Sexual Violence and Misconduct

Consent is the Key to Avoiding Sexual Violence

Sexual activity requires consent. If consent hasn't been given, has been revoked, is the result of coercion, or is not valid, the sexual conduct is a criminal act and violation of University policies.

     

    What is sexual violence? Sexual violence is nonconsensual sexual conduct. Sexual violence may include:

    Examples from the CDC's National Intimate Partner and Sexual Violence Survey

    • Being made to penetrate someone else

      • This may be accomplished through physical force (e.g., being pinned or held down, use of violence), using threats of physical harm, or occurring when a victim was drunk, high, drugged, or passed out and unable to consent. Examples of being made to penetrate someone else include:

        • Being made to orally penetrate another person’s vagina or anus.

        • Being made to: penetrate someone's vagina or anus using one’s own penis; orally penetrate someone's vagina or anus; receive oral sex.

        • It also includes attempts to make someone penetrate someone else.

    • Non-contact unwanted sexual experiences

      • Non-contact unwanted sexual experiences don't involve touching or penetration. They include someone:

        • Exposing their genitals or other sexual body parts, flashing, or masturbating in front of the victim.

        • Making a victim show their genitals or breasts.

        • Making a victim look at or participate in sexual photos or movies.

        • Harassing a victim in a public place in a way that made the victim feel unsafe.

    • Rape

      • Completed or attempted unwanted vaginal, 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. The survey categorizes rape in three ways, completed forced penetration, attempted forced penetration, and completed alcohol or drug facilitated penetration. Rape includes:

        • Vaginal, oral, or anal penetration by a penis. It also includes vaginal or anal penetration by someone using their fingers or an object.

    • Sexual coercion

      • Unwanted vaginal, oral, or anal sex after being pressured in ways that include:

        • 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 spreading rumors.

        • Sexual pressure due to someone using their influence or authority.

    • Unwanted sexual contact

      • Unwanted sexual experiences involving touch but not sexual penetration, such as:

        • Being kissed in a sexual way.

        • 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 calling 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 shame. 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, or 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," and "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 expectations, 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 occurring 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)

    The Importance of Consent

    Consent is critical for interactions with others. When it comes to sex, nonconsensual sexual conduct is a crime and violation of University policies. 

    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. Consent must also be obtained for non-contact forms of sexual conduct.

    If consent has not been given or has been withdrawn – California law allows consent to be withdrawn at any time, including after penetration – sexual activity must not be initiated or immediately stopped.

    Consent is Based On

    Positive cooperation by each individual involved.
    • 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 substances.
    • Consent must be based on personal choice and requires active participation in decision-making. 
    • Silence, passiveness and lack of protest or resistance do not mean consent has been given.
    • Care must be taken with power differentials as they can lead to coercion and the inability to refuse or withdraw consent. Even when consensual, relationships with power differences can represent prohibited conduct.
    • Participants must be of legal age to consent to sex. Individuals under the age of 18 cannot give legal consent.
    • The bottom line: The absence of a “yes” means “no.”
    Each individual being able to act freely and voluntarily.
    • Decisions regarding consent must be freely given. Consent is not valid if given as a result of fear, coercion, force, violence, or the threat of violence, retaliation, or retribution.
    • Potential partners cannot be pressured until they give in to sex. This is coercion, not consent.
    • Individuals are able to decline or resist.
    Each person knowing the nature of the acts involved.
    • Consent for one act (e.g., oral sex or intimate touching) doesn’t give consent for others (e.g., anal or vaginal sex).
    • All partners must know the consequences associated with sexual activity.
    • Individuals should understand what the intimate acts entail.
    • Individuals must respect the limits and boundaries communicated to them.
    Not assuming relationship status conveys consent.

    Relationship status (e.g., date, spouse), being “in love,” spending money on someone, giving or receiving gifts, helping someone with a project or preparing for an exam, receiving project or exam help, or any other circumstance does not:

    • Impart consent – whether it’s a hookup or marriage.
    • Obligate anyone to be sexually intimate with someone else if they don’t want to be intimate with that person.
    • Entitle anyone to sex.
    Incapacitated individuals not being subjected to sexual conduct.

