What is affirmative consent?
CU Boulder has an affirmative consent standard. This means that consent for sexual activity must be clear, knowing, and voluntary. Consent must include words or actions that create mutually understandable, clear permission conveying acceptance of the conditions of the sexual activity and willingness to engage in the sexual activity.
- Consent must be clearly established through words or actions.
- A person who does not want to consent to sex is not required to resist.
- Consent to some forms of sexual activity does not imply consent to other sexual activities.
- Silence, previous sexual relationships, or the existence of a current relationship do not imply consent.
- Consent cannot be implied by how someone is dressed or inferred from the giving or acceptance of gifts, a ride, money, or other items.
- Consent can be withdrawn at any time during sexual activity and need not be a verbal withdrawal, as long as it is conveyed clearly.
- Under Colorado law, a person under the age of 15 cannot legally consent to sex with someone who is four or more years older than they are. A person who is 15 or 16 cannot legally consent to sex with someone who is more than 10 years older.
When is someone unable to consent?
Incapacitation is when a person is unable to give consent due to effects of alcohol or other drug use, or other factors such as sleep, illness, or disability.
Incapacitation is a state where a person cannot make a rational, reasonable decision because they lack the capacity to understand the who, what, when, where, why, or how of a sexual interaction. The use of alcohol or drugs, in and of itself, does not render a person incapacitated, nor is it a defense against an allegation of sexual misconduct. The impact of alcohol and/or drugs varies from person to person. Someone who is aware or should know that an individual is incapacitated and engages in sexual activity with that individual, is in violation of university policy.
Some signs of incapacitation that may indicate a person is unable to consent:
- Disorientation, which could include a person losing track of where they are or who they are with, being confused or unable to remember basic information, or repeating themselves (lack of short-term memory)
- Loss of motor control, which means a person may not be able to do basic things like insert a key in a lock, not be able to get something out of a wallet, not be able to dress or undress themselves, or walk on their own
- Unconsciousness, including being asleep or passed out