Title IX sexual misconduct investigations and hearings typically focus on whether consent was provided for any sexual contact or sexual activity that occurred. However, most Title IX investigations on college campuses are not investigating force-based sexual assaults. In other words, the cases do not involve allegations that physical force was used by one person to overcome the will of the other person.
Force not needed
Nonconsensual sexual contact or sexual activity is any contact or activity that occurred without verbal or nonverbal consent given immediately prior to the contact or activity-it is not limited to the use of force. Consent can be withdrawn at any time by either party. A person may be legally unable to provide consent-even if the person uses words or nonverbal acts to indicate consent has been provided-if, for example, that person is coerced into providing consent or is too intoxicated to provide consent.
New trend on college campuses: alcohol
As Title IX investigations and hearings become more frequent on college campuses, it is important to be aware of a recent trend we have noticed over the last couple of academic cycles. The investigations, hearings, and results have shown significant differences based on a crucial pivot point: was alcohol a factor? Once alcohol is a consideration, the focus of the investigation and the hearing shift dramatically.
Hearings without alcohol involved become hyper-focused on every word and action that led up to the sexual contact or sexual activity. Those words or actions will provide evidence for the panel to determine whether verbal or nonverbal consent was provided. Attention to detail and credibility weigh heavily. Many of these hearings are won or lost on how these crucial details are presented.
However, if the allegation is that consent could not be provided because of intoxication, the hearing tends to focus on the level of intoxication more than the words and actions that occurred prior to sexual contact or sexual activity. That is not to say that the words and actions leading up to the sexual contact or sexual activity are irrelevant; but, even a video recorded "I consent to sex" does not avoid a finding of responsibility for violating Title IX if the person was too impaired to legally consent.
Ambiguous standard: "substantially impaired"
Unfortunately, the standard for what is "too impaired" is a moving target. For example, Miami University changed its definition of "unable to give consent" (based on alcohol intoxication) from "severely intoxicated" to "substantially impaired" in 2018. Yet, neither phrase has ever been defined in the Code of Conduct to provide guidance for the students that are required to follow the Code or the panel that must enforce it.
Title IX investigations and hearings are extremely sensitive matters. Both in the type of evidence and information that is being collected and in the presentation of that evidence to an investigator, police officer, or the hearing panel. Understanding what type of complaint or defense must be presented is very important. Make sure you speak with an attorney that is experienced with Title IX before you proceed.
We have successfully handled numerous sexual assault accusations, saving students expulsion and a permanent black-mark on transcripts.