BYU deserves a tremendous amount of credit for how it has handled the sexual assault controversy that began last year. However, very serious questions remain about why BYU was willing to accept documents it was illegally provided, and whether that practice continues. Until this has been addressed, Honor Code enforcement should be left to those with Priesthood authority - Bishops and Stake Presidents.
It's been a little under a year since the ill-fated decision by a BYU employee to say "we do not apologize for having an Honor Code" in response to a student question at a sexual assault awareness meeting. This meeting wasn't the greatest place to point this out (in that context, the statement could be read to imply that sexual assault is the result of Honor Code infractions), but the statement wasn't necessarily wrong. After all, BYU shouldn't apologize for having an Honor Code. But that statement was only the beginning. As this incident has evolved, information that has come to light casts serious doubt on BYU's ability to enforce the Honor Code in a way consistent with its values.
The meeting where the BYU employee made this comment became so contentious that it ended early. The meeting also sparked a national controversy and led to intense media scrutiny of BYU's practices for dealing with sexual assault victims. Utah media, especially The Salt Lake Tribune, began talking to BYU sexual assault victims.
Enter Madi Barney.
In September 2015, while studying at BYU, Barney was sexually assaulted by a 39-year-old man. Both Barney's attorney and the prosecutor had told her not to speak with anyone about her case, since there was possible criminal action pending against her accused rapist. Two months later, Barney heard from the BYU Honor Code Office. They wanted her to come in and answer some questions about her sexual assault— and any potential Honor Code violations that had occurred. Barney responded by explaining that she wasn't allowed to talk about it.
BYU didn't consider this a valid excuse, and this led to a standoff between Barney and the University. Barney wouldn't talk, and BYU blocked her ability to register for classes until she chose to comply. It was during this standoff that the contentious sexual assault meeting— and the resulting media scrutiny— occurred.
Although the University's behavior in this case wasn't great, it becomes even more disappointing when you examine the source of BYU's information. Much of the information they obtained about Barney was from a police report illegally given to a BYU Title IX office employee by a Utah police officer.
The police officer in question— reportedly a friend of the accused rapist— didn't believe Barney's story. He told the BYU employee (according to evidence collected by a Provo detective and released by The Salt Lake Tribune) that he thought Barney "just wanted to screw up the suspect's life." Investigative documents from the incident also show that this officer gave BYU the report hoping they would get more information out of Barney. Apparently, her account to the police did not include any details of Honor Code infractions that this officer believed had occurred.
Not only that, but documents suggest that the BYU employee who received the documents warned him that he was likely breaking the law by giving them to the University. The officer didn't change his mind, and BYU took the documents and acted on them anyway. This wasn't an oversight. BYU's determination to catch a student was powerful enough that they were willing to knowingly help someone break the law in order to enforce the Honor Code. (The police officer involved in this incident was charged with witness retaliation, though those charges were later dropped.)
The number of records the BYU PD were requesting from Spillman was so high that it led to complaints from neighboring police departments. The chief of police from both Provo and BYU asked the state of Utah to open an investigation, and the state agreed. The state's investigation into BYU police is still ongoing.
At the time this information came to light, the Provo Police Department was very clear about its concerns: "We use Spillman to safeguard those records.... there are legitimate uses by other agencies for those, but it’s hard for us to understand why a neighboring agency would need thousands of our records...Maybe there’s a logical explanation for that (usage), but I don’t know what that would be..." Further, Utah media has continued to request BYU's Spillman access numbers, only to find that their access has dropped by more than half after the state of Utah opened its investigation.
And that's where we are right now. BYU is still fighting the open-access records request for communications between the Honor Code Office and the BYU PD in court. We are months (if not years) away from a resolution on that lawsuit.
Therefore, I'm calling for BYU to be relieved of its Honor Code enforcement duties, and for those duties to be handled by Priesthood channels— just like we handle temple recommends.
Let me be clear: I am impressed by the way BYU has responded to the sexual assault aspect of this scandal. The sexual assault committee that BYU put together, which included professors who had been openly critical of BYU, did incredible work. The report they put together did not sugarcoat the problem. It meant a lot to me to be reading about our problems in the context of our BYU community trying to be better, rather than having to read about them in the Salt Lake Tribune. The sexual assault committee that BYU put together has my complete confidence.
I wasn't kidding when I said in the introduction to this article that BYU deserved a tremendous amount of credit for its handling of this controversy. It takes courage to be willing to take an honest look at yourself to see potential problems, and that's what the committee did. I hope BYU administration sees that committee as a model for how to deal with future controversies.
It's also worth noting that as a result of this committee's work, many of these incidents wouldn't have occurred today. BYU, following that committee's recommendations, has established both a separation between the Title IX office and the Honor Code Office as well as an amnesty provision for sexual assault victims.
However, many of the issues that have arisen during this controversy (such as the University's apparently inappropriate relationship with law enforcement) weren't necessarily unique sexual assault issues, and thus weren't within the scope of that committee's work. Thus there was no direct investigation of how the University should prevent these incidents from occurring in cases where alleged Honor Code violations occurred, but sexual assault was not involved.
