What is consent?
Consent is defined as permission to act. It may be given by words or actions, so long as those words or actions create clear, mutually understood permission to engage in (and the conditions of) sexual activity. Consent must meet all of the following standards:
- Active, not passive. Silence, in and of itself, cannot be interpreted as consent. There is no requirement that an individual resist a sexual act or advance, but resistance is a clear demonstration of non-consent.
- Given freely. A person cannot give consent under force, threats, or unreasonable pressure (coercion). Coercion includes continued pressure after an individual has made it clear that he/she does not want to engage in the behavior. Consent can be withdrawn at any time and sexual activity must stop immediately without any pressure to continue.
- Provided knowingly. Prior to sexual activity all parties must disclose personal risk factors such as any known STD’s and all parties are encouraged to use safer sex practices.
Legally valid consent to sexual activity cannot be given by:
- A person under the legal age to consent (16 years old in West Virginia), or
- An individual who is known to be (or based on the circumstances should reasonably be known to be) mentally or physically incapacitated. An incapacitated individual is someone who cannot make rational, reasonable decisions because he or she lacks the capacity to understand the “who, what, when, where, why, or how” of a sexual interaction. This includes a person whose incapacity results from mental disability, sleep, involuntary physical restraint, unconsciousness, use of alcohol or other drugs.
- *For additional information regarding “Incapacitation of the Victim”
- Specific. Permission to engage in one form of sexual activity does not imply permission for another activity. In addition, previous relationships or prior consent do not imply consent to future sexual acts. It is the responsibility of the initiator of the act to receive permission for the specific act. As a result, consent may be requested and given several times by multiple parties during a sexual encounter involving multiple acts.
(This information is adapted from the ATIXA Gender-Based and Sexual Misconduct Policy by the National Center for Higher Education Risk Management (NCHERM) and the Association of Title IX Administrators (ATIXA), 2011 and courtesy of Harper College.)