THE DEFINITION OF SEXUAL HARASSMENT UNDER THE TITLE IX RULE PROVIDES CLARITY TO SCHOOLS

October 7, 2020

 

The new Title IX Rule went into effect on August 14, 2020.  Since that time, the Office for Civil Rights (OCR) has received inquiries regarding the definition of sexual harassment under the Final Rule.  All references and citations are to the unofficial version of the Title IX Rule, which is available here. A link to the official version of the Rule published in the Federal Register is here.

Sexual harassment under Section 106.30 of the new Title IX Rule (found in the Code of Federal Regulations at 34 C.F.R. Part 106) means conduct on the basis of sex in an education setting that satisfies one or more of the following:

 

1. An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
3. “Sexual assault” as defined in 20 U.S.C. § 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

34 C.F.R. § 106.30(a) (defining “sexual harassment”).  The first category of the above definition is commonly referred to as “quid pro quo” harassment.  The second category incorporates the Supreme Court’s standard for actionable sexual harassment in the landmark case of Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).  And the third category refers to the Clery Act and the Violence Against Women Act to define four terms: “sexual assault,” “dating violence,” “domestic violence,” and “stalking.”  When conduct on the basis of sex meets one or more of these three categories, the conduct is “sexual harassment” under the new Title IX Rule.  As a reminder, in order for sexual harassment to trigger a school’s duty to respond under Title IX, the school must have actual knowledge of sexual harassment in the school’s education program or activity, against a person in the United States. 34 C.F.R. § 106.44(a).

Because the sex offenses in the third category of the sexual harassment definition rely on other Federal statutes for their definition, these offenses are discussed below.

 

1. Sexual Assault.

The term “sexual assault,” as defined in 20 U.S.C. § 1092(f)(6)(A)(v), “means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting [UCR] system of the Federal Bureau of Investigation [FBI].”  In the Preamble to the Rule at page 547, footnote 791, the Department explains:

The FBI UCR, in turn, consists of two crime reporting systems:  The Summary Reporting System (SRS) and the National Incident-Based Reporting System (NIBRS). U.S. Dep’t. of Justice, Criminal Justice Information Services, SRS to NIBRS: The Path to Better UCR Data (Mar. 28, 2017).  The current Clery Act regulations, 34 CFR 668.46(a), direct recipients to look to the SRS for a definition of rape and to NIBRS for a definition of fondling, statutory rape, and incest as the offenses falling under “sexual assault.”  The FBI has announced it will retire the SRS and transition to using only the NIBRS in January 2021.  Federal Bureau of Investigation, Criminal Justice Information Services, Uniform Crime Reporting (UCR) Program, National Incident-Based Reporting System (NIBRS), https://www.fbi.gov/services/cjis/ucr/nibrs. NIBRS’ forcible and nonforcible sex offenses consist of:  rape, sodomy, and sexual assault with an object (as well as fondling, statutory rape, and incest, as noted above).  Thus, reference to the Clery Act will continue to cover the same range of sex offenses under the FBI UCR regardless of whether or when the FBI phases out the SRS.

The definition of Rape under the SRS is the following:  “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

Although the Title IX Rule does not require schools to choose between the SRS and NIBRS, because the FBI is retiring the SRS on January 1, 2021, and the FBI has encouraged users to transition to the NIBRS now, the NIBRS sex offenses, including the definition of rape, are listed below.

“Sex Offenses” under the NIBRS refers to any sexual act including Rape, Sodomy, Sexual Assault With An Object, or Fondling directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent, as well as the “nonforcible” sex offenses of Incest and Statutory Rape.  The NIBRS offers the following definitions of sex offenses:

• Rape— (Except Statutory Rape) The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
• Sodomy—Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
• Sexual Assault With An Object—To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
• Fondling—The touching of the private body parts of another person for the purpose of sexual gratification without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
• Incest—Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
• Statutory Rape—Nonforcible sexual intercourse with a person who is under the statutory age of consent.



Conduct meeting the definition of any of these sex offenses falls under the new Title IX Rule’s definition of “sexual assault” as a type of sexual harassment.

Note that several of the FBI UCR sex offenses that must be considered “sexual assault” involve the element of lack of consent of the victim.  With respect to defining “consent” for purposes of sexual assault as a form of sexual harassment under Title IX, 34 C.F.R. § 106.30(a) states that the Department will not require a recipient to adopt a particular definition of consent.  The new Title IX Rule expressly leaves recipients flexibility to choose a definition of consent that “best serves the unique needs, values, and environment of the recipient’s own educational community.” See Preamble to the Rule, at pages 541-42.  See also Preamble to the Rule at page 353 (“[T]he Department declines to impose a federalized definition of consent for Title IX purposes, notwithstanding commenters who would like the Department to adopt an affirmative consent standard, a ‘no means no’ standard, an implied consent doctrine, or definitions of terms commonly used to indicate the absence or negation of consent (such as coercion, duress, or incapacity)”).

 

2. Dating Violence

“Dating violence’’ is defined by the Title IX Rule by reference to the Violence Against Women Act (VAWA), 34 U.S.C. § 12291(a)(10), which means violence committed by a person—

1. who is or has been in a social relationship of a romantic or intimate nature with the complainant;
2. where the existence of such a relationship shall be determined based on a consideration of the following factors:
   1. The length of the relationship.
   2. The type of relationship.
   3. The frequency of interaction between the persons involved in the relationship.



No longer will students or their loved ones have to wonder, before they report to a Title IX Coordinator or other school official, whether violence between people who are in a dating relationship “counts” under Title IX, and no longer will they have to wonder whether they have the right under Title IX to report dating violence taking place in a relationship.

 

3. Domestic Violence

“Domestic violence’’ under the new regulations is also defined by reference to VAWA, at 34 U.S.C. § 12291(a)(8).  Domestic violence includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the complainant, by a person with whom the complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, by a person similarly situated to a spouse of the complainant under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth complainant who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.

Similar to dating violence, the Title IX Rule means that no longer will students or their loved ones have to wonder, before they report to a Title IX Coordinator or other school official, whether violence between people who are in a domestic relationship “counts” under Title IX.

 

4. Stalking

   “Stalking’’ under the Title IX Rule is also defined by reference to VAWA, at 34 U.S.C. §12291(a)(30).  Under that provision, “stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to—

   1. fear for the person’s safety or the safety of others; or
   2. suffer substantial emotional distress.

   
   The new Title IX Rule covers instances of stalking based on sex, including stalking that occurs online or through messaging platforms, commonly known as cyber-stalking, when it occurs in the school’s education program or activity.

Conclusion

This blog post describes the term sexual harassment under 34 C.F.R. § 106.30, including sexual assault, dating violence, domestic violence, and stalking, all of which are “sexual harassment” for Title IX purposes under the new Title IX Rule. (This blog post does not concern or affect how the Department enforces the Clery Act, as amended by the Violence Acting Women Act, or its implementing regulations.)

For the first time, OCR will enforce a legally binding definition of sexual harassment to include even a single instance of any of these serious forms of sex-based sexual harassment: quid pro quo harassment, sexual assault, dating violence, domestic violence, and stalking.  Previously, OCR analyzed whether such conduct was sufficiently “severe” or “pervasive” to be covered under Title IX.  No longer will OCR evaluate whether sexual misconduct of this nature meets a severe or pervasive threshold before Title IX protections are triggered.  Now, each of these forms of sexual misconduct will constitute a per se incident of sexual harassment.

If you have questions about the new Title IX Rule or require technical assistance, please contact T9questions@ed.gov.