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OLR Research Report


HIGHER EDUCATION INSTITUTIONS' DEFINITIONS OF SEXUAL CONSENT

By: Marybeth Sullivan, Associate Legislative Analyst

Alex Reger, Legislative Analyst II


ISSUES
1. Provide each Connecticut higher education institution's definition of “consent” in sexual relationships and provide a source for each.

2. Indicate whether each institution submitted a report to the Higher Education and Employment Advancement Committee in 2015 about its sexual assault, stalking, and intimate partner violence policies as required by law (CGS § 10a-55m(f)).

SUMMARY

Each Connecticut public and private higher education institution defines sexual “consent” for purposes of the institution's conduct codes and disciplinary proceedings. Such definitions are typically found in the institution's student conduct code or Title IX policy handbook.

Tables 1-17 of this report summarize these definitions. Generally, each institution's definition contains all or many of the following elements: (1) a basic definition of “consent,” (2) method(s) of expressing consent, (3) duration, (4) parties' relationships, (5) revocation, (6) coercion, and (7) legal age.

PA 14-11 requires all Connecticut higher education institutions to annually submit a report to the Higher Education Committee containing information about sexual assault, stalking, and intimate partner violence. The information must include, among other things, a copy of the institution's most recently adopted policies on these topics. The first report was due October 1, 2015 (CGS § 10a-55m(f)).

As of this report's publication date, all public higher education institutions and 12 out of 15 private institutions have submitted their report to the committee. (State law exempts Charter Oak State College from the requirement (CGS § 10a-55m(a)(3)).)

INSTITUTIONAL DEFINITIONS

We obtained institutions' definitions of “consent” primarily from their reports to the Higher Education Committee. For those institutions that did not submit the report or include a definition of “consent,” we obtained the definition from the institution's website.

The institutions' definitions of sexual “consent” are lengthy and contain many components. Therefore, each definition is summarized below in table form by institution. Each table breaks the definition into the following elements:

1. Source: where the institution published the definition (e.g., 2015 report to the Higher Education Committee; policy or student handbook)

2. Basic definition of “consent”: how the institution principally describes “consent”

3. Method(s) of expression: how a party must express consent for it to be valid

4. Parties' relationships: how parties' interpersonal relationships influence sexual consent

5. Duration: how parties may determine the length of consent validity

6. Revocation: how parties may retract consent once it has been given

7. Coercion: how parties are prohibited from pressuring another to give consent

8. Legal age: who is old enough to give consent

Each definition contains all or many of the above elements. Any elements that do not appear in a definition are not included in the chart.

To read each definition in its entirety, click on the hyperlink provided under the “Source” heading in each institution's table.

Public Institutions

Table 1: UConn

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Understandable exchange of affirmative words or actions indicating willingness to participate in mutually agreed upon sexual activity

Method(s) of Expression

Must be freely and actively given

Lack of a negative response is not consent

Someone incapacitated by alcohol or drugs (voluntarily or involuntarily consumed) cannot give consent; look for these context clues:

- Slurred speech

- Bloodshot eyes

- Smell of alcohol on breath

- Inability to maintain balance

- Vomiting

- Unusual behavior

- Unconsciousness

Person incapacitated from mental disability, sleep, involuntary physical restraint, or rape drugs cannot give consent

Duration

Initiator must obtain clear and affirmative responses at each stage of sexual involvement

Consent to one form of activity does not imply consent to other forms

Past consent to sexual activity does not imply future consent

Coercion

Consent cannot be given if coercion or force are present

- Coercion means the use of emotional manipulation or other unreasonable pressure to persuade someone to perform sexual acts

- Force means the use of physical violence to gain sexual access; use of threats, intimidation, or coercion to overcome resistance

Table 2: Connecticut State University System (CSUS) and

Regional Community Technical College (CTC) Institutions*

Source

Board of Regents for Higher Education Sexual Misconduct Policy (the board adopted a common definition of consent that applies to each CSUS and CTC institution)

Basic Definition of Consent

Equal approval given to each participant to desired sexual involvement

An affirmative, conscious decision to engage in mutually accepted sexual contact

Method(s) of Expression

Given freely, willingly, and knowingly

Indicated clearly by words or actions

Cannot assume consent based upon lack of physical resistance or negative response

Mental or physical incapacity may result in a lack of consent

- Mental incapacity includes ingesting alcohol or drugs that significantly impair awareness or judgment

- Physical incapacity includes being unconscious or otherwise unable to communicate

Parties' Relationships

Dating relationship or past sexual relationship between people by itself does not indicate consent

Revocation

Can withdraw consent after giving initial consent

*CSUS institutions are Central Connecticut State University, Eastern Connecticut State University, Southern Connecticut State University, and Western Connecticut State University. CTC institutions are Asnuntuck Community College, Capital Community College, Gateway Community College, Housatonic Community College, Manchester Community College, Middlesex Community College, Naugatuck Valley Community College, Northwestern Connecticut Community College, Norwalk Community College, Quinebaug Valley Community College, Three Rivers Community College, and Tunxis Community College.

