Affirmative consent is freely and affirmatively communicated words or actions given by an informed individual that a sober reasonable person under the circumstances would believe communicate a willingness to participate in the sexual contact.
The following factors will be considered when determining whether affirmative consent was given.
- Each individual who wishes to engage in sexual contact is responsible for obtaining consent from the other individual or individuals who intend to be involved in the sexual contact.
- A lack of protest, the absence of resistance, and/or silence do not by themselves indicate consent.
- The existence of a present or past sexual, dating, or other romantic relationship between the individuals involved does not by itself imply consent to sexual contact.
- Consent must be present throughout the sexual contact and may be given and withdrawn at any time.
- When consent is withdrawn, all sexual contact must stop. Where there is confusion about the state of consent, sexual contact must stop until the individuals have verified the affirmative consent of all individuals involved.
- Consent to one form of sexual contact does not by itself constitute consent to another form of sexual contact.
Consent is not obtained where:
- An individual is compelled to engage in unwanted sexual contact through the use of coercion. Coercion may consist of physical force, intimidation, threats, or severe or persistent pressure that would reasonably cause an individual to fear significant consequences if they refuse to engage in sexual contact.
- An individual involved in sexual contact is incapacitated due to the influence of drugs or alcohol, and a reasonable person would know of this incapacitation. Incapacitation due to the influence of drugs or alcohol is a state beyond mere intoxication or impaired judgment. Some indicators of incapacitation due to the influence of drugs or alcohol may include:
- A lack of control over one’s physical movement (for example, an inability to walk or stand without stumbling or assistance).
- An inability to effectively communicate (for example, where one’s speech is heavily slurred, incomprehensible, or nonsensical).
- A lack of awareness of one’s circumstances or surroundings (for example, a lack of awareness of where one is, how one got there, who one is with, and how or why one became engaged in sexual contact).
- An individual involved in sexual contact is unable to communicate or understand the nature or extent of the sexual situation because of a physical or mental condition.
- An individual involved in sexual contact is asleep, unconscious or involuntarily physically restrained.
- Sexual intercourse occurs with an individual who is not of legal age to give consent pursuant to Minnesota state law.
- Sexual intercourse occurs between parties who are related to each other within the degrees wherein marriage is prohibited by Minnesota state law.
Title IX sexual assault is a subset of sexual assault that occurs in the United States and: 1) on campus; 2) as part of the University’s operations; 3) in locations, events or circumstances over which the University exercised substantial control over both the respondent and the context in which the prohibited conduct occurred; and/or 4) in buildings owned or controlled by a student organization that is officially recognized by the University. Title IX sexual assault occurs when there is actual or attempted:
- penetration, no matter how slight, of the vagina or anus with any body part or object without affirmative consent;
- oral penetration by a sex organ of another person without affirmative consent; or
- the touching of the private body parts of another person without affirmative consent and for the purpose of sexual gratification.
Sexual assault will be designated Title IX sexual assault by the campus Title IX office if it meets the above definition and the complainant is participating or attempting to participate in a University education program or activity at the time the complainant files a formal complaint, or if it meets the above definition and the Title IX Coordinator signs a formal complaint.
For more information, see Administrative Policy: Sexual Harassment, Sexual Assault, Stalking and Relationship Violence.