Title IX Administrator Group Wants to Abolish Presumption of Innocence


February 14, 2016

Title IX is the law that bans sex discrimination in schools. The Department of Education Office for Civil Rights requires all colleges to have a Title IX coordinator to establish policies and investigate complaints. Well and good.

But in recent years, the Office for Civil Rights has published a series of controversial Dear Colleague Letters that have expanded the definition of sexual harassment to include bawdy speech, unwanted flirting, off-color jokes, and the like. Expanded definitions translate in more complaints and eventually larger budgets for Title IX offices.

This has given rise to a shadow campus-based adjudication system that lacks transparency, accountability, or due process protections for the accused. This raises the specter of a Kangaroo Court, which the dictionary defines as a “mock court in which the principles of law and justice are disregarded or perverted.”

Most of these campus cases revolve around the question whether the sex was consensual. For most persons, consent between intimate partners is implied. The man senses when she’s in the mood, and the woman knows how to ply her feminine wiles. If one of them isn’t up for the romp, he or she says, “Not tonight, honey.” This approach has worked amazingly well since time immemorial.

But the Association of Title IX Administrators, boasting a membership of over 4,000 campus sexual harassment nannies, has a different view. Just in time for Valentine’s Day, ATIXA issued a Position Statement on how to give consent to sex: https://atixa.org/wordpress/wp-content/uploads/2015/03/2016-February-Consent-ATIXA-Position-Statement.pdf

Unfortunately, the document is replete with loopy logic and factual misstatements.  The ATIXA statement claims, for example, that “consent is affirmative by definition.” But according to Black’s Law Dictionary, consent is: “A concurrence of wills. Express consent is that directly given, either lira voce [orally] or in writing. Implied consent is that manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption that the consent has been given.”

So ATIXA’s “affirmative by definition” claim is flat-out wrong.

ATIXA insists that permission be given for each and every specific step: kiss, fondle, unbutton, remove, etc., which turns out to be an unworkable approach. It’s also unconstitutional.

Last August a Tennessee judge ruled on this affirmative consent standard. Judge Carol McCoy found that the consent policy used by the University of Tennessee-Chattanooga was unfair because the rule “erroneously shifted the burden of proof” to the defendant, thus removing the presumption of innocence.

Here’s ATIXA’s official response to the judge’s carefully worded, 24-page opinion: “Nonsense.”

ATIXA then tosses a logical boomerang. It first says an affirmative consent policy “is not the same thing as the obligation to prove you obtained consent.” But two sentences later the Statement contradicts itself by insisting, “Colleges can’t assume that consent wasn’t given unless the responding party can prove that it was.”

The ATIXA statement was not written by a person who knows how to present a coherent legal argument, or who respects the presumption of innocence as a central pillar of the American legal system.

To top it off, the statement is graced with this Alice-in-Wonderland title: “Consent-Based Policy is Equitable and Required by Title IX.” No, stripping the defendant of the presumption of innocence is not equitable. And no, Title IX doesn’t require colleges to implement anything as confusing and unconstitutional as affirmative consent.