What Does Consent Mean Under Title IX?

A sexual misconduct allegation is among the most serious charges a college student can face. In the modern era, schools have absolutely very little flexibility in how they respond to such allegations. If you are accused, you can be sure you will be vigorously investigated. It is no easy matter to defend yourself in these cases, and the consequences, if you are found responsible, can be life-changing. Suspension is usually the minimum penalty a school will assign. More likely, they will try to expel you.

Consent is almost always the central concern in Title IX cases. Typically, both sides have a story to tell, and the main question is whether or not the complainant willingly engaged in a sexual act. If you've been accused, you almost certainly believe that they did. Meanwhile, they insist that they didn't. Who's right may come down to how your school chooses to define “consent.”

If you are accused in an actual court of law, of course, you are presumed innocent until proven guilty. That means the prosecution has the burden to prove the “absence of consent.” If it isn't absolutely clear that the sex was non-consensual, you can't be convicted. Unfortunately, it doesn't work this way on campus. In a Title IX hearing, deciders must only be more than 50 percent certain that you are responsible for committing a violation. If they believe it is “more likely than not” that you didn't have the complainant's full consent, you will be found responsible.

If you've been accused of sexual misconduct under Title IX, it is crucial that you understand how investigators and hearing officers will define consent in your case. Their choices will play an enormous role in how you defend yourself and could very well determine your entire future.

What Is Title IX, and What Does it Have to Say About Consent?

Let's not beat around the bush. Here's what you need to know right now: What does Title IX have to say about consent, and how is it relevant to your situation?

First, what is Title IX?

Title IX is a federal law passed in 1972 that prohibits sexual discrimination and harassment in any education program that receives government funding. For many years, schools investigated virtually all instances of sexual misconduct under Title IX. In fact, the law continues to be used in most college and university cases.

Title IX is a complex law with a complicated history that continues to evolve. We'll get into all of that. For now, you need to know that it dictates how schools respond to allegations of misconduct, and it outlines the set of procedures they must follow in investigating and adjudicating such cases.

Most accusations of sexual misconduct come down to issues of consent. That is, was the complainant a willing participant in a sexual act or not? What, then, does Title IX actually say about consent?

Current Title IX guidelines, which went into effect in August 2020, say this: “[the government] will not require recipients [schools] to adopt a particular definition of consent with respect to sexual assault, as referenced in this section.” (Final Rule Section 106.30)

Translation: the federal government refuses to explain what “consent” means. Instead, each school must decide for itself how it defines the term and ultimately what constitutes a Title IX violation. The only rule the government has set out is that schools must pick a definition and stick with it. Once it decides what consent will mean, a school must write that definition into their Title IX policy, it must be public knowledge, and the school must enforce it consistently.

The bottom line is this: We can't tell you on this page exactly how your school defines consent since every school defines it a little differently. There are some common elements to these definitions that we will get into below, but there are no absolutes.

However, your school does have a policy, and they are required to make that policy public. That means before you read any further, you should take the time to visit your school's Title IX web pages and find out exactly what they say on the subject of consent.

General Principles of Consent

There are some general principles about sexual consent that virtually all schools agree on.

  • Silence or the absence of resistance doesn't imply consent. Even if a person doesn't actually say “no,” their partner is expected to recognize when their body language indicates they do not consent.
  • Consenting to one activity doesn't mean consenting to others. Just because a partner consents to kissing doesn't mean they consent to go further. Even if they consent to something like oral sex, it doesn't necessarily mean they are willing to have sex.
  • Prior consent doesn't presume further consent. You cannot assume that just because someone has had sex with you in the past that they are willing to do it again. This is true even for couples involved in serious relationships.
  • No one can consent if they are incapacitated. If a person is incapable of making a sound judgment, they cannot consent to sexual activity. This includes being drunk, passed out, or simply asleep. In addition, persons with mental deficits may not be able to give proper consent, and, of course, anyone underage cannot consent to sexual activity.
  • Consent under duress is not consent. Someone may say they agree to sex, but if they do so under some type of threat, they are not truly consenting. Obviously, this includes the threat of physical violence. However, it can also apply in situations where one partner is in a position of authority over another. In such cases, the subordinate may participate because they fear that refusal will cause unwanted repercussions.
  • Consent can be withdrawn at any time. Even if both partners have agreed to participate in sexual activity and are already engaged in it, either can decide to end it, and their partner must respect their decision.

