How college students can avoid being accused of campus sexual assault

Apr. 20, 2018 By NMGL

Special report

According to the Association of American Universities, unwanted sexual contact happens to almost one-fourth of undergraduate women – contact that can lead to disciplinary action with severe consequences. Students who choose to be sexually active need to be on guard and protect themselves against a possible accusation of sexual assault.

Andrew T. Miltenberg, a New York attorney specializing in due process for students charged with campus sexual assault, urges men and women to think twice before engaging in any behavior of a sexual nature, especially because of the life-altering implications imposed by Title IX of the Education Amendments of 1972. Title IX prohibits sex discrimination in colleges and universities that receive federal funding. However, as Miltenberg points out, “it’s now evolved to cover any differential in the way a university or college handles any aspect of life on campus” – including sexual harassment and sexual violence.

The college experience is full of hard-to-navigate situations, but knowing how to proceed can make the difference between achieving dreams and facing serious personal, academic, and even future professional consequences. In order to avoid sexual assault allegations, every student needs to take the necessary precautions before becoming intimate with another person.

Above all, says Miltenberg, students always must abide by the cardinal rule of consent: Only yes means yes. Even if the other party hasn’t explicitly said “no,” that doesn’t automatically imply consent.

Every time a sexual encounter occurs, consent must be granted. “The prevailing winds on campus are such that you could be with your girlfriend or someone you’ve been with for months,” explains Miltenberg, “and then a week from now you get a letter by the dean saying, ‘Please appear tomorrow at 10.a.m. at the Title IX office regarding a confidential and significant matter.’”

Throughout college and beyond, it’s each party’s responsibility to ensure the other person feels safe and comfortable during intimacy. From a hug that lingers too long to a nonconsensual kiss to sexual contact with a person who’s intoxicated, sexual actions without clear consent “may subject you to an investigation for sexual assault,” says Miltenberg. That’s why students should always avoid vulnerable partners who are incapacitated due to drugs or alcohol and negotiate consent verbally for each sexual act by asking for permission.

Students should also establish reciprocal interest with their partner. Besides visual indicators, such as smiling, leaning in, and making eye contact, it’s important to always uncover a partner’s intentions and expectations before even thinking about physical touch. If their partner doesn’t seem interested, that’s their cue to give the person his or her space.

Another method to help ensure consent, especially during the course of intimacy, is for individuals to empower their partner to say “no” or “yes.” Though the other party may agree to a certain sexual act, he or she may begin to feel uncomfortable while it’s happening. In turn, he or she may withdraw consent, saying something along the lines of, “Can we stop?” In this instance, the sexual act should be terminated immediately and any future sexual activities are prohibited unless given enthusiastic consent.

It’s important to remember that consent is not always enthusiastic. For example, a partner may voice a tentative “yes” in a way that indicates some level of discomfort. If the initiator suspects that his partner may be hesitant, he should give the other person some time to make a decision without placing pressure on him or her. No matter the situation, students should err on the side of caution to help make certain that each act is consensual and doesn’t constitute sexual assault.

In the event that you or someone you know has been wrongly accused of sexual assault under Title IX, contact Nesenoff & Miltenberg, LLP today at 212-736-4500 or for a confidential consultation. It’s essential for students accused of sexual misconduct to acquire legal counsel to protect their rights and work toward the most positive potential outcome of their proceedings.