What is Effective Consent?
Consent is defined as:
- Words or actions that show a knowing and voluntary agreement to engage in mutually agreed-upon sexual activity.
- Effective consent cannot be gained by force, by ignoring or acting in spite of the objections of another, or by taking advantage of the incapacitation of another, where the respondent knows or reasonable should have known of such incapacitation.
- Effective consent is also absent when the activity in question exceeds the scope of prior effective consent.
- In the State of Ohio, persons 13 years of age or younger cannot give effective consent, and persons under the age of 16 cannot give consent to individuals 18 or older.
Since different people may experience the same interactions differently, each party is responsible for making sure that partners have provided ongoing, clear consent to engaging in any sexual activity or contact.
A person may withdraw consent at any time during sexual activity or contact through words or actions. If that happens, the other party must immediately cease the activity or contact. Pressuring another person into sexual activity can constitute coercion, which is also a violation.
Silence or the absence of resistance alone does not constitute consent.
Consent to some forms of sexual activity (e.g., kissing, fondling, etc.) should not be construed as consent for other kinds of sexual activities (e.g., intercourse).
Being or having been in a dating relationship with the other party does not mean that consent for sexual activity exists.
Previous consent to sexual activity does not imply consent to sexual activity in the future.
Let’s talk about Incapacitation
Incapacitation is defined as the physical and/or mental inability to make informed rational judgments. States of incapacitation include, without limitation, sleep, blackouts, and flashbacks.
Where alcohol [or other drug] is involved, one does not have to be intoxicated or drunk to be considered Incapacitated. Rather, Incapacitation is determined by how the alcohol consumed impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. Because incapacitation may be difficult to discern, students are strongly encouraged to err on the side of caution; i.e., when in doubt, assume that another person is incapacitated and therefore unable to give effective consent.
Being intoxicated or drunk is never a defense to Prohibited Conduct under this Policy. A factor considered during sexual complaint hearings is whether the accused student knew, or a sober, reasonable person in the position of the accused student should have known, that the complainant was incapacitated.