INTERIM SEXUAL MISCONDUCT POLICY

VI. RELATED DEFINITIONS: CONSENT, FORCE, COERCION, INCAPACITATION, AND ALCOHOL AND OTHER DRUGS

Consent

Affirmative Consent is a knowing, voluntary and mutual decision among all participants to engage in sexual activity.  Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.  Silence or lack of resistance, in and of itself, does not demonstrate consent.  Consent is active, not passive. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.  The following are essential elements of Affirmative 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 and a willingness to do the same thing, at the same time, in the same way.  Pursuant to New York state law, an individual less than 17 years old is incapable of consent.

  • Freely and actively given: Consent cannot be obtained through the use of force, coercion, threats, intimidation or pressuring or by taking advantage of the incapacitation of another individual.  Coercion, force, or threat of either invalidates consent.
  • 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 outward 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.  Mutually understandable consent is best achieved through clear, verbal communication.  Do not rely solely upon non-verbal communication.
  • Not indefinite: Consent may be initially given but withdrawn by any party at any time.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.  An individual who seeks to withdraw Affirmative Consent must communicate, through clear words or actions, a decision to cease the sexual activity. Once consent is withdrawn or can no longer be given, the sexual activity must cease immediately and all parties must obtain mutually expressed or clearly stated consent before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 person constitute consent to activity with any other person.  Each participant in a sexual encounter must consent to each form of sexual contact with each participant.  
  • Consent must exist from the beginning to the end of each instance of sexual activity and for each form of sexual contact. 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.

Incapacitation

Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the ‘who, what, when, where, why or how’ of the sexual interaction) and/or is physically helpless.  An individual is incapacitated, and therefore unable to give consent, if the individual is asleep, unconscious, or otherwise unaware that sexual activity is occurring.  An individual may be awake and seemingly aware but nevertheless unable to communicate consent or escape a situation involving sexual misconduct.

Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.  Consumption of alcohol or other drugs alone is insufficient to establish incapacitation.  The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs impact an individual’s:

  • decision-making ability;
  • awareness of consequences;
  • ability to make informed judgments; and
  • capacity to appreciate the nature and the quality of the act.

Evaluating incapacitation also requires an assessment of whether a Respondent knew, or a reasonable sober person in Respondent’s position should have known that the Complainant was incapacitated.  Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. Individuals engaging in sexual activity should continually evaluate incapacitation throughout the encounter.

Alcohol and Other Drugs

In general, sexual contact while under the influence of alcohol or other drugs poses a risk to all parties.  Alcohol and drugs impair a person’s decision-making capacity, awareness of the consequences, and ability to make informed judgments.  It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication.  An individual’s level of intoxication may be evident by, among other things, by slurred speech, unsteady walking, clumsiness, and/or vomiting.

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 forgo or cease any sexual contact or activity.

Being intoxicated or impaired by drugs or alcohol is never an excuse for sexual harassment, sexual violence, stalking or intimate partner violence and does not diminish one’s responsibility to obtain consent.

Force

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.  For the 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.

Coercion

Coercion is the improper use of pressure to compel another individual to initiate or continue sexual activity against that individual’s will.  Coercion can include a wide range of behaviors, including intimidation, 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 and 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.

Consensual Sexual Activity between Employees and Students

An ethic of professionalism and respect within the Colleges’ community demands that those with authority not abuse the power with which they are entrusted.  Consensual sexual relationships between employees and students may not only have negative repercussions for the individuals involved, but may create an uncomfortable or distrustful environment for others in the community.  The power differential complicates the ability to demonstrate that any such relationship is fully consensual.  Given the complications associated with these types of relationships, it should be noted that professors could be faced with a personal civil or criminal action as a result of engaging in such relationships.

Because of the potential for favoritism or other conflicts of interest, the Colleges affirm and uphold a policy which strongly discourages all consensual sexual activity between students and employees, and which prohibits such activity where any supervisory role exists.  Therefore,

  • faculty members shall not engage in consensual sexual relationships with students enrolled in their courses; and
  • faculty members or other employees of the Colleges shall not engage in consensual sexual relationships with students under their supervision in such matters as evaluating, advising, coaching or directing a student as part of a school program.¹

Such conduct results in relationships that are fundamentally asymmetrical and contradicts both professional ethics and Colleges’ policy. Where such a relationship develops, it is the obligation of the employee to bring this matter to the immediate attention of the supervisor, who will take action as necessary to shift class sections or supervisory roles to eliminate conflicts of interest.

¹ Adapted from Washington University at St. Louis policy.

Preparing Students to Lead Lives of Consequence.