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Employee Title IX Policy - Statement on Consent and Incapacitation

VIII. Statement on Consent and Incapacitation

Consent is clear, knowing, and voluntary agreement to participate in sexual activity. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding a willingness to engage in (and the conditions of) sexual activity. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent, and relying on nonverbal communication alone may not be sufficient to establish consent.

Consent to any one form of sexual activity does not automatically imply consent to any other forms of sexual activity. Previous relationships or prior consent do not imply consent to future sexual acts. Even in the context of a relationship, there must be mutual consent to engage in sexual activity each time it occurs. Consent to engage in sexual activity with one person is not consent to engage in sexual activity with any other person.

When it is unclear whether someone consents to activity, it is the responsibility of the person who initiates the activity to ensure that their partner clearly communicates consent. To continue to engage in sexual activity without consent from their partner is a violation of this Policy.

Consent can be withdrawn by either party at any point. Once consent is withdrawn, the sexual activity must cease immediately.

Consent must be mutually understandable. That is, a reasonable person would have to consider the words or actions of the parties to indicate that there was a clear agreement to engage in the given activity with each other at the same time.

Consent cannot be obtained through force, coercion, or taking advantage of another person’s incapacitation. Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that overcome resistance or produce consent. Note: There is no requirement that a party actively resist the sexual advance or request, but resistance is a clear demonstration of non-consent. Sexual activity that is forced is by definition nonconsensual, but lack of physical force or coercion does not indicate consent.

Coercion is unreasonable pressure for sexual activity that is sufficient to overcome an individual’s freedom of will whether to voluntarily consent to participate in the sexual activity. Coercive conduct includes intimidation and express or implied threats of immediate or future physical, emotional, reputational, financial or other harm to the Complainant or other that would reasonably place an individual in fear and that is employed to compel someone to engage in sexual activity.

Consent cannot be given by minors, by mentally disabled persons, or by otherwise physically or mentally incapacitated persons. Consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated.

Incapacitation is the inability, temporarily or permanently, to give consent because an individual is incapable of appraising or controlling their own conduct, physically unable to verbally or otherwise communicate consent or unwillingness to an act, asleep, unconscious, or unaware that sexual activity is occurring.  People who are unconscious, asleep, unaware the sexual activity is occurring, incapacitated as a result of alcohol or drugs (whether consumed voluntarily or involuntarily), or who are physically or mentally incapacitated cannot give consent.

Incapacitation is an important and specific concept. Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity. A person who is incapacitated is incapable of recognizing what is going on around them. An incapacitated person is not able to recognize the sexual nature or extent of the situation they are in. To engage in sexual activity with a person one knows or should know is incapacitated is a violation of this Policy.

When alcohol or other drugs are involved, incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily incapacitated merely as a result of drinking or using drugs; the level of impairment must be significant enough to render the person unable to give consent. The impact of alcohol and other drugs varies from person to person, and a person’s level of intoxication may vary based upon the nature and quality of the substance imbibed, the person’s weight, tolerance, ingestion of food and other circumstances. A person’s level of impairment may also change rapidly.

In evaluating consent in cases of potential incapacitation, the University asks two questions: (1) Did the person initiating sexual activity know that the other party was incapacitated? and, if not, (2) Should a sober, reasonable person, in the same situation, have known that the other party was incapacitated? If the answer to either of these questions is “yes,” consent was absent and the conduct is likely a violation of this Policy.

One is not expected to be a medical expert in assessing incapacitation. One must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, typical signs often include slurred or incomprehensible speech, unsteady manner of walking, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?” “Do you know how you got here?” “Do you know what is happening?” “Do you know whom you are with?”

One should be cautious before engaging in sexual activity when a party has been drinking alcohol or using drugs. The use of alcohol or other drugs may impair a party’s ability to determine whether consent has been sought or given. If one has doubt about a party’s level of intoxication, the safe thing to do is to forego all sexual activity. A Respondent’s intoxication will not excuse the Respondent from the obligation to obtain consent as described in this Policy.