Sexual assault is (1) sexual intercourse or (2) sexual contact (3) without affirmative consent.
(1) Sexual intercourse means any penetration, however slight, with any object or body part, as follows: (a) penetration of the vulva by a penis, object, tongue, or finger; (b) anal penetration by a penis, object, tongue, or finger; and (c) any contact, no matter how slight, between the mouth of one person and the genitalia of another person.
(2) Sexual contact means intentional sexual touching, however slight, with any object or body part, whether directly or through clothing, as follows: (a) intentional touching of the lips, breasts, buttocks, groin, genitals, inner thigh, or anus or intentionally touching another with any of these body parts; (b) making another touch anyone or themselves with or on any of these body parts; and (c) intentional touching of another’s body part for the purpose of sexual gratification, arousal, humiliation, or degradation.
(3) 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, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
- The following are principles that apply to the above definition of affirmative consent.
- Consent to any sexual act or prior consensual sexual activity does not necessarily constitute consent to any other sexual act.
- Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
- Consent may be withdrawn at any time.
- When affirmative consent is withdrawn or can no longer be given, sexual activity must stop.
- A person is incapable of affirmative consent when they are:
- Less than seventeen years of age;
- Mentally disabled (a person is mentally disabled when their normal cognitive, emotional, or behavioral functioning renders them incapable of appraising their conduct); or
- A person is incapacitated when they lack the ability to choose knowingly to participate in sexual activity.
- A person is incapacitated when they are unconscious, asleep, involuntarily restrained, physically helpless, or otherwise unable to provide consent.
- Someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent depending on the level of intoxication.
- Affirmative consent cannot be gained by taking advantage of the incapacitation of another. In evaluating affirmative consent in cases of alleged incapacitation, the fact finder asks two questions: (1) did the person initiating the sexual activity alleged to be nonconsensual know that the other party was incapacitated? If not, (2) should a sober, reasonable person in the same situation have known that the other party was incapacitated? If the answer to either of these questions is “yes,” affirmative consent was absent.
- If the fact finder determines based on a preponderance of the evidence that both parties were incapacitated, the person who initiated the sexual activity alleged to be nonconsensual due to incapacity is at fault.
- Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
- Examples of coercion and intimidation include using physically or emotionally manipulative conduct against the complainant or expressly or implicitly threatening the complainant or a third party with negative actions that would compel or induce a reasonable person in the complainant’s situation to engage in the sexual activity at issue. Examples of sexual coercion include statements such as “I will ruin your reputation,” or “I will tell everyone,” or “your career (or education) at Cornell will be over” or “I will post an image of you naked.”
- Examples of force or a threat of harm include using physical force or a threat, express or implied, that would place a reasonable person in the complainant’s situation in fear of physical harm to, or kidnapping of, themselves or another person.