Indiana Law Journal Volume 91 Issue 4 Article 7 Summer 2016 Title IX, Sexual Assault, and the Issue of Effective Consent: Blurred Lines—When Should “Yes” Mean “No”? Lori E. Shaw University of Dayton School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Higher Education Administration Commons, and the Law and Gender Commons Recommended Citation Shaw, Lori E. (2016) "Title IX, Sexual Assault, and the Issue of Effective Consent: Blurred Lines—When Should “Yes” Mean “No”?," Indiana Law Journal: Vol. 91 : Iss. 4 , Article 7. Available at: https://www.repository.law.indiana.edu/ilj/vol91/iss4/7 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Title IX, Sexual Assault, and the Issue of Effective Consent: Blurred Lines—When Should “Yes” Mean “No”? LORI E. SHAW* INTRODUCTION.................................................................................................... 1363 I. BLURRED LINES: COLLEGE LIFE IN 2015 ......................................................... 1371 A. MAE AND SAM SCENARIO ..................................................................... 1372 B. THE HOOKUP CULTURE ......................................................................... 1378 C. THE BINGE DRINKING ERA.................................................................... 1383 D. BINGE DRINKING, HOOKUPS & UNWANTED SEX: IT’S COMPLICATED .. 1388 II. TITLE IX AND THE STUDENT-CONDUCT SYSTEM ............................................ 1395 A. STUDENT-CONDUCT SYSTEMS—A BRIEF PRIMER ................................ 1395 B. THE REQUIREMENTS IMPOSED BY TITLE IX .......................................... 1400 III. “EFFECTIVE CONSENT” AND THE LAW .......................................................... 1406 A. RAPE AND CONSENT UNDER THE CRIMINAL LAW ................................. 1408 B. CONSENT AND INTOXICATION UNDER THE LAW ................................... 1414 C. PROPOSED STANDARD ........................................................................... 1421 CONCLUSION ....................................................................................................... 1423 INTRODUCTION Open any newspaper or visit any news website and you will be assailed with media reports proclaiming sexual assault on college campuses an “epidemic.”1 On an almost daily basis, the media cautions that studies show that “one in four to one in five women will be sexually assaulted while in college.”2 The United States Department of Education’s (DOE’s) Office for Civil Rights (OCR) has led the federal government’s efforts to reduce the number of sexual assaults on college campuses. It is responsible for enforcing Title IX of the Education Amendments of 19723 (Title IX), legislation prohibiting discrimination based on sex * Lori E. Shaw is a Professor of Lawyering Skills at the University of Dayton School of Law and formerly served as the University’s Title IX Coordinator. I would like to thank Deanna Arivett for her exceptional research assistance. I would also like to thank the following colleagues and friends for their invaluable advice and their constant encouragement: Tan Boston, Susan Elliott, Harry Gerla, Walter Rice, Richard Robol, Staci Rucker, David Sipusic, Victoria VanZandt, and Susan Wawrose. 1. E.g., Shannon Liao, New York and California Fight Sexual Assault Epidemic with Affirmative Consent, EPOCH TIMES (Oct. 7, 2014, 9:44 AM), http://www.theepochtimes.com /n3/1001269-new-york-and-california-fight-sexual-assault-epidemic-with-affirmative-consent /?sidebar=related-below [https://perma.cc/M4TQ-2FEL]; Nedra Pickler, Obama Targets College Sexual Assault Epidemic, AP THE BIG STORY (Jan. 22, 2014, 8:57 PM), http://bigstory.ap.org/article/obama-targets-college-sexual-assault-epidemic [https://perma.cc /96AZ-R7RZ]. 2. Kathleen Megan, Reports of Sex Assault on College Campuses Climb as More Victims Come Forward, HARTFORD COURANT (Oct. 25, 2014, 5:54 PM), http://www.courant.com /education/hc-clery-campus-sexual-assault-1016-20141025-story.html#page=1 [https://perma.cc /8VME-NX8W]. 