Affirmative Consent (as defined by New York state law under Enough is Enough): is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of Affirmative Consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.

  • Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
  • Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
  • Consent may be initially given but withdrawn at any time.
  • Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity.
  • Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
  • Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
  • When consent is withdrawn or can no longer be given, sexual activity must stop.

In evaluating whether consent has been freely sought and given, the University will consider the presence of any force, threat of force, threats, 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 act.

Incapacitation includes the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the activity is occurring.

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. When alcohol is involved, incapacitation is a state beyond drunkenness or intoxication. When drug use is involved, incapacitation is a state beyond being under the influence or impaired by use of the drug.

Alcohol and other drugs impact each individual differently and determining whether an individual is incapacitated requires an individualized assessment. The University does not expect community members to be medical experts in assessing incapacitation. Individuals should look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. A person’s level of intoxication is not always demonstrated by objective signs; however, some signs of intoxication may include clumsiness, difficulty walking, poor judgment, difficulty concentrating, slurred speech, vomiting, combativeness, or emotional volatility. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?” “Do you know how you got here?” “Do you know what is happening?” “Do you know whom you are with?”

An individual’s level of intoxication may change over a period of time based on a variety of subjective factors, including the amount of substance intake, speed of intake, body mass, and metabolism. Because the impact of alcohol and other drugs varies from person to person, the amount of alcohol and/or drugs a person consumes may not be sufficient, without other evidence, to prove that they were incapacitated under this policy. Another effect of alcohol consumption can be memory impairment or forgetting entire or partial events (sometimes referred to as “black- out” or “brown-out”). A person may experience this symptom while appearing to be functioning “normally,” including communicating through actions or words that can reasonably be said to express an interest in engaging in sexual conduct. Whether sexual conduct with a person who is “blacked-out” constitutes prohibited conduct depends on the presence or absence of the observable factors indicating that a person is also incapacitated, as described above. Total or partial loss of memory alone, may not be sufficient, without other evidence, to prove that a person was incapacitated under this policy.

In evaluating consent in cases of reported incapacitation, the University asks two questions: (1) Did the Respondent know that the Complainant was incapacitated? and if not, (2) Should a sober, reasonable person in a similar set of circumstances as the Respondent have known that the Complainant was incapacitated? If the answer to either of these questions is “yes,” the Complainant could not consent; and the conduct is likely a violation of this policy. A Respondent’s voluntary intoxication is never an excuse for or a defense to prohibited conduct, and it does not diminish the responsibility to determine that the other person has given consent and has the capacity to do so.