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Title IX & Student Conduct Code Blog

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What are the Consequences of Not Reporting Sexual Misconduct?

Sexual misconduct can be hard to acknowledge and even hard for some people to recognize. Standards in society have shifted dramatically in recent decades, and conduct that was once considered merely in poor taste is now blatantly illegal. Other forms of sexual misconduct such as sexual assault used to be commonly ignored or downplayed on campus.

So what happens when you see someone commit acts of sexual misconduct that violate Title IX, school policies, or other laws? Are you obligated to report it? Does it matter if you think actions were “innocent?” What if you are the victim and you are afraid to report what you experienced because of the consequences?

What if you realize you have committed an act of sexual misconduct? If you “turn yourself in,” will you improve your situation or make it worse? The consequences of not reporting sexual misconduct range from psychological to legal, and they can have a profound effect on the rest of your life.

Recognizing Sexual Misconduct

Definitions of sexual misconduct can vary across a wide spectrum. The term often refers to violent or threatening conduct that could be classified as sexual assault under criminal statutes. However, it can also include conduct that is considered inappropriate for violating social norms or making others feel uncomfortable or unwelcome.

What all conduct in this range of behavior has in common is that it occurs in situations where an aspect of authority or personal power makes any form of sexual behavior inappropriate. While sexual misconduct or harassment is inappropriate in any setting, it becomes actionable when it occurs in the workplace or an educational setting, or certain other settings involving an imbalance of power.

Conduct that has been interpreted as sexual misconduct includes:

  • Making unwanted advances or come-ons
  • Pleading for sexual favors
  • Forcing sexual activity of any type without consent
  • Failing to respond to nonverbal cues of discomfort
  • Exposure of private parts
  • Making sex-based jokes
  • Sexual activity between a doctor and patient or boss and employee

Even when conduct is considered consensual and legal, it can be unethical because one partner is considered vulnerable to the power of the other.

While the definition of sexual misconduct is far from standardized, women’s rights organizations often recognize three key components in behavior viewed as sexual misconduct. First, they look for an imbalance of power between the actors. Second, they consider whether an act of coercion occurred. Third, they look for predatory behavior.

How Failure to Report Affects Official Actions

When someone fails to report sexual misconduct, that failure to act affects official responses. In secondary and elementary schools, notice to any employee triggers an obligation for the school to respond. For colleges and universities, the obligation to respond is triggered only when the Title IX Coordinator or another official with appropriate authority is given notice.

Schools are allowed to accept reports from anyone, even if they are not associated with the school or an educational program. However, if the only person who is given notice is the person who allegedly committed sexual misconduct, the current rules do not consider the school to be on official notice of the action. This could change when the new rules are released or subjected to court interpretation.

The obligation to act includes situations where it is not clear that a violation occurred. Conduct that could be a violation should be treated as if it was for investigation purposes. When a student or staff member fails to report sexual misconduct, schools will not initiate an investigation or take any form of corrective action.

Lack of Support

When there is a failure to report sexual misconduct, anyone harmed by that conduct does not gain the benefit of support that they might receive if the school initiates official action. This can have tremendous short and long-term implications. Victims can suffer mental and emotional consequences that worsen over time and interfere with relationships far into the future, potentially for the rest of their lives.

When someone witnesses sexual misconduct that harms others but fails to report it, the guilt can have similar long-term damaging consequences. If that failure then comes to light at a later date, that witness could lose their job or be subject to penalties. The consequences will be more severe for an employee or other person with an obligation to report Title IX violations.

Both victims and witnesses can also suffer tremendous worry that they have allowed someone with dangerous tendencies to continue to perform harmful acts. If others suffer harm in the future, guilt and stress can cause physical and mental ailments.

Consequences for the Perpetrator

If someone has committed an act of sexual misconduct and that act is not reported, it might seem like the perpetrator would benefit. They avoid the stigma of the accusation and the stress of investigation. They don’t face the consequences of a Title IX violation such as expulsion. They don’t have to worry about criminal prosecution or civil action.

Or do they? The victim of sexual misconduct could report actions much later and legal action could still result. If the misconduct did not rise to the level of criminal or civil liability, the perpetrator can still face harm to their reputation and career if the accusations come out later.

What is perhaps even worse is that the person who committed sexual misconduct may not understand the severity of the wrong they have perpetrated on others. They may think their behavior is acceptable or at least that they can continue without taking responsibility for it. They may continue with harmful actions which could cause even more damage to others.

Consequences of Not Reporting Sexual Misconduct Can Have Far-Reaching Effects

Although in the short term it may seem best to look past incidents of sexual misconduct, failure to report these incidents can cause serious harm on a variety of levels. It is far better for all involved to resolve issues so that treatment and counseling can be provided and those who commit such acts understand and face the consequences of their misconduct.

If you or a family member have a connection to an incident of sexual misconduct that may not be reported, it is a good idea to talk to an attorney for advice about protecting the rights and interests of those involved. The team at Nesenoff & Miltenberg, LLP understands the complexities and delicate nature of Title IX cases and we are prepared to help in any way possible. Contact us for a confidential consultation.