Understanding Affirmative Consent

Affirmative Consent Is Key

Affirmative consent means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.

Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Affirmative consent may be given by words or actions unmistakable in meaning. In order to be effective, affirmative consent cannot be procured by use of physical force, compelling threats, intimidating behavior, or coercion. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another.

When someone makes clear to another person that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. In order to give affirmative consent for purposes of this policy, one must be of legal age.

In the evaluation of complaints of sexual violence under this policy, it is not a valid excuse to alleged lack of affirmative consent that the respondent believed that the complainant consented to the sexual activity under either of the following circumstances:

• The respondent’s belief in affirmative consent arose from the intoxication or recklessness of the respondent, or
• The respondent did not take reasonable steps, in the circumstances known to the respondent at the time, to ascertain whether the complainant affirmatively consented.

Affirmative consent will not be found to have been given when it is determined by a preponderance of the evidence that the respondent knew or reasonably should have known that the complainant was unable to consent to the sexual activity because the complainant was either:

• asleep,
• unconscious,
• incapacitated due to the influence of drugs, alcohol, or medication such that the complainant could not understand the fact, nature or extent of the sexual activity, or
• unable to communicate due to a mental or physical condition.

If an individual has sexual activity with someone known to be or should be known to be mentally or physically incapacitated (alcohol or other drug use, unconsciousness, or blackout), he or she is in violation of this Sexual Harassment, Stalking, and Sexual Violence policy and may be in violation of the law. Any time sexual activity takes place between individuals, those individuals must be capable of controlling their physical actions and be capable of making rational, reasonable decisions about their sexual behavior.