Examples: The Tricky Issue of Consent
As a reminder, consent may never be given by minors (in Massachusetts, those not yet 16 years of age), mentally disabled persons, and those who are incapacitated as a result of alcohol or other drug consumption (voluntary or involuntary) or those who are unconscious, unaware, or otherwise physically helpless. Consent as a result of coercion, intimidation, threat of force or force is not effective consent. Consent cannot be assumed because of previous relationships or sexual activities, and the absence of "no" is not the same thing as consent.
Below are some examples of situations that illustrate some of the gray areas of consent.
Jennifer and John meet at the movies. They started to date on and off for about a month. One night, Jennifer and John went out drinking. After the bars closed, they went to Jennifer's room in her hall. John was very drunk and engaged in sex with Jennifer despite her protests. John argues that even if he might have had nonconsensual sex with Jennifer, it's not his fault because of how drunk he was. He believes he was so drunk he didn't even know he was having sex with her, let alone that it was something she did not want.
John has committed a violation of the Sexual Misconduct policy. Intoxication at a party is no excuse for violation of the Sexual Misconduct policy. If it were, drunken people could be excused for drunk driving, because they were so drunk they didn't realize they were driving. Further, Sexual Misconduct is not an-intent based infraction. Whether or not John intended to commit Sexual Misconduct is irrelevant. The fact that he had sex with her without her consent is sufficient to satisfy the elements of the offense.
When Claudia and Timothy first met, their relationship was tumultuous. At first, Timothy didn’t want to have sex with Claudia because he felt like too many people would find out. She kept trying to convince him. She implied that if Timothy did not sleep with her, she would break up with him. Timothy finally gave in and had sex with Claudia. Several months later after speaking with some friends, he realized he had been coerced.
Timothy did not consent to Claudia of his own free will. Whenever a threat is used to make someone consent, it is an invalid consent because it is forced. Consent should be given when the parties want to have sex with each other. Timothy consented not because he wanted to have sex with Claudia but because he feared that she would break up with him. This is another example of a Sexual Misconduct policy violation.
Jiang is a third year student, Sophia is a second year student. Jiang comes to Sophia's room in her hall with some mutual friends to watch a movie. Jiang and Sophia, who have never met before, are attracted to each other. After the movie, everyone leaves and Jiang and Sophia are alone. They hit it off and are soon becoming more intimate. They start to make out. Jiang verbally expresses her desire to have sex with Sophia. Sophia, who was abused by a babysitter when she was five, and has not had sexual intercourse before, is shocked at how quickly things are progressing. As Jiang takes her by the wrist over to the bed, lays her down, undresses her, and begins to have intercourse with her, Sophia has a severe flashback to her childhood trauma. She wants to tell Jiang to stop, but cannot. Sophia is stiff and unresponsive during the intercourse.
Jiang has violated the Sexual Misconduct policy. It is the duty of the sexual initiator, Jiang, to make sure that she has mutually understandable consent to engage in sex. Though consent need not be verbal, it is the clearest form of consent. Here, Jiang had no verbal or non-verbal mutually understandable indication from Sophia that she consented to sexual intercourse. Of course, wherever possible, students should attempt to be as clear as possible as to whether or not sexual contact is desired, but students must be aware that for psychological reasons, or because of alcohol or drug use, your partner may not be in a position to provide as clear an indication as the University's Policy requires.
Pat, a first year student, and Chris, a fourth year student, are best friends. Pat has always been attracted to Chris, but was already in a relationship. Shortly after breaking up with Robin, Pat was very upset. Pat went to Chris' room crying and clearly intoxicated, mumbling the need to have sex. Chris was confused because Pat was not acting normally. Chris told Pat that the desire to have sex was not mutual and cited their age difference and friendship. Pat maneuvered Chris into the corner, pinning Chris to the wall. Feeling intimidated and that Pat would never leave the room, Chris had sex with Pat.
Pat has not directly threatened Chris, but a case could be made that Pat coerced Chris. Although Chris might have felt coerced, Pat didn't really say anything that would have been coercive. Pat might argue that Chris consented to having sex. Physical coercion did exist, and it is correctly called intimidation. An intimidated consent is forced because it is not freely given. It is an invalid consent. Pat has committed a violation of the Sexual Misconduct policy.
Trey and Stevie meet at a friend's party. They spend the evening dancing and getting to know each other. Trey convinces Stevie to come up to his room. From 11:00 PM until 3:00 AM, Trey uses every line he can think of to convince Stevie to have sex with him, but he adamantly refuses. Trey tells Stevie he has had feelings for him for quite a while, and that he sees his refusal to have sex as meaning that he must not like him. Trey then tells Stevie that if he does not have sex with him, he'll tell everyone they had sex anyway. In response to this threat, Stevie concedes to give Trey a "hand job." Stevie would never have done it but for Trey's incessant advances. He feels that he successfully seduced him, and that he wanted to do it all along, but was playing shy and hard to get. Trey asks himself why else he would have come up to his room alone after the party? He believes that if he didn't want it, he could have left.
Trey has also violated the Sexual Misconduct policy. Trey coerced Stevie into performing unwanted sexual touching upon him. Where sexual activity is coerced, it is forced. Consent is not effective when forced. Sexual activities without effective consent is sexual misconduct.
Sean is a third year student. Sarah is a second year student. Sarah comes to Sean's room in the Residence Hall with some mutual friends to watch a movie. Sean and Sarah have only met briefly before, but they are definitely feeling attracted to each other tonight. After the movie, everyone leaves, and Sean and Sarah are alone. They hit it off and are soon becoming more intimate. They start to make out and things progress quickly from there. Sean verbally expressed his desire to have sex with Sarah. Sarah verbally consents as she wants to have sex with Sean, too, and they proceed to have sex. The next night, at a party at Sean's apartment, a group of Sarah's friends view a videotape of Sean and Sarah having sex. When the friends confront Sarah about her behavior, she is shocked and explains that she knew nothing about the tape. Sarah files a complaint alleging that Sean violated the Sexual Misconduct policy.
Sean has actually violated the Sexual Exploitation policy. While Sarah consented to having sex with Sean, she did not consent to creating a tape and allowing it to be viewed by others.
Kevin and Amy are at a party. Kevin is not sure how much Amy has been drinking, but he's pretty sure it's a lot. After the party, he walks Amy to her room, and Amy comes on to Kevin, initiating sexual activity. Kevin asks her if she is really up to this, and Amy says yes. Clothes go flying, and they end up in Amy's bed. Suddenly, Amy runs for the bathroom. When she returns, her face is pale, and Kevin thinks she may have thrown up. Amy gets back into bed, and they begin to have sexual intercourse. Kevin is having a good time, though he can't help but notice that Amy seems pretty groggy and passive, and he thinks Amy may have even passed out briefly during the sex, but he does not let that stop him. When Kevin runs into Amy the next day, he thanks her for the wild night. Amy remembers nothing, and decides to make a complaint to the Dean.
This is a violation of the Sexual Misconduct policy, and potentially the Sexual Assault policy as well. Kevin should have known that Amy was incapable of making a rational, reasonable decision about sex. Even if Amy seemed to consent, Kevin was well aware that Amy had consumed a large amount of alcohol, and Kevin thought she was physically ill. He even thought she passed out during sex at one point. Kevin should be held accountable for taking advantage of Amy in her condition. This is not the level of respectful conduct expected of students.
Remember, clear and effective consent must be obtained from each person about to engage in sexual activity! We want you to have great sex if you choose to have sex — safer, mutually enjoyable, consensual sex.
Source: Brett A. Sokolow, Esq., Managing Partner, NCHERM.