Across the nation, educational institutions have implemented controversial “affirmative consent” laws regulating sexual activity among students — often known as “yes means yes” policies. While specifics vary by institution, affirmative consent policies normally require participants in sexual activity to get proven consent at every stage of a sexual encounter. To learn more about sexual violence and Title IX, talk to a lawyer from Lento Law Firm today.
What is consent?
Consent is the explicit and willing agreement to engage in a certain sexual activity, also known as affirmative consent. Consent is defined as unambiguous, knowledgeable, and voluntary statements or actions that generate mutually understandable permission to engage in, and the terms of, sexual practices. Silence alone cannot be understood as consent; it must be active.
Consent is not properly provided if obtained through threats, force, intimidation, or from an incapacitated person.
- Force is using physical aggression or imposing on someone to gain sexual access.
- Threats arise when a reasonable person is persuaded by the words or conduct of another to consent to sexual relations that they would not have consented to otherwise. Threats include threats to kill or hurt someone, to kill or harm oneself, or to kill or harm a person about whom one cares.
- Intimidation happens when someone utilizes physicality to threaten another, even if there is no physical contact, or when knowledge of recent violent behavior by an assailant, combined with intimidating behavior, causes someone to fear an implied threat.
- Alcohol or other drugs, unconsciousness, or other circumstances can cause incapacitation. The use of alcohol or drugs does not leave a person incapacitated in and of itself. Incapacitation is a state that is separate from intoxication or drinking. Drugs and alcohol have different effects on different people. Incapacitation is a condition in which a person cannot make a rational, reasonable decision due to a lack of the capacity to offer affirmative consent – to understand everything about the sexual interaction. Incapacity can also be caused by disease, lack of sleep, mental incapacity, and other factors. Participating in sexual activity with someone you know or should know is mentally or physically incapable can violate Title IX.
Ways to prevent sexual violence
The policies differ from campus to campus, and the preventative measures may differ. Some ways to help prevent sexual violence are:
- Find a buddy. Try not to go to parties and gatherings alone.
- If something feels weird or wrong, trust your gut.
- Be aware if alcohol is involved.
For more information, talk to an experienced Title IX attorney today.