What Does Consent Mean When It Comes to Sexual Misconduct on Campus?

If you've been accused of sexual misconduct at your university, someone may already have mentioned Title IX to you. Title IX is the federal law colleges and universities use to investigate and adjudicate most sexually-based offenses, so it comes up a lot in reference to sexual misconduct. Title IX doesn't cover every type of offense, though. Plenty of students face non-Title IX charges each year, and you could be one of them.

There can be important differences in how schools treat Title IX and non-Title IX cases, and we'll get into those as we go. One thing that's not different: in both kinds of cases, consent is typically the most crucial element in deciding whether you are “responsible” (guilty) or not. Most sex offense cases come down to the old “he-said, she-said” conundrum. That is, you have your version of events, your accuser has theirs. Often, the heart of the disagreement is whether or not your accuser consented to participate in sexual activity.

If you've seen any courtroom dramas on TV, you know that in a court of law a defendant is “innocent until proven guilty.” That's an important phrase because it puts the burden of proof on prosecutors. Defendants don't have to prove they are innocent; prosecutors have to prove “beyond a reasonable doubt” that defendants are guilty. When it comes to sex offenses, and especially issues of “consent,” that's often a high bar for prosecutors to clear. Most of the time, sex occurs in private, with no one around to verify what happened one way or the other.

School hearings don't work much like courtrooms, though. There are no stately judges in flowing black robes, no witness boxes, no juries. More likely, if you're allowed a hearing, you'll find yourself sitting in a dingy conference room in the student union basement answering questions asked by a physics professor, a freshman comp TA, and a third-year econ major. No one has to prove “beyond a reasonable doubt” that you did anything. If the hearing decision-maker(s) decide it is “more likely than not” that you committed the offense, they will find you responsible. That can be a simple matter of who is more believable.

Your first job, then, is to educate yourself as much as you can about the meaning of consent since that single word could determine your entire future.

Your next job is to find an attorney who understands the intricacies of campus justice, the shifting definitions of “consent,” and the best strategies for defending you against a sexual misconduct allegation.

Put simply, your future is at stake. You need to do absolutely everything you can to protect it. This is the starting point.

A Word About Title IX

If you've been charged with a non-Title IX allegation, it may seem counter-intuitive to begin by looking at what Title IX has to say. However, non-Title IX cases actually exist because of Title IX, so understanding one means understanding the other.

Title IX was originally passed by the US Congress in 1972. It was intended to curb sexual discrimination and harassment in American education, something that was desperately needed since, at the time, college campuses could frequently be openly hostile towards women.

The text of Title IX is straightforward:

“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.”

To ensure all schools complied, the government tied cooperation to federal funding. The law worked. It served as an important step forward in the march towards women's equality, and college campuses today are among the most welcoming places for women and minorities in all of American society.

However, the law was not without its problems. In fact, arguments about how it should be implemented and enforced have been raging almost from the moment it was passed.

The most recent debates over Title IX have to do with changes the Trump administration made to the law in 2020. Trump's most important goal was to achieve some balance between how complainants and respondents are treated in Title IX investigations. To that end, his Department of Education issued a series of guidelines limiting schools' jurisdictions, narrowing the definition of “discrimination” and “harassment,” and guaranteeing certain due process rights to the accused.

The intent behind these changes was good; the results were chaotic. Many schools were deeply unhappy about the new rules, viewing them as a direct affront to their own authority and to what they felt was the important work they were doing in the name of victims' rights. Some states actually sued to prevent the guidelines from taking effect. When that didn't work, many schools looked for ways to circumvent the new rules.

Their solution? Create a parallel system for dealing with any accusations that Title IX no longer covered. If you're being investigated for “non-Title IX sexual misconduct,” you're now dealing with that parallel system.

How do Non-Title IX Cases Work?

For all its many problems, Title IX did create a uniform process for adjudicating allegations of sexual misconduct. Despite the uproar, the Trump administration succeeded in further establishing clear rules about how schools could treat respondents. For instance, under Title IX, the accused must now be afforded the same accommodations – access to medical care and counseling services, course schedule changes, the opportunity to take a leave of absence – as complainants. Investigators must begin their investigations with the presumption that respondents are innocent. Respondents are entitled to defend themselves at a formal hearing and to cross-examine any witnesses against them.

