Given the widespread publicity around the epidemic of campus sexual assault across the country, it is clear that the our historical understanding and norms around consent are problematic. To protect students (and really all community members), we need to develop better norms around consent to decrease the prevalence of sexual violence. Additionally, we need an understanding that does not favor sexual perpetrators by placing burdens on those who would be victimized by their actions. This standard in society is what occurs when laws and policies require resistance, whether physical or verbal, from survivors before declaring sexual aggression to be sexual violence. In response to this burden on victims, which creates an imbalance that favors abusers, affirmative consent has arisen in popularity with millennials as a better understanding of consent during sexual activity. Affirmative consent is the idea that both individuals in a sexual encounter are willing participants actively engaged in the sexual contact or activity. Rather than a “no means no” framework to require a person to resist, affirmative consent is a more prevention-focused standard of only “yes means yes.” This is why affirmative consent has gained support from educational institutions and state legislatures alike. In particular, schools are leading the way to dismantling rape culture that burdens victims and favors perpetrators.
While affirmative consent has garnered recent national attention, the standard has been around for decades. In 1991, Antioch College in Yellow Springs, Ohio released its Sexual Offense Prevention Policy which states that “consent means verbally asking and verbally giving or denying consent for all levels of sexual behavior.” At the time of this policy's implementation, students embraced it. It did not receive national attention until two years later, when criticism arose around the “verbal” requirement to ensure consent. Additionally, in 1992 the Canadian legislature amended their criminal code to establish statutory affirmative consent standards through bill C-49. In 2015, the Thames Valley Police in Great Britain published a video in an attempt to educate the public about consent. This video has been widely used in Great Britain and “[resonates] with many Americans online” by comparing consent and sexual activity to drinking a cup of tea and promoting affirmative consent standards. If you have not seen it yet, try watching it now.
There is also momentum around affirmative consent in national and state-level discussions around legislation and policy efforts to address sexual assault. In April 2014, under the Obama administration, the White House Task Force to Protect Students from Sexual Assault published a Checklist for Sexual Misconduct Policies. By September 2014, California’s state legislature had passed Senate Bill 967, a bill that amends the education code with the definition of consent as an “affirmative, conscious, and voluntary agreement to engage in sexual activity.” In July 2015, the New York state legislature passed the “Enough is Enough” law, Senate Bill S5965. This bill defines consent as “a knowing, voluntary and mutual decision among all participants to engage in sexual activity.” It also clarifies that having no reaction does not reach the threshold of consent through the phrase “silence or lack of resistance, in and of itself, does not demonstrate consent.” By including this line in its definition, New York affirms that if an individual is unconscious, incapacitated, or experiences a freeze reaction, they are not an active participant and are therefore not consenting. This understanding is important since reactions to trauma vary from person to person and should be accounted for when developing legislation and policy to address sexual assault. These state laws and federal policy recommendations aim to protect students on college campuses by setting standards that help prevent sexual violence, which is an issue currently impacting an average of almost 28% of transgender and gender nonconforming students, up to 20% of cisgender female students, and up to 6% of cisgender male students.
Despite the changing norms across the nation that favor affirmative consent as a better way to prevent and respond to sexual violence, the American Law Institute (ALI) seems out of touch with this progress. Recently the ALI approved Article 213(3)(a) of its Model Penal Code on Sexual Assault, which defines consent to be “inferred from behavior, including words and conduct – both action and inaction – in the context of all circumstances.” While the Model Penal Code is a few years away from completion, it often impacts state legislation given the deference shown by lawmakers to ALI model codes. If adopted by States, this definition would regress our understanding of consent and have devastating effects on survivors who have fought so hard to push forward progressive affirmative consent standards into social consciousness as well as legislation and policy. Of specific concern, allowing “inaction” to substitute for consent is deeply problematic.
While common sense may lead us to believe that fight or flight are common responses to fear and attacks, freezing is a common response when going through a traumatic event. A Swedish study that was published on June 22, 2017 found that, out of 300 women who had gone to an emergency clinic up to a month after their rape or attempted rape, seventy percent (70%) of women reported that they experienced “significant “tonic immobility,” or involuntary paralysis, during the attack.” This study provides solid evidence that almost three-quarters of women who who experience sexual assault respond by freezing. Professor Martin Antony, Ph.D., of Ryerson University explained to Vice that in some cases of fear or panic, the freeze instinct comes into play. A small example of this includes “not being able to speak or think of the right words when you are nervous,” just like occurs for those with a fear of public speaking. This response is elevated in traumatic events, like interpersonal violence or accidents resulting in personal injury. The common reaction of the brain (and thus the body) to freeze is too often overlooked when assessing a complaint of sexual violence, which further supports the need for an understanding of affirmative consent as a legal standard in order to capture this common fear reaction known and undisputed in research around trauma.
