Affirmative Consent: What It Is and Why It Matters

It is a question every respondent or accused in a Title IX investigation has to ask when investigated for a sexual assault related allegation at their university or college. What is “affirmative consent”, what does that “affirmative consent” mean, how is it defined, what does that term encompass and how is it satisfied or given by one party to another? Affirmative consent is a clear, informed, voluntary agreement between individuals to engage in sexual activity. It must be communicated through explicit words or actions that indicate a willingness to participate in the specific act in question. Do you need specific words articulated or written out? No, but silence, lack of resistance, or failure to say “no” does not constitute consent by default. This concept applies broadly to matters involving sexual assault, dating violence, sexual contact, and any form of physical intimacy.

Free from Force, Intimidation, Coercion or Manipulation

Must affirmative consent be given freely without force, intimidation, coercion, or manipulation? Absolutely. Consent must also be ongoing, meaning consent can be withdrawn at any point and consent at time one does not mean automatic consent at a later point in time. Even if someone agreed to a particular activity at one point, they can revoke that consent second, minutes or at any time. Moreover, consent cannot be given by someone who is incapacitated—whether due to alcohol, drugs, unconsciousness, or another condition that impairs their ability to make informed decisions. Stated differently, if a party consents but they were intoxicated, that consent may be nullified by their impaired mental state and inability to give permission to engage in sexual contact, conduct, touching or intercourse.

Enough is Enough Law

While a New York State specific statute, New York’s Education Law Article 129-B, often referred to as the Enough is Enough law, exemplifies how states codify affirmative consent. Not only does Enough is Enough define affirmative consent in the manner described above, it mandates that institutions of higher education adopt this definition in their codes of conduct. Of critical import, the law writes in black and white that past consent to sexual activity does not imply, nor somehow establish, future consent, and that affirmative consent must be clear and mutual throughout the encounter. This holds true no matter of the gender providing or giving that permission.

Protecting Survivors of Sexual Assault

Affirmative consent plays a critical role in safeguarding the rights and well-being of individuals who have experienced sexual assault. When consent is the central focus of sexual conduct policies and investigations, the legal and institutional framework moves away from outdated assumptions about victim behavior. No longer does the law ask whether a person physically resisted or said “no.” Instead, the focus is on whether they said “yes” and whether that “yes” was given freely, knowingly, and without pressure. With this in mind, however, merely because one party accuses another party of failing to secure this type of consent or asserts he or she withdrew the same, does not make it true. Even if the standard of evidence is far lower than what one would benefit from as an accused in a criminal proceeding, merely because an allegation of sexual assault revolves around a failure to obtain affirmative consent does not make it so. Respondents have both rights and defenses.

For survivors of sexual assault, particularly on college campuses, the concept of affirmative consent provides validation and a framework through which their experiences can be understood, in principle, without unfair scrutiny. In Title IX proceedings, a lack of affirmative consent is often the defining factor in establishing whether sexual assault occurred. Where traditional standards failed to account for incapacitation or coercion, affirmative consent ensures that these circumstances are examined closely, even if not always fairly in practice.

Clarifying Boundaries in Cases Involving Dating Violence and Sexual Contact

In many Title IX cases, the individuals involved may know each other or even be in a relationship. Dating violence, defined as emotional, physical, or sexual abuse by a current or former partner, often includes incidents where the line between consent and coercion is blurred. The concept of affirmative consent attempts to clarify that even within a relationship, every individual act of sexual contact must be consensual whether the parties have a year-long relationship or had a one-night-stand hook up.

Remember, though it may be relevant to the context of what transpired in an alleged violation, a previous intimate history or an ongoing dating relationship does not create automatic consent. Each sexual act must be preceded by an affirmative, conscious decision. This means that even if a person consented to sexual activity in the past, that cannot be used to justify future acts without explicit consent. That said, a history of the relationship and corroboration, such as through text or direct messages, can, and often is, a valuable tool in identifying affirmative consent or a lack thereof.

Aligning with Legal Standards at the State and Federal Level

Affirmative consent is not merely a best practice, it is embedded in both state and federal law. Title IX, a federal civil rights statute that prohibits sex-based discrimination in education, requires schools to respond promptly and equitably to reports of sexual harassment and sexual violence. Central to this requirement is the assessment of whether sexual activity occurred without voluntary, affirmative consent.

In New York, for example, institutions of higher education are required to define and enforce affirmative consent under the Enough is Enough law. Schools must also train students, faculty, and staff on the meaning of consent and how it applies to sexual conduct.

By adopting affirmative consent as the standard in disciplinary proceedings and sexual misconduct investigations, schools help fulfill their legal obligations under Title IX while promoting safer environments for students even if the practical real world application of the law and processes isn’t always as fair and honest as colleges and universities purport.