Subtleties of Difference

Despite some agreement, however, it's important to recognize that every school defines consent in its own way. Minor differences in wording can often have a large impact on just what is acceptable under Title IX and what is not. These differences generally occur in one of three areas:

  • The ability to provide consent: The central question here is how to define “incapacitated.” Does one drink, for example, render someone incapable of giving consent?
  • How consent is given/ expressed: While most schools agree that it isn't necessary to say “no” to indicate your unwillingness to participate in sexual activity, they differ in what they expect when it comes to affirmative consent. Some insist both partners must verbally agree to any activity. Others maintain that non-verbal signs can signal willingness.
  • Relationship dynamics: No one can consent if they are under duress, but different schools define duress differently. Some, for example, prohibit any sexual activity between students and instructors. Others allow these relationships as long as the student isn't actually enrolled in the instructor's course.

How different can definitions of consent be? On the surface, most school policies seem pretty similar to one another. Again, however, small differences can have an enormous impact.

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

This definition is fairly standard in that it requires “affirmative consent.” That is, participants must make clear they want to participate. Further, as the policy goes on to say, just because a person doesn't say “no” does not mean they are giving consent. However, participants aren't required to state verbally that they are willingly engaging in a sexual activity. Physical actions can be taken as a sign of willingness.

In contrast, California's Sierra College’s policy is far more restrictive. While it notes that consent can be non-verbal, it requires willingness to be signaled through verbal-based gestures, “e.g., high-five, thumbs up, head nod ‘yes,' etc.”

In other words, even active participation in the sexual act itself may not necessarily constitute consent. Consent must be communicated directly.

Further, the school makes clear that no one under the influence of drugs or alcohol can give consent. This essentially means any act performed after one partner has had even one drink could be described as “non-consensual.”

These differences suggest not only that it is important for you to know how your school defines consent but also that you must read their definition carefully in order to understand exactly what is and isn't acceptable.

Miscommunication

On paper, consent can seem like a fairly straightforward matter. After all, we can all agree that having sex with someone who is unconscious undermines their ability to provide affirmative consent. Likewise, most everyone would accept the idea that agreeing to kiss someone doesn't necessarily imply you are willing to have intercourse with them.

Even so, issues of consent aren't always as black and white as they may seem. One important complication, for instance, has to do with our ability to communicate.

At our best, humans don't communicate very effectively. If you've ever had an argument over the content of a text, you know how hard it can be to understand and be understood. You typed that you were feeling “fine,” but your definition of fine may not be the same as the person who gets your message. Words are merely a placeholder for our rich human experience, and they can never fully capture what we feel inside of us.

Throw sex into the mix, and things can become even more complicated.

It sounds simple to say that you must know for certain that someone is willing to engage in sexual activity before you actually do it. In practice, though, obtaining that kind of clarity isn't always a simple matter. The fact is, sex can be an awkward activity for many people. That is especially true if you are young and relatively inexperienced. One or both parties may have trouble expressing themselves, especially in words.

And while no one would argue that someone must say “no” in order to refuse consent, the requirement that we all be skilled at reading body language and non-verbal signals creates its own problems. Often, we don't even agree on what a particular facial expression means. We certainly don't all engage in sex in the same way. Sierra College suggests that both parties must be “enthusiastic” about the act, but how we express our physical excitement and pleasure may not always meet the strict definition of that word. If someone closes their eyes during the act, does that necessarily suggest they have withdrawn consent?

