If a victim reports to law enforcement, they may assist them in obtaining a Civil and Stalking Protection Order or Restraining Order from a criminal court. The University is committed to ensuring that any such order is fully upheld on all institutionally owned and controlled property. The University is also committed to protecting victims from any further harm, and the Title IX Coordinator may issue a temporary no-contact order pending the outcome of any Title IX proceeding.
Alcohol and drugs have the ability to lower inhibitions, affect the decision making process, impact the awareness of consequences, and impact a person’s ability to consent to sexual activity. Sexual assaults on college campuses across the nation frequently take place in the presence of alcohol and/or drugs. The important question that arises in sexual assault cases involving alcohol and/or drugs is whether the individual accused of sexual assault knew, or should have known, that the individual complaining that he/she was sexually assaulted was incapacitated due to the use of alcohol and/or drugs and was therefore unable to consent to engaging in sexual activity with the accused.
Massachusetts Institute of Technology (MIT). (n.d.). Title IX: Preventing and Addressing Sexual Misconduct at MIT: Use of Alcohol and Other Drugs. Retrieved from https://titleix.mit.edu/reporting/alcohol, ¶ 1.
Incapacitation is defined as a state beyond that of intoxication. Incapacitation cannot be proven by the reporting party asserting that he or she was incapacitated. Instead incapacitation is proven by a totality of the evidence. The presence of some or all of following factors shows that the initiator of sexual activity (the respondent) knew or should have known that his or her partner was incapacitated:
- The initiator of sexual activity (the respondent) knew his or her partner was drinking and/or using drugs and may have known how much and what kind;
- The partner was stumbling or otherwise exhibited loss of equilibrium;
- The partner exhibited slurred speech or word confusion;
- The partner had bloodshot, glassy, or unfocused eyes;
- The partner exhibited any signs of alcohol poisoning;
- The partner was vomiting, especially repeatedly;
- The partner was disoriented, or confused as to time, place, etc.; or
- The partner lost consciousness.
Association of Title IX Administrators (ATIXA). (2014, April24). ATIXA Tip of the Week: Sex and Booze. Retrieved from https://atixa.org/wordpress/wp-content/uploads/2012/01/ATIXA-Tip-of-the-Week-04_24_141.pdf, pp. 1-2.)
When determining whether an individual had the capacity to consent to sex, the University considers the following two questions:
- Did the individual initiating sexual activity (the respondent), know that his or her partner was incapacitated?
- If not, should a sober, reasonable person in the same position as the initiator of sexual activity (the respondent) have known that his or her partner was incapacitated?
Massachusetts Institute of Technology (MIT). (n.d.). Title IX: Preventing and Addressing Sexual Misconduct at MIT: Use of Alcohol and Other Drugs. Retrieved from https://titleix.mit.edu/reporting/alcohol, ¶ 2.
If, through the course of the investigation, the University determines that the answer to either of these questions is “yes,” then effective consent to sexual activity is not present.
Determining whether an individual is incapacitated from drugs and/or alcohol is difficult; therefore, the University strongly recommends that you err on the side of caution before engaging in sexual activity with a partner who is under the influence of alcohol and/or drugs. When in doubt, make the assumption that a partner is incapacitated and therefore unable to give consent for sexual activity. Likewise, for the individual initiating sexual activity, the respondent, being under the influence of alcohol and/or drugs is never a defense to a complaint of sexual assault.
Massachusetts Institute of Technology (MIT). (n.d.). Title IX: Preventing and Addressing Sexual Misconduct at MIT: Use of Alcohol and Other Drugs. Retrieved from https://titleix.mit.edu/reporting/alcohol, ¶ 1
Remember, if in doubt, the safest (and most respectful) thing to do is not engage in sexual activity: Walk out.
The University encourages all individuals to seek assistance from a medical provider and/or law enforcement agency immediately after an incident of sexual misconduct. This is the best option to ensure preservation of evidence and to begin a timely investigative and remedial response. The University will assist any University community member in getting to a safe place and will provide transportation to the hospital, coordination with law enforcement, and information about the University’s resources and complaint processes.
Individuals who are recipients of sexual violence, domestic violence, or dating violence should do everything possible to preserve evidence by making certain that the crime scene is not disturbed. There is a limited window of time (typically 72 to 96 hours) following an incident of sexual assault to preserve physical and other forms of evidence.
Preservation of evidence may be necessary for proof of the crime or in obtaining a protection order. Recipients of sexual violence, domestic violence, or dating violence should not bathe, urinate, douche, brush teeth, or drink liquids until after they are examined and, if necessary, a rape examination is completed. Clothes or bedding should not be changed or these articles should be put in a paper bag to be provided to law enforcement.
It is also important to take steps to preserve evidence in cases of stalking, to the extent such evidence exists. In cases of stalking, evidence is more likely to be in the form of letters, emails, text messages, etc. rather than evidence of physical contact and violence. Taking the steps to gather evidence immediately does not commit an individual to any course of action. The decision to seek medical attention and gather any evidence will remain confidential and preserve the full range of options to seek resolution through the University’s complaint processes or through the pursuit of criminal action.
The Title IX Coordinator or investigator will work in collaboration with the University’s Information Technology Services Department to ensure that any potential electronic evidence of sexual misconduct is preserved.
Sexual misconduct, including non-consensual sexual contact and non-consensual sexual intercourse, is an ongoing topic of conversation and preventive education efforts.
Here are some suggestions for guiding these important discussions. Please don’t hesitate to contact the Title IX Coordinator if you have any questions.
No means no: The single most crucial thing for students to understand is that "no means no." If the person you are with says "I don't want to have sex tonight" or "I don't want to do oral sex" or "Please stop" or any other form of statement refusing sex, RESPECT THAT. It doesn't matter if you have had sex with that person dozens of times. It doesn’t matter if that person had sex with four other people you know. It doesn't matter if that person came back to your room with you. It doesn't matter if that person has been kissing you. NO MEANS NO.
No participation means no consent: If someone doesn't say "no," that doesn't mean they are necessarily saying "yes." At Mount Vernon Nazarene University, participants in a sexual activity need to affirmatively consent to the activity. The University doesn't require that someone say "yes;" you can indicate yes with your actions. So if someone is not actively participating in the sexual behavior, take that as a "no." If they are not taking off their clothes or taking off your clothes or moving with you or reciprocating your behaviors, just stop. When in doubt, ask! Communicating with your partner directly is the best way to make sure you are both enjoying the experience.
Vomiting, staggering, slurring: Incapacitation due to alcohol, drugs or sleep makes it impossible to consent to sex. How do you know if your possible partner is too drunk? There are a number of important signs: vomiting, staggering, falling (or nearly falling), unusual emotional volatility, any loss of consciousness, difficulty staying awake, slurring speech. Again, when in doubt, stop.
Intoxication does not excuse bad behavior: Initiating non-consensual sex is a policy violation, regardless of your level of intoxication. Period. Being drunk is not an excuse or a defense.
Penalties: Title IX policy violations are serious. Penalties can range from warnings to dismissal. If you are found responsible for violating the policy in terms of non-consensual sexual intercourse, the typical penalty is long-term suspension or dismissal. Either one of these penalties is permanently noted on your transcript. There may be criminal penalties as well.