An ATIXA Tip of the Week by Brett A. Sokolow, J.D.
The 2020 Title IX Regulations raise the issue of predatory grooming, but only to state that it may be covered by the definition of Sexual Harassment in § 106.30 of the regulations. Thus, to the Department of Education’s Office for Civil Rights (OCR) grooming doesn’t exist as a prohibited behavior outside of conduct that overlaps with Sexual Harassment. It’s not a stand-alone offense. It doesn’t get more than a paragraph of mention in over 3000 pages of regulatory text and preamble. If grooming is such a pernicious problem, why isn’t the behavior more explicitly covered by Title IX and addressed by its regulations? Below, I unpack why OCR recognizes that there is no need for an explicit grooming offense within policy.
Put simply, grooming isn’t the problem. The result of grooming—sexual assault or sexual harassment—is the problem. Grooming refers to a set of behaviors that are generally not alarming in isolation or without context. The behaviors are routine, commonplace, and sometimes almost unworthy of note, such as having lunch with someone. They are also almost always legal and rarely violate any policy. In ATIXA trainings, we often talk about the need to identify and interdict a predator, but we generally don’t have a predator offense. Once a groomer crosses a line, they’re a harasser, an abuser, or a rapist, and we address their conduct as such. I am not suggesting that if grooming conduct is present, it should be ignored. Concerns should be documented and addressed. I am just stating the reality that until grooming crosses the harassment line, it’s not actionable as misconduct and is not subject to discipline in and of itself.
Let’s talk about what grooming actually is, and to whom the term applies. Sexual grooming is the action or behavior used to establish an emotional connection or trust with a vulnerable person—generally a minor under the age of consent and sometimes the victim’s family—to lower their inhibitions and facilitate their susceptibility to abuse. Like many social phenomena, imprecision in terminology is fairly common. Thus, some people use the term grooming to apply to adult victims, but unless such adults are in a special population of vulnerability somehow (e.g., disability, previous victimization), grooming isn’t an accurate label. It would be very difficult, for example, to distinguish whether an adult is being subjected to seduction or grooming based on a description of the behaviors. Buying someone a meal or a gift could signify friendship, romance, seduction, or grooming. At its most simplistic, we can correlate grooming with vulnerability. If the alleged victim is not a minor or member of another vulnerable population, then the conduct is not grooming.
Mature adults can be seduced and simultaneously possess the agency to avoid seduction if they so choose. They generally don’t need to be protected from grooming. They need to be protected from predators, as we all do, but if an adult welcomes the conduct, their autonomy needs to be respected. This is true even where there are power imbalances, as very few interactions are truly power neutral. Adults (and minors) are protected from quid pro quo harassment. Thus, if someone leverages power, authority, or position for sexual advantage by making sexual behavior an express or implied condition, that conduct is prohibited by institutional policy and federal law. However, an adult in a position of authority who asks for a sexual favor or tries to seduce a student, a co-worker, or even a subordinate, is not in violation of the law when no condition is made or implied. The conduct may violate policies on ethical relationships, but it is neither sexual harassment nor grooming.
In K-12 settings, grooming behaviors have unique implications. Some schools and districts prohibit employees from buying gifts for students. Some prohibit employees from texting students or communicating with them on social media. Perhaps gift-giving is grooming, and social media communication is grooming. But most times, they are not. How do we, as Title IX practitioners, make the distinction? The answer is that we must address only the conduct that violates policy. If a gift is given and giving it is prohibited by policy, then charge the employee for giving an unauthorized gift and hold them accountable. If you find an employee texting a student or communicating with them on social media, charge them with violating your social media or texting policies. You don’t need a grooming charge to address this misconduct, and a grooming charge in these situations would likely require you to assess a respondent’s intent, which is often a challenge. There is no “good” gifting or texting versus “bad” gifting or texting. It’s all prohibited if a policy says so, no matter why an employee does it. We can ask ourselves, what added value would a grooming behavior violation have as its own, stand-alone offense? Grooming is a means to an end. The end is a policy violation, usually a sex offense.
If a K-12 teacher crosses the line and has sex with a minor, doing so is an offense whether there was grooming or not. Abusing someone is the basis for the offense—not how an offender was able to make them susceptible to the abuse. Whether they are abused by a breach of trust or a random attack, the result is the same: prosecution and policy violation. If an employee crosses the line and conditions a request for sexual favors, that’s an offense, whether there was grooming or not.
We have a case right now where the mom of a high school-age minor student allowed the student to move in with her male teacher. The teacher fed the student, clothed her, and provided her with a stable home that the mom could not. He tutored her, and her grades improved. Her truancy was mitigated. The mom allowed him to give her daughter gifts. The mom permitted the student to be driven by the teacher. The mom knew the teacher was trying to build trust with her daughter. The mom knew the teacher was pushing boundaries and had romantic feelings toward the daughter. The teacher did not act on those feelings, did not attempt to seduce the student, and was transparent with the mom about all of that. He planned to do so as soon as she turned 18, and the student and teacher planned accordingly. So, is this grooming? They are planning a legal act. Is it only grooming if they act on their romantic feelings? If they don’t, and you impose discipline, are you disciplining an intent or just those behaviors that violate policy? Just the policy violations, right? Which are already on the books. So, an additional grooming code violation would add nothing. If they are acting on their romantic interest, that violates various laws. There is no need to charge the teacher with grooming. If they are not acting on it, many of the behaviors still violate policy and are prohibited without a grooming policy.
The main challenge with prohibiting grooming is that many behaviors are common and innocuous, as detailed above. Writing a policy offense definition that isn’t constitutionally overreaching would be challenging. The intent of grooming someone may not be actionable because we don’t charge people for intentions upon which they don’t act. So, by all means, train on grooming and teach employees to identify it. But, from a policy offense perspective, there are too many potential false flags for grooming to make sense as an offense on its own. When it crosses the line, the conduct is already prohibited. Sometimes, we don’t need more offenses. We just need to enforce the policies that are already on the books.
Boundaries, Personal Relationships, Grooming, and Predatory Patterns of Behavior
If you don’t have grooming language in place already, we offer you some model language. It doesn’t create an offense, but it still allows the constitutive behaviors to be clearly highlighted and proscribed, especially within K-12 schools or other education settings in which minors are present.
Interested in learning more about how to prevent grooming? ATIXA offers a custom training, Sexual Predator Detection and Interdiction, to train your staff to recognize where and how to look for potential predators in your community. Contact us today for more information.