SEXUAL ASSAULT TWU’s Statement on Sexual Assault TWU considers Non-­‐Consensual Sexual Intercourse violations to be the most serious and therefore typically imposes the most severe sanctions, including suspension or expulsion for students and termination for employees. Acts of sexual misconduct may be committed by any person upon any other person, regardless of the sex, gender, sexual orientation and/or gender identity of those involved. When students or employees experience sexual assault, the sense of safety and trust is violated. This violation can seriously interfere with personal lives and educational goals. Thus, the university is committed to establishing rules and procedures that are responsive to victims of sexual assault. Violations include: Non-­‐Consensual Sexual Intercourse defined as •
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Any sexual penetration or intercourse (anal, oral, vaginal) However slight With any object By a person upon another person That is without consent and/or by force. Sexual penetration includes vaginal or anal penetration by a penis, tongue, finger or object, or oral copulation by mouth or genital contact or genital to mouth contact. Non-­‐Consensual Sexual Contact defined as •
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Any intentional sexual touching However slight With any object By a person upon another person That is without consent and/or by force. Sexual touching includes any bodily contact with the breasts, groin, genitals, mouth or other bodily orifice of another individual, or any other bodily contact in a sexual manner. (From TWU 2013-­‐2014 Student Handbook under Section 4: Student Rights and Responsibilities, “Grievance Procedures for Students Related to Title VI and Title IX of the Education Amendments of 1972”) Three Fundamental Questions (addressed in order), according to ATIXA, are 1. Force: Was force used by the accused individual to obtain sexual access? If the answer is yes, you are done. Inquiring about incapacity or consent are distractions. Sanctions should strive to bring an end to the discrimination, prevent a future recurrence, remedy the effects on the victim and the community. 2. Incapacity: Two part question: a. Was the victim incapacitated using the preponderance of evidence as the standard? This is when it is extremely helpful to actually draw a timeline as you ask the following questions: •
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When did you begin drinking? What were you drinking? When were these drinks consumed? How much did you consume? What did you eat while consuming alcohol? When did you eat? Did you take recreational drugs (asking similar questions as for alcohol consumption)? Are you on any medications? Did you consume these medications on this day? At what time did the nonconsensual contact occur? Do you remember everything about the timeframe in question? If you experienced blackouts, when on the timeline did they occur? b. Did the accused individual know, or should he/she reasonably have known, that the alleged victim was incapacitated (alcohol, other drugs, asleep, etc.)? When interviewing the accused, many of the same questions can be asked that are listed above. However, the goal is not to determine if the accused was incapacitated, but rather could the accused reasonably determine incapacity in the complainant. Other questions to ask the accused: •
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Did you know the complainant beforehand? What was the nature of your relationship? Did you notice any changes in the complainant’s behavior? This question comes next if there is possible reason for it and force was not an issue. If there is incapacity, it does not matter if consent was given. An incapacitated person cannot give consent. 3. Consent: What clear words or actions by the complainant gave the accused individual permission for the specific sexual activity that took place? If evidence shows words or actions that are reasonable indications, you are done. There is no violation of policy. But, if evidence does not show words or actions that are reasonable indications of consent, find the accused in violation of your policy. If none is communicated, it cannot be assumed. FORCE (ATIXA Training and Certification Course Materials 2013) Four Types: Physical Violence: Hitting, restraining, kicking, pushing, etc. (Synonyms: violence, abuse, compulsion) Threats: Anything that gets the other person to do something they wouldn’t ordinarily have done absent the threat (Synonym: harassment) Intimidation: An implied threat that menaces and/or causes reasonable fear. Use of a person’s power or authority to influence someone else. (Synonyms: implies threats, abuse) Coercion: The application of an unreasonable amount of pressure for sexual access. Most common in campus complaints. (Synonyms: pressure, duress, cajoling, compulsion, abuse) Consider frequency, intensity, isolation, duration Because consent must be voluntary (an act of free will) consent cannot be obtained through any type of force. INCAPACITY (ATIXA Training and Certification Course Materials 2013) Two Part Question: 1. Was the alleged victim incapacitated at the time of sex? All of the following questions need to be answered: o
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Could he/she make rational, reasonable decisions? Could he/she appreciate the situation and address it consciously such that any consent was informed? Meaning, does he/she know who, what, when, where, why and how? 2. Did the accused individual know of the incapacity (fact)? Or, should the accused individual have known from all the circumstances (reasonable person)? Forms of Incapacity: •
