@Ohiodad51, I’m sorry, I missed any discussion of “implied consent.” I’m not even sure what you’re talking about when you mean “implied consent.” Could you elaborate?
Ohiodad does a very good job of answering questions but implied consent is exactly what it says - consent that is inferred by another based on actions as opposed to expressed consent which is language or writing. Ohiodad can certainly elaborate, but implied consent certainly is a component that is considered in law.
I thought I already explained this and so did HarvestMoon, but let me give it another try so we can all be clear on the facts here.
At the time Eramo was speaking, a student who came to Dean Eramo with an allegation of sexual assault had three choices: they could elect no resolution, Informal Resolution, or Formal Resolution. Formal Resolution involves a formal investigation, a hearing, and possible sanctions. Informal Resolution does not have sanctions attached, but allows the accuser to confront the accused (if the accused agrees to attend). At the time Eramo was speaking, Informal Resolution was an option for sexual assault accusers, but that is no longer true.
No matter which option the accuser chose, the University would always investigate, not only for cases of alleged sexual assault, but also for other kinds of alleged sexual misconduct. If the accuser chose Formal Resolution, a more detailed investigation would be performed, by investigators designated by the Vice President.
Again, at the time, a sexual assault accuser could choose Informal Resolution, Formal Resolution, or nothing, so you are incorrect that the type of resolution chosen can allow us to determine the seriousness of the allegation. It is the student, not Eramo, who chose the type of resolution. We have no reason to disbelieve Eramo when she said that in the previous year 38 accusers came to her with accusations of sexual assault, four chose Formal Resolution, five chose Informal Resolution, and the other 29 chose no resolution. Those numbers are consistent with numbers we’ve seen elsewhere.
In other contexts, “implied consent” is used to describe situations where a person is deemed to have consented to something unless they explicitly object or opt out. For example, if I come upon someone on the street who is injured, I have to get their consent to offer them first aid, but if they are unconscious, I have their implied consent to give them first aid.
There is no such thing as implied consent when it comes to sex between two college students. There is no “she consented unless she said no.” There is only active consent. Active consent doesn’t have to be verbal, but it has to be words or actions that show agreement, not just the absence of words or actions that show disagreement.
Yes, it is implied from what is happening at that point in time, not a week later or a month later or a year later.
What’s the “implied” part here? In other contexts, “implied consent” means consent that is not expressed in any way at all. But for sex, consent that is not expressed in any way at all is not consent.
To clarify, I’m trying to understand the difference, in @Ohiodad51’s and @momofthreeboys’s mind, between “implied consent” and “non-verbal consent.” We all agree that consent for sex can be expressed in words, or in ways other than words. Is there some situation (in the college sex context) where the person does not express consent, either by word or action, but the consent is implied anyway?
I would guess there is wide disparity between how each college defines consent. States can also differ on how they define consent between two adults. It’s smart for young adults to understand their particular college code as well as the code in the state of that college. “Consent” and what that means is very much jurisdictional.
About a year ago NPR did a segment on what consent means in various colleges etc.
It feels to me that colleges are narrowing their definitions even narrower than that particular state’s criminal code which adds another element. How many colleges are going to expel a student virtually wrecking their collegiate future when the student may not have even broken the law in that state? I would guess very few, as we’ve seen with UVa, they will look for alternative “punishment.” It’s very complex and is really not a reductive issue.
Is there any college where a person who does nothing to indicate consent is nevertheless deemed to have consented? In other contexts, “implied consent” means the person consented even when they did nothing at the time to indicate consent. I’m confused by its application in the context of sex. I quite understand that a person might be deemed to have shown consent if they removed their clothes. I’m asking about “implied consent” where the person did nothing, because that is my understanding of the term “implied consent.”
I’m sure there are cases, but we may never hear about them as those are probably found during the Title IX investigations. I have not seen a case cited here where the woman is suing the college in civil court because she felt her rights were violated especially because state laws seem to be broader than university code of conduct rules - but again California might be a benchmark for that sort of lawsuit since they have the Yes means Yes law now on the books which seems to favor verbal or written - or recorded 
consent.
Quite a lot of colleges expel student who didn’t break any laws, I should imagine, since plagiarism isn’t illegal and neither is cheating on a math test.
