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Definitions of Consent & Sexual Misconduct Under Title IX

One minute you’re going to class in hopes that you’ll do well on the quiz; the next, you’re being told you must immediately leave campus. For many students across the United States, this isn’t a bad dream, but a reality of an accusation of sexual misconduct under Title IX. Unfortunately, there is much misinformation concerning Title IX sexual misconduct that must be corrected: let’s get started. 

What Is Sexual Misconduct Under Title IX?

In 1972, the United States Department of Education’s Office for Civil Rights (OCR) enacted the Title IX Education Amendment.

The Title IX amendment proclaims that all educational programs that receive Federal financial assistance must adhere to this policy:

“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.”

Title IX declares that sexual harassment/misconduct is an act “that interferes with, denies, or limits an individual’s ability to participate in or benefit from the university’s educational programs or activities. “ Therefore, sexual misconduct is seen as an act that denies someone the benefits of an education.

Under Title IX, definitions of sexual misconduct, and act constituting sexual misconduct, vary based upon each school’s policy prohibiting sexual misconduct.  That is just one of the reasons it is important to have an experienced Title IX attorney on your side when your school begins an investigation into your conduct.

Under Title IX, sexual misconduct can include any of the following

  • Unwelcome sex-based (or gender-based) verbal comments;
  • Unwelcome sexual advances that are persistent in nature;
  • Unwelcome sexual violence against an individual;
  • Unwelcome and intentional sexual contact* however slight, with any body part or object, by an individual upon another that is without consent and/or by force or coercion;
  • Unwelcome sexual intercourse;
  • Domestic abuse; and
  • Stalking.

*Sexual contact is defined as any non-consensual intentional contact with the breasts, buttock, groin, and genitals; or forcing others to touch these places on an individual’s body

Under Title IX, sexual exploitation (a subset of sexual misconduct) can include any of the following nonconsensual acts

  • Voyeurism l (the act of watching others have sex or be naked);
  • Exposure of genitals;
  • Exposure of another’s genitals;
  • Breaking of boundaries of consent (someone allowing a friend to watch them have sex);
  • Invading sexual privacy by sending nude or semi-naked picture to others without the recipient’s consent to do so;
  • Knowingly transmitting a sexual disease;
  • Sending nude photos or videos of someone else without their consent to do so;
  • Using alcohol or drugs on another in order to make the other mentally or physically incapacitated; and
  • Prostituting others.

What Is Consent Under Title IX?

As you can see from the definitions of sexual misconduct, consent plays a vital role in an accusation under Title IX; therefore, it is crucial to determine the definition of consent. Consent under Title IX is clear, knowing, voluntary, and expressed permission through verbal or over physical actions prior to engaging in, and during, a sexual act.

Other aspects of consent as defined by Title IX include:

  • Consent for one sexual activity does not imply consent to other sexual activities;
  • Consent may be withdrawn at any time;
  • Consent is active, not passive: silence cannot be interpreted as consent;
  • Consent made before an act does not override refusal before or during an act
  • Consent cannot be given by someone who is obviously and substantially judgment-impaired (by intoxication from alcohol, from drugs, who is unconscious, or impairment from sleep deprivation);
  • Consent is nullified in situations where the person is coerced, physically threatened, or deceived into a sexual act; and
  • Consent is nullified in situations where the person is unaware of the act being committed.

While many Title IX regulations are straightforward, there are other aspects of these rules that are less than concrete, especially as it pertains to people’s sexuality.  For example, consent to sexual contact on one area of the body does not give consent to sexual contact on another area of the body.  Therefore, both parties should discuss boundaries to be aware of what acts are permissible and what are not.

All of this raises many questions such as: do men and women need to ask for permission before sending every single picture to each other? Do people need permission to send a romantic and/or erotic proposition via social media to someone who they regularly have sex with? Must a boyfriend or girlfriend inform their partner of their intentions to kiss or touch the other before doing so?  Do intimate partners need permission to spontaneously touch each other in bed?

These are the questions that cannot be answered by the Title IX guidelines because they are subjective in nature.  We at Caplan & Tamburino constantly strive to help students, faculty members, educational staff, and the community both understand and navigate through the complex Title IX rules.  We can expertly defend you on any Title IX allegations.  We fight to ensure that our clients’ side of the story is heard, that they are treated justly and fairly, and that we do anything within our power for our client to prevail.

If you have been accused of sexual misconduct under Title IX, call (612) 444-5020 now for a free case evaluation.

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