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THE BERKELEY CAMPUS STUDENT POLICY AND PROCEDURES REGARDING RAPE AND SEXUAL ASSAULT

I. POLICY STATEMENT

The University of California at Berkeley is committed to creating and maintaining an environment in which all persons who participate in University programs and activities can work together in an atmosphere free of all forms of harassment, exploitation, or intimidation. Every member of the University community should be aware that such behavior is prohibited by law and by University policy and that the University will not tolerate sexual misconduct in any form, including acquaintance or date rape. The University will take appropriate action to prevent, correct, and discipline behavior that is found to violate campus policy or regulations proscribing rape* or sexual assault.

*Except where otherwise necessary, this policy will hereinafter refer to both rape and sexual assault simply as "sexual assault."

The campus' first responsibility in responding to reports of sexual assault is attending to the needs of the individuals involved (e.g., the student who reports being sexually assaulted, roommates, family members, and close friends). All reports of sexual assault are taken with the utmost seriousness, and the student will be referred to the appropriate persons or units for assistance. The campus is also responsible for ensuring that the individual charged with committing the assault is treated fairly. The alleged assailant will be presumed innocent until proven guilty and will be referred to appropriate services for assistance.

Established principles of confidentiality, arising under policy and law, and recognition of the concern for privacy inherent in allegations of sexual misconduct are maintained. To protect the individual's privacy rights, the names of individuals or other identifying information, especially that contained in written documents and notes, will only be disclosed to third parties if prior written permission is givenby the individual concerned or to those authorized by state or federal law to receive such information.

II. APPLICABLE STANDARDS

This policy addresses sexual misconduct only as it affects Berkeley students, both as those who report being sexually assaulted and as those who have been charged with the commission of such an offense. Other policies may also apply to non-students alleged to have committed rape or sexual assault. The Faculty Code of Conduct, as adopted through resolution of the Academic Senate, outlines ethical and professional standards which University faculty are expected to observe. It also identifies various forms of unacceptable behavior which are applicable in cases of sexual harassment and outlines sanctions and disciplinary procedures. For staff members, existing provisions of Staff Personnel Policy, Administrative and Professional Staff Program Policy, Management and Professional Program Policy, Executive Program Policy, or memoranda of understanding prohibit conduct which violates law and University policy, and provide for disciplinary action for inappropriate conduct.

This policy defines the acts of sexual misconduct prohibited by the Campus Code of Student Conduct, and provides guidance on what students should do if they have been sexually assaulted and what the campus will do if a sexual assault occurs. A student alleged to have engaged in sexual misconduct can be prosecuted under California criminal statues and/or disciplined under the Campus Code of Student Conduct. For language concerning the criminal standards that may apply to these complaints, please refer to the California Penal Code.

The Campus Code of Student Conduct prohibits rape, sexual assault, or sexual harassment by students. The following policy definitions apply: A. Rape is defined to include all acts of sexual intercourse involving penetration imposed under the following circumstances:

  1. where the complaining party is incapable, because of a mental, developmental, or physical disability, of giving legal consent and this fact is known or reasonably should be known to the person committing the act; or
  2. where such an act is accomplished against a person's consent by means of force, coercion, duress, violence, or reasonable fear of harm to the complaining party or another; or
  3. where the complaining party is prevented from resisting or giving consent as a result of intoxication, or is unconscious at the time of the act, and this fact is known to the person committing the act.

Acquaintance rape is sexual intercourse undertaken by a friend or acquaintance without the consent of the student. A student found guilty of committing rape under the Code is subject to dismissal by the University.

B. Sexual assault is defined as the imposition of non-consensual sexual conduct excluding rape, including but not limited to oral copulation, penetration by a foreign object, or caressing, fondling, or touching of a person's genitalia, buttocks, or breasts. A student found guilty of committing sexual assault under the Code is subject to dismissal by the University.

