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Understanding Express Affirmative Consent

Title IX By Binnall Law Group - 2021/07/30 at 01:20pm

Have you been accused of sexual misconduct under Title IX?  If so, you may be feeling a variety of emotions, including confusion and anxiety, about the claims being made against you — especially if you believed at the time that the accuser had actually consented to the sexual conduct at issue. However, if you find yourself in this situation, let our Title IX defense lawyer help you fight the allegations.

Many colleges and universities have revised their Title IX rules to require “express affirmative consent” for any type of sexual activity. However, introducing express affirmative consent rules can result in issues related to potential evidence and can ultimately wreak havoc with the investigation of facts.

Defining Express Affirmative Consent in the Context of Title IX

When discussing Title IX, express affirmative consent calls for every student to provide clear and unequivocal consent to sexual activity.  Seems easy enough, right?  In reality, however, what qualifies as unequivocal consent can be challenging to determine. For instance, suppose you’re involved in a sexual act with another student after a late-night campus gathering.  As the sexual interaction progresses further, the other student seemingly reacts with sounds that would indicate affirmation and consent. However, the student never actually said, “I consent to…(fill in the blank).”

In such cases, the school will have to look at the totality of the events that took place and figure out if a reasonable person in the same position would have viewed such acts or sounds as a clear and unequivocal expression of consent. Undoubtedly several different factors will be taken into consideration, such as the students’ prior/current relationship status, intoxication level, physical evidence, supporting testimony, etc.

How Does Express Affirmative Consent Work With Respect to Different Phases of Activity?

The express affirmative consent rules implemented by some schools have further complicated sexual interactions between students thanks to new requirements that call for students to get express affirmative consent for every phase of sexual activity. What does that mean? Let’s say you are participating in sexual intercourse with another student. During that interaction, you then choose to take part in oral sex. Under the school’s rules, you must first get express affirmative consent for the oral sex before participating. If you don’t get it for that separate “phase” of the sexual activity, you could be found guilty of sexual misconduct.

Let Our Title IX Defense Lawyer Answer Your Questions and Concerns

As you can see, depending on your school’s rules, the issue of express affirmative consent can be problematic to deal with on your own.  But help is available if you have been accused of sexual misconduct under Title IX. If you have questions, get the legal help you need from a Title IX defense lawyer at Binnall Law Group. We have attorneys who can help you navigate the intricate and often unreasonable investigative and administrative processes established by universities. Title IX disputes call for a great deal of experience and skill, as each college or university has its own unique set of rules and procedures that may hinder your ability to get a favorable result. We also keep up-to-date with changes and updates to the law. Contact our office today.