Author: Corey Yung


What’s a Trigger Warning?

The public, media, and academic panic over trigger warnings has struck me as a bizarre overreaction. Fueling the growing crisis mentality, Vox published an essay titled “I’m a liberal professor, and my liberal students terrify me” that went viral. Directly relevant to law school professors, Jeannie Suk wrote in The New Yorker that she has had growing concerns about teaching about rape in the emerging trigger-warning culture. I was one of those who expressed doubt about Suk’s position, but also wondered how much difference in our perspectives could be explained by our natural tendency to generalize from our own limited anecdotal experiences.

Thankfully, a lot of research is being done to understand whether the panic over trigger warnings is warranted. The National Coalition against Censorship (NCAC) issued a published report concerning its findings. There are a lot of interesting tidbits including that a lot of requests for warnings come because of religious or moral sensitivities (and not so-called left-wing “political correctness). Overall, the report seems to indicate that the panic is overblown.

Yet, the most shocking finding for me personally was to discover that I was a trigger warning issuer according to the report. This was the definition of a trigger warning used by the NCAC:

… written warnings to alert students in advance that material assigned in a course might be upsetting or offensive. Originally intended to warn students about graphic descriptions of sexual assault that it was thought might trigger post-traumatic stress disorder (PTSD) in some students, more recently trigger warnings have come to encompass materials touching on a wide range of potentially sensitive subjects, including race, sexual orientation, disability, colonialism, torture, and other topics. In many cases, the request for trigger warnings comes from students themselves.

Although I have long given oral statements when covering certain material in Criminal Law (primarily in child murder and rape cases), I started sending out a pre-semester email to students signed up for my Sex Crimes seminar as follows:

My Sex Crimes course is filled with gruesome, horrific, and truly bizarre readings and discussions. As I have told colleagues who are curious about the subject, “once I tell you, you can’t un-know it.” Although I’m guessing that some of you feel that you have heard or can imagine nearly everything we will discuss in class, I’m pretty sure each of you will quickly hear or read something that will upset and/or shock you. I think there is much value in learning outside of your comfort zone, but I want you all to make an informed choice about taking my class. So, if you want to drop the class, let me know so that you don’t get any further emails. I will send out the semester’s readings and your first day assignment tomorrow.

To me, my email is a far cry from what has stoked media controversy. Often, trigger warnings are portrayed as student vetoes or opt-outs from certain assignment that are a critical component of the “death of free speech on college campuses.” And yet my email to students would be counted as a trigger warning in surveys. On the one hand calling my statement a “warning” is entirely accurate. But from my perspective it is simply designed to inform students about the course’s content and doesn’t allow for students to dictate/veto the course structure or materials taught. Given that my warning about the content is true, it seems reasonable for me to communicate that fact ahead of time.

The basic problem of definitions seems very important in deciding whether we should be worried about trigger warnings. Imagine each of these “bad” scenarios:

  1. University requires faculty to put boilerplate language in every course syllabus about objectionable material.
  2. University responds to student requests against a particular professor by suggesting to professor that some warning should be issued.
  3. University adopts a policy that requires faculty members to have an opt-out for students of any assignments that meet certain broad criteria for offensiveness.

The first scenario is hardly ideal but not an enormous threat to academic freedom either. The second could be dangerous depending upon what “suggesting” means. The third is clearly disastrous. It seems to me that these situations should be the focus of our concern. I don’t know of any cases that fit the third scenario. I’m guessing, but am open to new information, that the second scenario is a rarity and often subject to disputed accounts.

Media and researchers should not try to group my simple warning, made voluntarily out of respect for my students, with university requirements that often don’t actually exist in the real world. They are wholly unrelated. But if others disagree and are troubled by what my pre-semester email represents, I welcome comments.