Private Institutions

Table 3: Albertus Magnus College

Source

Sexual Misconduct Policy

Basic Definition of Consent

Agreement to engage in a particular sexual activity

Must be active, unambiguous, knowing, and voluntary

Method(s) of Expression

Freely and actively by words or actions

Cannot be implied through silence, lack of resistance, or the absence of “no”

Resistance is a clear demonstration of non-consent

Duration

Past consent to sexual activity does not imply future consent

Consent to one form of sexual activity does not imply consent to further activity

Parties' Relationships

Current relationship does not imply consent to sexual activity

Revocation

Consent can be revoked at any time during the sexual activity

Can be revoked verbally, through physical resistance, or by loss of consciousness

Revocation requires all activity to cease

Coercion

Consent cannot be obtained by intimidation, force, or coercion

- Intimidation means using coercion, instilling fear, or making threats to induce submission, compliance, or acquiescence

- Force includes using physical violence, threats, intimidation, or coercion

- Coercion means unreasonable pressure

Legal Age

Must be age 16 in Connecticut in order to give consent

Sexual activity with a person younger than age 16 may be a criminal offense under state or federal law

Table 4: Connecticut College

Source

Title IX Policy

Basic Definition of Consent

Knowing, voluntary, and clear permission to engage in mutually agreed upon sexual activity

Each party must make certain the other has consented before engaging in the activity

Method(s) of Expression

Clear expression by word or action

Existence of consent is based upon totality of the circumstances (e.g., context of incident, similar previous patterns)

Does not include silence, passivity, or the absence of resistance alone

Person is unable to consent if he or she is disoriented, asleep, or unconscious for any reason

Verbal “no” (no matter how indecisive) indicates lack of consent

Mental or physical incapacity results in a lack of consent

Duration

Consent to some sexual contact cannot be presumed to be consent for other activity

Parties' Relationships

Current or previous dating relationship is insufficient to constitute consent

Revocation

Can withdraw consent at any time during the sexual activity by word or action; other party must stop immediately

Coercion

Decision to be sexually intimate must be made without coercion (i.e., unreasonable pressure)

Both partners must be equally free to act

Forced sexual act lacks consent, except in rare case where force is explicitly consented to

Legal Age

Must be age 16 in Connecticut in order to give consent

Sexual activity with a person younger than age 16 may be a crime, even if the minor wanted to engage

Table 5: Fairfield University

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Mutually understandable words or actions indicating a willingness to do the same thing, at the same time, in the same way with each other

Almost always viewed under an objective, reasonable person standard

Method(s) of Expression

Freely and actively given

A person cannot give consent if he or she is:

- Mentally disabled

- Physically impaired

- Impaired as a result of drug or alcohol consumption (voluntary or involuntary)

- Unconscious, unaware, or otherwise physically helpless

Inability to perceive incapacity does not excuse initiator's behavior

Duration

Past consent does not imply future consent

Parties' Relationships

Consent is viewed under a subjective standard only in a long-standing relationship where a couple established patterns of communicating consent; however, there must still be evidence of free and knowing participation

Revocation

Consent may be withdrawn at any time

Coercion

Consent cannot be obtained through fraud, force, threats, intimidation, or coercion

Legal Age

Must be of legal age in Connecticut in order to give consent

Table 6: Goodwin College

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Clear, knowing, voluntary words or actions that give mutually understandable, clear permission for willingness to engage in specific sexual activity

Method(s) of Expression

Given by word or action

- Nonverbal consent is not as clear as verbal

Does not include silence without action demonstrating permission

Resistance is a clear demonstration of non-consent

Cannot be given by someone who is known to be mentally or physically incapacitated by:

- Alcohol

- Drug use

- Unconsciousness or sleep

- Involuntary physical restraint

- Rape drugs

Duration

Consent to some form of sexual activity is not automatically consent to any other form

