The laws about consent vary by state and situation, so it's important to know what consent looks like in real life. It's also important to know how consent is defined under the university's Sexual Harassment Policy.
What is consent?
Consent is an agreement between participants to engage in sexual activity. There are many ways to give consent, and some of those are discussed below.
Utah law explains that in the following circumstances, consent is NOT present:
- The victim expresses lack of consent through words or conduct;
- The perpetrator overcomes the victim through physical force, violence, concealment, or the element of surprise;
- The perpetrator threatens retaliation through physical force, kidnapping, or extortion;
- The victim is unconscious, unaware, or physically unable to resist.
BYU's Sexual Harassment Policy explains consent in this way:
Consent means a voluntary agreement to engage in sexual activity and is determined by all the relevant facts and circumstances. An act is without consent of a Complainant under any of the following circumstances:
- the Complainant expresses lack of consent through words or conduct
- the Respondent overcomes the Complainant through the actual application of physical force or violence
- the Respondent is able to overcome the Complainant through concealment or by the element of surprise
- the Respondent coerces the Complainant to submit by threatening to retaliate against the Complainant or any other person and the Complainant believes at the time that the Respondent has the ability to execute this threat
- the Respondent knows the Complainant is unconscious, unaware that the act is occurring, or is physically unable to resist
- the Respondent knows or reasonably should know that the Complainant has a disability that renders the Complainant unable to appraise the nature of the act, resist the act, understand the possible consequences to the Complainant's health or safety, or appraise the nature of the relationship between the Respondent and the Complainant
- the Respondent knows that the Complainant participates because the Complainant mistakenly believes that the Respondent is someone else
- the Respondent intentionally impaired the Complainant’s ability to appraise or control his or her conduct by administering any substance without the Complainant’s knowledge
- the Complainant is younger than 14 years of age
- the Complainant is younger than 18 years of age and at the time of the alleged act the Respondent was the Complainant’s parent, stepparent, adoptive parent, or legal guardian or occupied a position of special trust (such as teacher, coach, counselor or ecclesiastical leader) in relation to the Complainant
- the Complainant is 14 years of age or older, but younger than 18 years of age, and the Respondent is more than three years older than the Complainant and entices or coerces the Complainant to submit or participate
- the Respondent is a health professional or religious counselor, the act is committed under the guise of providing professional diagnosis, counseling, or treatment, and at the time of the act the Complainant reasonably believed that the act was for medically or professionally appropriate diagnosis, counseling, or treatment to the extent that resistance by the Complainant could not reasonably be expected to have been manifested
Consent to any sexual act or prior consensual activity between or with any party does not necessarily constitute consent to any other sexual act. Consent may be initially given but may be withdrawn through words or conduct at any time prior to or during sexual activity.
How does consent work in real life?
When you’re engaging in intimate activity, the most important part of consent is communication. And, as mentioned above, consent needs to happen every time and in every instance. Giving consent for one activity, one time, does not mean giving consent for increased or recurring sexual contact. For example, agreeing to kiss someone doesn’t give that person permission to remove your clothes.
How do I know if I have consent/gave consent?
When assessing whether consent existed for sexual activity, it's important to look for the presence of clear, knowing, and voluntary words or actions that give permission for specific behaviors. BYU prohibits sexual contact with a person who is incapacitated by alcohol, drugs, or another condition, when that incapacitation is known or should have been known. In general, incapacitation is defined as a state where individuals cannot make rational, reasonable decisions because they lack the capacity to give knowing consent. It is always wise to get verbal consent when engaging in intimate activity -- communication in consent is key!
Can someone change their mind after giving consent?
Yes. It's important to remember that consent can be withdrawn at any time. Clearly communicate with your partner that you are no longer comfortable with this activity and wish to stop. The best way to ensure both parties are comfortable with any sexual activity is to talk about it.
What are some positive examples of consent?
- Communicating when you change the type or degree of intimate activity with phrases like “Is this OK?”
- Explicitly agreeing to certain activities, either by saying “yes” or another affirmative statement, like “I’m open to trying”
- Using clear physical cues to let the other person know you’re comfortable taking things to the next level
What are some examples where consent is not present?
- Refusing to acknowledge when someone says “no”
- Assuming that wearing certain clothes, flirting, or kissing is an invitation for anything more
- Someone being under the legal age of consent, as defined by the state
- Someone being incapacitated because of drugs or alcohol
- Pressuring someone into sexual activity by using fear or intimidation
- Assuming you have permission to engage in intimate behavior because you’ve done it in the past
Adapted from information provided by the Rape, Abuse, and Incest National Network (RAINN)