Title IX sexual misconduct refers to certain types of behavior that include sexual harassment, non-consensual sexual contact (sexual assault), non-consensual sexual penetration (rape), and sexual exploitation. There are many variables in determining what actions constitute Title IX sexual misconduct. The common scenario throughout the news and social media: a guy gets a girl drunk and she consents to a sexual encounter, but in the cold, hard light of morning claims she wasn’t in her right mind to consent, was in effect incapacitated, and calls it rape – so, was it rape?

To be incapacitated, a person does not have the physical and/or mental ability to make an informed and rational decision. The incapacitation, for the purposes of this scenario, could be that the girl was in a state beyond drunkenness or intoxication – more extreme than if she had merely been drinking. How severely did the substance impact her ability to cognitively and consciously consent to the sexual activity, and did her partner know how impaired she was? Because alcohol and drugs affect everyone differently, a person who is drinking alcohol or using drugs should be very cautious before engaging in sexual contact or intercourse. The ingestion of alcohol or other drugs may create ambiguity for either party as to whether effective consent has been sought or given, and if there is any iota of doubt about either party’s level of intoxication, the safe thing to do is forget about engaging in any sexual activity.

Title IX sexual misconduct can include date rape, acquaintance rape or intimate partner violence, and can occur between people who know each other, are in an established relationship, have previously had a consensual sexual relationship, or it can happen between strangers. It can be committed by persons of any gender, from any social class. Some colleges and universities have in place specific guidelines for students to adhere to in regards to Title IX sexual misconduct, one of which is an effective consent agreement between parties that is freely and actively given and mutually understood in words and actions. It indicates the willingness of both parties to participate in agreed upon sexual activity. It is the responsibility of the party initiating sexual activity to obtain effective consent, otherwise any sexual contact constitutes a violation of the school’s policy.

Other types of Title IX sexual misconduct include sexual harassment, which is a form of sexual misconduct when it involves requests for sexual favors or other unwanted verbal or physical contact of a sexual nature, either expressed or implied, when it is used as the basis for academic decisions when in a college environment. Sexual harassment does not include material or discussion that is appropriately related to course subject matter or curriculum. Coercion, intimidation, and non-physical threats, or the forced use of drugs or alcohol against another person causing intoxication or impairment in order to initiate sexual activity, is a form of force and could lead to a valid case of rape being made.

Mr. Cohen has experience in handling cases of Title IX Sexual Misconduct throughout the United States. For a no cost, no obligation consultation by email or phone: cac@studentrightslawyers.com or 785.979.7361