Understanding Sexual Assault, Consent, Incapacitation, & Coercion

Sexual Assault

Sexual assault is any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent (such as incapacitation, age, family relation to the other party, or intellectual or other disability). Sexual Assault can be committed by or against individuals of any sex or gender and can occur between individuals of the same sex/gender or different sexes/genders.

Sexual assault includes:

• sexual intercourse with another person, including oral or anal sexual intercourse, or the use of an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity;
• touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity;  
• sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; or
• sexual intercourse with a person who is under the statutory age of consent.

Consent

Consent requires a voluntary and freely given agreement, through words and/or actions, to engage in mutually agreed upon sexual activity.  Consent cannot be obtained through force, where there is a reasonable belief of the threat of force, or when the other person is incapable of providing consent, including because of Incapacitation. In evaluating whether Consent has been freely sought and given, the university will consider the presence of any force, threat of force, or coercion; whether the Complainant had the capacity to give consent; and whether the communication (through words and/or actions) between the parties would be interpreted by a reasonable person (under similar circumstances and with similar as a willingness to engage in a particular sexual act.

When is consent needed?

Consent is necessary in real-time for every sexual interaction. It is important to remember:

• Consent to one form of sexual activity does not imply or constitute consent to another form of sexual activity
• Consent on a prior occasion does not constitute consent on a subsequent occasion
• Consent to an act with one person does not constitute consent to act with any other person
• The existence of a prior or current relationship does not, in itself, constitute consent.  Even in the context of a relationship, there must be real-time and mutual consent to sexual activity.
• Consent can be withdrawn or modified at any time, and sexual contact must cease immediately once consent is withdrawn
• Consent cannot be inferred from the absence of a “no”
• Consent cannot be inferred from silence, passivity, or lack of verbal or physical resistance.

How do I ensure that I have my partner's consent?

Consent is fundamentally about good communication: paying attention to your partner, asking questions and respecting the answers, and seeking out and honoring feedback about wishes and boundaries.  Establishing consent is about paying attention to words, body language, and comfort levels. It can be straightforward and direct (e.g. asking if something feels good) or more subtle (e.g. noticing and acknowledging a change in energy or comfort level). 

Remember that the process of ensuring consent is ongoing. Checking in with your partner at the start of each new or escalated activity is essential. 

Ways to do this may include asking:

• Do you want to have sex?
• Is this okay?
• Does this feel good?
• I really want this to be good for you. What do you like?
• Do you want to try this?
• I want to do this – do you want to?

Examples of verbal consent

• Yes
• It feels good when you...
• I'd like to...
• I want to...

Examples of non-verbal consent

• Head nod
• Pulling partner closer
• Making direct eye contact
• Initiating sexual activity
• Actively touching

What are common warning signs that someone may not be giving consent?

Verbal Examples

• No / Stop / Don't
• That hurts
• I don't think this is a good idea
• I don't feel comfortable with...
• Providing reasons why they can't engage in sexual activity (e.g. "It's late"; "I'm tired"; "I have my period"; "I need to study" etc.)

Non-verbal examples

• Avoiding eye contact
• Hesitancy
• Passivity
• Lack of reciprocation
• Lack of movement
• Pulling away
• Pushing you away

Consent is all about making sure that each person involved is interested and freely participating. Remember consent cannot be obtained through coercion. If your partner communicates a boundary or indicates discomfort or hesitancy, respect that boundary. Do not pressure your partner until they relinquish their boundary. 

Incapacitation

Incapacitation is the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically impaired, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the sexual activity is occurring. When a person is incapacitated, they cannot give consent for sexual activity.  In addition, an individual is incapacitated if they demonstrate that they are unaware at the time of the incident of where they are, how they got there, or why or how they became engaged in a sexual interaction. Incapacitation is a state of drunkenness, intoxication, or impairment that is so severe that it interferes with a person’s capacity to make informed and knowing decisions. 

What are common warning signs of incapacitation?

Incapacitation may look different for different people. However, here are a few warning signs that may indicate that someone is incapacitated:

• Clumsiness
• Difficulty walking
• Poor judgment
• Difficulty concentrating
• Unfocused or blood-shot eyes
• Slurred speech
• Vomiting
• Combativeness
• Emotional volatility

If there is any doubt as to the level or extent of your own or the other person’s level of intoxication, the safest course is to forgo or cease sexual activity.

What if both people were drunk?

A person’s own voluntary impairment is never an excuse for or a defense to sexual assault or other prohibited conduct. It also does not diminish your responsibility to determine if your partner has given consent!

Coercion

Coercion means overcoming resistance or unwillingness by actual or threatened violence or undue pressure. The totality of the circumstances of the alleged coercion will be considered including, but not limited to, the frequency, intensity, and duration of the alleged coercive behavior and whether the Complainant was isolated from others during the alleged incident.