College Sexual Consent Laws

Unfortunately, about 13 percent of all college students experience rape or sexual assault. This statistic is according to the Rape, Abuse & Incest National Network. Sexual assault means making sexual contact with another without the other person's consent.

If someone is unconscious or heavily intoxicated, they lack capacity and cannot give affirmative consent. Criminal charges of sexual assault generally hinge on whether the accused received consent. It also hinges on whether the alleged victim had the ability to give such consent. It's crucial that the concept of sexual consent is clearly spelled out.

This article covers the growing body of college consent laws. It also discusses the regulations addressing sexual assault on college campuses and making such crimes easier to prosecute when they do occur. College consent laws and regulations typically include an educational outreach component as well. See FindLaw's Sex Crimes section for more resources.

What Is Sexual Consent?

Sexual consent means that both people in a situation agree to a sexual activity. It's a clear “yes" from everyone involved. Consent is always given freely, without anyone being forced or pressured. Understand that because someone says yes once, it doesn't mean they're saying yes to everything forever. People can change their minds. This can even happen halfway through the act. The other party must then assume that their consent is revoked.

Certain principles ground sexual consent laws. They stem from the idea that every individual has the right to decide what happens to their own body. These laws aim to protect people from unfair treatment or discrimination on the basis of sex.

Pursuing sexual activity without consent is sexual assault. You cannot assume consent from silence. It also can't be inferred by an existing dating relationship, marriage, body language, or appearance. Consent happens through a clear and affirmative gesture.

It is crucial to understand the idea of consent, especially on college campuses. Everyone needs to know when it's okay to move forward and when to stop. The key is clear communication and respect.

Federal Law: Title IX of the Education Amendments

Title IX of the Education Amendments of 1972 is a key part of civil rights laws in the United States. It says no student should face sex discrimination in educational programs. This includes any educational program that receives federal funding. That means colleges, or what we often call institutions of higher education, have to make sure they treat everyone fairly. This is regardless of their gender.

Sexual misconduct, including sexual harassment and campus sexual assault, falls under Title IX. Schools must have good campus policies to handle these issues. They also need a person called a Title IX Coordinator. This person ensures the schools are implementing Title IX correctly. They also help students who report problems like sex discrimination.

The Campus Sexual Violence Act and The Clery Act

The Campus Sexual Violence Act (SaVE Act) was signed into law in 2013. It was part of the Violence Against Women Reauthorization Act (VAWA). The SaVE Act requires all colleges and universities to adopt certain policies. These policies address sexual assault on college campuses.

The policies also include specific disciplinary procedures and broader reporting of sexual crimes. They also include comprehensive prevention and awareness education. Any sexual assault campus training program must include the legal definition of consent. Preferably, they should also include examples of its practical application.

Another important rule is the Clery Act. This law is about campus safety. Schools must tell everyone about crimes that happen on campus. This includes reports about sexual assault, domestic violence, and dating violence.

State Law: California Sets the Standard

The state of California is a leader when it comes to laws about sexual consent in colleges. California became the first state to pass legislation mandating certain rules and procedures specifically addressing sexual assault on college campuses. They went above and beyond the SaVE Act. An important requirement of this law is the adoption of a comprehensive policy that addresses the meaning of affirmative consent. Affirmative consent is defined as follows:

• "Affirmative consent" means affirmative, conscious, and voluntary agreement to engage in sexual activity.
• It is the responsibility of each person involved in the sexual activity to ensure that they have the affirmative consent of the other or others to engage in the sexual activity.
• Lack of protest or resistance does not mean consent, nor does silence mean consent.
• Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.
• The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

The law in California is strict for a reason. They want to ensure students are safe and there is no confusion over what's okay and what's not. Colleges in the state must follow these rules if they want state funding. Many other states looked to California as an example when making their own rules.

Examples of College Consent Guidelines

Colleges often have their own guidelines about sexual consent. For example, some schools might use the phrase “yes means yes" to explain the idea of active agreement. Others might have workshops or classes where students learn about consent and how to communicate with partners.

Another common guideline is the idea that silence or a lack of response isn't consent. Colleges want to be clear to prevent these misunderstandings. They use these guidelines to teach students about healthy relationships and boundaries.

Institutions in other states are free to draft their own policies. While they tend to be quite similar in scope, there also are subtle differences among the different schools. The following excerpts from college handbooks and policy statements represent a sampling of how schools define sexual consent:

• University of Minnesota — "Affirmative consent is defined as informed, freely and affirmatively words or actions given by an informed individual that a sober reasonable person under the circumstances would believe communicate a willingness to participate in the sexual contact."
• Northwestern University — "When determining whether consent was present, the University will consider whether a sober, reasonable person in the same position should have known whether the other party could or could not consent to the sexual activity."
• University of Georgia — "Consent is a voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest, and verbal agreement."

States like New York have also added more statewide protections for students. They've created a new law with an “affirmative consent standard." This means both people must clearly say yes before getting intimate. If not, it's a violation of the consent policy.

Sexual assault is a serious and all-too-common crime. While most states do not yet have sexual consent laws specifically targeting college students, engaging in sexual activity without the other party's consent is a criminal act in all jurisdictions. Contact the police immediately if you believe you are the victim of sexual assault. Call a criminal defense attorney if you have been accused of such a crime.

Who Helps Enforce These Laws?

The Office for Civil Rights (OCR) under the U.S. Department of Education keeps an eye on schools. They help ensure schools follow rules like Title IX. They can take action if a school isn't completing its duties. OCR works with Title IX to ensure no student faces sex discrimination. Their goal is to make campuses safe and fair for everyone.

Local law enforcement, like the police, also plays a role. They handle crimes that happen on campus, including sexual assault cases. If a student reports an incident of sexual assault, the police are to investigate and take action. It's a combined effort with schools to ensure the safety and rights of every student.

Due Process in Sexual Consent Cases

Due process is another essential part of these laws. It ensures that when someone reports a violation of sexual consent, both the complainant and the accused have fair rights during any investigation or trial. This process ensures everyone is treated justly and their rights are protected. Due process is a foundational principle in the American legal system.

It's also crucial that decisions are made based on clear preponderance of the evidence. Sometimes, this can be tough because of the sensitive nature of these cases. However, due process ensures that emotions don't cloud judgments and decisions stand on firm legal ground.

Getting Legal Help With Consent Laws

Sometimes, students might feel the need for extra protection or guidance. In these cases, getting legal help can be a smart choice. There are lawyers who specialize in laws like Title IX and other civil rights laws. They know the ins and outs of the rules and can help students understand their rights.

If someone thinks their school isn't handling their complaint correctly, a lawyer can step in. They'll help with advocacy for the student to get fair treatment and ensure that the school follows the law. Many times, there are also legal organizations or hotlines that can guide students to affordable or free legal resources.

Talk to an education lawyer about your legal issue today.