Consent & Sexual Misconduct

Defining Consent

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.

What Consent Is & Is Not

Consent IS…

  • An agreement made when both people want to engage in sexual activity
  • When both people can freely express their needs and wants without fear of their partner’s reaction
  • Mutual
  • Voluntary
  • Sober
  • Talked about before any sexual activity
  • Enthusiastic
  • Fun

Consent is not…

  • The absence of “no”
  • Implied or assumed, even in a relationship
  • Silence or not responding
  • When someone says “yes” because they feel pressured or afraid of how their partner would respond to “no”
  • “I’m not sure”
  • “I don’t know”
  • “I’m scared”
  • Consent for one act does not mean consent for all acts
  • Consent given once before does not mean always and everytime
  • Being passed out or sleeping does not equal consent

Getting Consent

How do you know if you have consent? ASK!!!

Some ways you can ask for consent:

  • I’d really like to hug / kiss / … you. Would you like to?
  • Do you like it when I do this?
  • Is it OK if I take off my shirt/top/bra/pants?
  • What would you like for me to do to you?
  • How does this make you feel?

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.

Incapacitation

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.


Defining Sexual Misconduct

Sexual misconduct is broadly defined as any sexual behavior that creates an uncomfortable, hostile working or learning environment. Sexual misconduct includes but is not limited to sexual harassment, sexual assault, sexual exploitation, stalking, interpersonal violence, and any unwanted verbal or physical sexual attention.

Sexual Violence & Assault

Sexual violence may constitute any unwanted sexual touch or attention. Examples include but are not limited to; groping, sexual harassment, stalking, attempted rape or rape. Sexual violence is never the fault of the victim.

Sexual violence may happen between people who know one another, people who don’t or even people who are dating or married. Survivors and perpetrators of sexual violence can be of any class, race, gender, sexual orientation or religion. Less severe forms of sexual violence, such as sexist jokes or name-calling, are often seen as benign. These behaviors condone and perpetuate more severe forms of sexual violence like rape. Any act of sexual assault is also a violation of UNC Asheville’s Student Code of Community Standards.

Sexual Harassment

Sexual harassment is any kind of repeated sexual attention in the workplace or in an educational setting that is unwanted by the person receiving the attention or by someone else witnessing it. Everyone has a right to be at their school or workplace without being harassed.

According to the UNC Asheville Sexual Harassment Policy, sexually harassing behaviors include unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature.

Conduct Constituting Sexual Harassment

  • Submission to such conduct is made either an explicit or implicit condition of employment or academic standing
  • Such conduct has the purpose or effect of creating an intimidating, hostile or offensive environment which unreasonably interferes with another’s work, academic performance or privacy
  • If the conduct is unwelcome and could be offensive to a reasonable person, then the conduct may constitute sexual harassment, even if it was not intended to be offensive.

Sexually harassing actions and behaviors can occur outside the workplace and classroom – such as on the street. Although these actions may be commonly called sexual harassment, the term has a more specific meaning that restricts it to work and educational settings.

  • Acts of sexual harassment and violence are a violation of the law and university policy.
  • Acts of sexual misconduct and sexual harassment jeopardize the health and welfare of our campus community and the larger community as a whole. Therefore, UNC Asheville stands strongly behind its prohibited conduct as related to sexual misconduct and sexual harassment.
  • All members of the university community must understand that sexual harassment, sexual discrimination and sexual exploitation of professional relationships violate the university’s policy and will not be tolerated.
  • Acts of sexual violence and harassment may also constitute criminal behavior that can be prosecuted under North Carolina law, as well as form the basis for discipline and other corrective action under employee disciplinary standards or the UNC Asheville Student Code of Community Standards.

Examples of Sexual Harassment

  • Repeated requests for dates and sex
  • Sexually-oriented humor or language
  • Kissing sounds, whistling, cat calls
  • Obscene phone calls
  • Comments about sexual likes/dislikes
  • Comments about sexual behavior
  • Leering or ogling
  • Repeated “love” letters
  • Sexually oriented electronic messages or images
  • Email/screen-savers/desktop “wall paper”
  • Intrusive touching including pats, hugs, squeezes, pinches, and/or brushing up against someone
  • Unwanted kissing
  • Unwanted fondling
  • Rape

University Policies