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Alcohol or other drugs o Administered voluntarily or without victim’s knowledge o Rape drugs Mental/cognitive impairment Injury Sleep Incapacitation is a subjective determination that will be made after the incident in light of all facts available. People exhibit incapacity is different ways. It is dependent on many or all of the following factors: •
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Body weight, height and size Tolerance for alcohol and/or other drugs Amount, pace and type of alcohol or other drugs consumed Amount of food intake prior to consumption Voluntary consumption Vomiting Propensity for blacking out (mentally or physically) Genetics Evidence of Incapacity: •
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A witness or the accused may know how much the other party has consumed Slurred speech Bloodshot eyes The smell of alcohol on the breath Shaky equilibrium Vomiting Outrageous or unusual behavior Blackouts or black time Unconsciousness Blacking Out: Feels like unconsciousness to the person who is blacked out. Person may appear conscious or unconscious. Those who experience blackouts will lose all conscious awareness or memory of their actions though they may maintain physical ability and control. Current research indicates there is an actual inability at the time to form conscious intentions and understand consequences. This is incapacity if the blackout can be established with evidence. Incapacity is the most complex of the 3 questions. It can be mental or physical, permanent or temporary. Alcohol (or drug) induced incapacitation is a precise term based on facts. It is a state beyond drunkenness or intoxication defined with respect to how the alcohol consumed impacts someone’s decision-­‐making capacity, awareness of consequences and ability to make fully informed judgments. In order to consent effectively to sexual activity, you must be able to understand who, what, when, where, why and how with respect to that sexual activity. An awareness of all six must be present. (Informed Consent) An incapacitated person CANNOT give a valid consent. They can be naked, demanding sex…if they are incapacitated and that is known or knowable to the accused, consent is IRRELEVANT. What if the accused was also drunk? The reasonable person standard is based on someone who is not drunk. What to Do with Incapacity: •
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If the alleged victim was not incapacitated, move on to the issue of Consent. If the alleged victim was incapacitated, but o The accused individual did not know it, the policy was not violated. Move to Consent question. o The accused person should not have known it, the policy was not violated. Move to Consent question. If the alleged victim was incapacitated and o The accused individual knew it, there is a policy violation. Done. o The accused individual should have known it, there is a policy violation. Done. Was the alleged victim incapacitated? Yes No and but Issue of Consent The accused Individual d id n ot know it The accused person should not have known it The accused individual knew it The accused individual should have known it The policy was not violated move on to the consent question It is a policy violation. Done. CONSENT (ATIXA Training and Certification Course Materials 2013) Define consent based on what it is rather than what it is not. Clear words and actions by the complainant that gave the accused individual permission for the specific sexual activity that took place. Consent is o
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Informed (knowing) Voluntary (freely given) Active (not passive) Clear words or actions Indicating permission to engage in mutually agreed upon (sexual) activity Stoplight Analogy: •
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Red = Stop Yellow = Slow down (NOT speed up) Green = Go Rules to remember according to ATIXA: •
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No means no, but nothing also means no. Silence and passivity do not equal permission. To be valid, consent must be given prior to or contemporaneously with the sexual activity. Consent can be withdrawn at any time, as long as that withdrawal is clearly communicated by the person withdrawing it. (From the ATIXA 2013 Investigator Training and Certification Course Materials) Sample questions to ask during an interview to determine if the TWU Sexual Assault policy has been violated: 1. What specific conduct/actions took place that the alleged victim perceives as a sexual assault? Specific details and timelines are important. Include location/surroundings; people involved; people around; food, drinks, alcohol and/or drugs consumed. Take your time; you may need to meet with people involved more than once. 2. For Non-­‐Consensual Sexual Intercourse: •
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What sexual penetration occurred? What objects were used? By whom? Who initiated? Frequency and duration? 3. For Non-­‐Consensual Sexual Contact: •