In contrast, there are no government rules about how schools should deal with non-Title IX cases. Every school is allowed to create its own policy.

It turns out, some schools use the same processes, or similar ones, to deal with both Title IX and non-Title IX allegations. Under those processes:

  • Students have the right to an advisor, and this advisor can be an attorney.
  • Once a claim is filed, the school appoints an investigator to look into the incident.
  • The investigator interviews both parties, collects evidence, and questions any potential witnesses.
  • The investigator completes a report. Both sides then have a chance to comment before the report is submitted to the school's Title IX coordinator.
  • The Title IX coordinator appoints a Hearing Officer and a panel of decision-makers to hear the case in its entirety.
  • The panel decides whether the accused is responsible for the violation or not based on the “Preponderance of Evidence” standard and assigns any sanctions as necessary.
  • Students have the opportunity to appeal the hearing decision if new evidence should arise or if they can prove some obvious mistake occurred in the process itself.

For every school that follows Title IX guidelines in non-Title IX cases, though, there are many others that don't. A number use some modified version of these guidelines. For instance, some schools, such as Boston University, conduct a full investigation but don't offer students the opportunity for a formal hearing. Instead, at the end of the investigation, the investigator decides the case. Other schools allow for hearings, but only if the case could result in suspension or expulsion.

Unfortunately, there are a few schools that don't use anything that even remotely resembles the Title IX process. They might, for instance, forgo the entire investigation process. A single school administrator relying on interviews with the two parties might decide on their own whether a student is responsible. Or the school might assemble a campus judicial panel to decide the case, but that panel might not be required to examine evidence or interview witnesses.

All this means that we can't say with certainty how your particular school treats non-Title IX sexual misconduct cases. We can recommend, however, that you take the time right now to find out for yourself just what you'll be facing. The easiest way to do this is to find an online copy of your school's Student Code of Conduct. Every school has one, and every school publishes it. This document should explain what constitutes sexual misconduct and what procedures your school uses for code of conduct violations.

General Principles of Consent

Whatever your situation, consent will be an important question in your case. How your particular school defines that word could be the most important factor in determining whether you're found responsible or not responsible.

Unfortunately, here too, the answers aren't simple: We can't give you a definitive definition of consent. The fact is, even under Title IX, colleges and universities have the freedom to define this word as they like. Again, then, it is important you take the time to find out how your college or university defines this term.

Nevertheless, there are some general principles about sexual consent that virtually all schools agree on:

  • No one can consent to sexual activity if they are incapacitated. A person who is drunk, for example, cannot consent, though, of course, schools don't always agree when it comes to the definition of “drunk.” Obviously, it is also impossible to provide consent if you are passed out or asleep.
  • Minors cannot consent to sexual activity.
  • Persons with certain mental deficits cannot consent to sexual activity.
  • No one under duress can consent to sexual activity. Even if someone provides verbal affirmative consent, they have not actually consented if they do so as the result of some type of threat, real or assumed. This includes physical threats and blackmail. It also includes less obvious circumstances, such as supervisor-subordinate relationships, where one partner may believe their position would be in jeopardy if they do not consent.
  • It is not necessary to literally say “no,” in order to refuse consent or to withdraw consent once sex has begun. Body language is considered sufficient to signal a person doesn't want to participate in sexual activity.
  • Everyone has the right to withdraw consent at any time. Even if a couple is actively engaged in sexual activity, either partner can decide to end it, and their partner must respect this decision.
  • Agreeing to participate in sexual activity in the past does not mean a person consents to future interactions. Every sexual situation is unique and requires its own affirmative consent. This applies even to couples in long-term relationships.
  • Consenting to one type of sexual behavior does not mean someone consents to others. Agreeing to kiss someone, for example, does not constitute affirmative consent for oral sex. Likewise, engaging in oral sex does not constitute consent to participate in penetrative sex.

