Thread by @alittleleader

Inspired by some conversations I've seen going around, I want to compile in this thread several sexual assault/harassment scenarios that seem to be acceptable under the new Title IX rule:

A few general disclaimers––

I am not an attorney, but I Know Things about some laws, and Title IX is the law I probably know the most things about.

A lot of this is speculation because the new rule hasn't been implemented. But based on a plain read of the text, these are reasonable takeaways.

Importantly, I am going to describe actual hypothetical scenarios because I think it's important to understand the real-world impacts of this rule on the ground. But they may be upsetting to read. I'll aim to mark each scenario with [cw] in front.

Finally, not a disclaimer, but an interesting point to keep in mind: none of the scenarios I'm going to talk about have anything to do with changes to the procedure aimed at increasing due process for accused students.

They are a result of measures in the rule aimed at limiting educational institutions' and school districts' liability and duty to respond.

[cw]
A football coach learns through the grapevine that one of his players has assaulted multiple women. He thinks it's probably true, but he chooses not to say anything because the player is the star running back and the team is making a championship run.

This is probably okay–– most university personnel no longer have a duty to report this information. (Don't forget that this is essentially what Art Briles did–– and what we were all very correctly horrified by–– only a few years ago!)

sbnation.com/college-footba…

[cw] Two students who are in a relationship live in a private apartment complex on the edge of campus. Student A has been violent towards Student B on multiple occasions. After one violent night, Student B shows up to the dean's office and indicates concern for their safety.

[cw] The dean genuinely wants to help but tells Student B that what she can do is very limited because all of the abusive events have taken place in their apartment, which is off campus.

The dean is likely correct. She may be able to put in limited measures to help Student B, but any measures that impact Student A require finding them responsible. She can't investigate the incidents of abuse though, b/c they took place outside the educational program.

[cw] Students A and B are part of a university sponsored study-abroad program in Spain. One night, the two are up late chatting in B's room when B asks A to have sex. A says no. B rapes A. The next day, A pays to make an international call to a university dean to ask for help.

[cw] The dean explains that because they are abroad, there is nothing he can do to address the situation. A is frustrated but understands. The trip only has a week remaining anyway; A assumes that after the students return from holiday break, her dean will do something.

[cw] A returns to campus after break and hears nothing from the dean. After realizing they share several classes with B, A reaches out to the dean to ask about the status of their complaint. A wants to know when the investigation will start. The dean is surprised and confused.

[cw] The dean tells A, "We won't be investigating that. It happened abroad. I already told you there isn't anything we can do."

As in the situation above, the dean is likely correct. He can't investigate the assault because it took place abroad. It doesn't even seem to matter that it happened within the educational program! This will significantly limit the accommodations A can access.

[cw] A works the late shift at a campus coffee shop. B, a student A recognizes but doesn't know well, comes in after midnight. No one else is in the coffee shop. B approaches the counter and begins describing a sexual fantasy about A.

[cw] B unbuckles their own pants and exposes their genitals to A. B touches their own genitals. Once B finally leaves, A calls a friend and explains what just happened. The friend encourages A to report it to the dean the next day.

[cw] When A explains what happened, the dean asks, "Has B done this to you before?" A truthfully answers, "No." The dean stops taking notes and says to A, "Oh, I'm not sure I can really do anything about this then. It was just a one time thing."

The dean is likely correct, though explaining why is complicated. Under the rule, if sexual harassment does not include some form of physical contact, it must be severe, pervasive, AND objectively offensive in order to require action from the school.

Pervasiveness has generally been interpreted to mean that there must be more than one event or a course of conduct that takes place over a period of time. So while this incident is severe and offensive, it is likely not pervasive enough to require a response.

Remember this was pretty much exactly the thing we were all rightfully horrified by Louis C.K. doing. And yet!

nytimes.com/2017/11/09/art…

[cw] Student A is the pledge master of a fraternity. Student B is a pledge. They are both straight men. At an initiation event, Student B taps out of a drinking challenge early. In order to make an example of Student B, Student A calls him in front of the pledges.

[cw] Student A unbuckles student B's pants, reaches into his boxers, and grabs his genitals. Student A says to the group of pledges, "Let this be a reminder to the rest of you, we have you by the balls. We own you."

[cw] For months after, Student B is upset by that night. When he is able to see a campus counselor and talk about it, he is very surprised to realize that what happened to him is sexual assault. He decides to report it to make sure it doesn't happen to another pledge.

[cw] When Student B goes to his dean and says that he wants to report a sexual assault, the dean is skeptical. After he describes what happened, the dean tells student B, "That's not sexual assault. He wasn't trying to sleep with you. That's just boys horsing around."

Very horrifyingly the dean is right that this isn't sexual assault under the rule's language. The rule adopts the FBI definition of a non-penetrative sexual assault, which requires that the assault be "for the purposes of sexual gratification."

Because the perpetrator in this case (and in SO MANY cases of sexual violence, I would add!) was not acting for purposes of sexual gratification, the event would not meet the criteria for sexual assault.

And if you've been paying attention, you know that under the rule, it might not be sexual harassment, either. Because it was a one time event, it may not be pervasive enough to meet the "severe, pervasive, and offensive," standard.

This is a set of concerning scenarios that immediately come to mind. I could riff on variations of these infinitely, but I think these do a decent job illustrating the major deficiencies in the rule. (That's not to say I won't come back and add more later.)