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What sexual contact occurred (be specific)? What objects were used? By whom? Who initiated? Frequency and duration? 4. Force (Any “yes” response needs to be followed up with detail-­‐oriented questions and determining potential evidence to collaborate information): a. Was physical force or violence used by the accused to obtain sexual access? b. Were any threats made by the accused to the complainant to obtain sexual access? c. Was the complainant harassed/pressured to obtain sexual access? d. Did the accused used intimidation or implied threats to obtain sexual access? e. Was the complainant coerced by the accused in order to obtain sexual access? f. Did the accused place an unreasonable amount of pressure on the complainant in order to obtain sexual access? g. How frequently were any of these force tactics used? h. How intense were the force tactics that were employed? i. Was the complainant isolated with the accused during the time of the sexual assault? j. Was the complainant isolated with the accused during these periods that force tactics were used? k. How frequently was the complainant isolated from others? l. What is the timeframe between when the force tactics were employed and the time of the sexual assault? 5. Incapacity (Any “yes” response needs to be followed up with detail-­‐oriented questions and determining potential evidence to collaborate information): Part 1: Was the victim incapacitated? a. Was the alleged victim able to make reasonable decisions at the time of the sexual assault? Why or why not? b. Was the alleged victim able to make reasonable decisions before the time of the sexual assault? What evidence supports this view? c. Was the alleged victim able to make reasonable decisions after the time of the sexual assault? What evidence supports this view? d. Was the alleged victim acting rationally prior to the sexual assault? What evidence supports this view? e. Was the alleged victim acting rationally during the sexual encounter? What evidence supports this? f. Was the alleged victim acting rationally after the sexual encounter? What evidence supports this? g. Was the alleged victim asleep during any portion of the sexual encounter? h. Was the alleged victim sick or injured during any portion of the sexual encounter? i. Does the alleged victim have any type of mental or cognitive impairment that would affect his/her ability to make a reasonable decision about a sexual encounter? Why or why not? j. Was the alleged victim under the influence of any drugs and/or alcohol during the time of the sexual encounter? If “yes”: o
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What are the approximate height, weight, size and age of the alleged victim? What exactly was consumed? What quantities were consumed? What pace were the alcohol/drugs consumed? Was the alcohol/drugs consumed voluntarily? Did voluntary consumption ever end? What evidence supports this? Where were the alcohol/drugs consumed? (There may be multiple places.) Who was present when the alcohol/drugs were consumed? When were the alcohol/drugs consumed? Be specific. How were the alcohol/drugs ingested? Did the alleged victim eat prior to consuming alcohol/drugs? During? After? What history does the alleged victim have with using alcohol/drugs? What tolerance does the alleged victim have for using alcohol/drugs? Was the alleged victim vomiting at any time? Was the alleged victim semiconscious or unconscious at any point in time? Did the alleged victim experience any blackout periods during this time? What evidence supports this? Did other people see how much drugs/alcohol were consumed by the alleged victim? Did the alleged victim have slurred speech at any point? Did the alleged victim have bloodshot eyes at any point? Did the alleged victim have alcohol smelling breath? Was the alleged victim stumbling, falling or having issues with balance? o
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Was the alleged victim behaving in an unusual fashion? Be specific. Was the alleged victim acting outrageous? Be specific. Were the complainant and the accused ever alone? When, where, how and why? How much time did the complainant and accused spend together? Be specific. Could the alleged victim carry on a conversation? Be specific. At this point, establishing a timeline is critical. This will take time and patience. We want to get as clear a picture as possible about how the event unfolded. After the interview, we want answers to who, what, where, when and how. k. Did the alleged victim know who he/she was with? l. Did the alleged victim know where he/she was? m. Did the alleged victim know what he/she was doing? n. Did the alleged victim know what others were doing around him/her? o. Did the alleged victim know what time it was? What day it was? p. Did the alleged victim know how much time had elapsed? q. Did the alleged victim know with whom he/she was having the sexual encounter? r. Did the alleged victim know when the sexual encounter took place? s. Did the alleged victim know where the sexual encounter took place? t. Did the alleged victim understand what sexual encounter was taking place? u. Did the alleged victim understand how the sexual encounter was taking place? Part 2: Did the accused individual know of the incapacity? Or, should the accused individual have known from all the circumstances (reasonable person)? *These are the same questions, but we are trying to establish the accused’s point of view. a. Was the alleged victim able to make reasonable decisions at the time of the sexual encounter? Why or why not? b. Was the alleged victim able to make reasonable decisions before the time of the sexual encounter? What evidence supports this view? c. Was the alleged victim able to make reasonable decisions after the time of the sexual encounter? What evidence supports this view? d. Was the alleged victim acting rationally prior to the sexual encounter? What evidence supports this view? e. Was the alleged victim acting rationally during the sexual encounter? What evidence supports this? f. Was the alleged victim acting rationally after the sexual encounter? What evidence supports this? g. Was the alleged victim asleep during any portion of the sexual encounter? h. Was the alleged victim sick or injured during any portion of the sexual encounter? i. Does the alleged victim have any type of mental or cognitive impairment that would affect his/her ability to make a reasonable decision about a sexual encounter? Why or why not? j. Was the alleged victim under the influence of any drugs and/or alcohol during the time of the sexual encounter? If “yes”: o
