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BYU under investigation by Department of Education for handling of sexual assault reports

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PROVO — The Office of Civil Rights has launched an investigation into BYU's process for responding to reports of sexual assault, the university announced Monday.

The decision could put at risk BYU's ability to provide federal financial aid to its students as well as other federal funding, if investigators find the school is out of compliance with Title IX guidelines set by the U.S. Department of Education. However, no school has ever lost federal funds. Instead, if found in violation of Title IX, schools work with investigators to come into compliance.

BYU spokeswoman Carri Jenkins said the school learned about the investigation on Thursday. The Office of Civil Rights does not provide information on cases under investigation.

BYU is the third Utah school under federal investigation for its handling of sexual assault cases. An investigation at Westminster College began in January. Federal investigators are scheduled to visit the University of Utah in the fall. The Office of Civil Rights had 260 open investigations at 202 U.S. colleges and universities as of July 27.

Jenkins said the investigation stems from a complaint filed April 18, the same day a BYU student has said she filed one. Nineteen-year-old Madi Barney said she and other sexual assault survivors don't feel safe following federal guidelines and reporting to BYU's Title IX Office because it shares information with the school's Honor Code Office.

Rape victims have said they've become subjects of honor code investigations for their own alleged misconduct at the time of an assault, such as drinking alcohol, taking illegal drugs or engaging in extramarital consensual sex. Barney said that after she reported her rape and refused to participate in an Honor Code Office investigation of her, the school placed a hold on her classes.

Survivors say the Honor Code Office creates a chilling effect on reporting at BYU.

Barney launched an online petition that now has more than 115,000 signatures calling for the school to provide amnesty to victims of sexual misconduct. In the petition, she wrote, "I want victims of sexual violence at BYU to have an immunity clause from the Honor Code so that they don’t feel afraid to report."

Barney did not immediately return a request for comment Monday night.

The investigations

The 260 investigations underway by the Office of Civil Rights is a massive increase over 2009, when the office had 20 open investigations. The increase is the result of a policy shift aimed at what many observers are describing as an epidemic of sexual assault on U.S. college campuses. In 2011, the Department of Education announced it would apply Title IX to cases of sexual assault.

BYU's honor code attempts to remove two of the biggest risk factors associated with sexual assault — alcohol and fraternities and sororities — and the school's typically low crime statistics reflect that. The 2011 letter instituting the new federal guidelines had a suggestion for schools that enforce honor codes: Tell sexual assault survivors that an investigation of conduct code violations would be handled separately from an investigation of the assault. Jenkins has said BYU has followed that suggestion closely in an effort to comply with Title IX.

Each BYU student signs the honor code before enrollment.

BYU President Kevin J. Worthen said in April that BYU would review its procedures and structure, including what, if any, information should be shared between its Title IX office and Honor Code Office. He also acknowledged that some students who survive sexual assaults fear reporting the crimes if an investigation by the Honor Code Office would find evidence of drug or alcohol use by the victim or another violation that could lead to suspension or expulsion.

"We're not perfect," he said. "We don't claim to be perfect. We can be better. This is important enough 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.'"

He created a BYU Advisory Council on Campus Response to Sexual Assault in May to study and improve the university’s sexual assault reporting process.

The council will evaluate the impact the OCR investigation may have on its own study, said the BYU study's leader, Janet S. Scharman, vice president of Student Life.

"Our continued emphasis will be on providing our students with the support that they need, as well as an understanding of the Title IX process," Scharman said in the school's press release. "We take any report of sexual assault extremely seriously, with our first priority being the welfare and safety of our students. Our goal in every situation is to give students the support that they need and safeguard their educational environment."

In mid-May, the council launched a website to obtain feedback about sexual assault and sexual assault reporting. The website gathered more than 3,000 comments in the first 30 days.

The council's goal is to eliminate sexual assault on campus and "determine how to better handle the reporting process for victims of sexual assault as sensitively and compassionately as possible," Monday's press release said.

What's next?

No timeline has been established for the BYU council to complete its study. Federal investigations can take several years. The average federal investigation finished in 2015 took 1,032 days to complete, according to a report from The Yale Law Journal.

After accepting a complaint, federal investigators generally visit campus and request information about policies to determine whether a school is in violation of guidelines on sexual violence, including whether it provides prompt and equitable responses to allegations. Schools found to be in violation typically take steps to improve sexual violence prevention and case handling.

At BYU's request, the Utah Department of Public Safety is investigating how BYU Police Department shares information with campus entities.

Jenkins has said amnesty is on the table for the BYU council.

Amnesty clauses are sweeping the country. They encourage students to report sexual misconduct by pledging that a school will not punish victims or witnesses who step forward for their own alcohol or drug use or other conduct violations. New York passed a law last year that requires every college and university in the state to offer amnesty. Wisconsin Gov. Scott Walker signed an amnesty bill into law in April.

Last year, Southern Virginia University added an amnesty clause to its honor code, which is similar to BYU's, after an SVU student filed a complaint with the Office of Civil Rights against an administrator. The administrator was cleared, but after federal investigators visited the campus in March 2015 they ruled that SVU was out of compliance with Title IX guidelines surrounding sexual misconduct policies. SVU created a Title IX Office and the investigation was closed.

SVU also posted its amnesty clause on its website: "To encourage reporting of Title IX violations, anyone who reports sexual misconduct, either as a witness or complainant, will not be subject to disciplinary action by the university for their own personal use of alcohol or drugs at or near the time of the incident."

SVU students say the clause, and efforts to educate students about sexual assault and Title IX, have made the campus safer.

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Tad Walch


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