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  At least 1 commenter opposed this provision, arguing that there is no
  substitute for direct eye get in touch with
  and whole check out of a person's mannerisms
  and gestures, which will not be as productive utilizing technological innovation,
  even although deal with-to-confront confrontation could
  trigger trauma to the two complainants and respondents.
  
  The Department declines to have to have respondents
  to "lay a foundation" right before inquiring questions, or
  to impose guidelines excluding thoughts based on hearsay or speculation. Respondents going
  through allegations below the to start with or 2nd prong of the
  § 106.30 definition may well defend by, for instance, arguing
  that the unwelcome conduct was not "conditioning any aid or benefit" on participation in the unwelcome sexual
  activity, or that the unwelcome perform was not "severe" or was not "pervasive," etcetera.
  A complainant's sexual behavior is simply just irrelevant to those defenses.
  By contrast, the final restrictions impose a realistic individual typical
  on the other factors in the next prong of the § 106.45
  definition-regardless of whether the unwelcome conduct was
  so "severe, pervasive, and objectively offensive" that it "effectively denied a man or woman equal access"
  to education. Contrary to commenters' considerations,
  the rape defend language deems irrelevant all inquiries or
  proof of a complainant's sexual habits unless made
  available to show consent (and it issues particular
  scenarios of sexual conduct with the respondent) consequently, if "consent" is not at situation-for illustration, the
  place the allegations problem exclusively unwelcome conduct below the initially or next prong of the §
  106.30 definition-then that exception does not even use, and the rape
  protect protections would then bar all concerns
  and evidence about a complainant's sexual actions,
  with no need to have to interact in a balancing examination of
  no matter if the price of the evidence is outweighed by damage or prejudice.
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