Sexual Assualt Policy; Supercedes EM 91-001

Executive Memorandum 10-016

June 29, 2010

From: Paul J. Zingg, President

Subject: Sexual Assault Policy, Supercedes EM 91-001

Upon the recommendation of the Academic Senate and with the concurrence of the Provost, I approve the revision to the Sexual Assault Policy presented herewith.

POLICIES ON PUBLIC SAFETY

Sexual Assault Policy

California State University, Chico is strongly committed to providing an educational environment in which students, faculty, and staff work together in an atmosphere free of sexual assault. The University views any act identified as sexual assault as a serious matter. Every member of the University community should be aware that sexual assault is prohibited by state law and University policy. This institution will vigorously discipline and/or prosecute persons identified as responsible for assaults as described in this policy.

The University is committed to ensuring that students, employees, or other persons who have been sexually assaulted, including acquaintance rape, are provided treatment, assistance, and information and are treated with sensitivity, care and confidentiality to the extent permitted by law.

Definition and Classification of Sexual Assault and related crimes

For the purposes of this policy, sexual assault is defined by the California Penal Code Sections 220, 243.4, 261, 264.1, 286, 288, and 289 (see Appendix A). These sections define sexual assault as any sexual act or attempted sexual act in which a person is threatened, coerced, or forced to comply against his or her will, or he or she is incapable of giving consent or unconscious of the nature of the act. Additional descriptions of sexual assault, excerpted from the California Penal Code, include:

• Sexual Battery is any unwanted touching of intimate body parts (§243.4)

• Rape is complete at the point of penetration no matter how slight that penetration (§261)

• Rape can include sexual assault by a stranger, friend, acquaintance, family member, or co-worker. (§261,§ 243.4)

• Rape may be committed by more than one person. (§261, §243.4)

• Sexual intercourse against a person’s will accomplished by force or threat of bodily injury. (§261)

• Sexual Intercourse against a person’s will where the person has reasonable fear that she or he or another will be injured if she or he does not submit to the intercourse. (§261)

• Sexual intercourse where the person is incapable of giving consent or is prevented from resisting, which includes but is not limited to where the complainant is prevented from resisting due to alcohol or drugs administered by or with the knowledge of the accused. (§261)

California Administrative Code Title 5, Education Part 5 Section 41301 (Code of Student Conduct) specifically prohibits “conduct that threatens or endangers the health or safety of any person within or related to the University community, including physical abuse, threats, intimidation, harassment, or sexual misconduct.” Any violation of the Code of Student Conduct by an individual will be investigated for possible disciplinary and legal action regardless of whether the alleged assault occurred on or off campus.

Note: It is common for survivors to question whether an assault may be defined as sexual assault. In such cases the survivor is strongly encouraged to call any of the resources listed in this policy and seek assistance and clarification regarding their particular situation.

What is Consent?

For purposes of criminal prosecution for sexual assault, California Penal Code Sec. 261.6 defines “consent” to mean “positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution (for sexual assault).”

For purposes of University policy, the responsibility for establishing consent rests upon the person who is initiating the sexual activity. To establish that someone has consented to sexual activity, the person must either hear this consent stated verbally or receive this communication nonverbally in a way that would nonetheless be seen as consent by reasonable people. As noted above, consent cannot be established simply on the basis of a current or previous dating or romantic relationship or use of a birth control device (§261.7). In addition, consent may be withdrawn at any time during the sexual act.

Reporting an Assault

The University recognizes that survivors of sexual assault may minimize the impact of what happened to them, potentially delaying the reporting of the assault or seeking help. All survivors are encouraged to seek assistance in addressing the traumatic impact of the crime of sexual assault, whether through reporting the assault or seeking counseling, advocacy, or other services.

