The University’s definition of consent is different from the State of Delaware’s definition of “without consent” contained in 11 Del. C.§761(j). Members of the University community should be aware of the University’s definition of consent and understand this is the definition that will be used in any proceedings pursuant to UD’s policy:
Consent is an affirmative decision to engage willingly in mutually acceptable sexual activity given by clear words or actions. It is an informed decision made freely and actively by all involved parties. In order for a sexual encounter to be consensual, each participant must agree to engage in each act of the encounter. All participants should make clear their willingness or lack of willingness to continue at each progression of the sexual interaction and should not make assumptions about consent during the sexual activity, as confusion or ambiguity may arise.
Consent may not be inferred from silence, passivity, lack of resistance or lack of active response alone. Consent to one form of sexual activity does not imply consent to other forms of sexual activity. Nor does a current or previous dating or sexual relationship constitute consent to sexual activity in every instance.
Either party may withdraw consent at any time during the sexual encounter. Once withdrawal of consent has been expressed by words or actions that indicate a clear desire to end sexual activity, all sexual activity must cease immediately.
Sexual conduct will be considered “without consent” if no clear consent,verbal or non-verbal, is given. This includes situations in which an individual’s ability to consent freely is taken away by another person or circumstance. Examples may include, but are not limited to, when an individual is incapacitated due to alcohol or drugs, passed out, fearful for the individual’s safety or the safety of others, physically forced, intimidated, coerced, mentally or physically impaired, threatened, or confined.
The use of alcohol or drugs can limit a person’s ability to give consent freely and clearly. Alcohol and other drugs can lower inhibitions and create an atmosphere of confusion over whether or not consent has been freely and clearly given. The perspective of a reasonable person evaluating another person’s physical or verbal functions will be the basis for determining whether one should have known that the use of alcohol or drugs impaired that person’s ability to give consent. Being intoxicated or impaired by alcohol or drugs does not diminish one’s responsibility to obtain consent and is never an excuse for sexual misconduct.
How do you Ask for Consent?
A heavily intoxicated person cannot give consent. Having sex with someone who is “out of it” is rape. Protect yourself and your partner. Be sure you clearly ask for consent and only proceed if your partner says “yes” and seems into it!
Ways to Ask for Consent:
- Can I kiss you?
- May I hold your hand?
- How far are you comfortable going?
- Do you want to have sex?
- Have you ever done…?
- Would you like to try it with me?
- Do you want to go further?
Verbal Signals that indicate “slow down” and possibly “no”:
- I’m not sure if I’m ready.
- I don’t know if I want to.
- I think I’ve had too much to drink.
- Whoa, this is moving too fast.
- I don’t feel right.
- I’m scared.
Ways to check things out if your partner seems hesitant:
- What would you like to do right now?
- Is this ok?
- Are you ok?
- Do you want to stop?
- You seem quiet. Are you sure?
- Is there anything you don’t want to do?
- Are you comfortable right now?
Non-verbal expressions of “no”:
- Lack of eye contact
- Discomfort, being “antsy”, turning away from you
- Crossing arms or holding arms tight to the body
- Freezing, not responding to you physically
- Pushing you away
- Trying to curl into a ball
- Stiffening muscles