Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in the sexual activity. Consent can be given by words or actions, as long as those words or action create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression.
Guidance for Consent
- Consent to any sexual act or prior consensual activity between or with any party does not necessarily constitute consent to any other sexual act.
- Consent may be initially given but withdrawn at any time.
- A verbal “no” constitutes lack of consent, even if it sounds insincere or indecisive.
- Consent to engage in sexual activity with a person(s) does not imply consent to engage in sexual activity with another person(s).
- Individuals with previous or current intimate relationships do not automatically give either initial or continued consent to sexual activity. Even in the context of a relationship, there must be voluntary and mutually understandable communication that clearly indicates a willingness to engage in sexual activity each time.
- Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
- Consent cannot be given when a person is incapacitated or when the person initiating the sexual activity should have reasonably known about the incapacitation. Incapacitation occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, and other intoxicants may be incapacitated and therefore unable to consent.
- Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
- When consent is withdrawn or can no longer be given, sexual activity must stop.
Definition of Force
Affirmative consent cannot be obtained through the use of force: Force is the use or threat of physical violence, intimidation, or coercion to overcome an individual's freedom of will to choose whether or not to participate in sexual activity. For this use of force to be demonstrated, there is no requirement that a Complainant resists the sexual advance or request. However, resistance by the Complainant will be viewed as a clear demonstration of non-consent.
- Intimidation: Intimidation includes intentionally directing verbal, written, or electronic threats of violence or other threatening behavior(s) toward another person or group that reasonably leads the targeted person(s) to fear for their physical well-being. Intimidation also includes fear inducing behavior(s) that deter or prevent the targeted person(s) from taking legitimate actions that they may otherwise take.
- Coercion: Coercion is the improper use of pressure to compel another individual to initiate or continue sexual activity against their will. Coercion can include a wide range of behaviors, including manipulation, threats, and blackmail. A person's words or conduct are sufficient to constitute coercion if they wrongfully impair another individual's freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include threatening to "out" someone based on sexual orientation, gender identity, or gender expression, or threatening to harm oneself if the other party does not engage in the sexual activity.
Definition of Sexual Activity
"Sexual Activity" has the same meaning as "sexual act" and "sexual contact" as provided in 18 U.S.C. § 2246(2) and 18 U.S.C. § 2246(3). Therefore, the term "sexual activity" includes the following:
- Contact between the penis and the vulva or the penis and the anus, and for purposes of this definition contact involving the penis occurs upon penetration, however slight;
- Contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
- The penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;
- The intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 17 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
- The intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
Individuals must obtain Affirmative Consent prior to engaging in sexual activity.