What is Consent?
The Samuel Merritt University Policy uses an “affirmative consent” standard, whereas:
- Consent is informed and an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct.
- Consent is voluntary. It must be given without coercion, force, threats, or intimidation. Consent is an expression of free will.
- Consent is revocable. Consent in some form of sexual activity does not imply consent to other forms of sexual activity. Consent to sexual activity on one occasion is not consent to engage in sexual activity on another occasion. A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent. Even in the context of a relationship, there must be mutual consent to engage in sexual activity. Consent must be ongoing throughout a sexual encounter and can be revoked at any time. Once consent is withdrawn, the sexual activity must stop immediately.
- Consent cannot be given when a person is incapacitated. A person cannot consent if she/he/ze is under the influence of drugs, alcohol, or medication, unconscious or coming in and out of consciousness. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy.
- It is not an excuse that the individual responding party of sexual misconduct was intoxicated and, therefore, did not realize the incapacity of the other.
- Incapacitation is defined as a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also covers a person whose incapacity results from mental disability, involuntary physical restraint and/or from the taking of incapacitating drugs.
- A person cannot consent if she/he/ze is under the threat of violence, bodily injury or other forms of coercion.A person cannot consent if his/her/hir understanding of the act is affected by a physical or mental impairment.
- In the evaluation of any allegation it is not a valid excuse to alleged lack of affirmative consent that the responding party believed that the Reporting Party consented to the sexual activity under either of the following circumstances:
(A) The Responding Party’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The Responding Party did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the Reporting Party affirmatively consented.
Consent can not be given by a minor. In The State of California a minor (meaning a person under the age of 18 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 18 years old is a crime, as well as a violation of this policy, even if the minor wanted to engage in the act.
The state definition of consent can be found here. These penal codes are applicable to criminal prosecutions for sex offenses in California, but may differ from the definition used by Samuel Merritt University to address policy violations.
Sexual Consent -- It's As Easy As Tea!
The basic principle of consent is that every person has a right to personal sovereignty -- that every person has the right not to be acted upon by someone else in a sexual way unless he or she gives clear permission to do so. Healthy sexual relations should be consensual and fun and consent means that two people (or more) decide together to do the same thing, at the same time, in the same way, with each other. Any sexual act that is initiated upon a person without their consent is against the law and is a violation of SMU Sexual Violence Policy.
Consent is based on choice.
Consent is active not passive.
Consent is possible only when there is equal power.
Giving in because of fear is not consent.
Going along with something because of fear is not consent.
Going along with something because of wanting to fit in with the group,
being deceived or feeling bad is not consent.
If you cannot say no comfortably then yes has no meaning.
If you are unwilling to accept a no then yes has no meaning.
~ Source Unknown
Elements of Consent
C = Comprehension that the act is taking place
O = Optional for both parties
N = Negotiation with partner
S = Sobriety – must have knowledge of the nature of the act
E = Engagement in the act willingly
N = Nonviolent
T = Talking about it/ communication – silence does not equal consent
Consent can only be given when intimate partners have equal power in determining the level of sexual intimacy that will or will not occur in their sexual encounters. Consent is never the mere absence of a “no.” It is never implied. Consent only emerges when there is a clear “yes” about what type of sexual intimacy is wanted by both intimate partners. And that agreement must be made without fear, threat, deceit or coercion. By establishing consent, one respects the other person's sexual boundaries, or preference to limit types of sexual involvement.
Consent is . . .
- A voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement
- An active agreement that is freely given and mutually agreed upon
- Is based in choice and cannot be coerced
- A process, which must be asked for every step of the way; if you want to move to the next level of sexual intimacy, just ask
- Never implied and cannot be assumed, even in the context of a relationship. Just because you are in a relationship does not mean that you have permission to have sex with your partner
Consent Cannot Be Given If:
- a person is severely intoxicated, incapacitated, or unconscious as a result of any drug or intoxicant
- a person has been purposely compelled by force, threat of force, or deception
- a person is unaware that the act is being committed because they are unconscious or semi-conscious
- a person's ability to consent or resist is obviously impaired because of a mental or physical condition
- a person is coerced by supervisory or disciplinary authority
- a person is under the legal age of consent.
There are many verbal and nonverbal ways to communicate no. It is important for both partners to know how to read and understand the signs when someone is uncomfortable, scared, and expressing their desire to stop either verbally or nonverbally. Remember: Just because a person didn't say 'no' and/or didn't fight back, does not mean that the incident was consensual. Fear may prevent a victim from saying no and/or from fighting back. Being unconscious means you can't say no or fight back. Being conscious but incapacitated by alcohol or drugs may also mean that saying no and fighting back is not a possibility.
KNOW WHAT NO IS!!
"NO" Means "NO"
“Stop” Means NO
"I’m not ready” means NO"
"Not Now" means NO.
"Maybe Later" means NO.
Pushing you away means NO
Screaming means NO
"I Have A Boy/Girlfriend" means NO.
"No Thanks" means NO.
"You're Not My Type" means NO.
"*#^+ Off!" means NO.
"I'd Rather Be Alone Right Now" means NO.
