Reed College prohibits all forms of sexual assault. Any sexual acts without effective consent may be considered sexual assault. Failure to obtain effective consent greatly increases the risk of sexual assault. Engaging in any sexual activity with a person whom one knows or reasonably should know is incapacitated or otherwise unable to give consent is prohibited.
The following are essential elements of effective consent:
- Informed: both parties demonstrate a clear and mutual understanding of exactly what they are consenting to.
- Freely and actively given: there is no coercion, force, threats, intimidation, or pressuring.
- Mutually understandable: expressed in words or actions that indicate a clear willingness to do the same thing, at the same time, in the same way, with each other. Silence does not equal consent.
- Consent is not indefinite; furthermore, consent may be withdrawn at any time, and at that time all sexual activity must cease unless and until additional effective consent is given.
Following is a more detailed concept and discussion of effective consent.
Consent Definitions & Discussion
Effective consent is informed, freely and actively given by mutually understandable words or actions that indicate a willingness to engage in mutually agreed upon sexual activity. In other words, to do the same thing, at the same time, in the same way, with each other.
Reed strongly encourages students to talk with each other before engaging in sexual activity and to communicate as clearly and verbally as possible with each other. It is the responsibility of the person who wants to engage in the specific sexual activity to make sure that he or she has received effective consent before initiating such sexual activity. Consent to one form of sexual activity does not necessarily imply consent to other forms of sexual activity. Effective consent must be obtained by the person who wants to engage in a specific sexual activity before initiating such sexual activity. After effective consent has been established, a person who changes his or her mind during the sexual activity should communicate by using words or clear action, his or her decision to no longer proceed with the sexual activity, at which time the sexual activity must cease. A verbal “no” even if it may sound indecisive or insincere should be treated as a withdrawal of consent.
Effective consent is almost always based on an objective standard. Consent is effective and mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested an agreement between them to do the same thing, in the same way, at the same time, with one another. Effective consent may be considered in its subjective sense in the context of long-term relationships where couples have established patterns of communicating consent that generally alter/replace the objective consent concept.
What is NOT effective consent?
Silence does not equal consent
A lack of verbal resistance does not, by itself, constitute consent.
Resistance is not required
A lack of physical resistance does not, by itself, constitute consent.
Underage or Incapacitated persons cannot give consent
According to Oregon law (ORS 163.315), “(1) A person is considered incapable of consenting to a sexual act if the person is: (a) Under 18 years of age; (b) Mentally defective; (c) Mentally incapacitated; or (d) Physically helpless.
One who is mentally or physically incapacitated as a result of alcohol or other drug consumption (voluntarily and involuntarily), or who is unconscious, unaware, or otherwise helpless, is incapable of giving consent.”Oregon law provides a potential defense if there is otherwise effective consent and the minor is at least sixteen (16) and the sexual activity is with someone who is no more than three (3) years older than the minor (ORS 163.345).
Anyone who engages in sexual activity with another whom one knows or should reasonably know to be incapacitated, according to this standard, may be found responsible for sexual assault.
Alcohol and Other Drugs
Because the use of alcohol and other drugs over time can have a cumulative effect, a person who may not have been incapacitated at the beginning of a sexual activity may become incapacitated and therefore unable to give effective consent as the sexual activity continues. It is the responsibility of the person who wants to engage in a specific sexual activity to ensure that effective consent is obtained for each sexual act and over the entire course of the sexual activity. Reed strongly encourages careful communication between individuals considering sexual activity of any kind, and in particular when considering sexual activity between persons who are under the influence of alcohol and other drugs—especially between persons who do not have a well-established, current sexually intimate relationship. Such sexual activity is inherently complicated and potentially fraught with misunderstanding.
Physically incapacitated persons are considered incapable of giving effective consent when they lack the ability to appreciate the fact that the situation is sexual, and/or cannot rationally and reasonably appreciate the nature, extent, and implications of that situation.
No “implied consent” for sexual encounters
Silence, previous sexual relationships, and/or a current sexual relationship may not, in and of themselves, be taken to constitute effective consent. One should not infer effective consent as a function of attire, flirtation, the buying of dinner or the spending of money on a date, etc. Intentional use of alcohol/drugs may not, in and of itself, be taken to imply consent. Consent to sexual activity may be withdrawn at any time, and at that time all sexual activity must cease unless and until additional effective consent is obtained. Consent is not an open-ended condition and once obtained, does not carry past the current sexual activity.
Effective consent cannot be obtained through the use of fraud or force (actual or implied), threats, intimidation, or coercion. Moreover, persistent verbal pressuring combined with physical proximity or other circumstances may constitute coercion. Effective consent may never be given by a minor to an adult who is more than three (3) years older than the minor. The absence of perceptible resistance on the part of a person who is the object of sexual activity in no way constitutes effective consent.