A Title IX investigation is conducted by an investigator through the Office of Institutional Opportunity and Access. A Title IX investigation needs to be adequate, reliable, and impartial. Both the complainant and respondent are guaranteed due process rights. At the end of the investigation, the Title IX investigator will prepare a report based upon their full investigation. This report will be made available to the hearing panel or hearing officer in making their decision. As stated earlier, this investigation may or may not have been conducted in conjunction with local law enforcement depending on whether the complainant chose to report the incident to local law enforcement.
The University will strive to complete discrimination complaint investigations, including issuance of a report of findings to the complainant and respondent, in as timely and efficient a manner as possible within sixty (60) days of receipt of a complaint. However, this timeframe may be extended based on factors such as, but not limited to, schedule and availability of witnesses, holidays or semester breaks including summer break, and complexity of the complaint. If an investigation cannot be completed within sixty (60) days of receipt of the complaint, then the investigator(s) will notify the complainant and respondent of that fact and provide a timeframe for completing the investigation.
You can find more information regarding the Discrimination Complaint Resolution Process and Title IX investigations here.
Consent has not always had a place in the definitions of sexual harassment and sexual violence. Previous laws surrounding sexual violence required the use of force and placed the burden on harmed parties to show the use of force or a demonstration of resistance. By removing the requirement of force and including the requirement of consent in the definition of sexual violence, two important changes occurred: (1) an individual maintains personal sovereignty over one’s body and determines how one wants to be acted upon, and (2) the responsibility is on the initiator of the sexual act to demonstrate that consent was given and that the sexual act was agreed upon.
At KU, there are several factors related to consent that are covered:
“…means words or actions that show an active, knowing and voluntary agreement to engage in mutually agreed-upon sexual activity. It is the responsibility of the initiator, or the person who wants to engage in the specific sexual activity to make sure that he or she has consent. Consent cannot be gained by force, by ignoring or acting without regard to the objections of another, or by taking advantage of the Incapacitation of another, where the accused knows or reasonably should have known of such Incapacitation... A person always has the right to revoke Consent at any time during a sexual act. Failure to say “no” does not imply consent.” (Underlined for emphasis)
Broken down separately, the accused student (initiator of the sexual activity) must demonstrate the four (4) basic elements for consent:
- Knowing (e.g. informed);
- Actively and voluntarily given;
- Acquired through words or actions;
- An agreement to engage in a specific sexual activity (at a specific time and in a specific way).
The construct of consent in these terms is inconsistent with two common ideas: (1) that “no means no” and (2) sexual activity is like rounding the bases.
An individual’s verbal ‘no’ does indicate that s/he does not have a desire to engage in a specific sexual activity. However, there is also the idea that the harmed party or foci of the sexual advance is obligated to say no, and by not saying no, it implies consent. As stated in the definition, the failure to say no does not imply consent, and the burden of acquiring consent is on the initiator of the act. For these reasons, consent is better thought of as “yes means yes;” the burden is on the initiator to acquire an affirmative response. This leads into issue two, which is that sexual activity is like rounding the bases; from kissing to fondling to petting to sexual intercourse. Consent is a time specific, activity specific construct. An individual’s consent to kissing and/or fondling does not imply consent for sexual intercourse.
You can find more information regarding what consent is here.
Incapacitation involves the inability of an individual to make rational or reasonable judgments due to mental (i.e. age, intelligence) or physical (i.e. alcohol or drugs) conditions. For a consensual sexual act to occur between two students, “informed consent” must be given. Students who are deemed to be incapacitated are unable to provide informed consent. More commonly, even if an incapacitated student gives his/her consent, that consent is negated or nullified by the incapacitation. As defined by the KU Sexual Harassment Policy, incapacitation includes:
“…means the physical and/or mental inability to make informed, rational judgments. Where alcohol and/or drugs are involved, incapacitation is defined with respect to how the alcohol or drugs consumed impact a person’s decision-making capacity, awareness of consequences, and ability to make fully informed judgments.”
