Sexual assault, rape and other forms of sexual discrimination and harassment are crimes of violence and control. Below are short summaries of how these crimes are defined under Massachusetts law and/or used in this policy.
In Massachusetts, it is illegal to have sex under any circumstances with someone who is incapable of giving consent due to incapacity or impairment; incapacity or impairment may be caused by intoxication or drugs, or because a victim is underage, mentally impaired, unconscious, or asleep. For purposes of this policy, consent is an explicitly communicated, reversible, mutual agreement to which all parties are capable of making a decision.
Sexual assault is broadly defined in this policy as any sexual activity that is forced, coerced or otherwise without consent. Sexual assault that does not meet the legal definition of rape may be prosecuted under Massachusetts laws prohibiting indecent assault and battery.
Rape is one form of sexual assault. Massachusetts courts have held that the crime of rape has the following elements:
- penetration of any bodily orifice by any object;
- force or threat of force; and
- an unwilling victim.
- Consent requires a "Yes" in response to requests for sexual acts.
- Silence is not consent.
- "No" is not consent.
- By law, a person is incapable of consent if he or she is unconscious, asleep or younger than 16 years old.
- A person may also be incapable of consent if he or she is intoxicated (i.e. drunk, high) or mentally incompetent.
- Submission is not necessarily consent. There is a fine line between persuasion and coercion. For example, having sex with someone who reasonably believes that there is a threat of force meets the legal definition of rape in Massachusetts.
Domestic Violence, Dating Violence and Stalking
Sexual discrimination and harassment can also take the form of domestic violence, dating violence and/or stalking. These are crimes under Massachusetts law and are strictly prohibited at Smith College. By law, the college is required to track reports of these crimes involving Smith College students. Please be advised that Massachusetts law defines these crimes as follows below.
Domestic and Dating Violence
The primary domestic violence law in Massachusetts is Massachusetts General Laws Ch. 209A, titled the Domestic Relations Abuse Prevention Law. This law includes situations of abuse involving unmarried persons in dating or other relationships, as set forth below. "Abuse" is defined by M.G.L. Ch. 209A, § 1 as: "the occurrence of one or more of the following acts between family or household members:
- attempting to cause or causing physical harm;
- placing another in fear of imminent serious physical harm;
- causing another to engage involuntarily in sexual relations by force, threat, or duress."
"Family or household members" are defined as "persons who:
- are or were married to one another;
- are or were residing together in the same household;
- are or were related by blood or marriage;
- having a child in common regardless of whether they have ever married or lived together; or
- are or have been in a substantive dating or engagement relationship, which shall be adjudged by district, probate, or Boston municipal courts in consideration of the following factors:
- the length of time of the relationship;
- the type of relationship;
- the frequency of interaction between the parties; and
- if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship."
Stalking is defined and criminalized by Massachusetts General Laws Ch. 265, § 43 (a):
"Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress and makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking and shall be punished by imprisonment in the state prison for not more than 5 years or by a fine of not more than $1,000, or imprisonment in the house of correction for not more than 2 1/2 years or by both such fine and imprisonment. The conduct, acts or threats described in this subsection shall include, but not be limited to, conduct, acts or threats conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications."
These summaries are for informational purposes only. For more information about the legal elements of these crimes, please review the applicable statutes and seek legal counsel.
Other Terms of Discrimination
The college prohibits sexual or any other kind of harassment or intimidation, whether committed by or against a student, faculty member, supervisor, coworker, vendor or visitor. Harassment has no place in our community, whether based on a person's race, sex, color, creed, religion, national/ethnic origin, age, handicap, sexual orientation or disabled veteran/Vietnam-era veteran status. See also the Policy on Sexual Harassment and the Policy on Hazing.