What is sexual assault or rape?
Sexual assault can be any form of forced sexual contact. Force can be physical or emotional (threat, intimidation, pressure, coercion). Rape is a type of sexual assault usually involving sexual intercourse which is initiated by one or more persons against another person without that person's consent.
The University uses the terms “Non-Consensual Sexual Contact” and “Non-Consensual Sexual Intercourse” within the Policy and Procedures for Student Sexual Misconduct Complaints (the “Sexual Misconduct Policy”) to describe incidents often captured under the umbrella term “sexual assault.” Definitions from the Sexual Misconduct Policy are provided below. Note that the definitions of “Non-Consensual Sexual Contact” and “Non-Consensual Sexual Intercourse” contain within them defined terms that are also set forth below.
“Non-Consensual Sexual Contact” means Sexual Contact that occurs without Effective Consent.
“Non-Consensual Sexual Intercourse” means Sexual Intercourse that occurs without Effective Consent.
“Effective Consent” means words or actions that show a knowing and voluntary agreement to engage in mutually agreed-upon sexual activity. Effective Consent cannot be gained by Force, by ignoring or acting in spite of the objections of another, or by taking advantage of the Incapacitation of another, where the accused student knows or reasonably should have known of such Incapacitation. Effective Consent is also absent when the activity in question exceeds the scope of Effective Consent previously given. In addition, certain states have designated a minimum age under which a person cannot give “Effective Consent.”
“Force” means physical force, violence, threat, intimidation or coercion.
“Incapacitation” means the physical and/or mental inability to make informed, rational judgments. States of Incapacitation include, without limitation, sleep, blackouts, and flashbacks. Where alcohol is involved, one does not have to be intoxicated or drunk to be considered Incapacitated. Rather, Incapacitation is determined by how the alcohol consumed impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. The question is whether the accused student knew, or a sober, reasonable person in the position of the accused student should have known, that the complainant was Incapacitated. Because Incapacitation may be difficult to discern, students are strongly encouraged to err on the side of caution; i.e., when in doubt, assume that another person is Incapacitated and therefore unable to give Effective Consent. Being intoxicated or drunk is never a defense to a complaint of Sexual Misconduct under this Policy.
“Sexual Contact” means the deliberate touching of a person’s intimate parts (including genitalia, groin, breast or buttocks, or clothing covering any of those areas), or using Force to cause a person to touch his or her own or another person’s intimate parts.
“Sexual Intercourse” means penetration (anal, oral or vaginal) by a penis, tongue, finger, or an inanimate object.
These definitions from the Sexual Misconduct Policy differ from those used by the Commonwealth of Virginia to define sexual assault for the criminal justice system. In some cases, the University’s definitions include behaviors that, while not codified as criminal under the Virginia statutes, still violate the Standards of Conduct to which all University students are held. Conduct may also be both punishable under the criminal statutes and University policy. These processes are separate and distinct from one another, however, but can run concurrently. The codification of Criminal Sexual Assault is located in Va. Code §§ 18.2-61 through -67.10 and can be accessed on the Code of Virginia web site at http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC.
What is effective consent?
Effective Consent, as noted above, means words or actions that show a knowing and voluntary agreement to engage in mutually agreed-upon sexual activity.
- Requires Communication
Words or actions must be used to establish consent. The absence of “no” does not equal “yes.”
- Must Entail An Uninfluenced yes
Consent cannot be established if one person if pressuring the other- this can be physical or emotional. Pressuring another person by saying things like “if you love me you’ll do this”, “I’ll find it elsewhere if I don’t get it from you” does not lead to effective consent and is not respectful of the other person’s wishes.
- Happens one step at a time - every time
Just because your partner agrees to one thing, that does not mean they agree to everything. Oral sex does not give consent for intercourse and vice versa. Also, just because you have hooked up one time, it does not give permission for every other time- even if you are in a relationship, even if it has happened many times before.
- Is free to be taken back at any time
At any point during a sexual encounter each partner should feel free to change his or her mind and the other partner must respect that person’s decision.
See Va. Code §18.2-63 for the age of consent under Virginia law: http://leg1.state.va.us/000/cod/18.2-63.HTM.