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Why does virtually every American college and university have a code of conduct, and where did these codes come from? How can schools make sure their rules against alcohol, drugs or other behavior do not deter students from reporting incidents of rape or sexual assault?

PROVO — Brigham Young University has long taken pride in its Honor Code.

Created by students in 1949, it has made BYU one of the most distinctive college campuses in America, a place where premarital sex is proscribed, alcohol is prohibited both on and off campus, and even dress and grooming is regulated: shorts must reach the knee and men can’t wear their hair long.

BYU has held that these rules also make the 560-acre campus with just over 30,000 students one of the safest in the United States, and federal statistics bear this out. But when reports began surfacing last month that the fear of expulsion for breaking school rules had deterred some victims of sexual assault from going to the police, the narrative took a decidedly critical tone. Some suggested that the 140-year-old university even abandon the Honor Code.

That won’t happen, school officials said, but while crime rates generally and reports of sexual assault specifically are much lower at BYU than the national average, the university is taking steps to address the criticism that women don’t report sexual violence for fear of a possible investigation into whether they may have violated the Honor Code by entering a bedroom occupied by the opposite sex, drinking or using drugs, all violations of school rules.

"We're not perfect," BYU President Kevin Worthen said last month. "We don't claim to be perfect. We can be better." The school is assembling a committee to review how the university can improve the trust of students who need to report sexual misconduct. "This is important enough," Worthen said, "that we owe it to the community to say, 'This is the very best that we can do, and we've thought it through, and we've studied it through, and here's the changes that we're going to make.'"

Confronting assault

The critique of BYU comes at a time when universities nationwide are struggling to respond to rape and sexual assault on campus, a problem viewed by some as an epidemic. Others argue reports of increased sexual violence on campuses nationally are the result of heightened scrutiny. Either way, the phenomenon is often linked to a sexist and misogynistic fraternity culture that goes hand in hand with binge drinking.

Other religious colleges and universities that have similar codes of conduct have adopted amnesty clauses — immunity from consequences for breaking school rules at or near the time of the assault — so women and witnesses feel free to report a crime. BYU is studying that option.

"The study is underway, and information is already being gathered," BYU spokeswoman Carri Jenkins said. "BYU is committed to look at everything under discussion right now and study all aspects of our own process. Because we want to be as careful and thorough as possible, we have not yet determined a definitive timeline for the study."

What’s being lost in the discussion is the role codes of conduct have historically played in campus life, the fact that many religious schools have them and that these schools, statistically at least, are among the safest in the nation.

Forging character

The idea of an honor code goes back to the 1600s and the birth of the American university, a time in which college administrators saw themselves as parental figures, banning everything from “play at cards or dice,” to getting drunk, engaging in premarital sex, or even being disrespectful at church. Those who disobeyed might be expelled or even flogged.

By the late 1800s, many colleges had begun to adopt a philosophy of self-governance, but still saw a code of conduct as essential to the university’s role in “character formation, citizenship training and moral and ethical development.” Harvard President Charles Eliot argued that such a code should employ “a system of discipline which imposes on the individual himself the main responsibility for guiding his conduct.”

“I’ve never seen a school that didn’t have a code of conduct,” says Steven Healy, a managing partner of Margolis Healy, a campus safety consulting firm based in Burlington, Vermont. “It may be called something different, but it’s basically guidelines for expectations on community behavior.”

Today, very few large schools, even those with a religious heritage like Notre Dame, have rules similar to BYU. But virtually all colleges and universities still have a code of conduct that prohibits underage drinking, illicit drugs, cheating and criminal behavior, and many smaller Christian liberal arts schools have codes very similar to BYU’s.

“Strongly religious colleges aim to give their students the tools to succeed in the secular world and the strength to do so without compromising their faith,” explained Naomi Shaefer Riley in her book, “God on the Quad.”

BYU administrators and members of its Board of Trustees, who are leaders of the LDS Church, also believe the Honor Code protects students.

“BYU promotes the safety and well-being of its students through its Honor Code,” the school administration said in a statement last month, “which is a commitment to conduct that reflects the ideals and principles of The Church of Jesus Christ of Latter-day Saints."

Prevention and protection

There’s also some evidence that rules or policies like those in BYU’s Honor Code can curb high-risk drinking, dangerous sexual behavior and drug use, problems large enough that the U.S. government mandates guidelines that must be part of a school’s code of conduct or listed elsewhere in its published policies.

That’s in part because the number of sexual assaults at four-year colleges and universities has skyrocketed: Between 2008 and 2012, there was a 49 percent increase in reported sexual assaults on college campuses, and studies show much of that is linked to alcohol. In fact, a recent study of federal statistics and the Princeton Review’s lists of the top party colleges and most sober schools conducted by the independent college review online journal EDsmart found that campuses known for their alcohol-fueled party culture have 600 percent more reported cases of sexual assault.

