Affirmative consent is the basis of the analysis applied to unwelcome sexual contact. Lack of affirmative consent is the critical factor in any incident of sexual misconduct. For purposes of this policy, consent must be "affirmative consent" which California Education Code Section 67386 defines as 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.
- Consent is informed, freely and actively given and requires clear communication between all persons involved at each stage of the sexual encounter.
- Consent is active, not passive. Consent must be communicated verbally and it must be mutually understandable. Silence cannot be interpreted as consent.
- It is the responsibility of the initiator of sexual contact to make sure they understand fully what the person with whom they are involved wants and does not want sexually.
- Consent to one form of sexual activity does not imply consent to other forms of sexual activity.
- Previous relationships or consent does not imply consent to future sexual acts. Consent cannot be procured by use of physical force, compelling threats, intimidating behavior or coercion. Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another.
- Effective consent cannot be given by minors, mentally disabled individuals or persons incapacitated as a result of drugs or alcohol.
- If you have sexual activity with someone you know to be—or should know to be—mentally or physically incapacitated (by alcohol or other drug use, unconsciousness or blackout), you are in violation of this policy.
- Incapacitation is a state where one cannot make a rational, reasonable decision because they lack the ability to understand the who, what, when, where, why or how of their sexual interaction.
- This policy also covers someone whose incapacity results from mental disability, sleep, involuntary physical restraint or from the taking of a so-called "date rape" drug. Possession, use and/or distribution of any of these substances, including Rohypnol, Ketamine, GHB, Burundanga, etc. is prohibited, and administering one of these drugs to another student for the purpose of inducing incapacity is a violation of this policy.
- Use of alcohol or drugs will never function to excuse behavior that violates this policy.
The Clery Act, as amended by VAWA, defines new crime categories of domestic violence, dating violence and stalking in accordance with section 40002(a) of the Violence Against Women Act of 1994 as follows:
Domestic Violence means a "felony or misdemeanor crime of violence committed by:
- a current or former spouse or intimate partner of the victim,
- a person with whom the victim shares a child in common,
- a person who is cohabitating with or has cohabited with the victim as a spouse or intimate partner,
- a person similarly situated to a spouse of the victim under the domestic or family violence last of the jurisdiction receiving grant monies (under VAWA), or
- any 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."
Intimate Partner Violence
Intimate Partner Violence means violence committed by a person: who is or has been in a social relationship of a romantic or intimate sexual nature with the Reporting Party; and where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship, the type of the relationship, and the frequency and/or type of interaction between the person’s involved.
Non-Consensual Sexual Contact
Non-Consensual Sexual Contact is any intentional sexual contact, however slight, with any object by a person upon another person that is without consent and by force.
Non-Consensual Sexual Intercourse
Non-Consensual Sexual Intercourse is any intentional sexual intercourse, however slight, with any object by a person upon another person that is without consent and by force.
A Reporting Party is any person who alleges that they are the victim of sexual discrimination.
A Responding Party (or Respondent) is any individual who is alleged to be the perpetrator of sexual discrimination.
Sex Discrimination is behaviors and actions that deny or limit a person's ability to benefit from, and/or fully participate in the educational programs or activities or employment opportunities because of a person's sex. Examples of sex discrimination under Title IX include but are not limited to sexual harassment, failure to provide equal opportunity in education programs and cocurricular programs including athletics, discrimination based on pregnancy and employment discrimination.
Sexual Assault is in general, any non-consensual physical contact of a sextual nature, however slight with any object or body part, by a man or woman upon a man or woman.
Sexual Battery is non-consensual touching (including through clothing) someone’s intimate body part for sexual arousal, gratification, or abuse, if the touching is accomplished:
- against the Reporting Party’s will
- while the Reporting Party is unconscious or incapacitated, or
- using force or fraud.
Sexual Contact is generally defined as intentional touching, however slight, either directly or through the clothing of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person.
Sexual Exploitation occurs when a person takes non-consensual or abusive sexual advantage of another for personal advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses.
