Even consensual “sexting” can be fraught with unintended consequences. What starts out as private conversations can quickly become the source of anguish when those private moments get exposed.
If you find yourself in this difficult predicament, it’s crucial that you seek competent legal representation from an experienced Title IX defense lawyer. It’s not unheard of for Title IX cases to evolve into criminal cases. KJK’s Student & Athlete Defense team has extensive experience handling Title IX, campus misconduct, and criminal defense cases. We can explain how sexting may implicate Title IX and lodge an effective defense on your behalf.
What Is Sexting?
Sexting is the act of sending sexually suggestive or explicit messages in text, image, or video form. Sexting could include nude or suggestive photos, sexually explicit messages, or videos. The messages could be delivered via social media, email, text, or other electronic means. Depending on the circumstances, sexting may be consensual and non-actionable or a form of sexual misconduct that could subject the actor to sanctions under Title IX. If one of the parties is a minor, criminal charges could be involved. If one of the parties does not consent, the actions could violate Title IX policies.
What Is Consent?
Legal consent refers to a voluntary agreement by all parties to an act. In matters concerning alleged sexual misconduct, consent is a crucial issue. Consent can be spoken, written, or implied. Various factors can affect consent, including age, mental capacity, incapacitation, force, threats, or coercion. If one of the parties did not consent, there could be grounds for a Title IX or even criminal case.
What Is Title IX?
Title IX is a federal civil rights law, part of the Education Amendments of 1972. The law was passed to end sex discrimination that had been occurring on college campuses. Initially, it aimed to end sexual discrimination that barred women from being admitted to colleges, universities, or educational programs. It has also helped obtain adequate funding for women’s collegiate athletics.
Under Title IX, any educational institution or program that receives federal funding must respond to any report alleging sexual misconduct that falls within the Title IX purview and promptly investigate the allegations. Today, it is used as a way of handling cases alleging rape, sexual violence, assault, sexual harassment, and other prohibited forms of sexual misconduct. Schools, universities, and colleges that fail to address reports of Title IX violations risk losing federal funding.
What Is Sexual Misconduct Under Title IX?
Sexual misconduct under Title IX can encompass a wide variety of unwelcome sexual behavior that is committed without consent. Common forms of sexual misconduct under Title IX include:
- Sex harassment
- Sexual discrimination
- Sexual assault
- Rape
- Stalking
- Voyeurism
Any form of non-consensual sex could be prohibited sexual misconduct under Title IX. Sexual harassment is a form of sexual misconduct that typically involves unwanted sexual behaviors or comments, requests for sexual favors, offensive comments, or physical assault that interferes with a person’s ability to participate in or benefit from an institution’s educational program or activities.
Is Sexting a Violation of Title IX?
Sexting could be considered sexual harassment, depending on the circumstances. Quid pro quo harassment occurs when someone in a position of authority (such as a faculty member or school administrator) requests sexual favors in exchange for more favorable treatment (such as better grades) or to avoid negative consequences (such as failing a class). So, if a professor, administrator, or school employee is using their position of power to obtain these sexual favors, it could be considered a violation of Title IX.
Sexual harassment is also a violation under Title IX when it is so severe, pervasive, and offensive that it jeopardizes a student’s equal access to educational opportunities. Stalking is also considered prohibited conduct under Title IX. Under these definitions, sexting could violate Title IX if it was happening so frequently or explicitly that it interfered with a student’s education. Sharing these messages or threatening to do so could constitute sexual exploitation, which is also a form of sexual harassment under Title IX.
Examples of When Sexting Violates Title IX
Whether a particular set of actions violates Title IX depends on the specific language of the college’s or university’s policy and the particular circumstances. Potential violations of sexting activity that could violate Title IX may include:
- A professor asks a student to send sexual or receive sexual photos in exchange for favorable treatment in class
- A peer sends sexually explicit comments, images, or videos to another student without their consent
- An ex-lover threatens to send sexual photos of an intimate partner to others
- A student uses hidden cameras to capture people in intimate settings without their knowledge
- A college roommate records others in intimate settings and sends the photos or videos to others without their consent
Consent in Title IX Cases
Criminal cases are different from Title IX cases. Title IX cases may sometimes involve words or conduct that does not violate the law but violates the educational institution’s policy.
Consent may not be possible when one of the participants is:
- Under age
- Impaired by drugs or alcohol
- Someone with a mental disability
In these situations, sexting could be a violation of Title IX even if the conduct was not unwelcome.