In general, survivors of sexual assault have several options for reporting the assault and/or accessing resources. These include:

Criminal Investigation Option: Reporting to Law Enforcement

 

As soon after the assault as possible, survivors of sexual assault, whether they are students, employees, or visitors to the campus, are strongly encouraged to report the assault to law enforcement. Sexual assaults may be reported to the University Police Department at 530-898-5555 (if the assault occurred on campus property) or to the appropriate local law enforcement agency, if the assault occurred outside the University Police jurisdiction. If the survivor is uncertain where to report, s/he can contact University Police and will be advised regarding the correct law enforcement agency. The website address for University Police is: www.csuchico.edu/up

University Police Officers are trained first responders and can provide emergency first aid. Officers can also summon emergency medical services, initiate the SART team, collect evidence, perform crime scene investigations, conduct criminal investigations, arrest offenders, and provide referrals to support entities, both on-campus and off-campus.

Note: When survivors of sex crimes [or other specified offenses] choose to report to law enforcement, they are entitled to confidentiality per California Penal Code Section 293(a). It is important to be aware that there are certain legal exceptions to privacy, for example, police agencies may be required to disclose the name of a juvenile (i.e. under the age of 18) survivor of sexual assault, Government Code Section 6254 (f) (2).

In addition, the University reserves the right to investigate a complaint if it involves a member of the University community. University Police work closely with other campus departments to balance the need for survivor confidentiality with the need for campus safety.

Appendix A contains a complete list of the crimes for which confidentiality is permitted per California Penal Code Section 293(a).

Student Disciplinary Option: Reporting to the Office Student Judicial Affairs.

Any member of the Chico State University community who believes that s/he has been sexually assaulted by a Chico State student (on or off the Chico State campus) may report the assault to the Coordinator of Student Judicial Affairs at 898-6897. The Coordinator of SJA investigates alleged violations of university policy and takes appropriate action under California State University Student Disciplinary procedures. The Coordinator of SJA is responsible for ensuring fair administration of the student disciplinary process and maintaining confidential disciplinary records. The person initiating the inquiry or complaint has the right to be accompanied by an advocate(s) when discussing alleged incidents. Discussions at the informal inquiry are confidential.  SJA may refer the report to other offices when appropriate.

Note: There may be circumstances where substantial threat to the University community would necessitate the Office of Student Judicial Affairs reserving the right to initiate an investigation, and, where applicable, take appropriate disciplinary action.

The website address for the Office of Student Judicial Affairs is: http://www.csuchico.edu/sjd/

University Recognized Student Organizations: Reporting to the Student Activities Office

The Student Activities office can receive and consider reports of university recognized student organizations alleged to have condoned, promoted, or been involved in activities relating to sexual assault. Such organizations may have their University recognition withdrawn and/or other sanctions imposed.

Personnel Disciplinary Option: Reporting to the Office of Employment Equity

Any member of the Chico State community who believes that s/he has been sexually assaulted by a staff or faculty member of the University may contact the Director of Employment Practices. In accordance with University policies and practices and collective bargaining agreements, a personnel investigation, separate from any police investigation, may be initiated.

As noted previously, whenever possible, the wishes of the survivor will be sought regarding whether to pursue a University policy violation investigation. However, when the assault involves a member of the campus community, the University reserves the right to initiate an administrative investigation and when applicable, take appropriate disciplinary action.

Disciplinary Procedures and Sanctions

Procedures: Alleged Student Assailants

1. If an accused student requests a judicial hearing, the University will provide due process.

2. In the case of a student assailant, disciplinary action shall be imposed in accordance with the “Code of Students’ Rights and Responsibilities.” Specific violations for which students may be subject to sanctions have been established by Trustee action (Sections 41301 and 41302 of Title 5, California Administrative Code and Executive Order No. 1043).

3. Conduct that violates Section 41301 or 41302 of Title 5, California Administrative Code may also violate provisions of the criminal law of the state. In such cases, it is necessary for the University to proceed with conduct procedure despite the fact that criminal prosecution may be pending in court. The imposition of University disciplinary action is independent of any action that may be taken in the criminal courts and may, in fact, occur prior to a criminal court’s action.

4. Conduct procedures for individual students will be conducted according to the Chancellor’s Executive Order No. 1043.

5. Any recognized student organization involved in activities or incidents where rape or other forms of sexual assault take place will immediately be suspended by the Student Activities Office pending a full review.

6. The President or his designee may immediately impose an interim suspension where there is reasonable cause to believe that it is necessary to protect personal safety or property and to ensure the maintenance of order (Title 5, California Code of Regulations and Executive Order 1043). During the period of interim suspension, the student charged may not, without prior written permission from his/her campus president, enter any campus of the California State University other than to attend the hearing regarding the merits of his/her suspension.