In addition, we don't all have the same ability to recognize non-verbal cues. To give an extreme example, those on the autism spectrum may not understand that lying still or looking unhappy means a participant is refusing consent. Leaving aside any disabilities, an eighteen-year-old is still an eighteen-year-old and may struggle to pick up on subtle cues.

Miscommunication, of course, is not an excuse to ignore clear signs 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.

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 anyone 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.”

The only indisputable way to tie alcohol consumption to capacity, for instance, is to say, as Sierra College does, that one drink renders someone incapable of providing consent. The question is, just how practical is a rule like that? Is it reasonable to expect that people who drink won't have sex and vice versa?

Otherwise, it's 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 they have sex.

There are more fundamental questions, though, 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 sometimes over-generalize about who has that ability and who doesn't.

The Emotional Component

Emotions can play a significant role in any sexual activity. Passion is an important aphrodisiac. It's not unheard of, in fact, for some couples to enjoy “angry sex.” Others get turned on by being submissive. These kinds of preferences can complicate how we view the issue of consent.

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. It's not surprising then that some people decide after they've had sex that they didn't actually want to have sex.

In fact, 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. Leaving aside questions about why a person would do this, a number like that suggests that a good many people may feel regret for at least one sexual encounter they've had in their lives. Where is the line, though, between regretting sex and deciding that sex was “non-consensual”? When a school judges a case, it may think that line is always bright and shining. The truth is our feelings are almost never so cut and dried. It can be hard to decide how we ourselves feel about something that happened, let alone trying to sort out how others may have felt about their experiences.

The Problem of Title IX Itself

While issues of consent are tricky, the bigger problems when it comes to sexual misconduct cases have to do with Title IX itself. As with so much else relating to sexual misconduct, the law may seem clear, but in practice, it is anything but. In fact, events over the last ten years have made it increasingly difficult to know just what Title IX even means anymore.

The law was originally designed to correct a very real problem: discrimination and harassment on college campuses. In the late 1960s and early 1970s, before Title IX was passed, colleges and universities could sometimes be openly hostile towards women. There were many double standards: women were barred from studying certain subjects; they were often subject to strict curfews and dress codes; some schools didn't even allow women to enroll without a parent's permission. Title IX helped to change all that. It was an important early step in the march towards women's rights.

The law's intent is clear enough. The central text of Title IX reads,

“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.”

From the beginning, though, no one was quite certain how to define “harassment” and “discrimination.” As a result, the law became a kind of social and political football that could be used by this or that group to try and influence cultural behaviors.

For instance, in 2011, the Obama administration wanted to send a clear message about its support for women's equality. In what has come to be known as the “Dear Colleague Letter,” the Department of Education advised schools to believe all accusations of sexual misconduct. In addition, this letter expanded the definition of “harassment” to include “hate speech.”

In 2020, the Trump administration decided to weigh in on Title IX as well, issuing its “Final Rules,” a set of guidelines on how investigations and hearings should be conducted. Once again, the intent was plain: conservatives wanted to restore balance to campus justice by affirming the rule of law. To accomplish this task, the Final Rules limited schools' jurisdictions, redefined “discrimination” and “harassment,” and restored a number of due process rights to accused students.

Not to be outdone, the Biden administration is already hard at work undoing Trump's actions. Biden has commissioned a committee to investigate rolling back the “Final Rules.” While he waits for that committee's report, he has made important moves to change the way the law is enforced. In June 2021, the Office of Civil Rights in the Department of Education instructed schools to extend discrimination prohibitions to transgender students. The office followed this up in July 2021 with a “Questions and Answers” document. That information was ostensibly designed to clarify Trump's “Final Rule.” In fact, many of the “answers” deliberately looked for ways to undermine or ignore the Final Rule's intent.

What does all of this have to do with consent? It demonstrates just how unstable the definition of that term under Title IX actually is. By refusing to define “consent,” for example, Trump refused to allow the federal government to set a clear set of standards for what constitutes “responsibility” under Title IX. The hope was that schools would be relaxed in how they chose to define it. The “Questions and Answers” document was meant to counter this argument by reminding schools that they had the power to define “consent” and encouraging them to do so in more rather than less strict ways.

