Will Changes in FBI Reporting Systems Change Title IX Interpretations?
| | Title IX
Over the past year, the focus on actions by the U.S. Department of Education and judicial interpretations has dominated news coverage of Title IX. However, a change in a different regulatory realm may affect Title IX interpretation and has been underreported.
The change involves the definition of sexual assault, which is the subject of a significant number of Title IX complaints on campuses around the country. It is important to understand the potential impact of the change and prepare appropriate arguments, whether filing a complaint or responding to accusations of sexual assault or other forms of sexual misconduct.
Use of FBI Data in Title IX Interpretation
Title IX of the Education Amendments of 1972 is a broad statute prohibiting educational institutions from discriminating on the basis of sex. Several decades after the statute’s enactment, the regulatory definition of discrimination was expanded to include sexual violence, including sexual assault. This is listed as a type of sexual harassment.
Current regulations set forth in 34 C.F.R. §106.2 define sexual assault as “an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.” The FBIs Uniform Crime Reporting Program has been generating statistics for law enforcement agencies since 1930.
Currently, the Program compiles data from over 18,000 law enforcement agencies across the U.S., including campus police. To coordinate data voluntarily submitted by various agencies, the FBI previously used a system known as the Summary Reporting System. In 2021, the system was phased out, and the FBI began using the National Incident-Based Reporting System (NIBRS). This system includes composite details of specific crime incidents, as well as separate offenses arising from the same incident.
Definition of Sexual Assault
Because sexual assault is defined for Title IX purposes to align with the FBI reporting definition, changes to NIBRS classifications should directly affect the definitions used in Title IX cases.
Changes reported in the NIBRS User Manual released in 2025 include:
- Update in the 11A Rape Definition to include the description of rape in the SRS manual and indicate that the act can be reported regardless of gender.
- Update in 11B Sodomy to indicate that the offense will be reclassified to 11A Rape for reporting purposes
- Update in 11C Sexual Assault With An Object will be reclassified to 11A Rape for reporting purposes
- Change in verbiage from “Fondling” to “Criminal Sexual Contact”
Each of these changes has the potential to affect Title IX cases.
Criminal Sexual Contact
Under the revised definitions, criminal sexual contact includes situations where a person intentionally touches the body of another without that person’s consent or forces someone to touch the person’s body parts ”for the purpose of sexual degradation, sexual gratification, or sexual humiliation.” The new definition covers a much broader range of conduct than was included in the former definition of “fondling.” The body parts touched do not need to be “private” body parts for a violation to occur. In addition, the new definition specifies that unconsented touching is a violation if it occurs for the purpose of not only sexual gratification, the only purpose recognized in the former definition, but also when contact is made for “sexual degradation” or “sexual humiliation.”
This change appears to broaden the scope of the definition and includes many situations not covered by the prior definition. Conduct that was offensive and could be classified as assault, but might not have been considered a violation of Title IX by investigators or adjudicators, now clearly should be treated as a Title IX violation. If a school has not updated its code of conduct to include this expanded definition, an attorney should be prepared to point out the deficiency.
Changes in Rape Definition
Different types of sexual misconduct have been combined into the definition of “rape” in the current FBI classification scheme. Where the former definition vaguely described the offense as “carnal knowledge of a person,” now the definition is physically specific. Any penetration, “no matter how slight,” and whether accomplished by a sex organ or by an object, is classified as rape. Neither age nor gender affects the classification. The definition also specifies that physical resistance is not required.
As with the change described above, school codes should include definitions aligned with the updated federal guidelines, and campus proceedings should reflect those definitions when complaints are investigated and adjudicated.
Campus Definitions May Differ from State Criminal Definitions
The circumstances that are considered sexual assault under campus rules and Title IX requirements may not be the same as the situations that are considered sexual assault under applicable state criminal statutes. Title IX requirements affect schools nationwide, and schools can set their own policies and definitions as long as they meet federal standards.
Meanwhile, individuals accused of a criminal violation may be judged on entirely different standards set by state legislatures. Procedures will also be governed by different rules.
If you have been accused of sexual assault on campus or you need to file a complaint as the victim of sexual assault on campus, you need to follow the definitions and procedures established in your school’s code of conduct, and it is extremely helpful to work with an experienced student rights lawyer in the process. Your attorney can analyze the school’s rules to determine whether they comply with the definitions specified by Title IX regulations, and recommend actions accordingly.
Title IX investigations and adjudications on campus proceed much faster than criminal investigations and trials, and evidence uncovered in a Title IX investigation may be shared with local law enforcement. That means it is important to act quickly to uncover and present evidence supporting your position in the Title IX case, rather than focusing all attention on the potential for a criminal proceeding. The consequences of a Title IX case on campus can be life-changing for complainants and respondents, so it is important to give these matters the same serious legal consideration that would be applied to a criminal proceeding off campus.
Protect Yourself with Help from the Legal Team at Nesenoff & Miltenberg
The process and outcome of a Title IX proceeding can impact your reputation, opportunities, and sense of self-worth far into the future. It is vitally important to take the best steps to assert and protect your rights. In this complex legal matter, it is impossible to overestimate the value of receiving the proper guidance and advocacy from a knowledgeable attorney.
Nesenoff & Miltenberg has been delving deep into Title IX issues to protect students, faculty, and staff on campuses throughout the U.S. for decades. We invite you to schedule a confidential consultation to discuss how we may assist with your case.