E (3). Effective Consent
MIT students who engage in sexual behavior of any kind are expected to do so only with the effective consent of all parties involved. Doing otherwise constitutes sexual misconduct and is a violation of this policy.
Consent is ultimately about respecting another’s autonomy to make choices about their own body, their own boundaries, and their own behavior. The fundamental purpose of the Institute’s sexual misconduct policy is to reinforce the expectation that individuals give and receive this respect in their sexual interactions.
Given the importance of sexual autonomy and the potential impact on those subjected to nonconsensual sexual activity, the Institute places the responsibility for obtaining effective consent on the person who initiates the sexual activity. That responsibility is significant.
The Institute recognizes that there are a wide variety of sexual interactions, that there is no single way to communicate consent, and that context matters. At all times, each party is free to choose where, when, and how they participate in sexual activity. Accordingly, when evaluating whether sexual activity was consensual, the Institute will consider the entirety of the sexual interaction and the relevant circumstances.
Effective Consent is:
• freely and voluntarily given;
• mutually understandable words or actions which indicate willing participation in mutually agreed upon sexual activity.
By definition, effective consent cannot be obtained by
- unreasonable pressure, which can generally be understood as conduct that pressures another person to “give in” to sexual activity rather than to choose freely to participate; factors that may be considered include (1) the frequency, nature, duration, and intensity of the requests for sexual activity; (2) whether and how previous requests were denied; and (3) whether the person initiating the sexual activity held a position of power over the other person;
- emotional intimidation, which can include (1) overtly degrading, humiliating, and shaming someone for not participating in sexual activity; (2) blackmail; and (3) threats to reputation;
- physical intimidation and threats, which can be communicated by words or conduct, and physical force.
Effective consent cannot be obtained from someone who is incapable of giving consent for any reason, including when:
- the person has a mental, intellectual, or physical disability that causes the person to be temporarily or permanently unable to give consent;
- the person is under the legal age to give consent;
- or the person is asleep, unconscious, physically helpless, or otherwise incapacitated, including by alcohol or other drugs.
An individual violates this policy if the individual initiates and engages in sexual activity with someone who is incapacitated, and (1) the individual knew the other person was incapacitated, or (2) a sober reasonable person under similar circumstances as the person initiating the sexual activity would have known the other person was incapacitated.
For purposes of this policy, silence and passivity do not signal consent.
There is no requirement that a person express non-consent or that they resist a sexual advance or request. For example, someone might not consent to sexual activity even though they do not say “no” or physically resist in any way. Physical or verbal resistance is evidence that there was not effective consent.
Some behaviors and statements do not indicate consent, including the following:
- “I don’t know.”
- Without more, ambiguous responses such as “uh huh” or “mm hmm,” and giggling.
- A verbal “no,” even if it may sound indecisive or insincere.
- Moving away.
A factor that may be considered when evaluating consent is whether, under similar circumstances as the person initiating the sexual activity, a sober reasonable person would have concluded that there was effective consent.
It is important for those who initiate sexual activity to understand that:
- even though someone gave effective consent to sexual activity in the past, that does not mean they have given effective consent to sexual activity in the future;
- even though someone gives effective consent to one type of sexual activity during a sexual interaction, that does not automatically mean they have given effective consent to other types of sexual activity;
- effective consent can be withdrawn at any time, and once a person withdraws effective consent, the other person must stop.
Effective consent is clearest when obtained through direct communication about the decision to engage in specific sexual activity. Effective consent need not be verbal, but verbal communication is the most reliable and effective way to seek, assess, and obtain consent. Nonverbal communication can be ambiguous. For example, heavy breathing or moaning can be a sign of arousal, but it can also be a sign of distress. Talking with sexual partners about desires, intentions, boundaries, and limits can be uncomfortable, but it serves as a strong foundation for respectful, healthy, positive, and safe intimate relationships.