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Defining Sexual Assault and Incapacitation: Have Schools Missed the Mark?

Posted by Joseph D. Lento | May 21, 2018 | 0 Comments

Due to the implementation and enforcement of Title IX in schools, federally funded institutions are required to resolve complaints of sexual misconduct. This is a huge task to ask of authorities who were once solely accustomed to handling academic related issues. Despite the Department of Education's efforts to make the Title IX process feasible, there are still some significant issues in the laws enforcement, methods, and practices that are slighting the very demographic its intended to benefit: students.

Among these issues is the establishment of Title IX violations. The most popular example of prohibited conduct under this law is sexual assault - one of many forms of sexual misconduct. The legal standard regarding the constitution of sexual assault in some states is oftentimes inconsistent with the standard upheld in schools. Particularly, the elements of drunkenness and incapacitation distinguish these definitions further.

For example, the legal standard for sexual assault in most states clearly distinguishes intoxication and incapacitation. Studies reveal that a person's level of intoxication must be extreme to warrant any consideration of possible incapacitation. Yet, some schools continue to conflate the two separate alcohol-induced states.

A book titled “The Campus Sexual Assault Study” has become the blueprint for schools developing working definitions of consent and implementing effective guidelines. It's cited by the OCR and the White House Task Force. The book posed questions that could help determine whether an incident did involve sexual assault. A sample question that is used by schools today reads: “Has someone had sexual contact with you when you were unable to provide consent… because you were passed out, drugged, drunk, incapacitated, or asleep?” This question converges with intoxication and incapacitation, creating a major problem for accused students who maintain the belief that they partook in a consensual interaction, and actually did by criminal law standards.

The element of awareness in respondents has also been a concern. Under the law, the accused must be, at the very least, negligent to an alleged victim's incapacitation in order to constitute sexual assault. This important element can be easily overlooked in school cases, especially if school and criminal definitions don't necessarily align. Therefore, incidents that would not be counted as sexual assault under criminal standards are still labeled as an assault on academic records.

Other missteps displayed by schools include the failure to properly define “incapacitation” and “effective consent.” Vague, shallow and erroneous presumptions of incapacitation (like blacking out, slurred speech, etc.) are being used as standards to establish sexual assault. The lack of carefully crafted, comprehensive, and uniform definitions opens the door for the unwarranted persecution of innocent students whose partners had the capacity to provide consent.

Title IX Attorney Helping Clients Nationwide

If you've been accused of violating Title IX at your college or university, you need the help of a skilled student defense attorney. Contact national Title IX attorney Joseph D. Lento online or give him a call at 888-535-3686 for help.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges across the United States while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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