Consent is an affirmative, conscious decision by each participant to engage in mutually agreed-upon sexual activity. Participants must act freely and voluntarily. The following are essential elements of consent:
- 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.
- Freely and actively given: Consent cannot be obtained through the use of force, coercion, threats, or intimidation, or by taking advantage of the incapacitation of another individual.
- Mutually understandable: Communication regarding consent consists of mutually understandable words and/or actions that indicate an unambiguous willingness to engage in sexual activity. In the absence of clear communication or overt demonstration, there is no consent. Consent may not be inferred from silence, passivity, lack of resistance or lack of active response. An individual who does not physically resist or verbally refuse sexual activity is not necessarily giving consent. Relying solely upon non-verbal communication can lead to a false conclusion about whether consent was sought or given.
- Not indefinite: Consent may be withdrawn by any party at any time. Recognizing the dynamic nature of sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate clearly throughout all stages of sexual activity. Withdrawal of consent can be an expressed “no” or can be based on an outward demonstration that conveys that an individual is hesitant, confused, uncertain, or is no longer a mutual participant. Once consent is withdrawn, the sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before continuing further sexual activity.
- Not unlimited: Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to sexual activity with one individual constitute consent to activity with any other individual. Each participant in a sexual encounter must consent to each form of sexual contact with each participant. Even in the context of a current or previous intimate relationship, each party must consent to each instance of sexual contact each time. The consent must be based on mutually understandable communication that clearly indicates a willingness to engage in sexual activity. The mere fact that there has been prior intimacy or sexual activity does not, by itself, imply consent to future acts.
Sexual decision-making is a shared responsibility. Each individual in a sexual encounter has a responsibility to communicate, in words or overt actions, the desired or undesired level of intimacy. This means that consent for sexual conduct must be voluntary, clear, and present before the behavior progresses.
Consent while under the influence of alcohol or other drugs: Northern Michigan University considers sexual encounters while under the influence of alcohol or other drugs to be risky behavior. Alcohol and other drugs impair an individual’s decision-making capacity, awareness of consequences, and ability to make informed judgments. If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to cease any sexual contact or activity. Consent cannot be given if an individual is incapacitated by alcohol or other drugs.
Use or abuse of alcohol or other drugs by a person charged with a sexual misconduct does not diminish, and may increase, personal responsibility. Providing or making available any substance (e.g. alcohol or other drugs, including but not limited to GHB, Rohypnol and Ecstasy) may increase the personal responsibility of the provider to obtain consent for sexual activity. The person reporting sexual misconduct will not be charged with a violation of the Student Code for use of alcohol or other drugs.
Incapacitated/Intoxicated/Under the Influence is defined as the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring. Incapacitation can occur as a consequence of alcohol or other drug use or because of a psychological condition.
Intoxicated and “under the influence” are defined as the state where a normal person’s capacity to reason or act with ordinary care are impaired by alcohol or other drugs.
Being intoxicated, impaired, or under the influence is never an excuse for sexual misconduct and does not diminish one’s responsibility to obtain consent. Sexual participants should possess the ability to consciously consent. Evaluating incapacitation requires an assessment of whether a respondent knew or should have known that the complainant was incapacitated. Providing or making available alcohol or other drugs may increase one’s personal responsibility for obtaining consent because the provider has reason to know that the recipient may be incapacitated.