NIBRS is the National Incident-Based Reporting System. The NIBRS User Manual is issued by the FBI’s Criminal Justice Information Services Division and includes definitions for uniform crime reporting so law enforcement agencies are using the same definitions. The manual was recently updated, as it is from time to time, and the update from June 2025 replaces the definition of Fondling with Criminal Sexual Contact.

What does this mean for Title IX?

Because Fondling is part of the definition of Sexual Assault used in Title IX Sexual Harassment as defined in the 2020 Title IX Regulations, it seems likely that recipients of federal funds should update their Title IX policies to replace the term Fondling with this updated term and its definition. The name of that crime—criminal sexual contact—is appropriate for law enforcement reporting but may be confusing to a school community. Consider using simply “sexual contact” in your policy. The definition from the new User Manual is as follows:

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.  

Compare that definition to Fondling from the last User Manual:

Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity.

Notice the differences: fondling required touching of “private” body parts for the purpose of sexual gratification. Sexual Contact does not specify that the body parts need to be private and also includes the purposes of sexual degradation and sexual humiliation. Sexual Contact also includes circumstances where the perpetrator forces the victim to touch the perpetrator’s body, which was not explicitly addressed by the prior Fondling definition.

Diving Deeper into the Documents

Let’s break down the landscape of the federal documents that relate to this issue:

Title IX 2020 Amendments

The 2020 Title IX Regulatory Amendments define sexual harassment as including “‘Sexual assault’ as defined in 20 U.S.C. 1092(f)(6)(A)(v).”

Clery Act Statute

That reference in the 2020 Title IX Amendments is to the Clery Act statute, 20 U.S.C. 1092(f)(6)(A)(v), which says: “The term ‘sexual assault’ means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.”

Clery Act 2014 Amendments (VAWA)

The regulations for the VAWA amendments to the Clery Act refer to the NIBRS User Manual. The regulations say: “An institution must compile the crime statistics for fondling, incest, and statutory rape using the definitions of those crimes from the ‘National Incident-Based Reporting System (NIBRS) User Manual’ from the FBI’s UCR Program, as provided in Appendix A to this subpart.” The definitions printed in Appendix A were, at the time, consistent the then-current NIBRS User Manual. The Clery Act regulations and preamble were silent on whether the definitions in Appendix A were meant to be automatically revised by updates to the User Manual over the years. Department of Education officials, who have since left, previously provided their interpretation that the Appendix A definitions were frozen in time and institutions should use those definitions unless and until they were updated regulatorily. Unfortunately, this advice was never committed to writing.

Acknowledging some clarifications made in the final regulations, the preamble states: “We believe that these changes, combined with our revisions to Appendix A and the updated references to the FBI’s UCR Program materials will make clear to institutions which definitions they must use when classifying reported crimes. We intend to include additional guidance on these issues when we revise the Handbook for Campus Safety and Security Reporting.”

Clery Act Handbook

The latest Clery handbook was published in 2016 and rescinded in 2020. The Handbook says, “The Clery Act requires institutions and the Department to use the definitions of crimes in the FBI’s Uniform Crime Reporting Program when compiling crime statistics for Clery Act purposes.”

Clery Act Appendix

In 2020, the Department of Education rescinded the Handbook and issued the Appendix, published alongside a letter. The Clery Appendix, issued in October 2020 (and lightly updated in 2021), says that the NIBRS User Manual is the source of the Clery Act crime definition for fondling, incest, and statutory rape. It does not list a date on the User Manual or indicate that with a new User Manual may come new definitions. And of course, there is no more definition of “fondling” to consult.

What About Clery Act Counting?

It seems likely that Clery Act crimes should continue to be classified as usual. The definition of Fondling is printed in Appendix A to the latest Clery Act regulations (2014), and Appendix A is a fixed document. Rather than referencing the User Manual, the definitions are printed.

It is admittedly confusing that law enforcement will be using the name and definition for Criminal Sexual Contact going forward, not Fondling. Schools collecting statistics from law enforcement would expect to use the same definitions as the law enforcement agency, consistent with the NIBRS User Manual. And adding to that confusion, some (but not all) schools are updating their Title IX definition, and Title IX Coordinators often work with Clery folks to square away the statistics for overlapping incidents and crimes. Without guidance from the Department of Education, institutions of higher education should work with legal counsel and agree on which definitions they are using to classify crimes for Clery purposes. It may be that when the portal opens to submit data for a future Annual Security Report, the term Fondling will be replaced by Criminal Sexual Contact—that would provide institutions with a sense of the Department’s interpretation of the User Manual change. Or perhaps the Department will issue guidance and provide assistance to institutions about how, if at all, to reflect this change.

Conclusion

When the new NIBRS User Manual was issued in late June, some law enforcement agencies on campus reflected on the change that might make for Title IX. Increasingly, institutions have been talking about potentially updating their policies and should work with their legal counsel and other compliance professionals to determine next steps. Anecdotally, some institutions are deciding to keep the definitions as-is until ED issues guidance. Others have updated the definition and added a footnote to note that the change came from the new NIBRS User Manual. At this time, we do not have guidance from the Department of Education about the impact of this change on Title IX or Clery Act compliance.  Grand River Solutions has reached out to the Department for guidance and will update this article upon receipt of a response. In the meantime. We will continue to include the NIBRS User Manual update in our trainings while acknowledging uncertainty about its impact.