The FBI recently updated its National Incident-Based Reporting System (NIBRS) User Manual to replace the definition of “fondling” with “criminal sexual contact.” The manual defines criminal sexual contact as:
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.
The 2020 Title IX Regulations adopted the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act’s (Clery Act’s) definition of sexual assault and the Clery Act refers to the FBI’s Uniform Crime Reporting Program, now NIBRS. The FBI’s definition of sexual assault includes forcible and nonforcible sex offenses such as rape, fondling, incest or statutory rape. Since the FBI replaced its definition of fondling with criminal sexual contact, schools should consider updating their Title IX policies to include the definition of criminal sexual contact, which is broader than the definition of fondling, along with an explanation of the change to make it clear that conduct previously defined as fondling is still prohibited.
For purposes of the Clery Act, institutions should use the definition of fondling found in the Clery Act and its implementing regulations. The definition of fondling in the Clery Act regulations is:
The touching of the private body parts of another person for the purposes of sexual gratification, without the consent of the victim, including incidents where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.
This definition was consistent with the FBI’s definition of fondling at the time the Clery regulations were enacted. However, unless and until the Department of Education issues guidance on this topic or the Clery Act regulations are updated, institutions should still rely on this definition of fondling for purposes of Clery Act compliance. As a best practice, institutions may wish to include information in their Annual Security Report about the number of incidents reported to the institution that constitute criminal sexual contact.
