Coverage of Campus Sexual Assault at BYU
By Jessica Miller and Erin Alberty, Originally published by The Salt Lake Tribune on April 15, 2016
Prosecutors say Brigham Young University is jeopardizing a pending rape prosecution because the school refuses to delay its Honor Code case against the alleged victim.
Deputy Utah County Attorney Craig Johnson brought charges against Madi Barney's alleged attacker and said he implored school officials to consider that their Honor Code investigation of her conduct would further victimize her. He asked them to postpone their investigation until the conclusion of the trial, originally planned for next month.
He said they declined, and have barred Barney from registering for future classes until she complies with the school's investigation.
That could make it difficult for her to stay in Utah and participate in the rape case, Johnson said.
"When we have a victim that is going to be revictimized any time she talks about the rape — it's unfortunate that BYU is holding her schooling hostage until she comes to meet with them," Johnson said. "And we, as prosecutors, prefer she doesn't meet with them."
The Honor Code probe began after a Utah County sheriff's deputy, a friend of the accused attacker, gave BYU a copy of the police case file. Johnson said he has stressed to school officials that the file is "paperwork that lawfully they shouldn't have."
Prosecutors charged the rape defendant and the deputy with retaliating against a witness, but the cases have since been dismissed.
Barney, 19, reported to Provo police that she was raped in her off-campus apartment by a man last September. About two months later, court records said, she was contacted by staff at the BYU Honor Code and Title IX offices, who told her they were given a copy of the police case file. Campus Title IX offices are charged with enforcing a federal law that guarantees students don't face hostility on campus based on their sex.
Information in the file — which included at least 20 pages of detailed statements and a report on her sexual assault medical exam — implicated Barney in violations of BYU's Honor Code, according to court records. The code is a catalog of rules, such as a dress code, a ban on alcohol and other prohibitions for students at the private school, owned by The Church of Jesus Christ of Latter-day Saints.
Barney was asked to participate in the school's evaluation of her actions. Johnson and Barney's attorney, Liesel LeCates, both said school lawyers rebuffed their requests to suspend their process in the interest of the criminal case.
LeCates said the school's attorneys claimed Honor Code action must be taken right away to comply with federal law. LeCates acknowledged Title IX calls for swift action, but said that to use the federal provision against a crime victim in BYU's Honor Code process "goes against the legislative intent of Title IX."
"The reason that exists is to keep perpetrators from staying on campus ... when criminal proceedings can take years," LeCates said. Instead, she said BYU is "taking that and using it against [a victim]."
University spokeswoman Carri Jenkins said Thursday that Title IX allows for universities to delay an investigation "while the police are gathering evidence in a related criminal case." But she could not comment on Barney's case or why no delay was granted after Johnson's request.
She emphasized that a Title IX investigation is separate and independent from the Honor Code process, and that a student would "never be referred to the Honor Code office for being a victim of sexual assault."
But multiple BYU students investigated by the school's Honor Code Office have disagreed, saying they were scrutinized as a result of reporting a sex crime.
'Once too many'
After investigating how BYU obtained the police file, prosecutors charged the defendant in the rape case, who is not a BYU student, and his friend, Utah County Sheriff's deputy Edwin Randolph, with retaliating against a witness. The third-degree felony carries a maximum penalty of up to five years in prison.
Prosecutors say that after the rape defendant bailed out of jail, he gave a copy of his case file to Randolph. The deputy took it to BYU officials, court papers said, knowing that the victim could be disciplined by the Honor Code Office for details in the report.
LeCates said the school's attorneys told her that the Honor Code Office does not have to disregard "fruit of the poisonous tree," a legal standard that can block criminal prosecutors from using evidence that was not lawfully obtained.
Both Johnson and Utah County Attorney Jeff Buhman said they are unaware of other witness retaliation cases involving Honor Code punishment. It's also the first time the Honor Code Office has potentially interfered with a prosecution, they said.
"Certainly any time it happens once, it's once too many," Johnson said. "... Despite this problem with the Honor Code Office, we at the county attorney's office would hope this would not dissuade future victims from coming forward and reporting. The biggest issue is getting rapists off the street, and I'm proud of this victim for standing up for herself and future victims."
At a court hearing for the rape defendant, prosecutors played a recorded police interview with Randolph, who said he gave Barney's report to the Honor Code Office.
Randolph, who has coached track at BYU as well as working as a sheriff's deputy, said he consulted with a friend who previously worked at the Honor Code Office. He said that friend encouraged him to give the report to code enforcers.
Randolph also seemed to believe that law enforcement officers were obligated to submit records of Honor Code violations to BYU, testified Provo police Detective Martin Webb.
"Mr. Randolph mentioned that he worked for BYU, and ... he said even I would have to, or we would have to turn [the records] in — I assume he meant it as law enforcement — to BYU," Webb said in the hearing.
In the recorded interview, Randolph said he didn't believe the rape allegation and that the police report showed Barney's behavior was "unacceptable" for a BYU student.
"I'm not here to judge her, but I think, she's in school here and she's screwing around," Randolph said. "When I was [a BYU student], we had guys get in trouble for this stuff, so I think it's a problem."
Randolph and his attorney did not immediately comment. A trial in the rape case was scheduled for next month, but it was delayed due to questions as to the defendant's competency.
Neither man faces a witness retaliation charge. The charge against the defendant was dismissed last month after a preliminary hearing, during which Judge Darold McDade ruled there was not enough evidence that the man knew that Randolph would use the case file against Barney.
It was Buhman, the county attorney, who asked a judge to dismiss Randolph's case.
Buhman said he opted to seek the dismissal after reviewing information gleaned from an internal affairs investigation conducted by the sheriff's office. He would not disclose what the investigation found — in fact, he said Johnson, his own prosecutor, was not allowed to know what facts led to the dismissal.
"It was fairly clear to me that there was not sufficient evidence to prosecute Mr. Randolph," the county attorney said. "... This was a very rare case that I was privy to information that a prosecutor could not have that was sufficiently important."
Buhman said he was able to see the information because he also oversees the county's civil division. He said that while the information would not be allowed in court, he knew it was true and believed dismissing the case was the right thing to do.
The case was dismissed without prejudice, which means it could be refiled. But Johnson said he's not planning to refile the charge.
The defense attorney in the rape defendant's case has noted that the case against Randolph appeared to be substantial.
"There's plenty of evidence that others, namely Edwin Randolph [and his friends], caused harm," defense attorney Greg Stewart said during his closing argument at the preliminary hearing in the rape case. "... If the state wants to prosecute these others, they're free to do so. It seems like they'd gone down that path and for whatever reasons, political or otherwise, they've chosen not to."
Randolph is still an employee in the sheriff's office jail division, according to Deputy Chief Darin Durfey. He said an internal investigation showed that Randolph violated work policies, but did not commit any crimes. He received a reprimand and was returned to duty after being on paid leave.