"The exact size of the campus sexual assault problem remains unclear. The commonly cited statistic that one in five women who attend college is assaulted before she graduates — repeated by the White House — comes from a flawed 2007 study based on undergraduates at just two unnamed public universities. That figure often shocks, yet there is no reliable alternative estimate. Under the federal Clery Act universities are required to publish data on campus crime, but activists have long suspected that administrators underreport sex crimes.
LAWRENCE — When American Amanda Knox was prosecuted for allegedly murdering her roommate in Italy, the trial grabbed sensational headlines on a nightly basis. Both her conviction and eventual acquittal in 2011 drew criticism from the public, who followed the trial and verdict without knowledge of the Italian criminal justice system and assumed American legal traditions applied, a University of Kansas professor has written.
John W. Head, Robert W. Wagstaff Distinguished Professor of Law at KU, has authored a journal article examining the Knox trial and the consternation it caused, both in America and Italy, and pointing out that there were two major problems — translational and transplantational — in most criticisms of the case.
“If someone is going to offer broad criticisms of an entire legal and criminal justice system, they ought to at least have an understanding of the culture of the country and its legal system,” Head said. “I doubt that was the case with most of the people who were offering the loudest criticisms in the Amanda Knox trial.”
Head was living and working in Trento, Italy, in 2009 on a Fulbright Fellowship when the Knox trial was being conducted. In Italy, as in the U.S., it garnered sensationalist coverage in the media every day for weeks. A specialist in comparative law, Head was fascinated by the trial.
“While I was in Italy, I was working on a comparative law course book. One of the angles I was working on was comparing criminal procedures in Europe, the United States and China. So this case and all the attention it was getting really grabbed my interest,” Head said.
Knox and her co-defendant, Raffaele Sollecito, were accused of murdering Knox’s British roommate, Meredith Kercher, in 2007. She was convicted in late 2009 but was granted a retrial in 2011 and was eventually found not guilty and returned to the U.S. The original verdict was widely seen as flawed, especially in the United States. The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.
The complaint was often made, for instance, that the jury in the Amanda Knox trial was not sequestered. What people failed to understand was that Italian juries are rarely sequestered as they are in the States. And instead of 12 jurors of the defendant’s peers, the Italian system employs three judges and six “lay assessors of facts,” Head said. The latter are allowed to consult with the former for a number of reasons, including offsetting any potential prejudice they may have from exposure to the media.
Another fundamental difference is that in European systems, the societal expectation if someone is found guilty is to decide what the criminal justice system can do to mend the tear in the fabric of society and reintegrate the person back into that society. That concept is all but forgotten in America, Head said. Those differences failed to translate to an understandable reality for most American critics, he added.
Those complications contribute to a second problem, transplantational misunderstandings. While it is true that Italian, European and many other justice systems around the world have been “Americanized” to a certain extent over the last three decades, it is difficult to pick and choose which aspects of a legal system to “transplant” or impart into another. A prime example of that problem was an aggressive prosecutor in the first trial who was similar to what one would see in American courts.
“The rest of the system was not ready for that sort of aggressiveness,” Head said. “And many thought the other side — that is, the Amanda Knox side of the trial — was not ready for that, especially without an equally aggressive defense.”
Those problems and misunderstandings, when coupled with a changing society, can pose significant and unprecedented challenges for legal systems, such as the Italian criminal justice system. Growing immigration and multinationalism can stand at odds with nationalist and traditional understandings, Head said. While the tradition may be to re-integrate someone into society after committing a crime, people from other parts of the world may not want to be re-integrated.
“That, I think, throws questions on the tried and true system of criminal procedure and what the process will be 10, 20 years from now when things seem to be changing so quickly,” Head said.
On top of all that, the intense media scrutiny in multiple countries placed a strain on the legal system as well, he added. This also made the trial troubling
Head’s article was published in a “Festschrift,” or special journal published in celebration of the 70th birthday of Feridun Yenisey, a world-renowned legal scholar from Turkey. Yenisey, who has a long association with the KU School of Law, is well-known for his expertise in criminal procedure and in Turkey’s campaign for legal reform. This made an examination of a fascinating criminal procedure case especially appropriate, Head said.
Knox and Sollecito are still in the midst of legal battles concerning the case. Their murder conviction was reinstated, and they are awaiting a final ruling, which is expected as early as next month. In the meantime, Knox lives in Seattle and is working as a writer.
Cases such as the Knox trial are a poignant example of the value of comparative law and even more so the value of cross-cultural understanding.
“I think we simply miss a lot because we don’t pay close enough attention to the underlying cultural differences between legal systems and especially nations,” Head said. “Unfortunately, our response is often inadequate because of that.”
"Major colleges and universities are undercounting the number of sexual crimes that occur on their campuses in an attempt to downplay the issue, according to new research published in the journal Psychology, Public Policy and Law.
"The number of sexual assaults reported by colleges and universities tends to increase by an average of 44 percent while they're under review by the U.S. Department of Education, according to new research by University of Kansas law professor Corey Rayburn Yung.
However, as soon as federal officials conclude their investigations, Yung found that reports of sexual assault in annual crime statistics tend to drop sharply to pre-audit levels. The same trend was not observed in the statistics for other types of serious crimes on campus."
"Today in unsurprising research findings: a recent study published by the American Psychological Association finds that colleges and universities around the country engage in a pattern of serious underreporting of campus sexual assaults, in violation of federal law and despite sizable fines. The study, which analyzed the number of assaults reported by 31 universities nationwide, found that schools reported incidents of sexual violence at a significantly higher rate during audits by the Department of Education — but when the audits ended, reporting rates dropped.