Thus we are still left without answers to some very serious questions. Why are University employees breaking the law - or at least helping others to break it— in an effort to enforce the Honor Code? How often does the University investigate students, and what restrictions exist on what the University can and cannot do? How often, really, does this type of inappropriate behavior by the University occur?
I recognize the difficult position that University officials are in. A wise administrator once encouraged a group of incoming freshman to understand that "everyone at BYU is on scholarship" because the tithing funds of the church are used to support the University. And I recognize the need to protect those funds.
But it must follow that part of protecting those funds includes making sure that the University's administration, not just its students, conduct themselves in a manner appropriate for a tithing-funded institution.
I understand that some aspects of the Honor Code (such as academic honesty), must remain the purview of BYU, just as they would be at any other school. However, I question the need for a separate institution— such as the Honor Code Office— to investigate and enforce the ecclesiastical aspects of a code of conduct in order to protect the tithing funds of the church. Many of our most sacred ordinances— including ordinances performed in the temple— are protected only by priesthood leaders operating under the authority of priesthood keys. Should BYU be any different?
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| Copyright Brigham Young University, 2008 |
It's been a little under a year since the ill-fated decision by a BYU employee to say "we do not apologize for having an Honor Code" in response to a student question at a sexual assault awareness meeting. This meeting wasn't the greatest place to point this out (in that context, the statement could be read to imply that sexual assault is the result of Honor Code infractions), but the statement wasn't necessarily wrong. After all, BYU shouldn't apologize for having an Honor Code. But that statement was only the beginning. As this incident has evolved, information that has come to light casts serious doubt on BYU's ability to enforce the Honor Code in a way consistent with its values.
The meeting where the BYU employee made this comment became so contentious that it ended early. The meeting also sparked a national controversy and led to intense media scrutiny of BYU's practices for dealing with sexual assault victims. Utah media, especially The Salt Lake Tribune, began talking to BYU sexual assault victims.
Enter Madi Barney.
In September 2015, while studying at BYU, Barney was sexually assaulted by a 39-year-old man. Both Barney's attorney and the prosecutor had told her not to speak with anyone about her case, since there was possible criminal action pending against her accused rapist. Two months later, Barney heard from the BYU Honor Code Office. They wanted her to come in and answer some questions about her sexual assault— and any potential Honor Code violations that had occurred. Barney responded by explaining that she wasn't allowed to talk about it.
BYU didn't consider this a valid excuse, and this led to a standoff between Barney and the University. Barney wouldn't talk, and BYU blocked her ability to register for classes until she chose to comply. It was during this standoff that the contentious sexual assault meeting— and the resulting media scrutiny— occurred.
Although the University's behavior in this case wasn't great, it becomes even more disappointing when you examine the source of BYU's information. Much of the information they obtained about Barney was from a police report illegally given to a BYU Title IX office employee by a Utah police officer.
The police officer in question— reportedly a friend of the accused rapist— didn't believe Barney's story. He told the BYU employee (according to evidence collected by a Provo detective and released by The Salt Lake Tribune) that he thought Barney "just wanted to screw up the suspect's life." Investigative documents from the incident also show that this officer gave BYU the report hoping they would get more information out of Barney. Apparently, her account to the police did not include any details of Honor Code infractions that this officer believed had occurred.
Not only that, but documents suggest that the BYU employee who received the documents warned him that he was likely breaking the law by giving them to the University. The officer didn't change his mind, and BYU took the documents and acted on them anyway. This wasn't an oversight. BYU's determination to catch a student was powerful enough that they were willing to knowingly help someone break the law in order to enforce the Honor Code. (The police officer involved in this incident was charged with witness retaliation, though those charges were later dropped.)
Around this time, another student who had been investigated by the school after reporting her sexual assault, Madeline MacDonald, submitted a legal request to see what information the school might have about her. The results were surprising. Although BYU did not allow her to leave with copies of the records, FERPA required BYU to at least provide her with access to the documents. Her 87-page file included a variety of information which she later described to the Salt Lake Tribune. The most startling evidence included pictures of another student's phone screen showing a text message conversation she'd had with that student.
You can certainly be forgiven for wondering whether the Salt Lake Tribune cherry-picked these examples in an effort to make BYU look bad. Unfortunately, the evidence suggests that this isn't the case.
After this whole incident came to light, Utah news media began investigating BYU's relationship with law enforcement. After a few months, The Salt Lake Tribune claimed to have obtained documents showing that the BYU Police department used its access to Utah County's police database— called "Spillman"— to give the Honor Code Office even more information on Barney's case.
Some background is necessary here. All Utah County police departments put information into the same database—"Spillman"— so that they can coordinate for law enforcement purposes. In many cases, Spillman contains information that is (obviously) legally protected. Utah, however, does have an open-access records law. (Nearly every government does. The federal government's version is called the Freedom of Information Act.) This means that news media can submit a request to a government agency for any information that isn't legally protected.
