Title IX is a civil federal law that prohibits discrimination based on gender in educational programs that receive federal funding. All public universities and colleges, as well as many private institutions, must protect their students from discrimination based on gender under this federal civil rights law.
Sexual assault, sexual violence, and sexual harassment cases can fall under Title IX. However, it is essential to note that Title IX is a civil — not criminal — law. As a result, different rules of procedure, as well as different burdens of proof apply to cases brought under Title IX than for cases brought before the courts under criminal law.
Many campuses have included “affirmative consent” rules that require an individual accused of sexual assault to prove that they obtained affirmative consent from their partner before a sexual encounter, as well as throughout the encounter to ensure that their partner has given affirmative consent to all — and not just one — sexual acts during their encounter. This means that if a student brings forth a complaint of sexual assault under the school’s Title IX protections, the accused will have to prove that they obtained affirmative consent at all necessary stages of their sexual encounter. It is important to remember that Title IX investigations are governed by civil law, and are not criminal proceedings.
However, a proposal was made to adopt the Title IX standard of “affirmative consent” into the criminal code for sex offenses. “In a civil case, like under Title IX, it is perfectly acceptable for the burden of proof to shift during a trial from the person who makes a complaint to the defendant,” explained criminal defense attorney Jo-Anna Nieves of The Nieves Law Firm, APC, “but in a criminal trial, the burden of proof must always be on the prosecution and never on a criminal defendant, because a criminal defendant is presumed innocent.”
The American Bar Association (ABA) held a meeting in August at which the ABA’s House of Delegates voted against a resolution that recommended that affirmative consent be added to the criminal code for sex offenses.