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Defining Sexual Misconduct

Title IX Charges: What is Considered Sexual Misconduct?

If you have been accused of Title IX sexual misconduct, you could be facing an investigation that leads to serious academic penalties (including expulsion) and ultimately tarnishes your reputation going forward. Simply put: the stakes are high. We encourage you to contact a Title 9 attorney at Harvey & Binnall, PLLC for immediate assistance.

In many cases, a Title IX investigation comes as a surprise. What may have seemed (to the accused) to be perfectly acceptable, reasonable and mutually-desired conduct might be interpreted differently by the accusing student at a later date. There are a number of reasons as to why accusers “change their story” later on. They may come to later regret their decision-making, or they might change their mind after a discussion with friends who were not present at the time of the alleged sexual misconduct. Sometimes they even make up stories of assault to justify infidelity.

A Title 9 Attorney Explains Your Defense Options

In order to mount an effective defense to Title IX proceedings, you will have to understand what actually qualifies as sexual misconduct.

Sexual misconduct (generally, including sexual harassment and violence) can be difficult to define. But under Title IX, such conduct is typically defined as unwanted/unwelcome sexual contact or advances. This broad definition — particularly the use of the term “unwelcome” — allows schools to initiate an investigation and impose penalties on accused students whose conduct would not otherwise rise to the level of sexual misconduct in a formal civil or criminal proceeding.

Consent is the Central Issue in Title 9

Consent is ultimately the central issue in most Title IX proceedings, except in situations where you — the accused — are arguing that the conduct at issue simply did not happen. If you are facing a proceeding, you are strongly advised to speak to a Title 9 attorney about the specifics of your case ahead of time.

Defining Consent

Definitions of consent vary significantly from school-to-school. Nearly all schools establish a baseline level of consent that can be summarized as being informed, freely and willingly given by words or action. Unfortunately, some schools now go above and beyond this standard baseline “consent” definition, thus leading to serious challenges for the defense.

Affirmative vs. Passive Consent

Some schools require students to give affirmative consent in the form of explicit words or actions. They further require that body language not be the exclusive sign of consent, and that there be additional signs of consent, whether through words or supplementary actions (i.e., a student undressing themselves freely). However, active and affirmative consent is not always how consensual situations of sexual activity play out; so, this can lead to serious confusion with respect to student perceptions of consent and how the school defines consent.

Intoxication and Consent

Oftentimes, Title IX proceedings are initiated on the basis of sexual misconduct that occurred while one or both parties were intoxicated, perhaps, at a party. Remember, consent requires informed and willing approval. Students who are so intoxicated that they cannot evaluate a situation in an informed manner and willingly give consent, may thereby state a claim under Title IX.

The problem, however, typically involves the school’s evaluation of student intoxication at the time of the incident. It may have been the case, for example, that the accusing student had only consumed a few drinks at the time of the alleged sexual misconduct, so they were not sufficiently intoxicated as to undermine their ability to consent. Further, if both students were intoxicated at the time, then not only is there the issue of which claims can be deemed accurate, but there is also the question of evaluating misconduct in a situation where both students would have been unable to give consent.

Contact a Title 9 Attorney at Harvey & Binnall for Assistance

Here at Harvey & Binnall, PLLC, our team of Title IX attorneys boast decades of experience working on behalf of a variety of clients, including students who have been accused of sexual misconduct under Title IX.

Handling the defense of a student embroiled in a Title IX investigation is uniquely challenging in that the procedures and processes can vary quite substantially from school to school. As such, mounting an effective defense requires an ability to rapidly identify potential violations of equal fairness (and other rights granted to the accused), as well as the ability to adapt to the circumstances as the facts of the case are revealed.

We invest significant resources into each of our clients so that we fully understand the underlying issues and can tailor our legal advocacy to the particularities of their defense.

Ready to speak to an experienced Title 9 lawyer at our firm? Call us at 703-888-1943 or complete an online intake form to schedule a consultation.