7. While there are laws in this state that protect victims of sexual assault from being identified in the course of media coverage, both victims and alleged assailants will be made known to each other in the course of administrative conduct proceedings. Similarly, victims will be informed of the outcome of conduct.

Sanctions: Students

1. Individual Student Sanctions

Any of the following are possible sanctions for students who have been found guilty of such charges. The severity and number of sanctions applied depends on the nature and degree of the charges.

Expulsion

Suspension for a specific time

Probation for a specific time (with special conditions as necessary)

Education and Remedial

2. Sanctions for a Recognized Student Organization

As a general rule, organizations found to condone, promote, or be involved in such activities shall have their University recognition withdrawn and thereby lose all rights and privileges for a period of not less than five years. Other possible actions could include

Informing the national or regional office of the organization about the activity;

Disbanding of the local chapter by the national organization;

Prohibiting participation in campus activities, events, and programs;

Requiring relevant community service (required of all members);

Loss of all access to University resources (equipment, meeting rooms, advertising space, fundraising ability).

No portion of this document should be understood to supersede or delineate the authority of Executive Order No. 1043 and/or Executive Order No. 1006 any subsequent revisions to Executive Order No. 1043 or 1006 to limit the statutory rights, powers, and privileges of the President of the campus.

Confidential Counseling

Chico State student survivors may also contact the Counseling Center on campus, 898-6345, http://www.csuchico.edu/counseling/

Any survivor seeking confidential counseling or advocacy may contact Rape Crisis Intervention and Prevention. Rape Crisis, 342-7273, http://www.rapecrisis.org/ provides a 24-hour crisis line, short- and long-term counseling, advocacy, and accompaniment services to survivors of sexual assault.

Counseling through either of these resources may be initiated at any time following the assault. Both offices hold privilege, which means without a release of confidentiality given by the student, advocates and counselors cannot reveal any information provided to them by the student client.

Information and Other Resources

Chico State’s Safe Place provides a safe, supportive environment for sexual assault survivors seeking confidential services and advocacy in academic, criminal justice, and/or student services contexts. Safe Place staff is also available to provide information regarding community and campus resources.

Collection of Forensic Evidence or Medical Treatment

If a survivor of sexual assault decides to file a police report, it is important that physical evidence be collected as soon after the assault as possible. If seen in the Student Health Center, the survivor will be referred to the nearest hospital emergency room where a trained SART professional conducts the medical legal exam.

Chico State student survivors who do not want to file a police report, but are interested in being tested and/or treated for STI’s, pregnancy or injuries resulting from a sexual assault may seek treatment at the Student Health Center at 898-5241. http://www.csuchico.edu/shs/

It is important to know that in with regards to health care employees, all injuries resulting from domestic or relationship violence or sexual assault are mandated to be reported to law enforcement. The supporting documentation for this can be found in 45 C.F.R. (Code of Federal Regulations) 164.512 and in California Penal Code Section 11160.

Intimidation and Retaliation Against Involved Parties

Retaliation against any involved parties and/or witnesses will not be tolerated, particularly any threats, stalking, harassment, or conduct that threatens the health or safety of any potential witness. This also includes

• dissuading or preventing any involved parties from attending or giving testimony at any proceeding.

• Any inquiry involving an allegation of sexual assault under this policy, or any attempt to contact, harass, or intimidate potential witnesses involved in any criminal and/or student disciplinary process, whether in person, by telephone, by regular or electronic mail, through associates or by any other means.

• In addition, dissuading or preventing involved parties from giving testimony may be a violation of 136.1 of the Penal Code and could result in arrest and/or felony criminal charges being filed.

• The University will work with anyone reporting an act of sexual assault to protect them from any of the above actions and to encourage them to report any such actions so they may be investigated and/or disciplined appropriately.