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What are the approximate height, weight, size and age of the alleged victim? What exactly was consumed? What quantities were consumed? What pace were the alcohol/drugs consumed? Was the alcohol/drugs consumed voluntarily? Did voluntary consumption ever end? What evidence supports this? Where were the alcohol/drugs consumed? (There may be multiple places.) Who was present when the alcohol/drugs were consumed? When were the alcohol/drugs consumed? Be specific. How were the alcohol/drugs ingested? Did the alleged victim eat prior to consuming alcohol/drugs? During? After? What history does the alleged victim have with using alcohol/drugs? What tolerance does the alleged victim have for using alcohol/drugs? Was the alleged victim vomiting at any time? Was the alleged victim semiconscious or unconscious at any point in time? Did the alleged victim experience any blackout periods during this time? What evidence supports this? Did other people see how much drugs/alcohol were consumed by the alleged victim? Did the alleged victim have slurred speech at any point? Did the alleged victim have bloodshot eyes at any point? Did the alleged victim have alcohol smelling breath? Was the alleged victim stumbling, falling or having issues with balance? Was the alleged victim behaving in an unusual fashion? Be specific. Was the alleged victim acting outrageous? Be specific. Could the alleged victim carry on a conversation? Be specific. Were the complainant and the accused ever alone? When, where, how and why? How much time did the complainant and accused spend together? Be specific. At this point, establishing a timeline is critical. This will take time and patience. We want to get as clear a picture as possible about how the event unfolded. After the interview, we want answers to who, what, where, when and how. k. Did the alleged victim know who he/she was with during the sexual encounter? l. Did the alleged victim know where he/she was during the sexual encounter? m. Did the alleged victim know what he/she was doing? n. Did the alleged victim know what others were doing around him/her? o. Did the alleged victim know what time it was? What day it was? p. Did the alleged victim know how much time had elapsed? q. Did the alleged victim know with whom he/she was having the sexual encounter? r. Did the alleged victim know when the sexual encounter took place? s. Did the alleged victim know where the sexual encounter took place? t. Did the alleged victim understand what sexual encounter was taking place? u. Did the alleged victim understand how the sexual encounter was taking place? 6. Consent: a. Did the alleged victim understand that the accused was seeking a sexual encounter? b. What exactly did the alleged victim say to demonstrate that he/she understood the request for a sexual encounter? c. What exactly did the alleged victim do to demonstrate that he/she understood the request for a sexual encounter? d. Did the alleged victim consent to the sexual encounter? e. What exactly did the alleged victim say to grant permission for the sexual encounter? f. What exactly did the alleged victim do to grant permission for the sexual encounter? g. What physical/nonverbal communication did the alleged victim provide to grant consent for the sexual encounter? h. Did the alleged victim grant consent during all phases of the sexual encounter? What evidence supports this? i. Did the alleged victim grant consent for all activities done related to the sexual encounter? What evidence supports this? j. Did the alleged victim’s temperament change before, during or after the sexual encounter? k. Was the alleged victim actively engaged in the sexual encounter? l. What other information would be helpful in establishing whether consent was given for the sexual encounter? m. Using a stoplight as an analogy (red = stop, green = go, yellow) •
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What was the alleged victim’s consent level? Were there periods of fluctuation? (Sometimes red, sometimes yellow, sometimes green?) During fluctuation periods, how did the accused respond? What does yellow mean to you in terms of a sexual encounter? If the feedback was yellow, what did the accused do next? If the feedback received was red, what did the accused do next? Additional Questions to Consider: 7. Was the relationship between the alleged victim and the respondent considered to be intimate and/or sexual in nature? 8. Has the relationship between the alleged victim and the respondent ever been intimate or sexual in nature? 9. Is there a pattern of behavior/conduct established by the respondent? 10. Did this encounter cause a change in behavior in the alleged victim? Did the conduct cause a change in the alleged victim’s mental or emotional state? 11. Did this cause a change in behavior by others towards the alleged victim? 12. Has the encounter unreasonably interfered with the alleged victim’s educational or work performance? 13. Has the alleged victim been denied or has his/her access been limited in any educational or campus opportunities as a result of the sexual encounter? 14. Has the alleged victim experienced any retaliation by the respondent or others? 15. Are there other known victims by the same respondent? 16. As a result of reporting the grievance, has the alleged victim experienced any retaliation by the respondent or others? 17. As a result of reporting the grievance, have others affiliated with the grievance experienced any retaliation by the respondent or others? 18. While the investigation is occurring, what interim actions would the alleged victim or accused like TWU to take to help ensure wellbeing and/or safety? 19. How would the accused and/or alleged victim like to see TWU resolve this grievance?