Subtleties of Difference

While schools may agree on a number of important principles, ultimately, every school develops its own definition of consent. Typically, the differences between them have to do with three key areas.

  • The definition of “incapacity”: While virtually all definitions of “consent” suggest someone who is incapacitated cannot consent to sexual activity, there is little agreement about what the word “incapacitated” means. Obviously, a person who has passed out is incapacitated. Does one beer, though, impair a person's judgment to such an extent that they cannot reasonably consent?
  • The expression of consent: Almost every school agrees that it isn't necessary to say “no” in order to refuse consent. Body language is enough. However, they differ in what they require to affirm consent. Some, for example, require clear verbal communication. Others allow for hand gestures. Still, others suggest that something vague, like “enthusiasm,” is the determining factor.
  • The definition of “duress”: Here again, definitions differ among schools, especially when it comes to supervisory roles. Some, for instance, bar instructors entirely from forming romantic relationships with students. Others only prohibit relationships between instructors and students in their courses.

Small differences in any of these three areas can have a large impact on how a given school interprets consent. How different can definitions of consent be in practice?

George Washington University’s definition of consent reads like this: “Consent requires a voluntary and freely given agreement, through words and/or actions, to engage in mutually-agreed upon sexual activity.”

Importantly, this definition doesn't explain what kinds of “actions” qualify as “agreement.” In the explanatory notes that follow, GWU points out that neither the “absence of a ‘no'” nor “silence, passivity, or lack of verbal or physical resistance” necessarily imply consent. The language here is significant, “Consent cannot be inferred from the absence of a ‘no.'”

The wording suggests that respondents cannot use the absence of “no” as their only defense in cases of sexual misconduct. However, this wording leaves a great deal open to interpretation. It does not say, for example, that the lack of physical resistance is necessarily a sign of non-consent.

Sierra College’s definition of consent is much more restrictive. According to the school's sexual misconduct policy, affirmative consent does not have to be verbal. However, the examples of non-verbal cues the policy mentions include very clear gestures, “e.g., high-five, thumbs up, head nod ‘yes,' etc.”

This would seem to imply that active participation in sexual activity is not enough, in and of itself, to indicate consent. Consent must be communicated, and quite directly, even if that communication doesn't happen in words.

Sierra College's policy is more restrictive in another sense as well. Specifically, it reads that sex is non-consensual if either partner is “Under the influence of drugs and/or alcohol.”

Even one drink could conceivably constitute “influence,” which means that essentially this policy prohibits sex between anyone if either partner has consumed any alcohol whatsoever.

In the end, the differences between how these two schools deal with consent don't just suggest that you must know your school's policy. They demonstrate that you must read those policies carefully, taking note of language and wording. When it comes to consent, you cannot take anything for granted.

Miscommunication

Consent can seem like a straightforward matter, and colleges and universities often treat it that way, assuming there should never be any question about whether or not someone said “no.” There are some aspects of consent that are obvious: If someone is unconscious, they obviously can't consent to have sex. Just because you consent to a kiss doesn't mean you consent to have sex with them. These are basic matters of logic.

Yet, consent can also be incredibly complex. Between being unconscious and providing affirmative verbal consent, there is a lot of gray area.

One of the most common problems? Communication.

If you've ever had an argument over a text, you know that miscommunication happens all the time. The words we use every day aren't precise. At best, they are useful placeholders. Words convey general information, but they can't tell us with any degree of certainty what someone is actually thinking. Consider, for instance, how much of the actual experience you miss when someone tells you, “Yesterday, I sat under a tree and read a book.” Your reconstruction of that event only barely approximates the actuality.

Throw sex into the mix, and things can become even more complicated. For all our progress toward openness in the last fifty years, our culture remains quite reticent when it comes to talking about sex. We don't often say what we mean, what we want, what we expect. When it comes to sex, we may find it embarrassing to bring the subject up at all, and that's particularly true for people who are relatively inexperienced at it.

