Under Title IX, a kiss isn’t always just a kiss

Published: Jul. 25, 2016 at 6:43 PM CDT
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Under Baylor’s Title IX guidelines, even a stolen kiss could trigger a process in which the accused may be presumed guilty from the start, a local defense attorney says.

Title IX, which is at the center of the sexual assault scandal that engulfed Baylor’s football program earlier this year, is part of a more than 40-year-old law aimed at ensuring equal rights for those participating in educational programs that receive federal financial assistance.

It applies to all facets of a school's environment.

It has been interpreted to mean that sexual harassment of students including sexual violence interferes with the right to receive an education free from discrimination, and requires schools to take immediate action to end harassment and sexual violence.

Under Baylor’s policy, even kissing could be considered “non-consensual sexual contact.”

The university said in March it is spending $5 million to prevent and respond to acts of interpersonal violence.

The plan also calls for taking steps to address the needs of students who prompt Title IX investigations; requiring Title IX training for upperclassmen and graduate students as well as to incoming students, and requiring annual Title IX training for faculty and staff.

Waco defense attorney Michelle Tuegel, who has worked with students accused of Title IX violations in lower-profile cases that haven’t made headlines, says the changes are generally positive.

"I've certainly seen Baylor make great efforts to do this as fairly neutrally as possible,” she said.

But she warns that the pendulum could swing too far.

"All it takes is the word of one other person accusing the student and that's all it takes in these cases. And that's a really scary thing that just a word of one person is enough if it's believed."

Tuegel says when a complaint is initiated, the government requires schools to complete an investigation within 60 days, which she says is unrealistic.

“Universities are under certain guidelines of how to handle these cases in order to get federal funding, and I see problems and how they are really starting out with the accused as guilty,” she said.

She says that while the 29-page document detailing the process for handling complaints does allow both the accused and accuser to bring advisors to meetings and related proceedings, it does not allow a lawyer to speak on behalf of either.

"What I think is important is that I think 19-year-old students shouldn't be left to defend themselves,” she said.

“Their advisors, most of whom are defense attorneys…need to be allowed to have a more active (and longer) process to protect our clients and to protect these accused students.”

“Baylor may try to be as neutral and impartial as they can be but those students deserve somebody who's on their side."

Baylor’s handling of reports of sexual assaults led the university’s regents on May 26 to suspend head football coach Art Briles with intent to terminate, reassign Chancellor and President Ken Starr, and suspend Athletic Director Ian McCaw.

Starr, who was removed as president, subsequently resigned as chancellor, but remains a tenured faculty member of the Baylor Law School faculty.

McCaw later resigned.

Briles and the university reached a settlement on June 24, the same day the university entered mediation in the lawsuit filed in March by Jasmin Hernandez that names Baylor’s board of regents, Briles, and Athletic Director Ian McCaw as defendants.

Calls to Baylor’s Title IX Office weren’t returned Monday