What is consent?

Words or actions that demonstrate a knowing or voluntary willingness to engage in mutually-agreed-upon sexual activity constitutes consent.

Want to see consent in action? Check out this video from Campus Clarity.

Consent cannot be gained by force, by ignoring objections, or by taking advantage of another’s incapacitation. Consent may not be inferred from silence or any other lack of active resistance. It may not be implied by attire or inferred from an individual by spending money on that individual (e.g. buying a meal on a date). Prior consent does not imply consent to future sexual acts. In addition, consent to one type of sexual act does not automatically imply consent to another type of sexual act. Once a person says “no,” it does not matter if or what kind of sexual behavior has occurred at an earlier date in time. For example, if one individual says “no” and the other forces penetration, it is sexual misconduct.

Consent may not be given by the following persons:

  • Individuals who are mentally incapacitated at the time of the sexual contact in a manner that prevents them from understanding the nature or consequences of the sexual act involved
  • Individuals who are unconscious or otherwise physically helpless
  • Minors, as defined by the Commonwealth of Virginia

Incapacitation is defined as the physical and/or mental inability to make informed, rational judgments that voids an individual’s ability to give consent. Incapacitation may be caused by a permanent or temporary physical or mental impairment. Incapacitation may also result from the consumption of alcohol or the use of drugs.

The use of alcohol or drugs may, but does not automatically affect a person’s ability to consent to sexual contact. The consumption of alcohol or drugs may create a mental incapacity if the nature and degree of the intoxication goes beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand the nature and consequences of the sexual act. In such cases, the person cannot consent.

A person violates Emory & Henry College’s sexual misconduct policy if they have sexual contact with someone they know or should know is mentally incapacitated or has reached the degree of intoxication, which results in incapacitation. The test of whether an individual should know about another’s incapacitation is whether a reasonable, sober person would know about the incapacitation. An accused student cannot rebut a sexual misconduct charge merely by arguing that they were drunk or otherwise impaired and, as a result did not know that the other person was incapacitated.

A person who is passed out or unconscious as a result of the consumption of alcohol or drugs is physically helpless and is not able to consent.