Editor’s Note: This article contains mentions of sexual assault and may be disturbing for some readers. Reader discretion is advised.
Earlier this month, Student Government (SG) passed the Title IX Regulation Changes Response Act and Title IX at NC State Act as its formal opposition to the U.S. Department of Education’s new Title IX regulation known as the “Final Rule.” The resolutions declared the formal stance of the student body.
A summary of the major provisions of the “Final Rule” can be found here.
The resolutions created by SG state that it is the University’s responsibility to provide a formal definition of consent, to protect students who experience sexual misconduct regardless of where the incident took place and the importance of conducting a trauma-informed cross-examination process, all of which were excluded from the Final Rule.
Thomas Walsh, finance chair of SG, worked with a team of other Student Senate members to write the bills. Walsh said SG’s responsibility is to represent students and, throughout the two-month process, the experiences of survivors; defendants, more commonly known as the accused; and international students prepared them to best represent the student body in this legislation and gave them an all-encompassing perspective as to how Title IX impacts campus.
The vote for both Title IX resolutions were all in the affirmative with the exception for one abstention, according to Walsh.
Associate Director for Interpersonal Violence Services at the Women’s Center Janine Kossen said that the Title IX policy from the U.S. Department of Education is the minimum and universities can choose to go above it. Policies, including NC State’s Code of Student Conduct, are in place to protect students in sexual misconduct cases that do not fall under Title IX.
Lack of consent policy in Final Rule
Both resolutions by SG address how neither a specific definition of consent nor a consent policy are provided in the U.S. Department of Education’s new Title IX legislation. This gives universities the leeway to decide this definition, according to Walsh.
Walsh said SG wanted to make sure that NC State had an affirmative consent policy.
Additionally, the Title IX Regulation Changes Response Act recommended its UNC Association of Student Governments sister schools and other peer institutions adopt a policy of affirmative consent. The resolution was sent to 16 UNC Association of Student Government (ASG) sister schools and 16 peer institutions student governments.
Kossen also said that, until 2019, consent could not be withdrawn in North Carolina. However, even when that was state law, consent could always be withdrawn under NC State policy.
“Under NC State’s definition, consent is something that has to be an affirmative decision by all parties involved,” Kossen said. “It has to be made freely, willingly and actively, and it can be done in action or words and, importantly, it can be withdrawn at any time.”
Additionally, NC State’s policy states that silence does not equal consent and consent cannot be given or received if either party is unconscious, underage, asleep, incapacitated by drugs or alcohol and neither force nor intimidation can be used to obtain consent, according to Kossen.
While it’s not always a good thing to not have a definition in federal legislation, Kossen said that she thinks the definition that could have been mandated would likely have been weaker than NC State’s current definition and she appreciates that the lack of definition gave NC State the ability to do more.
Importance of trauma-informed cross-examination process
Both resolutions from SG included requiring a trauma-informed cross-examination process to prevent further trauma for survivors.
Walsh said that being trauma-informed is important because “everyone has experienced the Title IX process in some shape or form in their college career” whether it be through personal experience or through a peers experience.
It is important for people involved in Title IX investigation and questioning because trauma impacts how an individual remembers an incident and memories can become disorganized, according to Kossen. However, if an investigation is conducted in a trauma-informed way, the survivor will feel more supported and comfortable to provide the information to help achieve the outcome they are looking for.
“Any experience, whether it’s a sexual assault, relationship violence, stalking, it’s a very traumatic experience,” Kossen said. “And it’s very difficult for someone to want to disclose that or want to come forward and seek support or file a report.”
The effects of informal resolution process
The Final Rule allows students to pursue an informal process, which allows both parties and their Title IX Coordinator to make an agreement/resolution on the grievance through processes like mediation; however, individuals waive their right to any formal resolution process after the informal process is concluded, according to both resolutions by SG.
“We want to make sure that the legal rights students are giving up are very well communicated,” Walsh said.
Off-campus incidents no longer heard under Title IX
Both resolutions also opposed the Final Rule for no longer requiring the University to hear cases that occur off campus or at a non-university sponsored activity or event. This would include any incident occurring in an off-campus apartment or study abroad program, according to the resolutions.
“At NC State, 62% of our student body lives off campus,” Walsh said. “So if anything were to occur in their homes or the places that they live, that’s not something that could be investigated.”
Kossen said that while the legislation says universities only have to look at cases that fit this narrow definition, the goal of NC State is to go beyond that to ensure that campus is safe. This is why the Code of Student Conduct and other policies exist, so incidents that don’t fit the narrow definition of Title IX can still move forward.
“In my mind, it doesn’t matter where an incident occurs, it has an impact on campus,” Kossen said. “It can be off campus; it can be study abroad; it can be anywhere. That individual who experienced that incident is still impacted when they are on campus. They still may be struggling to make it to class. They may still see the individual who harmed them at the dining facility or at Carmichael or in class. They may share the same residence hall or the same social circles. There’s still an impact felt on campus regardless of where the sexual assault or relationship happened.”
Student Government’s next steps
As with any other resolution passed by SG, both Title IX resolutions declare the formal stance of the student body, according to Walsh.
Both the Title IX Regulation Changes Response Act and the Title IX at NC State Act were written in response to the 2,033 page document from the U.S. Department of Education, outlining the Title IX changes and over 100,000 public comments it yielded in opposition.
“We wanted to stand with all of the work that had been done and make sure that survivors felt safe on NC State’s campus,” Walsh said. “We are lucky to be on a campus where the Title IX process is as equitable as it is.
Walsh also said that he has been in contact with state government offices to discuss what can be done at the North Carolina level. He is also reaching out to the Jeff Jackson team because of his work in survivor advocacy.
Resources and Support
If you or someone you know is experiencing relationship violence, sexual violence or stalking and are in need of advocacy services, the NC State Women’s Center has trained advocates available to offer crisis intervention, emotional support, resources and referrals. Students can contact the 24/7 Sexual Assault Helpline at 919-515-4444 or [email protected] to be connected with an advocate.
Advocacy services through the NC State Women’s Center are available for all students, inclusive of all gender identities and sexual orientations. For more information on advocacy services, please visitgo.ncsu.edu/supportsurvivors. You may also visitgo.ncsu.edu/safe for additional information on resources and reporting options.