Parties' Relationships

Previous relationships or prior consent cannot imply future consent

Coercion

Forced sexual activity is non-consensual (e.g., using physical violence, threats, intimidation, and coercion to overcome resistance)

Coercion is unreasonable pressure for sexual activity

Legal Age

Must be of legal age to give consent

Table 7: Mitchell College

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Report states that the college uses affirmative consent standards under state law to affirm that consent is granted

Table 8: Quinnipiac University

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Active, knowing, voluntary exchange of affirmative words or actions indicating a willingness to participate in sexual activity

Method(s) of Expression

Must be freely and actively given

Lack of negative response is not consent

Cannot be given by someone who is known to be mentally or physically incapacitated by:

- Alcohol

- Drug use

- Unconsciousness or sleep

- Involuntary physical restraint

- Rape drugs

Someone incapacitated by alcohol or drugs (voluntarily or involuntarily consumed) cannot give consent; look for these context clues:

- Slurred speech

- Bloodshot eyes

- Smell of alcohol on breath or clothing

- Inability to maintain balance

- Vomiting

- Unusual behavior

- Unconsciousness

Duration

Initiator must obtain clear and affirmative response at each stage of sexual involvement

Consent to one form of sexual activity does not imply consent to future activity

Parties' Relationships

A past relationship does not imply consent to future sexual activity

Coercion

Consent cannot be given if coercion or force are present

- Coercion means the use of emotional manipulation or other unreasonable pressure to persuade someone to perform sexual acts

- Force means the use of physical violence to gain sexual access; it also includes threats, intimidation, or coercion to overcome resistance

Legal Age

Must be age 16 in Connecticut in order to give consent

Table 9: Sacred Heart University

Source

Student Handbook

Basic Definition of Consent

Positive, unambiguous, voluntary agreement to engage in specific sexual activity

Method(s) of Expression

A clear “yes,” verbal or otherwise, is necessary

Verbal consent is the most reliable form

Cannot be inferred from the absence of a “no”

Cannot be implied by a lack of protest

Cannot be obtained from someone who is asleep or mentally or physically incapacitated due to:

- Alcohol or drugs

- Other condition

Can be gauged only through direct communication; cannot rely on presumptions based on contextual factors (i.e., clothing, alcohol consumption, inappropriate bodily gestures)

Use of alcohol or drugs does not diminish one's responsibility to obtain consent

Duration

Consent to some sexual acts does not imply consent to others

Past consent to a given act does not imply present, continued, or future consent

Consent must be ongoing throughout a sexual encounter

If there is confusion or ambiguity about consent at any time during the interaction, the parties involved must stop and clarify the other's willingness to continue

Revocation

Consent may be revoked at any time

Coercion

Consent cannot be obtained by physical force, threats, intimidation, or coercion

Agreement under coercion does not constitute consent

Table 10: St. Vincent's College

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Equal approval of each participant to desired sexual involvement

Method(s) of Expression

Must be given freely, willingly, knowingly, and voluntarily

Must be an outward demonstration using mutually understandable words or actions

Non-verbal communication may lead to misunderstandings

May not be inferred from silence, passivity, lack of resistance, or lack of active response alone

Cannot be given by an incapacitated person, one who is:

- Mentally or physically helpless due to drug or alcohol consumption (voluntarily or involuntarily)

- Unconscious

- Asleep

- Unaware that the sexual activity is occurring

- Disoriented

Being intoxicated or impaired by drugs or alcohol does not excuse one from the responsibility to obtain consent

Duration

Must exist from the beginning to end of each instance of sexual activity, and for each form of sexual contact

Consent to one form of contact does not constitute consent to all forms

If either party appears hesitant at any time, both parties should stop and obtain mutual verbal consent before continuing the activity

Parties' Relationships

Current or previous dating or sexual relationship is insufficient by itself to constitute consent

Relationship context still requires mutually understandable communication indicating a willingness to engage in each activity

Revocation

May be withdrawn by either party at any time

Must be outwardly demonstrated by words or actions clearly indicating a desire to end the activity

Activity must cease once withdrawal of consent has been expressed

Coercion

Use or threat of physical force, intimidation, or coercion is not effective to gain consent

Coercion includes the use of:

- Pressure or oppressive behavior

- Express or implied threats of harm

- Severe or pervasive emotional intimidation

Coercion wrongfully impairs the other's freedom of will or ability to choose whether to engage in sexual activity

