At BYU, a New Confrontation in the Campus Sexual Assault Debates
By Kristine Haglund | May 24, 2016
The process for adjudicating sexual assault cases on college campuses has sparked widespread debate across the country. A new dimension of those conversations, involving a complicated relationship between religious practice and the non-discrimination provisions of Title IX, emerged recently at Brigham Young University, the flagship school of the Church of Jesus Christ of Latter-day Saints. Last month, the Salt Lake Tribune reported that several BYU students allege the administration mistreated them after they reported sexual assault. All said their reporting prompted the university to investigate them for potential Honor Code violations. Breaking the school’s code can result in ecclesiastical sanction and academic punishment, including possible expulsion, if students were breaking curfew or drinking alcohol at the time of their assault, or had previously been involved in consensual sexual activity. As one of the women wrote in an online petition: “I was raped, and I waited four days to report because I was so terrified about my standing at BYU.”
Many Mormons were horrified by these revelations, which fueled the social media outrage machine for several days. The Mormon-themed blog By Common Consent had previously reported in April that students attending a Rape Awareness conference on campus were given a chance to ask questions of university administrators, including Sarah Westerberg, the Title IX coordinator, who confirmed that sometimes a reported rape will trigger an Honor Code investigation of the victim. She is reported to have said that the university “does not apologize” for this policy, despite its potential chilling effect on reporting. A Provo police sergeant affirmed that BYU’s policy of disciplining students after assaults “creates a safe haven” for predators rather than for victims. In one particularly egregious case, a student was raped off-campus and reported the assault to police, rather than to BYU officials, but the Honor Code Office initiated an investigation after a sheriff’s deputy illegally passed them a copy of the police report.
The reporting and commenting in the aftermath of these stories has followed somewhat predictable lines: students telling horrible stories of being revictimized when they reported their assaults, outraged commentators crying shame on BYU, and BYU partisans and other conservatives defending BYU’s right to exercise its religious prerogatives. One clickbait-y piece even concluded that “if we really wanted to cut rates of campus sexual assault, we could do worse than remaking secular universities in the image of BYU.”
The pattern is wholly familiar; what is strange is that it should spool out this way in a case where reasonable people do not disagree about the desired outcomes. No one wants college students to be sexually assaulted. No one wants rape to go unreported. No one thinks that drinking or being in a boy’s apartment after curfew is a more serious offense than sexual assault. The fact that the discussion has unfolded so predictably in ways that evoke smugly certain outrage on both the left and the right makes it clear that what is happening is a culture clash as much as a policy dispute: Sexual assault on highly religious campuses is a different problem than sexual assault on other campuses.
The BYU case illustrates these differences and highlights the inevitable tensions between religious rules and civil laws. Sexual assault, of course, is a violation of both kinds of rules, and so it can be readily condemned. But where a religiously defined code of conduct governs behavior, any discussion of changing the rules or allowing amnesty for lesser offenses in the interest of encouraging reporting must grapple with the sincere convictions of people who believe that God requires them to live by standards more stringent than civil law. At BYU, all students agree to the Honor Code, which requires abstinence from alcohol, drugs, tea, and coffee (which are forbidden by Mormon Scripture). They promise to “live a chaste and virtuous life,” which is understood to prohibit all sexual contact except handholding and kissing. Women are forbidden to wear clothing that is “sleeveless, strapless, backless, or revealing; has slits above the knee; or is form fitting.” They also cannot wear skirts or shorts above the knee, or “extreme” hairstyles or colors, or any body piercing beyond a single earlobe piercing. Men are not allowed to wear earrings, long hair, or beards. Even the length of sideburns is regulated. Students are required to live in sex-segregated housing, with rules about visiting hours in which members of the opposite sex are allowed in common living areas, but never in bedrooms. It’s easy to dismiss BYU’s Honor Code and similar rules at other conservative colleges as relics enshrining outmoded and ridiculously stringent norms of behavior, either as a quaint throwback to the past or as a menace to freedom of thought and individuality. But it is worth taking them seriously to understand how and why they create conflicts with laws like Title IX. It isn’t simply a matter of believers being nostalgic for the past; the religious worldview that animates behavioral codes at BYU and similar religious colleges situates sexual assault in a wholly different universe than on secular campuses.
