An ATIXA Tip of the Week by Brett A. Sokolow, J.D.
If you are a Title IX administrator, investigator, or decision-maker, you’ve no doubt found the federal regulatory definition of the Fondling offense to be vexatious, to say the least. It’s an attempt by the Department of Education to make a criminal definition fit a civil rights offense, and it just doesn’t work in practice. It’s legalistic, non-intuitive, uses undefined terms of art and loaded terms like “victim,” conflates force with consent, and is unnecessarily and inexplicably limiting.
Here is the federally defined offense, as sourced from the National Incident-Based Reporting System (NIBRS) guide:
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.
As a result of the problematic nature of this definition, ATIXA recommends a variation to its members. In doing so, we have not changed the meaning of the definition, but we have clarified it and extended it logically to explicitly cover behaviors that it should cover, despite its limiting language as borrowed from the criminal context:
Fondling (actual or attempted):
- The touching of the private body parts (buttocks, groin, breasts) of the Complainant by the Respondent, or
- the Respondent’s private body parts touching the Complainant, or
- the Respondent causing the Complainant to touch the Respondent’s or their own private body parts,
- for the purpose of sexual gratification,
- without the consent of the Complainant,
- including instances where the Complainant is incapable of giving consent because of their age or because of a temporary or permanent mental or physical incapacity.
Neither the Title IX regs nor the preamble define “for purposes of sexual gratification.” It is clear from the preamble that the term covers intentional behavior and that evidence of a Respondent’s arousal is not required.
Rather than offer a definition, we suggest the following decisional rubric for assessing when it is reasonable to find that contact with private parts is NOT for purposes of sexual gratification (at least as one motive for the contact; there could be more than one):
- The contact can be proven to be inadvertent;
- The contact is for a legitimate medical (or other privileged) purpose (and thus is conduct for which consent should have been sought and obtained);
- The contact involves a Respondent who is pre-sexual, based on maturity/age (thus their intent is not sexual);
- The contact involves a Respondent who cannot developmentally understand sexual contact, or that their contact is sexual (this will often involve a manifestation analysis in K-12);
- The contact is something like butt-slapping between members of a team and is both minimal and unlikely to have a sexual motivation or purpose (as shown by the context of the acts).
When charging a Respondent for allegations that involve the touching of private parts, don’t neglect Fondling as an applicable charge. It’s obvious when a student alleges their breast was grabbed, for example, but perhaps less obvious when a series of sexual acts might occur together. If a Complainant alleges that a Respondent removed their clothes, used spit to lubricate them, then penetrated them, all without consent, you should be charging that Respondent with Sexual Assault: Rape and Sexual Assault: Fondling under the Title IX framework.[1] The penetration is enough to support the Rape charge, but using spit to lubricate their private parts is enough to support a Fondling charge. Two offenses potentially occurred in concert and should be charged accordingly.
We don’t subsume the Fondling charge under the Rape charge just because they occurred in concert. For that reason, many Rape charges will likely also implicate Fondling under Title IX.
As you can see above, we have taken liberties with the federal definition to make it make sense in the civil rights context. We’ve added tools to the toolbox by broadening the definition to cover the full range of fondling conduct. And we’ve enhanced risk management by clarifying terms, defining terms, and changing problematic references.
One question you might ask is whether it is advisable to broaden the definition of private parts beyond breasts, buttocks, and groin. We have not elected to do so, though we have given it consideration. It’s also been pointed out that by including breasts and not chest, the definition may be sexist. Perhaps, but our society views and treats breasts differently than chests, and thus the definition does as well. “Private body parts” isn’t a great way to conceptualize this for sure. The definition could just list the parts that can’t be touched. The notion of private is contextual, societal, and individual, which is why we tried to better define it. Perhaps it might be better to avoid it entirely, but we haven’t gone that far, and have instead adopted the common legal understanding of breasts, buttocks, and groin.
If you intend to broaden the definition in any of the ways that we have suggested, or to expand the list of private body parts, we recommend that you consult with qualified legal counsel before doing so.
ATIXA provides Policy and Program Review consulting services to K-12 schools, districts, and higher education institutions of all sizes. Please email inquiry@tngconsulting.com to learn more.
[1] 34 C.F.R. § 106.30(a)