Posner & Segall v. Scalia & Whelan

Many of you have probably already read Judge Posner and Eric Segall’s piece in the New York Times about Justice Scalia’s conception of the role of religion in regards to civil rights, particularly those of LGB Americans. Ed Whelan issued a response to the NYT piece here. I had not planned to blog about the discussion with too many deadlines today and tomorrow. However, my attempts to merely tweet a few thoughts escalated quickly:

Much like his tweet to me, Whelan’s attacks on Posner & Segall’s article are harsh and dismissive. Choice quotes include:

  •  “… just when I think that [Posner] can’t go any lower, he goes subterranean.”
  • “Posner resorts to the cheap debater’s trick of setting up and knocking down a bunch of straw men.”
  • “… no competent legal mind could fairly extract from Scalia’s dissent the proposition that Posner derives and attacks.”
  • “Posner’s observation is a smear and a distraction.”
  • “In sum: yet another contemptible performance by Posner.”

Given the things that Whelan wrote, I’m not sure whether Segall should be happy or upset about Whelan’s repeated omission of Segall’s name in describing the co-authored article.

My issue with Whelan’s piece, that I tweeted about, is that I don’t think he fairly represents Segall & Posner’s core argument (which is particularly notable when Whelan is calling them out for not “fairly present[ing] Scalia’s positions). Among Whelan’s several arguments, the one I find most problematic is:

In a recent speech, Scalia stated (according to this account) that “Saying that the Constitution requires [same-sex marriage], which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.” Posner somehow extracts from this statement the “suggestion that the Constitution cannot override the religious beliefs of many American citizens,” and charges that Scalia holds a “political ideal [that] verges on majoritarian theocracy.” What nonsense. Like many unscripted remarks, Scalia’s statement is (at least in isolation from its fuller context) not a model of clarity. But his phrase “contrary to the religious beliefs of many of our citizens” is susceptible to either or both of two sensible readings. First, Scalia might be referring to the many “serious questions about religious liberty” that the Chief Justice’s dissent (which Scalia joined) explains that Obergefell creates. Second, he may be objecting to the Obergefell majority’s position that citizens with religious beliefs about marriage are somehow disentitled to support laws that accord with the moral propositions that their beliefs inform. By contrast, there is nothing in Scalia’s long record that remotely supports the notion that he believes that “the Constitution cannot override the religious beliefs of many American citizens.” Posner’s claim to the contrary—which is the centerpiece of his op-ed (which is why it’s titled “Justice Scalia’s Majoritarian Theocracy”)—is scurrilous.

But Whelan does not include all of the evidence that Segall & Posner cite to support their claim. From the original article (and at this point I should note how annoying the NYT website is at preventing cutting and pasting of text; thanks Lexis):

In Lawrence v. Texas… Justice Scalia complained that: ”Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as ‘discrimination’ which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream.”’

Justice Scalia made these remarks 12 years ago — and predicted in his dissent that the court would eventually rule that the Constitution protects the right to same-sex marriage. This June, Justice Scalia’s prediction came true in Obergefell v. Hodges. He has vented even more than his usual anger over this decision…. In a recent speech to law students at Georgetown, he argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a ”deserving minority,” and added, ”nobody loves them.” Not content with throwing minorities under the bus, Justice Scalia has declared that Obergefell marks the end of democracy in the United States, stating in his dissent that ”a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy….

We doubt that Justice Scalia would go that far, for he has repeatedly voted to strike down statutes that he believes violate the First Amendment and various federalism provisions of the Constitution, as well as affirmative action measures that he thinks are in conflict with the 14th Amendment.

But who knows? Maybe he’ll now cease voting to strike down statutes under any provision of the Constitution, as otherwise he might be thought of as one of those ”unelected lawyers” who so threaten our democracy. Not only an unelected lawyer, but — a patrician. For he said in his Obergefell dissent that ”to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

For a newspaper editorial (with its inherent length limitations), I think Segall and Posner have provided substantial context for to support the argument that Scalia’s remarks were not merely unclear and unscripted statements that are not indicative of his greater views. Had they been writing in another forum, they could have also cited other portions of Scalia’s dissent in Lawrence:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding…. What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State….

