What is Sexual Assault or Rape?

Sexual assault can be any form of forced sexual contact. Force can be physical or emotional (there are four types of force: 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 following definitions related to sexual assault under the Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence.

Sexual Assault consists of (1) Sexual Contact and/or (2) Sexual Intercourse that occurs without (3) Affirmative Consent.

Sexual Contact is:

  • Any intentional sexual touching
  • However slight
  • With any object or body part (as described below)
  • Performed by a person upon another person

Sexual Contact includes (a) intentional touching of the breasts, buttocks, groin or genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; and (b) making another touch you or themselves with or on any of these body parts.

Sexual Intercourse is:

  • Any penetration
  • However slight
  • With any object or body part (as described below)
  • Performed by a person upon another person

Sexual Intercourse includes (a) vaginal penetration by a penis, object, tongue, or finger; (b) anal penetration by a penis, object, tongue, or finger; and (c) any contact, no matter how slight, between the mouth of one person and the genitalia of another person.

Affirmative Consent is:

  • Informed (knowing)
  • Voluntary (freely given)
  • Active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity

Affirmative Consent cannot be obtained by Force.  Force includes (a) the use of physical violence, (b) threats, (c) intimidation, and/or (d) coercion.

(a)  Physical violence means that a person is exerting control over another person through the use of physical force.  Examples of physical violence include hitting, punching, slapping, kicking, restraining, choking, and brandishing or using any weapon.

(b) Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity.  Examples include threats to harm a person physically, to reveal private information to harm a person’s reputation, or to cause a person academic or economic harm.

(c)  Intimidation is an implied threat that menaces or causes reasonable fear in another person.  A person’s size, alone, does not constitute intimidation; however, how a person uses their size may constitute intimidation (e.g., blocking access to an exit).

(d) Coercion is the use of an unreasonable amount of pressure to gain sexual access.  Coercion is more than an effort to persuade, entice, or attract another person to have sex.  When a person makes clear that they do not want to participate in a particular form of Sexual Contact or Sexual Intercourse, that they want to stop, or that they do not want to go beyond a certain sexual interaction, continued pressure can be coercive.  In evaluating whether coercion was used, the University will consider: (i) the frequency of the application of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the duration of the pressure.

Affirmative Consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated.  Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity. 

These definitions from the Policy on Sexual and Gender-Based Harassment and Other Forms of Interpersonal Violence may 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 Affirmative consent?

Affirmative Consent, as noted above, means clear words or actions that show a knowing and voluntary agreement to engage in mutually agreed-upon sexual activity. Affirmative consent is the presence of a yes, not the absence of a no.

Affirmative consent:

 

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.

Sokolow, Brett A., Lewis, W. Scott, Schuster, Saundra K., NCHERM Institute on Responding to Campus Sexual Misconduct. 2010, p. 49.