Affirmative Consent Definition |
Consent Definition |
“Affirmative consent" means affirmative, conscious and voluntary agreement to engage in sexual activity. |
Consent consists of an affirmative, conscious decision by each participant to engage in mutually agreed-upon sexual activity. |
It is the responsibility of each person involved in the sexual activity to ensure that he or she has the consent of the other or others to engage in the sexual activity. |
All parties must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting and a willingness to do the same thing, at the same time, in the same way. |
Lack of protest or resistance does not mean consent, nor does silence mean consent. |
Consent may not be inferred from silence, passivity, lack of resistance or lack of active response. An individual who does not physically resist or verbally refuse sexual activity is not necessarily giving consent. |
Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. |
Consent may be withdrawn by any party at any time. Recognizing the dynamic nature of sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate clearly throughout all stages of sexual activity. |
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. |
Even in the context of a current or previous relationship, each party must consent to each instance of sexual contact each time. The consent must be based on mutually understandable communication that clearly indicates a willingness to engage in sexual activity. The mere fact that there has been prior intimacy or sexual activity does not, by itself, imply consent to future acts. |
It shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under the following circumstance: The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused or the accused did not take reasonable steps in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented. |
Being intoxicated or impaired by drugs is never an excuse for sexual harassment, sexual violence, stalking or intimate partner violence and does not diminish one’s responsibility to obtain consent. |
It shall not be a valid excuse that the accused believed that the complainant affirmatively consented to sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
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The complainant was asleep or unconscious.
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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.
- The complainant was unable to communicate due to a mental or physical condition.
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Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity because s/he lacks conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why or how of the sexual interaction) and/or is physically helpless. An individual is incapacitated, and therefore unable to give consent, if s/he is asleep, unconscious, or otherwise unaware that sexual activity is occurring.
Incapacitation may result from the use of alcohol and/or drugs. Consumption of alcohol or other drugs alone is insufficient to establish incapacitation. The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs impact an individual’s:
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decision-making ability;
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awareness of consequences;
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ability to make informed judgments; or
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capacity to appreciate the nature and quality of the act.
Evaluating incapacitation also requires an assessment of whether a respondent knew or should have known that the complainant was incapacitated. |
Policies and Protocols |
Policies and Protocols |
Preponderance of evidence standard. |
Oxy uses a preponderance of evidence standard in adjudicating complaints. |
Must have detailed and victim-centered policies and protocols that comport with best practices and current professional standards. At a minimum policies and protocols shall include the following: |
Oxy is committed to survivor-centered policies and protocols as well as a neutral and fair formal process. As best practices are still emerging, we engage in a continuing review of our policies, procedures and protocols. |
Protections for the privacy of individuals involved, including confidentiality. |
Section IV, “Confidentiality v. Privacy," states: “The College is committed to protecting the privacy of all individuals involved in a report of sexual harassment, sexual violence, stalking, or intimate partner violence." Internal protocols for protection of the privacy of individuals involved in the process. |
Response to stranger and non-stranger assault. |
Oxy policies and procedures apply to all reports of assault, whether stranger or non-stranger. |
Preliminary survivor interview, including development of survivor interview protocol, and comprehensive follow-up survivor interview. |
The Title IX Office has internal protocols for initial assessment and other interviews. |
Contacting and interviewing the respondent. |
The Title IX Office has internal protocols for contacting and interviewing respondents, complainants and witnesses. |
Written notification to survivor about availability of, and contacts for, on- and off-campus resources and services, and coordination with law enforcement. |
The Title IX Office provides written notice to complainants and respondents of their rights during the process and available support on and off campus. This information is also included in printed brochures distributed on campus and online. |
Participation of survivor advocate and other support people. |
A full-time confidential survivor advocate has been in place since April 2013. The survivor advocate can also act as advisor or support person. Per Oxy policy, both the complainant and respondent have a right to an advisor throughout the process, including any hearing, as well as the right to a support person at the hearing. |
Investigating allegations that alcohol or drugs were involved. |
As part of the investigative process, allegations that alcohol or drugs were involved are investigated. |
Amnesty program for survivors and witnesses so they are not sanctioned for violations of student conduct policy. |
Oxy policy provides for amnesty for alcohol and drug violations when reporting sexual misconduct. |
Role of institutional staff supervision. |
We look forward to a clarification of this provision, which isn’t clear. |
Comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating cases. |
The Title IX Office ensures that all individuals involved in investigation and adjudication receive specialized training on their specific roles. If external investigators are used, we verify that they have received full and appropriate training. |
Procedures for confidential reporting by victims and third parties. |
Confidential reports cans be made to the survivor advocate, Emmons Student Wellness Center counselors, and ordained clergy in the Office for Religious & Spiritual Life. It also is possible to submit an anonymous report online. |
MOU or partnerships with on-campus and community-based organizations. |
Oxy is a partner with Peace Over Violence and has signed an MOU with the LAPD. |
Must implement comprehensive prevention and outreach programs that include: |
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Empowerment programming for victim prevention. |
All students must undergo online training to be able to register for classes; first-years get bystander and additional training at Orientation. |
Awareness-raising campaigns. |
Project SAFE, a prevention and intervention support program, runs training and awareness programs throughout the year. |
Primary prevention. |
Mandatory student education and training programs all seek prevention. |
Bystander intervention. |
Bystander intervention is part of student training and education. |
Risk reduction. |
Mandatory preventative education and training programs, clear understanding of policies and sanctions, and the climate survey are all aimed at risk reduction. |
Inform student body about campus policy, affirmative consent standard, students’ rights and responsibilities. |
All students must undergo online training to be able to register for classes; first-years get mandatory bystander and additional training at Orientation. Additional programs are being implemented by Oxy’s director of prevention education. |
Must be part of new student orientation. |
First-years get mandatory bystander and additional training at Orientation. |