Title IX of the Education Amendments of 1972 (Title IX) prohibits sex (gender-based) discrimination and harassment in educational programs and activities at institutions that receive federal financial funding, including for employment, academic, educational, extracurricular and athletic activities.
* Protects all people regardless of their gender or gender identity from sex discrimination, including sexual harassment and sexual violence, which are forms of discrimination, and
* Requires institutions to take necessary steps to prevent sexual misconduct on their campuses, and to respond promptly and effectively when sexual misconduct is reported.
The affirmative consent standard will be applied in any determination of whether consent was given by both parties to sexual activity.
Affirmative Consent is consent that is informed, clearly affirmative, unambiguous, and a conscious decision by each participant to engage in mutually agreed upon sexual activity. Silence or a lack of protest or resistance does not mean consent.
Consent is voluntary. It must be given without coercion, force, threats, or intimidation. Consent means positive cooperation in the act or expression of intent to engage in the act pursuant to an exercise of free will. Whether one has taken advantage of a position of influence over another may be a factor in determining consent.
Consent is revocable. Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent to one act by itself does not constitute consent to another act. Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion. A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Even in the context of a relationship, there must be mutual consent to engage in sexual activity.
Consent must be ongoing throughout a sexual encounter and can be revoked at any time. Once consent is withdrawn, the sexual activity must stop immediately.
Consent cannot be given when a person is incapacitated. A person cannot consent if s/he is unconscious or coming in and out of consciousness. A person cannot consent if s/he is under the threat of violence, bodily injury or other forms of coercion. A person cannot consent if his/her understanding of the act is affected by a physical or mental impairment.
If the Affected Party states affirmative consent was not given, it shall not be a valid excuse that the accused believed consent was given to sexual activity under either of the following circumstances: (1) belief the consent arose from the intoxication or recklessness of the Affected Party or (2) the accused did not take reasonable steps at the time of the alleged incident, to determine if the Affected Party affirmatively consented.
Similarly, it shall not be a valid excuse that the accused believed the Affected Party affirmatively consented to sexual activity if the accused knew or should have known that the affirmative consent could not be given because the Affected Party (1) was asleep or unconscious, (2) was incapacitated due to the influence or drugs, alcohol, or medication or could not understand the nature, or extent of the sexual activity, or (3) was unable to communicate due to a mental or physical condition.
Sexual activity with a minor (a person under 18 years old) is not consensual, because a minor is considered incapable of giving consent due to age.
Sexual activity without the consent of the other person or when the other person is unable to consent to the activity. The activity or conduct may include physical force, violence, threat, or intimidation, ignoring the objections of the other person, causing the other person's intoxication or incapacitation through the use of drugs or alcohol, or taking advantage of the other person's incapacitation (including voluntary intoxication). Sexual assault includes, but is not limited to, fondling, rape, forced sodomy, forced oral copulation, rape by a foreign object, sexual battery, incest, statutory rape, or threat of sexual assault. The relationship between the affected party and the accused (e.g. family member, friend, acquaintance, or stranger) is irrelevant.
Abuse committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim as determined by the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
A felony or misdemeanor crime of violence committed by a spouse or former spouse, cohabitant or former cohabitant of the victim, or someone with whom the accused has a child, has an existing dating or engagement relationship, or has had a former dating or engagement relationship, or abuse perpetrated against any persons described in Family Code section 6211.
A course of conduct in which a person repeatedly engages in actions directed at a specific person that places that person in reasonable fear of his or her safety or the safety of others or causes substantial emotional distress. A course of conduct means two or more acts, including, but not limited to acts in which the stalker directly, indirectly, or through third parties by any method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about a victim, or interferes with the property of the victim.