A 2007 study on campus rape for the U.S. Department of Justice found 82 percent of victims of campus rape reported being too intoxicated to give or withhold their consent. Last year, the Journal of Studies on Alcohol and Drugs found that 15 percent of female students at one unnamed private college said they had been sexually attacked while incapacitated by drugs or alcohol while they were freshmen.

Healy, the campus safety consultant, said the federal government is well aware of the problem. The federal Drug-Free Schools and Communities Act requires colleges to have prevention programs to reduce high-risk or binge drinking.

Role of alcohol

“There’s a lot of research that shows the role of alcohol as a weapon in sexual assault,” said Healy, who has been the director of public safety at Princeton in New Jersey and the chief of police at Wellesley College in Massachusetts. “I don’t think there’s a lot of confusion in the field about how some offenders use alcohol as a weapon to incapacitate a potential victim.

“We also know alcohol is a key ingredient in a number of sexual misconduct and sexual assault complaints on college campuses, as it is off of campuses as well,” he added. “Clearly, institutions should be paying attention to their prevention program around alcohol use and also the potential detrimental impacts on the students’ academic career and long-term health.”

There is some evidence that morality-based codes of conduct, or at least schools guided by religious principles, are also helpful. EDsmart reviewed statistics for the schools on the Princeton Review’s list of the 20 least religious universities and found they report 3,400 percent more on-campus sexual assaults than schools on the most religious list.

EDsmart also reported that women in sororities are 74 percent more likely to be sexually assaulted, and more than half of all sexual assaults on campus happen between midnight and 6 a.m.

In other words, BYU’s Honor Code, theoretically at least, removes two of the biggest risk factors associated with sexual assault. It’s a dry campus, and fraternities and sororities are not allowed. Campus dorms also are gender segregated, and visitors of the opposite sex are never allowed in an off-campus student's bedroom; one on-campus dorm allows visitors of the opposite sex in bedrooms during an established open house only.

The BYU Honor Code goes a step further: visiting hours in campus dorms end by midnight except on Friday, when visitors can remain in lobbies until 1:30 a.m. Off-campus students are expected to maintain the same curfews.

But what happens when the very rules designed to protect students are used to hurt them, and the code of conduct becomes a tool for a predator to intimidate victims into silence?

Chilling effect?

In early April, Madi Barney, a 19-year-old, spoke at a campus rape awareness conference and said that a non-student raped her last fall in an off-campus apartment. She said when she reported the rape to BYU’s Title IX office, it shared that information with the school’s Honor Code office, which then launched its own investigation for other violations.

Since then, Barney created an online petition that now has more than 100,000 signatures calling for the school to provide amnesty to victims of sexual misconduct.

Other sexual assault victims have come forward too, saying they believe the alleged sharing of information between BYU’s Title IX office and Honor Code office creates a chilling effect that reduces the number of reported assaults.

Experts said the issue isn’t that BYU has an Honor Code, but whether the school will adopt amnesty, which has become the widespread response to a 2011 letter from the Office of Civil Rights, a division of the Department of Education, to all American colleges and universities outlining specific guidelines for responding to sexual assault allegations.

Federal effort

Universities have scrambled to comply with the letter’s guidelines, which the federal government enforces as part of Title IX, the 1972 federal gender equity law. If left unredressed, Title IX violations could jeopardize a school's federal funding, including the all-important Pell Grants issued to students.

"The 2011 letter definitely represents a significant sea change in some of the procedural guidelines enumerated by the Department of Education," Healy said. In 2014, the Obama administration also established a White House Task Force to Protect Students from Sexual Assault.

Healy said that Department of Education expectations have evolved, with increasingly complex requirements involving multiple statutes and regulations. "There’s a lot happening in the landscape and a lot for institutions to keep up with," he said.

The evolution generally includes some kind of limited amnesty. Few religious schools have a code of conduct as broad as BYU’s, but most that have a code also offer amnesty for drug or alcohol policy violations in cases where a student has been sexually assaulted or is in danger of drug overdose or alcohol poisoning.

What others do

Take, for example, George Fox University, a Christian school in Newberg, Oregon, with nearly 4,000 students. GFU prohibits students from drinking alcohol on or off campus, whether they are of drinking age or not. But GFU has an amnesty policy for students reporting sexual assault, whether they are victims or witnesses.

"If a sexual assault occurs while students are violating the alcohol policy, we tell them that the fact that you are assaulted is so serious that we aren’t even going to talk about the alcohol," says Mark Pothoff, the school’s dean of community life. "If it becomes apparent that the student has an alcohol problem, then we’ll work on getting them help, but then it is still not treated as a disciplinary matter."

Another Christian campus that works to balance campus standards with care for victims is Biola University in La Mirada, California.