Table 11: Trinity College

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Mutually understandable words or actions that indicate a willingness to participate in mutually agreed upon activity

Method(s) of Expression

Must be freely and actively given

Cannot be given by people who are mentally or physically incapacitated, including those asleep or unconscious due to alcohol or drug consumption

Lack of verbal or physical resistance does not necessarily indicate consent

Duration

Initiator must obtain clear and affirmative responses at each stage of sexual involvement

Past consent cannot be construed to indicate current or future consent

Consent to engage in sexual activity with one person does not imply consent to engage with another

Consent to engage in one form of sexual activity does not imply consent to engage in others

Revocation

Consent may be withdrawn at any time

Coercion

Cannot use fraud or force (e.g., physical force, threats, intimidation, verbal coercion) to gain consent

Legal Age

Minors may never give consent

Table 12: University of Bridgeport

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Mutually understandable words or actions that clearly convey a willingness to engage in sexual activity

Informed, knowing, and voluntary from beginning to end

Method(s) of Expression

Each participant must consent to each act

Consent must be actively demonstrated

Consent may not be inferred from silence or passivity

Alcohol and drugs can impair decision-making and lead to confusion over whether consent was given

Duration

Consent to one form of sexual activity does not constitute consent to all forms

Initiator is responsible for getting advance consent for each sexual activity and should be able to explain the basis for why consent existed

Revocation

Consent may be withdrawn at any time through outward expression; activity must then cease

Coercion

Consent is not effective if obtained by force, threats, intimidation, coercion, incapacitation, or any other factor eliminating a person's exercise of free will

Coercion includes:

- Oppressive behavior which prevents another person from choosing whether to have sex

- Administering or pressuring another to consume a drug or intoxicant with the intent of impairing his or her ability to consent

Incapacitation includes:

- Mental or physical helplessness

- Unconsciousness

- Unawareness that sexual activity is taking place

Table 13: University of Hartford

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Active, knowing, and voluntary exchange of affirmative words or actions indicating and effectively communicating a willingness to participate in a particular sexual activity

Method(s) of Expression

Must be freely and actively given

Silence, lack of resistance, or lack of negative response is not consent

A person cannot give consent if:

- Under the influence of drugs or alcohol (voluntarily or involuntarily consumed)

- Unconscious or asleep

- Under involuntary physical restraint

- Mentally or physically incapacitated

Duration

Initiator is responsible for obtaining clear and affirmative response at each stage of sexual involvement

Consent to one form of sexual activity does not indicate consent to another

Past consent does not indicate current or future consent

Parties' Relationships

A past relationship does not indicate current or future consent

Revocation

Consent can be withdrawn at any time

Coercion

Coercion, force, or the threat of either invalidates consent

- Coercion means unreasonable pressure for sexual activity, including threats, intimidation, or emotional manipulation

- Force means the use of physical violence or imposing on someone physically to gain sexual access

Legal Age

Must be age 16 in Connecticut in order to give consent

Table 14: University of New Haven

Source

Title IX Policy

Basic Definition of Consent

An understandable exchange of affirmative words or actions indicating willingness to participate in mutually agreed upon sexual activity

Consent must be informed

Method(s) of Expression

Must be freely and actively given

Silence or absence of resistance does not imply consent

Must be obtained at each stage of sexual involvement

Cannot be given by someone who is mentally or physically incapacitated by:

- Alcohol or other drug use

- Unconsciousness

- Sleep

- Involuntary physical restraint

- Rape drugs

Duration

Initiator is responsible for obtaining clear and affirmative responses at each stage of sexual involvement

Past consent to sexual activity does not imply ongoing future consent

Consent to one sexual activity does not imply consent to all

Parties' Relationships

Consent to engage in sexual activity with one person does not imply consent to engage with another

Revocation

Consent may be withdrawn at any time by communicating lack of consent to the other person (e.g., a “no” or its verbal or nonverbal equivalent); all activity must then cease

Coercion

Consent is not effective when person is subjected to either mental or physical coercion (e.g., pressure, harassment, threats, or intimidation)

Legal Age

Must be age 16 in Connecticut in order to give consent

Connecticut law restricts sexual involvement of a person younger than age 18 with a person age 20 or older by virtue of the person's professional, legal, occupational, or volunteer status and the other person's participation in a program or activity

