Weekly Roundup for 2/28/2011

"Regulation Lax as Gas Wells’ Tainted Water Hits Rivers"
Ian Urbina, The New York Times, Feb. 27, 2011

Synopsis: Abundant, clean natural gas seemed to offer the United States an environmentally friendly alternative energy source to dirty domestic coal or expensive imported oil. But this 4,000-word story by one of the New York Times’s Washington bureau correspondents finds that the newly developed technique of extracting natural gas by injecting water and sand into rock formations at high-pressure – known as hydraulic fracturing, or hydro-fracking – produces toxic and radioactive waste water far more environmentally damaging than previously acknowledged by regulators.

Takeaway: “It’s not clear we have a plan for properly handling this waste,” says a former secretary of conservation for Pennsylvania, one of the leading natural-gas producing states.

--Kenneth Jost, Associate Editor


Mind Control Is Just Not That Easy
Megan McCardle, The Atlantic online, Feb. 27, 2011.

Synopsis: A recent Rolling Stone article reports that the American military illegally tried to use “psy-ops” to induce members of Congress to approve more funding for the Afghan war. But Atlantic business writer McCardle is skeptical. Other than torture, drugs, or other extreme techniques, the Army likely possesses few quick-acting mind-control techniques other than the plain old PR tricks widely used in the private sector, she argues.

Takeaway: “There are no magic tricks you can use to ensure that you get a good deal every time. The history of highly successful experts who delivered spectacularly unpopular ad campaigns, disastrous new products, or political strategies that backfired at Mach 10, should easily confirm this. If there were some special secrets that would get people to give you more money, then I guarantee that they would have found their way into the private sector by now,” McCardle writes.

Marcia Clemmitt, Staff Writer

Will new reforms limit gerrymandering?

To follow is an excerpt from the CQ Researcher issue "Redistricting Debates" by Kenneth Jost on February 25, 2011.


Should redistricting be done by independent commissions instead of state legislatures?

As head of Arizona's first citizens' redistricting commission, Steve Lynn spent thousands of hours over the past decade redrawing legislative and congressional districts in Arizona and defending the new maps in federal and state courts. Lynn, a utility company executive in Tucson who says he is both a former Democrat and former Republican, counts the commission's work a success: no judicial map-drawing, more opportunities for minorities and — in his view at least — more competitive districts.

Surprisingly, however, Lynn voted against Proposition 106 when it was on the Arizona ballot in 2000. Back then, he had no quarrel with the state legislature doing the job. Today, Lynn endorses independent commissions, but somewhat equivocally. “It's one way to do it,” Lynn told a redistricting conference sponsored by the National Conference of State Legislatures in late January. “It's not the only way to do it. Either way can work.” [Footnote 9]

Thirteen states now have redistricting commissions or boards with primary responsibility for drawing legislative districts; seven of those also have responsibility for drawing congressional districts. [Footnote *] Apart from the Arizona and California citizen commissions, the other bodies consist of specifically designated officeholders or members chosen in various ways by political officeholders with an eye to partisan balance. Five other states have backup commissions that take over redistricting in the event of a legislative impasse; two others have advisory commissions.

Two of the non-legislative bodies are long-standing: Ohio's, created in 1850; and the Texas backup commission, established in 1947. McDonald, the George Mason professor with the Public Mapping Project, says those commissions and others created in the 1960s and since were designed to make sure that redistricting was completed on time, not to divorce the process from politics. Indeed, McDonald says, there is “no evidence” that the commissions, despite their description as “bipartisan,” have reduced the kind of self-interested or partisan line-drawing that gives redistricting a bad name.

By contrast, the Arizona and California commissions consist of citizens who apply for the positions in screening processes somewhat akin to college admissions. Candidates must specify that they have not served within a specified time period in any party position or federal or state office.

In Arizona, applicants for the five-member commission are screened by the appellate court nominating commission, which approves a pool of 25 candidates: 10 Republicans, 10 Democrats and five independents. From that pool, the majority and minority leaders of the state House of Representatives and Senate each pick one member; those four then pick one of the independents to serve as chair.

California's process is even more complex. The state auditor's office screens candidates, forming a pool of 60, equally divided among Republicans, Democrats and independents. Those lists are provided to legislative leaders, who can strike a total of 24 applicants. The auditor's office then chooses the first eight commissioners by randomly pulling names from a spinning basket: three from each of the major parties and two independents. Those eight then pick six more: two Democrats, two Republicans and two independents.

