WHAT AMOUNTS TO SEXUAL MISCONDUCT UNDER TITLE IX? SOME COMMON EXAMPLES…

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Many people struggle to define sexual misconduct. Especially in a university setting, sexual misconduct often seems subjective. The highly social nature of university life blurs the line between “flirting” and “unacceptable,” and officials write intentionally vague codes of conduct to cover a broad spectrum of activities. However, when an alleged victim chooses to file a complaint, definitions become very important. Responding parties need to know what to expect and what standards of behavior exist.

Universities are determined to avoid Title IX violations at almost any cost. Their aversion makes sense: educational programs violating Title IX laws risk losing their federal financial assistance. Violations can cost schools millions of dollars. But, in their determination to create safe and harassment-free environments, Dean of Students offices around the country often enforce vague policies that provide little protection for the accused and seriously impact students’ lives.

Are you facing a formal complaint of sexual harassment, sexual assault or sexual contact? As a student, you have rights.

At Marcilliat & Mills PLLC, our attorneys are experienced with university investigations, school disciplinary proceedings and criminal charges involving sexual misconduct. We understand the reality that a mere allegation of sexual impropriety can permanently damage your reputation, jeopardize your scholarships and financial assistance, and derail your career plans and future employment opportunities. Our lawyers can help you fight the allegations to avoid or minimize these serious consequences.

What Does The Department Of Education Classify As Sexual Misconduct?

In its  Dear Colleague letters and other published guidance, the Office for Civil Rights (OCR) of the Department of Education describes specific forms of sexual violence and/or misconduct prohibited under Title IX. This document is meant to act as a guide for Title IX coordinators, disciplinary boards and investigation.

Acts prohibited under Title IX include:

  • Rape/sexual assault
  • Sexual battery
  • Sexual coercion
  • Sexual harassment
  • Intimate partner violence
  • Stalking
  • Voyeurism
  • Videotaping or taking pictures of sexual activity
  • Sexual harassment

These acts may seem straightforward, but even a reasonable person can struggle with determining exactly what qualifies as a violation. The issue of consent isn’t always black or white. It’s in these gray areas that accusations can readily spiral out of hand, ruining reputations and lives.

Depend On Us. Marcilliat & Mills PLLC is a highly experienced legal firm with decades of defense experience. From our offices across North Carolina, we represent students, staff and faculty accused of sexual misconduct. Our extensive knowledge of Title IX puts our firm in an ideal position to assist you both at university hearings and with any criminal charges that result.

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Consent Is Key

Consent is the idea that both parties are actively agreeing to participate in sexual or romantic behavior. A simple example would be saying yes to a date. Consent is the difference between flirting and sexual harassment.

But, consent is not always straightforward. People rarely ask for consent explicitly. As a cultural norm, both parties are expected to read a situation clearly without expressly asking what the other wants.

Especially in college, where drinking and other substance uses are involved, consent is not always clear.

A person who is drunk to the point of being incapacitated, for example, cannot give consent.

Any participant in a sexual act can withdraw consent at any time. If one person tells the other to stop or that they no longer want to participate, continuing to have sex or unwanted sexual contact after a person withdraws consent may lead to a Title IX investigation.

The question of whether both parties consented to sexual activity – and whether the accused should have known that the alleged victim didn’t (or couldn’t) consent – can very difficult to determine, especially in situations involving drinking. The credibility of both parties is extremely important in these “he said-she said” cases.

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Examples Of Prohibited Acts

If an alleged victim files a complaint with a university about inappropriate student conduct, schools may choose to open an investigation to uncover evidence of a prohibited act. In some cases, law enforcement may also become involved, leading to separate criminal charges.

To better assist persons accused of sexual misconduct, below are some definitions and examples that generally guide investigations and disciplinary board decisions.

If a university’s Title IX coordinator receives a report concerning your alleged behavior, you need to move quickly to defend your rights. Reach out to our attorneys at Marcilliat & Mills PLLC Group.

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Rape And Sexual Assault

Sexual assault, rape and date rape aren’t limited to acts of sexual violence. They’re broad terms that cover intercourse or other sexual activity without consent.

A few things to know:

  • Rape and sexual assault can occur regardless of age, gender or sexual orientation
  • Rape and sexual assault may not include other forms of violence like physical assault or weapons use
  • Alleged rape and sexual assault cases are very likely to have law enforcement involved

Drugs and alcohol – extremely common at college parties – can easily confuse the issue of consent. According to the OCR, a student may be deemed incapable of giving consent because they were intoxicated.

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Sexual Coercion

Sexual coercion is another form of sexual violence that takes place without the victim’s consent. It is the use of verbal or emotional pressure to induce the student into sexual activity. Drugs or alcohol may also play a role.

Examples of sexual coercion include:

  • Threats to personal safety or reputation if denied consent for sex or another sexual act
  • Claims that one party will harm themselves if denied the requested sexual behavior
  • Emotionally hostile behavior when denied consent

Sexual coercion is far from straightforward and requires objective evidence of the coercive behavior. However, many disciplinary boards are inclined to believe claims of sexual coercion and may find a person responsible without significant evidence.

