What is Sexual Misconduct?
Sexual Misconduct, often referred to as Sexual Violence, consists of three basic categories of behavior, all of which are a violation of the Texas Tech Student Code of Conduct and illegal under state and federal law.
"Unwelcome verbal, written or physical conduct of a sexual nature that is sufficiently severe, persistent, or pervasive that it unreasonably interferes with the victim's educational experience."
- Unwelcome sexual advances, requests for sexual favors, etc.
- Sexual Assault – i.e., both Non-Consensual Sexual Contact and Non-Consensual Sexual
Penetration – is a form of Sexual Harassment.
- Sexual Exploitation: situations that don’t fit into “contact” or “intercourse,” but are considered sexual harassment, including but not limited to the following:
- Invasion of Sexual Privacy
- Sexual Voyeurism – watching someone undress, “peeping tom,” etc.
- Recording (pictures, video, audio) another person engaged in a sexual act or other private activity.
- Inducing another student to expose his/her genitals or private areas
- Prostituting another student.
- Engaging in sexual activity while knowing infected with an STD.
Non-Consensual Sexual Contact
"Intentional sexual touching of another’s private areas without consent."
- Touch: however slight / with any part of one’s body / with any object.
- Private Areas: butt, breasts, mouth, genitals, groin area, or other bodily orifice.
Non-Consensual Sexual Interecourse
"Sexual penetration or intercourse without consent. (Note: unlike sexual contact, the act of intercourse is inherently intentional)
- Penetration: However slight / with any part of one’s body / with any object.
- Penetration can be: Anal, oral, or vaginal.
Visual Breakdown of Sexual Misconduct Terminology
What is Consent?
"Mutually understandable words or actions, actively communicated both knowingly and voluntarily, that clearly convey permission for a specific activity."
- Clear words or actions
- Must be Active -- not passive or implied
- Informed / knowingly
- Voluntary / freely given
You DO NOT have Consent when:
Consent is invalid if it is COMPELLED by:
- Physical Force
- When someone acts physically upon you.
- Hitting, kicking, retraining, or otherwise exerting physical control over you.
- A threat exists when a reasonable person would have been compelled to give permission
to sexual contact when they would not have otherwise.
- (Ex.) If you do not have sex with me …
- ... I will harm you.
- ... I will tell people you are gay.
- ... I will fail you.
- (Ex.) If you do not have sex with me …
- A threat exists when a reasonable person would have been compelled to give permission to sexual contact when they would not have otherwise.
- An implied threat.
- When someone uses his/her physical presence to menace you, without contact.
- When someone uses your knowledge of his/her past violent tendencies, coupled with
his/her menacing behavior, implying a threat.
- When someone consistently sexually pressures another into unwanted sexual behavior, when it’s been made clear that it is unwanted.
- Differs from seduction:
- Seduction: trying to persuade someone
- Coercion: trying to persuade someone who doesn’t want to be persuaded.
- If the respondent knew or should reasonably have known that the victim was incapacitated, then it is impossible for consent to have been given.
- Difficult evaluation because people reach incapacitation at different points.
- Incapacity is dependent on many factors, including but not limited to:
- Body weight, height, size, BMI
- Tolerance for alcohol/drugs
- Amount of alcohol/drugs consumed
- Food intake prior to consumption
- Voluntariness of consumption
- Evidence of Incapacity:
- Slurred speech
- Bloodshot eyes
- Smell of alcohol on breath
- Appears shaky and unbalanced
- Unusual or questionable behavior
- Unconsciousness (in and of itself conveys incapacity)
- “Blacking out” [two types]
- One may maintain mental awareness of the situation, but lose the physical ability to react to it.
- One may maintain physical ability and control, but lose all conscious awareness or memory of their actions.
- Both constitute incapacity and thus consent is not possible.
Consent can never be given by:
- A minor [to an adult]
- Mentally disabled persons (they lack the "informed / knowing" element)
- Physically incapacitated persons (see "Incapacitation" above)
"Only women can be victims of sexual assault, right?"
- No. While the majority of sexual assaults do tend to involve a female victim and a male assailant, both the victim and the assailant can be either male or female, respectively.
"She didn't fight back or resist, so she consented, right?
- No. A victim is not required to actively resist his/her aggressor.
"Well, he didn't actually "say no," so that means he consented, right?"
- No. Silence is not consent -- consent must be "actively given."
"It's her responsibility to let me know that she doesn't want to, right?"
- No. It is the responsibility of the initiator to obtain consent prior to acting. As is referenced above, simply because he/she didn't "say no" and/or actively resist your advances doesn't mean she consented.
"Once he's consented and we actually start having sex, he can't just suddenly decide to stop, right?"
- Consent can be withdrawn at any time, and if communicated clearly, all sexual activity must cease immediately.
"I know she was drunk, but she clearly said that she wanted to have sex, so we did. That's okay right?"
- No, it's not. It is the responsibility of the initiator to obtain consent prior to engaging in sexual activity, and consent cannot be given by someone who is incapacitated (in this case: drunk). If you knew or should have known that she was incapacitated, she cannot give valid consent.
"Well it was his choice to get drunk (or take drugs), that's gotta count for something, right?"
- Nope. Someone's intentional use of alcohol/drugs does not affect determinations of incapacity and consent.
"She consented earlier this evening, but we got interrupted before anything happened. We can simply resume later tonight no-questions-asked, right?"
- No. Consent has an expiration date. Whether consent continues is relative to the situation and mood of the encounter, and is determined on a case by case basis. If, for whatever reason, consensual sexual activity is interrupted or ceases for notable period of time, consent must likely be reobtained.
Processes and Procedures - What Happens If/When I Make a Report?
(Section Currently Under Development)