The term consent is not defined in law by the State of Michigan.
However, State of Michigan courts through jury instructions have
identified the term consent as: “…a person consents to a sexual act by
agreeing to it freely and willingly, without being forced or coerced.”
The University Sexual Misconduct Policy definition
of consent: Affirmative Consent is informed (knowing);
voluntary (freely given); and, active (not passive), meaning that,
through the demonstration of clear words or actions, a person has
indicated permission to engage in mutually agreed-upon sexual activity
and the consenting person is not incapacitated as defined by this policy.
Affirmative Consent cannot be obtained by Force. Force includes the
use of physical violence, threats, intimidation, and/or coercion.
Physical violence means that a person is exerting control over another
person through the use of physical force. Examples of physical
violence include but are not limited to hitting, punching, slapping,
kicking, restraining, strangling, and brandishing or using any weapon.
Threats are words or actions that would compel a reasonable person to
engage in unwanted sexual activity.
Examples include threats to harm a person physically, to reveal
private information to harm a person’s reputation, or to cause a
person academic or economic harm. Intimidation is an implied threat
that menaces or causes reasonable fear in another person. A person’s
size, alone, does not constitute intimidation; however, a person’s
size may be used in a way that constitutes intimidation (e.g.,
blocking access to an exit). Coercion is the use of an unreasonable
amount of pressure to gain sexual access. Coercion is more than an
effort to persuade, entice, or attract another person to have sex.
When a person makes clear a decision not to participate in a
particular form of Sexual Contact or Sexual Intercourse, a decision to
stop, or a decision not to go beyond a certain sexual interaction,
continued pressure can be coercive. In evaluating whether coercion was
used, the University will consider the frequency of the application of
the pressure, the intensity of the pressure, the degree of isolation
of the person being pressured, and the duration of the pressure.
Affirmative Consent cannot be gained by taking advantage of the
incapacitation of another, where the person initiating sexual activity
knew or reasonably should have known that the other was incapacitated.
Incapacitation means that a person lacks the ability to make informed,
rational judgments about whether or not to engage in sexual activity.
Incapacitation is such that it renders the person incapable of
self-care and protection. Incapacitation could be the result of
alcohol or other drugs or due to a temporary or permanent physical or
mental health condition.
Affirmative Consent to one form of sexual activity does not, by
itself, constitute Affirmative Consent to another form of sexual activity.
This definition is used for the purposes of Title IX investigations
and outcome determinations.