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Title IX & Student Conduct Code Blog

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What are Consent and Incapacitation?

Students who engage in sexual activity on or off campus must ensure that their partner consents according to legal standards. No one can give consent when they are incapacitated. Those rules are clear. Failure to abide by them leaves students open to Title IX complaints and potential criminal or civil liability.

What is not always as clear is when someone is incapacitated and when they have consented in compliance with the applicable legal standards. Often the smallest details can significantly impact a Title IX case, so complainants and respondents need to be diligent in collecting and preserving evidence to support their positions. 

Most Title IX cases are not cut-and-dried situations where someone obviously did or did not cross the legal boundary. The lines—like memories—are often blurred. That said, respondents and complainants need to take great care when addressing the issue of consent.

Look at the Definitions in School Policy Guidelines

The language of Title IX does not explicitly define consent. Likewise, the regulations clarifying obligations under Title IX do not specifically define consent. Instead, students should look to the language in their school’s policy manual or guidelines. The concepts expressed in each are similar, yet the language is often slightly different.

The definitions frequently provide both affirmative and negative descriptions. They tell you what consent is and explain situations where consent cannot be given legally. For instance, some school guidelines define consent as “knowing, voluntary, and clear permission by words or actions to engage in sexual activity.” Others define affirmative consent as “mutually understandable words and/or actions that clearly indicate a willingness to engage in a specific sexual activity.” These two definitions could be interpreted to mean essentially the same thing—or they could be interpreted differently. In a Title IX case, it is important to start by looking at the definition provided by the school.

Who Must Obtain or Prove Consent?

Some school guidelines specifically state that the student initiating sexual activity is responsible for obtaining consent. Other guidelines and policy manuals are silent on the subject. Either way, it can often be difficult to tell which partner initiated sexual activity because relationships and sexual encounters are complex, nuanced, and unique. Evidence of actions over the course of several hours could be relevant to determine who initiated sexual activity, and even then, the opinions of reasonable people could vary in making this determination.

In a criminal case, if someone is alleging sexual assault, the prosecution often must prove that the alleged victim did not consent to the activity complained of. However, in a Title IX case, the burden of proof rests with the person who was required to obtain consent—the person who initiated sexual activity.

Consent May Be Withdrawn

Another difficulty with determining consent in Title IX cases is ascertaining whether one party has withdrawn consent. Many school policies explicitly state that any party has the right to withdraw their consent at any time. Some policies continue on to explain that if a party has expressed a desire to withdraw consent, the activity at issue must immediately cease. 

However, these policies frequently do not define what it means to withdraw consent. For example, can actions alone be sufficient? If so, which actions? Again, the nuances of an encounter can make it difficult to determine when consent has been withdrawn, let alone prove that it occurred.

If one party withdraws consent but changes their mind, do they become the party initiating the sexual activity? Do they then need to obtain consent from the other party or does earlier consent carry over? Unfortunately, the answers to these questions are usually not as clear under published policy guidelines.

Consent Must Be Voluntary

One descriptive term most definitions of consent have in common is the word “voluntary” or a combination of words generally understood to mean that conduct is engaged in voluntarily. The school definitions then often explain when consent is not voluntary and therefore not valid.

Consent is not valid if it is obtained through:

  • Force  or threat of force
  • Intimidation
  • Coercion
  • Duress

Some policies state that when determining consent, decision-makers may consider whether one person has taken advantage of their position of influence over the other. For instance, they could decide that the captain of a team or the head of a club did not obtain legal consent from a student because that student was acting just to get in their good favor.

Consent Cannot Be Passive

Silence or lack of resistance cannot be used as evidence of consent. In fact, consent cannot be implied, even though it can be expressed nonverbally under many definitions. Generally, the fact that people are in a relationship or have had sex in the past cannot be used to imply consent to sexual activity in the future.

Some policies go so far as to specify that a student cannot infer consent based on someone’s attire or “money spent” on them. They also explain that consent must be specific and that consenting to one type of sexual activity does not constitute consent to other types of sexual activity.

Some People Are Not Capable of Giving Consent

In many Title IX cases, decision-makers must consider whether a complainant alleging sexual misconduct was capable of giving legal consent. Some policies flatly state that minors cannot consent to sexual activity. Other policies are silent on the issue, so it could be determined by state laws that apply to statutory rape.

It is generally accepted that someone with a certain degree of mental disability cannot give legal consent because they do not understand the nature of the activity to which they are consenting.

Someone who is incapacitated temporarily is also not capable of giving legal consent. But determining incapacity is an entirely different complex issue.

When is Someone Unable to Consent Due to Incapacitation?

When someone is asleep or unconscious, they are clearly incapacitated and unable to consent to sexual activity. But what about situations where someone is under the influence of alcohol, drugs, or medication for a medical condition? When does influence become incapacitation? And how well does the person initiating sexual activity need to understand the incapacitation situation?

The answer to the last question is that the actual understanding of the person initiating sexual activity is largely irrelevant. The standard under most policies is that they knew or should have known about the other person’s incapacity. Those who are too incapacitated to understand whether their partners are incapacitated are out of luck. They are still held accountable for their actions.

Defining Incapacity

Some school policies define incapacity in Title IX cases as a state where an individual is unable to appreciate the sexual nature of a situation or the extent of the situation. Others define it more broadly to include all situations where a person lacks the mental or physical ability to make informed, rational decisions.

Because people reach a state of incapacity at different points due to varying causes, ascertaining incapacity is generally subjective. To further complicate matters, a person may begin sexual activity in a condition where they are legally able to give consent, but during the course of the activity, their condition could progress to the point where they become incapacitated and lose the ability to consent,

Alcohol and Drugs

School policies often acknowledge that using drugs or alcohol does not necessarily make someone incapacitated and remove their ability to give legal consent to sexual activity. In fact, some school guidelines specifically state that intoxication does not automatically render someone incapacitated for consent purposes.

Beyond this, definitions of incapacity get a little vague when drug or alcohol use is involved. Some school guidelines will provide examples of signs that indicate that someone may be incapacitated, such as:

  • Slurred speech
  • Vomiting
  • Unsteady gait or uncontrolled physical movements
  • Demonstrating a lack of awareness of where they were or how they got there

This last example seems to indicate that a blackout/lack of memory episode could be evidence of incapacitation. Still, some school policies specifically state that a memory lapse alone is not evidence of incapacitation.

Evidence is Crucial in a Title IX Case Involving Consent and Incapacitation

The proliferation of date rape cases caused lawmakers and school policymakers to set increasingly tight restrictions around permissible conduct for students engaging in sexual activities. But whether a student is filing a complaint of Title IX sexual assault or responding to allegations of misconduct, evidence is critical to support their position. Legal guidance can make a tremendous difference in both the outcome and the procedural experience during a Title IX case.

The experienced team at Duffy Law values the protections provided by Title IX when students suffer from wrongdoing, but we also understand the importance of protecting the rights of those wrongfully accused. We help students and their families prepare for Title IX proceedings to protect rights and opportunities—and peace of mind—both now and in the future. For a confidential consultation to learn how we could assist in your case, contact us at any time.  

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.