In the end, this legal and political wrangling has left the issue of how to define consent more unresolved than ever. Schools can take advantage of this fact to treat respondents as they see fit rather than in ways that are fair and just.

The Title IX Process

If you have been accused of a Title IX violation, what exactly are you facing? That is, according to the Final Rules—which remain in place, at least for now—how do investigations and hearings proceed?

Under current law, a formal allegation must originate with your school's Title IX Coordinator. Only a complainant or the coordinator can file such a complaint. If the coordinator decides to move forward with the case, they then appoint an investigator to pursue the matter.

The investigator interviews both the complainant and the respondent. In addition, they collect evidence relating to the accusation. This includes physical evidence such as video, pictures, text messages, clothing, and dorm logs. It also includes witness testimony from anyone with knowledge of what happened.

Both the complainant and the respondent have the right to select an advisor to help them through the Title IX process. This advisor can be an attorney. To some extent, schools can limit how much advisors can participate in the investigation and hearing. The law only guarantees that advisors must conduct all cross-examinations during the hearing. However, in practice, most schools allow advisors to accompany students to all interviews and pre-hearing meetings and to participate fully in gathering evidence and questioning witnesses. Title IX is very clear on one point: the school must treat complainant and respondent advisors equally. If the respondent's attorney cannot attend interviews, neither can the complainant's.

Your school will have set a specific period in which an investigation can take place. Many schools, for instance, limit investigators to sixty days from the time a complaint is officially filed. At the end of this period, investigators must submit a written report to both parties. The complainant and respondent have the opportunity to respond to this document. Then it is submitted to the Title IX Coordinator's office, and the coordinator appoints a Hearing Officer to oversee the next phase of the case.

Just as with the investigation, schools have some discretion as to how Title IX hearings should proceed. Many schools appoint a committee to hear the evidence. Some, however, allow the Hearing Officer to serve as the sole official in charge of the proceedings. Students must present their own opening and closing statements. However, only advisors are allowed to question witnesses. If a student doesn't have an advisor, the school will appoint one for them but is under no obligation to hire an attorney to serve in this role.

The school may allow advisors to present their clients' cases, introduce evidence, and question witnesses. However, they are also entitled to restrict the advisors' roles to some extent. The school can, for instance, require advisors to submit all questions to the Hearing Officer before those questions get asked.

The case decider(s) are required to hear the case in its entirety. That is, they cannot merely rely on the investigator's report in rendering their decision. It is also important to note that almost all schools use the “Preponderance of Evidence” standard in determining the outcome of the case. Unlike the “Guilty Beyond a Reasonable Doubt” standard, this less rigorous standard only requires that deciders believe events are “more likely than not” to have occurred. Defense attorneys often refer to this as the “fifty percent plus a feather standard.”

Often, cases come down to one person's word against another, and consent is the major question at issue. The “Preponderance of Evidence” standard essentially means that deciders only need to believe it is more likely than not that the sex was non-consensual in order to find you responsible. That can mean cases come down to who seems more believable.

Title IX Sanctions

Sanctions are yet another area where Title IX has nothing to say. Title IX itself threatens schools with funding: any school that isn't dealing appropriately with discrimination and harassment accusations risks losing its federal dollars. The fact that schools fear this possibility and don't have any clear guidance from the government means that most schools err on the side of being too strict in their punishments.

In their official policies, schools generally say that a range of sanctions are on the table in sexual misconduct cases. These might include verbal warnings, removal from campus housing, written apologies, restitution, or mandated counseling.

However, the reality is that schools rarely sanction responsible students with anything less than suspension. The far more common penalty for sexual misconduct is expulsion.

Expulsion itself can be traumatic. It 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. However, expulsion usually has larger repercussions than simply being removed from your school. If you are expelled from a state school, you probably won't be allowed to enroll at any other state school. In addition, most colleges and universities these days include a transcript notation that outlines the reason you were expelled. With a sexual misconduct notation, you will likely find it hard if not impossible to find any school—inside your state or out of it—that will accept you. You may also be barred from receiving financial aid such as grants, loans, and scholarships.