Using incapacitation in the definition of sexual harassment requires that, as hearing board members, you also understand when a person would be deemed capable (or incapable) of giving consent. The most common sense approach is to ask whether a student understands the Who, What, Where, When, Why, and How involved in the sexual act. Consider what you might hear between students walking through the Union:
“I wasn’t doing anything last weekend so I texted Johnny to come over on Friday night after my roommate had left to go out…Yeah, we had hung out before and I thought he was kind of cute…He didn’t get back until about 2 a.m. so I was getting tired of waiting. We still hooked up but then he left. I had to work the next morning……Oh, I totally made him wear protection…”
If you were to evaluate this conversation, is student is able to articulate all 6 factors that would go into informed consent? If the student were unable to answer one of those six conditions, incapacity may be an issue.
1. Incapacitation due to alcohol or drugs
The most common form of incapacitation in sexual misconduct cases on college campuses is alcohol. It is important to note that the mere presence of alcohol consumption does not mean a student was incapacitated. Alcohol consumption can occur at different levels and it is important to define and distinguish between some of these common terms (the 4 I’s); namely, being under the influence, impairment, intoxication, and incapacitated.
- Being under the influence of alcohol occurs as soon as an individual takes a drink.
- Impairment from alcohol occurs as soon as alcohol enters the bloodstream. Impairment can have varying degrees based on how much someone drinks.
- Intoxication is most often associated with the legal standard of .08 blood alcohol concentration.
- Incapacitation is a state beyond intoxication that has nothing to do with any set blood alcohol concentration, but rather the individual’s decision-making.
A way to distinguish incapacitation and intoxication is the example where a student who has 2-3 drinks is greatly affected by the use of alcohol, but does not reach the legal level of intoxication. Signs that a person may be incapacitated include:
- Inability to walk (unstable equilibrium)
- Blacking-out (loss of conscious awareness)
- Unusual behavior
After determining if the harmed party was incapacitated, you must determine whether the accused student knew or should have known the harmed party was incapacitated. This question can be made rather objectively by asking, “what would a reasonable person, in the position of the accused student, have known?” Remember that the reasonable person standard does not consider the role of alcohol (e.g. the question is not “what would a reasonable person, under the influence of alcohol, have known?”).
Based on our personal sexual politics or biases, there are three common issues that may cloud our evaluation of incapacitation:
- that the harmed party became incapacitated through his/her own volition,
- that the harmed party still wanted to engage in the sexual act, and
- the initiator or accused student was also consuming alcohol.
First, it makes no difference whether the student willingly consumed alcohol to a level of incapacitation, or whether s/he was drugged. The question is not how the student became incapacitated (for purposes of consent and whether sexual misconduct occurred), but if s/he is incapacitated.
Second, if the harmed party wanted to engage in the sexual act and may have verbally consented, incapacitation nullifies consent.
Third, if the accused student alleges s/he was also consuming alcohol that does not excuse the behavior. The consumption of alcohol does not excuse vandalism, theft, or other conduct, and allowing that as a defense would create an inconsistency within the adjudication of the Code.
2. Other forms of incapacitation
Other forms of incapacitation include but are not limited to:
- Mentally incapable – a mental disease or defect makes the victim incapable of understanding the nature of his/her conduct.
- Mentally incapacitated – victim is temporarily incapable of appraising or controlling his/her conduct due to the influence of a narcotic, anesthetic or other substance administered without consent or due to any other act committed upon the victim without consent.
- Physically helpless – victim is unconscious, asleep, or for any other reason physically unable to communicate unwillingness to act.
The role of force in sexual harassment/violence cases is used to demonstrate that the sexual encounter was non-consensual, or against the will of the harmed party. In other words, consent was not “active, knowing and voluntar[ily]” given by the harmed party.” The interplay of force and consent is defined within the University definition of Consent:
Sexual violence means any physical act which is sexual in nature that is committed by force or without the full and informed consent of all persons involved…
“Consent means words or actions that show an active, knowing and voluntary agreement to engage in mutually agreed-upon sexual activity. It is the responsibility of the initiator, or the person who wants to engage in the specific sexual activity, to make sure that he or she has consent. Consent cannot be gained by force, by ignoring or acting without regard to the objections of another, or by taking advantage of the Incapacitation of another, where the accused knows or reasonably should have known of such Incapacitation. (Underlined for emphasis)
The use of force in sexual violence cases can be shown in two ways: (1) by information demonstrating the application of force by the accused student or (2) that the sexual act was resisted or against the will of the harmed party. Under KU’s definition, force is defined as “physical force, threat, intimidation or coercion.”
