For all forms of prohibited conduct covered by this policy, the terms consent, force, coercion, and incapacitation are defined as follows:
Consent consists of an affirmative, conscious decision by each participant to engage in mutually agreed-upon sexual activity. Participants must act freely and voluntarily and have knowledge of the nature of the act involved. The following are essential elements of consent: (1) Consent must be informed and reciprocal. All parties must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting and a willingness to do the same thing, at the same time, in the same way. (2) Consent must be freely and actively given. Consent must be an affirmative action or communication that is freely, actively and voluntarily given. Consent cannot be obtained through the use of force, coercion, threats or intimidation, or by taking advantage of the incapacitation of another individual. (3) Consent must be mutually understandable. Communication regarding consent consists of mutually understandable words and/or actions that indicate a willingness to engage in sexual activity. Consent must be clearly communicated or outwardly demonstrated; therefore, consent cannot be inferred from silence, passivity, lack of resistance, lack of active response, or choice of clothing. For example, an individual’s choice of clothing is not an outward demonstration of consent to a sexual activity. (4) Consent is not indefinite. Consent may be withdrawn by either party at any time. Withdrawal of consent can be a verbally expressed statement, such as “no” or “stop” or can be based on an outward demonstration that conveys that an individual is hesitant, confused, uncertain, or is no longer a willing participant. (5) Consent is limited. Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to one sexual activity with one person constitute consent to activity with any other person.
Force is the use of, 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. The reporting party does not have to resist the sexual advancement or request in order to establish the use of force; however, resistance by the reporting party will be viewed as a clear demonstration of non-consent. Force can include a wide range of behaviors, including, but not limited to intimidation, manipulation, threats, and blackmail. A person’s words or conduct are sufficient to constitute force if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity.
Coercion is the improper use of pressure to compel another individual to engage in or to be the recipient of prohibited conduct. Coercion can include a wide range of behaviors, including, but not limited to intimidation, manipulation, threats, and blackmail. A person’s words or conduct are sufficient to constitute coercion if they interfere with another individual’s freedom of will and ability to consent whether or not to engage in sexual activity.
Incapacitation is a state during which an individual lacks the ability (mentally or physically) to make an informed and rational decision to engage in intimate or sexual activity because the individual lacks conscious knowledge of the nature of the act (e.g. to understand the who, what, when, where, why, or how of the sexual interaction) and/or is physically helpless.
Incapacitation may result from the use of alcohol, medication, and/or drugs. The impact of alcohol and drugs varies from person to person. Alcohol consumption, medication usage, and/or use of other drugs can affect a person’s ability to consent. To determine whether a party should have known about the incapacitation, consider the position of a sober, reasonable person. Being intoxicated or impaired by drugs, medication, or alcohol is never an excuse for failing to obtain consent from another person.
An individual is also considered incapacitated, and therefore unable to give consent, when asleep, unconscious, or otherwise unaware that sexual activity is occurring. Incapacitation may also exist because of a mental or developmental disability that impairs the ability to consent to sexual contact.