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What is Considered Sexual Violence in a College Title IX Case?

Posted by Joseph D. Lento | Jul 25, 2017 | 0 Comments

When a student is accused of Title IX sexual misconduct, whether at a college or university in Pennsylvania, New Jersey, or nationwide, the allegations against the accused often involve "sexual violence." As difficult as the Title IX campus disciplinary process can be to understand for students and parents, language used in Title IX cases may also not help alleviate a family's potential concerns. Understanding what acts will constitute sexual violence as defined by Title IX policies will help students and parents understand what is at stake, and will also help them prepare for what is to come as a campus disciplinary case proceeds.

What is Title IX?  How does Title IX relate to campus disciplinary proceedings?

Title IX of the Education Amendments of 1972 (“Title IX”) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities. Among other educational institutions, colleges and universities nationwide that receive any federal financial assistance will be subject to Title IX policies. 

Because almost all colleges and universities in Pennsylvania, New Jersey, and nationwide receive federal funding, almost all schools will have to comply with Title IX to remain eligible to receive the "carrot" of federal funding.  It does not matter if a student attends undergraduate, graduate, business, law, or medical school, and it does not matter if a student is a traditional student or an international student for example; any school that receives federal funding will have to remain in compliance with Title IX policies or they will face the "stick" which is wielded by the United States Department of Education's Office of Civil Rights.

What role does the Department of Education's Office of Civil Rights play in Title IX campus disciplinary proceedings?

Because the Department of Education's Office of Civil Rights (DOE-OCR) plays such a critical role in how Title IX cases are handled at colleges and universities, an accused student and his or her parents should understand the mission, in theory, of both the Department of Education and the Office of Civil Rights.

The primary functions of the Department of Education (DOE) are to "establish policy for, administer and coordinate most federal assistance to education, collect data on schools [including colleges and universities throughout the nation], and to enforce federal educational laws regarding privacy and civil rights [Title IX among other federal policies]."  Although the Department of Education does not establish schools or colleges, it's reach into what takes place in schools throughout the nation is comprehensive.

The Office of Civil Rights (OCR) is a sub-agency of the Department of Education.  The OCR primary focus is to protect civil rights in federally funded education programs and prohibiting discrimination on the basis of race, color, national origin, sex, sexual orientation, gender identity, handicap, age, or membership in patriotic youth organizations.  Title IX is invoked because as noted, almost all colleges and universities receive federal assistance, and are therefore subject to the oversight of the Office of Civil Rights. 

Although the stated mission of the Office of Civil Rights is to "ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights," the Title IX campus disciplinary process has become subject to severe criticism; despite the need to address sexual assault at colleges and universities in Pennsylvania, New Jersey, and nationwide, much of this criticism is warranted.

The reason that much of this criticism is warranted is because, among other concerns, an accused student's rights are often extremely limited in college Title IX cases; in addition to the campus disciplinary forum itself often not properly balancing the need to address a legitimate sexual assault victim's concerns with the need to ensure an accused student's ability to properly defend him or herself from allegations.  Such concerns put accused students at a severe disadvantage.

What does it mean to be accused of sexual violence at college?

Colleges and universities will bring disciplinary proceedings against a student accused of sexual misconduct under the respective school's Title IX policies, which are developed in accordance with federal mandates.  Although different colleges and universities will often have their own specific Title IX disciplinary policies and procedures, almost all schools' policies will follow a standard paradigm.  One such characteristic shared among various schools is how sexual violence is defined.  Although a student can be accused for various forms of misconduct under Title IX, sexual violence will often be the most severe in light of the general nature of kinds of acts which fall under the term.

What is sexual violence under Title IX?

The Department of Education's Office of Civil Rights has specifically defined what sexual violence entails as it relates to college and university disciplinary proceedings.  Sexual violence refers to physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent (for example, due to the student's age or use of alcohol or drugs, or because an intellectual or other disability prevents the student from having the capacity to give consent).  Unlike verbal or emotional sexual misconduct, the DOE-OCR specifically defines sexual violence as a physical act. 

What acts are considered sexual violence at college?

The Department of Education's Office of Civil Rights has also outlined specific acts that will be considered as sexual violence.  These acts, when committed by a college student, will be considered Title IX sexual violence: rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.  Although sexual violence can be committed by others, including school employees or third parties, the primary concern as it relates to this article is sexual violence alleged to be committed by a college or university student; such a student will be known as the "respondent" when Title IX disciplinary proceedings commence. 

Related considerations arise, however, as they relate to who can commit sexual violence against another student.   For example, a student can be accused of committing sexual violence at a school other than where he or she attends.  In such an instance, a student may be visiting a friend at another college or university.  At the friend's college or university, it may be alleged that the visiting student committed sexual violence against a student at the school where he or she was visiting.  Such a scenario is not uncommon, and it would be likely that both schools' Title IX offices would become involved in the investigation and adjudication of such a case.

In some instances, a student, known as the "complainant," will accuse a third party, a non-student for example, of committing sexual violence against him or her.  Although the complainant's school would not have "jurisdiction" over a third party in the traditional sense, the Title IX office at the complainant's school will be responsible for addressing the matter.  When a Title IX complaint involving sexual violence is alleged, it can be expected that colleges and universities will recommend that the complainant contacts local law enforcement (if the school does not do so itself).  When a third party is accused of committing sexual violence, the involvement of local law enforcement may allow the complainant's allegations to be more comprehensively addressed than may be the case otherwise.

Why is sexual violence covered under Title IX?

Among other considerations, Title IX prohibits sex discrimination as noted above.  Although Title IX cases are often extremely involved, with many possible distinctions and implications, ultimately, whether a student is accused of rape, sexual assault, sexual battery, sexual abuse, or sexual coercion, all such acts will be considered sexual violence, and as such, are forms of sex discrimination prohibited by Title IX.

Pennsylvania & New Jersey Title IX Student Defense Attorney

The possibility of being found responsible aside, merely being accused of Title IX sexual misconduct can be devastating for a student and his or her family.  The stakes will always be high, and what a young person has worked so hard for his or her entire life can be gone in an instant if the proper steps are not taken to defend against Title IX allegations.  When sexual violence is alleged, however, due to the nature of the acts that fall under the definition as recommended by the DOE-OCR, the stakes will be that much higher. 

If you or your student is accused of sexual violence, make sure your interests are protected and represented.  Contact attorney Joseph D. Lento today.

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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