C. Consent is defined as positive cooperation in act or attitude pursuant to an exercise of free will. The individuals consenting must act freely and voluntarily and have knowledge of the nature of the act or transaction involved. It is a defense to the allegation of non-consent that a defendant held a reasonable and good faith belief that the complainant was consenting. A current or previous dating relationship is not sufficient to constitute consent. The determination regarding the presence or absence of consent should be based on the totality of circumstances, including the context in which the alleged incident occurred. The fact that an individual was intoxicated at the time may be considered in determining whether that person had consented to the act in question. Students should understand that consent may not be inferred from silence or passivity alone.

D. Sexual harassment is described in the Campus Code of Student Conduct and the Campus Policy on Sexual Harassment and Complaint Resolution Procedures. Copies are available from the Office of Student Conduct, 326 Sproul Hall, 643-9069, the Women's Resource Center, 250 Golden Bear Center, 643-5730, the Office of Student Life, 297 Golden Bear Center, 643-9260, or the Title IX Compliance Officer, 200 California Hall, 643-7985. Any violation of the Policy on Sexual Harassment constitutes a violation of the campus Code of Student Conduct.

E. The term "student" means an individual for whom the University maintains records and who: (a) is enrolled or registered with an academic program of the University; (b) has completed the immediately preceding term and is eligible for reenrollment, including the recess periods between academic terms; or (c) is on approved educational leave or other approved leave status, or is on filing-fee status.


Whether or not the criminal justice authorities choose to prosecute, the campus can pursue formal disciplinary action against a student alleged to have committed a sexual assault. Responsibility for pursuing campus disciplinary actions involving students rests with the Office of Student Conduct. The campus has jurisdiction over offenses by students that occur on University property (such as classrooms and residence halls), in other locations in the immediate vicinity of the campus (such as nearby fraternity and sorority houses, the student co-ops, and apartment buildings), and at official University functions.

Pending a formal disciplinary hearing, the campus may take a variety of administrative measures against a charged student, including restriction of privileges and services, interim suspension, and exclusion from certain campus areas, such as classrooms and residence facilities. To prevent further conflict between the parties, the campus may utilize administrative reassignment procedures to move individuals to another residence hall or complex, limit access to a specific hall or complex during the course of a campus or criminal investigation, or make academic accommodations as appropriate for either party. Normal student conduct procedures will be followed in resolving allegations of sexual misconduct, with the following exception. A hearing in a case concerning allegations of sexual misconduct may be closed to the public if the hearing body determines that the privacy rights of a witness, including those of the individual who reports being sexually assaulted, may otherwise be jeopardized.

III. COORDINATION OF CAMPUS RESPONSE

The University has an obligation to communicate information regarding University policies, regulations, and procedures to concerned members of the University community, including family and friends of the students involved, and to the general public, and has a legal obligation to disclose the outcome of the discipline proceedings to the student who reports being sexually assaulted. Responsibility for coordination of the campus response is delegated to the Title IX Compliance Officer. Pursuant to federal Law, the University also has a legal responsibility for documenting and reporting the incidence of sexual assault on the Berkeley campus. This responsibility is delegated to the Campus Police Department.

IV. CAMPUS PREVENTION AND EDUCATION EFFORTS

The University of California at Berkeley employs a multifaceted approach to preventing sexual assault. The campus maintains the Sexual Assault Prevention, Medical and Counseling Service, housed at the University Health Services, and other prevention initiatives, including those housed within Undergraduate Affairs, in particular Student Activities and Services and the Women's Resource Center; the Campus Police Department; the Housing Office; and other campus units. These groups collaborate to distribute the Policy and Procedures Regarding Rape and Sexual Assault; to provide educational workshops to campus officials, staff, and students; and to develop and disseminate educational materials relating to the prevention of sexual assault.

More specifically, the following campus programs offer prevention and educational resources:

V. CAMPUS PROCEDURES FOR RESPONDING TO A SEXUAL ASSAULT

This section outlines the procedures the campus follows in responding to reports of sexual assault allegedly committed by students. It assumes that the incident occurred on or near campus (at an official University function or on University property). However, many of the procedures and services described here also apply if the incident happens off campus or if the individual reporting the assault is not a student.