Is Affirmative Consent the Law for Pennsylvania College Students Responding to Student Misconduct under Title IX?
Affirmative Consent is not the law but it is the norm.
As we’ve discussed before (1) there’s a huge difference in terms of understanding if you violated Title IX between what the “policy” says and what the “rules” are or will be (2). With something as complex as responding to a complaint of sexual misconduct, the college student (most often a man (3)) may not understand if what he did, if he did anything at all, is sexual harassment, assault, or hostility under the “policy” and under the “rules”. Thus, to understand the problem, student respondents and their legal team need to carefully assess two scenarios, one is the broadest norms that the school put in its handbook and which we call “policy”. The other one is the narrow world of “rules” which exist (or will exist) as a Federal law (including regulations from the US Department of Education) that give you rights that can contradict the “policy”.
Students responding to sexual misconduct going to college in California or New York have defended themselves for a while now paying attention to what those states say things as politically charged as criminal “consent” mean (4). Now, students in Pennsylvania colleges and universities also have to pay attention to affirmative consent and other issues as used in a non-criminal new policy called “Sexual Violence and Sexual Harassment Model Sexual Misconduct Policy” which the Pennsylvania State Department of Education has just issued. It is available here: https://www.education.pa.gov/Documents/Postsecondary-Adult/Comprehensive%20Model%20Policy.pdf. This is the best language and document that exists for Pennsylvania male respondents of student misconduct to read and understand whether Pennsylvania makes their Title IX problem better or worse.
Under this non-binding Pennsylvania Model Policy (how about we go ahead and call it PMP) the likely scenario is that schools will have handbooks that incorporate its suggestions into their “policy”. It is also likely that this will work against the male respondent to sexual misconduct because the PMP repeats and in effect institutionalizes the very things that everyone who defends men in school (5) has been calling male biased systems (this includes law professors (6)). As a result of this male-bias, under those policies, you can and you will be expelled if the school builds a case that you violated any definition of active consent including those the school may copy from the PMP.
Yet, because the PMP is just another “too little/too late” publication, it actually has very little new. That is, most schools in Pennsylvania already have the definitions of sexual misconduct that the PMP normalizes. For example, this is how the PMP defines consent; using the classic (and troubling) way that allows for gray rape claims:
“Consent – A knowing and voluntary agreement to engage in specific sexual activity at the time of the activity. In order to be valid, consent must be knowing, voluntary, active, present and ongoing. Consent is not present when an individual is incapacitated due to alcohol, drugs, or sleep, or otherwise without capacity to provide consent due to intellectual or other disability or other condition.”
Yet Penn (7), Drexel (8), and Temple (9) already have definitions of “consent” that use this “ongoing” language of affirmative consent that causes problems because in a “she said-he said” situation (and Title IX is all about those situations) she can say that she revoked the consent for at least one form of sex you thought she had consented to.
Similarly, Penn (10), Drexel (11), and Temple (12) all have definitions of how easy it is for them to prove that you violated the misconduct policy and that thus you should be expelled (that’s called the standard of proof) and for those schools it is “preponderance of the evidence.” (13) Preponderance empowers the Title IX staff to expel the male respondent at any point which is why immediately lawyering up is optimal. And not surprisingly, given that Title IX staff is mostly women employees mostly out to protect female students (14); the PMP merely normalizes that male-biased view stating:
“Standard of Proof [Name of Institution] uses the preponderance of the evidence standard in investigations of complaints alleging sexual misconduct and any related violations. This means that the investigation determines whether it is more likely than not that a violation of the policy occurred.”
Interestingly, the PMP’s adoption of only one standard, preponderance, goes against the suggestions that the Federal Department of Education currently has in force. (15).
