Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dear colleagues;

This is in response to Brett's question: "Do you believe campuses will 
be required to disclose the state law on
consent, or actually use it in processing complaints?"

Campus SaVE's statutory language on this issue is interesting.  
Requiring training and education around state criminal law definitions 
of "consent" isn't necessarily a mandate that criminal law standards be 
disclosed OR used - however - the clever nature of mandatory training 
on the definition, in the context of a bill where Title IX rights are 
covertly being modified, clearly enables and allows the line between 
"unwanted" (the Title IX rule) and "without consent" (the criminal law 
rule) to be blurred.  Moreover, the very nature of incorporating 
ANYTHING from criminal law threatens to increase burdens on victims 
such that the process itself FEELS more like a criminal proceeding. 
This has been a significant problem at many schools for a long time - 
in part because criminal lawyers for offenders have had an upper hand 
in persuading schools to develop procedures as IF the school is a 
criminal court of law.  Of course, this is silly because adopting 
sexual assault policies and procedures to mimic real-world criminal 
proceedings creates a system DESIGNED to produce unjust results to the 
disproportionate disadvantage of women as a class and all victims of 
sex-based discrimination.

"Unwanted" is the only appropriate and lawful standard to APPLY, 
irrespective of whether there is "training" on other irrelevant 
standards.

In the seminar I teach on sexual violence law - a course I've been 
teaching for nearly fifteen years - we address the important difference 
between "unwanted" and "without consent," and we spend a great deal of 
time understanding why it is profoundly harmful to women's equality in 
the real world and in education to allow ANY state of mind of the 
offender to be valued in an assessment of whether sex-based harm was 
"wanted."

Simply put - there is an inverse relationship between the state of mind 
of the offender and the state of mind of the victim such that all 
weight accorded an offender's state of mind (e.g., "I was mistaken 
about her consent") necessarily diminishes respect for HER exclusive 
authority over the self, and fundamental rights (protected by 
well-established federal law) to bodily integrity and personal autonomy.

While it is appropriate to consider the very rare occasions when a 
so-called "sincere offender" is accused, there are ways to do this in 
practice such that unjust punishment is not imposed when it should not 
be imposed.

But the RULES should not be structured to protect against these rare 
circumstances.  They should be written to promote fundamental rights of 
autonomy and bodily integrity because this is the whole point of Title 
IX - and it is precisely why Title IX is promulgated under the CIVIL 
RIGHTS ACT, alongside Title IV and Title VI.

Thus, in response to Brett's question, the answer is simple.

It doesn't matter what Campus SaVE says about training around criminal 
law concepts.  Schools are mandated to APPLY and to PUBLICIZE the 
correct legal standard of "unwanted" when defining the behavior that 
constitutes a violation of Title IX such that even if the term "sexual 
assault" is used in a policy handbook - and even if "sexual assault" is 
ALSO a criminal law term in that jurisdiction, the determination of 
whether an offense occurred can NOT be subjected to criminal law 
standards.  Put another way.  Train all you want on what "nonconsent" 
means in criminal law, but you will be wasting your time and resources 
because the determination of whether an offense occurred under Title IX 
must be subjected to the Title IX standard of "unwanted."  And if the 
criminal law standard is APPLIED to actual cases because the 
fact-finders believe, wrongly, that they must apply the criminal law 
non-consent standard because that's what they learned during 
"training," there will surely be legal consequences for the school, 
including an OCR investigation.

This is yet another example of the underhanded way Campus SaVE was 
enacted so as to appear to codify the Dear Colleague Letter, when in 
fact, the law is designed to undermine the impact and value of the DCL 
with terms that enable schools to adopt unfair policies and procedures. 
(Note that Campus SaVE nowhere requires schools to apply those new 
standards to violence and harassment of students "base on race 
religion, disabilities, ethnicity, etc.", which is telling.  If the 
rules were so darned great, wouldn't all victims of Civil Rights Act 
violations on campus demand the same level of procedural "protections" 
granted to women under Campus SaVE?

Schools that apply the Campus SaVE rules ONLY to violence against women 
cases will soon face OCR and real world legal challenges to determine 
whether such disparate treatment is "equitable." Activists will start 
using Title IV instead of Title IX, and they will target public schools 
because Title IV includes "sex" in the categories of students to be 
protected form discrimination.  I have such a case pending right now 
against a public university, and hope to use it to diminish 
significantly the power of Campus SaVE to undermine the value of Title 
IX by pointing out that it is unconstitutional to subject violence 
against women in private schools to unfair standards under Title IX 
when far more generous standards apply to the same harm under Title IV.

Wendy Murphy
New England Law|Boston