What is Consent?
At the University of Mississippi, 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 knowingly, freely, voluntarily, and with an understanding of his or her actions when giving the consent. This definition of consent is premised on the idea that all persons in our University community have the right to feel respected, acknowledged, and safe during sexual activity.
Nonconsensual sexual activity is prohibited under the University’s Title IX Policy and its Interpersonal Violence and Sexual Misconduct Policy, and requires a showing that a participant knew or reasonably should have known that the other party did not consent to the sexual activity.
Important Things to Know About Consent
- A person who willingly participates in sexual activity is responsible for obtaining consent for that sexual activity.
- Consent must be present throughout the sexual activity.
- Consent can be withdrawn by any participant at any time during the sexual activity.
- A participant to sexual activity can revoke consent through actions, conduct, or behavior that communicates that he or she no longer wishes to continue the existing sexual activity.
- Once consent is withdrawn, the sexual activity must cease immediately.
- Consent to engage in a particular sexual activity with an individual is not consent to engage in all sexual activity with that individual, and consent to engage in a sexual activity with an individual on one occasion is not consent to engage in sexual activity at a later time.
- Consent to engage in sexual activity with one person is not consent to engage in sexual activity with any other person.
Consent and Non-verbal Communication
Although consent can be non-verbal (e.g. nodding), consent should never be assumed or inferred from silence, passiveness, or a lack of resistance. A lack of protest or the failure to resist does not constitute consent. 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 and consent is obtained. No sexual activity should occur without consent.
Force, Threats, and Intimidation.
Consent cannot result from force, or threat of force, coercion, fraud, or intimidation. The use of force or threat of force to induce consent violates the University’s Title IX Policy and its Interpersonal Violence and Sexual Misconduct 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 may also involve physically exerting control of another person through any form of violence.
- Threats or threatening behavior 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 and Age of Consent
An incapacitated person lacks the ability to make a voluntary, informed, rational decision about whether to consent to sexual activity. A person may be incapacitated as a result of the consumption of alcohol or other drugs, because of sleep, unconsciousness, or due to a physical or mental impairment or health condition. It is a violation of this Policy to engage in sexual activity with someone that you know, or reasonably should know, is incapacitated.
A person who is unconscious, unaware, or otherwise physically helpless cannot give effective consent to sexual activity. Someone who is incapacitated when he or she engages in sexual activity when he or she cannot understand or appreciate who, what, when, where, why, or how with respect to the sexual interaction.
People manifest signs of incapacitation differently. Signs of incapacity may include but are not limited to slurred or incomprehensible speech, a fixed gaze, incoherence, an unsteady manner of walking or the inability to walk or stand up straight, combativeness or emotional volatility, vomiting, or incontinence.
Age can be a form of incapacitation that renders a person unable to give consent. Under state law, a person between the ages of fourteen (14) and sixteen (16) lacks the legal capacity to consent to sexual intercourse with an individual seventeen (17) years or older, where that individual is at least thirty-six (36) months older than the person. Similarly, a student under the age of eighteen (18) lacks the legal capacity to consent to sexual activity with a person in a position of thrust or authority over the student, including, without limitation, the student’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.
If a person is unsure about the presence of consent or incapacitation, the safe thing to do, with respect to a sexual interaction, is to forego the sexual activity. A party may not assert his or her own intoxication as grounds for being unable to recognize that another person was either incapacitated or did not otherwise give consent.
What are examples of clear actions?
- Active participation
- Nonverbal gestures that indicate willingness to continue activity
What are examples clear words?
- “I want you to…”
- “I’m interested in …”
- “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.