Consent
Northwestern Definition of Consent
All of the definitions on this page are taken from the Northwestern Policy on Discrimination, Harassment, and Sexual Misconduct.
Sexual violence occurs when there is a lack of consent. According to the Northwestern University Policy on Discrimination, Harassment, and Sexual Misconduct, consent is present "when clearly understandable
words or actions manifest a knowing, active, voluntary, and present and ongoing agreement to engage in specific sexual or intimate contact."
Capacity to Consent
Consent is not present when an individual does not have the capacity to give consent, voluntarily or involuntarily, due to age (generally, the age of consent is 17 in Illinois), physical condition, or disability that impairs the individual’s ability to give consent. Reasons why one could lack capacity to give consent due to a physical condition include, but are not limited to, consumption of drugs or alcohol (voluntarily or involuntarily) or being in a state of unconsciousness, sleep, or other state in which the person is unaware that sexual activity is occurring.
“Incapacitated” refers to the state where a person does not understand the nature or fact of sexual activity due to the effect of drugs or alcohol consumption, medical condition or disability, or due to a state of unconsciousness or sleep. 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 determination.
Some indicators of a lack of capacity to give consent due to consumption of drugs or alcohol may include, but are not limited to:
- Lack of full control over physical movements (for example, difficulty walking or standing without stumbling or assistance);
- Lack of awareness of circumstances or surroundings (for example, lack of awareness of where one is, how one got there, who one is with, or how or why one became engaged in sexual interaction);
- Inability to effectively communicate for any reason (for example, slurring speech, difficulty finding words).
A person may appear to be giving consent but may not have the capacity to do so. When determining whether a person has the capacity to provide consent, the University will consider whether a sober, reasonable person in the same position knew or should have known whether the other party could or could not consent to the sexual activity. It is especially important, therefore, that anyone initiating sexual activity is aware of their own level of intoxication as it may impact their ability to assess another person’s capacity to give consent. Being intoxicated or impaired by drugs or alcohol does not excuse one from the responsibility to obtain consent. Being intoxicated or impaired by drugs or alcohol is never an excuse to commit sexual misconduct.
Aspects of Valid Consent
For purposes of Northwestern policy, consent is present when clearly understandable words or actions manifest a knowing, active, voluntary, and present and ongoing agreement to engage in specific sexual or intimate contact. Consent must be knowing, active, voluntary, present, and ongoing.
- Knowing: All individuals understand, are aware of, and agree as to the “who” (same partners), “what” (same acts), “where” (same location), “when” (same time), and “how” (the same way and under the same conditions) of the sexual activity.
- Active: Consent must take the form of “clearly understandable words or actions” that reveal one’s expectations and agreement to engage in specific sexual activity. This means that silence, passivity, submission, or the lack of verbal or physical resistance (including the lack of a “no”) should not – in and of themselves – be understood as consent. Consent cannot be inferred by an individual’s manner of dress, the giving or acceptance of gifts, the extension or acceptance of an invitation to go to a private room or location, or going on a date.
- Voluntary: Consent must be freely given and cannot be the result of intimidation (extortion, menacing behavior, bullying), coercion (severe or persistent pressure causing fear of significant consequences from the other party if one does not engage in sexual activity), force (violence, physical restraint, or the presence of a weapon), threats (indications of intent to harm, whether direct or indirect), or fraud (misrepresentation or
material omission about oneself or the present situation in order to gain permission for sexual or intimate activity). - Present and Ongoing: Consent must exist at the time of the sexual activity. Consent to previous sexual activity does not imply consent to later sexual acts; similarly, consent to one type of sexual activity does not imply consent to other sexual acts. Consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another person. Consent may also be withdrawn at any time, provided the person withdrawing consent makes that known in clearly understandable words or actions.
These policy definitions of consent are important to establish expected and unacceptable behaviors for the Northwestern community, and ensure that all community members are share common language.
Communicating Consent
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Consent to sexual activity can be communicated in a variety of ways, but one should presume that the lack of a “no” does not mean “yes”.
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Consent is required every time, for every action. This applies to all types of relationships and sex acts; consent is never automatically present.
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Consent can be withdrawn at any time, and pushing or coercing someone to provide consent is not okay.
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Verbal communication is the best way to communicate consent, and can be natural or even sexy. Here are some suggestions – notice these are not “yes” or “no” responses to further encourage clear communication and understanding.
- How are you feeling?
- What are you excited about doing?
- What are your boundaries?
- How can I make you feel good?
- What kind of protection do you want to use?
- Is there something you would like to try?
- How does this feel for you?
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There are also non-verbal ways people communicate whether a behavior is consensual. If your partner is actively participating, smiling, and seems to be enjoying themselves, those are good signs of consent. However, if they seem stiff, scared, quiet, distracted or if they are pushing your hands away or trying to distract you, immediately stop and check in with them verbally.
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Rely on an active understanding of your partner’s engagement with you, rather than solely verbal or nonverbal cues.
Alcohol and Drugs
A person who is asleep or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason, is not capable of giving valid consent, even if they verbally agree to sexual activity. According to the Northwestern University Code of Conduct, “Reasons why one could lack capacity to give consent due to a physical condition include, but are not limited to, consumption of drugs or alcohol (voluntarily or involuntarily) or being in a state of unconsciousness, sleep, or other state in which the person is unaware that sexual activity is occurring.”
Alcohol impacts everyone differently, which means signs of incapacitation may be different as well. Things to ask to determine if someone is incapacitated:
- Are they coherent? Do they seem confused? Do they know what is going on?
- Can they communicate clearly? Can they speak without slurring?
- Are they in control of their motor skills? Can they stand? Can they walk straight?
- Do you know how alcohol impacts this person?
- If the answer to any of these questions is “no” or you have any doubts, do not have sexual contact with that person.
Consumption of alcohol is not an excuse for not getting consent and an intoxicated person will still be held responsible by Northwestern University for sexual misconduct. According to the Northwestern Student Handbook, “The use of alcohol and/or drugs by one or more of the parties involved will not be considered a mitigating factor in cases of alleged sexual assault. In fact, such use may be considered as an aggravating factor if the effect of such use is deemed to have made the complaining party incapable of giving consent.”
Drugs can also be given to someone in order to purposely incapacitate them and facilitate sexual assault. Sometimes these drugs are ingested unknowingly, like by slipping them into a drink when the person is not looking, or knowingly, like feeding someone alcoholic beverages until they are incapacitated. According to the U.S. Office on Women’s Health, alcohol is the most commonly used “date rape” drug, but others include Rohypnol (aka roofies), GHB, and Ketamine. These drugs are very powerful and can take effect very quickly (within 15-30 minutes). Symptoms of being drugged may include confusion, problems seeing, loss of consciousness, vomiting, loss of muscle control, sweating, and seizures. If you suspect you or someone you know has been drugged, call 911 and seek emergency assistance immediately, as some of these drugs can lead to serious medical complications.
Remember that Northwestern has an Amnesty through Responsible Action policy. To encourage students to take responsible action when necessary, the University will not hold students who take such action (for themselves or for others), or for whom such action is taken, accountable for violations of the University’s alcohol or other drug policies (with the exception of driving under the influence).