SEXUAL MISCONDUCT POLICY (FOR STUDENTS)
Sexual and Other Sexual Assaults on Campus, Board Policy 3540
I. Any sexual assault or physical abuse, including, but not limited to rape as defined by California law, whether committed by an employee, student or member of the public, that occurs on district property, is a violation of district policies and procedures, and is subject to all applicable punishment, including criminal procedures and employee or student discipline procedures. Students, faculty, and staff who may be victims of sexual and other assaults shall be treated with dignity and provided comprehensive assistance. The President / Superintendent shall establish administrative procedures that ensure that students, faculty, and staff who are victims of sexual and other assaults receive appropriate information and treatment, and that educational information about preventing sexual violence is provided and publicized as required by law.
II. See Administrative Procedures 3540
III. Reference: Education Code Section 67382, 67385; 20 US.C. § 1092(f); 34 C.F.R. § 668.46(b)(11) (CCLC)
Other Misconduct Offenses (Will Fall under Title IX When Sex or Gender-Based)
- Threatening or causing physical harm, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of any person;
- Discrimination, defined as actions that deprive other members of the community of educational or employment access, benefits or opportunities on the basis of gender;
- Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another;
- Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the college community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity;
- Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally (that is not speech or conduct otherwise protected by the 1st Amendment).
- Violence between those in an intimate relationship to each other; and
- Stalking, defined as repetitive and/or menacing pursuit, following, harassment and/or interference with the peace and/or safety of a member of the community; or the safety of any of the immediate family of members of the community.
- An umbrella term for offenses that are sexual or gender-based, which include, but are not limited:
- Sexual Harassment
- Non-Consensual Sexual Contact (or attempts to commit same)
- Non-Consensual Sexual Intercourse (or attempts to commit same)
- Sexual Exploitation
Non-Consensual Sexual Contact
Non-consensual sexual contact is any intentional sexual touching, however slight, with any object, by a man or a woman upon a man or a woman that is without consent and/or by force. The determination of whether an environment is “hostile” must be based on all of the circumstances. These circumstances could include:
- The frequency of the conduct;
- The nature and severity of the conduct;
- Whether the conduct was physically threatening;
- Whether the conduct was humiliating;
- The effect of the conduct on the alleged victim’s mental or emotional state;
- Whether the conduct was directed at more than one person;
- Whether the conduct arose in the context of other discriminatory conduct;
- Whether the conduct unreasonably interfered with the alleged victim’s educational or work performance;
- Whether the statement is a mere utterance of an epithet which engenders offense in an employee or student, or offends by mere discourtesy or rudeness
- Whether the speech or conduct deserves the protections of academic freedom or the 1st Amendment.
Sexual Contact Includes
Intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.
Non-Consensual Sexual Intercourse
Non-Consensual Sexual Intercourse is any sexual intercourse however slight, with any object, by a man or woman upon a man or a woman that is without consent and/or by force. Intercourse includes: vaginal penetration by a penis, object, tongue or finger, anal penetration by a penis, object, tongue, or finger, and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.
Sexual Harassment is unwelcome, gender-based verbal or physical conduct that is, sufficiently severe, persistent or pervasive that it, unreasonably interferes with, denies or limits someone’s ability to participate in or benefit from the college’s educational program and/or activities, and is based on power differentials (quid pro quo), the creation of a hostile environment, or retaliation.
Examples include: an attempt to coerce an unwilling person into a sexual relationship; to repeatedly subject a person to egregious, unwelcome sexual attention; to punish a refusal to comply with a sexual based request; to condition a benefit on submitting to sexual advances; sexual violence; intimate partner violence, stalking; gender-based bullying.
Occurs when a student takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of other sexual misconduct offenses. Examples of sexual exploitation include, but are not limited to:
- Invasion of sexual privacy;
- Prostituting another student;
- Non-consensual video or audio-taping of sexual activity;
- Going beyond the boundaries of consent (such as letting your friends hide in the closet to watch you having consensual sex);
- Engaging in voyeurism;
- Knowingly transmitting an STI or HIV to another student;
- Exposing one’s genitals in non-consensual circumstances; inducing another to expose their genitals;
- Sexually-based stalking and/or bullying may also be forms of sexual exploitation
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Elements of force also includes physical force, threats, intimidation (implied threats) and coercion that overcome resistance or produce consent (“Have sex with me or I’ll hit you. Okay, don’t hit me. I’ll do what you want.”).
