What is consent?
Consent requires positive cooperation, and must be unambiguous. You are required to get affirmative consent before engaging in sexual activity.
Valid consent must be informed and knowing. When people consent to sexual activity, they will have indicated, in an affirmative, conscious and unambiguous manner, verbally or otherwise, prior to engagement in the sexual activity, that they are participating willingly, freely and voluntarily; silence, in and of itself, cannot demonstrate consent. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity.
Consent is an ongoing process in any sexual interaction and may be withdrawn at any time during a sexual interaction. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never, by itself, be assumed to be an indicator of consent.
The absence of consent is presumed, but may be rebutted, when there is a difference in power or authority (either due to differences in physical strength, or differences in real or perceived authority).
If you have sexual activity with someone you know to be – or should know to be – asleep, mentally or physically incapacitated (by alcohol or other drug use), unconscious or passed out, you are in violation of university policy. Incapacitation is a state where one cannot make a rational, reasonable decision because he or she lacks the ability to understand the who, what, when, where, why or how of the sexual interaction. It is not a valid excuse if you knew, or reasonably should have known, that the other person with whom you are engaging is sexual activity was unable to communicate due to a mental or physical condition. Similarly, if you are too intoxicated to recognize that you did not have affirmative consent, your intoxication does not diminish your responsibility for an act of sexual misconduct. Also, if you were reckless in believing that the complainant consented to the sexual activity, but s/he did not, or if you did not take reasonable steps, in the circumstances known to you at the time, to ascertain whether the other individual consented to the sexual activity, then you are in violation of university policy on sexual assault.
At USC, sexual assault is defined as any physical sexual act (including, but not limited to, actual or attempted intercourse, sexual contact, penetration using a body part or object, fondling, or groping) perpetrated upon a person:
- Without their affirmative, conscious and voluntary consent, or where consent is not freely given;
- Where the assailant uses physical force, threat, coercion or intimidation to overpower or control another; or where the person assaulted fears that he or she, or another person, will be injured or otherwise harmed if he or she does not submit; or
- Where the ability to give or withhold consent is impaired due to the influence of alcohol or other drugs, or due to age or mental incapacity, or because of unconsciousness or blackout.
Sexual activity and behavior which is not consensual is defined as sexual misconduct whether the assailant is a stranger or an acquaintance of the complainant.