"Over the last few months, sexual assault on college campuses has become a hot button issue. According to a new study conducted by University of Kansas law professor, Corey Yung, sexual assaults are underreported by as much as 44 percent.
'I think it speaks to the institutional norms, which is to try and have crime not be a problem. Police survey shows they [officers] tend to disbelieve rape victims more than the public. When the audit's going on, then you have to be more careful,' said Yung.
"A Kansas University law professor whose previous research showed more than 1 million rape cases went unreported in official U.S. crime statistics has published new research indicating underreporting appears widespread on college campuses as well.
Universities across the country are likely underreporting on-campus sexual assaults by as much as 44 percent, according to Corey Rayburn Yung, whose research was recently published in an article in the journal Psychology, Public Policy, and Law.
. . .
LAWRENCE — Universities across the country are likely underreporting on-campus sexual assault, new research by a University of Kansas researcher shows. While there is not one clear reason why the crimes might be underreported, data show that the numbers of sexual assaults were low, increased during periods of audit, only to return to the lower numbers after the audits were over. To address the problem, increased audits and fines may be necessary, said Corey Rayburn Yung, professor of law.
Yung analyzed crime-reporting data from 269 universities in the United States and found that sexual assault is likely an estimated 44 percent higher than reported numbers. More than 11,000 schools in the United States are required to submit campus crime information to the Department of Education by the Clery Act. He limited the study to schools with 10,000 or more students to get consistent, comparable statistical data. The article was published in the journal Psychology, Public Policy, and Law.
Since 2001, only 31 of the 269 institutions with 10,000 or more students were audited in regard to their crime numbers. Many schools, especially smaller institutions, often reported zero sexual assaults.
“It just seemed like the norm was to assume there is nothing wrong,” Yung said. “I looked at those 31 to see how their numbers changed before the audit, during the audit and after the audit. Based on their interactions with auditors there seems to be a systematic undercounting.”
The numbers showed that during the 31 investigations, reported sexual assaults rose nearly 44 percent. However, after the investigations the rates dropped back to a level statistically indistinguishable from the rates before the audit. Yung also examined the reported rates of aggravated assault, robbery and burglary. No statistical variations appeared for those crimes during the investigations. While they are different crimes, the numbers paint a troubling picture, he says.
“Each of those crimes has a very different dynamic,” Yung said. “I don’t mean to say they are a direct comparison. But the only one that shows this fluctuation during the audit is sexual assault.”
There are many potential reasons campuses could underreport sexual assaults, he said. While all schools need to attract new students, none want to portray themselves as a dangerous place with high crime numbers. Campus police, like municipal police departments, can often be under pressure to show they are reducing crime as well. Sexual assault, especially on a campus setting, often involves an acquaintance and questions of consent or incapacitation. Given that there are often two competing stories, sexual assault can often be more easily dismissed than other crimes due to “lack of evidence” or contradictory statements, Yung said.
Further complicating matters, campuses are required to adjudicate claims of sexual assault within 60 days; however evidence including DNA and drug and alcohol analysis are often not available within such a short timeframe. The public nature of the Clery Act crime statistics — data must be provided to both the Department of Education and students — could also be an incentive to undercount.
“I think it varies substantially from campus to campus why sexual assaults may be underreported, but the evidence shows that undercounting is taking place,” Yung said.
Two clear steps can be taken immediately to help address the problem of underreporting. First, Yung suggests that more audits take place. Currently, the Department of Education can launch an investigation either at random or if it is triggered by a specific on-campus event or notable problem. Since 2001, only 54 such audits have been conducted. Second, stronger fines should be levied against universities that are shown to have knowingly underreported crimes. Currently the cap for such fines is $35,000. Data shows that even institutions that were fined for underreporting returned to rates of reporting sexual assault before an audit. The Campus Accountability and Safety Act, currently before Congress, would increase maximum penalties from $35,000 to $150,000.
Whatever the reason for undercounting sexual assault, the biggest problem is that it can allow serial rapists to prey on more victims if they are not prosecuted for previous offenses. A 2010 study by Kimberly A. Lonsway of End Violence Against Women International showed that more than 90 percent of rapists are serial rapists, Yung said. Legislation, combined with more scrutiny and treating sexual assault as a public safety crisis could help combat the problem of underreporting as well as preventing future crimes and serving justice for victims.
“I think increased auditing and more severe punishments for those shown to be undercounting are certainly the first steps,” Yung said. “As it is, schools could undercount for decades. There’s almost no deterrent. It would be good to have an incentive for schools to count these crimes accurately.”
"Secretary of State Kris Kobach argued Thursday the federal model of judicial selection placed higher caliber lawyers from Kansas on the U.S. District Court and U.S. Court of Appeals than the state’s existing approach for picking justices of the Kansas Supreme Court.
Kobach and Gov. Sam Brownback believe the Kansas Constitution ought to be amended to eliminate the nonpartisan merit selection system relied upon in Kansas to evaluate applicants for the state Supreme Court and to provide governors a choice among three finalists.
. . .
"A legal expert contends the U.S. Supreme Court's decision to rule on same-sex marriage will determine the fate of Kansas' ban on the unions. But University of Kansas Constitutional Law Professor Richard Levy thinks the state could still fight implementation of a judgment allowing gay marriage.
Levy said, 'It’s possible that there could be various kinds of state laws passed that test exactly what the limits are, and in the process slow its recognition.'