Sexual Harassment is unwanted sexual advances, requests for sexual favors or visual, verbal or physical conduct of a sexual nature when: (1) submission to such conduct is made a term or condition of employment or the educational relationship; (2) submission to or rejection of such conduct is used as a basis for employment or education decisions affecting the individual; or (3) such conduct has the effect of unreasonably interfering with a student's educational experience or employee's work performance or creating an intimidating, hostile or offensive working, education or living environment. While sexual harassment encompasses a wide range of conduct, some examples of specifically prohibited conduct include:
- Promising, directly or indirectly, a student or employee a reward if the student or employee complies with a sexually oriented request.
- Threatening, directly or indirectly, retaliation against a student or an employee if the student or employee refuses to comply with a sexually oriented request.
- Denying, directly or indirectly, a student or employee an employment or education related opportunity if the student or employee refuses to comply with a sexually oriented request. Engaging in sexually suggestive conversation or physical contact or touching another student or employee.
- Displaying pornographic or sexually oriented materials, including but not limited to text messages, emails and social media postings.
- Degrading words or offensive terms of a sexual nature.
- Engaging in indecent exposure.
- Making sexual or romantic advances toward a student or employee and persisting despite the student or employee's rejection of the advances.
- Physical conduct such as assault, touching or blocking normal movement.
- Refusing to hire or promote, or granting or denying certain privileges because of acceptance or rejection of sexual advances.
- Promising work-related benefit or a grade in return for sexual favors.
- Suggestive or inappropriate communications, notes, letters, or other written materials displaying objects or pictures that are sexual in nature and that would create a hostile or offensive work or living environment.
- Innuendoes, comments, and remarks about a person’s clothing, body, activities, or appearance.
- Suggestive or insulting sounds.
- Whistling in a suggestive manner.
- Humor or jokes about sex that denigrate men or women.
- Sexual propositions, invitations, or pressure for sexual activity and/or implied or overt sexual threats.
- Suggestive or obscene gestures.
- Patting, pinching, and other inappropriate touching.
- Touching (including through clothing) an intimate body part for sexual arousal, gratification, or abuse (if the touching is accomplished against the person’s will, while the person is unconscious or incapacitated, or using force or fraud).
- Unnecessary touching or brushing against the body.
- Attempted or actual kissing or fondling.
- Coerced sexual intercourse.
- Using a recording device which includes but not limited to, the use of a camera, cell phone, unmanned aerial vehicle (commonly known as a drone), and/or Google Glass or similar device, to make or attempt to make an audio or video record of any person(s) in bathrooms, showers, locker rooms, bedrooms, or other locations where there is a reasonable expectation of privacy.
- Retaliation for making harassment reports or threatening to report harassment.
- Sexual harassment can involve males or females being harassed by members of either sex. Although sexual harassment sometimes involves a person in a greater position of authority as the harasser, individuals in positions of lesser or equal authority also can be found responsible for engaging in prohibited harassment.
- Sexual harassment can be physical and/or psychological in nature. An aggregation of a series of incidents can constitute sexual harassment even if one of the incidents considered separately would not rise to the level of harassment.
Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for personal safety or the safety of others; or suffer substantial emotional distress, which includes the use of technology (cyberstalking) to annoy or harass an individual. Stalking includes, but is not limited to, the following:
- Unwanted or obsessive attention.
- Repeated unwanted contact, calls, and/or electronic communication.
- Unwanted monitoring and/or tracking.
- Giving unwanted gifts.
Voyeurism means peeking in a door or window of another person’s home or housing area for no legitimate reason, or intentionally invading a person’s privacy through the use of a telescope, binoculars, a mobile phone, or any other device to view the person in a place where privacy is expected. Video voyeurism is using a concealed camera or recording device to observe or record another person’s intimate body party (clothed or unclothed) without consent, in a place where privacy is expected, for the purpose of the viewer’s gratification or invading the other person’s privacy.
California Baptist University is committed to providing a learning, working and living environment that promotes personal integrity, civility and mutual respect in an environment free of discrimination on the basis of sex, which includes all forms of sexual misconduct. Sex discrimination violates an individual's fundamental rights and personal dignity. CBU considers sex discrimination and sexual misconduct in all forms to be a serious offense. Sexual misconduct includes but is not limited to: Sexual Harassment, Sexual Assault, Sexual Exploitation, Domestic Violence, and Intimate Partner Violence by employees, Students or third parties.