Title IX and Affirmative Consent

It's every student's nightmare, being accused of sexual assault by a fellow student. A sexual assault accusation can ruin lives and tarnish reputations. Moreover, the consequences of failing to defend yourself vigorously are severe. If a college or university finds you culpable, you could face suspension, expulsion, and loss of your degree.

There's no doubt that American colleges and universities have a sexual assault problem, facing an unprecedented number of sexual assaults and violence on their campuses. The American Association of American Universities surveyed 27 colleges, finding that one-third of female college seniors had experienced unwanted sexual contact during college. However, only 28% of students reported the incidents. A later study by the AAAU showed a 13% rate of nonconsensual sexual contact by force or inability to consent.

But it's important to remember that many incidents of sexual contact in college may be unclear, failing to rise to the level of rape or assault. Even if an incident blurs the lines, colleges and universities are legally obligated to investigate and remediate unwanted sexual contact. If you're heading off to college, or if someone has accused you of a Title IX violation, it's essential to understand the legal standards to protect your rights.

What is Title IX?

Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., is a federal civil rights law prohibiting sex-based discrimination in federally funded education programs. The law applies to K-12 schools as well as federally funded colleges and universities. Title IX states:

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.

While Congress created Title IX to prohibit discrimination in things like school admissions, athletics, benefits, and employment, the law has since widely expanded its reach through court decisions and federal regulations. As a result, Title IX now includes sexual assault, dating violence, sexual harassment, and stalking in federally funded schools as gender-based discriminatory behavior. If a school knows or should have known, about an incident covered under Title IX, it is obligated to:

· investigate the incident,

· stop the behavior and prevent it from recurring,

· address the effects,

· protect the complainant, and

· provide grievance procedures.

A school is obligated to investigate sexual assault and harassment incidents even if no student makes a complaint.

Criminal Versus School Disciplinary Procedures

In prosecuting criminal sexual assault and other sexual offenses, the burden is on the prosecution to prove that there was no consent. If there is reasonable doubt, the decision falls on the side of the defendant. As a result, a judge or jury is much less likely to find a criminal defendant guilty of behaviors that fall into the gray area. However, in a Title IX student disciplinary case, a student accused of sexual assault has the burden to prove that there was consent. As a result, the school often resolves any doubts in favor of the accuser. Because the burden of proof is so much lower in a school disciplinary proceeding, school conduct boards can find in support of the accuser if the evidence leans only slightly in that direction.

Defining Consent

Before heading off to school, it's a good idea to understand the legal definition of consent and when someone can't give consent. Affirmative consent means “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The responsibility should fall on both parties to ensure they have the affirmative consent of the other party. A lack of protest, a failure to resist, or silence is not consent. Either party can also withdraw affirmative consent.

In some cases, a person may not be legally capable of consenting. For example:

· Someone under 18 is not able to affirmatively consent to have sexual contact. A minor is considered legally unable to grant consent.

· An individual who is intellectually disabled may not be able to consent to sexual relations legally.

· Some people with physical disabilities may also be unable to consent legally.

· People who are impaired by drugs or alcohol may also be unable to consent to sexual contact.

Drugs, Alcohol, and Affirmative Consent

If someone is physically and mentally incapacitated because of alcohol or drug use, whether voluntary or involuntarily, they are incapable of consenting to sexual activity. Moreover, if you know or reasonably should have known your partner was incapacitated, you cannot engage in sexual contact with that person under Title IX.

If someone is unconscious, it seems apparent that they can't consent. But determining whether drugs or alcohol have impaired someone's ability to consent is a subjective standard. There is no red line or set blood alcohol level, degree of intoxication, or drug use that makes someone incapacitated or unable to consent. Is someone who is “stumbling drunk” incapacitated? What if they are slurring their words but still able to walk? As you can see, there is no clear standard. As a result, the school will have a great deal of discretion to determine the matter.

Examples Where the Victim Could Not Consent

The most famous recent example of sexual assault and an incapacitated victim involves Brock Turner, a former Stanford swimmer. A court convicted him of sexually assaulting an unconscious woman in an alley behind a fraternity house. At trial and sentencing, Turner claimed that his victim had consented to the sexual encounter.

Brock Turner may be the most famous recent assailant of an incapacitated victim, but it happens more often than we'd like to think. In March this year, police arrested 20-year-old Terry Wayne Sloane, a fraternity member at Rose-Hulman Institute of Technology in Terra Haute, Indiana. The victim was visiting Sloane at his fraternity and consumed most of two bottles of wine while playing drinking games. She later described herself as “stumbling drunk” and went to sleep on a couch. She woke up with Sloane allegedly assaulting her.

In 2013, a Northeastern University student was allegedly sexually assaulted after a Halloween party in her dorm. She claimed that after she got sick from drinking, another student, also drunk, took her back to his dorm room and raped her. The university found the student not guilty of violating the school's code of conduct.

