[vc_row][vc_column width=”5/6″][vc_column_text]As parents get ready to send kids off to college, no doubt they have thought about the obvious – tuition, room and board, and perhaps even whether their child can operate a washing machine. What does not make the list of concerns is Title IX, but it ought to. During orientation, one of the most important topics the university will cover is its Title IX policy and its definition of consent. Amidst the overload of information, it may be tempting to zone out of the Title IX talk, in part because students and parents think Title IX violations will never be a part of their college experience – until it is.
Title IX is a federal law that prohibits discrimination based on sex/gender in an educational setting. This includes: sexual harassment, sexual violence, dating violence, and stalking. Sexual violence means physical sexual acts attempted or perpetrated against a person’s will or when a person is incapable of giving consent. The Illinois Preventing Sexual Violence in Higher Education Act (110 ILCS 155) requires that universities maintain a comprehensive policy that defines what it means to consent to sexual activity, and it is imperative that students understand that definition.
When a student is “incapacitated” by drugs or alcohol, he/she cannot consent. This seems relatively intuitive until you take a closer look at how incapacitation is determined in a university investigation. When the university receives a report of sexual violence, the evaluation of whether the victim was incapacitated is subjective and determined by the university investigator assigned to the case. What constitutes incapacitation is a hotly-debated topic in the Title IX arena and often does not coincide with the definition found in a dictionary. Unless a student’s level of intoxication has caused him/her to pass out, it is difficult if not impossible to assess in the moment whether a partner is incapacitated and unable to consent. A victim who has been consuming alcohol, yet can dance, text, and/or talk may be deemed incapacitated and thus unable to give knowing consent. Intoxication or incapacitation of the accused is not a defense.
When the university receives a report of sexual violence, it investigates to determine whether the allegation is more likely true than not true – a far cry from the justice system’s criminal standard of “beyond a reasonable doubt.” Both the victim and the accused are often “good kids” who know each other, either as friends, in a dating relationship, or mere co-attendees at a party. Many times, though certainly not always, the victim is a freshman with little or no prior exposure to alcohol. The accused typically has no prior criminal history.
What most parents and students fail to recognize is that once the university receives a report of sexual violence, the accused is subject to temporary suspension, removal from the classroom, and/or a ban from campus housing and dining pending the investigation, which typically takes up to 60 days or more to complete. If the university determines the encounter was non-consensual, the accused is likely to be suspended and/or expelled, banned from NCAA athletics, and any scholarships awarded are subject to revocation. A separate criminal investigation by the state may ensue. Most students do not realize the potential consequences of engaging in sexual activity with a partner who is intoxicated until it is too late because they do not view themselves as sexually violent people, nor do they equate their actions with sexual violence – but the university does and, most importantly, so does the victim.
Bottom line: talk with your student about alcohol, incapacitation, and inability to consent. In the unfortunate event your child is the victim or the accused in a university investigation, it is wise to immediately seek the advice of counsel to protect your child’s interests.[/vc_column_text][/vc_column][/vc_row]
