The Criminalization of Title IX
31 Pages Posted: 16 Jun 2017
Date Written: December 2, 2016
The recent spate of media and political attention to sexual assault on college campuses serves as a reminder that, despite decades of feminist-inspired rape law reform, sexual assault remains an entrenched and troubling issue. While sexual assault on college campuses is emblematic of the continuing problem of sexual assault, however, how we respond to it may also provide insights to the solution. The rather recent clarification that Title IX’s prohibition against sex discrimination at federally-funded educational institutions extends to peer-to-peer sexual assault presents an opportunity to draw lessons from the limitations of rape law reform efforts and expand accountability and justice in the sexual assault context beyond the punitive criminal law framework.
Nevertheless, this essay demonstrates that this opportunity is being overlooked as current Title IX practices are coming to resemble an extension of, rather than a diversion from, the criminal justice framework. It contends that criminal law-like interpretations of Title IX, like criminal law reform itself, will be limited in their ability to change behaviors and provide meaningful relief and should raise serious concerns for feminists concerned with the consequences of tough on crime polices. It also suggests that there is another way to interpret and implement Title IX: one that sees Title IX not an avenue for securing the justice unavailable in the criminal justice system but rather as a way to redefine what justice means in the context of sexual assault. This approach capitalizes on the difference between Title IX and the criminal law by emphasizing Title IX’s requirement of institutional responsibility for preventing and responding to sexual assault.
Keywords: Title IX, Rape law, Feminist legal theory
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