VIII. Consent, Force, Coercion, Incapacitation
Individuals who choose to engage in sexual activity of any type with each other must first obtain clear consent. Consent is clear, knowing, and voluntary permission. It can only be given by someone of legal age. Consent is demonstrated through mutually understandable words or actions that clearly indicate a willingness to engage freely in sexual activity. Consent cannot be obtained through the use or threat of physical force, intimidation, or coercion, or any other factor that would eliminate an individual’s ability to exercise free will to choose whether or not to have sexual contact.
Each participant in a sexual encounter is expected to obtain and give consent to each act of sexual activity in order for the activity to be considered consensual. Consent to one form of sexual activity does not constitute consent to engage in all forms of sexual activity.
Consent consists of an outward demonstration indicating that an individual has freely chosen to engage in sexual activity. While consent can be given by words or non-verbal actions, non-verbal consent is more ambiguous than explicitly stating one’s wants and limitations. Relying on non-verbal communication can lead to misunderstandings. Consent may not be inferred from silence, passivity, lack of resistance, or lack of an active response. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent.
When consent is requested verbally, absence of any explicit verbal response or a clear non-verbal response constitutes lack of consent. A verbal “no” constitutes lack of consent, even if it sounds insincere or indecisive. Under this policy, “no” always means “no.” “Yes” only means “yes” when it is voluntarily and knowingly given by an individual who has the capacity to give consent.
If at any time during the sexual activity, any confusion or ambiguity arises as to the willingness of other individuals to proceed, all parties should stop and clarify, verbally, the other’s willingness to continue before proceeding with such activity.
Any party may withdraw consent prior to the completion of the act. Withdrawal of consent should be outwardly demonstrated by words or actions that clearly indicate a desire to end sexual activity. Once withdrawal of consent has been expressed, sexual activity must cease.
Individuals with a previous or current intimate relationship do not automatically give either initial or continued consent to sexual activity. Even within the context of a relationship, there must be mutually understandable communication that clearly indicates a willingness to engage in sexual activity each time.
Individuals must be able to fully understand what they are doing in order to consent to sexual activity. An individual who is incapacitated is unable to give consent. See Incapacitation in Section VIII.D. for further discussion.
In the State of Ohio, the age of majority is 18. Under state law, consent cannot be given by any individual under the age of 16 to participate in sexual activity with an individual over the age of 18. In addition, consent can never be given by minors under the age of 13.
Force is the use 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. There is no requirement that a party resists the sexual advance or request. Consent cannot be obtained by force.
Coercion is compelling another individual to participate in sexual activity in a manner that makes the participation involuntary. Consent for sexual activity must be clear, knowing, and voluntary. The reasonable person standard is used to establish whether participation was voluntary. Coercion contains a wide range of behaviors which override the voluntary nature of participation. Such acts include, but are not limited to, threatening to disclose personal sexual information, or threatening to harm oneself if the other party does not engage in the sexual activity. Coercing an individual into engaging in sexual activity violates this policy in the same way as physically forcing someone into engaging in sexual activity. Consent cannot be obtained by coercion.
An individual who is incapacitated lacks the ability to make informed, rational judgments and cannot consent to sexual activity. Incapacitation is defined as the inability, temporarily or permanently, to give consent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring. In addition, persons with certain intellectual or developmental disabilities may not have the capacity to give consent. Consent cannot be obtained by taking advantage of another individual’s incapacitation.
Where alcohol or other drugs are involved, incapacitation is a state beyond intoxication. The impact of alcohol and other drugs varies from person to person; however, warning signs that a person may be approaching incapacitation may include slurred speech, vomiting, unsteady balance, strong odor of alcohol, combativeness, or emotional volatility.
Evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects an individual’s:
- Decision-making ability;
- Awareness of consequences;
- Ability to make informed judgments;
- Capacity to appreciate the nature and the quality of the act; or
- Level of consciousness.
In other words, a person may be considered unable to give valid consent due to incapacitation if the person cannot appreciate the who, what, where, when, why, or how of a sexual interaction.
Evaluating incapacitation also requires an assessment of whether a respondent was or should have been aware of the complainant’s Incapacitation based on objectively and reasonably apparent indications of impairment when viewed from the perspective of a sober, reasonable person in the respondent’s position.
Being intoxicated or impaired by drugs or alcohol is never an excuse for any Prohibited Conduct under this policy and does not diminish one’s responsibility to obtain informed and freely given consent.