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Is the Definition of Sexual Assault Different Under Title IX than Under Criminal Law?

Being accused of sexual assault is a serious matter in any circumstances. However, students facing sexual assault allegations in a Title IX campus proceeding often assume the situation is not as serious as it would be if they had been charged with a crime by police.

This is an incorrect assumption for many reasons, including the fact that evidence revealed in a campus proceeding can later lead to criminal charges. But another factor that is crucial to understand is that sexual assault can be defined very differently under criminal law and Title IX. That means a student accused of a Title IX violation for sexual assault may face a much greater likelihood of being found “responsible” and facing negative consequences than they would if they were charged with the criminal offense of sexual assault.

Sexual Assault Definitions Vary

There is no single definition of the crime of sexual assault. Under criminal law, offenses are defined in state statutes, and so definitions vary in each state. Statutory and case law will provide details about the elements required to prove this offense.

Moreover, most states have established different sexual assault crimes of greater or lesser severity. Connecticut, for instance, has four degrees of sexual assault, and so does Wisconsin, Hawaii, and a host of other states. Minnesota has five. So, when comparing the definition of sexual assault under Title IX with the definition in criminal law, you need to consider the definition under a particular criminal statute.

Definition Under Title IX

Title IX of the Education Amendments of 1972 is a very simple statute that prohibits discrimination on the basis of sex in educational institutions. The words of the statute have not changed over the years, but the regulations issued in support of the statute have changed multiple times, and the interpretation of the statute and regulations also changes frequently.

Therefore, while Title IX itself does not define sexual assault, the U.S. Department of Education has issued guidance stating that “discrimination” prohibited by Title IX includes sexual harassment, and sexual harassment includes sexual violence and assault.

The Department of Education’s Office for Civil Rights, which has responsibility for enforcing Title IX regulations, states that “sexual violence” refers to “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent.” The Office gives examples of acts that are considered sexual violence, which include “rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.”

In a situation where sexual violence—including sexual assault—is alleged against a respondent, the investigation often centers around determining whether actions occurred with or without consent. In many situations, individuals are not considered to have the ability to give legal consent, such as when they are incapacitated due to the use of alcohol or drugs. So the inquiry is in three basic parts:

  • Did physical sexual acts occur?
  • Was the complainant capable of consent?
  • Did the complainant give consent?

It is important to note that consent can be withdrawn at any time, so if the complainant consented but then experienced a change of mind for any reason, then consent no longer exists from that point forward.

Examples of Definitions Under Criminal Codes

In states with multiple degrees of sexual assault, the crime can range in severity from a misdemeanor to a felony, although sexual assault is never considered a minor crime. The definition of sexual assault in the fourth degree in Connecticut, for example, involves subjecting a vulnerable individual to sexual contact, and the offense is considered a Class A misdemeanor or Class D felony depending on the age of the victim. 

At the other end of the spectrum, sexual assault in the first degree involves sexual intercourse compelled by force or the threat of force and is a Class A or B felony, again depending on the age of the victim.

Differing Standards and Burden of Proof

The bottom line is that the definition of sexual assault can be considerably different in criminal cases than in Title IX cases. But what is often just as if not more important is that the burden of proof differs considerably as well. In a criminal case, the prosecution must prove guilt beyond a reasonable doubt. That is a tough hurdle to overcome.

In a Title IX case, on the other hand, a school tribunal can use either a preponderance of the evidence standard or a clear and convincing evidence standard. Either standard is easier to meet than the reasonable doubt standard, so it is often much more likely that an individual accused of sexual assault in a Title IX proceeding will be found “responsible” and subjected to the consequences than if they were to be judged in a criminal proceeding.

Immediate Help with Allegations of Sexual Misconduct

Accusations involving sexual harassment, assault, or any form of misconduct can have life-changing effects, even if they turn out to be unfounded. It is vital to protect yourself with advice and representation from an experienced attorney as soon as possible.

The skilled team at Duffy Law focuses on protecting the rights and futures of those affected by Title IX accusations. If you have been accused of sexual assault or you are considering bringing a complaint, we can explain your options and work tirelessly to ensure your story gets fair consideration to reach the right outcome and enable you to move forward with your life. Contact us today for a confidential consultation.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.