Redefining Sexual Assault: Consequences of Changing Title IX

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Redefining Sexual Assault: Consequences of Changing Title IX

Betsy DeVos, the United Secretary of Education, has put forward a proposal to change certain elements of the Title IX law.

Title IX of the Education Amendments of 1972, or simply Title IX, is a federal law that is meant to stop discrimination on the basis of sex in all educational institutions that receive federal funding, according to the U.S. Department of Education.

One of the changes in DeVos’s proposal is a new definition of sexual harassment. The Background & Summary of the Education Department’s Proposed Title IX Regulation defines sexual harassment, as actionable under Title IX, as, “(1) A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (often called quid pro quo harassment); or (2) Unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity, or (3) Sexual assault as that crime is defined in the Clery Act regulations.”

The summary goes on to say, “Taking all three parts together, this definition is intended to ensure that only objectively serious behavior that, if left unaddressed by the school would jeopardize a student’s access to education, is actionable under Title IX.”

The third part of that definition states that sexual assault will be defined as it is under the Clery Act. The Clery Act, the full name of which is the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, is a federal law that requires that educational institutions that receive federal funding disclose crime statistics about specific offenses. The act includes sexual assault, but also other crimes, such as robbery and arson, according to the Clery Center.

The Clery Act has four definitions of sexual assault, which are rape, incest, fondling and statutory rape, according to the Clery Center.  

Stephanie Bishop, Earlham College’s Director of Human Resources and Title IX Coordinator, spoke on the idea of sexual assault being defined in the same way as Clery Act, saying, “I would hope they would not do that, because I think that too narrowly defines assault as it would relate to Title IX and our ability to take action in those cases.”

“While they work together, they’re dissimilar in a lot of ways,” said Jason Elliot, Assistant Director of Public Safety, describing the difference between the Clery Act and Title IX.

Chris Little, Director of Public Safety, explained more about the Clery Act, saying, “Clery is really a consumer protection act. So, the idea behind it is that you gather all the information on these crimes throughout the year and you publish them so that potential customers of the college or university can look at that report and make a decision based on where they want to spend their money.”

Additionally, the Clery Act is not the same state to state, because it is determined by state law. Little explains, “Clery Act is a federal law and the only difference by state is when you talk about specific crimes. When you look from, let’s say, Florida to Indiana, the definition in state law for sexual assault is pretty much the same. But some of these crimes are not federal crimes, so, therefore, there’s not a federal definition that the Department of Education can apply.”

However, there are some significant differences in state law. According to RAINN, the Rape, Abuse & Incest National Network, Indiana state law does not specifically define consent, but states that a sex crime is committed if, “(1) the victim is compelled by force or imminent threat of force; (2) the victim is unaware that the sexual intercourse or other sexual conduct is occurring; or (3) the victim is so mentally disabled or deficient that consent to sexual intercourse or other sexual conduct cannot be given.”

In Illinois state law, for example, consent is defined and “freely given agreement” is part of that definition, whereas it is not in Indiana, according to RAINN. Consent, again, isn’t defined in Indiana law.

Art by Masha Morgunova

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