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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  • Consent can be withdrawn at any time.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:

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:

  1. Did the respondent know that the complainant was incapacitated?
  2. 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.