Consent must be freely given. Consent is not freely given if it results from the use or threat of physical force, intimidation, or coercion, or any other factor that would compromise someone's ability to exercise their own free will to choose whether or not to have sexual contact. Coercion includes the use of pressure and/or oppressive behavior, including express or implied threats of harm or severe and/or pervasive emotional intimidation, which (a) places a person in fear of immediate or future harm or physical injury of themselves or another person or (b) causes a person to engage in unwelcome sexual activity. A person’s words or conduct amount to coercion if they wrongfully impair the other’s freedom of will and ability to choose whether or not to engage in sexual activity. Coercion also includes administering a drug, intoxicant, or similar substance that impairs the person’s ability to give consent.
Definition of Consent
Consent is an explicitly communicated, reversible mutual agreement in which all parties are capable of making a decision. Consent is informed, voluntary, and actively given. Consent exists when all parties exchange mutually understandable affirmative words or actions indicating their agreement to participate voluntarily in sexual activity.
The following further clarifies the meaning of consent:
- Each participant in a sexual encounter must obtain consent for all sexual activities. Consent to one form of sexual activity does not constitute consent to engage in all forms of sexual activity.
- Consent consists of an outward demonstration indicating that a person has freely chosen to engage in sexual activity. Relying on non-verbal communication can lead to misunderstandings. Consent may not be inferred from silence, passivity, lack of resistance or lack of an active response alone. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent.
- If at any time it is reasonably apparent that either party is hesitant, confused, or unsure, both parties should stop and obtain mutual verbal consent before continuing such activity.
- Consent may be withdrawn by either party at any time. Once withdrawal of consent has been expressed through words or actions, sexual activity must cease.
- A person who is physically incapacitated from alcohol or other drug consumption (voluntarily or involuntarily), or is unconscious, unaware, or otherwise physically impaired is considered unable to give consent. For example, a person who is asleep or passed out cannot give consent.
- People with a previous or current intimate relationship do not automatically give either initial or continued consent to sexual activity. Even in the context of a relationship, there must be mutually understandable communication that clearly indicates consent to engage in sexual activity.
More on Villanova's Consent Policy:
- Explicitly communicated. This means that someone communicates a “yes” to any and all sexual activity, ideally through words and actions. Consent MAY NOT be inferred from silence, passivity, lack or resistance or lack of an active response. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent.
- Reversible. This means that someone reserves the right to change their mind. Consent can be withdrawn at any time and should be respected. Once withdrawal of consent has been expressed through words or actions, sexual activity must cease.
- Mutual agreement in which all parties are capable of making a decision. This means that someone who is physically incapacitated from alcohol or other drug consumption (voluntarily or involuntarily), or is unconscious, unaware, asleep, or otherwise physically impaired is considered UNABLE to give consent.
- Informed. This means that someone is informed of and has consented to all activity, including things like taking pictures or video, and has knowledge of a person’s sexual health status (e.g., sexually transmitted infections) before consenting to sexual activity. Other activities that might also be considered here are outlined in the policy regarding sexual exploitation.
- Voluntary. This means that if someone is hesitant, confused, or unsure, that they should not feel coerced or threatened to consent. It also means that individuals with a previous or current intimate relationship do not automatically give either initial or continued consent to sexual activity.
- Actively given. This means that consent to one form of sexual activity does not constitute consent to all forms of sexual activity. Consent must be actively given throughout sexual activity.
Additional related terms defined in the Policy are:
People are incapacitated when they are not able to make rational, reasonable judgments and therefore are incapable of giving consent. Incapacitation is the inability, temporarily or permanently, to give consent, because the person is mentally and/or physically impaired due to alcohol or other drug consumption, either voluntarily or involuntarily, or the person is unconscious, asleep, or otherwise unaware that the sexual activity is occurring. In addition, people are incapacitated if they demonstrate that they are unaware of where they are, how they got there, or why or how they became engaged in a sexual interaction. Some indicators of incapacitation may include, but are not limited to, lack of control over physical movements, being unaware of circumstances or surroundings, or being unable to communicate for any reason.
Being intoxicated or impaired by alcohol or other drugs is never an excuse for sexual assault, sexual harassment or other sexual misconduct and does not diminish one’s responsibility to obtain consent. The University considers sexual contact while under the influence of alcohol or other drugs to be risky behavior. Alcohol and other drugs impair a person’s decision-making capacity, awareness of the consequences, and ability to make informed judgments. The use of alcohol or other drugs can limit a person’s ability to freely and clearly give consent and can create an atmosphere of confusion over whether or not consent has been freely and clearly sought or given. The perspective of a reasonable person will be the basis for determining whether a Respondent should have been aware of the extent to which the use of alcohol or other drugs impacted a Complainant's ability to give consent.