As used in the offenses described in the Title IX Sexual Harassment webpage, the following definitions and understandings apply:
Force
Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” which elicits the response, “Okay, don’t hit me, I’ll do what you want.”). Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.
Coercion
There is a difference between seduction and coercion; coercion is defined as unreasonably pressuring another person for sex. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. Coercing someone into engaging in sexual activity violates this policy in the same way as physically forcing someone into engaging in sexual activity.
Consent
- knowing, and voluntary, and clear permission by word or action to engage in sexual activity.
Individuals may perceive and experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity. If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.
For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Reasonable reciprocation can be implied consent. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.
Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, that sexual activity should cease within a reasonably immediate time.
Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent. If an individual expresses conditions on their willingness to consent (e.g., use of a condom) or limitations on the scope of their consent, those conditions and limitations must be respected.
Proof of consent or non-consent is not a burden placed on either party involved in a complaint. Instead, the burden remains on the College to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged misconduct occurred and any similar and previous patterns that may be evidenced.
Consent in relationships must also be considered in context. When parties consent to BDSM[1] or other forms of kink, non-consent may be shown by the use of a safe word. Resistance, force, violence, or even saying “no” may be part of the kink and thus consensual, thus College’s evaluation of communication in kink situations should be guided by reasonableness, rather than strict adherence to policy that assumes non-kink relationships as a default.
Consent in The State of California Is Defined As:
The state definition of consent is defined as positive cooperation in act or attitude
pursuant to an exercise of free will. The person must act freely and voluntarily with
knowledge of the nature of the act involved. This underscores the importance of mutual
agreement and understanding, emphasizing that consent cannot be inferred from silence
or lack of resistance. Consent must be ongoing and can be revoked at any time. Even
if initially given, it can be withdrawn, and any continuation without renewed consent
may constitute a violation. Individuals incapacitated due to intoxication, unconsciousness,
or mental disability cannot provide valid consent, protecting vulnerable individuals
from exploitation. For minors, the age of consent is 18, meaning individuals under
this age cannot legally consent to sexual activities with adults. This is codified
in California law addressing statutory rape, highlighting protections for minors against
potential coercion.
This definition is applicable to criminal prosecutions for sex offenses in California
but may differ from the definition used by the Otis College to address policy violations.
Incapacitation
A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drug consumption.
Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/ informed consent (e.g., to understand the “who, what, when, where, why, and how” of their sexual interaction).
Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.
This policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating substances.
Relationships Between Faculty/staff and Students
Otis College of Art and Design prohibits all faculty and staff members, including graduate teaching assistants, and others involved in teaching activities, from engaging in or pursuing dating, sexual, or intimate relationships with students, including consensual relationships.
Faculty and staff members are in a position of trust and power with respect to a student’s educational activities. Relationships with students can jeopardize the effective functioning of the College’s mission by the appearance of unfairness in the exercise of professional judgment. This includes, but is not limited to, those students whom faculty or staff currently, or may in the future, instruct, mentor, evaluate, supervise, advise, or exercise other forms of professional responsibilities towards, such as allocating resources, selecting students for scholarships and awards, and providing recommendations or references. The purpose of this policy is to create and maintain a professional learning and work environment that is free from unlawful
discrimination, harassment, and exploitation. This policy recognizes that there is often an inherent inequity in dating, sexual, or intimate relationships between faculty/staff and students. Such relationships often result in perceptions of favoritism, bias, or discrimination that undermine academic achievements or decisions affecting students.
The College has a policy against discrimination and harassment including, without limitation, sexual harassment. Dating, sexual, or intimate relationships between faculty/staff and students may result in claims of sexual harassment and questions about the voluntariness of the relationship. Please refer to College policies on Harassment, Sexual Harassment, and Non-Retaliation for more details.
Retaliation
Otis does not discriminate in its employment practices or in its educational programs or activities on the basis of sex/gender. Otis College also prohibits retaliation against any person opposing discrimination or participating in any discrimination investigation or complaint process internally or externally. Reports of misconduct, questions regarding Title IX, and concerns about noncompliance should be directed to the Title IX Coordinator. For a complete copy of the policy or for more information, please contact the Title IX Coordinator, Jess Johnson Mills at 310-846-2554, or at jjohnsonmills@otis.edu.