Cressman, with Common Cause, acknowledges the complexity of the process. “It is challenging to come up with a system that gives you a combination of expertise and diversity and screens out conflict of interest and self-interest,” he says.

Opponents of California's Proposition 11 cited the complexity in campaigning against the ballot measure in 2008. They also argued the commission would be both costly and politically unaccountable. In 2010, opponents qualified an initiative to abolish the commission, which appeared on the same ballot with the measure to expand the commission's role to congressional redistricting. The repealer, Proposition 27, failed by a 40 percent to 60 percent margin.

Political veterans in California continue to complain about the commission — in private. But longtime redistricting expert Bruce Cain, a professor of political science at the University of California-Berkeley and now executive director of the university's Washington, D.C., program, publicly challenged the commission approach in a presentation to the state legislators' group in January.

Cain told the legislators that commissions result in added costs because of the need to train commission members, hire additional staff and consultants and hold extra rounds of public hearings. In any event, Cain said that reformers “oversell” the likely benefits of commissions. Commissions “cannot avoid making political judgments” and are as likely as legislatures to run afoul of legal requirements, he says.

“It doesn't matter whether you have a pure heart,” Cain concludes. “If you wind up with a plan that's unfair to one group or another, you're going to have trouble.”

Cressman is optimistic about the California commission, which heard from a series of experts in training sessions in January and held its first public hearing in February. “They have a lot of expertise,” Cressman says. “They strongly reflect the diversity of California. And they are quite ready to attack their job quite seriously.”

Still, experts across the board profess uncertainty about whether the California commission will deliver on the supporters' promise of a fairer redistricting plan. “It's a very open question whether those hopes will be realized,” says Douglas Johnson, president of the National Demographics Corporation, which consults on redistricting issues for governments and public interest groups. Johnson himself helped draft the initiative.

The Issues

* Should partisan gerrymandering be restricted?
* Should district lines be drawn to help minorities get elected to office?
* Should redistricting be done by independent commissions instead of state legislatures?

For more information on the CQ Researcher report on "Redistricting Debates" [subscription required] or purchase the PDF.



[9] The Arizona Independent Redistricting Commission's website is at www.azredistricting.org/?page=.

*The number includes Montana, which currently has one House member, elected at large; Montana lost its second House seat after the 1990 census.

Anti-Gay Laws Suspect: Government

By Kenneth Jost
Supreme Court Editor, CQ Press

The Obama administration will no longer defend the central provision of the 1996 law that prevents the federal government from providing marriage-based benefits to legally married same-sex couples.

In announcing the new stance on Wednesday (Feb. 23), Attorney General Eric H. Holder Jr. said the government has concluded that all anti-gay laws should be subject to “heightened scrutiny” in the courts. The Defense of Marriage Act (DOMA), now being challenged in federal cases in Massachusetts, Connecticut and New York, cannot meet that standard, Holder said.

The government’s call for heightened scrutiny, if adopted by courts, could doom other anti-gay laws, including the bans on same-sex marriages on the books in some 40 states.

Gay rights groups hailed the administration’s move, which Holder said was personally approved by President Obama. Evan Wolfson, president of the New York City-based Freedom to Marry, praised Obama and Holder “for acknowledging that sexual orientation discrimination has no place in American life and must be presumed unconstitutional.”

Laws such as DOMA “must be looked at with looked at with skeptical eyes, not rubber-stamped,” Wolfson said.

The government announced the position in advance of filings due March 11 in the two most recent challenges to DOMA in federal district courts in Connecticut and New York. For appellate purposes, those two states are both in the Second Circuit. Plaintiffs in those cases, legally married in their home states, say DOMA prevents the federal government from providing them specified financial benefits, such as tax breaks available to other married couples, Social Security benefits and employee health benefits.

The government had previously defended the constitutionality of DOMA in a case filed in Massachusetts, which is in the First Circuit. In that case, a district court judge in July 2010 ruled the law unconstitutional.

The government adopted the new position, Holder explained, because the Second Circuit, unlike the First, has no binding precedent on what standard of review to apply to laws that treat gays and lesbians differently from other people. With the government forced to address the issue for the first time, Holder said, “the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny.”