In criminal cases, a defense may argue that the alleged victim didn’t say no. However, many Title IX policies require that consent be affirmative, meaning that both parties say yes, not just that someone didn’t say no. This consent must be affirmative, conscious, and voluntary. Being silent or not resisting does not imply consent under Title IX. At every phase of the sexual experience, each participant must voluntarily provide consent.
Consent could be verbal or nonverbal. Verbal consent is affirmatively stating one’s interest in continuing the sexual activity or communication. Nonverbal consent involves actions rather than words, such as moving closer during an intimate encounter or nodding. In sexting cases, nonverbal consent may be inferred from the continued sending and receiving of sexually explicit photos or comments. Consent must be ongoing and can be revoked at any time. If one of the parties withdraws consent at any time, all sexual activity must immediately cease.
The Role of Consent in Sexting Cases
Many Title IX cases arise because of a lack of communication between the parties. One of the parties may have believed that the other consented to the sexual activity, while the other may have thought they were being coerced or did not welcome the sexual contact. This is why many schools require affirmative consent because implied consent can often be misconstrued.
Because affirmative consent is voluntary and unambiguous, if it is obtained in a sexting situation, this could help defend against charges of sexual misconduct. For example, if you asked a person if you could send them a naked picture and they said yes, you could raise this fact as a defense that they consented to receiving the message.
Ideally, having consent in writing or electronic form is best to avoid misunderstandings and to use as compelling evidence in case of allegations of sexual misconduct. It is important to obtain consent each time intimacy escalates to a new level. For example, a person could ask explicit permission before sending sexually suggestive texts or photos. They could then ask for permission again before sending or requesting videos. If someone consents to one sexual act, this does not necessarily mean they consent to another.
Students can review their school’s Title IX policies to learn what requirements they should meet to avoid misunderstandings or being found responsible for violating Title IX.
Title IX Investigative Process
Every school is responsible for establishing its own process for handling Title IX cases, so the particular process can be extremely case-specific. A typical Title IX case may involve the following steps:
- Complaint: The complainant reports the alleged misconduct.
- Notice: The Title IX coordinator provides formal notice to the parties that a case has been opened. They notify the parties of the allegations and their rights.
- Investigation: An investigator interviews the parties. They may interview other witnesses identified in the case. The investigator may receive evidence, such as copies of text messages, social media posts, pictures, and other evidence.
- Review: The investigator prepares a report. The parties have a chance to respond to the investigative report.
- Hearing: The college may have a formal hearing in which the complainant states their allegations. An administrative hearing officer or panel hears from witnesses and evaluates submitted evidence. They render a decision.
- Appeal: Either party may appeal the final decision based on limited legal grounds.
There may be opportunities throughout this process to reach an informal resolution of the case, have the charges dismissed, or mediate a resolution. An experienced lawyer can discuss your options.
Legal Considerations in Sexting Cases
Here are the legal considerations raised in sexting cases:
- Is there evidence that the messages were unwelcome or coerced?
- Was there consent to the sexting?
- Was there a legitimate purpose for creating the images or messages?
- Were the participants of the legal age to create or perceive images?
Because sexting is conducted over the phone or other electronic devices, it’s possible that your digital evidence and cell phone records may help protect you. While you might be embarrassed to share this information, your phone may provide a solid defense. For example, your phone may show that the other party asked for or sent sexually explicit messages and the pattern of communication between you. However, before you hand over your phone, consult a knowledgeable Title IX defense lawyer to protect your rights and advise you if this is in your best interest before you share the information on your devices. Digital evidence can also potentially incriminate you.
If you are facing Title IX violation accusations, contact our campus misconduct attorneys today for a confidential case review. We can also defend you if you are facing criminal charges based on similar details. We can evaluate the evidence, challenge the claimant’s argument, and protect your rights throughout the legal process.
Contact an Experienced Title IX Defense Lawyer Today
If you have been accused of violating Title IX based on your sexting activity, or believe that you have been exploited without your consent, an experienced Title IX student attorney can help. The legal team at KJK understands the nuances of consent in Title IX cases. We have successfully handled more than 1,000 cases in more than 200 colleges and universities throughout the country.
Our well-respected attorneys are recognized as leaders in the education category, evidenced by one of our co-chairs being named Lawyer of the Year of 2025 in the education category, a distinction awarded to only one attorney in a geographic area and category, and based on peer reviews.
Our unparalleled ability is seen in our zealous advocacy for our clients and our results. We want to help protect your rights throughout the Title IX investigative process and with any criminal charges or civil suits arising from the same facts. Contact us today to schedule a confidential consultation with an experienced attorney.