Sexual Harassment Policy Drafting Under Title IX: Avoid the Word “Forcible” in Your Sexual Assault Definition

By: Kim Pacelli, J.D., M.Ed., Partner, TNG Consulting

Higher education institutions and schools have spent the summer of 2020 revisiting their sexual harassment and misconduct policies to ensure compliance with the May 2020 Title IX regulations. These efforts have required particular attention to the policy definition of “sexual harassment” itself, which is very specifically prescribed under the federal Title IX regulations. The regulations specify a six-part sexual harassment definition that encompasses sexual assault, domestic violence, dating violence, stalking, “hostile environment” harassment, and quid quo pro harassment. This article addresses the specific definition of “sexual assault” under these regulations, and some advice about how to both comply with the regulatory requirements and promote important sexual violence prevention goals through your policy.

Some background: the definitions section of the 2020 Title IX regulations (34 C.F.R. § 106.30) defines “sexual assault” with a cross-reference to a related federal campus safety law, the Clery Act. In doing so, the U.S. Department of Education intended to bring the Title IX sexual assault definition in line with the definitions used for Clery Act-based campus crime reporting. That cross-reference thickened the policy-writing plot, however, by referring further to both the FBI’s Uniform Crime Reporting system and the federal National Incident-Based Reporting System (NIBRS) for definitions of “forcible or nonforcible sex offenses.” When you dig into those definitions, you discover that the sexual assault definition should cover four types of “forcible” sex offenses (forcible rape, forcible sodomy, sexual assault with an object, and forcible fondling) and two types of nonforcible offenses (incest and statutory rape). How the Department of Education (ED) expected education administrators to know how to follow this trail of breadcrumbs to get to the new required policy definition is a bit of a head-scratcher, but nevertheless, ATIXA experts did so in crafting the new model definition contained in our model called “One Policy, Two Procedures” or “1P2P” for short.

When the regulations were first released, it was unclear whether schools and colleges had incorporate the federal definitions and terminology, word for word. The “food for thought” here, is whether, in an effort to comply with the Title IX regulations, your policy should reflect the federal headings of “forcible” and “nonforcible” in how it defines “sexual assault”. Our advice on this is “no” and thankfully ATIXA received confirmation from ED’s OPEN Center late this summer on this policy-drafting approach. As long as policy proscribes the right types of conduct that derive from those definitions, it need not include the specific headings “forcible” and “nonforcible.”

Why does this matter? The risk is that highlighting the heading “forcible” as part of your sexual assault definition unintentionally suggests that physical force or violence are necessary elements of a sexual assault. Of course, your policy also requires an evaluation of whether there was consent, including whether the complainant had the capacity to give consent. Force and physical violence are an important part of the consent analysis, as the use of force can serve as proof of non-consent, but force and physical violence are not common facts present in many college and school sexual assault investigations. Instead, many such cases turn on analysis of whether a complainant had capacity to consent to sexual activity or whether clear words or actions indicated to the respondent that consent was given. Where force is absent, a policy is still violated if consent is not present.

ATIXA’s recommended core model policy language avoids using the headers of “forcible” and “nonforcible”, and simply stands sexual assault on its own as the offense. This sends important signals and messaging to educational communities about behavioral expectations.  In your well-placed efforts to comply with these Title IX regulations, be sure that you are doing all that you can to communicate the range of consent-based issues that are contemplated by this new sexual assault definition. Excluding the red herring header of “forcible” from your sexual assault definition is a good place to start.