As a result, we rely heavily on body language and non-verbal cues to know when sex is appropriate and when it isn't. That isn't just true for those who are initiating sex. Many people are passive and prefer to let their actions speak for them when it comes time to convey their willingness. So, while no one would argue that a person must say “no” in order to refuse consent, expecting a person to say “yes,” and expecting their partner to refrain in the absence of that yes, is problematic.

Body language and non-verbal cues aren't necessarily the solution either. Not all of us are equally adept at reading such signs. In fact, even those of us who are adept at reading others can't always agree on what a particular facial expression means. A smile is a smile, but does it always convey genuine happiness? Can't it also convey irony, sarcasm, rueful sadness?

There are additional problems when it comes to body language. For one thing, we don't all engage in sex in the same way. Sierra College insists that both parties must be “enthusiastic” about the act before participants move forward. Do we all express “excitement” and “willingness” in the same way, though? Do we even experience pleasure in the same ways? In fact, a sigh, a look, or closed eyes can have many different meanings and sometimes multiple meanings at once.

Miscommunication, of course, is not an excuse to ignore a clear sign that you don't have a partner's consent. It is always better to stop and ask if you are in any doubt. However, establishing consent isn't always as simple as it might seem, and miscommunication does happen. The real question, then, is whether someone should be suspended or expelled simply because of a miscommunication?

Alcohol

Communication, of course, becomes far more difficult if one or both parties are under the influence of drugs or alcohol. Here again, no one would ever argue that a person is entitled to take sexual advantage of someone who is incapacitated, especially if they have reached a point where they simply can't reasonably be expected to give consent. Yet, as with “consent,” it's not always easy to define terms like “incapacitated.”

Sierra College says that one drink renders someone incapable of providing consent. A rule like that seems impractical at best, not to mention difficult to enforce. Is it reasonable to expect that people who drink won't have sex and vice versa? If not, the rule becomes nothing more an excuse to accuse some students of sexual misconduct.

In the absence of such strict rules, it can be difficult to determine who has the ability to consent and who doesn't when alcohol is involved. Blood alcohol content is used as a measure in cases of drunk driving. It isn't foolproof when it comes to predicting a person's ability to make decisions, however. In addition, using it to establish consent would require that both parties be tested before, during, and after they have sex.

All of this suggests that inebriation can't, by itself, be used as a reliable measure when it comes to deciding whether someone is capable of giving consent or not.

There are more fundamental questions as well about who should be considered “incapacitated.” For instance, in most cases, a man can be found responsible for rape even if he had just as much to drink as his partner. Forcible sex is never acceptable under any circumstances. When the issue is the ability to consent, though, schools do frequently over-generalize about who has that ability and who doesn't. The fact is, the answers may not always be as clear as schools might lead us to believe.

The Emotional Component

Obviously, emotions can play a significant role in any sexual activity. As with communication and alcohol, though, emotions can seriously complicate our reactions to events as well as our later understanding of what happened. When sex is involved, emotions are typically high. Indeed, sex can be such a heightened experience that it brings about confusing, even contradictory emotions. We've all heard of “angry sex.” We all know some people who are turned on by being submissive. Consent can be tricky in these kinds of situations.

Regret can be a particularly powerful emotion. There's nothing quite like wishing you had done things differently, especially if you're facing difficult consequences for your actions. That feeling can be so strong, in fact, that it can drive some people to misremember events.

It turns out, sexual regret is more common than most of us realize. One study (O’Sullivan and Allgeier) found that 50% of women and 26% of men have had unwanted sex that they consented to anyway. It doesn't particularly matter why someone would do this. The number speaks for itself, and it argues that a great many people feel regret about at least one sexual encounter they've had.

The problem is that regret can blur the lines of consent. Regret itself exists in a place between doing and not doing, a place where we made a decision to act but then later wished we hadn't. Here too, deciding whether some consented or not isn't an easy matter.

Sanctions

In the era of Me Too, schools fear being labeled as “soft on sexual assault” or “insensitive to victims.” As a result, most schools maintain a strict policy towards sexual misconduct, with no exceptions. That strictness extends to the sanctions that they implement for students who have been found responsible.

