A. Affirmative Consent

Consent represents the cornerstone of respectful and healthy intimate relationships. La Sierra University strongly encourages its community members to communicate - openly, honestly and clearly about their actions, wishes, and intentions when it comes to sexual behavior, and to do so before engaging in intimate conduct. Many of the prohibited behaviors involve a lack of consent. Affirmative consent means affirmative, conscious, and voluntary agreement to engage in sexual activity. Affirmative consent is present when clearly understandable words or actions manifest a knowing, active, voluntary, and present and ongoing agreement to engage in specific sexual or intimate conduct. It is positive cooperation in act and attitude with knowledge and agreement to the nature of the sexual act. Affirmative consent is required for any sexual activity between two or more persons. It is the responsibility of each person involved to be sure they have the affirmative consent of the other(s) to engage in the sexual activity. Affirmative consent must be ongoing throughout the sexual activity and may be revoked any time. Affirmative consent must be all of the following:

• Knowing: Consent must demonstrate that all individuals understand, are aware of, and agree to the “who” (which partners), “what” (what acts), “when” (when the acts occur), and “how” (how the acts are performed and under what conditions)
• Active: Consent must take the form of "clearly understandable words or actions" that reveal one's expectations and agreement to engage in specific sexual activity. This means that silence, passivity, submission, and/or the lack of verbal or physical resistance (including the lack of a "no") should not - in and of itself - be understood as consent. Consent cannot be inferred by an individual's manner of dress, the giving or acceptance of gifts, the extension or acceptance of an invitation to go to a private room or location, going on a date, or consumption of alcohol and/or drugs.
• Voluntary: Consent must be freely given and cannot be the result of force (violence, physical restraint, or the presence of a weapon), threats (indications of intent to harm, whether direct or indirect), intimidation (extortion, menacing behavior, bullying), coercion (undue pressure, manipulation, threats, blackmail depending on the frequency, intensity, level of isolation of the victim, and duration of the pressure) or fraud (misrepresentation or material omission about oneself or the present situation in order to gain permission for sexual or intimate activity).
• Present and ongoing: Consent must exist at the time of the sexual activity. Consent to previous sexual activity does not imply consent to later sexual acts; similarly, consent to one type of sexual activity does not imply consent to other sexual acts. Consent may also be withdrawn at any time.

B. Incapacitation

Consent is not present when individuals do not have the capacity to give consent, voluntarily or involuntarily, due to age (see CA Penal Code 261-269), physical condition, or disability that impairs an individual’s ability to give consent. A lack of consent can occur as a result of, but is not limited to, the consumption of drugs or alcohol (voluntarily or involuntarily), a state of unconsciousness, sleep, or other state in which individuals are unaware that sexual activity is occurring. Sexual intercourse with a minor is unlawful in California and one who engages in felony unlawful sexual intercourse does so without effective consent. There is no effective consent under this policy if one party is under the age of 18 and the other party is more than three years older than the minor. Individuals are incapacitated if they cannot make an informed and rationale decision to engage in sexual activity because of a lack of conscious understanding of the fact, nature, or extent of the act. In keeping with La Sierra University's mission and its heritage as a Seventh-day Adventist university, the University actively discourages members of its campus community from using alcohol or drugs for non-medical purposes in any form. The University, however, recognizes that members of its community may make choices that are inconsistent with the University's expectations for alcohol and drug use. Sexual activity under the influence of alcohol or drugs poses a risk to all parties. That said, incapacitation may result from drugs or alcohol, but consumption of drugs and/or alcohol alone may not establish incapacitation. In evaluating affirmative consent cases involving incapacitation, the University will determine whether the reporting party was incapacitated. Being intoxicated or impaired by drugs or alcohol does not excuse one from the responsibility to obtain consent to engage in sexual acts. Being intoxicated or impaired by drugs or alcohol is not a defense to any violation of this policy. Nor is it a valid excuse that the respondent believed that the reporting party affirmatively consented to sexual activity if the respondent knew or should have known that the reporting party was unable to consent. It is irrelevant if the respondent actually knew the reporting party’s incapacity even if the responding party’s own incapacitation caused him or her to misjudge the reporting party’s incapacitation. Signs of incapacitation include individuals demonstrating that they are unaware of where they are, how they got there, or why or how they became engaged in a sexual interaction. Some indicators of a lack of capacity to give consent due to consumption of drugs or alcohol may include, but are not limited to:

• A lack of full control over physical movements (for example, difficulty walking or standing without stumbling or assistance).
• A lack of awareness of circumstances or surroundings (for example, lack of awareness of where one is, how one got there, who one is with, or how or why one became engaged in sexual interaction).
• An inability to effectively communicate for any reason (for example, slurring speech, difficulty finding words).

A person may appear to be giving consent but may not have the capacity to do so, in which case the apparent consent is not effective. If there is any doubt as to another person's capacity to give consent, one should assume that the other person does not have the capacity to give consent. In evaluating affirmative consent cases involving incapacitation, the University will determine whether a reasonable, sober person should have known that the reporting party was incapacitated and thus unable to consent to sexual activity. Reasonable belief (based on the totality of circumstances which the reporting party knew or reasonably should have known) in affirmative consent is a defense to sexual assault and non-consensual sexual contact.