It has been possible until now to deal with these differences by liberally granting exemptions from Title IX. The Department of Education’s Office of Civil Rights has granted 253 religious exemptions to various facets of Title IX, and has never denied a request for such exemption. Until the last decade, most of these exemptions had to do with gendered participation in classes and activities for students at colleges run by churches with an all-male clergy, and with accommodations around pregnancy or abortion. More recently, claims related to accommodations for gay and transgender students have predominated. The administrative procedures for granting these exemptions are messy and opaque, and there has been wide variation in the interpretation of these regulations in the decades since the law went into effect. In her study of the history of religious exemptions to Title IX, BYU law professor Kif Augustine-Adams concluded that “administrative implementation of religious exemption to Title IX is not how a pluralistic society should structure religious exemption to generally applicable non-discrimination laws. Whether, as a statute, Title IX itself properly accounted for potentially competing values of religious liberty and non-discrimination is another question.”
It is exactly this question that the situation at BYU urgently raises. Is it possible to preserve the perceived obligation for BYU administrators to uphold the Honor Code while also satisfying the intent of Title IX to make colleges safe and equitable places for women? A Title IX compliance expert, S. Daniel Carter, noted that Title IX does not prohibit the kinds of investigations of victims and reporters that BYU is carrying out, but that such investigations are “a misplaced priority,” “not best practices.” Dahlia Lithwick is right to assert: “Whether or not the school is technically in violation of Title IX remains to be seen, but the school is clearly violating the spirit of the law in a way that does untold damage to rape survivors and makes future rapes more likely.”
It seems clear that the policies at BYU should change to conform not merely to the letter of the law, but to its spirit. But such a policy change shouldn’t be the end of the discussion, and it certainly won’t be the last time that Title IX comes into conflict with the principles and practices of various religious groups. And while questions about regulatory interpretation and implementation may be settled by legal mechanisms, meaningful change—the kind that shapes attitudes as well as procedures—will happen only when the “spirit” of Title IX can be articulated in ways to which administrators of religious colleges can assent. Moreover, an approach that combines best practices, as articulated by legal and psychological experts, with a careful understanding of the benefits and deficiencies of a religious approach to the fraught issues of sexuality on college campuses, offers the best chance for empowering young women and making them less vulnerable to assault and to the psychic violence inflicted on them by both patriarchal religion and secular sexism.
Blogger Libby Anne at Love, Joy, Feminism has created a helpful shorthand she calls the “two boxes” schema, by which the classification of sexual acts as moral or immoral can occur. For many religious believers, the only thing in the box labeled “moral” is marital sex, with the justification that that is the only kind of sex God (or Scripture) explicitly allows. In a more secular system, sexual acts are sorted into the two boxes based on whether they are consensual or non-consensual, so marital sex, gay sex, premarital sex, and polyamory could all potentially be considered moral, while pedophilia and rape would always be considered immoral because they are non-consensual. It’s easy enough to see, then, that a legal standard based on consent makes little sense in a context in which all premarital sex is immoral. Only one form of consent matters within the strictures of patriarchal religion: saying “I do” at a wedding.
This absolute view of sexuality leaves no room for the murky confluence of desire and consent that often leads to sexual assault on campus. For many believing young people, their sexual encounters are complicated by all-or-nothing thinking that elevates virginity as the singular and absolute measure of morality. Virginity is also frequently euphemized as “purity.” Unlike other social norms, purity taboos are absolute—there are no degrees of culpability, only perfection or corruption. Mary Douglas’s Purity and Danger posits that these taboos function to protect categories, especially the categories of sacred and profane (but also less fraught categories, like what belongs in the bathroom and what belongs in the drawing room). Extending this logic to purity culture on college campuses, Donna Freitas writes in Sex and the Soul:
[S]ex is not dirty in and of itself, but it is dirty to engage in sexual activity or perhaps even to indulge sexual thoughts in ways that … “contradict cherished classifications.’’ Within contemporary evangelical Christianity, the operative classification is marriage, understood as a kind of ‘‘purifying container’’ for the messiness that is human sexuality. To engage in sex outside of marriage is to contravene a cherished classification.
