What Is Responsible Sexual Behavior

Feb. 12, 2021 By Andrew Miltenberg

In college, what sexual behavior is and isn’t responsible?

College brings new relationships and experiences, including those of a sexual nature. Navigating these encounters is challenging, because the federal regulations that help to establish what behavior in college crosses the line are evolving are inconsistently enforced.

In short, the regulations issued by the federal Department of Education under Title IX of the Education Amendments of 1972 don’t prohibit intimacy between college students, but they do establish behavioral standards that must be understood. If you or your student have questions about responsible sexual behavior in college, Andrew T. Miltenberg, a due process advocate and Title IX attorney, explains what you should know.

Under the Trump administration, the Department of Education issued regulations that defined sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.” This definition seems comprehensive, yet leaves many students and parents with uncertainties.

Inconsistent standards between colleges and universities, as well as within the same institutions, create further confusion. Academic institutions continue to resist the Department of Education’s call for uniformity, while some have disregarded demands for protections for the rights of the accused. “I think the regulations address these concerns, but they were infrequently followed. Today, schools feel empowered to go backward,” Miltenberg says.

Making sense of Title IX guidelines

Without clear guidance, students are left with little definitive information about how their school will enforce Title IX and what it means for their conduct. Schools are required to determine the impact of one student’s actions on another, the type of behavior in question, its frequency and duration, and other factors. Without consistency, it is extremely difficult to assign boundaries to any of these considerations.

For example, Miltenberg has supported students in proceedings where similar interactions were treated with alarming disparity. At one school, sexual encounters under the influence of alcohol are not considered assault if both parties drink. At others, intercourse after two or three drinks was termed rape. Similarly, repeated texting over several days might constitute harassment and a misconduct judgment in one proceeding, while another at the same school results in a no-contact order or no action –even with more texts sent with greater aggression.

Additionally, most colleges and universities lack coherent policies to address sexual misconduct in same-sex relationships and involving transgender or nonbinary individuals. This makes understanding appropriate behavior and meeting the needs of all parties even more challenging.

Ensuring responsible behavior

How can you avoid accusations of sexual misconduct? Above all, students must always confirm consent from their partners, which is typically defined as a conscious decision by all participants to engage in specific, agreed-upon sexual activity. They must understand that the lack of a verbal rejection is not the same thing as consent, and that consent may be revoked at any time, even after previous or escalating interactions, and cannot be achieved through coercion.
“If there is no clear and obvious consent, you shouldn’t have intimacy with someone,” Miltenberg explains. The same logic applies to any interaction of a sexual nature, including sending intimate photos, requesting intercourse or dates, and commenting online. “If someone isn’t interested after one or two attempts, stop calling, texting, and posting on their social media accounts.”
What may be harder for some students to understand is how this applies after a dating relationship. Many campus sexual misconduct cases involve students who were once in a relationship, and allegations may come seemingly out of nowhere. This may be due to a victim’s trauma or as a result of biased remembrance or false accusations.
“That’s why a complete, unbiased investigation is needed, because we really need answers,” Miltenberg emphasizes.
Under the victim-centric investigative approaches used by many institutions and a low evidentiary standard, the accused may be denied an advisor, asking questions in cross-examination, and receiving a fair hearing. The regulatory changes enacted during the Trump years state that all of these things must be provided. If you or your child has been accused of sexual misconduct, it’s never wise to approach complaints and hearings alone. You need the support of an experienced Title IX attorney who understands the nuances
of institutional hearings and will fight for your right to due process. To request a consultation, contact Andrew T. Miltenberg today.