The PMP embodies the systemic anti-male bias that forces Title IX male respondents to immediately lawyer up. Yet it has two potential and unintended advantages for all male respondents. One is that they drafted the PMP meaning to protect women but it clearly is available for any man to invoke. The second is an interesting provision—the PMP grants drug or alcohol amnesty: Say both complainant and respondent were drunk, or only the complainant was high, or only the respondent got stoned out of his mind whenever whatever sexual activity that now has become “misconduct” took place. Well, under these rules, the drunk/stoned/high person gets “amnesty.” Thus, that person, even the always demonized male respondent, can say something like “she touched me in ways I did not agree to while I was stoned but I just couldn’t speak”. With that statement, the male respondent avails himself of the PMP’s drug amnesty and invokes the whole PMP against the complainant. Realistically, this is possible because the PMP does not contemplate male rape as a statistically significant event. (16). Thus, the PMP unintentionally gives a male respondent amnesty to confess that he was a male victim of sexual misconduct in the event that the alcohol or the drugs incapacitated him from actively consenting actively to her conduct. As the PMP puts it:
“F. Alcohol and Drug Use Amnesty The health and safety of every student at [Name of Institution] is of utmost importance. [Name of Institution] recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time sexual misconduct occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. [Name of Institution] strongly encourages students to report incidents of sexual misconduct. A witness to or individual who experience sexual misconduct, acting in good faith, who discloses any incident of sexual misconduct to [Name of Institution] officials or law enforcement will not be sanctioned under [Name of Institution]’s code of conduct for violations of alcohol and/or drug use policies occurring at or near the time of the incident(s) of sexual harassment or sexual violence.” (17).
The PMP is inevitably headed towards a conflict with the Rules that the Federal Department of Education is publishing. Those are Rules, not policies, or suggestions. And just about everyone agrees that these Rules will not have as pro-complainant a bend as the PMP does. Still, as a male respondent to student misconduct the system is stacked against you. At the end of the day, PMP or no PMP, if you have a sexual misconduct situation while in school, you need to lawyer up because, for example, if you had an open fracture while in school, you would doctor up, wouldn’t you?
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. To see the difference between a policy and a rule in the Title IX context check this out: https://www.studentmisconduct.com/news/what-are-the-new-title-ix-sexual-misconduct-rules-about-and-will-schools-need-to-follow-them
3. We’ve discussed the fact that the complainants are overwhelmingly women (because they are better and braver than men are when it comes to stating rape, here: https://www.studentmisconduct.com/news/what-does-a-man-under-investigation-for-sexual-misconduct-at-his-college-experienceand that the respondents are overwhelmingly men, here: https://www.studentmisconduct.com/news/jauregui-law-office-quora-answer-to-why-is-it-that-men-sue-their-school-under-title-ix-more-often-than-women
4. California simply behaves like a more sophisticated country within the U.S.: https://www.npr.org/sections/thetwo-way/2014/09/29/352482932/california-enacts-yes-means-yes-law-defining-sexual-consent. The New York experience of affirmative consent is just as powerfully concerned with protecting women from unwanted sex: https://www.governor.ny.gov/news/governor-cuomo-signs-enough-enough-legislation-combat-sexual-assault-college-and-university
5. There are a number of lobbyists and NGO’s that stand for the proposition that men, not even when, but especially when accused of student misconduct, have rights. They include my law firm, www.studentmisconduct.com, and a great deal of family-founded activists like: https://helpsaveoursons.com/
6. Many in the Harvard Law Faculty are concerned. See, e.g, https://www.thecrimson.com/article/2017/9/1/law-faculty-title-ix/. Professor Halley herself has a fantastic collection of on-line articles seeking a fair way to implement Title IX, including: Janet Halley, Trading the Megaphone for the Gavel in Title IX Enforcement, Harvard Law Review, 128 Harv. L. Rev. F. 103, February 18, 2015, available at: https://harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-title-ix-enforcement-2/
7. Penn’s policy on affirmative consent is available at: https://campushealth.wellness.upenn.edu/wp-content/uploads/2019/11/Sexual_Violence_Policy_Guidelines.pdf and states:
“Consent is an affirmative decision to engage in mutually acceptable sexual activity, and is given by clear words or actions. It is an informed decision made freely and actively by all parties. Consent may not be inferred from silence, passivity, or lack of resistance alone. Furthermore, consent to one form of sexual activity does not imply consent to other forms of sexual activity and the existence of a current or previous dating, marital, and /or sexual relationship is not sufficient to constitute consent to additional sexual activity.”
8. Drexel University’s policy on affirmative consent is available at https://drexel.edu/oed/reporting/Title-IX/FAQ/ and states:
“Consent is a freely and affirmatively communicated willingness to participate in sexual activity or behavior, expressed either by words or clear, unambiguous action. Consent consists of an outward demonstration indicating that an individual has freely chosen to engage in sexual activity, and cannot be inferred from silence, passivity, lack of resistance, or lack of active response.”
