The university’s policy on sexual misconduct and relationship violence defines “consent” as an affirmative and voluntary agreement by a person to engage in a specific sexual act.
Consent Must Be Obtained.
Consent must be obtained, and the responsibility for obtaining consent rests with the individual who voluntarily and physically initiates a specific sexual act, even if the other person initiated the sexual encounter.
One’s own use of alcohol, drugs, or other substances does not diminish one’s responsibility to obtain consent from the other person. Moreover, another person’s use of alcohol, drugs, or other substances does not diminish one’s responsibility to obtain Consent from that person.
Consent Must Be Affirmative.
Consent must be affirmative, which means that consent is communicated only through words and/or non-verbal actions that convey a clear agreement to engage in a specific sexual act.
Whether person has communicated an agreement to engage in a specific sexual act generally is evaluated from the perspective of what a reasonable person who perceived the individual’s words and/or nonverbal actions would have understood; however, in the context of a long-term relationship between persons that has involved sexual activity and a pattern of communicating consent, whether consent has been communicated may be evaluated based on a subjective standard (i.e., what did the specific person who initiated the specific sexual act conclude?). A verbal “no” (or words equivalent to “no”) or the nonverbal communication of “no,” even if it sounds or appears insincere or indecisive, always means that consent has not been communicated, or if previously communicated has been withdrawn. The absence of a verbal “no” or the absence of a nonverbal communication of “no” does not necessarily mean that consent has been communicated. Because interpreting nonverbal actions may lead to misunderstanding and a violation of this policy, persons subject to this policy are strongly encouraged to err on the side of caution and not rely solely on the nonverbal actions of another person in concluding that the other person has communicated consent. The university urges persons subject to this policy to communicate with one another before engaging in a sexual act to ensure that they both wish to engage in the same sexual act.
Consent cannot be obtained by or inferred from:
- silence that is not accompanied by non-verbal actions conveying a clear agreement to engage in a particular sexual act;
- consent communicated by the other person on a previous occasion;
- consent communicated to another person;
- the other person’s failure to resist physical force (however, for purposes of this policy, the other person’s resistance to physical force will be viewed as a clear demonstration that the person has not communicated consent);
- the sexual arousal of the other person;
- a current or previous dating, romantic, intimate, or sexual relationship with the other person;
- currently or previously cohabitating with the other person;
- the other person’s attire;
- the other person’s reputation;
- the other person’s giving or acceptance of gifts; or
- the other person’s extension or acceptance of an invitation to go to a private residence, room, or other location.
Consent Must be Voluntary.
Consent is not voluntary if it is obtained by coercion.
Nor is consent voluntary if it is obtained from a person who is incapacitated if one knows (or a reasonable person would know) that the other person is incapacitated. Because the incapacitation of another person may be difficult for one to discern, persons subject to this policy are strongly encouraged to err on the side of caution (i.e., when in doubt, assume that the other person is Incapacitated and therefore unable to give consent).
Consent Must be Continual.
Consent must be continual, which means that consent must exist from the beginning to the end of each sexual encounter and for each specific sexual act that occurs during a sexual encounter.
A person has a right to change his/her mind; thus, consent to engage in a specific sexual act may be withdrawn by a person at any time. A withdrawal of consent is communicated through clear words and/or clear nonverbal actions that indicate that a person no longer agrees to engage in a specific sexual act. Once a person’s withdrawal of consent has been communicated, the other person must cease the specific sexual act and must obtain consent before reinitiating the specific sexual act or any other sexual act. Consent is automatically withdrawn when a person becomes incapacitated. Consent to one type of sexual contact or sexual intercourse (e.g., oral intercourse) does not constitute or imply consent for another type of sexual contact or sexual intercourse (e.g., vaginal intercourse), whether during a sexual encounter or during a previous sexual encounter. The university urges persons subject to this policy to communicate with one another throughout a sexual encounter to ensure that any progression of sexual activity is done with consent.