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Understanding Consent 

Copy of Consent (1)

At Ingham Law Corporation, our skilled investigators regularly conduct Title IX and workplace investigations concerning allegations involving sexual harassment and/or violence. At the core of these investigations lies a critical concept: consent.

"Consent" spelled with letter blocks across a blue background

When conducting an analysis of consent, it is important to understand the following:

What Consent Looks Like:

It is Specific. Consent must be specific to a particular activity. It is an ongoing process, not a one-time event. For example, consenting to a hug does not equate consent to other interactions, such as a kiss. Consent can be continuous and ongoing. However, individuals must actively communicate consent for each interaction. Further, anyone can withdraw consent at any time, even if they gave it previously.

It Requires Capacity. The consenting person MUST have capacity. This means they are of the legal age, conscious (i.e. not asleep or unconscious), and not impaired by drugs, alcohol or a mental condition that significantly effects judgement.  

It is Voluntary. Consent is a positive and willing participation in an activity without pressure or coercion. Consent is not present where someone is being pressured or manipulated into participating in a behavior.   

woman seated at computer does not consent to male coworker's hand on her shoulder

What Consent Does Not Look Like:

Silence. One must not assume a person has consented simply because they have not expressed a lack of consent. In these instances, it can be helpful to inquire about the presence or absence of any physical or nonverbal cues, such as turning ones face or body away from the other party (which could communicate an unwillingness to participate) or actively kissing someone back (which could communicate a willingness to participate).

Not Freely Given. One cannot gain consent by force, threat, coercion, or intimidation of another. Repeatedly asking another to engage in sexual activity after they have said no or using guilt or emotional manipulation to try to change someone’s mind are examples in which one could find a lack of consent. True consent should be enthusiastic and freely given, without any form of pressure.

Based on Assumptions. One cannot assume consent based on another’s appearance, relationship status, past engagements, or flirtatious interaction. All people have the right to dress as they choose; no one should interpret another person’s clothing as sexual consent. Past relationship status or sexual history does not entitle anyone to future sexual activity. Flirtatious behavior may indicate interest or attraction, but it does not automatically grant permission for sexual activity.

Consent is a freely given, reversible, informed, enthusiastic, and specific agreement to engage in a particular activity. This means:

  1. It must be voluntary, without pressure or coercion
  2. It requires a clear understanding of what is being agreed to
  3. It can be withdrawn at any time, even if it was previously given
  4. It’s an ongoing process, not a one-time event

Consent is absent in cases of incapacitation. Examples of incapacitation can include:

  • Level of impairment due to intoxication (alcohol or drugs)
  • Inability to communicate due to a mental or physical condition
  • Individuals who are minors and not of legal age to consent
  • Someone who is asleep or unconscious

At Ingham Law Corporation, we specialize in helping organizations navigate these challenges. Our services include conducting thorough and impartial workplace investigations, developing customized anti-harassment training programs, and assisting in the creation of effective reporting mechanisms. We work closely with employers to foster safer, more respectful work environments and mitigate the risks associated with harassment claims.

By acknowledging the elevated risk, taking proactive measures, and partnering with experienced professionals, companies in these sectors can work to change their industry cultures and protect their employees.”

The focus shifts to whether conduct was “unwelcomed” in a workplace investigation. Still, the principles of voluntary participation and clear communication remain crucial.

Analysis of Consent

Understanding consent is critical to the analysis of allegations of sexual harassment and/or sexual violence. Ingham Law Corporation’s skilled staff has extensive experience conducting neutral, third-party investigations in matters where understanding consent is a key issue, and in providing comprehensive and objective examinations of these complex and sensitive matters.

Institutions facing these complex matters can turn to Ingham Law Corporation for our experience and professionalism in handling workplace and campus investigations and Title IX hearings. For assistance with a workplace or campus investigation or Title IX hearing, please reach out to us and follow our LinkedIn for more updates.

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