Under Title IX, only “yes” implies consent

Mar. 28, 2018 By NMGL

Special report

Just one word – “yes” – can make all the difference in a campus disciplinary proceeding about sexual harassment or assault, says Andrew T. Miltenberg, a New York attorney who specializes in sexual assault cases at colleges and universities.

Asking partners if they want to engage in specific sexual activity, making sure they are capable of understanding the question, and waiting for them to say “yes” before continuing may persuade school officials that an intimate encounter was consensual, Miltenberg says.

Sexual assault is defined as an act involving sexual contact or behavior without the consent of the victim. Under criminal law, consent may not have to be given verbally by saying “yes.” But in campus sexual assault cases, where responsibility may be decided under a federal education law called Title IX, the presence of a verbal agreement may be enough to tilt the findings from guilty to not guilty.

Title IX, part of the Education Amendments of 1972, doesn’t prevent young men and women from becoming intimate during college. Yet over the years, some authorities have claimed that language originally intended to ensure gender equity in college sports extends to other campus situations involving men and women. They interpret the law to mean there are behavioral norms and expectations both parties must follow in a relationship, whether they’ve been dating for years or have only known each other for a couple of weeks.

Federal officials have said Title IX requires schools to take decisive action against students accused of sexual violence. A 2011 warning letter sent to schools by the federal Education Department defined sexual violence as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol, ” including rape, sexual assault, sexual battery, and sexual coercion. An intellectual or other disability may also prohibit an individual’s ability to give consent.

A key factor in reducing the number of campus sexual assaults, consent is all about clear communication, and it must be granted for every sexual activity. Giving consent once doesn’t mean that consent has been granted for increased or recurring sexual contact. For instance, consenting to a kiss doesn’t give permission for more intimate sexual contact, and consenting to a sexual activity in the past doesn’t automatically permit a partner to pursue sexual acts in the future.

On college campuses, one student may read a text message or physical cue to mean one thing, while the other party had different intentions. And other times, one individual may consent to a certain sexual act only to withdraw his or her consent as it begins to happen. Miltenberg explains that even in the midst of one act of intercourse, “it can turn from consensual to non-consensual to rape.”

While explicitly agreeing to certain activities by saying “yes” implies positive consent, there are several verbal and physical cues that don’t constitute consent. Examples include, but are not limited to, failing to acknowledge the word “no,” presuming that certain clothing invites sexual contact, and a lack of physical resistance to sexual overtures.

Many college campuses have adopted programs and campaigns to promote sexual respect. And they’re all based on the same idea – if you can’t tell if consent is given, ask. Still not clear? Then cease all sexual activity, for the safety of both parties involved.

“Even one sexual assault is too much,” says Miltenberg. But in some cases, the claimant makes false or unfounded accusations of sexual assault against the other party, or does not fully describe consent that was given during the encounter.

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 amiltenberg@nmllplaw.com.