College Sexual Consent Laws
Roughly 20 percent of women and 6 percent of men will be victims of sexual assault while undergraduates in college, according to statistics from the U.S. Department of Education. Sexual assault is the act of making sexual contact with another, whether it's groping or rape, without the other person's consent or ability to give consent. If someone is unconscious or heavily intoxicated, for example, they lack the capacity to give affirmative consent. Since criminal charges of sexual assault generally hinge on whether consent was given (or if the alleged victim had the capacity to do so), it is crucial that the concept of sexual consent be spelled out clearly.
This article covers the growing body of college consent laws and regulations addressing sexual assault on college campuses and making such crimes easier to prosecute when they do occur. College consent laws and regulations typically include an educational outreach component as well. See FindLaw's Sex Crimes section for additional resources.
What Is Sexual Consent?
An individual who unequivocally agrees to engage in sexual activity with another has given his or her consent. While this consent may be withdrawn at any time and is not valid if given under duress or without capacity, it doesn't necessarily have to be vocalized. Two individuals who engage in sexual activity with mutual but unspoken interest, assuming they both have capacity, typically are consenting adults in the eyes of the law. But if one changes his or her mind halfway into the act, then the other party must assume that consent has been revoked.
Pursuing sexual activity without consent (or after it has been lifted) typically indicates sexual assault. Consent may not be assumed by silence, an established dating relationship, marriage, body language, appearance, or anything besides a clear and affirmative gesture.
Federal Law: The Campus Sexual Violence Elimination Act
The Campus Sexual Violence Act (SaVE Act) was signed into law as part of the Violence Against Women Reauthorization Act (VAWA) of 2013. The SaVE Act requires all colleges and universities to adopt certain policies addressing sexual assault on college campuses, including specific disciplinary procedures, broader reporting of sexual crimes, and comprehensive prevention and awareness education. Any sexual assault campus training program must include the legal definition of consent for the particular jurisdiction, preferably with examples of its practical application.
State Law: California Sets the Standard
California became the first state to pass legislation mandating certain rules and procedures specifically addressing sexual assault on college campuses, going above and beyond the SaVE Act. An important requirement of this law is the adoption of a comprehensive policy that addresses the meaning of affirmative consent, defined as follows:
- "Affirmative consent" means affirmative, conscious, and voluntary agreement to engage in sexual activity.
- It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.
- Lack of protest or resistance does not mean consent, nor does silence mean consent.
- Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.
- The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
The law also requires college consent laws or regulations to explicitly state that consent is not implicit in cases where the accuser was too intoxicated to ascertain consent or failed to take reasonable steps to obtain affirmative consent, or where the alleged victim was unconscious, incapacitated due to drugs or alcohol, or unable to communicate. Institutions that violate this law risk losing state funding.
Examples of College Consent Guidelines
While California's colleges and universities are mandated by law to adopt certain rules and procedures relating to consent and sexual assault, institutions in other states are free to draft their own policies. While they tend to be quite similar in scope, there also are subtle differences among the different schools. The following excerpts from college handbooks and policy statements represent a sampling of how schools define sexual consent:
- University of Minnesota - "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.”
- University of Michigan - "One should never assume by the way a person dresses, smiles, looks or acts, that they want to have sex with you."
- Northwestern University - "When determining whether consent was present, the University will consider whether a sober, reasonable person in the same position should have known whether the other party could or could not consent to the sexual activity."
- University of Georgia - "Consent is a voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement."
- Oregon State University - "If a survivor engages in what some might define as 'risky behavior' (e.g., getting drunk, wearing revealing clothes), a natural consequence might be getting a hangover, not sexual violence. The violence occurred because there was a perpetrator present who was willing to hurt someone else."
Sexual assault is a serious and all-too-common crime. While most states do not yet have sexual consent laws specifically targeting college students, engaging in sexual activity without the other party's consent is a criminal act in all jurisdictions. Contact the police immediately if you believe you are the victim of sexual assault, and call a criminal defense attorney if you have been accused of such a crime.