Students say Honor Code involvement means a victim who reports an assault faces possible punishment if she or he was breaking curfew, violating the dress code, using drugs or alcohol or engaging in consensual sexual contact — all banned by the code of conduct — before an attack.
New: Prosecutor says rape case is threatened by BYU Honor Code investigation
In a statement, BYU said a student "will never be referred to the Honor Code Office for being a victim of sexual assault," and that its Honor Code proceedings are "independent and separate" from Title IX investigations.
But multiple BYU students investigated by the school's Honor Code Office disagree, saying they were scrutinized as a result of reporting a sex crime. In some cases described by past and current students, Honor Code investigations were launched even when the accused assailants were not BYU students — the alleged victim being the sole possible target.
Student Madi Barney, whose rape allegation has led to a criminal case in Provo, last week spoke at a rape awareness conference on campus and challenged BYU's investigation of victims. Her future enrollment at BYU is on hold pending an Honor Code investigation into her case.
"I said, 'I'd like to propose that victims of sexual violence have some kind of immunity clause from the Honor Code, because it creates a hostile environment for victims who think they're going to get in trouble for reporting.' Everyone clapped," said Barney, who agreed to the use of her name by The Tribune.
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Investigating students who report violent crimes is "a misplaced priority" that keeps schools from confronting sexual violence, said S. Daniel Carter, a campus security consultant who helped author federal laws that require colleges to track and report crimes on campus.
Title IX does not prohibit punishing students who report an assault for violating other school rules, but "it's not best practices," he said.
"It's hurtful to survivors, and most significantly it's the kind of thing that will have a chilling effect on survivors coming forward. 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?"
In BYU's statement to the Tribune, spokeswoman Carri Jenkins pointed to the school's sexual misconduct policy: "Violations of university policy or the ... Honor Code do not make a victim at fault for sexual violence ... and will be addressed separately from the sexual misconduct allegation."
Barney scoffs at the claim of separation.
" 'Separate.' That's the word they constantly use to justify sending victims to the Honor Code," said Barney. "You can't just chop up the rape into little pieces and take out the parts you want to punish people for."
Calling the investigations separate doesn't help victims, she said. "You still get investigated. That's what's so frustrating. I was raped, and I waited four days to report because I was so terrified about my standing at BYU."
At last week's rape awareness conference, Barney said, BYU Title IX coordinator Sarah Westerberg said her office is part of a private institution and allowed to involve the Honor Code Office.
Westerberg said her office would "not apologize" for referring abuse victims for discipline, while acknowledging a "chilling" effect on sex crime reporting, according to several students who attended the event and confirmed Barney's account.
"In a room full of rape survivors, she said, 'We do not apologize for this,'" Barney said. "I said, 'You don't apologize for threatening to kick a rape victim out of school?'"
Westerberg did not return the Tribune's calls for comment.
Madeline MacDonald, who also agreed to the use of her name by The Tribune, said she made a Title IX sexual assault report in 2014. She said a blind date took her to a mountain in Orem, forced her clothes off, pinned her into the cab of his pickup and groped her while she told him to stop.
"I wasn't drunk, I'd never had previous consensual sex with this guy, there were no drugs involved, and he wasn't in my apartment at all," she said.
MacDonald said she turned to the Women's Services and Resources office, where staff instructed her to file a complaint with the Title IX office. During the subsequent investigation, MacDonald said, Westerberg told her that her case was being forwarded to the Honor Code Office.
"She was telling me at BYU people falsely report rapes because the Honor Code Office is so strict on premarital sex, and people report rapes so they won't get investigated," MacDonald said.
"Emily" was on a date in July 2015 with a student from another school when he began fondling her as she fought back and told him to stop, she said. According to a rape charge pending in 4th District Court, police wrote that they also found bite marks on Emily's body.
Emily asked to use a pseudonym because her attacker has threatened her.