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity….

The above quotes don’t even include Scalia’s strained argument that the Texas law was, for Equal Protection purposes, neutral because both gays/lesbians and heterosexuals were prohibited from homosexual conduct. Segall and Posner can point to other dissents and his continued positive references to the historically problematic Bowers opinion. Scalia’s continued invocation of examples like “child molesters” to justify morality-based restrictions on gay rights leads many to believe that his statement in his Lawrence dissent that “I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means” rings hollow. Contrast Scalia’s dissent in Lawrence with this quote from Justice Thomas’s brief dissent in the same case:

I write separately to note that the law before the Court today “is … uncommonly silly.” If I were a member of the Texas Legislature, I would vote to repeal [criminal sodomy laws]. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

I do not mean to say that Segall and Posner have made an ironclad case that Scalia supports some version of majoritarian theocracy (they even acknowledge that they “doubt that Justice Scalia would go that far” and cite contrary evidence). But their contention that Scalia is essentially appealing to religious majoritarianism in justifying the denial of civil rights to LGB Americans is a reasonable one and is based upon far more than one recent statement made by Scalia in a public forum.


Constitutional Communication

In 2005, before I was an academic, I started working on an article, now titled Constitutional Communication, about constitutional interpretation. I still have drafts of it dating back to 2006. I have even presented it a couple times over the last decade. I have worked on it throughout that time period, but was never satisfied with it. I’m happy (and relieved) to say that I finally have a completed draft that I have made publicly available. I welcome feedback. Here is the abstract:

Scholars from various normative and positive perspectives endorse the notion that the Constitution is communicative of its meaning. However, there has been little discussion as to what “communication” means in the constitutional context. This Article addresses the communication gap by introducing and applying communication-based concepts and models to constitutional theory. The results of the integration of communication theory into debates about constitutional interpretation are twofold. First, the account in this Article offers a richer framework and vocabulary for ongoing debates about interpretative theory and constitutional meaning. Second, the addition of communication concepts and norms into the debate about constitutional meaning points toward a new approach to interpretation: constitutional contextualism. This flexible approach contends that the constitutional provision being interpreted, and not a pre-selected universal theory, dictates the tools that should be used to analyze it. Significantly, this approach does not seek to negate the dominant theories of constitutional interpretation. In fact, the insights of various originalist and living constitutionalist theories are essential for selecting or synthesizing which interpretive methods are preferable in specific situations. By adopting a flexible, contextual, communication-based approach to identifying the best constitutional meaning in particular cases, we can end the growing fetishization of global interpretive theories and better adapt to the real-world needs of constitutional readers.


Affirmative Consent and Burden Shifting

Tamara Rice Lave has a thoughtful post at Prawfsblawg about affirmative consent standards in sexual assault cases. She contends that application of such standards amount to a burden shift to the defendant. From her post:

The case I am referring to is Mock v University of Tennessee at Chattanooga, and it was decided on August 4. Corey Mock was alleged to have had non-consensual sex with a female student. At the hearing, the Administrative Law Judge found that UTC had not carried its burden of proof and dismissed the charges. The complainant then spoke with the Chancellor, who petitioned for reconsideration. Although the ALJ did not change any findings of fact, she changed her overall conclusion. Mock appealed to the Chancellor who upheld the order and expelled Mock. Mock then appealed to the Chancery Court.

In her opinion, Chancellor Carol L. McCoy wrote, “Under the ALJ’s Revised Initial Order, a person accused of violating SOC7 must overcome the presumption inherent in the charge that the violation has been established. Mere denial of the accusation is insufficient. The accused must prove the converse of what is taken as true and credible, i.e., the complainant’s statement that no consent was given. He must come forward with poof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to any activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

After finding that the UTC Chancellor “improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation that he forcibly assaulted Ms. Morris,” Chancellor McCoy reinstated the original order of the ALJ and reversed the decision of the UTC Chancellor.

