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Consent
Consent to sexual activity is informed, knowing, voluntarily and freely given permission to engage in mutually agreed upon sexual activity. The University will apply a reasonable person standard in determining whether or not consent was given, unless otherwise required by law.
The person giving consent must be capable of doing so freely, with the ability to understand what they are doing and the specific details (who, what, when, where, and how) of the sexual contact they are consenting to.
Consent may be given by words or actions, as long as those words or actions create mutually understandable permission regarding the conditions of sexual activity.
It is the obligation of the person initiating sexual contact to obtain clear consent for the specific type of sexual contact sought.
Lack of protest does not constitute consent. Silence or passivity without words or actions that communicate mutually understandable permission cannot be assumed to convey consent.
Use of violence, threats, coercion or intimidation invalidates any consent given.
Consent for one form of sexual contact does not imply consent to other forms. For example: consent to vaginal sex does not imply consent to oral sex; consent to vaginal sex does not imply consent to anal sex.
Past consent does not constitute consent for future sexual activity.
Persons who are unable to give valid consent under New Jersey law, (i.e. minors, individuals with mental health disabilities) are considered unable to give consent under NJ State Policy N.J.S.A.2C:4-2.
Consent cannot be given by a person who is unconscious or sleeping. If consent has been given while a person is conscious or awake, and then that person becomes unconscious or falls asleep, consent terminates at that point.
Persons who are incapacitated due to the use of drugs or alcohol cannot give consent.
Consent to bodily harm. When conduct constitutes a violation of this policy because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if: (1) the bodily harm consented to or threatened by the conduct is not serious, or (2) the conduct and the harm are reasonably foreseeable hazards of joint participation in a concerted activity of a kind not forbidden by law.
Incapacitation
Incapacitation is the physical and/or mental inability to make informed, rational judgements and decisions. States of incapacitation include sleep, unconsciousness, and blackouts. Where alcohol or drugs are involved, incapacitation is determined by how the substance impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgements.
In evaluating whether a person was incapacitated for purposes of evaluating effective consent, the University considers two questions:
Did the person initiating sexual activity know that their partner was incapacitated? And if not,
Should a sober, reasonable person in the same situation have known that their partner was incapacitated?
If the answer to either of these questions is “yes,” effective consent was absent.
For purposes of this policy, incapacitation is a state beyond drunkenness or intoxication. A person is not incapacitated merely because they have been drinking or using drugs. The standard for incapacitation does not turn on technical or medical definitions, but instead focuses on whether a person has the physical and/or mental ability to make informed, rational judgments and decisions.
A person who initiates sexual activity must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?”, “Do you know how you got here?”, “Do you know what is happening?”, “Do you know whom you are with?”
Because the impact of alcohol and other drugs varies from person to person, one should be cautious before engaging in sexual contact or intercourse when either party has been drinking alcohol or using other drugs. The introduction of alcohol or other drugs may create ambiguity for either party as to whether effective consent has been sought or given. If one has doubt about either party’s level of intoxication, the safe thing to do is to forgo all sexual activity.
IX. REPORTING OPTIONS
Students who experience sexual misconduct and those who have knowledge of sexual misconduct or harassment are strongly encouraged to report this information as soon as possible. Prompt reporting of incidents greatly improves the ability of the University and law enforcement to provide support resources to students and to address the violations effectively. Although there is no time limit for reporting sexual harassment or misconduct offences, delays in reporting may reduce the ability of the University and law enforcement to investigate and respond to incidents. After an incident of sexual assault and domestic violence, the student should consider seeking medical attention as soon as possible. In New Jersey, evidence may be collected even if you chose not to make a report to law enforcement.
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