The Massachusetts case is currently pending before the First U.S. Circuit Court of Appeals. The First Circuit applies a relaxed “rational basis” test to laws aimed at gays and lesbians. In his ruling in July, U.S. District Court Judge Joseph Tauro said DOMA could not satisfy that test because it serves no legitimate government purpose.

Holder announced the new position in a statement as well as in a letter to House Speaker John Boehner. The Justice Department is required to notify Congress whenever it concludes that it will not follow the normal practice of defending a law in court despite policy disagreements with the measure.

In the letter, Holder said that laws based on sexual orientation meet four established criteria for triggering heightened scrutiny when challenged in court. Gays and lesbians, he said, have suffered a “significant history of purposeful discrimination,” both by government and private entities. In addition, Holder said sexual orientation is now widely recognized as an “immutable” characteristic, that gays and lesbians have “limited political power” and that sexual orientation “bears no relation to ability to perform or contribute to society.”

Holder said the government will notify the First Circuit of its new position. The notification to Congress affords lawmakers or others the opportunity to take steps to defend the law in court if they want. Boehner’s office had no immediate response to the move.

The new stance could affect the government’s defense of the “don’t ask, don’t tell” policy on gays in military. That policy remains in effect despite the law approved by Congress and signed by Obama in late December that calls for it to be repealed after a specified certification by Obama, the secretary of defense and the chairman of the Joint Chiefs of Staff. A federal judge in California ruled the policy unconstitutional in October; the government appealed the case to the Ninth U.S. Circuit Court of Appeal, which refused the government’s request last month to put the case on hold while awaiting the Pentagon review.

Weekly Roundup 2/21/2011

Reporting While Female
Sabrina Tavernise, The New York Times, Feb. 19, 2011

Why We Need Women in War Zones
Kim Barker, The New York Times, Feb. 19, 2011

In compelling accounts, two women journalists with wide experience covering combat and social conflict in countries where unaccompanied females are vulnerable make clear that a recent sexual assault in Egypt on CBS correspondent Lara Logan is unusual only because it became public. Tavernise, rebutting the widely spread notion that Muslim lands are especially dangerous, writes that her own worst experience took place in a country with a Christian culture. Barker strongly argues that Logan’s suffering shouldn’t give editors an excuse to quit assigning women to dangerous places.

The War That Killed Achilles: The True Story of Homer’s Illiad and the Trojan War (2010) Caroline Alexander

For those – like this reader and many others - who haven’t had the benefit of a classical education and have tried wading through the Illiad on their own, this book is a must. In clear, direct prose, Alexander guides the uninitiated through the story itself, its basis in real events and its roots in a large body of ancient myths. She doesn’t hesitate to draw parallels between the experiences of fighters in the decade-long Trojan War and combatants in today’s wars, which have been going on for nearly as long. Homer emerges as a chronicler with a clear-eyed vision of war’s toll – not a celebrator of victory.

--Peter Katel, Staff Writer


A Watershed Moment for Public Sector Unions
Steven Greenhouse, The New York Times, Feb. 19, 2011

Synopsis: Wisconsin is embroiled in a high-stakes fight between a Republican governor who wants to limit public employee collective bargaining rights and the unions and their Democratic allies who view the governor’s motive as political, not financial. The Times’ labor correspondent notes that public workers in Wisconsin with college degrees earn more than comparable private sector workers, though state wages for workers without college degrees are higher than in the private sector.

Takeaway: “Wisconsin has become,” one expert says, “ground zero for the process of pushing back against unions.”

--Kenneth Jost, Associate Editor


The New York Times’ Journalistic Obedience
Glenn Greenwald, Salon, Feb. 21, 2011

Synopsis: The press sometimes keeps mum about information that government sources tell reporters would endanger lives or the national interest. But if the media were to comply with every such request by government officials, would we still have the free press that a healthy democracy demands? In recent weeks, the U.S. press has complied with Obama administration requests to refrain from reporting that Raymond Davis, an American who shot to death two men in Pakistan on Jan. 27, was a CIA employee, not a diplomat, as the administration has said. This weekend, after British media reported the CIA connection, The New York Times finally reported it as well. (The Washington Post reported Tuesday, Feb. 22, that it learned of Davis’ CIA affiliation after his arrest but agreed not to publish that information at the request of senior U.S. intelligence officials, who cited concerns about Davis’ safety if his true employment were disclosed.) Salon columnist Greenwald argues the incident shows that U.S. media are now in the democracy-jeopardizing business of promulgating government lies without considering whether it’s in the public interest to do so.

