Title IX & Consent: Everything You Should Know

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In the world of college Title IX, one issue often overrides any other, and that is the idea of consent. When two college students decide to engage in any sexual activity, do they have the other person’s permission to proceed?

It may sound farcical to ask permission at each step forward of the way, but that is what some college rules demand. Modern dating can sound like this:

  • Can I hold your hand? Yes.
  • Can I kiss you? Yes.
  • Can I touch you? Yes, and so on from there.

A University in Michigan states that all people must obtain consent before engaging in any sexual activity. They further state that consent is knowing voluntary and explicit permission by words or actions is needed prior to engaging in sexual activity. It leads us to ask the following questions:

  • But what actions convey consent?
  • Does not saying anything means you consent?
  • Does a lukewarm yes equal consent?
  • Does saying no then saying yes mean consent?

In nearly every case, it is going to mean no. The difference from school to school creates problems for those trying to navigate these waters. Even within the same state among schools in the same system, there can be differences.

What is consent?

Here are three North Carolina Colleges and their definition of consent:

  • University of North Carolina Charlotte (UNCC) defines consent “unambiguous, clear, knowing, and voluntary approval given by words or demonstrated actions to engage in sexual activity. The policy further states that in cases of ambiguity or confusion, participants should stop and clarify whether consent is given.
  • North Carolina State University (NCSU) defines consent as “an informed decision made freely, willingly, and actively by all parties.”
  • Eastern Carolina University (ECU)defines consent as “explicit approval and permission to engage in sexual activity demonstrated by clear actions, words or writings.”
  • North Carolina University, Duke, states there is a presumption that sexual activity is nonconsensual unless clear consent was secured. Their policy states that sexual activity is non-consensual “if no clear consent, verbal and/or nonverbal, is given.”

Reading such different definitions, it begs the questions that why the definitions of consent are different across universities. Let’s analyze the reasons.

Why is consent defined differently across universities?

Part of the reason why consent is defined differently across education institutions falls to the Title IX regulations themselves because they do not adequately define consent. Each school ends up defining it for itself.

Consent under Title IX regulations

Since, Title IX regulations do not adequately define consent, we can derive the following clarifications regarding consent from the definition of universities stated above.

  • It is the responsibility of each party to determine that the other has consented before engaging in the activity.
  • Consent cannot be gained by force, threats, intimidation, or coercion.
  • Consent should not be inferred from silence or lack of resistance.
  • What a person is wearing does not imply or inferred consent.
  • Buying someone dinner does not confer consent.
  • Consent can never be given by a minor.
  • Consent can never be given by someone with a mental disability.
  • You can never be given consent if the person is asleep, incapacitated or unconscious, which could be a result of alcohol or drugs.
  • While together, one type of sexual act does not imply consent for another act.
  • Once a person says no or communicates that they want to stop, it does not matter if or what type of sexual behavior had occurred previously you must stop.
  • Just because you are dating and, in a relationship, does not mean that consent is always given.
  • It is important to ask each time when engaging in sexual activities. Even if you have had sexual relations in the past, it does not imply consent going forward.
  • Consent can be withdrawn at any time as long as that withdrawal is clearly communicated. The best way to think of consent is the three C’s of consent. CONTINUOUS. CONSCIOUS. CLEAR. CONSENT.

It was mentioned above, but it is important to reiterate that a person can’t consent if they’re unconscious, asleep, or impaired to the extent that they don’t understand what’s going on. Hence, it leads us to ask the following question.

How do you determine impairment?

If they are slurring words, stumbling, acting in a manner that is outside of the ordinary for them, it is best to assume they are impaired. Too much is at risk if you are accused of sexual assault and found responsible.

Accused of violating Title IX – Contact K Altman Law

If you are accused of violating Title IX and know you are innocent, it is critical to get help. An attorney experienced in Title IX law and procedures will be your best advocate during this process. Do not try to handle the matter yourself. K Altman Law specializes in student defense matters and has defended students throughout the country. Keith Altman is experienced and will fight for your rights. You will need someone like Keith Altman in your corner.

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