What is Consent?

Consent is an understanding between two partners to engage in mutually agreed upon sexual activity. Thus, sexual activity that occurs in the absence of consent is sexual assault or rape. There are certain circumstances in which consent is ineffective despite what a partner says or does. This is when a partner responds to force or the threat of force, a partner is a minor, or a partner is incapacitated. Incapacitation is defined as the physical and/or mental inability to make rational judgments. A person can become incapacitated when they consume too much alcohol or drugs, and are as a result, unable to consent.

When mitigating Title IX cases, most schools have implemented an interim policy that requires affirmative consent. Affirmative consent is conveyed through comprehensible words and/or actions by all parties involved before sexual activities for them to be deemed consensual.

Asking for Consent

The ultimate way to show a partner that you respect them is to ask them explicitly if it is okay for you both to engage in sexual activity. Asking for consent is something that college students (and anybody) should get accustomed to, no matter how awkward or embarrassing it may seem at first.

It's important to remember that consent should be requested before you act. It is the responsibility of the person initiating the encounter to obtain clear and affirmative consent. It is also their duty to check in throughout the encounter.

Also, how you ask is important. The main goal is to understand how your partner is feeling, and most importantly get explicit affirmation that they're feeling comfortable and wish to continue. The question doesn't necessarily have to require an answer of “yes” or “no.” Posing open-ended questions like “how do you feel right now?” “What would you like to do?” or “I really want to… how do you feel about that?” can also help you clear up and confusion, and confirm consent.

Gauging Consent

Consent is continuous. Past consent for sexual activity, even within the same encounter, does not imply ongoing future consent. For example, if an individual who formerly consented to an act were to change their mind moments later, all activity must immediately cease cause consent is no longer effective. There are circumstances within in a sexual encounter that a responsible student should recognize as a sign to stop, pause, or continue communicating. Here are some tips you can use to gauge consent while in the moment:

You should stop when…

• You plan to have sex by any means necessary
• You hope your partner will not say anything and just accept the situation
• A partner is asleep or passed out
• A partner is too intoxicated to gauge or give consent (incapacitation)

You should pause and talk when…

• You feel like your partner is sending mixed signals
• You have not previously talked about what you want to do
• You assume that you and your partner will do the same thing you have done before
• You are not sure what your partner wants
• Your partner stops or becomes unresponsive

Keep communicating when…

• You and your partner are excited
• Your partner clearly expresses their comfort with the situation
• You and your partner reach a mutual agreement about how far to go
• You feel safe and comfortable stopping at any time

Student Defense Attorney Helping Clients Nationwide

Consent is the core factor of all sexual misconduct cases. If you are a respondent facing allegations of sexual misconduct at your school, it's important you completely understand consent, and are able to prove that it was existent in your incident. Skilled student defense attorney Joseph D. Lento has helped students in New Jerseyand nationwide who have been in your predicament prevail in hearings and overcome their charges, and he can do the same for you. Contact him today for help.