I applaud Chancellor McCoy’s decision and hope that other judges will also see the problem with affirmative consent.

Although have my (policy) doubts about affirmative consent standards, I’m not persuaded by the argument that affirmative consent standards switch the burden of proof to the defendant.

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Jonathan Chait, Don’t be an Asshole

In today’s New York Magazine, Jonathan Chait has published a tone-deaf article against liberal efforts to call people out for saying or writing offensive things. Chait uses every empty, meaningless phrase it takes to write such an article: “political correctness,” “language police,” “censorship,” and “thought-criminal.” Of course he discusses Charlie Hebdo because you have to talk about Charlie Hebdo and surrendering to terrorists if you want to talk about “political correctness” these days.

After learning from discussions with many people holding views similar to Chait, I have had some success in distilling the problems of offensive speech to simpler terms. I call it the “don’t be an asshole” rule. It lacks nuance, I admit.

The applications of “don’t be an asshole” are many. Here are just a few:

Don’t yell “fuck” in the middle of a wedding ceremony or funeral.
Don’t fart in someone’s face.
Don’t post your ex-girlfriend’s nude pictures online.
Don’t name your sports team an offensive ethnic slur.
Don’t call women “sluts” even if you believe in your heart-of-hearts that you also call promiscuous men “sluts.”
Don’t use ethnic, religious, homophobic, racial, sexist slurs.
Recognize that you might be racist, sexist, homophobic, or otherwise bigoted and not know it.
Listen charitably.

And if someone calls you are a racist, sexist, bigot, etc., the “don’t be an asshole” rule even has a course of action to take:

Step one: Apologize.
Step two (optional): Thank the person for letting you know (assuming you don’t want to be an asshole in the future).
Step three: Don’t be an asshole again.

It’s really not that hard. If you follow these basic, limited steps, you don’t have to worry about the “politically correct” “thought police” “censoring” your thoughts and letting the terrorists win.

For an exhibit of what to do when you say something offensive, see Benedict Cumberbatch yesterday. Cumberbatch recently used the outdated phrase “colored people” in an interview. For Brits like Cumberbatch, the phrase doesn’t carry, from my understanding, the same baggage that it does in the states. Did Cumberbatch, thus, fight back and say that listeners had it all wrong because they didn’t understand his intent and/or cultural background? No. Did the “thought police” do horrible, horrible things to him? No. This is what Cumberbatch said after being called out for his language: “I’m devastated to have caused offense by using this outmoded terminology. I offer my sincere apologies. I make no excuse for my being an idiot and know the damage is done.” That’s it. Problem solved. Benedict Cumberbatch is not an asshole. Jonathan Chait, don’t be an asshole.


Jeannie Suk on Teaching Rape

In this week’s New Yorker, Jeannie Suk laments what she perceives as the increasing difficulty in teaching rape to today’s law students. I was a bit surprised in reading Suk’s article because her descriptive account of today’s law school classroom environment regarding rape is at completely at odds with my own. A few years ago, I attended SEALS where there was a panel discussing teaching rape in the classroom. I asked the panelists whether the reluctance to teach rape, most famously described in James Tomkovicz‘s 1992 Yale Law Journal article on the subject, was simply outdated. Almost everyone else was teaching rape and students were reacting positively to that choice. And that is why Suk’s article struck me as particularly strange – teaching rape has become the majority rule in 1L Criminal Law.

Of course, the reluctance to teach rape articulated by Tomkovicz was somewhat different than the one now described by Suk. Tomkovicz was primarily focused on classroom controversy, potential professional consequences, and students being marginalized because of classroom discussions. In contrast, Suk focuses on trauma of rape victims in the classroom. She is concerned that students seem to want trigger warnings or no discussion of rape in the classroom.