Affirmative consent standards means courts and colleges alike can distinguish between consensual sex and sexual violence (the preferred term to nonconsensual sex). The definitions of affirmative consent used by schools often vary from campus to campus, but a model definition states that participants must have a “voluntary agreement to engage in sexual activity” and that “silence or [the] absence of resistance does not imply consent.” To avoid perpetrators defending claims of sexual violence by claiming they were under the influence of alcohol, the State University of New York (SUNY) published model language for consent policies that may be adopted by other institutions: which can be found here. This language states that: “Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.” The current definition of consent under the ALI Model Penal Code on Sexual Assault directly contradicts a requirement that consent be gained prior to engaging in sexual activity. If this regressive standard is accepted, then perpetrators can argue a victim’s inaction under trauma is consent to excuse their own sexual aggression without regard to whether their action in seeking sexual contact or activity were against the victim’s will. A victim failing to resist or fight back should never excuse sexual aggression and violence. The impact of this ALI model language could prevent victims and survivors across the country from receiving justice in criminal courts by failing to acknowledge the realities of trauma during sexual violence and thus allow perpetrators to get away with this violent conduct and harm to others.
In recognizing the undisputed findings of trauma research, SurvJustice denounces the ALI’s definition of consent and calls for its members to revisit this provision of the Model Penal Code in recognition of the growing support and acceptance of affirmative as a more progressive standard. The ALI must recognize the norms accepted by current generations, who will be affected the most by these model codes if they are adopted into state law. Allowing for consent to be “inferred” when an individual exhibits a common response to trauma sets back legal understanding to a time before science and harms countless victims and survivors who deserve justice. Without requiring those seeking sexual contact to have affirmative consent before engaging in sexual activity with another, sexual violence will continue to be a prevalent issue and the criminal justice system will continue to fail in addressing it. Affirmative consent is the best standard to prevent and adjudication sexual misconduct and violence. Integrating this progressive standards of consent into the ALI’s Model Penal Code continues societal progress in changing standards that will help us end the epidemic of sexual violence in this country.
To understand the requirements of Title IX, educational institutions and agencies are encouraged to reference 34 C.F.R. Pt. 106 and seek advice from their institution’s legal counsel. The following post briefly discusses the legislative history and purpose around certain provisions of Title IX’s implementing regulations for informational purposes only. Click here to view the full white paper.
Legislative History of 34 C.F.R. § 106.8
Under Title 34 of the Code of Federal Regulations, schools can find regulations regarding compliance with Title IX of the Education Amendments of 1972. Specifically, § 106.8, which is entitled “Designation of responsible employee and adoption of grievance procedures,” requires educational institutions to appoint a responsible employee to oversee and develop effective grievance proceedings on campus. Below is a brief history of the regulation’s history and its important role in Title IX compliance and enforcement.
As the number of women in the public workforce increased in the 1960s, issues of equality in the workforce turned national attention to the problem of discrimination against women in educational settings. During the summer of 1970, Congress brought the issue of sex bias in educational institutions to legislative attention through a set of discrimination hearings before a special House Subcommittee on Education. In 1972, fueled by both the momentum of the growing women’s movement and mounting political pressure, President Richard Nixon signed Title IX of the Education Amendments of 1972 into federal law to prohibit discrimination on the basis of sex within educational settings.
Title IX states in relevant part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...” Modeled after the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, Title IX conditions the receipt of federal funding by public schools on the implementation and enforcement of policies that promote equal opportunity and treatment among the sexes.
Sex discrimination extends to and includes incidents of sexual harassment and sexual violence. The U.S. Department of Education’s 2011 “Dear Colleague Letter” defines sexual violence as, “[P]hysical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent.” The letter goes on to explain that rape, sexual assault, sexual coercion and sexual battery all fall under the scope of sexual harassment under Title IX.
The U.S. Supreme Court (Court) clarified the legal contours of Title IX actions in a handful of key cases. In 1986, the Court held that a claim of hostile environment due to sexual harassment constitutes an actionable claim of sex discrimination under Title VII of the Civil Rights Act in Meritor Savings Bank v. Vinson. In 1992, the Court applied their decision in Meritor to determine that courts have the authority to grant remedies to private parties in cases of teacher-student sexual harassment. In 1998, in Gebser v. Lago Vista School District, the Court again interpreted Meritor to flesh out their Gebser opinion, articulating that a school can be held liable for monetary damages when (a) a teacher sexually harasses a student and (b) the official with the authority to address the claim has actual knowledge of the harassment and is deliberately indifferent in their response. One year later, in 1999, the Court announced in Davis v. Monroe County Board of Education that a school may also be liable for damages in cases of student-to-student harassment if the Gebser conditions are met.
