An action is “without that person’s consent” when it is inflicted upon a person who has not freely and actively given consent. ‘Consent’ is an understandable exchange of affirmative actions or words which indicate an active, knowing and voluntary agreement to engage in mutually agreed upon sexual activity. Consent is not freely given when it is in response to force or threat of force or when a person is incapacitated by the (voluntary or involuntary) use of drugs or alcohol or when the person is otherwise physically helpless and the person performing the act knows or should reasonably know that the other person is incapacitated or otherwise physically helpless. A person is not required to physically resist sexual conduct in order to show lack of consent. Past consent for sexual activity does not imply ongoing future consent.
- Consent is ongoing and continuous.
- Sexual activity without consent is sexual assault or rape.
Consent must be willing. The decision to have any type of sexual behavior must be free of force. Both partners must be free to make their own decision and have the option of whether or not to be intimate. Force can be either physical or emotional. Examples of physical force include kidnapping, using weapons, holding someone down or taking advantage of someone when they are incapacitated due to drug or alcohol use. Examples of emotional force include threats, peer pressure, blackmail, guilt or coercion.
- An individual who is incapacitated is unable to give consent to sexual contact. States of incapacitation include sleep, unconsciousness, intermittent consciousness, or any other state where the individual is unaware that sexual contact is occurring. Incapacitation may also exist because of a mental or developmental disability that impairs the ability to consent to sexual contact.
- Consent can only happen when everyone participating is of legal age to consent to sexual activity. The age of consent in North Carolina is 16 years old.
Alcohol & Drugs
Alcohol use is a significant factor in sexual misconduct. Studies have shown that 95% of campus sexual assaults involved the use of alcohol either by the perpetrator, the survivor or both. In North Carolina, someone must consent to sexual activity. Sexual assault is never the fault of the victim, regardless of whether they were using drugs or alcohol (voluntarily or against their will). Use of alcohol or drugs by the perpetrator is no excuse for their actions.
Why does alcohol/drug use increase risk of sexual assault?
- Perpetrators may use drinking as an excuse to engage in sexually aggressive behaviors, ignore boundaries, or use alcohol and drugs as a coercive tactic to obtain sex.
- Alcohol/drugs may result in increased misperceptions of sexual interest, decreased concern about others experience, or decreased ability to evaluate whether consent has been given.
- Intoxication can make a person less able to resist an assault---especially if they are passed out or unconscious.
- Intoxication impairs a person’s judgment and limits their ability to communicate boundaries clearly.
Alcohol or drug use is one of the prime causes of incapacitation. Where alcohol or drug use is involved, incapacitation is a state beyond intoxication, impairment in judgment or “drunkenness.” Because the impact of alcohol or other drugs varies from person to person, evaluating whether an individual is incapacitated, and therefore unable to give consent, requires an assessment of whether the consumption of alcohol or other drugs has rendered the individual physically helpless or substantially incapable of:
- Making decisions about the potential consequences of Sexual Contact;
- Appraising the nature of one’s own conduct;
- Communicating Consent to Sexual Contact; or
- Communicating unwillingness to engage in Sexual Contact.
Where an individual’s level of impairment does not rise to Incapacitation, it is still necessary to evaluate the impact of intoxication on Consent. In evaluating whether Consent was sought or given, the following factors may be relevant:
- A person’s level of intoxication is not always demonstrated by objective signs; however, some signs of intoxication may include clumsiness, difficulty walking, poor judgment, difficulty concentrating, slurred speech, vomiting, combativeness, or emotional volatility.
- An individual’s level of intoxication may change over a period of time based on a variety of subjective factors, including the amount of substance intake, speed of intake, body mass and metabolism.
No matter the level of an individual’s intoxication, if that individual has not affirmatively agreed to engage in sexual contact, there is no consent.
Anyone engaging in sexual contact must be aware of both their own and the other person’s level of intoxication and capacity to give consent. The use of alcohol or other drugs can lower inhibitions and create an atmosphere of confusion about whether Consent is effectively sought and freely given. If there is any doubt as to the level or extent of one’s own or the other individual’s intoxication or Incapacitation, the safest course of action is to forgo or cease any Sexual Contact. A Responding Party’s intoxication is never an excuse for or a defense to committing Sexual or Gender-Based Harassment, Sexual Assault or Sexual Violence, or Interpersonal Violence, and it does not diminish one’s responsibility to obtain Consent.