The BYU Police department has generally argued that it is a quasi-government agency. This is because that means they are legally protected by a liability shield designed to protect the state government law enforcement agencies. The BYU police have always, therefore, complied with open access records requests.
All that changed during this incident. When The Salt Lake Tribune submitted a request asking the police department for a copy of communications between the BYU Police and the Honor Code Office (in an effort to determine whether BYU's use of the police database was unique to Barney's case), the newspaper heard back from BYU's attorney explaining that the University wouldn't comply. In response to media requests, BYU explained that it had never considered itself bound by the open-access records law, and that their prior obedience to the law had always been "voluntary."
This is only circumstantial evidence. We don't know if the BYU police have been giving the Honor Code Office access to protected police files from other police departments in Utah county on a regular basis. But the evidence certainly doesn't look good. And it doesn't stop there. Utah media submitted requests to the county database for the number of records that BYU police had been accessing.
The BYU Police department has generally argued that it is a quasi-government agency. This is because that means they are legally protected by a liability shield designed to protect the state government law enforcement agencies. The BYU police have always, therefore, complied with open access records requests.
All that changed during this incident. When The Salt Lake Tribune submitted a request asking the police department for a copy of communications between the BYU Police and the Honor Code Office (in an effort to determine whether BYU's use of the police database was unique to Barney's case), the newspaper heard back from BYU's attorney explaining that the University wouldn't comply. In response to media requests, BYU explained that it had never considered itself bound by the open-access records law, and that their prior obedience to the law had always been "voluntary."
This is only circumstantial evidence. We don't know if the BYU police have been giving the Honor Code Office access to protected police files from other police departments in Utah county on a regular basis. But the evidence certainly doesn't look good. And it doesn't stop there. Utah media submitted requests to the county database for the number of records that BYU police had been accessing.
The number of records the BYU PD were requesting from Spillman was so high that it led to complaints from neighboring police departments. The chief of police from both Provo and BYU asked the state of Utah to open an investigation, and the state agreed. The state's investigation into BYU police is still ongoing.
At the time this information came to light, the Provo Police Department was very clear about its concerns: "We use Spillman to safeguard those records.... there are legitimate uses by other agencies for those, but it’s hard for us to understand why a neighboring agency would need thousands of our records...Maybe there’s a logical explanation for that (usage), but I don’t know what that would be..." Further, Utah media has continued to request BYU's Spillman access numbers, only to find that their access has dropped by more than half after the state of Utah opened its investigation.
And that's where we are right now. BYU is still fighting the open-access records request for communications between the Honor Code Office and the BYU PD in court. We are months (if not years) away from a resolution on that lawsuit.
Therefore, I'm calling for BYU to be relieved of its Honor Code enforcement duties, and for those duties to be handled by Priesthood channels— just like we handle temple recommends.
Let me be clear: I am impressed by the way BYU has responded to the sexual assault aspect of this scandal. The sexual assault committee that BYU put together, which included professors who had been openly critical of BYU, did incredible work. The report they put together did not sugarcoat the problem. It meant a lot to me to be reading about our problems in the context of our BYU community trying to be better, rather than having to read about them in the Salt Lake Tribune. The sexual assault committee that BYU put together has my complete confidence.
I wasn't kidding when I said in the introduction to this article that BYU deserved a tremendous amount of credit for its handling of this controversy. It takes courage to be willing to take an honest look at yourself to see potential problems, and that's what the committee did. I hope BYU administration sees that committee as a model for how to deal with future controversies.
It's also worth noting that as a result of this committee's work, many of these incidents wouldn't have occurred today. BYU, following that committee's recommendations, has established both a separation between the Title IX office and the Honor Code Office as well as an amnesty provision for sexual assault victims.
However, many of the issues that have arisen during this controversy (such as the University's apparently inappropriate relationship with law enforcement) weren't necessarily unique sexual assault issues, and thus weren't within the scope of that committee's work. Thus there was no direct investigation of how the University should prevent these incidents from occurring in cases where alleged Honor Code violations occurred, but sexual assault was not involved.
Thus we are still left without answers to some very serious questions. Why are University employees breaking the law - or at least helping others to break it— in an effort to enforce the Honor Code? How often does the University investigate students, and what restrictions exist on what the University can and cannot do? How often, really, does this type of inappropriate behavior by the University occur?
I recognize the difficult position that University officials are in. A wise administrator once encouraged a group of incoming freshman to understand that "everyone at BYU is on scholarship" because the tithing funds of the church are used to support the University. And I recognize the need to protect those funds.
But it must follow that part of protecting those funds includes making sure that the University's administration, not just its students, conduct themselves in a manner appropriate for a tithing-funded institution.
I understand that some aspects of the Honor Code (such as academic honesty), must remain the purview of BYU, just as they would be at any other school. However, I question the need for a separate institution— such as the Honor Code Office— to investigate and enforce the ecclesiastical aspects of a code of conduct in order to protect the tithing funds of the church. Many of our most sacred ordinances— including ordinances performed in the temple— are protected only by priesthood leaders operating under the authority of priesthood keys. Should BYU be any different?
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