As Title IX practitioners know, many, if not most, of the sexual assault complaints that you will investigate come down to the issue of consent. Even if there is agreement about the particular physical acts that occurred, the parties often disagree about whether consent was given by the complainant to engage in the activity.
So it may be surprising that when the Department of Education promulgated new Title IX regulations last year, one issue that the Department chose not to regulate was the definition of consent. Although a large number of comments were submitted on this issue, the final regulation clarifies that the Department “will not require recipients to adopt a particular definition of consent with respect to sexual assault….” This included declining to impose a particular definition of terms such as “coercion” or “incapacity.”
What does this mean for your institution and for the Title IX investigations that you conduct?
First, the definition of consent that your institution chooses to implement depends on the particular culture of the institution, and should therefore be developed with broad participation of your community – students, staff and faculty. In developing a policy that is appropriate for your campus, it may be helpful to review the discussion around consent in the regulations in order to understand the differing approaches taken in this area [see page 30123 of the Federal Register]. At one institution, an affirmative consent standard may be adopted without much controversy, while in another, such a proposal might generate significant discussion, at the least.
Second, Title IX investigators and decision makers need to thoroughly understand the definition of consent in the policy they are applying. These are some questions to ask:
- Is your policy an affirmative consent policy? [or a “no means no” policy, or an “implied consent” policy]?
- Does your policy have a clear definition of incapacitation?
- Does your policy have a clear definition of coercion?
Finally, we can’t stress enough the importance of educating your community about the expectations in this area. Do students understand what the consent standard is, and what type of conduct may violate your policy? Students shouldn’t become aware of the consent standard for the first time during an investigation. The regulations also remind us that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution must be trained on how to how to apply definitions used by an institution with respect to consent.
As always, Title IX Consult, LLC is available to assist in reviewing your policies and providing training in this area.