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The following definitions clarify key terminology as used throughout the Title IX/Sexual and Interpersonal Misconduct (SIM) Policy and apply to both Title IX Sexual Harassment and Non-Title IX Sexual Misconduct.

Consent is the voluntary, informed, and freely given agreement, through words and/or actions, to participate in mutually agreed-upon acts. Consensual sexual activity happens when each partner willingly and affirmatively chooses to participate.

In evaluating whether consent has been freely sought and given, the University will consider the presence of any force, threat of force, threats, or coercion; whether the complainant had the capacity to give consent; and, whether the communication (through words and/or actions) between the parties would be interpreted by a reasonable person (under similar circumstances and with similar identities) as a willingness to engage in a particular act.

Coercion is the use of an unreasonable amount of pressure to engage in sexual activity. Coercion is more than an effort to persuade, entice, or attract another person to engage in sexual contact. When a person makes clear that they do not wish to participate in a particular activity or communicates by words or actions a decision to stop or a decision not to go beyond a certain interaction, continued pressure can be coercive. 

Consent cannot be obtained through physical force or where there is a reasonable belief of the threat of physical force, when one person overcomes the physical limitations of another person, or by taking advantage of another person's incapacitation.

Important points regarding the totality of the circumstances concerning consent include:

  • Consent to one act does not automatically constitute consent to another act.
  • Consent on a prior occasion does not automatically constitute consent on a subsequent occasion.
  • Consent to an act with one person does not constitute consent to an act with any other person.
  • The existence of a prior or current relationship does not, in itself, constitute consent; even in the context of a relationship, there must be mutual consent.
  • Consent should not be inferred merely from silence, passivity, or lack of resistance.
  • Communication is essential to understanding whether consent is present during the progression and/or regression of an intimate interaction.
  • Once consent has been established, a person who changes his or her mind should communicate the withdrawal of consent through words or actions.
  • Consent can be withdrawn or modified at any time, and the act must cease immediately once consent is withdrawn.

Under Texas law, individuals younger than 17 years of age are legally incapable of giving consent to sexual penetration or contact by an adult (someone 18 years of age or older) who is three or more years older.

Incapacitation: Incapacitation is the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the activity is occurring. In addition, an individual is incapacitated if they demonstrate that they are unaware at the time of the incident of where they are, how they got there, or why or how they became engaged in an act.

The use of alcohol or other drugs can lower inhibitions and create an atmosphere of confusion about whether consent is effectively sought and freely given. Alcohol and other drugs impact each individual differently and determining whether an individual is incapacitated requires an individualized assessment.