The University of Mississippi uses effective consent as a basis of its policy because effective consent maintains the value that all people have the right to feel respected, acknowledged and safe during sexual activity.
EFFECTIVE CONSENT IS:
Sexual intimacy requires that all participants consent to the activity. Consent between two or more people is defined as an affirmative agreement – through clear actions or words – to engage in sexual activity. The person giving the consent must act freely, voluntarily and with an understanding of his or her actions when giving the consent.
Lack of protest or resistance does not constitute consent, nor does silence mean consent has been given. Relying solely on nonverbal communication can lead to misunderstanding. People who want to engage in sexual activity are responsible for obtaining consent – it should never be assumed.
A prior relationship or prior sexual activity is not sufficient to demonstrate consent.
Consent must be present throughout the sexual activity – at any time, a participant can communicate that he or she no longer consents to continuing the activity. If there is confusion as to whether anyone has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved.
What are clear actions?
- Active participation
- Nonverbal gestures that indicate willingness to continue activity
What are clear words?
- I want you to…
- I’m interested in …
- Do you want me to get protection/a condom?
- That feels good.
Clear words are always better than clear actions.
Note: This video uses an example of tea to demonstrate how simple consent really is. This video is not intended to marginalize the experiences of anyone who experiences sexual misconduct. Also, the definition of incapacitation under our policy includes individuals who are unaware, not just those who are passed out.
EFFECTIVE CONSENT IS NOT:
Effective consent cannot result from force, or threat of force, coercion, fraud or intimidation. In addition, an incapacitated person is not able to give consent. The use of force to obtain sexual access or to induce consent violates this policy whether the force is physical in nature, violent, or involves threats, intimidation or coercion.
- Physical force includes but is not limited to hitting, kicking and restraining. Physical force means someone is physically exerting control of another person through violence.
- Threatening someone to obtain consent for a sexual act is a violation of this policy. Threats exist where a reasonable person would have been compelled by the words or actions of another to give permission to sexual activity to which he or she otherwise would not have consented.
- Intimidation is an implied threat. Intimidation exists when a reasonable person would feel threatened or coerced even though there may not be any threat made explicitly or physical force. Intimidation is evaluated based on the intensity, frequency or duration of the comments or actions.
- Incapacitation: It is a violation of this policy if the initiator has sex with someone the initiator knows, or reasonably should know, to be incapacitated by alcohol, drugs, sleep or illness. A person who is unconscious, unaware or otherwise physically helpless cannot give effective consent to sexual activity. Someone is incapacitated when he or she cannot understand who, what, when, where, why or how, with respect to the sexual interaction.
- Age of Consent: According to Mississippi Code §97-3-65, effective consent can never be given by individuals under the age of 14. Students who are at least 17 years old cannot receive effective consent from anyone between the ages of 14 and 16, if they are younger by more than 36 months.
Sample Scenarios to Understand Consent and Our Policy:
Warning: Some of these scenarios may be upsetting to some readers.
Ryan and Jessie hit it off after meeting at an event, sneaking off to make out. As the night continues, Jessie drinks more alcohol than Ryan and begins to slur when talking. Everyone can tell Jessie is drunk, but Jessie continues to kiss and flirt with Ryan. After Jessie gets back from going to the bathroom, Ryan asks Jessie to take a cab home. Ryan has to help Jessie walk out of the event, and Jessie nods off in the backseat of the cab, waking up when they arrive. Ryan takes Jessie inside and asks if they can have sex. Jessie mumbles a response but does not object when Ryan begins taking off Jessie’s clothes, so Ryan has sex with Jessie.
This is a violation of university policy and would result in Ryan’s suspension or expulsion. Jessie was unaware of what was happening and was unable to give effective, affirmative consent. There were multiple indicators of incapacitation: slurred speech, difficulty walking, difficulty speaking, beginning to fall asleep in the cab. In addition, Jessie’s actions were not clear, and no clear words were given.
Peyton and Jamie started dating a few months ago. Jamie wants to have sex, but Peyton is not ready to yet. One night, things progress quickly. Jamie knows that Peyton does not want to have sex but begins to have sex anyway. Peyton freezes up and stays silent until Jamie is done.
This is a violation of university policy. Jamie did not have effective consent, as Peyton had previously established her boundaries and never indicated that those boundaries changed. Peyton was silent, which is never a form of consent, and did not actively participate in sexual activity.
Morgan and Riley have had sex before in a relationship but have broken up. They both go to the same party and both drink to the point of intoxication. Morgan walks up to Riley and hugs Riley, and Riley responds by kissing Morgan. They both stumble into a bedroom and have sex. The next morning, they wake up, neither sure of what has happened.
In this case, neither Morgan nor Riley was able to give or obtain effective consent. Both parties violated the sexual misconduct policy. If a person is incapacitated, that does not absolve them from responsibility for obtaining consent.
Reagan and Harper have been in a long-term relationship. They mutually agreed to wait to have sex but to engage in other sexual activity. Harper begins to feel pressure to have sex after friends question their decision. When Harper talks to Reagan about it, Reagan expresses hesitation. Harper says that if Reagan really is in love, then sex is something she has to do. Harper says that they will break up if they don’t have sex. Reagan pauses but agrees to have sex because Reagan wants the relationship to continue.
This is a violation of university policy. Harper coerced Reagan into sex by threatening to break up if Reagan refused to have sex. Reagan did not freely give consent. Coerced consent is not effective consent.