Takeaway: Greenwald quotes Carne Ross, former British ambassador to the United Nations, who told the BBC: "It's extraordinary that The New York Times is clearing what it says about this with the U.S. government."

For more on the question of how media do and should respond to government lying, see the CQ Researcher report on "Lies and Politics" [subscription needed].

--Marcia Clemmitt, Staff Writer

Weekly Roundup 2/14/2011

The Order Of Things: What college rankings really tell us” (subscription required)
Malcolm Gladwell, The New Yorker, Feb. 14, 2011

The celebrated author of The Tipping Point takes on the college-ranking system devised by U.S. News & World Report for its annual guides aimed at high school seniors, their parents and graduate school applicants. Gladwell zeroes in on the rankers’ criteria and how each is weighted. The effect, he argues, is to skew the rankings toward certain institutions. His analysis could serve the college-bound as an exercise in critical thinking. Numbers may sound objective, he advises, but don’t take them at face value.

Peter Katel, Staff Writer


The Dirty Little Secrets of Search: Why One Retailer Kept Popping Up as No. 1
By David Segal, The New York Times, Feb. 13, 2011

Synthesis: Just about everybody these days wants to better their chances in Google searches. In the past few months, one name, improbably, kept popping up in online searches on Google for items ranging from area rugs to dresses to bedding: J.C. Penney.
Takeaway: By gaming the system, the huge retailer vaulted to No. 1 for each and every term, The New York Times discovered when it hired a search optimization expert to explore Penney’s uncanny record.

Thomas J. Colin, Contributing Editor


"In post-Mubarak Egypt, the rebirth of the Arab World"
Hussein Agha and Robert Malley, Washington Post, Feb. 11, 2011

"Egypt's Path After Uprising Does Not Have to Follow Iran's"
Anthony Shadid, The New York Times, Feb. 11, 2011

Synopsis: Egypt’s uprising rallied around freedom, social justice and nationalism, according to the Times’ Pulitzer Prize-winning Mideast correspondent, not the kind of Islamist militancy seen in Iran or practiced by al-Qaida. Beyond Egypt, two Middle East experts say, the Cairo uprising can spark the rebirth of the Arab world after a long period of passive and powerless regimes seen by their citizens as counterfeit and alien.

Takeaway: The future, for Egypt and Arab world alike, is – as Agha and Malley write – “rife with uncertainty about its pace and endpoint.”

For previous coverage, see “Democracy in the Arab World,” (subscription required) CQ Researcher, Jan. 30, 2004.

Kenneth Jost, Associate Editor


"DNA Testing Gives Doctors a New Dilemma"
Todd Ackerman, Houston Chronicle, Feb. 11, 2011.

Synopsis: Genetic medicine is still in its early stages, but the newest generation of gene tests already is perfect at doing one thing: verifying one’s parentage. This fact presents doctors with an ethical issue that many had seen coming but been able to dodge up to now. Some medical conditions, such as developmental disabilities, are inherited conditions that occur much more frequently among people whose parents are related to one another. Many doctors had long suspected that some patients they saw with these conditions had been conceived through first-degree incest – father-daughter, mother-son or brother-sister sex. Now, gene tests are verifying that suspicion. Geneticists at Baylor College of Medicine, in Houston, have been using the newest gene tests for about six months and already have turned up several patients born of incestuous relationships that the doctors had not been made aware of. The possibility that sexual abuse occurred in these cases may give doctors an ethical and legal responsibility to report them to law enforcement.

Takeaway: “Sex between first-degree relatives is illegal throughout the country, though it is a misdemeanor in Texas and rarely reported when both parties are adults. Though doctors are required to report suspicions of child abuse…their obligations are less clear when the mother is an adult and protected by doctor-patient confidentiality.”

Marcia Clemmitt, staff writer

Has WikiLeaks threatened national security?

To follow is an excerpt from the CQ Researcher issue "Government Secrecy" by Alex Kingsbury on February 11, 2011.


