Sexual Assault and Consent

Sexual Assault and Consent

Understanding how UCF defines the specific terms of sexual assault is an important step for all members of UCF’s community.

Sexual Assault consists of sexual contact that occurs without consent.

Sexual Contact includes but is not limited to the following behaviors:

• touching, kissing, fondling (whether over or under clothing) of an individual for the purpose of sexual gratification; and/or
• contact, however slight, between the mouth, anus, or sex organ of one individual with either the anus or sex organ of another individual; and/or
• contact, however slight, between the anus or sex organ of one individual and any other object.

Consent is an understandable exchange of affirmative words or actions, which indicate a willingness to participate in mutually agreed upon sexual activity. Consent must be informed, freely and actively given. It is the responsibility of the initiator to obtain clear and affirmative responses at each stage of sexual involvement. Consent to one form of sexual activity does not imply consent to other forms of sexual activity. The lack of a negative response, lack of resistance or protest, and silence is not consent. An individual who is incapacitated by alcohol and/or other drugs both voluntarily or involuntarily consumed may not give consent. Past consent of sexual activity does not imply ongoing future consent.

In evaluating consent in cases of alleged incapacitation, the university asks two questions: (1) Did the person initiating sexual activity know that the other party was incapacitated? and if not, (2) Should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “YES,” Consent was absent and the conduct is likely a violation of university policy.

Consent cannot be given if any of the following are present: Force, Coercion or Incapacitation.

Force
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats) and/or coercion that overcomes resistance.

Coercion
Coercion is unreasonable pressure for sexual activity. Coercion is more than an effort to persuade, entice, or attract another person to have sex. Conduct does not constitute coercion unless it wrongfully impairs an individual’s freedom of will to choose whether to participate in the sexual activity.

Incapacitation
Incapacitation is a state where an individual cannot make rational, reasonable decisions because of mental or physical helplessness, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. A person may be incapacitated due to the consumption of alcohol or other drugs, or due to a temporary or permanent physical or mental health condition. A person who is incapacitated lacks the capacity to give Consent because they cannot understand the “who, what, when, where, why, or how” of their sexual interaction.

The University offers the following guidance on Consent and assessing Incapacitation:

A person who wants to engage in a specific sexual activity is responsible for obtaining consent for that activity. The lack of a negative response or protest does not constitute consent. Lack of resistance does not constitute consent. Silence and/or passivity also do not constitute consent. Relying solely on non-verbal communication before or during sexual activity can lead to misunderstanding and may result in a violation of UCF policy. It is important not to make assumptions about whether a potential partner is consenting. In order to avoid confusion or ambiguity, participants are encouraged to talk with one another before engaging in sexual activity. If confusion or ambiguity arises during sexual activity, participants are encouraged to stop and clarify a mutual willingness to continue that activity.

Consent to one form of sexual activity does not, by itself, constitute consent to another form of sexual activity. For example, one should not presume that consent to oral-genital contact constitutes consent to vaginal or anal penetration. Consent to sexual activity on a prior occasion does not, by itself, constitute consent to future sexual activity. In cases of prior relationships, the manner and nature of prior communications between the parties and the context of the relationship may have a bearing on the presence of consent.

Once consent has been given, it may be withdrawn at any time. An individual who seeks to withdraw consent must communicate, through clear words or actions, a decision to cease the sexual activity. Once consent is withdrawn, the sexual activity must cease immediately.

In evaluating consent in cases of alleged incapacitation, the university asks two questions: (1) Did the person initiating sexual activity know that the other party was incapacitated? and if not, (2) Should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “YES,” Consent was absent and the conduct is likely a violation of university policy.

A person may or may not be incapacitated as a result of drinking or using drugs. Alcohol-related or recreational drug-related incapacity results from a level of alcohol/drug ingestion that is more severe than minor impairment, being under the influence, drunkenness, or intoxication.  A person could be incapacitated due to other reasons which may include: sleep, prescribed or over the counter medication, mental, or physical disability.  The impact of alcohol and drugs varies from person to person.

A person seeking to initiate sexual activity is not expected to be a medical expert in assessing incapacitation. The potential initiator must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. Although every individual may manifest signs of incapacitation differently, evidence of incapacity may be detected from context clues, such as: 

• Slurred or incomprehensible speech;
• Bloodshot eyes;
• The smell of alcohol on their breath;
• Shaky equilibrium or unsteady gait;
• Vomiting;
• Incontinence;
• Combativeness or emotional volatility;
• Unusual behavior; and/or
• Unconsciousness.

Context clues are important in helping to determine incapacitation. These signs alone do not necessarily indicate incapacitation. A person who is incapacitated may not be able to understand some or all of the following questions:

• “Do you know where you are?”
• “Do you know how you got here?”
• “Do you know what is happening?”
• “Do you know who is here with you?”

One should be cautious before engaging in Sexual Contact or Sexual Intercourse when either party has been drinking alcohol or using other drugs. The introduction of alcohol or other drugs may create ambiguity for either party as to whether Consent has been sought or given. If one has doubt about either party’s level of intoxication, the safe thing to do is to forego all sexual activity.

Being impaired by alcohol or other drugs is no defense to any violation of university policy.