I don’t want to entirely discount Suk’s assessment of modern criminal law teaching, but my experience has been radically different.  Since I started teaching in the Fall of 2007, I have taught twelve sections of Criminal Law and seven semesters of a Sex Crimes elective I have designed. I have probably taught 750 1L students in Criminal Law  and about 150 in Sex Crimes. In Criminal Law, I have never had a single complaint from a rape victim or person otherwise affected by sexual violence. In fact, I have received numerous anonymous reviews, emails, and comments in person from students thanking me for teaching about rape. This has been true at Kansas, in Chicago at John Marshall, and during my semester visiting at Iowa. After class discussions, students have often come to my office to share their personal experiences with sexual violence. Sometimes, they tell me stories that have just happened in the past couple of months. I am certain that if I didn’t teach rape in the classroom, those students wouldn’t feel comfortable coming to talk to me in private. A major theme of my classroom discussions of rape is that the dysfunction of America’s sex crime laws is due our failure to discuss the subject. And while I do my best to create a healthy learning environment, we do not shy away from the tough legal and social dimensions of sexual violence.

In my experience, it has been a net positive learning and personal experience for victims I have spoken with to have rape as part of the 1L Criminal Law curriculum. It has been beneficial much like when I had a student in a class who had experienced unfathomable trauma with a family murder. A few years previous to being in my 1L Criminal Law class, this student’s mother had killed his father. She was found guilty and sentenced to lengthy period of incarceration. He came and talked to me about it after we started our section on homicide, became my best RA, and I still keep in touch with him. I can’t speak with certainty as to Harvard students, but my experience has been that 1L Criminal Law has helped traumatized students deal with the violence and difficulty in their past. And, in doing so, many have found greater purpose and direction in their law studies. Some have harnessed that purpose to dedicate their legal careers to addressing the social ill that had previously plagued their lives. If Suk’s concern is with the victims of sexual violence, I hope she doesn’t give up teaching about it.

Of course, my experience might be atypical or I might be overstating the positives that have come from my classes. So, I welcome comments from other professors and will forward this post to some KU students to see if they want to chime in anonymously.


Worst Modern Court Opinion in Criminal Rape Case?

For the coming semester, I have decided to try teaching without a casebook. Instead, I have been putting together materials with an emphasis on more recent cases embodying prominent issues in substantive criminal law. Regarding rape and sexual assault, in particular, I feel that the cases used in the major casebooks are too dated and less relevant to students today. So, in my search for new cases, I stumbled across an appellate court opinion out of Louisiana in 2005, State v. Wilbert Touchet, Jr., 897 So. 2d 900 (La. Ct. App. 2005). I think this is has to be the worst reasoned opinion regarding rape I have seen by an American court in the last thirty years. The basic facts, as described by the appellate court were: “The State of Louisiana alleges that the Defendant struck the victim with his fists, forced her to remove her clothing at knife point, and had sexual intercourse with the victim against her will.” Yet, despite a guilty verdict at a bench trial, the appellate court reversed the aggravated rape conviction and found insufficient evidence for the lesser included offense of forcible rape (The court’s reasoning after the jump).

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Police Killing Unarmed Minority Men on Video with Impunity is not New

The grand jury’s decision to not indict a police officer in the death of Eric Garner despite video of the incident, in the wake of the failure to indict Darren Wilson, further illustrates the apparent immunity of police officers in cases where officers have killed ethnic minority Americans. The Garner case is a reminder that the interpretation of (crime) videos is filtered through pre-existing cultural lenses, but it also speaks to a more fundamental problem. The case provides more evidence that video has not been a panacea in addressing lethal violence by police officers, a fact which is relevant in discussing the likely efficacy of cop cams. I have posted other similar disturbing videos of lethal force being used against unarmed ethnic minority men (after the jump) wherein there has been no accountability in the criminal justice system for the officers involved.

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California’s College Rape Rule is Probably a Bad Idea (but not for the Reasons the Critics Say)

Jonathan Chait has joined the chorus of critics of the new affirmative consent rule in California for college campuses. Like others, he contends that the new rule effectively criminalizes ordinary sexual activity among college students. For three reasons, I think the claim is not well supported.