Confidentiality for students

Records created during the student conduct process are considered to be “education records” under the Family Educational Rights and Privacy Act of 1974 and thus are generally protected from production to third parties without the written consent of the student charged. Failure to comply with FERPA may subject the campus to loss of federal funding. FERPA allows a campus to notify an alleged victim of “non-forcible sex-offense” or a “crime of violence” as it defines that term, of any disciplinary action. However, the California Information Practices Act (Civil Code §1798 et seq) prohibits the disclosure of all “personal information” without consent even in a student conduct proceeding. Therefore, a victim may be notified that appropriate action has been taken but may not be told details of any University discipline action.

Any alleged victim who is notified of the results of a disciplinary action taken under the crime of violence exception will be advised that the information is to be kept confidential. The alleged victim will be advised that failure to keep the information confidential may result in disciplinary action taken by the University against her/him as well as possible legal proceedings for invasion of privacy.

See Victim’s Right to Privacy, Appendix B

Personnel Disciplinary Option: Reporting to the Human Resources Office

Any member of the Chico State community who believes that s/he has been sexually assaulted by a staff or faculty member of the University may contact the Director of Employment Practices. In accordance with University policies and practices and collective bargaining agreements, a personnel investigation, separate from any police investigation, may be initiated.

As noted previously, whenever possible, the wishes of the survivor will be sought regarding whether to pursue a University policy violation investigation. However, when the assault involves a member of the campus community, the University reserves the right to initiate an administrative investigation and when applicable, take appropriate disciplinary action.

Procedures: Alleged Employee Assailants

1. Judicial hearings within University regulations will provide due process, including the right to be represented by counsel.

2. Disciplinary action will be applied in accordance with the California State Education code and/or the collective bargaining agreement that covers the accused employee.

3. Conduct that is actionable under provisions of the Education Code and relevant collective bargaining agreements may also violate criminal codes of the State of California. In such cases it may be necessary for the University to proceed with disciplinary action that results in the independent action even though criminal prosecution may be pending or in progress.

4. Suspension with pay may be ordered by the President when he/she deems such to be warranted wither before investigation is completed or after disciplinary charges have been made, in keeping with the provisions of applicable collective bargaining agreements.

Dissemination of information and procedures

To ensure awareness of this policy Safe Place will coordinate the wide dissemination of relevant information to students and employees.

Implementation

Responsibility for full implementation of this policy lies with the University President or designee.

Materials for new students such as those distributed at summer orientation will include the University Policy on Sexual Assault. Materials and education regarding sexual assault will be given at Wildcat Welcome Week.

Safe Place’s office location in Siskiyou 115 and phone number 898-3030 will be made available to campus members and widely distributed. Safe Place will provide information about assault and information about the variety of support services available to campus victims of sexual assault.

With the assistance of Safe Place, new faculty and staff orientations will include University policies and education on sexual assault.

This policy and its implementation will be reviewed by the Faculty and Student Policies Committee at three-year intervals.  

Appendix A

CALIFORNIA PENAL CODE

261. (Rape defined) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator under any of the following circumstances:

1. Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petri-Short Act (Part 1 (commencing with section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.

2. Where it is accomplished against a person’s will by means of force, violence, or fear of immediate and unlawful bodily injury on the person or another.

3. Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substances, administered by or with the privities of the accused.

4. Where a person is at the time unconscious of the nature of the act, and this is known to the accused.

5. Where a person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

6. Where the act is accomplished against the victim’s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph “threatening to retaliate” means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

7. Where the act is accomplished against the victim’s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has reasonable belief that the perpetrator is a public official. As used in this paragraph, “public official” means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

 Appendix B

VICTIM’S RIGHT TO PRIVACY

UNDER CALIFORNIA STATE LAW

In order to balance the individual’s right to privacy with the public’s need for information, Government Code Section 6254(f) contains a specific exemption to information release requirements for victims of any crime defined by Penal Code Sections 261 (Rape), 261.5 (Unlawful Sexual Intercourse Under 18), 264 (Rape Penalties), 264.1 (Rape, Aiding and Abetting), 273a (Willful Cruelty to Child), 273d (Corporal Punishment on Child), 286 (Sodomy), 288 (Oral Copulation), or 289 (Penetration by Foreign Object). The FASPC 4/22/2010 Page 14 of 14

Government Code specifies the confidentiality of the victim’s name, address, and identifying information.