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Videotaping/Taking Pictures

Today’s college students grew up with the internet, which means they also grew up with easy access to online pornography. “Selfie” culture also plays a role. Many students feel comfortable opening their lives to sharing via smartphones and social media networks like Facebook.

But, as in other examples of sexual misconduct, videotaping or taking pictures of sexual activity without all participants’ consent may subject a student to disciplinary action under Title IX. So, too, can sending unsolicited sexual pictures to another person via text, email or other messaging services.

Evidence gathered during a university investigation may later be used for criminal proceedings. If the victim is a minor, child pornography charges could also come into play.

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Voyeurism, Cameras And Stalking

Many times, voyeurism and stalking overlap. Both have criminal consequences, but they have distinct qualities.

Voyeurism is the act of observing someone without their knowledge for sexual purposes. This is typically what people call a “peeping Tom.” Voyeurism can and often does result in pictures and other recordings of individuals without their consent or knowledge. In this case, those accused of voyeurism may also face consequences for the pictures. Voyeuristic pictures may also lead to criminal charges.

Stalking involves following another person for extended periods of time, across locations and without their knowledge. Stalking is typically a recurring action. If you are accused of stalking, your case may also be referred to law enforcement.

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Sexual Harassment

Sexual harassment is often one of the vaguest forms of prohibited actions. Sexual harassment can act like a legal catch-all term. Under North Carolina’s criminal law code, sexual harassment rarely rises to the level of a criminal act, but it can still lead to school disciplinary proceedings and potentially harsh consequences.

Sexual harassment can include:

  • Inappropriate sexual contact
  • Sexual comments about a person’s body, either how it looks, proposed acts or other similar statements
  • Unwelcome sexual advances
  • Jokes of a sexual nature
  • Creating hostile or discriminatory environments

Formal complaints about sexual harassment are one of the most common types of on-campus Title IX issues. As an additional complication, sexual harassment allegations often require the alleged victim to demonstrate repeated examples of the hostile or inappropriate behavior (although one instance many be enough to amount to harassment, depending on the severity of the conduct at issue).

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The Link Between Title IX And Criminal Investigations

A person accused of misconduct for a Title IX policy violation may not just face consequences at an educational institution. Many of the acts listed in the Office of Civil Rights’ Dear Colleague letter are explicitly illegal. In this case, the university may refer a case to law enforcement for potential legal action and criminal prosecution. Many schools have policies requiring involvement of law enforcement when the alleged misconduct is criminal in nature.

Should a university or its Title IX coordinator send a report of an investigation to the police, you may find yourself in a very difficult position. Colleges and universities are not held to the same investigative restrictions as law enforcement. However, evidence gathered during a school investigation can be turned over to the police and potentially used against you in court – as can anything you say during the Title IX investigative process.

This is one of the primary reasons why you need to hire a lawyer immediately. A lawyer can assist you by:

  • Examining allegations against you
  • Reviewing evidence and preventing potentially illegal investigation techniques
  • Informing you about your rights and how they impact both a college investigation and a potential criminal case
  • Ensuring that you don’t jeopardize your position by making statements that could be used against you later

Co-occurring investigations pose serious problems for university students accused of misconduct on campus. We cannot emphasize enough that you need legal representation, regardless of what alleged behavior is involved in your Title IX disciplinary hearing.

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Stop Sexual Misconduct Allegations From Following You For A Lifetime

Students accused of sexual misconduct often become isolated and ostracized. University communities are quick to rush to judgment. You may suffer backlash even before the investigation concludes.

Schools should be places for equal opportunity and fairness. Yet, when it comes to accusations of sexual misconduct, ” innocent until proven guilty” often goes out the window. In a matter of a few calendar days, your future can go from bright to terrible.

Our attorneys can ensure that disciplinary boards treat you fairly when responding to sexual assault or misconduct allegations. This makes all the difference if you choose to stay at your university following the resolution process, or if circumstances lead to a university transfer. By preparing a strong and proactive defense, we can fight to prevent the allegations from following you wherever you go.

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The System Is NOT On Your Side

When a responsible employee at a college or university receives a report of sexual assault, discrimination, harassment or another Title IX policy violation, the university is responsible for taking the reporting party seriously. An accusation of sexual misconduct may trigger a Title IX investigation and subsequent disciplinary action against the accused student. This is true whether consent was actually present or not in any given case.

Title IX policies are meant to prevent sex discrimination on campus. Colleges and universities develop reporting systems, discrimination policies and other compliance measures in order to protect victims, not necessarily to ensure that the accused are treated fairly.

Despite the well-intentioned efforts of the government and school administrations to reduce sexual violence at colleges and universities nationwide, those students who face serious and life-changing accusations deserve the most experienced legal representation they can find.

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Do Not Risk Your Future – Contact Marcilliat & Mills PLLC For A FREE Consultation

Fortunately, North Carolina law gives you the right to representation in Title IX disciplinary proceedings. We can defend you not only in this critical process, but also in any criminal investigations or charges that follow. Our lawyers are seasoned defense attorneys with proven records of success in tackling sensitive sex offense cases.

Get in touch with our legal team online or by phone at 919-838-6643. We have convenient offices across North Carolina, including Raleigh and Charlotte, to better serve you.

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