Policy: Section VI

VI. Consent and Related Definitions

When evaluating whether there has been a violation of this policy, a determination of whether consent has been given is often necessary. Proof of consent or non-consent is not a burden placed on any party involved in an incident.  Instead, the burden remains on the college to determine whether consent has been given based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred and any similar, previous patterns that may be evinced.

Consent in relationships must also be considered in context.  When parties agree to bondage, discipline/dominance, submission/sadism, masochism, and/or other forms of kink, non-consent may be shown by the use of a safe word which might not be ordinarily understood as a signal of non-consent.  Similarly, resistance, force, violence, and even saying “no” may be part of the agreed-upon kink and thus consensual.  So, the evaluation of communication in kink situations will be guided by reasonableness, rather than strict adherence to understandings that might assume non-kink relationships as a default. When evaluating the presence of consent, the following definitions and understandings apply.

A. Consent

Consent[1] consists of an active, conscious, and voluntary decision by each participant to engage in mutually agreed-upon sexual activity. Consent must exist from the beginning to the end of each sexual activity or each form of sexual contact. An individual who is physically incapacitated by alcohol or other drug consumption (voluntary or involuntary) or is asleep, unconscious, unaware, or otherwise physically helpless is considered unable to give consent.

The following are essential elements of consent:

  • Informed and reciprocal: All parties must demonstrate a clear and mutual understanding of the nature and scope of the act to which they are consenting and a willingness to do the same thing, at the same time, in the same way.
  • Freely and actively given: Consent cannot be gained by force, coercion, deception, threats; by ignoring or acting in spite of the objections of another; or by taking advantage of the incapacitation of another individual.
  • Mutually understandable: Consent consists of mutually understandable words and/or actions that indicate an unambiguous willingness to engage freely in sexual activity. In the absence of clear communication or outward demonstration, there is no consent. A person who does not physically resist or verbally refuse sexual activity is not necessarily giving consent. Consent may not be inferred from silence, passivity, lack of resistance or lack of active response. Relying solely upon non-verbal communication can lead to a misunderstanding or false conclusion as to whether consent was sought or given. If at any time during the sexual activity, an individual is hesitant, confused, uncertain, or is no longer an enthusiastic participant, both parties should stop and clarify verbally the other’s willingness to continue before continuing such activity.
  • Not indefinite: Either party may withdraw consent at any time. Withdrawal of consent may be expressed by “no” or outwardly demonstrated by words or actions that clearly indicate a desire to end sexual activity. Once consent is withdrawn, sexual activity must cease immediately. All parties must obtain mutually understandable consent before continuing further sexual activity. Recognizing the dynamic nature of sexual activity, individuals choosing to engage in sexual activity must evaluate consent in an ongoing manner and communicate clearly throughout all stages of sexual activity.
  • Not unlimited: Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to sexual activity with one person constitute consent to activity with any other person. Each participant in a sexual encounter must consent to each form of sexual contact with each participant. Consent to one form of sexual contact does not constitute consent to all forms of sexual contact, nor does consent to sexual activity with one person constitute consent to activity with any other person. Each participant in a sexual encounter must consent to each form of sexual contact with each participant.

Individuals with a previous or current intimate relationship do not automatically give either initial or continued consent to sexual activity. Even in the context of a relationship, consent must be based on mutually understandable communication that clearly indicates a willingness to engage in sexual activity each time such activity occurs. The mere fact that there has been prior intimacy or sexual activity does not, by itself, imply consent to future acts.

In the State of Maine, consent cannot be given by minors who are 14 or 15, if the actor is at least 5 years older than the minor.  Consent cannot be given by minors under 14 years of age, regardless of the age of the Respondent.  For this reason, any sexual act with an individual under 14 is considered a felony.

[1] The definition of consent used in criminal proceedings in the State of Maine differs from that used by the college to address policy violations.  See Appendix B for more information regarding state law.

B. Force

Force is the use or threat of physical violence, intimidation, or coercion to overcome an individual’s freedom of will to choose whether or not to participate in sexual activity. Such action would cause a person to fear for their physical or psychological well-being. For the use of force to be demonstrated, there is no requirement that a Complainant resists the sexual advance or request. However, resistance by the Complainant will be viewed as a clear demonstration of non-consent.

C. Coercion

Coercion is the use of unreasonable pressure that compels another individual to initiate or continue sexual activity against their will. Coercion can include a wide range of behaviors, including intimidation, manipulation, implied threats or blackmail which places a person in fear of immediate harm or physical injury or causes a person to engage in unwelcome sexual activity. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include, but are not limited to:

  • threatening to “out” someone based on sexual orientation,gender identity or gender expression;
  • persistent attempts to pressure an individual who has clearly stated their desire to stop activity or their unwillingness to engage in a certain sexual act; and
  • threatening to harm oneself or others if the other party does not engage in the sexual activity.

Coercing an individual into engaging in sexual activity violates this policy in the same way as physically forcing someone into engaging in sexual activity.

D. Incapacitation

Incapacitation is a state where an individual cannot make an informed and rational decision to engage in sexual activity because they lack conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why, or how of the sexual interaction). Incapacitation is defined as the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically unable to make informed, reasonable judgments. An individual is incapacitated, and therefore unable to give consent, if they are asleep, unconscious, or otherwise unaware that sexual activity is occurring.

Incapacitation may result from the use of alcohol and/or drugs. Incapacitation, however, is determined through a consideration on all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk. Consumption of alcohol or other drugs alone is insufficient to establish incapacitation. The impact of alcohol and drugs varies from person to person; however, warning signs that a person may be approaching incapacitation include slurred speech, vomiting, unsteady gait, odor of alcohol, combativeness, loss of consciousness, or emotional volatility.

Evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects an individual’s:

  • decision-making ability;
  • awareness of consequences;
  • ability to make informed judgments; or
  • capacity to appreciate the nature and the quality of the act.

Evaluating incapacitation also requires an assessment of whether the Respondent should have been aware of the Complainant’s incapacitation based on objectively and reasonably apparent indications of impairment when viewed from the perspective of a reasonable person.

An individual who engages in sexual activity with someone the individual knows or reasonably should know is incapable of making a rational, reasonable decision about whether to engage in sexual activity is in violation of this policy.

E. Alcohol or Other Drugs

In general, sexual contact while under the influence of alcohol or other drugs poses a risk to all parties. Alcohol and drugs impair a person’s decision-making capacity, awareness of the consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of their own and the other person’s level of intoxication. If there is any doubt as to the level or extent of the other individual’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.

Being intoxicated or impaired by drugs or alcohol is never an excuse for any prohibited behavior under this policy and does not diminish one’s responsibility for obtaining informed and freely given consent or adhering to the behavioral standards outlined in this policy.