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.