Understanding Affirmative Consent

Title IX states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” This federal statute requires schools and universities that receive federal funding to address and investigate allegations of sexual misconduct involving their students or faculty.

Many allegations under Title IX are brought forth due to alleged misunderstandings surrounding affirmative consent. Get the facts on affirmative consent so you know how to defend your rights.

What is Affirmative Consent?

Due to pressure by the federal government, many schools have imposed rules on their faculty and students concerning the type and nature of consent that is required before any sexual activity occurs. While consent policies vary from school to school, most stipulate that consent cannot be obtained if someone is "unable" to consent.

While this is the governing principle for affirmative consent, the law has not clearly defined what being “unable to consent” actually means. Can a person who is "buzzed" or "light-headed" consent? What if a person who is drunk does not show any signs of intoxication, and the other person doesn’t know that they are drunk?

Many schools have rules which require both parties to express consent through clear and unambiguous words or actions. Absent that, it could fall under the school’s definition of sexual assault.

Due to this strict standard, and the complexities in the law, it can be challenging to defend yourself in a Title IX case. It’s in your best interest to contact an experienced defense attorney who knows how to protect your rights. At Caplan & Tamburino, we have successfully defended numerous clients facing allegations under Title IX, and we’re prepared to fight for you, too.

Contact us today at (612) 444-5020 to learn how we can help you.

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