First, consent standards probably do not matter. Dan Kahan did the best study on this issue and the results are pretty clear. No matter what you tell people examining a rape case, they end up applying their own notions of consent. To the degree that any instruction of the law matters the effect size is small. I think this finding will hold true in adjudications under the California affirmative consent rule.

Second, stories of the alleged rapist and victim almost never match rendering legal standards as side issues and putting credibility as the central problem of rape cases. There are normally significant discrepancies between the accounts of alleged rapes. For the people willing to intentionally lie (either way), the new rule just indicates the content of their lie must change. For example, instead of saying, “she never objected,” a defendant would say “she said ‘yes.'” Even for those cases where the discrepancies are based upon cognitive biases or other unconscious factors, it is likely, if history is a guide, that the differences will align around the legal rule in place.

Third, the drunken sex cases that the critics are focused on are almost never resolved based upon the consent standard. The cases instead rely on incapacity. Whether a negative or affirmative consent standard applies is simply irrelevant in a case where the victim was too intoxicated to consent. The affirmative consent standard is a red herring in the primary scenario identified for overpunishment on campuses.

Even with all of those reasons to doubt its effectiveness in changing case outcomes, the California rule might simply be innocuous. However, there is a real danger that rule changes like this feed into a very dangerous cultural myth about rape law. Stephen Schulhofer probably said it best in his book Unwanted Sex: “Opponents of rape reform have managed to convince a wide audience that standards of permissible conduct are now dictated by ‘hypersensitive’ young women and by ‘radical’ feminists committed to a highly restrictive, Victorian conception of sexual propriety…. The reality is far different. The claim that legal rules, campus behavior codes, and company policies enshrine radically overprotective, puritanical rules of conduct is a myth.” In roughly half the states in America, having sex with someone who is highly intoxicated, but still conscious, is not rape. Many jurisdictions still apply a resistance or corroboration requirement in charging decisions despite such rules having long since been removed from statutes.  The list of problems with the application of modern rape law is extensive. Unfortunately, the backlash against the California affirmative consent rule has already helped spread the myth of radical change. And because the gains of the rule are likely to be minimal, the net effect for rape victims and justice will likely be negative. I hope I’m wrong.


Concealing Campus Sexual Assault: An Empirical Examination

On October 1 of every year, higher education institutions across the country are required to publish reports containing crime data for the previous calender year. So, it seemed appropriate today that I would post a draft of my article about whether universities are giving accurate information in those reports regarding sexual assault. The draft is available here and this is the abstract:

This study tests whether there is substantial undercounting of sexual assault by universities. It compares the sexual assault data submitted by universities while being audited for Clery Act violations with the data from years before and after such audits. If schools report higher rates of sexual assault during times of higher regulatory scrutiny (audits), then that result would support the conclusion that universities are failing to accurately tally incidents of sexual assault during other time periods. The study finds that university reports of sexual assault increase by approximately 44% during the audit period. However, after the audit is completed, the reported sexual assault rates drop to levels statistically indistinguishable from the pre-audit time frame. The results are consistent with the hypothesis that the ordinary practice of universities is to undercount incidents of rape. Only during periods in which schools are audited do they appear to offer a more complete picture of sexual assault levels on campus. Further, the data indicate that the audits have no long-term effect on the reported levels of sexual assault as those crime rates return to previous levels after the audit is completed. This last finding is supported even in instances when fines are issued for non-compliance. The results of the study point toward two broader conclusions directly relevant to policymaking in this area. First, greater financial and personnel resources should be allocated commensurate with the severity of the problem and not based solely on university reports of sexual assault levels. Second, the frequency of auditing should be increased and statutorily-capped fines should be raised in order to deter transgressors from continuing to undercount sexual violence. The Campus Accountability and Safety Act, presently before Congress, provides an important step in that direction.

I will be continuing to post about sexual assault at universities and the findings of the study over the next week or two.