Consent means words or overt actions by a person indicating a freely given, present agreement to perform or engage in a particular sexual act with the person initiating sexual contact.
Words or overt actions clearly communicate consent when a reasonable person in the circumstances would believe those words or actions indicate a willingness to participate in a mutually agreed-upon sexual activity.
Although consent does not need to be verbal, verbal communication is the most reliable form of asking for and obtaining consent. It is the responsibility of the person initiating the specific sexual activity to obtain consent for that activity.
- Consent requires more than the existence of a prior or current social or sexual relationship between the parties. In cases involving prior or current social or sexual relationships, the manner and nature of prior communications between the parties and the context of the relationship may be factors in determining whether there was consent.
- Consent to one sexual act does not, by itself, imply consent to another. Consent has to be specific to the act and persons involved, at the time of the act. Past consent to sexual activity does not imply ongoing future consent.
- Consent can be withdrawn at any time. When consent is withdrawn, the sexual activity for which consent was initially provided must stop.
- Consent is active, not passive. Simple silence, the lack of a negative response, or failure to resist, in and of itself, is not consent.
- Whether an individual actively and willingly participates in conduct may be a factor in determining whether there was consent.
- The use or threatened use of force or other forms of coercion or intimidation take away a person's ability to give consent to sexual contact. Coercion refers to conduct or intimidation that would compel an individual to do something against his or her will by:
- the use of physical force,
- threats of severely damaging consequences, or
- pressure that would cause a reasonable person to fear severely damaging consequences.
Coercion is more than an effort to persuade or attract another person to engage in sexual activity. Coercive behavior differs from seductive behavior based on the degree and type of pressure someone used to obtain consent from another.
- A person who is incapacitated cannot give valid consent to sexual contact initiated by another individual. Incapacitation means the inability to understand the fact, nature, or extent of the sexual situation. Incapacitation may result from mental or physical disability, sleep, unconsciousness, involuntary physical restraint, or from the influence of drugs or alcohol. With respect to incapacitation due to the influence of drugs or alcohol, incapacitation requires more than being under the influence of drugs or alcohol; a person is not incapacitated simply because he or she has been drinking or using drugs.
Where drugs and/or alcohol are involved, incapacitation is determined based on the facts and circumstances of the particular situation looking at:
- whether the individual was able to understand the fact, nature, or extent of the sexual situation,
- whether the individual was able to communicate decisions regarding consent, non-consent, or the withdrawal of consent, and
- whether such condition was known or reasonably known to the respondent or a sober, reasonable person in respondent's position. Use of drugs or alcohol by the respondent is not a defense against allegations of Sexual Misconduct.
- A person who has not reached the legal age of consent cannot give consent. The legal age of consent may vary depending on the circumstances and the applicable state law.
In Minnesota, the age of consent is 16.
Where there is otherwise credible evidence to support a finding of non-consent, corroborating testimony is not required.
Before you have sex, ask yourself:
- Have I expressed what I want?
- Do I know what my partner wants? Am I certain that consent has been given?
- Is my potential partner sober enough to consent to have sex?
- Am I sober enough to know that I have correctly gauged consent?
Signs You Should Stop Immediately
- You are too intoxicated to gauge or give consent.
- Your partner is asleep or passed out.
- You hope your partner will say nothing and go with the flow.
- You intend to have sex by any means necessary.
Signs You Should Pause and Talk
- You are not sure what the other person wants.
- You feel like you are getting mixed signals.
- You have not talked about what you want to do.
- You assume that you will do the same thing as before.
- Your partner stops or is not responsive.
- Partners come to a mutual decision about how far to go.
- Partners clearly express their comfort with the situation.
- You feel comfortable and safe stopping at any time.
- Partners are excited.
Asking for Consent
Show your partner that you respect him/her enough to ask about her/his sexual needs and desires. If you are not accustomed to communicating with your partner about sex and sexual activity, the first few times may feel awkward.
Practice helps. Be creative and spontaneous. Don't give up. The more times you have these conversations with your partner, the more comfortable you will become communicating about sex and sexual activity. Your partner may also find the situation awkward at first, but over time you will both be more secure in yourselves and your relationship.
Before you act.
It is the responsibility of the person initiating a sex act to obtain clear consent. Whenever you are unsure if consent has been given, ask. Check in throughout. Giving consent ahead of time does not waive a person's right to change their mind or say no later.
Consent is not just about getting a yes or no answer but understanding what a partner is feeling.
Ask open-ended questions. Listen to and respect your partner's response, whether you hear yes or no: "I'd really like to ...., how does that sound?" "How does this feel?" "What would you like to do?"