Demonstrating the presence or absence of consent to sexual conduct is the most crucial aspect of a Sexual Violence grievance under Title IX. Providing evidence of consent is a complex process, and without the benefit of an experienced advisor, many students fail to show sufficient evidence of consent or lack of consent to prevail in the grievance process.
The U.S. Department of Education defines Sexual Violence as “sexual acts perpetrated against a person’s will or where a person is incapable of giving consent–due to age, intoxication or drug use, or due to an intellectual or other disability.” Schools, colleges, and universities must investigate accusations of sexual violence and take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.
in 2014, California became the first state to enact a law requiring proof of affirmative consent in all sexual violence investigations by postsecondary institutions.
Consent is required for every individual intimate act: When a Sexual Violence grievance involves a sexual encounter where there was a series of intimate acts, the accused student must demonstrate evidence of consent for every intimate act involved, not just for the encounter as a whole. For example, the California State University (CSU) Sexual Violence Policy contains a definition similar to that used by most schools:
“Consent can be withdrawn or revoked. Consent to one form of sexual activity (or one sexual act) does not constitute consent to other forms of sexual activity (or other sexual acts). Consent to sexual activity given on one occasion does not constitute consent to sexual activity on another occasion. The fact that two people are or were in a dating or sexual relationship does not constitute consent to engage in sexual activity. There must always be mutual and affirmative consent to engage in sexual activity. Consent to a sexual act may be withdrawn or revoked at any time, including after penetration.”
Current trends in student lifestyles such as binge drinking, access to marijuana, and hookup culture add complications to determining the existence of consent in ambiguous circumstances. Students using location-based meetup applications may have intimate encounters with others after very little personal interaction, under circumstances where the extent of intoxication is unclear and consent may have been inappropriately assumed. Assessing the reasonableness of the respondent’s belief in consent under such circumstances can be difficult.
Evidence of Consent or Lack of Consent: Evidence of consent may involve an explicit verbal statement of consent or may be shown through a person’s behavior. Students often have difficulty describing sexual acts to school administrators in a manner that demonstrates the presence or absence of consent. An effective and experienced advisor can assist the student with identifying specific evidence of where consent was or wasn’t given, helping the student clearly express and document these examples, and overcoming the embarrassment or fear of describing sexual or violent conduct in a manner that demonstrates the presence or absence of consent.
Intoxication and Ineffective Consent: Intoxication and drug use can make consent ineffective. Unlike drunk driving, there is no official blood-alcohol level at which a person is deemed unable to give consent. Colleges may vary widely in their perceptions what degree of intoxication is sufficient to make consent ineffective. Combinations of alcohol and drugs are often difficult to assess.
Usually descriptions of intoxication symptoms and drinking/drug use patterns are the only evidence available. This evidence can be unreliable, leading to difficulties in interpreting the witness or party’s level of intoxication. The more specific the information, the more helpful it can be in demonstrating the presence or absence of significant intoxication. The student or others who observed the student should also be able to describe the effects or evidence of intoxication, such as slurred speech, poor coordination, throwing up, or loss of consciousness. Such symptoms can imply the actual level of intoxication.
Intoxication is not always obvious to others. Students often “pregame” or drink alcohol privately before attending a party, either because the student is underaged and won’t be served at the event, or to save money on drink purchases later. Young people who have a strong constitution may not exhibit the full extent of their intoxication.
An experienced advisor can help a student to articulate a narrative showing the extent to which both intoxication and consent were involved in the accusation. Poor explanations by students who are traumatized or embarrassed by the situation or by having to explain it cannot meet the evidentiary standards needed to prevail. The ability to present this evidence and provide documentation is essential in sexual violence grievances.