Guide to Sexual Consent

Sexual violence — or any sexual activity that happens without consent — is a serious problem in the U.S. It affects millions of people of all genders, sexual orientations, and ages each year, and it can be committed by anyone, including a person known intimately by the victim.1 The severity of this problem is highlighted in four sets of statistics derived from the CDC’s National Intimate Partner and Sexual Violence Survey (NISVS).

These statistics state that in their lifetime:2

• 43.6% of women (an estimated 52.2 million) and 24.8% of men (27.6 million) experience some form of sexual violence.
• 21.3% of women (25.5 million) and about 2.6% of men (2.8 million) experience a completed or attempted rape.
• 16% of women (19.2 million) and 9.6% of men (10.6 million) experience some form of sexual coercion (e.g., wearing someone down by repeatedly asking for sex or using one’s influence or authority to elicit sexual activity).
• 37% of women (44.3 million) and 17.9% of men (19.9 million) experience some form of unwanted sexual contact (e.g., groping, grabbing, or fondling).

These metrics are not all-encompassing, but they provide a snapshot of the glaring issue of sexual violence facing our society.

For many reasons, the NISVS estimates likely fall far below the actual number of victims. First, it’s a household survey and, therefore, doesn’t reach certain populations, including those residing in healthcare facilities, shelters, or military bases. Second, the survey doesn’t cover all forms of victimization (such as online sexual violence, like sending sexual pictures or texts to someone without their consent). And finally, due to social stigma, ongoing trauma, or safety concerns — such as being actively involved in a violent relationship — some participants may not have been comfortable with or able to share their experiences.

By law, sexual activity without consent is considered sexual assault, sexual abuse, or rape, which is one of many important reasons to have a firm understanding of consent. Our guide offers a number of legal definitions of consent, information on how to use consent to create safe and enjoyable sexual experiences, and a variety of ways you can support victims of sexual violence.

Though the law may vary from state to state (which we’ll cover below), sexual consent is an “agreement between participants to engage in sexual activity.” Consent needs to be clearly communicated, and it can be revoked at any time, so frequent communication between participants is critical. It’s also not the same as physiological responses, such as an erection or lubrication — it must be verbal confirmation.3

Certain parties can not give consent:3

• Anyone underage (this is nuanced in some U.S. states, as each has various applicable laws; we further cover this topic below in the section “Age of consent”)
• Those who are intoxicated or impaired by drugs or alcohol
• Someone being threatened, intimidated, or pressured
• The lower-ranking individual in an unequal power dynamic (such as a student and teacher or employee and boss)

State definitions of sexual consent

In terms of the law, there are many different definitions of consent. But most revolve around the concept of explicit permission given by a person with the capacity to offer it. Under California state law, for example, consent is defined as “positive cooperation in act or attitude pursuant to an exercise of free will” and “the person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.”4

State to state, the legal definition for “non-consent” can be as simple as Nevada’s “against the will of the victim” or “when the victim is incapacitated” or as complex as the District of Columbia’s “lack of verbal or physical resistance or submission by the victim, resulting from the use of force, threats, or coercion by the defendant...”4

Similarly, in the state of Florida, consent “shall not be deemed or construed to mean the failure of the alleged victim to offer physical resistance to the offender,” while in Indiana, consent cannot be obtained if “the other person is unaware the sexual intercourse is occurring” or “the other person is so mentally disabled or deficient that consent to sexual intercourse cannot be given.”4

In Minnesota, as well as many other states, consent cannot be obtained if a person is “mentally incapacitated,” meaning they are “under influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement,” or if they are “physically helpless,” meaning they are “asleep or not unconscious, unable to withhold consent or to withdraw consent because of physical condition, or unable to communicate non-consent and the condition is known or reasonably should have been known to the actor.”4

In their statutes, most states include further definitions of “physically helpless,” “incapacitated,” “forcible compulsion,” “resistance,” and so on — this, in most cases, only serves to complicate the legal process, making it more difficult to convict offenders. Convoluted language and complicated descriptions that vary from state to state certainly aren’t to blame for the upsetting amount of sexual violence happening around the world, but they aren’t helping either.

Perhaps more states should follow Washington’s lead, as it has one of the simplest definitions for consent: “actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.”4

Age of consent

The age of consent is defined as the “age at which a person is deemed legally competent to consent to sexual activity.” The legal age of consent in the U.S. varies from 16 to 18 years old, depending on the state.5 Some states have an age differential exception (also known as a Romeo and Juliet law) that decriminalizes consensual sex between two individuals who may have an age difference that puts one party below the age of consent.10 For example, in Alaska, the age of consent is 16, but a 16-year-old can legally have consensual sexual contact with someone who is 13 — the maximum age difference in Alaska is three years.

Depending on the region, individuals who violate the age of consent can be charged with anything from a simple misdemeanor to statutory rape and be required to register as a sex offender. The ages of the offender and the victim, as well as the context and nature of the sexual activity, can significantly impact the outcome of any criminal proceedings.

Consent means all parties understand exactly what they’re agreeing to, so when you’re having an explorative sexual experience — regardless of your history with that partner — make sure your requests are clear. Having an open and honest discussion about your and your partner's desires will ensure that the sex between you will be consensual. Creating an environment of trust and safety can also increase your confidence and make your partner feel more at ease.