Expulsion, then, may very well mean the end of your academic career. You probably recognize what that means. Studies over the past fifty years have consistently shown that employees without a college degree advance more slowly and earn less money over the lifetime of their careers than their college-educated peers. Without a college degree, you will likely have trouble finding a job, establishing a career, and rising in your chosen profession.

What to Do if You're Accused

Given the various definitions of consent out there, anyone can find themselves charged with a Title IX violation at any time. In some places, simply having sex when both of you have had a beer is enough to wind up accused. Or maybe you've misread a partner's signals. Perhaps your school requires you to get verbal permission, and things escalated so fast that never happened. Whatever the case, students are accused every day.

What do you do if you find you're one of them?

First and foremost, you need proper representation. That means hiring an attorney, but not just any attorney. You may think it makes sense to hire a family or local attorney since they know you and they know your state laws. Title IX, however, is a federal law. More importantly, it's a very complex and confusing statute that can be interpreted in a number of different ways. You need a Title IX attorney, someone who has the qualifications and experience to understand all the intricacies of the law and to negotiate effectively with university administration.

Once you've contacted a Title IX lawyer, there are other steps you can take to protect yourself.

  • Don't contact the complainant. Your school will likely institute a no-contact order between the two of you, but even if it doesn't, you must stay away from the complainant. It can be tempting to try and solve the problem yourself. The complainant might be someone you know, maybe even someone you had a close relationship with. You may believe that if you can simply discuss the issue of consent and your intentions, you can solve the problem. Unfortunately, it is too late for that. Once your school has instigated a Title IX investigation, they may not stop even if your accuser withdraws their accusation. The reality is that's unlikely to happen. Instead, your attempts to contact the complainant will be taken as a sign that you are trying to interfere with the justice process and may very well be used against you at a hearing.
  • Don't speak to investigators or school officials without consulting your attorney. You have the right to representation. Your school may tell you that they don't allow your attorney to attend investigative meetings. That's a violation of your due process rights and can be used in a civil suit if you are later found responsible.

At a minimum, you should consult your attorney about all the answers you provide to authorities. You may know you are innocent and think all you need to do is explain what happened. At this point, though, the school is actively trying to prove your guilt, and anything you say—even in your defense—could be misconstrued and used against you.

  • 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 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.
  • Do all you can to help your attorney. Take the time early on to sit down and write down your version of events. This will help your attorney to organize a defense. Many clients dispose of evidence or don't tell their attorneys about potential witnesses because they are afraid an item or a witness will make them look bad. A qualified attorney, though, might know how to use that piece of evidence to your advantage.
  • Take care of yourself. It is easy to become overwhelmed during a Title IX investigation. Your life is being turned upside down. You're facing accusations that may be extremely hurtful. You're doing all this while trying to be a student. Make sure you take of your physical and mental health. Try to keep your life as normal as possible. Establish routines. Consider how counseling might help you keep your stress levels under control. You cannot hope to successfully defend yourself if you lose perspective on what's happening to you.

Attorney Joseph D. Lento Understands Title IX Defenses

Sexual misconduct cases can be incredibly complex. You aren't being tried in a court of law, and the rules and procedures are sometimes set up to favor the complainant. Title IX isn't at all clear in terms of how you should be treated—the law is constantly being revised and reinterpreted. Issues like consent aren't easy to understand and can involve extremely subtle distinctions. Your school likely has motivations that have nothing to do with making sure justice is done.

You need professional representation.

Attorney Joseph D. Lento built his career on Title IX cases. He knows how to win these cases because these are precisely the kinds of cases he focuses on 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 hate speech and stalking to accusations of sexual assault and rape.

Attorney Joseph D. Lento knows the law—he knows its history, and he knows the politics around it. 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. You need someone in your corner who will fight for you. Joseph D. Lento will do just that.

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

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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.

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