Effective Consent

RISD expects its students to conduct themselves with awareness of their membership in a community engaged in the mutual pursuit of academic and artistic excellence and social responsibility – and therefore to comply not only with basic legal requirements, but also with additional, higher standards that enable and promote that pursuit. See a complete description of our Code of Conduct.

Consent

Consent is ultimately about respecting another’s autonomy to make choices about their own body, their own boundaries, and their own behavior. The fundamental purpose of the College’s Title IX and Sexual misconduct policy is to reinforce the expectation that individuals give and receive this respect in the context of their sexual interactions.

Given the importance of sexual autonomy and the potential impact on those subjected to nonconsensual sexual activity, the College places the responsibility for obtaining effective consent on the person who initiates the sexual activity. That responsibility is significant.

The College recognizes that there are a wide variety of sexual interactions, that there is no single way to communicate consent, and that context matters. At all times, each party is free to choose where, when, and how they participate in sexual activity. Accordingly, when evaluating whether sexual activity was consensual, the College will consider the entirety of the sexual interaction and the relevant circumstances.

Consent, as it relates to various forms of sexual misconduct, may fall outside the scope of the federal definition of Title IX, but will still fall under RISD’s Sexual Misconduct Policy.

Effective consent is: conscious, informed, voluntary words or actions, that give permission for specific sexual activity.

• informed;
• freely and voluntarily given;
• mutually understandable words or actions which indicate a willingness to participate in mutually agreed upon sexual activity.

Further:

By definition, effective consent cannot be obtained by unreasonable pressure, which can generally be understood as conduct that pressures another person to “give in” to sexual activity rather than to choose freely to participate; factors that may be considered include (1) the frequency, nature, duration, and intensity of the requests for sexual activity; (2) whether and how previous requests were denied; and (3) whether the person initiating the sexual activity held a position of power over the other person;

• emotional intimidation, which can include (A) overtly degrading, humiliating, and shaming someone for not participating in sexual activity; (B) blackmail; and (C) threats to reputation; physical intimidation and threats, which can be communicated by words, conduct, and/or physical force.

Effective consent cannot be obtained from someone who is incapable of giving consent for any reason, including, but not limited to when:

• the person has a mental, intellectual, or physical disability that causes the person to be temporarily or permanently unable to give consent;
• the person is under the legal age to give consent (in Rhode Island, those under the age of 16); or
• the person is asleep, unconscious, physically helpless or, for any other reason, is physically unable to communicate an unwillingness to engage in an act, or otherwise incapacitated, including by alcohol or other drugs.

An individual violates this policy if the individual initiates and engages in sexual activity with someone who is incapacitated, and (1) the individual knew the other person was incapacitated, or (2) a reasonable person, under similar circumstances as the person initiating the sexual activity, would have known the other person was incapacitated.

For purposes of this policy, silence and passivity are not indicative of consent.

There is no requirement that a person express non-consent or that they resist a sexual advance or request. For example, someone might not consent to sexual activity even though they do not say “no” or physically resist in any way. Physical or verbal resistance is evidence that there was not effective consent but the absence of physical or verbal resistance is also no indication that there is effective consent.

Some behaviors and statements do not indicate consent, including but not limited to the following:

• “I don’t know;”
• “Maybe;”
• Without more, ambiguous responses such as: “uh huh” or “mm hmm,” and/or giggling;
• A verbal “no,” even if it may sound indecisive or insincere;
• Moving away.

A factor that may be considered when evaluating consent is whether, under similar circumstances, as the person initiating the sexual activity, a reasonable person would have concluded that there was effective consent.

It is important for those who initiate sexual activity to understand that:

• even though someone gave effective consent to sexual activity in the past, that does not mean they have given effective consent to sexual activity in the future;
• even though someone gives effective consent to one type of sexual activity during a sexual interaction, that does not automatically mean they have given effective consent to other types of sexual activity;
• effective consent can be withdrawn at any time, and once a person withdraws effective consent, the other person must stop.

Effective consent is clearest when obtained through direct communication about the decision to engage in specific sexual activity. Effective consent need not be verbal, but verbal communication is the most reliable and effective way to seek, assess, and obtain consent. Nonverbal communication can be ambiguous. For example, heavy breathing or moaning can be a sign of arousal, but it can also be a sign of distress. Talking with sexual partners about desires, intentions, boundaries, and limits can be uncomfortable, but it serves as a strong foundation for respectful, healthy, positive, and safe intimate relationships.