How Can Inappropriate Sexual Behavior Lead to Disciplinary Action?

Feb. 25, 2021 By Andrew Miltenberg

Few students imagine they will be accused of campus sexual misconduct. The frequency of on-campus assault suggests otherwise, with one in five women and one in 16 men experiencing assault during their college years. When assault, sexual harassment, and other forms of gender-based violence occur, universities and colleges look to the federal government’s Title IX regulations for guidance.

Most students remain unaware of the specific behaviors that violate Title IX and lead to disciplinary action. According to Title IX expert Andrew T. Miltenberg, a low evidentiary standard and general lack of clarity make understanding what leads to disciplinary action even more difficult.

What does Title IX say about inappropriate sexual behavior?

Title IX indicates that unwelcome gender-based acts — which include sexual harassment, stalking, and dating violence — violate an individual’s right to an education. Guidelines indicate that these behaviors constitute Title IX violations only when “severe and pervasive.”

This, Miltenberg explains, is where confusion begins, because colleges often apply a lower standard of evidence than the courts. If someone were facing criminal charges, he explains, “criminal standards tend to be very high, so tremendous evidence is necessary.” But in a university setting, disciplinary proceedings organized under Title IX can have the effect of giving the accuser’s claims more priority.“Due to the low standard of evidence at the college level,” he says,“it’s virtually impossible to give a clear definition of what may be considered sexual harassment, stalking, or assault.”

Complicating matters is that most universities and colleges do not approach Title IX cases with uniform definitions of inappropriate behavior. What is considered a violation at one school may fail to provoke a hearing elsewhere, and detailed guidance is rarely provided. “What you have at one school may not exist at another,” Miltenberg says. “I couldn’t give students specific behavioral guidelines unless I know which school is in question.”In fact, Miltenberg recalls representing students in stalking-related Title IX proceedings within the same academic year at the same institution with different standards applied in each case.

Questioning consent

Questions about consent loom large in Title IX proceedings, and it can be assumed that representatives of both parties will seek to uncover its presence. If there is any question about consent, sexual interactions must not continue.

“The default position if you don’t want to run afoul of Title IX guidelines is to limit interactions without clear and expressed consent,” he explains.

To determine if a Title IX violation has occurred, Miltenberg may ask difficult questions surrounding consent. In cases of stalking and harassment, for example, the accused may be asked how many interactions occurred. Students should make no more than one request for dates, sexual activities, or any other act of a sexual nature. By doing so, they can avoid the perception of harassment or stalking and minimize accusations of coerced consent.

Miltenberg advises against casual interactions, but warns that individuals in committed relationships have also been subject to Title IX allegations. He advises students to “be careful at every step with any attempted interaction.”

When accusations are made, it’s essential to choose a lawyer with extensive experience in Title IX proceedings. If you or a loved one has been accused of sexual misconduct, contact Andrew T. Miltenberg to learn how you can ensure a fair hearing and protect your right to due process.