The Policy Against Sex Discrimination defines "consent", "incapacitation" and "coercion"
Sexual assault occurs when a person makes sexual contact with another person without that second person's consent. People are unable to give consent, when it is sought, if they are incapcitated by alcohol, drugs or another reason. A person who is incapacitated might appear to give consent, if it is sought, but, if that person was incapcitated, their apparant conent may not be effective, and any sexual contact that occurred may be deemed nonconsensual. Coercion is a type of conduct that can render a person's apparent consent ineffective. Coercion can occur if a person incessantly badgers another person to give consent to engage in sexual activity, threatens the person from whom consent is sought ("I will send naked photos of you to all of your contacts if you do not have sex with me") or brandishes a weapon to force a person to give consent.
Consent
Consent is knowing, voluntary, and clear permission by word or action to engage in sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of every person to continually determine that the other has consented prior to engaging in sexual activity.
If consent is not clearly provided prior to engaging in sexual activity, consent may be ratified by word or action during the interaction or after it, but clear communication from the outset is strongly encouraged.
Consent requires a clear expression by words or actions that a person has consented to specific sexual conduct with another person. Reasonable reciprocation can be implied. For example, if one person kisses another, that person may kiss the first person back, if desired, without the need to explicitly obtain consent to being kissed back.
Consent may be withdrawn at any time after consent is given by clearly communicating that withdrawal in a manner which a reasonable person would understand as a withdrawal of consent. Sexual activity should cease immediately following the withdrawal of consent.
Consent to some sexual contact (such as kissing or fondling) is not consent for other sexual activity (such as intercourse). The existence of a current or previous sexual relationship does not constitute consent for sexual activity.
When a person reports that another violated this Policy by engaging in sexual activity without consent, no Policy violation is established unless and until a decisionmaker finds by a preponderance of the evidence that the sexual activity occurred without consent or the respondent accepts responsibility. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the relationship between the persons involved and the context in which the alleged incident occurred.
Consent is absent if a person’s ability to resist or give consent is incapacitated because of mental illness, physical condition, the influence of drugs or alcohol, and/or a significant age or perceived power or authority differential between the people involved in the sexual interaction.
Incapacitation
Incapacitation occurs when a person cannot make rational, reasonable decisions to consent to sexual activity. A person is incapacitated when they are not able to understand the “who, what, when, where, why or how” of the sexual interaction. Whether a person is incapacitated is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the relationship between the parties and the context in which the alleged incident occurred. Incapacity may result from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs, alcohol, and other substances.
It is a defense to an alleged Policy violation that the person accused neither knew nor had reason to know that the person reporting the sexual harassment was physically or mentally incapacitated, and unable to consent. It is not an excuse that the person accused of the alleged conduct was intoxicated and, therefore, did not realize that the person reporting the sexual harassment was incapacitated, and unable to consent. The question of whether the respondent should have known of the incapacity of the complainant is an objective question about what a reasonable person, exercising sober, good judgment, would have known in the same or similar circumstances.
Coercion
Coercion is unreasonable pressure for sexual activity.
Badgering a person to engage in sexual activity can, in some circumstances, become coercive. Once someone makes clear that they do not want to engage in sexual activity, that they want to stop engaging in sexual activity, or that they do not want to go past a certain point of sexual activity, continued pressure beyond that point can be coercive.
Power relationships, where a person has authority or power over another, may become coercive. Because of the asymmetry of these relationships, “consent” may be difficult to assess, may be deemed not possible, and may be construed as coercive. Such relationships have the potential to result in claims of sexual harassment. For more information, see the Relationship Management Policy at http://www.case.edu/equity.
Relationships involving a power imbalance between the persons in the relationship may render "consent" ineffective
Case Western Reserve University values learning and working environments of inclusion, trust, and respect. Due to intimacy and/or power imbalance, certain personal relationships between members of the CWRU community may create actual or perceived inequities, exploitation, or favoritism, all of which are detrimental to the university learning and working environment. As a result of the power imbalance in a relationship, the apparent "consent" to sexual activity given by the person without the power or authority, may mean that "consent" is ineffective and is the result of coercion.
Power imbalanced relationships may involve the following:
- Academic power: A person may have academic power over another through teaching, grading, advising, evaluating, supervising or collaborating on research, serving on a dissertation or other academic committee, overseeing academic progress and/or funding, when that person can impact or is reasonably perceived by the university to be able to impact the academic progress or academic standing of the other person.
- Professional power: One person has the actual or perceived ability, because of position, title, rank, or professional standing to act (such as writing a letter of recommendation, recommending a person for a position, hiring or terminating the employment of a person) to benefit the other’s professional advancement or damage the other person’s professional potential or professional reputation
- Coercive power: One person in the relationship can use the threat of punishment to compel the other to perform certain actions or refrain from performing others.
- Reward power: A person with reward power can incentivize the other person in the relationship to perform a certain act or refrain from doing so in exchange for a benefit.
- Financial power: One person in the relationship controls the others’ access to sufficient housing, food, medical care and other basic needs.
To avoid power imbalanced relationships, the Relationship Management Policy prohibits relationships between undergraduate students and university employees. The Relationship Management Policy defines other prohibited relationships or relationships that require management, to avoid a power imbalance and/or situations in which apparent consent is not effective.