Sexual misconduct in all of its forms - sexual assault, sexual harassment, rape etc. - has become a huge issue on college and university campuses. Since the determination of guilt in sexual misconduct cases typically hinges on whether consent was given (or if it was revoked or considered ineffective), it is important that students and parents coherently understand the concept of consent.
When investigating and mitigating Title IX sexual misconduct cases, the vast majority of schools have adopted an interim policy that suggests affirmative consent must be given before sexual interactions in order for them to be considered consensual. Defined as a conscious decision by each participant to engage in mutually agreed upon sexual activity, affirmative consent must be conveyed through understandable words and/or actions by all parties involved to be deemed effective. Affirmative consent must also be given for every individual intimate act that ensues between parties. In the absence of affirmative consent (or after it has been lifted or deemed ineffective), sexual actions are considered sexual assault.
It's important to note that consent should never be assumed. Silence, an established relationship, body language, appearance, marriage, or any action outside of an affirmative gesture does not equate to consent. Consent can also be revoked. An example of revoked consent is when a person changes his or her mind halfway into the act.
It's no secret that parties with drugs and alcohol have become a part of the college experience. So much so that these substances have shaped college and university policy concerning their impact on consent. Education institutions have dictated that excessive intoxication and the consumption of drugs to the point of incapacitation can make consent ineffective. Incapacitation is defined as the physical and/or mental inability to make rational judgments. Once students have reached this state of impairment, their ability to consent becomes null and void.
During sexual misconduct grievance and disciplinary hearings, ineffective consent has been difficult to dictate for a number of reasons. The primary difficulty is that there is no standard blood alcohol concentration level or drug consumption rate to determine incapacitation. This means that the degree of intoxication or drug use that caused a person to be in an incapacitated state will be entirely based on the discretion of the school. However, with the help of an attorney, the accused can present evidence that suggests an accuser did not exhibit signs of incapacitation.
Student Defense Attorney
Understanding your school's consent policies is important for respondents, especially when attempting to build a solid defense in your own case. Skilled attorney Joseph D. Lento has extensive experience successfully representing students who have been in your predicament in Pennsylvania, New Jersey, and across the nation. Contact him today for help.