Reviewing your Title IX sexual harassment policy, procedures, and forms on a regular basis is always a good idea. You may want to make changes to be more user-friendly, clarify ambiguities, and respond to difficulties encountered with the current policy. This year, as we head back to school, there is also one required change: the definition of sexual assault.  

Remember that the Title IX regulations do not directly define sexual assault. Instead, they reference the Clery Act. But the Clery Act does not define sexual assault either—it references forcible and nonforcible sex offenses defined in the FBI’s uniform crime reporting system. The definitions in the UCR were updated this summer. Here is the change you need to be aware of: fondling was replaced with criminal sexual contact. Criminal sexual contact is similar to fondling but defined more broadly. 

• Fondling:
  • The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
• Criminal Sexual Contact:
  • The intentional touching of the clothed or unclothed body parts without consent of the victim for the purpose of sexual degradation, sexual gratification, or sexual humiliation.
  • The forced touching by the victim of the actor’s clothed or unclothed body parts, without consent of the victim for the purpose of sexual degradation, sexual gratification, or sexual humiliation.
  • This offense includes instances where the victim is incapable of giving consent because of age or incapacity due to temporary or permanent mental or physical impairment or intoxication.   

What are the main changes? 

1. Touching can be of any body part, not just private body parts (buttocks, groin, breasts).
2. In addition to touching for purposes of sexual gratification, the touching can also be for purposes of sexual degradation or sexual humiliation.
3. In addition to the respondent touching the complainant, criminal sexual contact also includes the respondent forcing the complainant to touch the respondent.  

We encourage you to make updates to the terms and definitions in your policy, procedures, handbooks, and other forms. If you use the Thompson & Horton Title IX Guidebook, the forms and definitions will be updated for you. If you have questions about how to implement this change or to make sure you have the most current version of the Guidebook, please reach out to titleix@thlaw.com.