What constitutes sexual assault on college campuses?

Mar. 9, 2018 By NMGL

Special report

Criminal law defines sexual assault as violence that includes rape, forcible sodomy, and fondling. Yet while state and federal criminal laws offer specific definitions for sexual assault, colleges and universities can create their own definitions and protocols, which often favor the accuser and result in harsh penalties for the accused whether guilt is conclusively proven or not.

Andrew T. Miltenberg, a veteran trial lawyer and managing partner of Nesenoff & Miltenberg, LLP, warns students and faculty that allegations of sexual misconduct can stem from seemingly innocent or well-intentioned actions.

The challenge is Title IX of the Education Amendments of 1972, federal legislation that was originally intended to promote gender equity in college sports but has taken on much broader impact over time.

“Any institution that receives federal financial aid is prohibited from gender of sex discrimination in any on-campus activity under Title IX,” says Miltenberg. In 2011, the federal Department of Education told colleges and universities that Title IX might mean they could lose federal funding if they failed to act to take action against “acts of sexual violence.” That set off a scramble among college administrators to stay ahead of the law, proactively preventing and responding to all claims of sexual harassment and violence. The result is a growing variety of disciplinary standards that go beyond the criminal definition of sexual assault.

In its 2011 letter to colleges, the Department of Education defined “unwelcome conduct of a sexual nature” as “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature” – words that can be interpreted in markedly different ways by different observers in different contexts.

Because each college and university makes its own rules and regulations, definitions of sexual misconduct, protocols, and disciplinary actions can vary from one educational institution to the next.

At some institutions, Miltenberg explains, “a hug that lingers too long or isn’t consensual or a kiss on the cheek that’s not consensual” can be considered sexual assault. Other examples include comments that are sexual in nature, being alone in a dorm room with another person and blocking the door, and sexual relations that turn from consensual to nonconsensual during intercourse.

“All of these actions could be seen as sexual, and may subject a person to an investigation for sexual assault,” says Miltenberg.

In addition to more obvious examples of sexual assault, any number of actions can necessitate an investigation. Under Title IX, schools are required to respond to any circumstance that creates a hostile learning environment. From sending suggestive text messages to sharing sexual anecdotes to purposefully brushing up against another person, sexual assault and harassment can be defined in a myriad of ways by educational institutions.

Add vague definitions of sexual assault to a university’s hard-to-navigate policies, untrained investigators, lack of witnesses, little-to-no direct evidence and a non-independent appeal process, and you have what Miltenberg refers to as “the perfect storm.”

Since campus sexual assault cases are adjudicated using the lowest possible evidentiary standard, the accused student can be found guilty of sexual assault on a preponderance of evidence. In other words, the evidence only has to prove that the proposition is more likely true than not, meaning that a case can be won on a 50-50 basis.

In the current and rather dangerous college environment, one can never be too cautious when interacting with other students and faculty on campus. If you or someone you know is facing allegations of sexual misconduct, contact Andrew T. Miltenberg for a confidential consultation today at 212-736-4500 or amiltenberg@nmllplaw.com.