According to guidance provided by the White House:
- Consent to sexual activity must be informed, voluntary, and mutual.
- It can be withdrawn at any time.
- There's no consent when there is force, expressed or implied, or when coercion, intimidation, threats, or duress is used.
- Whether a person has taken advantage of a position of influence over another person may be a factor in determining consent.
- Silence or absence of resistance does not imply consent.
- Past consent to sexual activity with another person does not imply ongoing future consent with that person or consent to that same sexual activity with another person.
- There is no consent if a person is mentally or physically incapacitated or impaired such that the person cannot understand the fact, nature, or extent of the sexual situation (consent cannot be given if the person is impaired by alcohol, drugs, is asleep or unconscious).
Title IX cases are supposed to hinge on consent, but they often don't.
A key element in a rape or sexual assault case is the lack of consent. Forcing sex against a person's will is rape, but evidence of alcohol impairment alone, for example, may not be enough to support the criminal charge of rape.
Not so in Title IX cases. The presence of alcohol during a sexual encounter - quite common on college campuses - can be enough to spark a Title IX investigation and ultimately lead to a student's dismissal and other serious consequences, without regard to the issue of consent.
Schools generally offer guidance on consent and sexual misconduct.
Duke University in Durham, for instance, explains its commitment to addressing sexual misconduct, in an effort to comply with the requirements of Title IX.
On consent, Duke offers this guidance:
- Consent is an informed decision made freely and actively by all parties. Relying solely upon nonverbal communication can lead to miscommunication. It is important not to make assumptions; if confusion or ambiguity on the issue of consent arises anytime during a sexual interaction, it is essential that each participant stops and clarifies, verbally, willingness to continue.
(Click here for a list of North Carolina schools and information on their sexual misconduct policies.)
Contact Roberts Law Group, PLLC
To discuss your options in a Title IX investigation, call 866-630-2389. We are located in Raleigh, North Carolina, and defend students throughout the state.
North Carolina vs. O.S.
Charge: First Degree Forcible Rape and First Degree Kidnapping
Facing: 26 - 33 years in prison
Case involved allegations of forcible rape at gun point. We were able to gather evidence to attack the accuser's credibility and discredit her story. The prosecution dismissed the charges.