After Congress passed Title IX, schools across the country struggled to understand what exactly they needed to do in order to comply with Title IX. In an effort to clarify the specific requirements of Title IX compliance, the U.S. Department of Health, Education and Welfare (HEW) started to develop and draft implementing regulations for publication through the rulemaking process. Finally, in June 1974, the rulemaking committee distributed a draft of proposed regulations with a five month period for public comment, during which time HEW anticipated a flood of responses from both advocacy groups and educational institutions.
By the close of the public comment period in October 1974, the proposed Title IX regulations received nearly 10,000 comments. In response to this overwhelming feedback, HEW stated: “Such a broad public reaction is healthy and reflects the fact that we undertook our responsibilities with a commitment to face the difficult and controversial issues inherent in the law.” In other words, the rulemaking process to clarify compliance with Title IX for educational institutions was sorely needed.
On June 4, 1975, the completed Title IX regulations appeared in the Federal Register. On July 21, 1975, these implementing regulations went into effect for all educational institutions and agencies receiving federal funding in order to “ensure and monitor compliance” with Title IX. In 1980, the newly-founded U.S. Department of Education adopted these regulations and codified them into 34 C.F.R. § 106.
Specifically, section 106.8 of the Title IX regulations (“designation of responsible employee and adoption of grievance procedures”) plays a key role in placing the responsibility of handling Title IX claims on schools. It aims to minimize federal involvement, preserve federal resources, and instead require institutions to internally address sex discrimination by creating self-examination opportunities. Section 106.8 specifically addresses two concrete ways in which institutions and agencies can engage in this self-examination process—through the designation of a responsible employee to coordinate Title IX compliance efforts across campus, 34 C.F.R. § 106.8(a), and the adoption of internal grievance procedures to receive and resolve complaints of sex-based discrimination, 34 C.F.R. § 106.8(b).
Addressing discrimination in subconscious beliefs & traditions
In reviewing the vast amount of public comments received for the proposed Title IX regulations, HEW noted that many issues in education discrimination seemed to stem from subconscious beliefs and old institutional traditions: “[M]uch of the discrimination against women in education exists unconsciously and through practices long enshrined in tradition.” Consequently, HEW designed the Title IX regulations with the goal of schools locating such biases, working internally to acknowledge them, and ultimately changing these discriminatory beliefs and practices. Specifically, HEW stated that, “during the next year those in education begin a searching self-examination to identify any discriminatory policies or practices which may exist within their institutions.” The Department also intended to preserve federal resources by limiting federal involvement during these internal examinations, believing that institutions were more favorably situated than the federal government to find their own weaknesses due to a clearer understanding of their own unique culture, practices, and traditions.
Opportunities for self-examination
Allowing institutions greater control over their compliance procedures and processes also allows for timely and comprehensive issue resolution, offering both complainants and institutions “the prospect of an expeditious resolution of issues and development of compliance activities which are best suited to particular situation involved.” Upon the publication of the regulations in 1975, HEW’s Secretary, Carl Weinberger, expressed the importance of schools engaging in active self-examination, stating: “[N]o other provision of regulation has more potential for ending sex discrimination. I hope educators charged with carrying out this provision will do so in a spirit that fully embraces the real purposes of the law.”
In conclusion, the drafters of the Title IX regulation intended section 106.8, with its designation of a responsible employee and required adoption of grievance procedures, to address unconscious sex biases and better ensure effective and expedient resolution of complainants. Through this, HEW intended to both preserve educational institutions and agencies’ ability to manage and monitor their own campus while preserving the federal resources needed to enforce Title IX. Therefore, the opportunities for self-examination provided under section 106.8 of the Title IX regulations has played an important role in the compliance and enforcement of Title IX by encouraging schools to provide closer scrutiny to their own practices, traditions, and beliefs to avoid discrimination on the basis of sex.
Laura L. Dunn, Esq.
The information on this blog is provided for general informational and educational purposes only. By using this blog site, you understand that there is no attorney-client relationship between you and SurvJustice. No information contained in this post should be construed as legal advice from SurvJustice or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. While the blog is updated on a regular basis, it may not reflect the most current legal developments.