In their official policies, most colleges and universities like to say they offer a range of sanctions in such cases. They are anxious to prove their progressive credentials, so they may talk about verbal warnings, removal from campus housing, written apologies, restitution, or mandated counseling. Some give lip service to new, hip judicial approaches such as “restorative justice.”

The reality, though, is that suspension is usually the minimum penalty a university will assign in a sexual misconduct case. Far more often, the penalty is expulsion, plain and simple.

Without question, expulsion itself can be traumatic. It can be costly in a number of senses. Expulsion means giving up whatever progress you've made as a student. It means losing whatever time, energy, and money you and your parents may have invested in your education. All of these can be enormously upsetting.

However, expulsion may not end with just being separated from your institution. State schools, for instance, generally operate as part of a single network. That means that if you are expelled from one state school, you are essentially expelled from all of them. In addition, most colleges and universities these days include a transcript notation that explains exactly why you were expelled. If that reason has to do with sexual misconduct, it may be difficult, if not impossible, to find another school—inside your state or out of it—willing to accept you. Finally, even if you do enroll somewhere else, the government may bar you from receiving financial aid such as grants, loans, and scholarships.

In the end, expulsion likely means your academic career is over. That can have serious repercussions on the entire rest of your life. We all know how difficult it can be to even get a job without a college education. Without that piece of paper, you will have trouble establishing a career, and you will have trouble rising in your career. Maybe most importantly, you are likely to make far less over the course of your life than your college-educated peers.

What to Do if You're Accused

There's no question that the risks involved in a non-Title IX sexual misconduct case are enormous. Everything is on the line.

To make matters worse, the system is usually set up to favor the complainant. Without Title IX protections in place, you can't be certain just how your school might treat you.

What do you do then? How do you protect yourself?

First and foremost, know this: You can defend yourself. You can fight to regain your reputation, to hold on to your education, to ensure your future remains bright.

You need proper representation to do all that, though. Proper representation means a Title IX attorney. Again, you may wonder why you need someone skilled in Title IX defenses to represent you if you're being accused of a non-Title IX offense. The fact is, when it comes to the most important questions about responsibility, the two kinds of cases can be quite similar. Both usually come down to the issue of consent. Both take place within the campus justice system rather than a court of law. Succeeding in either requires a deep understanding of how college judicial processes operate.

Of course, hiring a lawyer won't solve all of your problems. You will need to do your part as well. Being a respondent isn't always easy, and it demands some very specific actions and behaviors from you.

  • Take care of yourself. College is stressful enough as it is. You are going through a criminal investigation, so your stress levels will likely be much higher than normal. You can't be a productive part of your defense team, though, if you allow this stress to interfere with your ability to function. You have to do what you must to keep yourself calm, cool, and collected. Keep your routines as normal as you can. Go to classes. Exercise. Study. In addition, consider seeing a counselor or therapist, someone who can help you talk through the powerful emotions you're likely feeling.
  • Do everything you can to make sure your Title IX attorney has all the information they need to defend you. Take time now to write out your version of events while they are still fresh in your mind. As you do this, be sure you include absolutely everything you can remember about what happened. Some clients believe they should hide evidence or that they shouldn't mention witnesses who might be hostile to them. A good attorney, though, knows how to take materials like these and use them in positive ways to help your case. Don't conceal anything.
  • Don't speak to investigators or school officials without consulting your attorney. You have the right to legal representation. Your school may try to limit that right. They might, for instance, bar your attorney from attending investigative interviews. That's a violation of your due process rights, and it can become the foundation of a civil suit later on.

In the meantime, even if your attorney can't accompany you, you should consult them about all your answers. You may know you are completely innocent, and when that's the case, it can be tempting to just tell authorities everything you know. After all, what do you have to hide? Your school doesn't know you are innocent, though. They are probably trying to build a case against you. That's their role. What you say can be misconstrued. Facts can be turned against you. Even the insistence you are innocent is sometimes used as proof that you are guilty. Make sure you know exactly what to say and what not to say.

