Guidance on Affirmative Consent & Incapacitation
Affirmative Consent is a knowing, voluntary and mutual decision among all participants to engage in sexual activity.
Consent can be given by words or actions that create clear permission to engage in the sexual activity.
- Silence or lack of resistance, in and of itself, does not create consent.
- Consent can be withdrawn at any time.
- When a person becomes incapacitated they cannot give consent.
- Consent to one sexual activity does not constitute consent to another act.
- Consent to sexual activity with one person does not create consent to a sexual activity with any other person.
- Consent in the past does not constitute consent on a later occasion.
- The existence of a prior or current relationship does not create consent.
Affirmative Consent Is Missing When:
- A person is younger than the age of 16 (South Carolina law).
- It is obtained through physical force, violence, duress, intimidation, coercion or the threat (expressed or implied) of bodily injury.
- A person is incapacitated (whether as a result of drugs, alcohol or otherwise), unconscious, or asleep.
Incapacitation occurs when a person lacks the ability to knowingly choose to participate in sexual activity.
In cases of reported incapacitation, MUSC asks two questions:
- Did the respondent know that the complainant was incapacitated?
- Would a sober, reasonable person have known that the complainant was incapacitated?
If the answer to either of these questions is “yes,” there was no affirmative consent.