Can Schools Actually Prohibit “Criminal” Sexual Contact Under Title IX? Well, Now We Have To

This Tip of the Week was originally published under the title “ATIXA’s Brief Guide to Best Practices for Addressing Fondling Allegations Under Title IX.” However, that was before the shift in the federal fondling definition was recently published by the government, so we’re reissuing this guide, now in not-so-brief form, to update you on the changes and best practices.

Out with Fondling. In with Criminal Sexual Contact?

We should acknowledge right off the bat that fondling was always an odd term for an offense, right? Most fondling, I suspect, is a natural part of intimate relationships and consensual. When it’s not, it should be prohibited under Title IX, but only when it’s non-consensual. So, the term fondling, as an offense without a modifier, requires us to imply non-consent, the same as with the federal definition of sodomy. You would hope that, given a chance to update the fondling definition and rename it, the feds would fix this. Nope, they made it worse. Out with fondling, in with Criminal Sexual Contact. Wait, colleges and schools don’t address crimes or prohibit criminal behavior under criminal statutes. We know. This new term is certainly not a best practice and has some serious risk management implications. But since when have the feds really understood what goes on at colleges and schools? Worse, the definition now potentially includes conduct – like kissing – that is rarely criminalized. So much for clarity in terminology.

Can’t We Just Ignore This and Pretend it Didn’t Change?

Can’t we just ignore this change and keep the fondling definition as is in our policies and procedures? Nope. This change is mandated. It actually happened in 2023, but the National Incident-Based Reporting System (NIBRS) manual was not updated until 2025 (see p. 60). Now that it is, we must revise our policies accordingly. The federal Title IX regulations require colleges and schools to use offense definitions that are based on NIBRS. When NIBRS shifts, so must our definitions. This change has already happened. You should make updates immediately, and you need to be aware that the revised definition doesn’t just rename fondling, it substantively changes what the definition covers, and is much, much broader now. This will be especially vexing for K-12 schools, where fondling behaviors are common (probably the most frequent Title IX offense alleged in K-12 school environments). Let’s explore what has changed…

So, What Actually Changed?

Here is the former federally defined fondling offense, as sourced from the NIBRS guide:

Forcible Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will, or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity.

Here is the revised definition from the new NIBRS manual:

11D 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 for the purpose of sexual degradation, sexual gratification, or sexual humiliation.

Fifty-seven words became 99. If you are a Title IX administrator, investigator, or decision-maker, you’ve no doubt found the federal regulatory definition of the Fondling offense to be vexatious in either form. It’s an attempt by the Department of Education to make a criminal definition fit a civil rights offense, and it just doesn’t work in practice. It’s legalistic, non-intuitive, uses undefined terms of art and loaded terms like “victim,” conflates force with consent, and is unnecessarily and inexplicably limiting. None of that improved with the change. It’s now even more legalistic and chock with legal jargon.

As a result of the problematic nature of this definition in either iteration, ATIXA recommends a variation to its members. In doing so, we have not changed the meaning of the definition, but we have clarified it and extended it logically to explicitly cover behaviors that it should cover, despite its limiting language as borrowed from the criminal context. We’ve also kept the title Fondling, rather than Criminal Sexual Contact, but have updated our model policies and procedures with a footnote explaining that Fondling is a legacy term and is now considered Criminal Sexual Contact by the government. If your goal is strict compliance, this approach might not be the best fit. At ATIXA and TNG, we emphasize the intersection of compliance and holistic risk management strategies. While compliance is important, effective risk management should often take priority. It seems far riskier to start labelling students and employees as criminals, which could have significant defamation implications. Here’s ATIXA’s 2025 version:

Fondling (actual or attempted):

• The intentional touching of the clothed or unclothed genitals, buttocks, groin, breasts, or other body parts of the Complainant by the Respondent,

• without the consent of the Complainant,

• for the purpose of sexual degradation, sexual gratification, or sexual humiliation

• Or, the intentional touching by the Complainant of the Respondent’s clothed or unclothed genitals, buttocks, groin, breasts, or other body parts,

• without the consent of the Complainant,

• for the purpose of sexual degradation, sexual gratification, or sexual humiliation.

Neither the Title IX regs nor the preamble defines “for purposes of sexual degradation, sexual gratification, or sexual humiliation.” It is clear from the preamble to the 2020 Title IX Regulations that the term covers intentional behavior and that evidence of a Respondent’s arousal is not required.

Rather than offer a definition, we suggest the following decisional rubric for assessing when it is reasonable to find that contact is NOT for purposes of sexual gratification, degradation, or humiliation (at least as one motive for the contact; there could be more than one). Contact with clothed or unclothed body parts is considered to be done for the purpose of sexual degradation, sexual gratification, or sexual humiliation unless:

1. the contact can be proven inadvertent;

2. the contact is for a legitimate medical (or other privileged) purpose and thus is conduct for which consent should have been sought and obtained by the provider;

3. the contact involves a respondent who is pre-sexual, based on maturity/age (thus, their intent is not sexual);

4. the contact involves a respondent who cannot developmentally understand sexual contact or that their contact is sexual; or

5. The contact is something like butt-slapping on a team and is both minimal and unlikely to have sexual motivation or purpose, as shown by the context of the act(s).

When charging a respondent for allegations that involve the touching of covered parts (well, covered or uncovered, now), don’t neglect Fondling as an applicable charge.¹ It’s obvious when a student alleges their breast was grabbed, for example, but perhaps less obvious when a series of sexual acts might occur together. If a complainant alleges that a respondent removed their clothes, used spit to lubricate them, then penetrated them, all without consent, you should be charging that respondent with Sexual Assault: Rape and Sexual Assault: Fondling under the Title IX framework.² The penetration is enough to support the Rape charge, but using spit to lubricate their private parts is enough to support a Fondling charge. Two offenses potentially occurred in concert and should be charged accordingly (and note the NIBRS offense is not “Criminal Rape”).

We don’t subsume the Fondling charge under the Rape charge just because they occurred in concert. For that reason, many Rape charges will likely also implicate Fondling under Title IX.

As you can see above, ATIXA has taken liberties with the federal definition to make it make sense in the civil rights context. We’ve added tools to the toolbox by broadening the definition to cover the full range of fondling conduct, though we now also face the problematic issue that the new NIBRS definition goes even further than we did, and invites schools to police any bodily contact, not just contact with private parts. For years, we’ve seen schools dismiss complaints where someone’s body part was touched in a lascivious manner, but it was not a private part. We’ve seen complaints fail to prove out because someone’s leg was humped in a sexual manner, but that was contact by a private part, not with a private part. We’ve seen complaints of non-consensual kissing not fall within Title IX, again, because private parts were not implicated. Now, all that conduct is potentially addressable under Title IX. As if many K-12 schools weren’t already drowning in complaints.

These kinds of allegations won’t be dismissible anymore, and may likely prove a policy violation, if the contact with any body parts is both non-consensual and for purposes of sexual gratification, humiliation, or degradation. If this is frustrating, we get it. No one should be kissed non-consensually, but that was easily addressed under school conduct codes. Now, they’re making a federal case out of it. Logically, it is fair to question whether one non-consensual kiss means you’ve been discriminated against on the basis of your sex. That may be true sometimes, but as a blanket concept, that’s doubtful. Now, it’s institutionalized. It is certainly anomalous that the Trump Administration would support such an expansive definition, but again, these changes began in 2023, so I suspect the Trump Administration isn’t even aware of this change. Most of us in the field weren’t, because it wasn’t announced.

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