To be sure, the WikiLeaks documents embarrassed the U.S. government. They document the deaths of civilians in war zones, the close relations that the United States has with some despotic regimes and countless other details, both explosive and mundane, that were never meant for public consumption.

In some instances, the documents also show that the U.S. government has lied. A case in point: For years the Pentagon insisted publicly that it was not keeping a tally of Iraqi civilians and soldiers killed during the war and that counts provided by private aid groups and journalists were wildly inflated. In reality, the Pentagon did keep count, and its numbers were, if anything, slightly higher than the most widely cited press tallies. [Footnote 21]

But does embarrassment and scandal rise to the level of a national security threat?

Defense Secretary Gates denounced the release of thousands of once secret battlefield reports from troops in Iraq and Afghanistan, but sounded a word of caution. “I've heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer and so on. I think those descriptions are fairly significantly overwrought,” Gates said.

“The fact is, governments deal with the United States because it's in their interest, not because they like us, not because they trust us and not because they believe we can keep secrets. Many governments — some governments — deal with us because they fear us, some because they respect us, most because they need us. We are still essentially, as has been said before, the indispensable nation.” [Footnote 22]

Concerns over the disclosures have centered on two issues. First, that those who had provided information to, or cooperated with, the U.S. government — on the battlefield in Afghanistan, for instance — would face immediate reprisal. Second, that the release sowed mistrust that would make governments and individuals unwilling to cooperate candidly with the government in the future, for fear they would later be identified in leaked documents.

The first concern has been the more immediate and serious. In the wake of the first release of Afghan documents last July, Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, put it bluntly: “Mr. Assange can say whatever he likes about the greater good he thinks he and his source are doing, but the truth is they might already have on their hands the blood of some young soldier or that of an Afghan family.” [Footnote 23]

Highlighting what it sees as the seriousness of the issue, the State Department released a letter to WikiLeaks from its legal adviser, Harold Koh, warning that the site was jeopardizing “the lives of countless innocent individuals — from journalists to human-rights activists and bloggers to soldiers to individuals providing information to further peace and security.”

John Bellinger III, a State Department legal adviser in the Bush administration from 2005–2009, says WikiLeaks undoubtedly caused damage, especially regarding the willingness of people to cooperate with the U.S. government in the future. “What if WikiLeaks had published the internal source list for Human Rights Watch, which relies on confidential sources to write its reports?” he asks. “Not many people would agree that transparency in that case was a good idea. Foreign Service officers routinely meet with dissidents, human-rights workers [and] environmental activists, and they do good work that may be compromised.”

But months after the leaks were published, nearly 100 government intelligence analysts reported to Congress that the disclosures had done little actual damage to U.S. national interests. “We were told [by intelligence analysts that the impact of WikiLeaks revelations] was embarrassing but not damaging,” a government official familiar with the report told the Reuters news agency. [Footnote 24] The State Department did note, however, that it helped relocate a small number of people who had been compromised through the release of the documents. [Footnote 25]

Some intelligence experts say the release of sensitive information may actually have had benefits. The documents showed frequent duplicity on the part of foreign governments. The Yemeni president, for instance, allowed U.S. forces to operate in his country and lied about it to the country's parliament. [Footnote 26] On the other hand, the State Department comes across as rather honest, experts say. As Blake Hounshell, managing editor of Foreign Policy magazine noted, WikiLeaks actually showed that “the U.S. is remarkably consistent in what it says publicly and privately.” [Footnote 27]

But others contend that analysis misses the point. “Undermining the confidentiality of diplomatic communication harms our national security all by itself,” says Stephen Sestanovich, a former U.S. diplomat and current fellow at the Council on Foreign Relations. “Yes, the leaks may show that American diplomats are good, honest, capable people, but that isn't reason enough to think that the affair helps us.”

Others have mixed views. Professor Peter Feaver, who heads the Triangle Institute for Security Studies at Duke University, says the WikiLeaks disclosures have imposed “costs on friends and allies in other countries who trusted us, making diplomacy and cooperation harder, feeding noxious conspiracy theories and contributing to an image of a weak administration incapable of protecting items it has claimed must be kept secret to protect our national security.” Then again, he says, “for fair-minded and careful observers, many of the files disprove certain critiques of the United States and so, in this limited sense, there are some silver linings.”

The Issues

* Has WikiLeaks threatened national security?
* Should the government prosecute Julian Assange?
* Is too much government information classified?

