By Dahlia Lithwick
April 28, 2016
|A petition with more than 110,000 signatures asks that the school amend its honor code to afford amnesty to the victims of sexual assault. Above, the school's campus in 2012.|
Brigham Young University made national headlines this month when it was revealed that female students who reported being raped could be suspended or expelled for violating the school’s onerous honor code. The details of the case are infuriating. Whether or not the school is technically in violation of Title IX remains to be seen, but the school is clearly violating the spirit of the law in a way that does untold damage to rape survivors and makes future rapes more likely.
BYU, a private university in Provo, Utah, is owned by the Church of Jesus Christ of Latter-day Saints. A handful of students came forward at a rape awareness conference earlier this month to describe their experiences with the school’s honor code policy. The Salt Lake Tribune then picked up and expanded upon the story, reporting that the practice of expelling rape victims for violations of the university’s honor code dates back decades. A petition with more than 110,000 signatures is calling for the school to amend the honor code to afford amnesty to the victims of sexual assault. BYU says it is “studying” its policies around investigating the victims of sexual assault for conduct that may represent small honor code violations.
The BYU honor code is far more restrictive than most other university codes. Created by BYU students in 1949, it forbids students from drinking, using drugs, wearing tight clothing, gambling, drinking coffee, homosexual conduct, engaging in premarital sex, or being in the bedroom of anyone of the opposite sex. Code violations may lead to expulsion. The problem? This code is on a collision course with Title IX, the federal law that prohibits sex discrimination at any schools that receive funds from the U.S. government. Title IX requires that sexual assaults be counted and investigated; it certainly does not contemplate that any young woman fighting to protect her civil rights will be tossed out of her school for violating an honor code, a threat that is clearly antithetical to the promise and goals of Title IX.
The aforementioned online petition was launched earlier this month by 20-year-old BYU student Madi Barney, who reported last September that she was raped in her off-campus apartment by a man who is not a BYU student. According to police documents, the alleged attacker, Nasiru Seidu, admitted to Barney during a phone conversation that he had raped her. He now claims the sex was consensual. After agonizing for four days over whether she could report the assault and afford to be charged with an honor code violation, Barney went to the police and not the university. Seidu was arrested in September and is awaiting trial. But the school got ahold of her police report when sheriff’s deputy Edwin Randolph turned it over to the BYU Honor Code Office. Both her alleged attacker and Randolph were charged with witness retaliation, but the charges were later dropped. (A court petition filed by a prosecutor in the case described Seidu and Randolph as “friends,” something that Randolph denied.)
Meanwhile, even though the assault happened off campus and she had never reported it to campus authorities, the Honor Code Office launched an investigation into Barney herself. In December, she got a letter from the school’s Title IX coordinator explaining, “We have received information that you have been a victim of behavior that is addressed in the university Sexual Misconduct Policy. We have also received information that you have engaged in behavior that violates the BYU Honor Code.”
Barney’s lawyer told her not to participate in the honor code investigation because it could impede her criminal case. The pending honor code violation not only impeded the state’s sexual assault prosecution, but Barney got a letter in March from BYU’s lawyers indicating that she would be blocked from enrolling in any more classes “until the Honor Code issues are resolved.” (She was also blocked from withdrawing from classes.) As the New York Times reports, Barney has now decided she does not want to return to the university.
Title IX is meant to encourage reports of sexual violence, not trigger investigations into whether the victims wore sundresses or drank a spritzer.
Then there is Madeline MacDonald, who was sexually assaulted as an 18-year-old freshman at BYU by a man she met on an online dating site. Unlike Barney, she reported the assault to the school’s Title IX office. That same day, she says, BYU’s Honor Code Office received a copy of the report. That office promptly launched an investigation into MacDonald’s possible honor code violations. She ultimately faced no discipline under the honor code, in part because—as she has consistently maintained—she never violated it.