Affirmative Consent in Title IX Hearings

Affirmative consent is frequently the linchpin of Title IX investigations and hearings. Adjudicators, whether a third party consultant, a mixed board of students and faculty, or some other body, must determine whether affirmative consent was present throughout the interaction. Evidence such as text or similar messages, witness accounts, behavior before and after the incident, and the complainant’s physical or mental condition are all reviewed to assess the presence or absence of consent. Identifying and presenting this evidence is central to your case just as retaining the right advisor to do so is critically important.

A respondent may assert that they believed consent was given, but the investigation must determine whether that belief was reasonable and consistent with both law and policy. If the complainant was incapacitated or did not affirmatively agree, then consent is legally and factually absent. Keep in mind that many cases are anything but cut and dry. It often comes down to corroboration and credibility.

Impact on Respondents and Complainants

For complainants, affirmative consent provides a stronger foundation to articulate why their experience constituted a violation, even if they did not fight back, scream, or explicitly say “no.” For respondents, affirmative consent can create challenges in defending against allegations if they failed to obtain clear, enthusiastic agreement before engaging in sexual activity. This is why identifying, securing and presenting evidence in the most comprehensive and thorough way as an accused is essential to each and every defense.

At Saland Law, we advise both complainants and respondents on the implications of affirmative consent under Title IX. We help students understand how their rights and obligations intersect with institutional policies and the law.

Saland Law’s Approach to Title IX and Affirmative Consent Cases

A Title IX Advisor with Experience on Both Sides of the Law 

Top-rated Title IX law firm, Saland Law, is led by Jeremy Saland, a former Manhattan prosecutor and criminal defense attorney who brings a unique and comprehensive understanding of criminal law and educational institutional procedures. Jeremy has represented both complainants and respondents as their advisor in Title IX cases in the entire spectrum of schools from Ivy League universities to top state colleges by providing tailored support to students, administrators, and faculty members.

Because Saland Law has represented clients on both sides of the Title IX process, and in the criminal courts when serving as legal counsel, we are uniquely equipped to understand the tactics, considerations, and procedural dynamics that arise during investigations and hearings. We prepare our clients for every phase of the process; from the initial report, through the investigation, hearing, and appeal if necessary.

Strategic Guidance Rooted in the Law

Though serving in an advisor capacity and not as a criminal lawyer, Saland Law’s representation focuses on clarity, discretion, and informed legal strategy. In cases where affirmative consent is central to the allegations, we help clients:

• Analyze communications, behavior, and evidence related to the incident.
  
• Prepare responses to investigative questions or written statements.
  
• Understand the implications of capacity, intoxication, coercion, or silence.
  
• Develop narratives that clearly articulate either the absence or presence of consent.
  
• Challenge procedural or factual errors in administrative hearings or appeals.

Common Questions About Affirmative Consent

What if both parties were drinking?

If both individuals were under the influence of alcohol or drugs, the situation becomes complex. The key question is whether either party was incapacitated, meaning they lacked the ability to knowingly, voluntarily consent. A person who is severely intoxicated may be unable to give affirmative consent, even if they appear to be engaging in the activity.

Does silence count as consent?

No. Affirmative consent requires an explicit, voluntary agreement. Silence, lack of protest, or passivity is not sufficient. The absence of a “no” does not equal a “yes.”

Can consent be given nonverbally?

Yes, consent can be communicated through words or clearly understood actions. However, in situations that involve power imbalances, coercion, or intoxication, relying on nonverbal cues may not be sufficient or appropriate. Verbal consent remains the most reliable form of communication.

Can I withdraw consent?

Absolutely. Consent is not a permanent state. A person can withdraw their consent at any time, and once they do, all sexual activity must stop immediately. Continuing after someone has withdrawn consent can constitute sexual assault.

National Reach with Local Experience

Although based in New York City, Saland Law is not limited to New York cases. Title IX is a federal law, and advisors are not acting in their capacity as attorneys even if they bring that very same training and experience to the table. As such, we represent students, and academic professionals across the United States. From private universities to large public institutions, we work with clients in multiple states to navigate school-specific codes of conduct and disciplinary procedures.

Saland Law understands that each college or university may handle affirmative consent somewhat differently, and the procedural rules surrounding Title IX may vary slightly. Our ability to quickly understand and adapt to the particular school’s policies, while applying our experience, makes us a trusted ally in complex Title IX matters.

Your Academic Life and Career is on the Line

Affirmative consent is more than a legal definition, it is a cultural and institutional commitment to respect, mutual understanding, and accountability. Whether navigating a college’s Title IX process or building a defense to serious allegations, understanding the intricacies of affirmative consent is essential.

Saland Law, led by Title IX advisor, criminal defense attorney and former prosecutor Jeremy Saland, provides strategic, thorough, compassionate, and determined representation in Title IX matters across the country. Whether you are a student facing an accusation, a complainant seeking justice, or a parent looking to protect your child’s rights, Saland Law stands ready to help.

Contact Saland Law today to discuss your Title IX case and how affirmative consent impacts your rights and the choices you need to make to protect your life now and every day going forward.