These cases demonstrate that consent is a tricky thing when you have been drinking or using drugs. Alcohol and drugs can impair both your judgment and you and your partner's ability to consent to sexual contact.

Frequently Asked Questions About Consent and Title IX

1. How do I know if someone is incapacitated and can't consent?

Signs that alcohol or drugs have incapacitated someone include bloodshot eyes, slurred speech, stumbling or unsteady walking, inability to focus eyes, confusion, vomiting, inability to communicate or understand the situation, and unconsciousness.

2. Does Title IX apply if both of us were drunk?

If a person is high or drunk and incapacitated, they cannot consent to sexual activity. If you are aware of this and continue to engage in sexual activity, you could be found guilty of committing sexual assault. Unfortunately, if you are both incapacitated, there is no clear cut answer. Often schools will side with the party that first reports the incident, even if both parties were under the influence.

More recently, some courts have ruled that it is discriminatory to punish only one student if they know both were incapacitated. In some cases, schools will try to determine who initiated sex, assuming that the initiator is the guilty party, in a ridiculous game of drunken he said/she said. It's not a great idea to have sex under the influence of drugs or alcohol.

3. Does Title IX apply if the complainant and the alleged perpetrator are the same genders?

Yes, Title IX does apply to same-sex sexual assaults. The school's obligation to investigate and remediate is the same irrespective of the students' gender or sexual identity. Title IX's sex discrimination protections extend to claims of discrimination because of gender identity or failure to comply with the norms of typical gender stereotypes. A school will investigate and pursue allegations between same-sex couples in the same manner as other claims.

4. If someone accuses me of sexual misconduct under Title IX, what are my rights?

Under Title IX, both the complainant and the accused have a right to due process in all hearings and investigations. The school may violate your due process rights if:

· The student conduct hearing panel is biased or inadequately trained;

· You are not allowed to admit evidence;

· You aren't allowed to cross-examine witnesses or the accused through an attorney or advisor;

· The school interferes with your attempts to communicate with an attorney;

· The school applies the wrong standard of proof; or

· The school fails to disclose the evidence against you.

What Should I Do If Someone Accuses Me of Sexual Assault?

If someone accuses you of sexual assault, it's important to remember that this is a serious accusation. Even if the allegations are false, you could face criminal charges in addition to disciplinary procedures through your school. You could also face a civil suit from your accuser.

1. Call your parents.

As soon as you hear that someone has accused you of sexual assault, you should call your parents. This can be an awkward conversation, but your parents are most likely to be on your side. Your parents can help you find an experienced student defense or criminal attorney, and they can help you through this difficult time.

2. Don't trust your school.

You should never speak to anyone from your school's administration alone. Your school may use anything you say to school officials, your professors, and even your friends at school. You should also refrain from using your school email, particularly to discuss the allegations against you. You should assume that the school has access to all of the emails that you send and receive.

3. Take the allegations seriously.

While it can be tempting to think you can simply ignore a false accusation or handle it yourself by telling your side, you do so at your peril. It's far more difficult to appeal the school's determination after they've found you guilty and handed down severe sanctions. And the consequences of a guilty verdict can be grave. Your school may impose sanctions such as:

· Requiring a formal apology;

· A no-contact order;

· Removing you from campus housing or changing your living arrangements;

· Changing your schedule;

· Suspending you, causing you to lose class credits and interrupting your education;

· Expulsion;

· Withholding, retracting, or revoking your degree

In addition to expulsion, you could face criminal charges or a civil suit from your accuser. If you are found guilty of sexual assault through the criminal justice system, you could face jail time and may need to register as a sex offender. These allegations will follow you for the rest of your life.

4. Hire an attorney.

Title IX cases can be complex and complicated, implicating federal civil rights law and your school's published disciplinary procedures. They also tend to move fairly quickly. Under the U.S. Department of Education's Office of Civil Rights recommendations, your school should investigate and resolve a Title IX complaint in a timely manner.  Such a requirement can, depending on the circumstances, be adverse to an accused student's interests and rights especially if there is a rush to judgement. There is no time to lose under any circumstances, however. You need an attorney who is well versed in Title IX cases and student disciplinary law.

An attorney can ensure you receive the details, evidence, and witness statements related to the allegations against you. Your attorney can also ensure you have the opportunity to cross-examine your accuser and any witnesses related to the matter.

Finally, your attorney will ensure that your school gives you all of the due process rights to which you are entitled, including a full and impartial hearing and preserving all of your appeal rights.

Contact Attorney Joseph D. Lento

Attorney Joseph D. Lento specializes in student discipline cases. He has extensive experience handling Title IX cases, including sexual assault, harassment, and stalking claims. Mr. Lento has represented clients at thousands of clients across the country, working hard to protect their rights and their academic and professional futures. Call him at 888-535-8636 or online

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