1. Coercion (pressure)
Coercion, as it relates to sexual harassment and sexual violence, is defined as the application of unreasonable pressure for sexual access. As you might imagine, the idea of ‘unreasonable pressure’ is not a clearly defined construct, and the idea of pressure in social interactions is also accepted in many circumstances. This is also likely to be the most common form of force in a sexual misconduct hearing.
Consider the following: What is seduction? How is seduction different from coercion?
Seduction is socially considered an acceptable amount of persuasion to entice another individual to engage in sexual activity, where coercion is considered an unreasonable amount of pressure. Coercion is a matter of degree, and as such, what begins as seduction could become coercive in certain circumstances. Consider these factors:
- Desire to be persuaded: Seduction typically involves the object of the persuasion wanting to be convinced; coercion typically involves convincing someone who has no desire to be persuaded.
- Intensity of persuasion: Is this a general pick-up line that someone might use on anyone, or are the words directed at, or attacking, the other individual?
- Frequency of persuasion: How many times was sex, or a sexual act, asked for in a given amount of time? Is 5 times in 15 minutes different from twice in 15 minutes?
- Duration of persuasion: What is the difference between pressuring someone for 5 minutes versus 25 minutes?
- Isolation of individuals: Is the pressure applied at a club or bar different from a residence hall room where the two parties are alone?
Threats involves a declaration from one individual (accused student) that s/he will inflict some sort of harm or negative consequence to another individual (harmed party) that causes him or her to acquiesce in performing some sexual act. In essence, there is a cause and effect between the threat and the performing of the sexual act that absent the threat is an act the harmed party would not have engaged in.
A concept to consider is the realistic nature of the threat; namely, does the individual making the declaration have a means to inflict the harm or negative consequence. Threats are another common form of force utilized on a university campus where there is a confined social milieu; the more confined the environment the greater effect threats can have (e.g. athletics, fraternity and sorority life, scholarship halls, same home town, etc). Consider these examples:
If you do not have sex with me, I will spread a rumor about your sexuality
If you do not have sex with me, I will tell everyone you have a drug problem
If you do not have sex with me, I will get you blacklisted from sorority rush.
If you do not have sex with me, I will start a blog about…
If you do not have sex with me, I will put our past sex tape on the internet
Intimidation and threat are often seen as synonymous with one another. As both are included in KU’s definition, intimidation is differentiated from threats in that it does not have the requirement of a negative consequence. For example, “if you have sex with me, I will make sure you get into ADPi sorority”). There is no negative consequence as seen in a direct threat, but the implication is by not having sex, there is some benefit (i.e. getting into the sorority) that could be threatened. In this sense, intimidation involves a power differential where someone can imply a threat to a benefit.
4. Physical Force
For purposes of KU’s definition of sexual harassment (including sexual violence), physical force involves the use of a weapon or physical violence. Common examples including but are not limited to knives, guns, duct tape, rope, and handcuffs. Physical force may evidence itself through marks on the harmed party’s body; including, cuts, scrapes, contusions, and bleeding.
Analytical framework for assessing sexual misconduct:
If there is no dispute as to whether physical conduct occurred, the following general framework is used in determining whether the physical conduct was a violation of University policy:
- Is the complainant a minor (under 16 years of age in the state of Kansas)?
- Yes – more likely than not the respondent is responsible
- No - Continue
- Is there information that suggests the use of force (i.e. coercion, threat, intimidation, or force)?
- Yes- more likely than not the respondent is responsible
- No - Continue
- If there information that the complainant was incapacitated and the respondent knew, or should have known?
- Yes – more likely than not the respondent is responsible
- No – continue
- Were their words (or actions) by the complainant that would reasonably indicate consent to the respondent for the specific sexual act that took place at that specific time?
- If Yes – more likely than not the respondent is not responsible
- If No – more likely than not the respondent is responsible