Is It Risky to Rely on Nonverbal Consent When Engaging in Sexual Activity?

Southeast Missouri State University President Dr. Carlos Varga recently responded to a petition from students regarding the University’s handling of sexual misconduct on campus. The students have also raised questions and concerns about a 16-slide presentation used by the University’s Campus Violence Prevention Program on the topic of sexual assault prevention and education. One slide deals with nonverbal consent:

Dr. Varga noted that, in speaking with staff about the slide and presentation, he was made aware that it is a common practice not just to provide definitions, but also to include examples to facilitate discussion.

However, nonverbal consent is a tricky and complex thing to navigate, and in this situation, the examples might do more harm than good. “[P]ulling someone closer” or “making direct eye contact” could mean that someone wants to get more intimate, but perhaps only to engage in kissing. And it may not be signaling a desire for intimacy at all! It would have been better to stick with the message that “body language is different for everyone and relying on it alone can sometimes be problematic.”

Someone who initiates sexual activity can change their mind in the middle of the encounter, so you can’t rely on them “initiating sexual activity” if at some point they no longer consent to what is happening. Also, someone’s initiating one type of sexual activity does not necessarily mean they want to do more than that.

In a letter to students, Dean of Students Sonia Rucker, who serves as Vice President for Equity, Access, & Behavioral Health at Southeast Missouri State, did clarify that:

• Consent to one form of sexual activity does not imply consent to other forms of sexual activity.
• Consent may not be inferred from silence, passivity, or lack of active resistance alone.
• A current or previous dating or sexual relationship is not sufficient to constitute consent.

You should also keep in mind that alcohol further complicates the situation. Under Washington law, someone who has been drinking must consent to the sexual encounter through “actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.” It is important in this situation, as in all sexual encounters, that you are certain you and your partner are on the same page with regard to what is happening.

When it comes to sexual activity, relying on nonverbal cues alone can be risky. It is generally good advice to ask questions before and during any sexual activity to ensure that your partner is comfortable with and consents to what is happening.

If you are facing allegations of rape or a Title IX investigation, the Marshall Defense Firm is here to help. Our experienced, skilled defense attorneys would be happy to discuss the matter with you. Please contact us at 206.826.1400 or solutions@marshalldefense.com to schedule a consultation.