In January, the man followed Emily to a campus building where she works as a janitor and hid in a bathroom; he jumped out, pinned her to a wall and threatened to kill her, according to a subsequent kidnapping and witness retaliation charge.
BYU police do not refer criminal investigations to the Honor Code Office, said Lt. Arnold Lemmon.
"We're not out there digging up dirt on students and shipping it to the Honor Code Office," he said.
But officers are required to notify victims of their options under Title IX. The detective over Emily's second attack told her that the Title IX office could connect her to services.
Instead, Emily said, the office opened an Honor Code investigation into her conduct.
"[Westerberg] said ... that's part of the policy: Any time a sexual assault is reported, they have to send it to the Honor Code Office," Emily recalled. "She said that her hands were tied by the policy. ... I asked her, 'I don't understand what you're saying.' She said, 'We have an Honor Code policy at BYU and we don't apologize for that.'
"That killed me, because I've never broken the Honor Code, ever, and here it was being used to say it was my fault, what had happened to me," Emily said.
Emily said Westerberg told her the Title IX and Honor Code investigations were "hand in hand, so whatever one decided the other agreed with."
Westerberg told her, Emily said, she would receive help only if the Title IX investigator could substantiate her off-campus rape allegation — and that would depend on the defendant.
"If he said I had anything to do with what happened, there was no way to prove that a rape had happened, regardless of what the court said, and I was not entitled to any services provided to rape victims," Emily said. "And they [wouldn't] give me an opportunity to rebut what he said. They said if he said it didn't happen, that would be it."
Fortunately for her, she said, the man's lawyer appears to have instructed him not to cooperate with BYU's investigation.
Emily said she hadn't broken the Honor Code in either assault, but in the school's eyes, that would also have been determined by the defendant's word.
"Basically, the Honor Code violation would have been based on when I said no," she said. "If I had let him go far enough … I'd have gotten kicked out."
Brooke didn't want to report her rape if it meant she'd be forced to leave BYU. She was told she wouldn't be, she said — yet she was expelled after talking with the Honor Code Office and is barred from reapplying for two years.
Brooke agreed to the use of just her first name; without such permission, The Tribune generally does not identify sexual assault victims.
She was with a group of people in an off-campus apartment in February 2014, when they convinced her to try acid. She began to feel sick.
As her head started to spin, one of the men ordered her into a bedroom, saying: "That's the rule if you're going to be here." Two other men joined them in the bedroom as the man pulled off her pants.
Brooke recalled telling them, "No, stop." One of the men, a fellow BYU student, digitally raped her in front of the other two, she said. Then they left as the man pulled out a condom, Brooke said.
"He said, 'You can't leave.' He started having sex with me. When I tried to get up, he grabbed me from behind and pulled me down. He started pulling my hair ... and pushed my legs up. For like 45 minutes this went on."
Wearing nothing but a bra, Brooke grabbed a blanket and ran outside as the man and his friends chased her down the street. She ran to a stranger's apartment and banged on a door.
Officers arrived as she was passing out, Brooke said, and took her to a hospital. She did not face criminal charges for her drug use that night, though police learned about it in their rape investigation.
Her family, friends and the police pleaded with her to press charges. So did a friend of her rapist, who texted: "You need to press charges. I just got info out of him. ... You kept telling him no. He told me that's what you said the entire time."
Brooke wasn't prepared to be interrogated for a criminal trial, but she didn't want the man to remain at BYU, either. So she made a report to the school.
"When I called, I asked, 'Will I get kicked out of BYU for reporting this? I'm being honest with you, but I was doing drugs. Will I get kicked out?' They said no," she recalled.
Over the summer, a dean initiated a video conference with the Honor Code Office.
"I talked to them for two hours. … They asked me to tell them everything," Brooke said.
The two men said they'd pray about her case, she said.
The next day, she learned she'd been kicked out of school and couldn't reapply for two years.
"I thought, I'm reporting someone who raped someone," Brooke said. "Why would they punish me?"
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