The following definitions are taken from University of San Diego's Sexual Misconduct and Relationship Violence Reporting and Response Standards and Protocols.
“Alleged Offender” is any individual who is alleged to have committed an act or acts of Sexual Misconduct or Relationship Violence.
“Complainant” is a person who reports that he or she has allegedly experienced an act or acts of Sexual Misconduct or Relationship Violence.
“Consent” is an affirmative, conscious and voluntary agreement to engage in sexual activity. It is an informed decision made freely, actively and voluntarily by all parties. 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. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. Lack of protest or resistance does not mean consent, nor does silence mean consent. Consent cannot be obtained by threat, coercion, or force. Furthermore, a current or previous dating or sexual relationship between the persons involved should never by itself be assumed to be an indicator of consent. Being intoxicated does not diminish one’s responsibility to obtain consent.
A person cannot give consent if he or she (1) is a minor (under age 18); (2) has a mental disorder or developmental or physical disability that renders him or her incapable of giving consent, and this is known or reasonably should have been known to the Alleged Offender; (3) is unconscious of the nature of the act, and this is known to the Alleged Offender; or (4) is incapacitated from alcohol or other drugs, and this condition is known or reasonably should have been known to the Alleged Offender. Some indicators that an individual is or may be incapacitated due to intoxication may include, but are not limited to, vomiting, unresponsiveness, inability to communicate coherently, inability to dress/undress without assistance, inability to walk without assistance, slurred speech, loss of coordination, or inability to perform other physical or cognitive tasks without assistance.
For the purpose of this policy, “consent” also includes conduct defined under California Penal Code Section 261.6. California Penal Code definitions are found here.
In the evaluation of any complaints in any University disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the Alleged Offender believed that the Complainant consented to the sexual activity under either of the following circumstances: (a) the Alleged Offender’s belief in affirmative consent arose from the intoxication or recklessness of the Alleged Offender; or (b) the Alleged Offender did not take reasonable steps, in the circumstances known to the Alleged Offender at the time, to ascertain whether the Complainant affirmatively consented.
In the evaluation of any complaints in any University disciplinary process, it shall not be a valid excuse that the Alleged Offender believed that the Complainant affirmatively consented to the sexual activity if the Alleged Offender knew or reasonably should have known that the Complainant was unable to consent to the sexual activity under any of the following circumstances: (a) the Complainant was asleep or unconscious; (b) the Complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the Complainant could not understand the fact, nature, or extent of the sexual activity; (c) the Complainant was unable to communicate due to a mental or physical condition.
“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. The existence of such a relationship shall be determined based on the reporting party’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence. Dating violence also includes conduct that is in violation of California Penal Code Section 13700. California Penal Code definitions are found at www.sandiego.edu/titleix.
“Domestic Violence” means a felony or misdemeanor crime of violence committed by a current or former spouse or intimate partner of the victim; by a person with whom the victim shares a child in common; by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner; by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or by 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 in which the crime of violence occurred. Domestic violence also includes conduct that is in violation of California Penal Code Section 13700. California Penal Code definitions are found at www.sandiego.edu/titleix.
“Relationship Violence” includes Dating Violence and Domestic Violence.
“Sexual Assault” is any unwanted physical contact of a sexual nature that occurs either without the consent of each participant or when a participant is unable to give consent freely. Physical contact of a sexual nature includes, but is not limited to, touching or attempted touching of another person’s breasts, buttocks, inner thighs, groin, or genitalia, either directly or indirectly, or sexual penetration (however slight) of another person’s oral, anal or genital opening. Sexual assault includes, but is not limited to, rape, sodomy, oral copulation, sexual battery, sexual penetration with an object, forcible fondling (e.g. unwanted touching or kissing for purposes of sexual gratification), or threat of sexual assault. Sexual assault can occur either forcibly and/or against a person’s will, or when a person is unable to give consent freely.
For the purpose of this policy, “sexual assault” also includes any sexual offense, as defined by the Clery Act, which is an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s Uniform Crime Reporting (UCR) program. Those definitions are as follows:
- “Rape” 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
- “Fondling” is defined as the touching of the private body parts of another person for the purposes of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his or her age or because of his or her temporary or permanent mental incapacity.
- “Incest” is defined as sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by laws.
- “Statutory rape” is defined as sexual intercourse with a person who is under the statutory age of consent
Per the National Incident-Based Reporting System User Manual from the FBI UCR program, a sex offense is “any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.”
For the purpose of this policy, sexual assault also includes any conduct in violation of California Penal Code Sections 261, 285, or 243.4. California Penal Code definitions are here.
“Sexual Exploitation” is sexual misconduct that occurs when a person takes unjust or abusive sexual advantage of another for his or her own advantage or benefit or for the benefit or advantage of anyone other than the exploited party; and that behavior does not otherwise constitute sexual assault. Examples of sexual exploitation include, but are not limited to, videotaping or photographing of any type (web-cam, camera, Internet exposure, etc.) without knowledge and consent of all persons; prostituting another person; knowingly transmitting HIV or a sexually transmitted disease to an unknowing person or to a person who has not consented to the risk; or inducing incapacitation with the intent to commit sexual assault, without regard to whether sexual activity actually takes place.
“Sexual Harassment” is a form of sex discrimination prohibited by Title IX. It is unwelcome conduct of a sexual nature when submission to such conduct is made either explicitly or implicitly a term or condition of the person’s employment or education; submission to or rejection of such conduct by a person is used as the basis for a decision affecting the person’s employment or education; or such conduct has the purpose or effect of unreasonably interfering with a person’s employment or education or creating an intimidating, hostile, or offensive employment or educational environment. Prohibited conduct can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature.
“Sexual Misconduct” includes Sexual Harassment, Sexual Assault, Sexual Exploitation and Stalking.
“Stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others or to suffer substantial emotional distress. For the purpose of this definition:
- “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.
- “Reasonable person” means a reasonable person under similar circumstances and with similar identities to the victim.
- “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
Stalking also includes any conduct that is in violation of California Penal Code Section 646.9(a). California Penal Code definitions are found here.
“Student” shall have the same meaning as that contained in the Student Code of Rights and Responsibilities.