    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.

    Additional important considerations.

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

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

    • CSU policy prohibits consensual sexual or romantic relationships between an employee and any student or employee over whom they exercise direct or otherwise significant academic, administrative, supervisory, evaluative, counseling, or extracurricular authority.

    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..."

    Criminal Sexual Conduct Involving Contact

    Sexual Contact 

    • Assault with intent to commit rape, sodomy, oral copulation, and other sexual offenses (California Penal Code [CPC] §220).

    • Oral copulation (CPC §287): Oral-genital or oral-anal contact.

    • Rape (CPC §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. Includes rape of a spouse.

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

    • Sexual penetration with a foreign object (CPC §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 (CPC §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.

    • Unlawful sexual intercourse (CPC §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.

    Sex Trafficking

    Sex trafficking is a form of human trafficking. According to CPC §236.1, human trafficking is depriving or violating the personal liberty of another person with the intent to obtain forced (e.g., obtained through force, fear, fraud, deceit, coercion, violence, threat of unlawful injury) labor or services.

    • Sex trafficking: Depriving or violating the personal liberty of another person with the intent to obtain forced commercial sex.
    • Sex trafficking of juveniles: Causing, inducing or persuading, or attempting to cause, induce or persuade a minor to engage in a commercial sex act.

    Non-Contact Criminal Sexual Conduct

    • Indecent exposure (CPC §314): Exposing intimate/private parts in public or in the presence of others to be offended or annoyed; assisting someone to expose themselves.
    • Invasion of privacy (CPC §647):
      • Intentionally distributing images of a person's intimate body parts or a person engaged in an act os sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation.
        • Without the person's consent or knowledge
        • Under circumstances in which the person agrees or understands the image will remain private, and the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depected suffers distress.
      • Looking through a hole or opening into a bedroom bathroom, changing room, fitting or dressing room, tanning booth, or any other area where the occupant has a reasonable expectation of privacy.
      • Secretly filming, photographing or recording someone under or through their clothing to view their body or undergarments without the person's consent or knowledge, with the intent for arousal, gratify lust or sexual desire.

    Note: This section does not include all forms of criminal sexual conduct.

    Note: Refer to the CSU Policy Prohibiting Discrimination, Harassment, Sexual Misconduct, Sexual Exploitation, Dating Violence, Domestic Violence, Stalking, and Retaliation.

    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 is Sexual Misconduct, whether or not the conduct violates any civil or criminal law.

    • Sexual activity includes, but is not limited to:
      • Kissing
      • Touching intimate body parts
      • Fondling
      • Intercourse
      • Penetration, no matter how slight, of the vagina or anus with any part or object
      • Oral copulation of a sex organ by another person
    • Sexual Misconduct includes, but is not limited to, the following conduct:
      • An attempt, coupled with the ability, to commit a violent injury on the person of another because of that person's Gender or Sex
      • The intentional touching of another person's intimate body parts without Affirmative Consent
      • Intentionally causing a person to touch the intimate body parts of another without Affirmative Consent
      • Using a person's own intimate body part to intentionally touch another person's body without Affirmative Consent
      • Any unwelcome physical sexual acts, such as unwelcome sexual touching
      • Using physical force, violence, threat, or intimidation to engage in sexual activity
      • Ignoring the objections of the other person to engage in sexual activity
      • Causing the other person's incapacitation through the use of drugs or alcohol to engage in sexual activity
      • Taking advantage of the other person's incapacitation to engage in sexual activity
    • Intimate body part means the sexual organ, anus, groin, buttocks, or breasts of any person.
    • Sexual activity between a Minor (a person younger than 18 years old) and a person who is at least 18 and two years older than the Minor always constitutes Sexual Misconduct, even if there is Affirmative Consent to all sexual activity. The existence of Affirmative Consent and/or the type of sexual activity may be relevant to the determination of an appropriate Sanction.
    • Persons of all Genders, Gender Identities, Gender Expressions, and Sexual Orientations can be victims of these forms of Sexual Misconduct. Sexual Misconduct can be committed by an individual known to the victim including a person the Complainant may have just met, ie.g., at a party, introduced through a friend, or on a social networking website.