We have sued Drexel University complaining that this consent definition, at least in that situation, applied to the responding man but was not enforced to his benefit because of the school’s male-bias: https://www.thefire.org/saravanan-v-drexel-university-2017-u-s-dist-lexis-193925-e-d-pa-nov-24-2017/
9. Temple’s policy on affirmative consent is available at: https://studentconduct.temple.edu/charges and states:
“Consent in sexual activity is defined in Pennsylvania in accordance with its plain and common meaning. Consent means words or actions that show a knowing and voluntary agreement to engage in mutually agreed sexual activity. Consent must be ongoing through sexual activity and can be revoked at any time. Assent (an affirmative statement or action) shall not constitute consent if it is given by a person who is unable to make a reasonable judgment concerning the nature or harmfulness of the activity because of their intoxication, unconsciousness, youth, mental deficiency or incapacity, or if the assent is the product of threat or coercion. Consent to prior sexual activities does not constitute consent to future acts.”
10. “In making the responsibility determination, the Investigative team will use a “preponderance of the evidence” standard. In other words, to find a student responsible for violating the Sexual Misconduct Policy, the Investigative Team must be convinced that it is more likely than not that a violation of the Sexual Misconduct Policy has occurred.” University of Pennsylvania Sexual Misconduct Policy, Resource Offices and Complaint Procedures, effective July 1, 2019, available at: https://almanac.upenn.edu/uploads/media/OF_RECORD_Sexual_Misconduct_supplement-Web.pdf
11. “Section 7: Rights and Responsibilities Student Conduct has developed a fundamentally fair process to resolve cases of alleged violations of the Code of Conduct. Students and Student Organizations are afforded certain rights and responsibilities in this process. 35 I. Student and Student Organization Rights All Students and Student Organizations have the right: 1. To a presumed not responsible until information or statements meet the preponderance of the evidence standard.” Drexel University, Code of Conduct, 2019-2020, available at: https://drexel.edu/studentlife/community_standards/code-of-conduct/
12. “C. Student Conduct Board Hearings Student Conduct Board Hearings shall be conducted according to the following guidelines:…14. The Student Conduct Board’s determination shall be made on the basis of whether it is more likely than not that the Accused Student or Student Organization violated the Student Code.” Temple University, Student Code of Conduct, available at: https://secretary.temple.edu/sites/secretary/files/policies/03.70.12.pdf
13. There are many ways to explain what “preponderance of the evidence” as opposed to “clear and convincing evidence means. The first is light the second is heavy. If the school has a “preponderance” system you are far more likely to be expelled. Most schools have this standard. But in general, the concepts are not intuitive. I have seen many judges in Pennsylvania tell civil juries using the “preponderance” standard that if they think of their decision making process as weighing using the scales of justice, whichever side has a feather more worth of weight wins. That is a sharp contrast from the “clear and convincing” instruction a criminal jury would receive on how to decide if the accused alleged criminal should go to prison—that instruction can include examples like: “Rather, to find the defendant guilty beyond a reasonable doubt, you must be convinced of [his] [her] guilt to the same degree you would be convinced about a matter of importance in your own life in which you would act with confidence and without restraint or hesitation.” Pennsylvania Suggested Standard Jury Instructions
7.01 PRESUMPTION OF INNOCENCE—BURDEN OF PROOF—REASONABLE DOUBT. See also, https://www.theasca.org/files/The%20Preponderance%20of%20Evidence%20Standard.pdf
14. If there’s even one man in your school’s Title IX Coordinator’s staff he’s young, junior and most likely not the one who sets policy for your school. See, e.g., https://www.studentmisconduct.com/news/jauregui-law-office-2019-survey-of-diversity-in-philadelphia-area-college-and-university-title-ix-staff
15. We have discussed this difference in the context of the upcoming federal Title IX regulations. See, https://www.studentmisconduct.com/news/which-standard-of-proof-do-schools-use-in-title-ix-sexual-misconduct-proceedings-and-did-devos-change-that
16. Men have an awful time realizing that parts of any sexual relation may include them as victims—particularly so under active consent scenarios. See, e.g., https://www.studentmisconduct.com/news/what-does-a-man-under-investigation-for-sexual-misconduct-at-his-college-experience
17. On the other hand, that provision makes little legal sense as the MPM has absolutely no bearing on what the male respondent confesses to the police. The police are not in any way bound to obey the MPM and the MPM does not create—at least it does not specifically state—that the school Title IX staff (or anyone else) is forbidden from telling the local cops that the male respondent just confessed that he was high or underage drinking both of which are crimes he should not have engaged in to begin with.