I have followed the BYU Title IX fiasco, i.e. story, with interest. That’s about the most neutral way I can put it.

I should probably make two things clear from the outset. The first thing is that I’m not a fan of using Title IX to adjudicate sexual assault cases on college campuses. There’s a reason rape is a crime, and there’s also a reason criminals have rights. Does this mean that rapists sometimes go unpunished? Yes. Burglars, muggers, drug dealers, and even murderers also sometimes go unpunished. Unfortunately, that’s what happens when citizens have rights and governments have the burden of proving that you committed a crime before they throw you in prison or otherwise ruin your life. Private institutions can do what they like, of course—but Title IX isn’t a private institution. It’s the law. That’s worth remembering. I believe that sexual assault cases should be handled by the criminal justice system. But I also believe that BYU has moral obligations to its students who are victims of sexual assault. If its failure to fulfill these obligations happens to violate Title IX, that is one thing. We could argue all day about Title IX. But that’s not on my list of things to do today.

The second thing I’m going to admit is that I’m not a fan of BYU’s Honor Code. It’s not that I think the standards are too high. To be sure, I think some of them—e.g. the prohibition on beards and the micromanagement of students’ sartorial choices—are too silly, but BYU is a private institution and can do what it likes. (I’m a big fan of private institutions being allowed to do what they like.) My argument is not with the standards themselves but with the perverse incentives and disincentives that strict enforcement of the Honor Code creates. If you need an ecclesiastical endorsement signed by your bishop to remain in school, it can discourage you from seeking pastoral care when you may need it most. And if you’ve been sexually assaulted and the story of your sexual assault involves an Honor Code violation on your part (even tangentially), or if a violation may be inferred from the circumstances (even without evidence), it can put you in the position of choosing to press charges against your rapist or to stay in school. That’s not a position anyone should have to be in. It’s reasonable to argue that a student signs a contract and should be expected to live up to the contract. I can’t argue with that. My argument is with the terms of the contract itself.

I agree that a lot of the discussion around this topic has been unproductive, due to people’s visceral instincts to slam BYU (and by extension the church) or to defend BYU (and by extension the church). And as many feelings and thoughts as I have on this issue, I’ve not been eager to talk about it publicly because I don’t have any desire to contribute to unproductive discussions. (Lately, I mean.) I understand the reluctance to alter BYU’s Honor Code, which appears to have served BYU and most of its students just fine for decades, and specifically reluctance to make exceptions, even for alleged victims. But there are two arguments against making such exceptions that need to be addressed.

It is interesting how many people argue that the Honor Code dramatically reduces a BYU student’s risk of being raped. (A representative example can be found here.) It is true that there are some high-risk situations that a person following the Honor Code would be unlikely to find themselves in. I’m the first person to advise young women—or anyone, really—against deliberately intoxicating themselves. You cannot argue that remaining sober does not put you at a distinct advantage in life; you are at far lower risk of being a victim of anything if you aren’t unconscious or similarly impaired. As victim-blamey as some people think that is, I will say that all day long and not apologize for it. (If that sounds familiar, I learned from the best.) However, no one should be under the illusion that refraining from alcohol or other mind-altering substances—or following any aspect of the Honor Code whatsoever–keeps you “safe” from sexual assault. Plenty of people are raped while sober, in their own apartments, in the middle of the day, in places and at times and under circumstances where they “should” have been perfectly safe. The Honor Code is in no way a protection against being raped, nor is it intended to be. The Honor Code is designed to discourage you from doing x, y, z (and probably a-k and m, p, t & w) and to cultivate a wholesome environment and image for BYU. Period. That is a fine goal in and of itself. But it was not intended nor designed to protect anyone from sexual assault—and it won’t.

What is really interesting is that many of the same people who argue that the Honor Code makes BYU students safe(r) from rape also argue that giving rape victims Honor Code immunity will encourage people to make false accusations of rape in order to avoid punishment for consensual sex. Unlike the risk of being raped—which isn’t particularly affected by the Honor Code—the risk of being falsely accused of rape actually is significantly reduced by following the Honor Code. If you never have consensual sex with someone, it is highly unlikely someone will claim that your non-existent consensual sex was rape in order to avoid getting punished for something that never happened. But what are people worried about, if rape victims receive Honor Code immunity? False accusations against students who engaged in consensual sex. So what happened to the ”safety” of the Honor Code? It is hard not to infer that rape prevention is meant to be primarily a burden on women.

Rape, of course, is not explicitly mentioned in the Honor Code. But people take what is mentioned in the Honor Code and apply it exclusively in terms of a woman’s responsibility to avoid her own rape. Imagine if the well-intentioned advice about preventing rape went like this:

Don’t drink alcohol. Alcohol consumption is highly correlated with sexual assault. You are more likely to rape someone if your judgment has been impaired by alcohol. Your inhibitions will be lowered, and you may not be able to tell if your partner is fully willing or not.

Don’t be alone with a woman. Whether in your own apartment or hers, or in the back of a car in a secluded location, it is never safe to be alone with a member of the opposite sex. You are much more likely to rape someone when there aren’t any witnesses.

Be aware of the signals you are sending. Are you communicating clearly with your partner that you intend to have sex with her, regardless of what her personal wishes are? Or are you giving her the impression, even inadvertently, that you care about her feelings and that she can trust you? Be clear about your expectations. Don’t act like you’re not going to rape her and then change your mind halfway through.

If you’re thinking, “This is ridiculous. Rapists aren’t going to pay any attention to this advice,” you’re beginning to see my point, even if you don’t know it yet.

The Honor Code shouldn’t be seen as a “safety” issue at all. Whether or not it was “smart” or “showed good judgment” to drink or do drugs has no bearing on whether or not someone was in fact raped. I would advise everyone I know to do what they can to stay out of prison, as there’s no question that staying out of prison significantly reduces your chances of being sexually assaulted. However, being raped isn’t something that you should just “expect” to happen when you are incarcerated because hey, don’t do the crime if you can’t do the time. I don’t care what you’re in prison for, or whether you’re guilty or innocent: other people don’t get to rape you because you’re in prison. Rape is a crime, and it’s evil. It is not a “natural consequence” of your own poor choices, even if your “poor choices” include felonies. Your risk of sexual assault is directly related not to your compliance with the Honor Code but your proximity to someone who is willing to rape you. People should always be safe from sexual assault because sexual assault should never happen.

But of course it does. Not because victims do something wrong or stupid or inadvisable, but because rapists do something wrong, i.e. they rape people. In a perfect world, people should be able to go anywhere or do anything without fear of being assaulted, robbed, murdered, or harmed in any way, but that is not the world we live in. So does it make sense to take precautions in an imperfect world? Yes. Please do take precautions, by all means. Don’t tattoo your Social Security number on your forehead. Don’t give your credit card numbers to Nigerian royalty. Keep your drink in sight at all times. Avoid driving at night after the bars close. Never follow a hippie to a second location. But negotiating risk—deciding for oneself which risks one is willing to take under what circumstances–is not the same as being responsible for creating risk. People have the right to walk alone at night, even in a bad part of town, without being assaulted. That is a right because assault is a crime. We think differently about rape than we do about other crimes because of the emotions and vulnerabilities associated with sex. In some ways this is proper; rape is an especially heinous crime because of the emotions and vulnerabilities associated with sex. However, we must not let our treatment of rape victims be influenced by cultural attitudes and beliefs about sex that may be false, unhealthy, or otherwise harmful. Unfortunately, women are more likely to be victims both of rape and of harmful cultural attitudes about sex. And that is especially bad news for Mormon women at BYU.

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