  • Don't contact the complainant under any circumstances. You will be tempted to try to work everything out. Your accuser could be someone you were close to, and you may feel like if you could just talk to them, just explain what happened, all your problems would go away. Unfortunately, it's too late for that. What happened, happened, and your accuser isn't likely to withdraw their story. More importantly, your school can move forward with the case even if your accuser does change their mind. In almost every instance, investigators take attempts to contact the victim as a further sign of guilt.
  • Limit who you talk to about the case. Beyond avoiding the complainant and making sure your lawyer is with you when you answer questions from officials, you should also be wary of talking to anyone other than your attorney about your case. It can be useful to have one or two friends who know what's happening, people you can vent to during the process, and who can serve as an important support network. The more people you tell, however, the greater the potential that the case can become public. That can cause you personal complications. It can also cause problems for the case itself.

Attorney Joseph D. Lento Understands Title IX Defenses

Sexual misconduct cases are complex, not least because of the issue of consent. In fact, if everyone agreed on what consent means, there probably wouldn't even be any sexual misconduct cases. You need someone in your corner who understands the fine distinctions between “consensual” and “non-consensual,” someone who has seen every kind of accusation imaginable, someone who knows exactly why complainants make accusations and how to respond to them.

In short, you need professional representation.

Attorney Joseph D. Lento built his career on defending sexual misconduct cases. He knows how to win these cases because he's worked on so many of them and because, frankly, he deals with these kinds of cases day in and day out. He's defended literally hundreds of clients, just like you, from all kinds of sexual misconduct allegations—from allegations of sexual harassment and stalking to accusations of sexual assault and rape.

Joseph D. Lento knows the law—not just Title IX, but what rights you're entitled to as a student and what obligations your school is under in terms of how to treat you. Just as important, though, Joseph D. Lento understands how colleges and universities operate. He knows how to make sure you get the rights you deserve. He has experience negotiating settlements. He is dogged in pursuit of justice. When you need someone to help you fight your battles, you won't find anyone more qualified than Joseph D. Lento.

If you or your child has been accused of sexual misconduct, don't wait. The school is already building its case. It's time to build your defense. Contact the Lento Law Firm today at 888-555-3686 or use our automated online form.

Contact Us Today!

footer-2.jpg

If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact the Lento Law Firm today, and let us help secure your academic career.

This website was created only for general information purposes. It is not intended to be construed as legal advice for any situation. Only a direct consultation with a licensed Pennsylvania, New Jersey, and New York attorney can provide you with formal legal counsel based on the unique details surrounding your situation. The pages on this website may contain links and contact information for third party organizations - the Lento Law Firm does not necessarily endorse these organizations nor the materials contained on their website. In Pennsylvania, Attorney Joseph D. Lento represents clients throughout Pennsylvania's 67 counties, including, but not limited to Philadelphia, Allegheny, Berks, Bucks, Carbon, Chester, Dauphin, Delaware, Lancaster, Lehigh, Monroe, Montgomery, Northampton, Schuylkill, and York County. In New Jersey, attorney Joseph D. Lento represents clients throughout New Jersey's 21 counties: Atlantic, Bergen, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Hudson, Hunterdon, Mercer, Middlesex, Monmouth, Morris, Ocean, Passaic, Salem, Somerset, Sussex, Union, and Warren County, In New York, Attorney Joseph D. Lento represents clients throughout New York's 62 counties. Outside of Pennsylvania, New Jersey, and New York, unless attorney Joseph D. Lento is admitted pro hac vice if needed, his assistance may not constitute legal advice or the practice of law. The decision to hire an attorney in Philadelphia, the Pennsylvania counties, New Jersey, New York, or nationwide should not be made solely on the strength of an advertisement. We invite you to contact the Lento Law Firm directly to inquire about our specific qualifications and experience. Communicating with the Lento Law Firm by email, phone, or fax does not create an attorney-client relationship. The Lento Law Firm will serve as your official legal counsel upon a formal agreement from both parties. Any information sent to the Lento Law Firm before an attorney-client relationship is made is done on a non-confidential basis.

Menu