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Prosecutor says rape case is threatened by BYU Honor Code investigation

First Published      Last Updated Jun 24 2016 11:44 am

Honor Code investigation began after a deputy sheriff gave the file to the university — which, deputy county attorney says, “lawfully they shouldn’t have.”

Editor's note: This story has been updated since its original publication. The Tribune generally does not name victims of sexual assault, but Madi Barney agreed to be identified after other media used her name.

Prosecutors say Brigham Young University is jeopardizing a pending rape prosecution because the school refuses to delay its Honor Code case against the alleged victim.

Deputy Utah County Attorney Craig Johnson brought charges against Madi Barney's alleged attacker and said he implored school officials to consider that their Honor Code investigation of her conduct would further victimize her. He asked them to postpone their investigation until the conclusion of the trial, originally planned for next month.

He said they declined, and have barred Barney from registering for future classes until she complies with the school's investigation.

That could make it difficult for her to stay in Utah and participate in the rape case, Johnson said.

"When we have a victim that is going to be revictimized any time she talks about the rape — it's unfortunate that BYU is holding her schooling hostage until she comes to meet with them," Johnson said. "And we, as prosecutors, prefer she doesn't meet with them."

The Honor Code probe began after a Utah County sheriff's deputy, a friend of the accused attacker, gave BYU a copy of the police case file. Johnson said he has stressed to school officials that the file is "paperwork that lawfully they shouldn't have."

Prosecutors charged the rape defendant and the deputy with retaliating against a witness, but the cases have since been dismissed.

Barney, 19, reported to Provo police that she was raped in her off-campus apartment by a man last September. About two months later, court records said, she was contacted by staff at the BYU Honor Code and Title IX offices, who told her they were given a copy of the police case file. Campus Title IX offices are charged with enforcing a federal law that guarantees students don't face hostility on campus based on their sex.

Information in the file — which included at least 20 pages of detailed statements and a report on her sexual assault medical exam — implicated Barney in violations of BYU's Honor Code, according to court records. The code is a catalog of rules, such as a dress code, a ban on alcohol and other prohibitions for students at the private school, owned by The Church of Jesus Christ of Latter-day Saints.

Barney was asked to participate in the school's evaluation of her actions. Johnson and Barney's attorney, Liesel LeCates, both said school lawyers rebuffed their requests to suspend their process in the interest of the criminal case.

LeCates said the school's attorneys claimed Honor Code action must be taken right away to comply with federal law. LeCates acknowledged Title IX calls for swift action, but said that to use the federal provision against a crime victim in BYU's Honor Code process "goes against the legislative intent of Title IX."

"The reason that exists is to keep perpetrators from staying on campus ... when criminal proceedings can take years," LeCates said. Instead, she said BYU is "taking that and using it against [a victim]."

University spokeswoman Carri Jenkins said Thursday that Title IX allows for universities to delay an investigation "while the police are gathering evidence in a related criminal case." But she could not comment on Barney's case or why no delay was granted after Johnson's request.

She emphasized that a Title IX investigation is separate and independent from the Honor Code process, and that a student would "never be referred to the Honor Code office for being a victim of sexual assault."

But multiple BYU students investigated by the school's Honor Code Office have disagreed, saying they were scrutinized as a result of reporting a sex crime.

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