The requirement to “contain the messiness that is human sexuality” means that human beings (especially women) also must fit into categories that are far too tidy to accommodate the vagaries of dating. (The practice of supervised courtship among some evangelicals recognizes the incompatibility of “dating” among independent college students with rigid norms of purity.) In the Mormon case, this equation of virtue with virginity is enshrined in Scripture. A passage in the Book of Mormon (Moroni 9:9) describes the rape and murder of young women as a loss of “virtue.”
And notwithstanding this great abomination of the Lamanites, it doth not exceed that of our people in Moriantum. For behold, many of the daughters of the Lamanites have they taken prisoners; and after depriving them of that which was most dear and precious above all things, which is chastity and virtue—
And after they had done this thing, they did murder them in a most cruel manner, torturing their bodies even unto death.
Not only is this passage canonized, but all young women in the church are enjoined to study it to “learn about the meaning and importance of chastity and virtue” in the goal-setting personal improvement program that is part of the church curriculum for girls ages 12-18. The inseparability of biological virginity from moral “virtue” or chastity is clear here—moreover, it is at least suggested that having one’s virginity taken away is worse than being killed. The fact that these women were clearly not willing participants (and that they were then tortured to death!) is not enough to prevent them from losing their classification as pure—the men are actively evil; the women are tainted merely by being subject to that evil. Although few contemporary Mormons would call a rape victim impure, the notion that virginity is a moral as well as a physical condition continues to lurk around the edges of religious discourse.
Elizabeth Smart, an LDS woman who was kidnapped and raped as a minor, has been a particularly articulate and compelling critic of this conflation. The Christian Science Monitor reported that at a Johns Hopkins forum on human trafficking, Smart recalled an analogy she had heard from a teacher, comparing someone who has had sex to a piece of chewed gum:
I thought, “Oh, my gosh, I’m that chewed up piece of gum, nobody re-chews a piece of gum, you throw it away.” And that’s how easy it is to feel like you no longer have worth, you know longer have value, Smart said. “Why would it even be worth screaming out? Why would it even make a difference if you are rescued? Your life still has no value.”
The passivity of the victims of sexual violence is an extension of religious rhetoric in which women are always sexually passive and presumed to be without desires of their own. In contemporary evangelical and Mormon culture, much of the discourse around female sexuality takes place in discussions of modesty. Girls are taught from an early age that they should cover shoulders, knees, and bellies. The Mormon church’s magazine for children under twelve published a “Modesty Checklist” which encouraged children to think about how Jesus might like them to be dressed if they were with him. A 2011 story in the same magazine described how a 4-year-old (!) asked her mother for a t-shirt to wear under the sundress her grandmother had sent her, to make it “modest.”
A frequent explanation for this need for women to cover up is that men are so saturated by sexual desire that they cannot be expected to control themselves if they catch a glimpse of female skin. A popular book by evangelical minister Joshua Harris, I Kissed Dating Goodbye, presents both the notion of men’s uncontrollable desire and the benevolent sexism that denies women’s desire in a single paragraph: “We [men] need to stop acting like hunters trying to catch girls and begin seeing ourselves as warriors standing guard over them … we must realize that girls don’t struggle with the same temptations we struggle with. We wrestle more with our sex drives, while girls struggle more with their emotions.”
What could the notion of “enthusiastic consent” possibly mean to a young woman enculturated in these ideas? How can she know what is happening in a situation where she is surprised by her own desire as well as possibly frightened by her partner’s insistence? How could she believe that she might go farther than “a good girl” would go, and still have the right to say no to more?
This situation and mindset seem a world away from the stereotype of the mini-skirted, inebriated, and (perhaps) sexually liberated female college student, who appears confident and sexually assertive, as if unburdened by shame or guilt about her sexuality. Nonetheless, Peggy Orenstein’s new book Girls and Sex describes the psychic landscape of sexuality as equally fraught for such young women:
The girls I met talked about feeling both powerful and powerless while dressed in revealing clothing, using words like liberating, bold, boss bitch, and desirable, even as they expressed indignation over the constant public judgment of their bodies. They felt simultaneously that they actively chose a sexualized image—which was nobody’s damned business but their own—and that they had no choice … Girls shifted between subject and object day by day, moment by moment, sometimes without intending to, sometimes unsure themselves of which they were.
