Sexual Assault Definition (Response 5/22/2020)

Sexual Assault
Question:

Please clarify confusion over the definition intended by the regs for sexual assault. 

The regs say: (3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v) 

Looking that up, I find: (v) The term “sexual assault” means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.

Looking that up, sexual assault doesn’t appear to be a UCR offense, though rape, sodomy, sexual assault with an object, etc. are listed.

https://ucr.fbi.gov/recent-program-updates/new-rape-definition-frequently-asked-questions

 However, the Clery Act Handbook uses this definition:

“Any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent.” 

So, is that the definition the regs expect recipients to apply? Also, is it OCR’s intent for any or all of the four subparts of the definition in the Clery Act Handbook to apply/be used as policy definitions?

Answer:

As you note, the new Title IX Rule defines sexual harassment to include “sexual assault” as defined in the Clery Act, 20 U.S.C. § 1092(f)(6)(A)(v). As you also note, that statutory provision states: “The term ‘sexual assault’ means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.”

In the preamble to the Rule discussing the definition of “sexual assault” (e.g., pp. 541, 547), the Department does not cite to the Clery Act Handbook. Instead, the Department will rely on “an offense classified as a forcible or nonforcible sex offense” under the FBI’s uniform crime reporting system (UCR), as referenced in the Clery Act statute.

The short answer is that institutions should define sex offenses by reference to the Clery statute, not the regulations.  “Sexual assault” is defined in 20 U.S.C. 1092(f)(6)(A)(v) as “an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.”  ED’s reference to the statute, and not the Clery regulations, was intentional because the Clery regulations (and Appendix A where the regulatory definitions appear), while clear, rely specifically on the SRS for a “rape” definition.  Because the FBI intends to retire the SRS in January and use only the NIBRS, ED did not want to undermine the meaning of the regulator definition for Title IX purposes.

It is true that the FBI no longer classifies sexual assault as “forcible or nonforcible” sex offenses, but ED’s intent in incorporating the “forcible or nonforcible” language is to make clear that a broad scope of sex offenses are included in the definition (i.e. making sure nonforcible sex offenses weren’t excluded).   So even without the modifying phrase “forcible or nonforcible” institutions can still look to the sex offenses classified in the FBI UCR; for now, looking to the SRS is compliant, but when SRS goes away in January, looking to NIBRS will capture all the sex offenses that are covered by the SRS rape definition (plus some).

It’s also important to note that ED did not reference the Clery Act Handbook in the Title IX Rule preamble – ED is not directing recipients to rely on the Handbook with respect to defining sex offenses under Title IX.