Communication of mutually understandable words or actions, freely, actively, and affirmatively given that indicate a willingness to participate in mutually agreed upon sexual activities or actions. Consent is mutually understandable when a reasonable person would consider the words or actions of the parties involved to do the same thing, in the same way, at the same time. Consent cannot be given if the individual has a reasonable fear he or she will be injured if the individual does not give consent, is incapable of giving consent or is prevented from resisting due to physical or mental incapacity, which may include but is not limited to the influence of drugs or alcohol, or if the individual has a mental or physical disability that would prohibit their ability to provide consent. In the absence of mutually understandable words or actions, it is the responsibility of the initiator of the sexual activity to make sure they have consent from their partner. Consent can also be withdrawn at any time.
What Constitutes Lack of Consent?
Consent cannot be inferred through silence or lack of resistance. Consent to one activity does not constitute consent to other sexual acts. Past sexual activity does not constitute consent for future acts. A minor cannot provide consent under any circumstances. If at any time consent is uncertain, the initiating party should stop and obtain verbal consent. The use of any force, display of force, coercion, or intimidation negates consent.
Individuals who are incapacitated may not legally give consent to sexual activity. Incapacitation includes, but is not limited to, being highly intoxicated, passed out, or asleep. A person who is incapacitated for purposes of this policy is one who is not legally able to give consent because they are mentally or physically helpless. Mentally helpless is when a person has a mental illness or a condition (like being passed out, asleep, or highly impaired) that renders them incapable of understanding the nature of their conduct. Physically helpless means a person has restriction of movement, either temporarily or permanently.
When incapacitation occurs due to alcohol or drug use, indicators of incapacitation may include the following:
- Bloodshot or unfocused eyes
- Unsteady gait; needing assistance to walk/stand
- Outrageous or unusual behavior
- Concern expressed by others about the individual
- Expressed memory loss or disorientation
An individual may also be in a state known as a "blackout" where they are incapacitated and will likely have no memory of the sexual activity, but are up, and walking and talking. Therefore, it is of particular importance that any two people engaging in sexual activity know the other person's level of intoxication prior to beginning sexual contact. For purposes of the University's policy, the standard that shall be applied is whether or not a reasonable person would have known, based on the facts and circumstances presented at the time of the alleged conduct, that the other party was incapacitated and therefore, not capable legally of consenting. As the accused party, being under the influence of alcohol or drugs is never a defense to this policy and does not excuse sexual misconduct.