Why Consent is Such a Difficult Issue in Title IX Cases
| | Title IX
While Title IX cases involving athletic participation often capture headlines, most Title IX cases in recent years have involved allegations of sexual assault and other forms of sexual misconduct. Many of those cases hinge on the issue of consent. But just because a case can be narrowed down to a pivotal issue does not mean that the resolution is simple. Consent in a Title IX case is complex to investigate and adjudicate, and that is why it is critical for complainants and respondents to obtain effective legal advice early and often during the course of the proceedings. Small factors can add up to significant findings that change the course of the outcome.
At Nesenoff & Miltenberg, we have focused on protecting the Title IX rights of our clients for decades, so we understand the complexities involved in both substantive and procedural issues impacting both campus proceedings and cases that move to court for resolution. Here are just a few of the factors we’ve seen that make consent such a challenging issue in Title IX cases.
Understanding Sexual Assault as a Violation of Title IX
The regulatory scheme surrounding Title IX of the Education Amendments of 1972 requires schools that receive federal funding, which includes virtually all colleges and universities, to create rules for addressing allegations of sexual assault, dating violence, domestic violence, or stalking. While federal regulations set guidelines for what these rules must contain, such as protections of due process rights, schools have a certain amount of latitude to establish their own definitions, determine what constitutes a violation, set procedures for investigating complaints, create processes for assessing evidence and responsibility for violations, and determining what consequences should be imposed if a student or member of faculty or staff is found responsible for a violation.
Because of this, the definition of particular violations may vary slightly on each campus, and the elements that constitute a violation may be defined differently than in criminal law. One reason consent is such a complex issue is that it can be defined in various ways, depending on the policies established by school administrators.
Why Consent is So Often a Pivotal Issue
In many cases where a complainant accuses a respondent of sexual assault, the respondent does not deny that sexual conduct occurred. Rather, the complainant and respondent disagree about whether the sexual conduct was consensual. The complainant often asserts that:
- No consent was given
- Consent was initially given but was revoked, or
- Consent could not legally be given due to factors such as incapacitation
If the adjudicator determines that the activity was consensual, then that generally means that the person accused would not be found responsible for a violation. On the other hand, if the adjudicator concludes that consent could not be given, was not given, or was given but subsequently revoked, then the accused person will usually be found responsible for a violation and face consequences that can include expulsion and damage to their reputation, which may be impossible to overcome. There is a great deal riding on the determination of whether actions were consensual, and the weight of that finding is another reason the issue is so challenging.
Consent Can Include Nonverbal Communication
Remember that consent on a particular campus may be defined differently than it is on other campuses. In any Title IX case, it is important to review the school’s code of conduct carefully to see the precise definition of the offense at issue in the case and the definition of consent and other elements that can potentially be used as a basis for defense.
Many definitions in school rules start with a broad definition of consent and then list features that describe what consent is not. For instance, rules at Michigan Tech state that “[c]onsent is knowing, voluntary, and clear permission by words or actions to engage in sexual activity.” Thus, under this definition, an individual does not have to verbally ask for consent or wait for a verbal answer. This can make the issue very ambiguous. The rules do state that consent cannot be inferred by factors such as:
- Lack of resistance
- Silence
- Clothing
- Acceptance of money
- Consent to a previous sexual act
- The existence of a relationship
While these rules recommend asking for consent and receiving a definitive “yes,” the rules do not require this verbal affirmation.
Similarly, at the University of Virginia, the rules specifically refer to “affirmative consent” and require such consent to be both informed and active; however, they also allow consent to be demonstrated through actions rather than words. The ambiguity of many forms of nonverbal communication can make consent a matter of divided opinion in many situations. This can be particularly challenging when there are cultural or social norm differences among those involved in the case.
When Consent Can’t Be Given or Is Revoked
To further complicate the issue of determining whether both parties consented to engage in sexual activities, it is also necessary to consider whether both parties were physically and mentally capable of giving consent. An individual cannot give consent if they are incapacitated. When someone is incapacitated, they lack the ability to make rational, informed decisions about whether to engage in sexual conduct. Incapacity can be caused by a variety of factors, including alcohol consumption. But determining when an individual’s mental faculties are impaired to the point of incapacitation is not a cut-and-dried assessment.
It can also be challenging to determine whether an individual who has consented to at least some sexual activity has either changed their mind or had enough and has said or done something to revoke that consent.
Consent is Assessed Based on Evidence and Credibility
Given the frequent ambiguity of indications as to whether consent could be or was given, adjudicators must often rely on small amounts of evidence to make a life-changing determination. That makes it crucial for complainants and respondents to thoroughly investigate and be prepared to present evidence to support their version of events. An experienced attorney will not only help locate evidence but also build persuasive arguments based on that evidence to show adjudicators why they should be prepared to accept the proposition put forward by that party to the case.
Schedule a Confidential Consultation to Learn How We Can Help with a Title IX Issue
Accusations of sexual misconduct can ruin a student’s reputation and future prospects, so it is vital to take a serious and thorough approach to defend oneself at any time accusations of a Title IX violation are raised on campus. On the other hand, if a complainant makes accusations but is not prepared with the right evidence or arguments to support their assertions, damage to reputation and self-esteem can also suffer equally permanent consequences.
At Nesenoff & Miltenberg, we know what’s at stake in a Title IX case, and we know how to work effectively to protect the Title IX rights of students, faculty, and staff throughout the country. Call us at 212-736-4500 or contact us online to schedule a confidential consultation to learn more about the protection and assistance our team can provide.