How Should Recipients Define Sexual Assault? (Response 8/13/2020)

Sexual Assault
Question:

*Note that this is a follow up question to the 5/22/2020 Sexual Assault Definition Answer.

So please clarify further, as the UCR does not define forcible and non-forcible sex offenses, NIBRS does.

If the intent is to use the UCR/SRS definition of rape, and the NIBRS definitions otherwise, the applicable definitions appear to be the below. Can OPEN please confirm.

Sex Offenses, Forcible—Any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent. 

(For the balance of 2020) Forcible Rape — Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

(As of 2021 or if/when SRS is shelved) Forcible Rape—(Except Statutory Rape) The carnal knowledge of a person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity. 

Forcible Sodomy—Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity. 

Sexual Assault With An Object—To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity. 

Forcible Fondling—The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity. 

Sex Offenses, Nonforcible—Unlawful, nonforcible sexual intercourse. 

Incest—Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

Statutory Rape—Nonforcible sexual intercourse with a person who is under the statutory age of consent.

Answer:

The new Title IX Rule defines “sexual assault” by reference to 20 U.S.C. 1092(f)(6)(A)(v). That statute, in turn, defines “sexual assault” as “an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.” As you note, the FBI UCR currently uses two crime reporting programs, the SRS and the NIBRS. As noted in the Preamble to the new Rule at page 547, fn. 741, the FBI has announced intent to retire the SRS in January 2021, and thereafter to only use the NIBRS. The new Title IX Rule does not require a recipient to select one or the other (SRS or NIBRS) to define “sexual assault,” nor does the Rule prohibit a recipient from using definitions from either or both the SRS and NIBRS (for example, as you propose, defining “rape” under the SRS and other sex offenses per the NIBRS definitions), so long as all forcible and non-forcible sex offenses described by the FBI UCR are utilized as the recipient’s definition of “sexual assault” for Title IX purposes. Whether or not the label “forcible or non-forcible” is used within the SRS or NIBRS, the sex offenses described under each of those FBI UCR programs are “sexual assault” for Title IX purposes, by virtue of § 106.30(a) (defining “sexual harassment”), regardless of whether the sex offense requires “force” as an element.