A person who wishes to engage in sexual activity must ensure that he/she has the consent of his/her partner. Consent means informed, freely, and voluntarily given agreement, communicated by clearly understandable words or actions, to participate in each form of sexual activity. Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have demonstrated agreement between them to participate in the sexual activity. In the absence of mutually understandable words or actions, neither party should assume that it is permissible to engage in sexual activity.
Consent to some form(s) of sexual activity does not necessarily mean consent to other forms of sexual activity. Consent to sexual activity may be withdrawn at any time at which point all sexual activity for which consent has been withdrawn must cease. Acquiescence to sexual activity based on the use of fraud or force (actual or implied), whether that force be physical force, threats, intimidation or coercion, is never consent.
Consent will not be assumed by silence, impairment due to alcohol or drugs, unconsciousness, sleep, physical impairment, or lack of active resistance. Consent may never be given by minors (for example, in Massachusetts, those not yet 16 years of age), mentally disabled persons, those who are unconscious, unaware or otherwise physically helpless, or those who are incapacitated as a result of alcohol or other drug consumption (voluntary or involuntary).
A person who knows or should have reasonably known that another person is incapacitated may not engage in sexual activity with that person. In evaluating consent in cases of alleged incapacitation, the College asks two questions: (1) Did the person initiating sexual activity know that the other party was incapacitated? and (2) Should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “YES,” consent was absent and the conduct is likely a violation of this policy.
Incapacitation is a state beyond drunkenness or intoxication. A person is not necessarily incapacitated merely as a result of drinking or using drugs. Incapacitation is a state in which an individual is unable to give consent because he or she lacks the ability for self-care, i.e., the person lacks the capacity to understand the "who, what, when, where, why, or how" of the sexual interaction. The impact of alcohol and other drugs varies from person to person.
Individuals who initiate sexual activity must look for the common and obvious warning signs of incapacitation in their partner. Although every person may manifest signs of incapacitation differently, typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?” “Do you know how you got here?” “Do you know what is happening?” “Do you know whom you are with?”
Additional Clarification Regarding Sexual Misconduct
- While a person’s non-verbal actions can constitute consent, verbal communication between two people is the best way to ensure that each person knows the intentions of the other person.
- Previous sexual relations or a current or past intimate/romantic relationship between two people is not the equivalent of consent to future sexual activity.
- Use of alcohol or other drugs does not excuse a violation of this policy.
Attempts to commit sexual misconduct and/or aiding the commission of sexual misconduct as an accomplice are also prohibited under this policy. Examples of behavior that may constitute sexual assault include the following:
- engaging in sexual activity with an unconscious or semi-conscious person;
- engaging in sexual activity with someone who is asleep or passed out;
- engaging in sexual activity with someone who has said “no” or has indicated lack of consent through non-verbal communication;
- engaging in sexual activity with someone who is vomiting, unable to stand without assistance, or has to be carried to bed;
- allowing another person to engage in sexual activity with your partner without his or her consent;
- requiring any person to perform any sexual activity as a condition of acceptance into an organization affiliated with the College;
- telling someone you will “out” them if they don’t engage in sexual activity (e.g., threatening to disclose the person’s sexual orientation without their consent); or
- purchasing or providing alcohol or drugs for the specific purpose of facilitating or assisting in a sexual assault.