Eramo used the words she used. There is a video of it. Whether she meant to say something other than what she did, or whether she knew what she was saying is I guess a point that can be debated, but not productively in my mind.
And I am using implied consent in the generally understood way. If a girl gets “dressed to party”, spends the night grinding on the dance floor with a random guy, has a couple beers (but no, is not comotose) takes the guy back to her room and has sex, then I think the question if she was too impaired to consent to sex poses an entirely different set of questions than a situation of assault as the term is generally understood or unrestrained aggression. Add in that in the “drunk sex” example, she may go weeks or months texting with the guy, not complaining she was assaulted or whatever and no normal person would think that the young lady was raped. There is a difference that everyone recognizes, and words have meaning, which is why @harvestmoon added in assault and unrestrained aggression to her first post, or why several of you are twisting in to rhetoricl pretzels to say Eramo meant assault when she said misconduct. We should acknowledge the difference in these scenarios if there is any hope in solving the actual problems that exist on campus, and my suspicion is you do. Entirely different problems, requiring entirely different solutions. My guess is you would agree with that as well.
And one quick point, if we are talking about implied consent as a term of art, it does not mean consent that is “not expressed in any way at all”. It generally means consent that is not specifically verbalized. The classic example is throwing a baseball to a guy who is motioning Owith his hand that you should throw it is ok while throwing a baseball at someone who is looking the other way is battery.
As far as in sexual situations, @cardinalfang may be technically correct in California under the new law, and consent to sexual relations means an affirmative response at each step of the process. Can I unbutton your shirt, can I do this, can I do that, etc. which of course is an impossible standard to meet, which many people think may be the point. Not sure that is the law everywhere else though. Some do argue that it is the position taken by OCR though.
Great, thanks, that (as you can see) was not my understanding of the term, but a quick Google showed me that in the Torts context, “implied consent” can be non-verbal consent. “Implied consent baseball throw” turned out to be the winning Google query.
Tell that to @momofthreeboys. She seems to believe that when Eramo said that she’d seen 38 women who said they’d been sexually assaulted, Eramo didn’t mean it.
UVA’s Sexual Misconduct Policy effective since 2011 defines sexual “misconduct” as including “non-consensual sexual intercourse” (pg.4). So any reference to “misconduct” would include the more serious offense of assault.
http://www.virginia.edu/sexualviolence/documents/sexual_misconduct_policy070811.pdf
Of further interest is part E under Section IV of the policy (bottom of pg.10.) In circumstances where the accused is “willing to take responsibility for the alleged sexual misconduct” the complainant may elect to an “informal proceeding” where sanctions are imposed by the Board Chair. If either party is unhappy with the sanction imposed then it can be appealed. NOTE: the policy is very careful to specifically state that this “informal proceeding” is not the same as “mediation” which of course is prohibited by the DCL in cases of sexual assault. Have to admit that I fail to see the distinction except that the accused already goes in admitting guilt so all thats left to be negotiated or mediated is a sanction.
We have no way of knowing the particulars of these “informal proceedings” or how many of them actually involved sexual assault. We would be guessing as to how many women appealed the sanctions and in how many cases the imposed sanction withstood that appeal. What we do know is that there has never been an expulsion for sexual misconduct at that particular institution and that includes circumstances where the accused has admitted guilt.
In the UVa policy, after the accuser chooses Informal Resolution, then the accuser either admits or does not admit responsibility. Then there’s an informal meeting, but the accused student doesn’t have to go to it. Presumably the process works better when both students participate.
The policy harvestmoon linked is the old one, which was recently superseded. In the new 2105 policy, informal resolution is no longer available for cases of sexual assault, only for other types of sexual misconduct. Perhaps someone was skeptical of the claim that Informal Resolution wasn’t the same as mediation. I know I’m skeptical.
What are you talking about Cardinal? I don’t believe that i ever implied or said what you are alluding to. I certainly can’t guess whether she meant one thing or another and I have never commented specifically on Eramo’s interview.
However, the linked policy was effective on the date Eramo gave the interview. So the definition of “sexual misconduct” stands for the purposes of that interview.
Sorry, momofthreeboys. It was momrath, not you, who insisted that when Eramo said there were 38 accusations of sexual assault, she meant 38 complaints of sexual misconduct. I sometimes mix up the people whose names start with “mom”. I regret mixing the two of you up. I apologize.