Consent is a voluntary, informed, and freely given agreement, through words and/or actions, to participate in mutually agreed-upon sexual acts. Consensual sexual activity happens when each partner willingly and affirmatively chooses to participate in each sexual act.
In evaluating whether consent has been freely given, NMU will consider the presence of any force, threat of force, or coercion; whether the Complainant had the capacity to give consent; and, whether the communication (through words and/or actions) between the Parties would be interpreted by a reasonable person as a willingness to engage in a particular sexual act.
Consent cannot be gained by force or coercion or by taking advantage of another person’s incapacitation. Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom of will to choose whether or not to participate in sexual activity. Coercion is conduct, including intimidation and/or expressed or implied threats of immediate or future physical or other harm to the Complainant or others, that would reasonably place an individual in fear and that is employed to compel someone to engage in sexual activity.
Important points regarding consent include:
A person who initiates a specific activity is responsible for obtaining consent for that activity.
Consent to engage in one sexual activity is not consent to engage in a different sexual activity or to engage in the same sexual activity on a later occasion.
Consent can be withdrawn or modified at any time, and sexual contact must cease immediately once consent is withdrawn.
Consent cannot be inferred from silence, passivity, or lack of resistance; relying solely upon non-verbal communication can lead to a false conclusion about whether consent was sought or given.
Consent is not to be inferred from an existing or previous dating or sexual relationship. Even in the context of a relationship, there must be mutual consent to engage in any sexual activity.
Consent to engage in sexual activity with one person is not consent to engage in sexual activity with any other person.
Under Michigan law, individuals younger than 16 years of age are legally incapable of giving consent to sexual activity.
Under Michigan law, individuals older than 16 years of age may not be legally capable to give consent if there is a special relationship.
Incapacitation (Incapacitated) means a person’s inability, temporarily or permanently, to communicate a willingness to participate in an activity (e.g., sexual contact or sexual penetration) because of mental or physical helplessness, sleep, unconsciousness, or other lack of awareness that the activity is taking place.
Incapacitation can be voluntary or involuntary. Signs of incapacitation may include, without limitation: sleep; total or intermittent unconsciousness; lack of control over physical movements (e.g., inability to dress/undress without assistance; inability to walk without assistance); lack of awareness; vomiting; incontinence; unresponsiveness; and inability to communicate coherently. Incapacitation is an individualized determination based on the totality of the circumstances. Alcohol and drugs may be causes of incapacitation.
In evaluating consent where the question of incapacitation is at issue, NMU considers two questions: (1) did the person initiating sexual activity know that the other Party was incapacitated, and if not, (2) should a reasonable person, in the same situation, have known that the other Party was incapacitated? If the answer to either question is yes, then there has not been consent.
One should be cautious before engaging in sexual activity when either Party has been drinking alcohol or using other drugs. The use of alcohol or other drugs can lower inhibitions and create an atmosphere of confusion about whether consent is effectively sought and freely given. If there is any doubt as to the level or extent of one’s own or the other individual’s intoxication or incapacitation, the safest course of action is to forgo or cease any sexual contact.