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Indiana Law Journal

Document Type

Article

Publication Date

Summer 2016

Publication Citation

91 Indiana Law Journal 1363 (2016)

Abstract

This Article is intended to set the process in motion by providing the DOE and the educational institutions governed by Title IX with a proposed standard for “effective consent.” Part I provides an overview of the realities of campus life in the 2010s, delving into the root causes of sexual assault and other forms of unwanted sexual contact. Sexual hookups and binge drinking, two aspects of campus life inextricably linked to one another and to unwanted sexual contact, are explored in depth.

Part II presents an overview of the traditional role, structures, and processes of the student-conduct system. It then explains why schools are struggling to cope with the demands of creating and enforcing sexual assault policies and how the DOE is contributing to that struggle through its failure to adopt clarifying regulations defining effective consent and other key terms.

Part III proposes a definition of “effective consent” that reflects the realities of college life today, the needs of the student-conduct system and its fact finders, and the relevant legal and scientific principles. It takes on the controversial issue of whether students are better served by a “yes means yes” standard or a “no means no” standard, and the equally challenging issue of when severe intoxication should preclude effective consent.

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