There is no crime called “sexual assault” in Massachusetts; however, there are related crimes of “indecent assault and battery,” “rape,” and “assault with intent to commit rape.” Indecent Assault and Battery is a crime under G.L. c. 265: § 13B (Indecent assault and battery on a child under the age of fourteen); § 13B1/2 (Commission of indecent assault and battery on a child under the age of fourteen during commission of certain other offenses or by mandated reporters); § 13B3/4 Commission of indecent assault and battery on a child under the age of fourteen by certain previously convicted offenders); § 13F (Indecent assault and battery on a person with an intellectual disability); and 13 H (Indecent assault and battery on a person fourteen or older). The term “indecent assault and battery” is not defined by statute. Rape is a crime under G.L. c. 265: § 22 (Rape, generally: “Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury…”); § 22A (Rape of a child: “Whoever has sexual intercourse or unnatural sexual intercourse with a child under 16, and compels such child to submit by force and against his will or compels such child to submit by threat of bodily injury…”); § 22B (Rape of a child during commission of certain offenses or by use of force: “Whoever has sexual intercourse or unnatural sexual intercourse with a child under 16, and compels such child to submit by force and against his will or compels such child to submit by threat of bodily injury and…”); § 22C (Rape of a child through use of force by certain previously convicted offenders: “Whoever has sexual intercourse or unnatural sexual intercourse with a child under 16, and compels such child to submit by force and against his will or compels such child to submit by threat of bodily injury, and has been previously convicted of or adjudicated delinquent or as a youthful offender for…”); § 23 (Rape and abuse of child: “Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age…”); § 23A (Rape and abuse of child aggravated by age difference between defendant and victim or when committed by mandated reporters: “Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age and…”); and § 23B (Rape and abuse of a child by certain previously convicted offenders: “Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age and has been previously convicted of or adjudicated delinquent or as a youthful offender for...”). Assault with intent to commit rape is a crime under G.L. c. 265, § 24. “Assault with intent to commit rape” is not defined by statute. There are no crimes called “dating violence” or “domestic violence” in Massachusetts; however, there is a related crime of “abuse” that is defined in G.L. c. 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 Hampshire County municipal courts consideration of the following factors: o the length of time of the relationship; o the type of relationship o the frequency of interaction between the parties; and o if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship” Stalking is a crime under G.L. c. 265, § 43 (a), where it is described as follows: “Whoever (1) 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 (2) 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 . . . 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.” 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. Definition of Consent in Sexual Misconduct Policy Consent to sexual activity is defined as: clear, unambiguous, mutual, and voluntary agreement between the participants to engage in specific sexual acts. Consent must be expressed affirmatively, either by a verbal statement (e.g., “yes”) or through mutually understandable conduct that plainly manifests affirmative consent (e.g., initiating contact, directing contact by hands or other body parts). Consent cannot be inferred from the absence of a “no.” Silence, passivity or lack of active resistance does not imply consent. When in doubt, ask. Any doubt about consent must be resolved before engaging in further sexual activity. Consent must be clear, mutual and unambiguous for each participant throughout any sexual encounter. Consent to some types of sexual contact does not imply consent to others, nor does past consent to a given act imply ongoing or future consent. Consent is not to be inferred from an existing or previous dating or sexual relationship. Even in the context of a relationship, there must be mutual consent to engage in sexual contact. Consent to engage in sexual contact with one person is not consent to sexual contact with any other person. Consent can be withdrawn at any time through clear words or mutually understandable actions. Once consent is withdrawn, the sexual activity must stop immediately and all parties must obtain mutually expressed or clearly stated consent before continuing with further sexual activity. Consent must be freely given. Consent cannot be obtained by intimidation, threat, coercion or force. Agreement given under intimidation, threat, force or coercion does not constitute consent. Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom of will to choose whether or not to participate in sexual activity. There is no requirement that a party resists the sexual advance or request, but resistance will be viewed as a clear demonstration of non-consent. Coercing someone into sexual activity violates this policy in the same way as physically forcing someone into sex. Coercion is the use of unreasonable pressure to compel another individual to initiate or continue sexual activity against an individual’s will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats and blackmail. Examples of coercion include, but are not limited to, threatening to “out” someone based on sexual orientation, gender identity, or gender expression and threatening to harm oneself if the other party does not engage in the sexual activity. Consent cannot be gained by taking advantage of the incapacitation of another person, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated. A person who engages in sexual activity with someone the individual knows or reasonably should know is incapable of making a rational, reasonable decision about whether to engage in sexual activity is in violation of this policy. A person who is incapacitated cannot consent to sexual contact. A person is incapacitated if they are asleep, unconscious, intermittently conscious, unaware that sexual contact is occurring, or lack the physical and/or mental ability to make informed, rational judgments about whether or not to engage in sexual activity. A person may be incapacitated as a result of the consumption of alcohol or other drugs, or due to a temporary or permanent physical or mental health condition. Where alcohol or drug use is involved, incapacitation is a state beyond intoxication, inebriation, impairment in judgment or “drunkenness.” Because the impact of alcohol or other drugs varies from person to person, evaluating whether an individual is incapacitated, and therefore unable to give consent, requires an assessment of whether the consumption of alcohol or other drugs has rendered the individual physically or mentally incapable of: • Making decisions about the potential consequences of sexual contact; • Appraising the nature of one’s own conduct; • Communicating consent to sexual contact; or • Communicating unwillingness to engage in sexual contact. Where an individual’s level of impairment does not rise to incapacitation, it is still necessary to evaluate the impact of intoxication on consent. In evaluating whether consent was sought or given, the following factors may be relevant: • Intoxication may impact one’s ability to give consent and may lead to incapacitation; • A person’s level of intoxication is not always demonstrated by objective signs; however, some signs of intoxication may include slurred or incomprehensible speech; unsteady gait, difficulty walking or clumsiness; combativeness or emotional volatility; vomiting; incontinence, poor judgment and difficulty concentrating; and • An individual’s level of intoxication may change over a period of time based on a variety of subjective factors, including the amount of substance intake, speed of intake, body mass and metabolism. No matter the level of an individual’s intoxication, if that individual has not agreed to engage in sexual contact, there is no consent. Voluntary intoxication by a respondent does not diminish the responsibility to obtain valid consent. The respondent’s knowledge will be viewed from the perspective of a sober, reasonable person under the same circumstances. • In the Commonwealth of Massachusetts, consent can never be given by minors under the age of 16.