In her discussion of sexual assault on campus, Orenstein continues:
Boys’ sex drive is considered natural, and their pleasure a given. They are supposed to be sexually confident, secure, and knowledgeable. Young women … remain the gatekeepers of sex, the inertia that stops the velocity of the male libido. Those dynamics create a haven for below-the-radar offenses that make a certain level of sexual manipulation, even violence, normal and acceptable.
The beliefs that inform religious “purity culture” are not, in the end, so far removed from what is called “rape culture” in supposedly secular America. Confronting the ideas about virginity, modesty, and the varieties of male and female desire, made explicit in religious terms on some campuses, provides an opportunity to seriously examine similar lingering and often unspoken views that govern the expression of sexuality elsewhere. The ambivalence about sexuality and the profound alienation of young women from their own bodies that Orenstein describes can be generated equally and powerfully by a religious culture that tells girls they are always objects of the male gaze and should cover up or by a media culture that tells them they are always objects of the male gaze and should be maximally alluring.
We should also consider the possibility that religious young people and their elders might contribute meaningfully to the national discussion of these questions—it would be a mistake to dismiss religious insights because some aspects of religious culture seem benighted. As one example of religiously motivated sources of empowerment for young women, consider the reinforcement a female BYU student who does not want to be sexually active derives from the culture that surrounds her. The “below-the-radar offenses” Orenstein describes are not acceptable in that culture; the girl who wants to say “no” has the force of shared religious values underwriting her agency. Psychologist Jennifer Finlayson-Fife, in her dissertation on Mormon women’s sexuality, explained:
[Some] women’s experiences … did not describe the expectation of chastity until marriage as an oppression of patriarchy, but as a protection from patriarchy, so to speak. These women did not want to be vulnerable to men’s objectification of their sexuality—to be used as a measure of men’s masculinity, or utilized by men to see “how far [they] can go,” only to be forgotten about as real people. The community’s expectation of men (as well as women) to express their sexuality in the context of marriage led some women to feel less vulnerable to abuse or objectification.
It is not difficult to enumerate the ways in which patriarchal religions can be limiting or damaging to young women; incisive critiques of modesty and purity culture have been generated by every wave of feminism. Those criticisms, well-understood and actively attended to (as in the implementation of Title IX, for instance) are an important element of creating a culture in which young people’s bodies and psyches can be safe and healthy as they grow into their adult sexuality. Finlayson-Fife’s work models a respectful attention to religious women’s experience that might also generate needed elements of a culture that values women and enables their flourishing. Creating such a culture on campus requires offering accurate and thorough education about sexuality, instilling the kind of respect for self and others that facilitates saying, hearing, and honoring “yes” and “no,” and giving young people the vocabulary in which they can articulate the ethics that will govern the exploration and expression of their sexuality. Religious codes of conduct do not accomplish all of these goals any more than secular university policies and civil laws do—indeed, as the BYU example demonstrates, sometimes they get it dangerously, egregiously wrong. Nonetheless, believers who aspire to live demanding ideals are practiced in thinking about sex as a morally serious act. They should be at the table when we talk about how to help young people. Simply exempting religious colleges from the requirements of Title IX, and thereby excluding them from the discussion eliminates their potential contributions, and it also means that they do not hear salient and necessary criticisms of their policies. It is a loss for both sides.
Clearly, the BYU policy must change. There is no secular or religious excuse for adding to the trauma of a victim of sexual assault. A high wall should be erected between the Honor Code Office and the Title IX reporting structure, and it should become well known on campus that reporting a rape will never, ever result in additional punishment for drinking or breaking curfew. After all, if a male student got shot at Starbucks, nobody would check to see if the cup he was drinking from at the time contained coffee or hot cocoa! But it matters a great deal whether religious conservatives perceive that policy change as being achieved by shaming from the “liberal media” and the machinations of federal government run amok, or whether it is a respectful, collaborative process in which the shared interest of religious believers in protecting their youth is recognized. This case should be the kind in which the potential enmity between church and state is set aside—helping children grow up safe, whole, and healthy requires wisdom from every available source.
Kristine Haglund is a writer, editor, and Sunday School teacher. She lives in Belmont, Massachusetts.
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