3. Pursuant to 20 U.S.C. § 1681(a) (2000), “No person in the United States shall, on the 1364 INDIANA LAW JOURNAL [Vol. 91:1363 in federally-funded education programs. Sexual assault (i.e., sexual violence) is one form of prohibited sex-based discrimination.4 The DOE has mandated that all federally-funded, postsecondary institutions “take immediate action to eliminate . [sexual] harassment, [including sexual assault,] prevent its recurrence, and address its effects.”5 The DOE is not the only governmental entity actively addressing the issue of campus sexual assault. In 2014, the President established the White House Task Force to Protect Students from Sexual Assault.6 State governments are also becoming involved. California, for example, has enacted legislation requiring postsecondary institutions within the state to adopt sexual assault polices containing an affirmative-consent standard.7 But is this “epidemic” what lawmakers and the media purport it to be? Do we really understand the nature of the challenge before us? And are we taking the necessary steps to create an effective response? From January 2012 to June 2014, I enjoyed the unique opportunity to observe the fight against campus sexual assault from the ground level as my university’s Title IX Coordinator.8 I worked with and learned from members of my own campus community as well as with peers from around the country. Based on my experiences, the answer to each of the questions posed above is an unequivocal “no.” Serious misunderstandings abound as to the nature of the epidemic, and, in our attempts to combat it, we as a society are making significant missteps that are harming the students we seek to protect. basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . .” 4. See U.S. DEP’T OF EDUC., LETTER FROM RUSSLYNN ALI, ASSISTANT SEC’Y FOR CIVIL RIGHTS, at 1 (Apr. 4, 2011), available at http://www2.ed.gov/about/offices/list/ocr/letters /colleague-201104.pdf [https://perma.cc/3XVM-84FG ] [hereinafter “DCL”]. 5. Id. at 4. 6. Memorandum of January 22, 2014—Establishing a White House Task Force To Protect Students from Sexual Assault, 79 Fed. Reg. 4383 (Jan. 27, 2014). 7. See, e.g., CAL. EDUC. CODE § 67386 (West 2016). 8. Title IX requires that every postsecondary institution receiving federal funds “shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to such recipient alleging its noncompliance with this part or alleging any actions which would be prohibited by this part. The recipient shall notify all its students and employees of the name, office address and telephone number of the employee or employees appointed pursuant to this paragraph.” 34 C.F.R. § 106.8 (2014). This employee is commonly referred to as the institution’s “Title IX coordinator.” The DCL, supra note 4, at 7, outlines the responsibilities of the Title IX coordinator in some detail: The coordinator’s responsibilities include overseeing all Title IX complaints and identifying and addressing any patterns or systemic problems that arise during the review of such complaints. The Title IX coordinator or designee should be available to meet with students as needed. Recipients must ensure that employees designated to serve as Title IX coordinators have adequate training on what constitutes sexual harassment, including sexual violence, and that they understand how the recipient’s grievance procedures operate. 2016] TITLE IX, SEXUAL ASSAULT, AND EFFECTIVE CONSENT 1365 I was inspired to write this Article by the profound emotional distress that I witnessed among women and men, complainants, respondents, witnesses, and others, including those students who never make it to the Title IX Office. There has never been a generation facing more confusion about sexual choices and boundaries. Our failure to fully educate ourselves about the prevalent sexual culture on college campuses, develop clear boundaries and standards, and educate students about those boundaries and standards has only served to create more pain and confusion. As I engaged in my work as a Title IX coordinator, I came to the realization that critical mistakes are being made because experts in government, law, science, and education are conducting their work in silos. The only way to successfully address campus sexual assault is for these groups to collaborate in rule making. This Article focuses upon one area in which such collaboration is sorely needed—the creation of standards for sexual assault generally and the standard for consent specifically9—but it is my sincere hope that it will spur change in a multitude of areas. The significance of our failure to collaborate was brought home to me by three alarming discoveries: (1) DOE employees were relying upon the false assumption that student transcripts include notations of disciplinary actions taken against the student—the reality is that many schools do not note discipline on transcripts, and many students found responsible for sexual assault are able to transfer