    Affirmative Consent

    Affirmative Consent must be voluntary and given without coercion, force, threats, or intimidation. It is the responsibility of each person involved in the sexual activity to ensure Affirmative Consent has been obtained from the other participant(s) prior to engaging in the sexual activity.

    • Affirmative Consent means an agreement to engage in sexual activity that is:
      • Informed
      • Affirmative
      • Conscious
      • Voluntary
      • Mutual
    • Lack of protest or resistance does not mean there is Affirmative Consent.
    • Silence does not mean there is Affirmative Consent.
    • 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, mean there is Affirmative Consent.
    • Affirmative Consent can be withdrawn or revoked. Consent must be ongoing throughout a sexual activity and can be revoked at any time, including after sexual activity begins. Once consent is withdrawn or revoked, the sexual activity must stop immediately. 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.

    Incapacitation

    Affirmative Consent cannot be given by a person who is incapacitated. A person is unable to consent when asleep, unconscious, or 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. A person is incapacitated if the person lacks the physical and/or mental ability to make informed, rational decisions. A person with a medical or mental disability may also lack the capacity to give consent.

    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.

    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, or was unable to communicate, due to a mental or physical condition.
    • The person could not understand the fact, nature, or extent of the sexual activity, or 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.

    Sexual Harassment

    Sexual Harassment means unwelcome verbal, nonverbal or physical conduct of a sexual nature that includes, but is not limited to, sexual advances, requests for sexual favors, offering employment benefits or giving preferential treatment in exchange for sexual favors, or indecent exposure, and any other conduct of a sexual nature where:

    • Submission to, or rejection of, the conduct is explicitly or implicitly used as the basis for any decision affecting a Complainant's academic status or progress, or access to benefits and services, honors, programs, or activities available at or through the university; or
    • Submission to, or rejection of, the conduct by the Complainant is explicitly or implicitly used as the basis for any decision affecting a term or condition of the Complainant's employment, or employment decision; or
    • The conduct is sufficiently severe, persistent, or pervasive that its effect, whether or not intended, could be considered by a reasonable person in the shoes of the Complainant, and is in fact considered by the Complainant, as limiting their ability to participate in or benefit from the services, activities or opportunities offered by the university; or
    • The conduct is sufficiently severe, persistent, or pervasive that its effect, whether or not intended, could be considered by a reasonable person in the shoes of the Complainant, and is in fact considered by the Complainant, as creating an intimidating, hostile or offensive environment.

    Sexual Harassment could include being forced to engage in unwanted sexual contact as a condition of membership in a student organization or in exchange for a raise or promotion; being subjected to video exploitation or a campaign of sexually explicit graffiti; or frequently being exposed to unwanted images of a sexual nature in a work environment, or in a classroom where the images are unrelated to the coursework.

    Claiming that the conduct was not motivated by sexual desire is not a defense to a complaint of Sexual Harassment. Sexual and/or romantic relationships between members of the campus may being as consensual, and may develop into situations that lead to Discrimination, Harassment, Retaliation, Sexual Misconduct, Dating or Domestic Violence, or Stalking subject to this policy.

    Sexual Exploitation

    Sexual Exploitation means a person taking sexual advantage of another person for the benefit of anyone other than that person with that person's consent, including, but not limited to, any of the following acts:

    • The prostituting of another person.
    • The trafficking of another person, is defined as the inducement of a person to perform a commercial sex act, or labor of services, through force, fraud, or coercion.
    • The recording of images, including video or photograph, or audio of another person's sexual activity or intimate parts, without that person's consent.
    • The distribution of images, including video or photographs, or audio of another person's sexual activity or intimate parts, if the individual distributing the images or audio knows or should have known that the person depicted in the images or audio did not consent to the disclosure.
    • The viewing of another person's sexual activity or intimate parts, in a place where that other person would have a reasonable expectation of privacy, without that person's consent, for the purpose of arousing or gratifying sexual desire.

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