APPENDIX TO POLICY
A determination about the existence of consent is a critical element in the investigation of a sexual assault. University policy requires affirmative consent between individuals engaging in sexual activity. Affirmative consent is defined as “informed, freely and affirmatively communicated willingness to participate in sexual activity that is expressed by clear and unambiguous words or actions.” Clear and unambiguous words or actions are those that are freely and actively given by informed individuals that a reasonable person in the circumstances would believe communicate a willingness to participate in a mutually agreed upon sexual activity. The following factors will be considered when determining consent:
- It is the responsibility of each person who wishes to engage in the sexual activity to obtain consent.
- A lack of protest, the absence of resistance and silence do not indicate consent.
- The existence of a present or past dating or romantic relationship does not imply consent to future sexual activity.
- Consent must be present throughout the sexual activity and may be initially given, but withdrawn at any time.
- When consent is withdrawn all sexual activity must stop. Likewise, where there is confusion about the state of consent, sexual activity must stop until both parties consent again.
- Consent to one form of sexual activity does not imply consent to other forms of sexual activity.
- Consent is not obtained where:
- There is physical force, threats, intimidation or coercion.
- There is incapacitation due to the influence of drugs or alcohol.
- There is the inability to communicate because of a physical or mental condition
- An individual is asleep, unconscious or involuntarily physically restrained.
- An individual is unable to understand the nature or extent of the sexual situation because of mental or physical incapacitation or impairment.
- One party is not of legal age to give consent pursuant to Minnesota state law.