Affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent. It shall not be a valid excuse to alleged lack of affirmative consent that the respondent believed that the complaintant consented to the sexual activity under either of the following circumstances:
- The respondent belief in affirmative consent arose from the intoxication or recklessness of the complaintant.
- The respondent did not take reasonable steps, in the circumstances known to the respondent at the time, to ascertain whether the complaintant affirmatively consented.
In the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the respondent believed that the complaintant affirmatively consented to the sexual activity if the respondent knew or reasonably should have known that the complaintant was unable to consent to the sexual activity under any of the following circumstances:
- The complaintant was asleep or unconscious.
- The complaintant was incapacitated due to the influence of drugs, alcohol, or medication, so that the reporting party could not understand the fact, nature, or extent of the sexual activity.
- The complaintant was unable to communicate due to a mental or physical condition.