HOW IS CONSENT DEFINED FOR PURPOSES OF TITLE IX?

Accusations of sexual assault can quickly destroy lives. Once tarnished, your reputation is a difficult thing to recover. And you may face consequences ranging from suspension to expulsion.

Most cases involving sexual assault in college settings aren’t crystal clear. They’re not cases involving forcible rape, bodily injury or threats. They often don’t even rise to the level of crimes. Instead, they’re complex social situations where the boundaries are often blurry. And at the center of the confusion, in many cases, is consent.

Consent In The Criminal Context

When it comes to criminal sexual assault and other sex offenses, the burden is on the prosecution to prove the absence of consent. Doubts must be resolved in favor of the accused. That means cases involving gray areas are much less likely to result in a conviction or be charged in the first place.

Consent In Title IX Proceedings

Student disciplinary proceedings under Title IX, however, have a much different framework. Following a complaint of sexual misconduct, it’s often up to the accused to establish that there was consent. Doubts are often resolved in favor of the alleged victim rather than the accused. And because the burden of proof in these cases is much lower than in the criminal context, school administrations can find in favor of the alleged victim even if the evidence only slightly leans in that direction.

How Consent Is Defined

In general, the framework for consent in student codes of conduct usually involves the following:

• Consent to sexual activity must be informed, voluntary, and mutual.
• It can be withdrawn at any time.
• There’s no consent when there is force, expressed or implied, or when coercion, intimidation, threats, or duress is used.
• Whether a person has taken advantage of a position of influence over another person may be a factor in determining consent.
• Silence or absence of resistance does not imply consent.
• Consent to one type of sexual activity doesn’t amount to consent to another type of activity.
• Prior consent or sexual relations with the same person don’t imply future consent.
• The fact that both people are in a relationship doesn’t, by itself, establish consent.
• A person can’t consent if they’re unconscious, asleep, or impaired to the extent that they don’t understand what’s going on.

Consent Policies At North Carolina Schools

Each college or university that receives federal funding must implement Title IX-compliant policies regarding sexual misconduct – including a process for handling reports of sexual misconduct as well as investigative procedures and student disciplinary proceedings. These policies must also include definitions of key terms such as “consent.”

These exact definitions differ from school to school. Here are some examples:

• UNCC defines consent as ” unambiguous, clear, knowing, and voluntary approval given by words or demonstrated actions to engage in sexual activity.” The policy further states that in cases of ambiguity or confusion, participants should stop and clarify whether consent is given.
• NCSU defines consent as “an informed decision made freely, willingly, and actively by all parties.”
• Eastern Carolina University defines consent as “explicit approval and permission to engage in sexual activity demonstrated by clear actions, words or writings.”

Affirmative Consent

Some schools go even further in requiring “affirmative consent” to sexual activities. This means consent must be clearly communicated through either words or unambiguous outward actions. Such policies caution students to avoid relying on body language alone, however. They require students to stop proceeding with sexual activity in the absence of a “clear, enthusiastic yes” from both partners.

UNC at Chapel Hill is one such school with an affirmative consent policy. It defines consent as “the communication of an affirmative, conscious and freely made decision by each participant to engage in sexual activity.” Similarly, UNCG defines affirmative consent as “[i]nformed (knowing), voluntary (freely given), [and] active (not passive).”

These policies often imply a presumption that sexual activity is nonconsensual unless clear and unambiguous consent was secured. Duke University’s Title IX policy, for example, states that sexual activity is non-consensual “if no clear consent, verbal and/or nonverbal, is given.”

How Drinking Impacts Consent

Sexual misconduct cases often involve parties with alcohol or drugs. Both parties may have been drinking heavily. Yet the line between tipsy and intoxicated isn’t always clear.

School policies state that someone can’t consent to sexual activity if they’re so intoxicated that they don’t understand what’s going on. Someone who is sleeping or unconscious can’t consent. Likewise, someone, who is so drunk they can’t stand up straight or recognize other people probably can’t consent.

The reality, however, is that college parties and social situations involving alcohol are ripe for complaints of sexual abuse. Even when one party isn’t so drunk as to be incapacitated, confronted with embarrassment or regrets after sobering up, she or he may still decide to file a complaint – leading to devastating consequences for the accused.

The mere presence of alcohol during a sexual encounter quite common on college campuses can be enough to spark a Title IX investigation and ultimately lead to a student’s dismissal and other serious consequences.

When alcohol is involved, schools often resolve doubts about consent in favor of the alleged victim even when both parties were equally drunk.

Objective Versus Subjective Standards

In criminal proceedings, consent is judged by an objective standard. This means judges and juries must consider whether a reasonable person would think there was consent. Even if the victim claims not to have consented, if all the circumstances indicated that a reasonable person would think she or he had consented, then from an objective standpoint, consent is established.

Title IX, however, involves a more subjective standard. The language of Title IX refers to “unwelcome sexual contact,” including “unwelcome advances” – both very broad terms. While all the facts and circumstances must be taken into account, it’s ultimately up to the victim to say whether she or he actually consented. This more subjective standard in academic environments makes it all the more difficult for the accused in these cases to defend themselves.

Getting The Legal Help You Need To Face Down Damaging Allegations

If you’re a college student, staff member, or faculty member facing accusations of sexual misconduct, much is at stake. Your reputation, your career opportunities, your education, your financial aid, your future – all of it may be on the line. A negative outcome could follow you for a lifetime.

It may feel like nobody is on your side. The entire campus community may rush to judgment against you. But at Marcilliat & Mills PLLC, we’re here for you.

We’re committed to defending your rights, reputation, education, and future.

Our lawyers have decades of combined experience defending people against such damaging allegations as rape, sexual assault and other types of misconduct. Our extensive experience in the criminal context translates into powerful, effective strategies for Title IX proceedings as well. And should a referral to law enforcement follow from a Title IX investigation, you can count on us to be on your side each step of the way.

Take The First Step Toward Protecting Your Future With A FREE Consultation

If you’re facing allegations of sexual misconduct at a college or university, you’re facing an uphill battle to defend your rights, reputation, and future. The sooner we get involved, the better. Call 919-838-6643 or send us an email.

With convenient offices across North Carolina, our defense attorneys handle these cases for students, faculty, and staff facing serious accusations of sexual misconduct at college and universities, public and private, statewide. You can rely on us for tireless, dedicated advocacy.