By Brett A. Sokolow, Esq., Chair, TNG Consulting LLC and President, ATIXA
The inclusion of statutory rape as a form of sexual assault in the 2020 Title IX regulations can be confusing with respect to appropriate application of this rule to sex between minors, especially in jurisdictions with so-called Romeo/Juliet age differential laws (probably time to retire this heteronormative term, by the way).
Should all underage sex be addressed by the institution when it has notice? That would mean that even when the student or parent does not wish to make a complaint (because the conduct was nominally consensual), the Title IX Coordinator would be obligated to initiate a complaint. Even though statutory rape is often viewed as a strict liability crime in many jurisdictions, there is still plenty of discretion in how (and whether) such allegations are pursued. In fact, most statutory rape offense allegations between minors are not pursued criminally. In many states, if the parent or guardian does not object to the sexual activity, the prosecutor will not pursue it. In many jurisdictions, prosecutors won’t touch a complaint where the female minor is older than the male minor (I’m not defending a double standard, just recognizing that it exists). These are seen and treated very different than situations involving sex between an adult and a minor.
Where a Title IX Coordinator has notice of sex between a consenting 15-year-old student and an adult employee, they will typically sign a complaint even if the student (and/or their parent/guardian) is not willing to. Where a Title IX Coordinator has notice of sex between a consenting 15-year-old student and an adult student, there is a lot of discretion that informs whether the Coordinator determines that failing to sign a complaint would amount to deliberate indifference to sex discrimination. Much may depend on context, the maturity of the 15-year-old, the reasons the parent/guardian doesn’t want the school to act, privacy, etc. When a Title IX Coordinator has notice of sex between a consenting 15-year-old student and a 17-year-old student, most Coordinators would not sign a Title IX complaint. No one is being discriminated against on the basis of sex. The basis for the objection is age.
Some Title IX Coordinators don’t feel comfortable with this discretion and interpret the regulations to require them to sign a formal complaint for any notice of sex where a student is a minor. The regulations, however, address this issue, and don’t assert that automatic misconduct allegations are required just because a minor is involved. Instead, the preamble to the regulations suggests that OCR intends Title IX Coordinators to enforce this provision with flexibility when a minor is consenting:
“The Department notes that where sexual activity is not unwelcome, but still meets a definition of sexual assault in § 106.30, the final regulations provide flexibility for how such situations may be handled under Title IX. For instance, not every such situation will result in a formal complaint requiring the recipient to investigate and adjudicate the incident;”
This appears to be a clear signal that like all Title IX reports, formal responses should be complaint-driven, or driven by situations where the Title IX Coordinator is compelled by safety considerations to sign a complaint on behalf of the alleged victim. Of course, there may be other policies in play, such as prohibitions on consensual sexual conduct in school or in public spaces, those we need to make sure those are not enforced in a retaliatory manner. There may be issues of predation when a 17-year-old seeks out an immature and impressionable 15-year-old. But each state’s age restrictions are by definition arbitrary, given the patchwork of different and conflicting age limits and ranges laid out by the various states.
These states have wisely vested prosecutors with discretion to address these cases, and the same type of discretion is vested with Title IX Coordinators. When a mature, informed 15-year-old has consensual sex with a 17-year-old, and parents/guardians do not object, the Title IX Coordinator can conclude that no one has experienced discrimination on the basis of sex and that the institution is not being deliberately indifferent by not pursuing an allegation of statutory rape under their Title IX policy. When that 17-year-old is 18, or an adult employee, Title IX Coordinators will be more likely to sign a complaint, especially in all situations involving an adult employee respondent, regardless of willingness to engage in sexual activity.
Contact us at inquiry@tngconsulting.com to learn more about how ATIXA and TNG can support Title IX Coordinators and their organizations.