A Sex-Assault Case at Brigham Young Puts Honor Codes in the Spotlight

Bloomberg News/George Frey

A contentious sexual-assault case at Brigham Young University — in which a student, now pursuing a criminal case against her alleged assailant, is being investigated for violating the Mormon institution’s honor code — has stoked concerns about how campus codes of conduct might complicate sexual-violence investigations.

The case raises especially pressing questions about whether such codes at religious colleges and other institutions with stringent conduct rules, like military academies, deter victims from reporting rapes. At BYU, for instance, the honor code bans consumption of alcohol, premarital sex, and being in the bedroom of a student of the opposite gender.

BYU officials say the honor-code process operates separately from its investigation of sexual-assault complaints under the federal gender-equity law known as Title IX.

“A Title IX investigation is never conducted to harass or retraumatize a victim,” Carri P. Jenkins, a university spokeswoman, wrote in an email. “Sometimes, in the course of an investigation, facts come to light that a victim has engaged in prior honor code violations.”

“In some cases,” she said, “an honor code review could follow the Title IX investigation.”

A petition created by Madi Barney, a BYU student who has identified herself as the victim in the case, implores BYU to add an immunity clause to its honor code that grants students a reprieve from sanctions when they come forward about a sexual assault. The petition had more than 48,000 signatures as of Sunday night. “It’s clear to me that BYU is not on my side,” wrote Ms. Barney, who says she was assaulted in September 2015 in her off-campus apartment and reported it to the police several days later. The man she has accused is not a student.

The events that caused the university to open the honor-code case have also been the subject of debate. Months after the police began investigating, a sheriff’s deputy gave university officials a copy of the criminal-case file. The file identified a potential honor-code infraction, but according to the prosecutor handling the case against Ms. Barney’s alleged assailant, the transaction was illegal.

Ms. Barney also wrote that she had been banned from registering for classes until she participated in the honor-code proceedings.

Brigham Young officials have declined to delay the honor-code case against Ms. Barney, despite a plea from the prosecutor, Craig Johnson.

In comments last week to The Salt Lake Tribune, Mr. Johnson said the university’s process was interfering with the criminal one. “When we have a victim that is going to be revictimized anytime she talks about the rape — it’s unfortunate that BYU is holding her schooling hostage until she comes to meet with them,” Mr. Johnson said.

On Friday, however, the county attorney’s office walked back the prosecutor’s stance, saying in a statement that “BYU has not in any manner impaired the ability of the Utah County attorney’s office to seek justice for the victim of the case.”

According to The Salt Lake Tribune, the university justified its decision to proceed with the honor-code case quickly by invoking Title IX. The Department of Education’s guidance on the law recommends that colleges complete sexual-assault investigations within 60 days.

Ms. Jenkins, the university spokeswoman, told The Chronicle on Friday that the Tribune’s report was inaccurate. But she declined to elaborate on why the university was pushing forward with its honor-code proceedings, citing student-privacy laws.

It’s also not clear which provisions of the honor code Ms. Barney might have violated.

An ‘Inherent Tension’

How should honor codes or conduct policies factor into Title IX cases? That’s a continuing debate at many colleges, and not just religious ones, said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at the Stetson University College of Law. Since alcohol often plays a role in sexual assaults, and underage drinking is a disciplinary violation at virtually every college, it’s a conversation campus officials must have, he said.

The Department of Education’s Office for Civil Rights has not endorsed a “model policy” on the issue, Mr. Lake said, though he hoped a resolution in a closely watched Title IX investigation at the University of North Carolina at Chapel Hill would bring clarity. Landen Gambill, a former student who joined four other people in filing a federal complaint against Chapel Hill in 2013, was charged by the university’s honor court with retaliating against the man she accused of rape because her public statements effectively revealed his identity. The university later dismissed the honor-code case against Ms. Gambill. The federal investigation is continuing.

Particularly at religious colleges, Mr. Lake said, “we need to understand, How do you maintain core honor or faith values in the context of the Title IX system?”

At most colleges, Title IX and student-conduct employees work closely together, said Alexandra V. Tracy-Ramirez, an Arizona lawyer who has worked as a Title IX investigator at two colleges. During her time at the University of Colorado at Boulder, she said, she worked within the conduct office. Collaboration between the two is key, she said, because staff members could discover that a person accused of sexual assault has committed other disciplinary infractions.

But Ms. Tracy-Ramirez didn’t endorse how Brigham Young had approached Ms. Barney’s case. “If I had a situation where I received a report that a young woman has been raped — even if, in that report, I found out that she had been drinking and may have infringed on some other honor-code rule — my priority would not be, Let’s go initiate an honor-code case,” she said.

“I think BYU is sending a message loud and clear to students: Don’t report sexual assault,” said Colby Bruno, senior legal counsel at the Victim Rights Law Center.

Many colleges have code-of-conduct clauses that offer students immunity in certain cases. Most commonly, those clauses protect students from formal disciplinary action if they call for help after a friend drank too much or took illegal drugs. But the provisions can also apply to sexual-assault victims.

Ms. Bruno said she had consulted with a number of colleges that have abstinence policies covering sexual contact and alcohol. In her estimation, none of those institutions would subject students who report rapes to discipline for violating the code of conduct. “That would imply that the victim is partly responsible for what happened to her,” Ms. Bruno said.

Ms. Jenkins did not disclose whether Brigham Young grants immunity to students who report sexual misconduct.

“When a student reports a sexual assault our primary focus is on the safety and well-being of the victim,” she said. “BYU also promotes the safety and well-being of its students through its honor code, which is a commitment to conduct that reflects the ideals and principles of the Church of Jesus Christ of Latter-day Saints.”

“The university recognizes the inherent tension, in some circumstances, in these two important parts of BYU’s efforts to create and maintain an atmosphere consistent with the ideals and principles of the church,” Ms. Jenkins said.

Religious institutions that are concerned about complying with Title IX can ask the Department of Education for an exemption, as dozens of colleges have done, Mr. Lake said. (Ms. Jenkins didn’t say whether BYU had done so.) On the other hand, he said, “you’re basically asking to be out of the Title IX system, and what kind of message does that send?”

Educational or Punitive?

Brigham Young doesn’t have to give up its faith-driven values to be more flexible when students report sexual assaults, Ms. Bruno said.

If a student revealed that she had been drinking or using drugs at the time of an assault, officials could sit her down to discuss their concerns about that behavior, and perhaps require her to see a counselor or take an educational program, Ms. Bruno said. “But don’t you dare put her in front of a board who is judging her for behavior that resulted in a rape,” she said.

Ms. Jenkins said that BYU’s honor-code process is designed to be educational rather than punitive. “Most students stay in school as they work through issues with the honor-code counselors,” she said.

A handful of students disputed that characterization of the process in a Salt Lake Tribune article last week. Ms. Bruno said Brigham Young could be inviting a Title IX lawsuit by putting Ms. Barney’s education on hold until she agreed to go forward with an honor-code investigation.

Several experts said that invoking Title IX as a reason to move quickly with honor-code proceedings, as the Tribune said BYU had done in last week’s disputed report, was unreasonable. Title IX permits colleges to delay internal proceedings if their efforts are interfering with a criminal investigation, Ms. Tracy-Ramirez said. The 60-day suggested window for colleges to complete a Title IX process, she said, is designed to ensure that officials take steps to help victims and perhaps suspend or expel perpetrators while the much-lengthier criminal process runs its course.

Ms. Bruno said that, based on her understanding of the BYU case, she was perplexed by the institution’s approach. University officials “are being very draconian about it,” she said.

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.