Physical Force (violence, abuse, compulsion) – Physical force is the classic construct, equated with violence or the use of a weapon. No matter how slight, any intentional physical impact upon another, use of physical restraint or the presence of a weapon constitutes the use of force.
Threats (harassment) – Any threat that causes someone to do something they would not have done absent the threat is enough to prove forcible compulsion. For example, if I threaten you with a negative consequence and that threat causes you to acquiesce in sexual activity, forcible compulsion is present, and sexual misconduct has occurred.
- If you don’t have sex with me, I will harm someone close to you
- If you don’t have sex with me, I will tell people you raped me
- If you do not have sex with me, I will spread a rumor you are gay
- If you don’t sleep with me, I will fail you
Intimidation (implied threats, abuse) – Intimidation is defined as an implied threat, whereas threats are clear and overt. It is a situation where someone uses their power or authority to influence someone else.
Coercion (pressure, duress, cajoling, compulsion, abuse) – 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. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
- Cases will be investigated regardless of whether the accuser resisted the sexual advance or request, but resistance is a clear demonstration of non-consent. The presence of force is not demonstrated by the absence of resistance. Sexual activity that is forced is by definition non-consensual, but non-consensual sexual activity is not by definition forced.
- In order to give effective consent, one must be of legal age (18 years or older).
- Sexual activity with someone who one should know to be—or based on the circumstances should reasonably have known to be—mentally or physically incapacitated (by alcohol or other drug use, unconsciousness or blackout), constitutes a violation.
A course of conduct directed at a specific person that would cause a reasonable person to feel fear or suffer substantial emotional distress. Stalking involves repeated and continued harassment against the expressed wishes of another individual, which causes the targeted individual to feel emotional distress, including fear or apprehension. Stalking behaviors may include: pursuing or following; unwanted communication or contact—including face-to-face, telephone calls, voice messages, electronic messages, web-based messages, text messages, unwanted gifts, etc.; trespassing; and surveillance or other types of observation.
The use of physical violence, coercion, threats, intimidation, isolation, stalking, or other forms of emotional, sexual or economic abuse directed towards (a) a current or former spouse or intimate partner; (b) a person with whom one shares a child; or (c) anyone who is protected from the respondent’s acts under the domestic or family violence laws of California. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone. Domestic violence can be a single act or a pattern of behavior in relationships.
The use of physical violence, coercion, threats, intimidation, isolation, stalking, or other forms of emotional, sexual or economic abuse directed towards a person who is or has been in a social relationship of a romantic or sexually intimate nature with the victim. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone. Dating violence can be a single act or a pattern of behavior in relationships.
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 the 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 she/he is unconscious or coming in and out of consciousness. A person cannot consent if she/he is under the threat of violence, bodily injury or other forms of coercion. A person cannot consent if her/his understanding of the act is affected by a physical or mental impairment.
Any act of reprisal is a violation of policy. Examples of actions that might be retaliation against a complainant, witness, or other participant in the complaint process include:
- Singling the person out for harsher treatment;
- Lowering a grade or evaluation;
- Failing to hire, failing to promote, withholding pay increase, demotion, or discharge;
- Providing negative information about the person in order to interfere with his or her prospects for employment, admission, or academic program.
A hostile environment may arise when unwelcome conduct of a sexual or gender-based nature affects a student’s ability to participate in or benefit from an education program or activity, or creates an intimidating, threatening or abusive educational and/or living environment. A single, isolated incident of sexual or gender-based harassment may, based on the facts and circumstances, create a hostile environment.
Incapacitation is a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction).
District policy also covers a person whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of rape drugs. Possession, use and/or distribution of any of these substances, including but not limited to Rohypnol, Ketamine, GHB, Burundanga, etc., is prohibited, and administering one of these drugs to another student is a violation. More information on these drugs can be found at 911 Rape Information.
“Complainant” means the person(s) reporting alleged violations of this Student Code of Conduct.
“Respondent” means the person(s) who are alleged to have violated the Student Code of Conduct.