News and Commentary

Campus Sexual Assault Sexual Harassment Stalking Title IX Victims

Analysis: New Title IX Regulation Will Support and Assist Complainants in Multiple Ways

SAVE May 8, 2020 Commentators have previously argued that the draft Title IX regulation would be beneficial to victims and survivors of sexual assault. For example, Professor of Political Theory Meg Mott has highlighted “the substantial powers the new rules grant to survivors.” Following publication of the final regulation, SAVE conducted a detailed analysis to

Sharing is caring!

Commentators have previously argued that the draft Title IX regulation would be beneficial to victims and survivors of sexual assault. For example, Professor of Political Theory Meg Mott has highlighted “the substantial powers the new rules grant to survivors.”

Following publication of the final regulation, SAVE conducted a detailed analysis to identify ways the final policy will benefit victims of sexual assault and other offenses. The analysis reveals the new regulation benefits victims in seven broad ways:

  1. Establishes a legally enforceable duty of universities to respond to such cases in a timely manner.
  2. Requires the school to investigate allegations of sexual assault, domestic violence, dating violence, and harassment.
  3. Requires the school to offer complainants supportive measures, such as class or dorm reassignments or no-contact orders, even if an investigation is not initiated.
  4. Defines the procedures to properly investigate and adjudicate such complaints.
  5. Promotes victim autonomy by allowing the complainant to participate in dispute resolution or withdraw a complaint, if desired.
  6. Ensures complainants are not required to disclose any confidential medical, psychological, or similar records.
  7. Discourages minor complaints that tend to dilute the availability of resources and harm the credibility of future victims.

Nashville attorney Michelle Owens provides examples of lawsuits from her own practice that fall into the category of minor and trivial complaints. Owens recounts:

  • “I have one client who was charged under Title IX for allegedly touching a girl on her head. This was not on a date or in a romantic setting.
  • “One client was charged for touching a girl on her elbow at a dance because he was trying to move her out of the way of someone else.
  • “Another of my clients was charged for giving an honest compliment to a friend on her outfit.
  • “One student was charged for tickling his female friend on her stomach, something they had done to each other previously.
  • “One student was charged for putting his arm around his girlfriend — nothing more.

“I also have cases where the girlfriend files a charge after the couple gets in a fight or breaks up. But when they get back together, the charge still stands. In such cases, you have a couple who had sexual relations 32 times, but number 28 was rape, according to the charge. All the times before and after that were consensual.”

Specific Beneficial Provisions

The new Title IX regulation contains dozens of provisions that are designed to support the rights sexual assault victims. A summary of these 28 provisions is listed in the order that they appear in the regulation:

  1. §106.8(c) Adoption of grievance procedures:
  • Complainants will be notified of the grievance process, including how to file a complaint and how the institution is expected to respond.
  1. §106.30 Definitions:
  • Complainants are assured of protection against “quid pro quo” sexual harassment by faculty and staff.
  • Complainants are assured that unwelcome conduct that is severe, pervasive, and objectively offensive will not be tolerated at their institution.
  • Complainants can include allegations sexual assault, dating violence, domestic violence, and stalking in a formal complaint.
  1. School response:
  • §106.44(a) General response to sexual harassment:
    • Complainants are assured their institution must respond promptly to a formal complaint in a manner that is not deliberately indifferent.
    • Complainants must be offered supportive measures (with or without filing a formal complaint) and be explained the process for filing a formal complaint.
  • 106.44(b) Response to a formal complaint:
    • Complainants are assured that once a formal complaint is filed, a grievance process that complies with the regulation must be followed.
  • §106.44(c)(d) Emergency removal:
    • Complainants are assured that respondents who are deemed an immediate threat to safety will be removed from campus.
  1. §106.45(b)(1) Basic requirements for grievance process:
    • Complainants are assured that all remedies and supportive measures are designed to restore or preserve their access to the institution’s educational program or activity
    • Complainants are assured they have the right to see all evidence, and that all relevant evidence will be evaluated.
    • Complainants are assured of no conflict of interest or bias among the persons involved with evaluating, investigating or decision-making of the formal complaint, or facilitating an informal resolution, and that all parties involved will be properly trained on the processes and all technology involved.
    • Complainants are assured of a reasonably prompt timeframe of the grievance process or informal resolution, which still allows for delays for good cause.
  1. §106.45(b)(5) Investigations of a formal complaint:
    • Complainants are not responsible for proving an alleged perpetrator’s responsibility.
    • Complainant’s medical and therapy records cannot be used for the grievance process without written consent.
    • Complainants are allowed to present fact and expert witnesses and inculpatory evidence.
    • Complainants are allowed to discuss the allegation with others – no “gag” rules.
    • Complainants may have an advisor of their choice (who may be an attorney), and the advisor may participate in the proceedings.
  1. §106.45(b)(6) Hearings:
  • Complainants must be allowed to cross-examine the alleged perpetrator, and may challenge the alleged perpetrator’s credibility at a live hearing.
  • Complainants must be provided an advisor free of charge to conduct cross-examination on their behalf
    • Complainants’ sexual predisposition or prior sexual behavior is considered to be not relevant to the allegation, except under specific circumstances.
    • Complainants do not need to be in the same room as the alleged perpetrator, and the live hearing may be conducted virtually.
  1. §106.45(b)(7) Determination of responsibility:
    • Complainants are assured the decision-maker will be neutral.
    • Complainants must receive written documentation of the steps taken in the adjudication process, in the event they choose to file an OCR complaint or lawsuit.
  1. §106.45(b)(8) Appeals:
    • Complainants have the right to appeal determinations regarding responsibility or any dismissal of their complaint.
    • Complainants are assured the appeal decision-maker has not been previously involved in the case.
  1. §106.45(b)(9) Informal resolution:
    • Complainants can seek an informal resolution once a formal complaint has been filed, and can withdraw from the informal resolution process and resume the formal complaint grievance process at any time
  • §106.45(b)(10) Recordkeeping:
    • Complainants have access to all training materials used to train persons involved in the proceedings of a formal complaint.
  • 106.71 Retaliation
    • Complainants are protected from retaliation arising from their complaint.