Then there is “Emily,” a pseudonym for another BYU student who came forward to the Salt Lake Tribune this month. She was assaulted by two different men, on two separate occasions, and the police connected her to the school’s Title IX office for victim services. Instead, her case was passed along to the Honor Code Office, and she was told that the Title IX and honor code investigations would go “hand in hand, so whatever one decided the other agreed with.”
BYU says that it will now take a hard look at the connection between the Honor Code Office and the Title IX office. In a statement released last week, the university pledged: “We have decided to study these issues, including potential structural changes within the university, the process for determining whether and how information is used, and the relationship between the Title IX Office and the Honor Code Office.” The school now “recognizes the inherent tension” between sexual assault reporting and student discipline.
At the same time, a spokesperson from BYU issued this statement, which is contradicted by Emily’s story: “A Title IX investigation at BYU is independent and separate of the honor code process. Furthermore, the victim of a sexual assault is not going to be referred to the Honor Code Office for being a victim of sexual assault.”
New facts reported by the Salt Lake Tribune in Madeline MacDonald’s case, though, further contradict the university’s claim. Documents suggest her honor code investigation was launched the same day as her Title IX report. BYU responded that the overlap in dates on the two case files probably just reflected “an overlap in the software used by the Honor Code and Title IX offices and does not mean an Honor Code investigation was immediately begun.”
At the April rape awareness conference, meanwhile, BYU’s Title IX Coordinator Sarah Westerberg defended her office’s right to involve the Honor Code Office. She went on to say, according to several students who attended the event, that her office would “not apologize“ for referring abuse victims for discipline, while simultaneously acknowledging that such a practice could have a “chilling” effect on sex crime reporting.
The chilling effect is, of course, one of the biggest problems here. Title IX is meant to encourage reports of sexual violence, not trigger investigations into whether the victims wore sundresses or drank a spritzer. S. Daniel Carter, a campus security consultant who helped author the federal reporting law, told the Salt Lake Tribune that Title IX does not forbid schools from punishing rape victims for violating school policies, but “it’s not best practices.”
“It’s hurtful to survivors, and most significantly it’s the kind of thing that will have a chilling effect on survivors coming forward,” Carter said. “It’s contrary to an institution’s goal of combating sexual violence. Do you want to remove violent predators from your campus or do you want to penalize victims for minor violations?”
This chilling effect seems to be borne out by the data. In 2014, there was just one report of a rape on the BYU campus of 30,000 people, and 17 reports of fondling, according to the university’s annual security report. This, despite the National Sexual Violence Resource Center’s estimate that one in five women and one in 16 men will experience sexual assault in college.
Last week, according to the Salt Lake Tribune, Barney filed a complaint with the U.S. Department of Education, claiming that BYU had denied her services available to victims under Title IX. There are also signs that the school should not have gone after Barney, according to its own guidelines. BYU’s Sexual Misconduct Policy encourages students to come forward with reports of assaults, even if code violations occurred. It explicitly states that “violations of university policy or the Church Educational System Honor Code do not make a victim at fault for sexual violence or other forms of Sexual Misconduct and will be addressed separately from the Sexual Misconduct allegation.” And yet, student after student has come forward to say that a sexual assault—even one that hasn’t been reported to the school by the student—has led to an honor code violation investigation that could end in suspension or expulsion.
Many other universities offer students amnesty for drinking or drug violations if a sexual assault has been perpetrated. This makes sense. You want the serious crimes reported. As an angry editorial the Salt Lake Tribune extolled, what a young woman is drinking, or wearing, or that she was in her bedroom with a man, does not change the fact that if she is raped, the rapist is responsible. By shifting the responsibility onto the victim, the Tribune accurately notes, BYU is saying that her college career can end simply for speaking up to ensure that another attack doesn’t happen to the next victim. BYU’s defenders will say that this bit of common sense is a violation of the school’s religious convictions. But is the school’s religious conviction honestly that rape happens because a young woman had coffee, or wore a sleeveless dress near her assailant? The honor code is intended to protect students. But what causes rape isn’t women who don’t follow a thousand rules about where to be and what to wear. What causes rape is rapists.