For more information on the CQ Researcher report on "Government Secrecy" [subscription required] or purchase the PDF.



[21] “Iraq death toll higher: WikiLeaks,” CBC News, Oct. 23, 2010, www.cbc.ca/world/story/2010/10/23/wikileaks-iraqi-death-toll.html.

[22] Robert Gates, Pentagon briefing, Nov. 30, 2010.

[23] Mike Mullen, Pentagon briefing, July 29, 2010, www.jcs.mil/speech.aspx?id=1432.

[24] Quoted in Hosenball, op. cit.

[25] Ibid.

[26] Nick Allen, “WikiLeaks: Yemen covered up US drone strikes,” The Telegraph, Nov. 28, 2010.

[27] Daniel Drezner, “The Utopianism of Julian Assange,” Foreign Policy, Nov. 29, 2010.

Weekly Roundup 2/7/2011

"The Youth Unemployment Bomb"
Peter Coy, Bloomberg Business Week, Feb. 7-13

Synopsis: A thoroughly reported cover story highlights the high youth-unemployment rates in most of the world: 24 percent in the Middle East and North Africa, in the high teens in the United States (18 percent) and most other countries except in Asia. Economies around the world that “can't generate enough jobs to absorb . . . young people” are creating “a lost generation of the disaffected, unemployed, or underemployed.”

Takeaway: With older workers holding on to their jobs, the need will only become more acute for economies to grow and for schools and colleges to better match education to skills needed in the workplace.

Kenneth Jost, Associate Editor


Think Again: American Decline
Gideon Rachman, Foreign Policy, January-February, 2011

The sub-headline delivers the bottom line: “This time it’s for real.” The author, a foreign-affairs specialist for the London-based Financial Times newspaper – much read by members of the global business class – stakes out one side of the newly energized debate about the United States’ place in the emerging world power structure. Rachman’s piece won’t be the last word on the subject. But anyone who argues that America’s No. 1 status remains unchallenged will have to grapple with Rachman’s tough-minded analysis. He deals, for example, with two beliefs that marked late-1990’s views of the new world order. “The first was that economic growth would inevitably -- and fairly swiftly -- lead to democratization,” Rachman writes. “The second was that new democracies would inevitably be more friendly and helpful toward the United States. Neither assumption is working out… .It is now entirely conceivable that when China becomes the world's largest economy -- let us say in 2027 -- it will still be a one-party state run by the Communist Party.”

Peter Katel, Staff Writer


"FCIC Report Misses Central Issue: Why Was There Demand for Bad Mortgage Loans?"
Thomas Adams and Yves Smith, Huffington Post, Jan. 31, 2011.

Synopsis: Two writers from the always intriguing NakedCapitalism.com financial and economic-analysis blog tackle the unanswered – and often unasked – big question of the financial-market crash: Why on earth was there such apparently high demand for bad mortgages packaged as investments? Their answer: the growing popularity of high-dollar “hedging.” The fancy derivative investments called credit default swaps help investors win big if they buy them as a hedge against underlying investments that fail. Thus, write Adams and Smith, an appetite grew among investors for investment vehicles that were all but guaranteed to fail – since the failures were necessary for the hedged bets to pay off. Thus, they argue, was a burgeoning market for shaky, failure-prone mortgages born.

Takeaway: “For just a small investment in a CDO or CDS, an investor could create huge incentives for mortgage lenders to seek out unqualified borrowers and lend them far too much money.”

Marcia Clemmitt, Staff Writer

For further reading, see "Financial Industry Overhaul" [subscription required] by Marcia Clemmitt, July 30, 2010; and "Mortgage Crisis" [subscription required] by Marcia Clemmitt, Nov. 2, 2007, and updated Aug. 9, 2010.


Shaken: Has a Flawed Diagnosis Put Innocent People in Prison?
Emily Bazelon, The New York Times Magazine, Feb. 6, 2011

Synthesis: In this long and compelling account, Bazelon, a law and media fellow at Yale Law School, explores new questions about shaken-baby syndrome , describing several cases in which caregivers may have been wrongly convicted and imprisoned for child abuse. Convictions have been overturned for several people in the United States and Britain.