"We care deeply for students who may have navigated this kind of terrible event," said Matthew Hooper, Biola’s associate dean of students, "and we want them to report it regardless of any violations of our community standards."

Once sexual assault is on the table, Hooper said, the entire focus shifts to treating the victim rather than sanctions.

Ranges of amnesty

Even the most conservative religious schools surveyed seemed to have some form of amnesty, though there was variation in how tightly those lines were drawn.

One of the more restrictive amnesty policies is laid out by Liberty University in Lynchburg, Virginia. Liberty offers the 14,000 students on its main campus a “self-reporting” exemption that allows a student to report a violation of the campus honor code within one week of the event. This policy applies to sexual assault as well, and victims have one week to contact school or law enforcement authorities.

In contrast, Biola’s Matthew Hooper says there is no time frame on Biola’s amnesty policy, in part because the school recognize that with something as traumatic as sexual assault, trauma can take weeks or months.

“We don’t put a time frame on it,” Hooper said. “It’s never too late to report. We don’t want victims to be isolated, unheard and uncared for. Our goal is to care for students who have been harmed.”

“This is a huge thing in law enforcement and higher ed right now,” Pothoff said. “We used to sit down with a victim and say, ‘Tell me exactly what happened.’” But what we now know about trauma is that they often don’t remember it that way.” In fact, Pothoff said, students may actually be better witnesses once they have had some time to sort through the trauma. Certainly, they are more likely to come forward.

Bystander immunity

Motivating the victim to come forward is only half the battle. Many of the Christian schools surveyed also had bystander amnesty provisions, sometimes called Good Samaritan rules.

At Gordon College, a 1,700-student Christian school in Massachusetts, a “bystander acting in good faith” will not be held accountable for drug or alcohol violations “at or near” the time of a sexual assault or related crime they report. Other small, religious liberal arts schools, including SVU, Calvin College, Concordia College and Wheaton College, have similar bystander language.

It was only five years ago that George Fox University formalized its bystander immunity policy, Pothoff said, but in practice that policy has been in place for decades and extends beyond witnessing an assault to medical concerns, such as drug overdoses. Pothoff recalls a case about 15 years ago where two students at a party recognized signs of alcohol poisoning in another student, called an ambulance and went with the victim to the hospital. Those students were not sanctioned for violating the conduct code. Pothoff says that exemption would also extend to a student who was serving as a designated driver at a party.

Maintaining conduct rules

A common thread in most amnesty provisions, however, is that the school is not obliged to pretend that nothing happened, but it will approach the violation of school rules in a non-punitive way.

Such limits to amnesty are actually found at secular universities as well. Johns Hopkins University in Baltimore offers amnesty in drug and alcohol cases where there are "repeated or serious medical emergencies" and that both individuals and fraternities may be required to take "corrective measures" in cases of ongoing abuse.

Biola’s policy states that it will "take into consideration" the importance of reporting sexual assault and “respond educationally rather than punitively” to conduct standards violations that are linked to crimes or emergencies.

“It doesn’t mean that we will act like nothing else happened,” Hooper said. “We will start a process with the student, but it will be focused on care and development rather than punishment.”

Some schools use the language of “education” and “accountability” in their amnesty policies, suggesting that a student may be counseled, or assigned a mentor, asked to keep a journal, or some other form of accountability to measure progress and growth.

Calvin College adds an “educational discussion” or “educational remedies” caveat to its drug and alcohol amnesty policy, and Wheaton College speaks of “educational options and accountability.”

“We try to make it redemptive, educational, restorative,” says Mark Pothoff at George Fox University. “We try not to make them punitive.”

Messy process

Both Hooper and Pothoff emphasized that there is no “cookie-cutter solution” to these kinds of challenges. Every case is different, they note.

In many cases a victim will not want to press charges immediately. A few years ago, Pothoff said GFU changed its policies to “give the survivor control in the process.” If pushed to press charges, he said, “some victims feel like they are being re-victimized.”

In such cases, Pothoff said, they may just put the case in a sealed file. Later, if the same alleged perpetrator’s name comes up in another case, they may approach the first victim to see if, with the new corroboration, she may want to move forward now.

Healy, the campus safety consultant, said, “There’s a lot of guidance out there with respect to the chilling effect that pursuing a lesser code violation could have on someone who wants to report an incident of sexual or gender violence. I don’t think there’s a lot of debate out there.”

The Deseret News previously reported how Southern Virginia University, a Mormon-oriented private school in Buena Vista, Virginia, that is not owned by the LDS Church, adopted an amnesty policy last year.

Barney, the student who started the petition calling for BYU to adopt amnesty, has said she will not return to BYU in the fall. She also has filed a federal complaint against BYU with the Office of Civil Rights.

The Office of Civil Rights has not opened an investigation of BYU, said Dorie Nolt, a spokeswoman for the Department of Education.