March 2016 Bar Bulletin
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March 2016 Bar Bulletin

Sexual Violence: Force and Consent under Title IX

By Karen Sutherland


Title IX of the Educational Amendments of 1972 (Title IX) states, in part: “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 in educational programs and activities.”1 Under Title IX, schools have an obligation to respond promptly and effectively to sexual harassment and sexual violence, including student-on-student conduct.2

One common misconception about sexual violence is that it requires force. However, sexual violence also includes sexual coercion. The U.S. Department of Education Office of Civil Rights (OCR) defines “sexual violence” as follows (emphasis added):

Sexual violence, as that term is used in this document and prior OCR guidance, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because an intellectual or other disability prevents the student from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. Sexual violence can be carried out by school employees, other students, or third parties. All such acts of sexual violence are forms of sex discrimination prohibited by Title IX.3

Force-related questions also arise in the context of consent. For example, if force was not involved and the student did not say “no,” did consent exist? The OCR definition of “sexual violence” does not address this issue.

The definitions of “sexual violence” and “consent” adopted by schools vary from school to school and district to district. For example, the Seattle Pacific University (SPU) Sexual Misconduct Policy defines sexual misconduct to affirmatively require consent:4

For purposes of this Sexual Misconduct Policy, the term “sexual misconduct” means any unwelcome behavior of a sexual nature that is committed without consent or by force, intimidation, coercion, or manipulation. Sexual misconduct includes, but is not limited to, sexual harassment, gender-based harassment, sexual assault, sexual exploitation, domestic violence, dating violence, and stalking .... Sexual misconduct can occur among persons of the same or different genders.

SPU defines “consent” as follows:5

Consent means freely and affirmatively communicated willingness to participate in sexual activity, expressed by clear, unambiguous words or actions. It is the responsibility of the initiator of the sexual activity to ensure that she or he has the other person’s consent to engage in sexual activity. Consent must be present throughout the sexual activity by all parties involved. At any time, a participant can communicate that she or he no longer consents to continuing the activity. Consent may never be obtained through the use of force, coercion, or intimidation or if the victim is mentally or physically disabled or incapacitated, including through the use of drugs or alcohol. Individuals cannot assume consent because of the existence of a previous dating or sexual relationship. The use of alcohol or drugs does not diminish a person’s responsibility to obtain consent for sexual activity....

By way of contrast, the Seattle Public Schools (SPS) has a much shorter definition of sexual assault:6

Sexual assault is any unwanted, non-consensual sexual contact against any individual by force (against a person’s will) or when a person cannot give consent (under the age of consent, intoxicated, developmentally disabled, mentally/physically unable to consent, etc.).

The SPS policy available online does not define “consent.” In an online FAQ, SPS refers to the Rape Abuse and Incest National Network’s (RAINN) information page — “Was I Raped?” — for additional information on sexual assault.7 RAINN provides the following information with respect to consent:8

There are three main considerations in judging whether or not a sexual act is consensual (which means that both people are old enough to consent, have the capacity to consent, and agreed to the sexual contact) or is a crime.

1. Are the participants old enough to consent? Each state sets an “age of consent,” which is the minimum age someone must be to have sex. People below this age are considered children and cannot legally agree to have sex. In other words, even if the child or teenager says yes, the law says no.…

2. Do both people have the capacity to consent? States also define who has the mental and legal capacity to consent. Those with diminished capacity — for example, some people with disabilities, some elderly people and people who have been drugged or are unconscious — may not have the legal ability to agree to have sex.…

3. Did both participants agree to take part? Did someone use physical force to make you have sexual contact with him/her? Has someone threatened you to make you have intercourse with them? If so, it is rape.

• It doesn’t matter if you think your partner means yes, or if you’ve already started having sex — “No” also means “Stop.” If you proceed despite your partner’s expressed instruction to stop, you have not only violated basic codes of morality and decency, you may have also committed a crime under the laws of your state (check your state’s laws for specifics).

Unlike the SPU policy, the RAINN information page referenced by the SPS policy does not require “freely and affirmatively communicated willingness to participate in sexual activity, expressed by clear, unambiguous words or actions.” Unlike the SPU policy, the SPS policy does not clearly place the burden on the initiator of the sexual activity to ensure that he or she has affirmative consent.

These two policies are not the only examples of differences regarding what “consent” means; they were selected for this article because they illustrate the different approaches taken by different educational institutions to address sexual assault.

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