Beyond Title IX
Many colleges and universities are prohibiting and punishing sexual conduct well beyond the reach required by federal Title IX. Title IX requires schools to prohibit only these three forms of sexual misconduct to qualify for federal funding: (1) quid-pro-quo sexual harassment conditioning benefits or services on unwelcome sexual conduct; (2) hostile-environment harassment so severe, pervasive, and objectively offensive to a reasonable person to deny equal access to education; and (3) sexual violence in the forms of sexual assault, dating violence, domestic violence, and stalking. Schools, though, have not stopped there but have instead added broad categories and vague definitions, arguably reaching many more kinds of sexual activity.
Common Pattern
While schools must prohibit Title IX sexual misconduct to receive federal funding, each college or university is free to prohibit and punish other sexual activity as it individually determines. Those many college sexual misconduct policies going beyond Title IX's reach do vary some from school to school. You should read your school's individual policy. Yet listening to advocates like the National Center on Sexual Exploitation, colleges and universities are following patterns in what non-Title IX sexual conduct they are prohibiting and punishing. Schools don't make policies in a vacuum. Reading the policies of many schools shows the following pattern.
Sexual Exploitation
Many colleges and universities use the concept of sexual exploitation to extend their prohibitions and punishments beyond Title IX's reach. Non-Title IX sexual-misconduct policies at Duke University, the University of Michigan, Ohio State University, and many other prominent public and private universities across the nation prohibit and punish sexual exploitation beyond Title IX. While small variations in definitions exist, those policies tend to define sexual exploitation as taking sexual advantage of another without consent for one's benefit or the benefit of another party, which is exactly the definition that Duke University's Student Sexual Misconduct Policy gives to sexual exploitation.
Broad and Vague Definition
Because of the very serious implications of sexual misconduct, right up to dismissal from the school, definitions of sexual misconduct should be clear, as the current Title IX definitions, developed, interpreted, and applied over decades of litigation, are reasonably clear. Yet, the very common definition of sexual exploitation just stated above is instead plainly broad, surprisingly vague, and highly ambiguous. When students have ruptures in their intimate relationships, they can pour many different meanings into loose constructs like sexual advantage, consent, and benefit. One party to an intimate relationship may indeed at times draw significantly more benefit than the other party, to that party's advantage--whatever advantage may mean. Sexual exploitation's common definition nonetheless requires both parties to consent to all such benefits--whatever benefits mean.
Knowledge and Intent
College sexual misconduct policies further extend their reach, and complicate students' problems, by not always being clear about the accused student's knowledge and intent. Criminal law generally defines more-serious crimes like sexual assault giving careful attention to the offender's guilty mind. They require the offender's knowledge of the circumstances and intent to bring about the harm. By contrast, many college sexual misconduct policies, like the one at Ohio State University, do not define sexual exploitation as requiring the offending student's knowledge or intent. An innocent student might unknowingly gain some sexual advantage that leads to some unintended benefit but still be guilty under the policy. Only some policies, like the University of Michigan’s, require the offending student to know and intend the advantage.
Examples of Sexual Exploitation
Some college sexual misconduct policies, like the one at Duke University, leave it at that, with a single broad prohibition of sexual exploitation. Many other policies, though, list non-exclusive examples of what the school may mean by sexual exploitation. At those schools, anything within sexual exploitation's broad and vague definition may be sexual misconduct, but so may anything within the examples and their definitions. The policies at the University of Michigan and Ohio State University, like the policies at many other colleges and universities, include these non-exclusive examples of sexual exploitation:
- incapacitating another to compromise that other's ability to consent to sexual activity;
- invasion of sexual privacy, or engaging in voyeurism observing or allowing others to observe private sexual or intimate activity without consent;
- exposing genitals, or recording, disseminating, or posting images of private sexual or intimate activity or intimate parts, without consent;
- prostitution or solicitation to prostitution recruiting, transporting, or harboring persons for commercial sex acts;
- demanding benefit under threat of disseminating a recording of private sexual or intimate activity or a person's genitalia, groin, breasts, or buttocks;
- exceeding the boundaries of consent, or exposing another to a sexually transmitted infection without the other's knowledge;
- possession, use, or distribution of alcohol or drugs for the purpose of facilitating any of the above prohibited activities;
- aiding or assisting another person in committing the above.
Examples Further Broaden the Reach
Unfortunately, these non-exclusive examples that colleges and universities give of sexual exploitation don't confine or clarify its definition but instead, add ambiguities and further expand its reach. Students can face a minefield of uncertainty around intimate relationships, especially when they break up, leaving hard feelings on either side. Intimacy, even when entirely and obviously voluntary and consensual, inevitably implicates significant privacy, exposure, observation, extent, advantage, and benefit issues. Questions of sexual misconduct under the above definitions could arise even between two persons in an ongoing, committed, respectful, and stable relationship. Any use of alcohol or drugs around intimacy immediately compounds the opportunities for misunderstanding.
Origins of Sexual Misconduct Charges
Students don't enter intimate relationships with the purpose of courting sexual misconduct charges. The student's ability to continue with the student's college or university education is probably the furthest thing from the student's mind when the student engages in intimate conduct. Yet relationships can change quickly, especially in a college or university environment where students living in transitional housing are constantly progressing into and out of degree programs. And when relationships change, confusion and disappointment can lead to serious questions and regrets over the nature of the intimate relationship. What, then, is a student to do when facing false, exaggerated, or unfair college sexual misconduct charges under broad, vague, and ambiguous policy definitions?
Retain an Expert Attorney-Advisor
Students facing college sexual misconduct charges need the expert representation of national academic attorney Joseph Lento. Attorney Lento has helped hundreds of students nationwide successfully defend confusing and frightening sexual misconduct charges. Students have an enormous amount at stake, including not just their education but also their job, career, reputation, and future, when facing college sexual misconduct charges. Don't face a sexual misconduct charge that risks your future without having the best available representation. Retain national academic attorney Joseph D. Lento and the Lento Law Firm today by calling 888.535.3686 or going online.