C. Prohibited Conduct

La Sierra University prohibits all forms of sexual misconduct. Such conduct violates the community values and principles of our institution and disrupts the living, learning, and working environment for students, faculty, staff and other community members. The University specifically prohibits the conduct listed below. An attempt or threat to commit an act identified in this policy, as well as assisting or willfully encouraging any such act, are also considered a violation of this policy.

1. Sexual Assault and Non-Consensual Sexual Contact: Sexual Assault is penetration, however slight, (vaginal or anal with a body part or object) and mouth to genital contact of another individual by force or threat, without effective, affirmative consent, or where that individual is incapacitated. Non-Consensual Sexual Contact includes intentional contact with the intimate parts of another, causing an individual to touch their own intimate body parts (e.g. breasts, genitals, mouth or any other part of the body that is touched in a sexual manner), or exposing or disrobing another by force or threat, without effective, affirmative consent, or where that individual is incapacitated.
   
   
2. Sexual Exploitation: Taking non-consensual or abusive sexual advantage of another person for the benefit or advantage of oneself or a third party, e.g. spying on someone nude, taking or sharing images of sexual activity or nudity, inducing incapacitation.
   
   
3. Stalking: A course of conduct (two or more acts of following, monitoring, observing or surveilling) directed at a specific person that would cause a reasonable person to fear for their safety (or the safety of a third party) or suffer substantial emotional distress, which may or may not require medical or other professional treatment or counseling. Stalking, as used herein, includes cyber-stalking. Other examples of stalking include threatening to harm self or others, defamation, and vandalizing property.
   
   
4. Intimate Partner Violence: Any act of violence (physical, sexual, psychological, emotional, economic) or threatened act of violence against a person who is, or has been in, a sexual, dating, spousal, domestic or other intimate relationship with the reporting party.
   
   
5. Sexual or Gender-Based Harassment: Sexual harassment is any unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, sexual assault or acts of sexual violence whether verbal, physical, graphic or otherwise. Gender harassment is harassment based on sex, sexual orientation, gender identity, or gender expression and may or may not be sexual.
   
   Hostile environment harassment
   
   Sexual harassment that is sufficiently severe, persistent, or pervasive to interfere with, deny or limit a student, staff member or faculty member’s ability to participate in or benefit from the University’s programs or activities creates a hostile environment, a form of sex discrimination prohibited by Title IX and this policy. The totality of the known circumstances will be considered in determining if a hostile environment was created including the type of harassment (verbal or physical), frequency, severity, age, sex and relationship of the individuals involved, and the setting and context. The more severe the conduct, the less frequent or pervasive is needed to prove a hostile environment. One instance of sexual assault could support a finding of hostile environment.
   
   Quid Pro Quo harassment
   
   Submissions to or rejection of sexual conduct is made, explicitly or implicitly, a term or condition of any aspect of a program or activity or is used as a basis for the University’s decisions affecting the individual. When sexual favors are used or threatened to be used as a basis for academic or employment decisions.
   
   
6. Sex or Gender-Based Discrimination: Disparate treatment of a person or group because of their sex, sexual orientation, gender identity or gender expression.
   
   
7. Retaliation: An adverse action (e.g. conduct that threatens, harasses, coerces or intimidates) taken against a person for making a good faith report of prohibited conduct, providing information, exercising one’s rights or responsibilities under this policy, or for otherwise being involved in the process of responding to, investigating, or addressing allegations of sexual misconduct. Retaliation can be substantiated without a finding that there is responsibility for prohibited conduct. Third parties (i.e. not the reporting or responding party) can be the victims or perpetrators of retaliation.
   
   Allegations of retaliatory actions, such as intimidation, threats, or coercion against any individual for having engaged in the above activities, will be addressed by La Sierra University. Anyone who is aware of possible retaliation or has other concerns regarding the response to a complaint of sexual misconduct should report such concerns to the Title IX Coordinator who will ensure that the matter is investigated and make recommendations to the University to enable appropriate actions to be taken in a fair and impartial manner. Individuals who engage in such actions are subject to disciplinary action that may include, but is not limited to, the sanctions listed in Procedures Section 7B, up to and including exclusion, expulsion, or dismissal from the University, and termination of employment, including revocation of tenure.
   
   Harassment and retaliation against members of the La Sierra University community are not protected expression or the proper exercise of academic freedom. The University will consider academic freedom in the investigation of reports of sexual misconduct or retaliation that involve individuals' statements or speech.
   
   
8. Violation of an Interim Measure: In responding to a report of prohibited conduct, the University may implement interim measures. Some interim protective measures require compliance by the responding party, such as no contact orders, access or participation restriction, or suspension. Violation of interim measures is a separate policy violation and is not dependent on substantiation of the reported or underlying policy violation.