More Title IX Learning from the Field: Decision-Making Deep in Deliberations

By Brett A. Sokolow, Esq., Chair, TNG Consulting LLC

Years ago, I took heat from activists who thought that TNG’s replacement of the terms “rape” and “sexual assault” with policy-based alternatives in our model policies[1] was minimizing of the severity of the behaviors. Rape is rape, they argued. I countered that rape is a crime. “Non-consensual sexual intercourse” is a policy violation and a form of sex-based discrimination. College policies and crimes are different for a reason and should be differentiated. TNG’s framework of policy-based terms caught on and was the dominant paradigm for higher education sexual misconduct policies for 15+ years.

Ignoring all the reasons why college processes should not be structured like criminal processes, OCR in 2020 adopted “rape” and “sexual assault” as policy terms within Title IX, using (federal) criminal definitions. Trump’s OCR bizarrely aligned with the victim advocacy community’s desire to call a rape a rape, and a new paradigm was adopted by institutions. The terms sexual assault, forcible rape, forcible fondling, sexual assault with an object, and forcible sodomy are all behaviors now framed as policy violations under Title IX.

So, three months into the spring 2021 semester, I found myself on a Zoom call with two other panelists, deliberating after a hearing I had just chaired for a college client under the then-new 2020 Title IX regulations.

We were going to find a violation of the policy by the respondent because, after some debate and discussion, we had two votes of the three-member panel. The third panelist was leaning toward finding a violation but had concerns and expressed hesitation. When fully discussed, the panelist was stuck on labeling the respondent as a rapist. The panelist would make the panel unanimous, the panelist said, if we didn’t attach the word rape to our findings.

Sitting in my office during that Zoom, I had a flashback to all the campus hearings I have been involved over the last twenty years where exactly the same conversations had pushed me to want to move campuses away from the stigmatizing language of crime definitions and terms.

Same issues today. Different generation.

I get the purist arguments. Victims have a right to have their experiences labeled accurately. Sugarcoating “rape” to get a correct decision from a panel shouldn’t be necessary. But I think that’s letting the perfect be the enemy of the good. Panelists will vote no when they should vote yes, or advocate for a lesser violation when they believe they are tagging a promising young college student respondent as a rapist for life. These regs force impossible choices.

After a healthy debate, we followed the policy. We used the term sexual assault, as defined by the policy and regulations, which included both penetrative and contact offenses. We unanimously found the student in violation 3-0. We didn’t use the term rape in our rationale, even though we clearly made the finding that the penetration had been without consent. I wonder if the victim found that to be a betrayal? Or is the fact that the respondent will never return to campus enough?

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[1] We chose “non-consensual sexual intercourse” and “non-consensual sexual contact” as substitutes.