational, extracurricular, athletic, and other programs or activities of schools. Title IX also prohibits and requires protection against retaliation.

Title IX violations occur when conduct is "sufficiently serious to deny or limit a student's ability to participate in or benefit from the program"  — e.g., anxiety or depression; dropping out of a student organization, leaving a team, or declining class participation in an effort to avoid harassment. Sexual harassment and gender-based harassment are well-known forms of Title IX violations:

  • Sexual harassment: Unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.
    • Decisions or benefits based on submission to unwelcome sexual conduct — e.g., course grade, position on a team, membership in an organization, and a positive performance appraisal.
    • Hostile environment — e.g., sexual gestures, sexual jokes, name calling, showing sexual images or content, spreading sexual rumors.
  • Gender-based harassment: Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature.
    • E.g., harassing, threatening or assaulting a student because she or he isn't "woman" or "man" enough.
  • Domestic and Sexual Violence | Stalking: Title IX violations also encompass dating and domestic violence, sexual violence, and sexually motivated stalking. In its guidance document Sexual Harassment: It's Not Academic, the U.S. Department of Education states — "Sexual harassment includes conduct that is criminal in nature, such as rape, sexual assault, dating violence, and sexually motivated stalking. Even if a school reports possible criminal conduct to the police, that does not relieve the school of its responsibilities under Title IX..."

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Additional Information and Resources | References

See Project SAFE's Resources and:

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References

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