The Path: For College Students
Sexual misconduct is prevalent on college campuses despite increased efforts to promote awareness and prevention. Most reports of sexual misconduct on campus will be addressed through the Title IX investigation framework. Our team draws on its extensive experience investigating sexual crimes to provide high-touch legal guidance to students participating in a Title IX process through our service The Path.
Read on to learn more about sexual misconduct on campus.
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Title IX is a federal law that protects students and staff from discrimination based on sex at schools that accept federal funding (most colleges and universities). Discrimination based on sex includes things like discrimination based on a student’s sexual orientation or gender identity, as well as sexual harassment and sexual violence, such as rape, sexual assault, sexual battery and sexual coercion. Students who experience sex discrimination can file a complaint with the school, which will trigger the school’s obligation to take certain immediate steps to eliminate the discrimination, address its effects, and prevent it from happening again.
Title IX requires schools that accept federal funding to have each of the following things in place (at a minimum) to prevent sexual harassment and violence on campus and to resolve complaints of sex discrimination:
A written policy prohibiting sex discrimination
The name and contact information for the person specifically designated to oversee the school’s efforts to comply with Title IX (often called the “Title IX Coordinator”)
A grievance procedure that students can use to file a complaint of sex discrimination
If you're not sure whether your school is subject to Title IX, go on your school’s website and search for any one of those things. If the school is subject to Title IX, it should be easy to find!
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Under Title IX, schools have to respond promptly and effectively to a complaint of sex discrimination on campus. Typically, that means that the school will begin an investigation to determine whether the discrimination occurred using a preponderance of the evidence standard (whether it is more likely than not that it happened as reported). The investigation must be impartial, and both parties must be given a fair chance to present witnesses and other evidence. At the end of the investigation process, a hearing may be held where the parties may provide testimony and be subject to cross-examination. Parties are entitled to know the outcome of the investigation, including any discipline imposed.
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In a word, tough. In our experience, students find the Title IX investigative process stressful and emotionally draining regardless of whether they come to it as a complainant who has reported harm, or a respondent who has been accused of harm. Complainants and respondents will typically be asked to sit for an interview with a Title IX investigator, who is likely to ask sensitive questions in painstaking detail. While Title IX investigators are obligated to remain impartial during the investigation, the probing questions can be hard to answer. The same can be true of the hearing where students can face scrutinizing questions from the opposing party’s representative.
Having a legal advisor to guide you through each step of the process and advocate for you by helping you gather evidence, prepare you for the interview and hearing testimony, and cross-examine witnesses on your behalf during the hearing can be a great help - not to mention the emotional support an advocate can provide.
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Under Title IX, schools can define consent as they see fit (and consistent with any local laws on point). In 2015, New York passed a law requiring college campuses to adopt the following “affirmative consent” standard for sexual encounters in their Code of Conduct:
Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression. -
A person can’t give knowing, voluntary consent to engage in sexual activity if they are so impaired by alcohol (or another substance) that they lack the ability to make or understand the decision. In our experience, alcohol is a factor in many of the reports of sexual assault on college campuses. Some students are reluctant to report a harmful sexual encounter for fear of having to admit that they were under the influence of drugs or alcohol at the time. This fear is understandable, but most schools have amnesty provisions that protect students who report harm from facing disciplinary consequences for drug or alcohol use.