Clear communication is crucial to understanding your partner’s boundaries. When treading into unknown sexual territory, there are a few things you should keep in mind:6

• The absence of a “no” does not imply a “yes.” This rule also applies to silence or wavering certainty, such as when someone answers, “I guess so,” or “Whatever you want,” or “I don’t know.”
• If someone is under the influence of drugs or alcohol, they can not consent, even if they explicitly say “yes” or appear eager to engage in sexual conduct.
• If you question whether you have consent, assume you don’t and immediately check in with your partner. Ask something like, “Is this okay for you?” or “Are we moving too fast?”
• Pay attention to nonverbal cues like body language. If your partner pulls away, seems tense, looks uncomfortable, acts nervous, or goes quiet, you should stop and check in with them. You might say, “Are you feeling okay? Should we stop?”
• Remember that consent can be downgraded or revoked completely at any point.

Remember, too, that sometimes your partner will say “no,” and that’s okay. Do your best to be reassuring and show them that you appreciate their honesty, such as by suggesting an activity they’d be more comfortable with, like watching a movie. If consent is revoked, stop all sexual activity immediately.

The difference between sexual assault and rape is mainly the language used to describe them.7 To accurately collect, analyze, and disseminate crime information, the Bureau of Justice Statistics (BJS) — the primary statistical agency of the Department of Justice (DOJ) — offers a clear definition for both.

Anything that forces a person’s involvement in unwanted sexual activities is also considered sexual assault. This includes:8

• Voyeurism or peeping (when someone watches private sexual acts without consent)
• Exhibitionism (when someone exposes their genitalia in public)
• Sexual harassment or threats
• Forcing someone to pose for sexual pictures
• Sending someone unwanted sexual photos or messages

Sexual assault is most often committed by someone known to the victim: a friend or acquaintance, a relative, a date, an ex, or a current partner. Women and men both commit and are victims of sexual assault, but men are responsible for more than 90% of acts of sexual violence committed against women.8

We often underestimate the trauma experienced by victims of sexual violence, especially if there are no physical signs of injury. However, it’s common for victims to suffer from physical and psychological injuries that may not be obvious to others. The Rape, Abuse & Incest National Network (RAINN) — the nation's largest anti-sexual violence organization — encourages anyone supporting a victim of sexual violence to remember the acronym TALK, which guides potential supporters to:9

• Thank the person for telling you about their experience.
• Ask how you can help them.
• Listen to their story without judgment or intense reactions.
• Keep supporting them for as long as they need.

Making it clear early on that you appreciate the other person’s trust can help them feel more comfortable, and this may allow them to open up further. You might say something as simple as, "Thank you for telling me this. I’m here for you.”

After hearing the other person’s story, your first instinct might be to jump in and offer advice. But it’s typically a better idea to ask the person what they need. In such a challenging situation, the best course of action is ultimately up to the victim. Keep in mind they may not know what they need right away — and that’s okay, too.

While listening to the victim’s story, aim to do so without judgment or strong emotional reactions. Simply give them your undivided attention and keep the focus on their feelings, not yours. You might say something like, “You are not alone,” or, “It’s not your fault.” Remember that many people inherently experience shame or think they did something wrong if they’ve been assaulted. It’s crucial that you avoid enabling those thoughts or perpetuating them in any form.

No two survivors of sexual violence go through the same healing process. The amount of time and type of support or treatment necessary will vary from victim to victim. Continued support and encouragement will be crucial as the victim processes their experience.9

First, remember that no matter the circumstances, it was not your fault. The best action to take after being sexually assaulted or raped depends on your unique situation. However, keeping quiet and doing nothing should only be considered if taking action or speaking out would put you in imminent danger. All victims, as soon as possible, should consider the following actions:

• Make sure you’re safe — consider reaching out to a trusted person or moving to a safe location, such as a hospital.
• Call the National Sexual Assault Hotline at 800-656-HOPE (4673) or connect with a counselor online at online.rainn.org (y en español rainn.org/es).
• Go to a hospital emergency room and get checked for injuries, sexually transmitted infections, and possible pregnancy. Hospital staff can also provide counseling and collect evidence.
• Evidence collection does not require you to report the assault or press charges, but it can preserve these as options for the future, so try to avoid showering, combing your hair, or changing clothes before going to the hospital.
• When it feels right, confide in someone you trust who can support and assist you.
• Report the assault by calling 911 or going to the nearest police precinct. You might also consider filing for a civil protection order or restraining order.
• If you’re a student, consider filing a complaint with your school's administration or seeking counseling services.
• Consider entering therapy for immediate crisis support. This is particularly important if you’re experiencing acute symptoms of flashbacks, trouble sleeping, panic attacks, or suicidal ideation.

Consent is the conscious agreement of all parties to participate in any form of sexual activity — and it can be changed or revoked at any time. To help avoid any confusion, individuals engaging in sexual activity should establish clear personal boundaries and always respect the boundaries of others. The legal definition of consent varies by state, but every definition includes the requirement of explicit permission and the capacity to offer it.

Sexual violence is a serious problem in the U.S. It can occur in person or online, and it affects millions of people, regardless of gender, sexual orientation, or age. Nearly half of all women and a quarter of all men have experienced some form of sexual violence in their lifetime. Having a clear understanding of sexual consent can help you avoid situations that you or your partner might consider to be sexual assault.