Table 15: University of St. Joseph

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Clear, knowing, and voluntary agreement by an individual of legal age

Method(s) of Expression

Silence alone is not consent

A person cannot give consent when incapacitated by:

- Drugs or alcohol

- Sleep

- Unconsciousness

- Intellectual or other disability

Duration

Prior permission does not imply future consent

Parties' Relationships

Relationship does not imply future consent

Revocation

Consent can be withdrawn at any time

Coercion

Coercion, force, or threat invalidates consent

Force includes the use or display of a weapon, physical immobilization, threats, intimidation, coercion, psychological pressuring, and taking advantage of a person under duress

Table 16: Wesleyan University

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

When all parties agree to engage in sexual activity

Method(s) of Expression

Must be mutual; voluntary; and given without pressure, intimidation, or fear

Must be freely and affirmatively communicated between all individuals in order to participate in sexual activity or behavior

Can be expressed by words or clear, unambiguous actions

Silence or lack of protest or resistance does not signify consent

A person cannot give consent if he or she is incapacitated; incapacitation means:

- Mentally or physically helpless

- Unconscious

- Unaware the sexual activity is occurring due to alcohol or other drugs

Use of alcohol and drugs can affect consent:

- From complainant's perspective, they can limit the ability to freely and clearly give consent

- From respondent's perspective, they can create an atmosphere of confusion over whether or not consent has been freely and clearly sought or given

Warning signs of incapacitation include:

- Slurred speech

- Vomiting

- Unsteady gait

- Combativeness

- Emotional volatility

- Sleeping

Duration

Initiator is responsible for ensuring each partner's consent

Consent must be obtained at each step and be present throughout the sexual activity

Parties must stop the activity if there is confusion about consent and should not resume until it is resolved

Parties' Relationships

Current or previous dating or sexual relationship, by itself, is insufficient to establish consent

Willingness to engage in sexual activity must be freely and affirmatively communicated in the context of a relationship

Revocation

Can be revoked at any time during the sexual activity

Coercion

Consent is not present if it results from intimidation, coercion, incapacitation, physical force or the threat of it, or any other factor interfering with a person's free will

Coercion is the use or attempted use of pressure or oppressive behavior, which places a person in fear of immediate harm or physical injury or causes a person to engage in unwelcome sexual activity

Table 17: Yale University

Source

2015 report to the Higher Education Committee

Basic Definition of Consent

Positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter

Method(s) of Expression

Can be gauged only through direct communication; cannot rely on presumptions based on contextual factors (e.g., clothing, alcohol consumption, dancing)

Does not need to be verbal, but that is the most reliable form of asking for and gauging consent

Cannot be inferred from the absence of a “no;” a clear “yes,” verbal or otherwise, is necessary

Cannot be obtained by someone who is:

- Asleep

- Otherwise mentally or physically incapacitated due to alcohol, drugs, or another condition

Duration

Consent to some sexual acts does not constitute consent to others

Past consent to a given act does not constitute present or future consent

Consent must be ongoing throughout a sexual encounter

Revocation

Consent may be revoked at any time during a sexual encounter

Coercion

Consent cannot be obtained by threat, coercion, or force

REPORTING REQUIREMENT

PA 14-11 required all Connecticut higher education institutions to annually submit a report to the Higher Education Committee containing information about sexual assault, stalking, and intimate partner violence. The information must include, among other things, a copy of the institution's most recently adopted policies on these topics. The first report was due October 1, 2015 (CGS § 10a-55m(f)).

All Connecticut higher education institutions, with the exception of three private institutions, have submitted their 2015 report to the committee as of this OLR Report's publication date. Table 18 below lists the institutions that have met the requirement and those that have not. (State law exempts Charter Oak State College from the requirement (CGS § 10a-55m(a)(3)).)

Table 18: 2015 Sexual Assault Reporting Compliance*

Institutions in Compliance

Institutions not in Compliance

Public

UConn

UConn Health Center

All CSUS institutions

All RCTCs

none

Private

Fairfield University

Goodwin College

Mitchell College

Quinnipiac University

St. Vincent's College

Trinity College

University of Bridgeport

University of Hartford

University of New Haven

University of Saint Joseph

Wesleyan University

Yale University

Albertus Magnus College

Connecticut College

Sacred Heart University

* This list is current through the publication date of this report. Institutions may have fulfilled the requirement subsequent to the report's publication. Please contact the Higher Education and Employment Advancement Committee for the most current compliance list.

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