"Don't Touch Me" means NO.
"I Really Like You But ..." means NO.
"Let's Just Go To Sleep" means NO.
"I don’t feel like it" means NO.
"You've/I've Been Drinking" means NO.
Crying means NO
Turning away means NO
Lying there/not participating means NO
5 "nos" and then a "yes" (from exhaustion, coercion, giving in) means NO
Passed out means NO
SILENCE means NO.
Date Rape = Not Understanding "NO."
FLIRTING, KISSING, TOUCHING DOESN'T ALWAYS NEED TO LEAD TO SEX
There are different types of intimacy, like holding hands, writing love notes, kissing, hugging, massage, and actually having sex. Different people will be willing to go to different types and try different things. You might enjoy kissing, touching, but not feel ready to have sex. Or you might have had sex before with a partner, and not feel like it every time you get together. Kissing and getting intimate does not need to lead to sex. That’s why it’s important to communicate how you are feeling every time you engage in intimate or sexual activity. It is really important that you and the person you’re with is comfortable with what’s happening. Everyone has the right to say “no” and everyone has the right to change their mind at any time regardless of their past experiences with other people or the person they are with.
RECOGNIZING NON-VERBAL COMMUNICATION
There are many ways of communicating. The look on someone’s face and their body language is also a way of communicating and often has more meaning than the words that come out of their mouth. Here are some ways body language can let you know if the person you’re with is not comfortable with what is happening:
- Not responding to your touch
- Pushing you away
- Holding their arms tightly around their bodies
- Turning away from you or hiding their face
- Stiffening muscles
- Freezing or shaking
Asking questions and being aware of body language helps you to figure out if the person you’re with is consenting and feeling comfortable, or not consenting and feeling uncomfortable. If you get a negative or non-committal answer to any of these questions, or if your partner’s body language is like any of the above examples, then you should stop what you are doing and talk to them about it.
THE PERKS OF CONSENT
- Asking for and obtaining consent shows that you have respect for both yourself and your partner
- Enhances communication, respect, and honesty, which make sex and relationships better
- Ability to know and be able to communicate the type of sexual relationship you want
- Knowing how to protect yourself and your partner against STIs and pregnancy
- Opportunity to acknowledge that you and your partner(s) have sexual needs and desires
- Identify your personal beliefs and values and respecting your partner’s personal beliefs and values
- Builds confidence and self-esteem
- Challenges stereotypes that rape is a women’s issue
- Challenges sexism and traditional views on gender and sexuality
- Positive views on sex and sexuality are empowering
- Eliminates the entitlement that one partner might feel over another. Neither your body or your sexuality belong to someone else
HOW DO YOU KNOW IF THE PERSON YOU'RE WITH HAS GIVEN THEIR CONSENT?
The only way to know for sure if someone has given consent is if they tell you. It’s not always easy to let people know that you are not happy about something. Sometimes the person you’re with might look like they are happy doing something, but inside they are not. They might not know what to say or how to tell you that they are uncomfortable. One of the best ways to determine if someone is uncomfortable with any situation, especially with a sexual one, is to simply ask. Talking with one another while engaged in sex can be sexy and intimate. It is the responsibility of both intimate partners to clearly give consent for each sexual act, and for each time the sexual encounter occurs. And asking for consent is not difficult, just ASK. Here are some suggestions:
Are you ok with this?
Do you want to continue?
Can I ___ you? (kiss, touch, take your shirt off, etc.)
How are you feeling?
Do you like this?
Is there anything you don't want to do?
Tell me to stop if you are uncomfortable.
And having “hooked-up” previously and had a satisfying sexual experience does not automatically mean a follow-up sexual encounter is acceptable. Mutual consent is again expected and necessary.
WHAT IF THE PERSON YOU’RE WITH IS TOO OUT OF IT TO GIVE CONSENT?
Drugs and alcohol can affect people’s ability to make decisions, including whether or not they want to be sexual with someone else. This means that if someone is really out of it, they cannot give consent. Being with them in a sexual way when they don’t know what is going on is the same as rape.
If you see a friend who is out of it and is being intimate with someone, you should pull them aside and try your best to make sure that person is safe and knows what he or she is doing. If it’s the opposite situation, and your friend is trying to engage in a sexual encounter with someone who is out if it, you should try to pull them aside and stop them from getting themselves into trouble.
SLOWING THINGS DOWN
Taking your time, making sure you are both comfortable, and talking about how far you want to go will make the time you spend together a lot more satisfying and enjoyable for both of you. Sometimes things move very quickly. Below are some things you can say to slow things down if you feel that things are moving too quickly.
- I don’t want to go any further than kissing, hugging, touching.
- Can we stay like this for a while?
- Can we slow down?
You always have the right to say “no” and you always have the right to change your mind at any time regardless of your past experiences with other people or the person you are with. Below are some things you can say or do if you want so stop:
- Say “No”
- Say “I want to stop”
- Say “I need to go to the bathroom/toilet”
- In a situation where the other person isn’t listening to you and you feel unsafe, you could pretend you are going to vomit. (It’s amazing how quickly someone moves away from you if they think you are going to be sick).