Takeaway: “A small but growing number of doctors warn that there can be alternate explanations for the usual triad of symptoms associated with shaken-baby syndrome,” Bazelon writes. Without other evidence of abuse, warns an attorney involved in challenging convictions, people should not be prosecuted in shaken-baby cases. “If the medical community can’t agree about all the conflicting data and research, how is a jury supposed to reach a conclusion that’s beyond a reasonable doubt?” asks Keith Findley, a lawyer for the Wisconsin Innocence Project.

Thomas J. Colin, Contributing Editor

Should campus women's centers be required to report statistics on sexual violence?

To follow is an excerpt from the CQ Researcher issue "Crime on Campus" by Peter Katel on February 4, 2011


In 2002 — 12 years after the Clery Act was enacted and eight years after regulations for carrying it out were issued — the most comprehensive survey to date of colleges' responses to sexual assault found that only 36.5 percent of institutions were reporting statistics in a manner fully consistent with the law's requirements. [Footnote 17]

Of all the issues involved in compiling data from a variety of campus sources — from college police departments to dormitory advisers and rape-crisis centers — one of the most complex is confidentiality. Under 1998 amendments to the Clery Act, professional mental health counselors and religious counselors are encouraged but not required to disclose the number of reports of alleged sexual offenses they've received. [Footnote 18]

Yet, by all accounts, counselors receive far more reports from victims than do police or college officials. And many college counselors work at women's centers, whose services typically include counseling and support for victims of sexual violence.

The Clery Act counseling exemption reflected the position of the American Psychological Association (APA). “Students should feel confident that what they say to a counselor is in confidence,” an association spokeswoman, Nina Levitt, said in 1999. Even reporting raw data could jeopardize that confidentiality, she said. [Footnote 19] Psychologists have been concerned that campus authorities could demand that victims disclose specific information on a potential offender, for instance, in order to protect other students' safety.

The University of Colorado's Friedrichs says the confidentiality provision serves a valuable purpose. “We are a confidential office; we are not required to tell anybody anything unless we have a written release of information,” she says. A change in that policy would “impact on the student and our ability to communicate.”

A further complication, says S. Daniel Carter, public policy director of Security on Campus, is that some states extend a confidentiality exemption not only to professional counselors but also to victims' advocates who may not have professional credentials. Even so, he says, the number of schools that exclude crime data because of the exemption isn't known. “No one has done large-scale research” on that issue, he says.

The exemption has led to some confusion at one of the country's biggest university systems. In 2003, the U.S. Department of Education ruled that the University of California (UC) had misinterpreted the counselor exemption to exclude crime data that came from all campus officials who may have done some counseling — as opposed to full-time counselors. “Institutions are expected to determine which officials … do not have significant counseling responsibilities,” the department ruled. UC had changed its policies by the time the department ruled, and the school wasn't penalized. [Footnote 20]

Moreover, even supporters of the counseling exemption say that statistics on sexual assaults can be misleading because the events that students recount may have occurred in hometowns or in childhood. It's a point Friedrichs makes. Her victim-assistance center's database, for instance, doesn't contain a separate classification for alleged sexual assaults that took place on campus, she says. If the center decided to report statistics, “we would have to start counting our numbers differently,” she adds. There has been no discussion of doing so, however, she says.

Even if a center did decide to report sexual-assault figures, how a counselor asks about a student's experience can make a big difference in how an event is classified. Fisher, the University of Cincinnati political scientist, and her colleagues found that when college women were asked detailed questions about uninvited sexual encounters without use of the word “rape,” responses made clear that more sexual attacks occurred than women were reporting. The researchers found a victimization rate of 27.7 assaults per 1,000 female students. And because some women were victimized more than once, the rate of incidents was 35.3 per 1,000 students. [Footnote 21]

“In a given academic year … for a campus with 10,000 women, this would mean the number of rapes could exceed 350,” they wrote. [Footnote 22]

Ada Meloy, general counsel of the American Council on Education (ACE), which advocates on policy issues for colleges and universities, argues, however, that while “there are said to be many instances” of unreported sexual assaults, “if they're not reported, you do have to wonder how serious they were or whether they occurred, frankly.”

Meloy also says that “most institutions have disciplinary procedures that are adequate to handle sexual-assault allegations,” though she adds that “sexual assault is also a criminal matter and college procedures are not a substitute for that avenue of addressing situations that may occur.”

Kassa of Security on Campus suggests one mechanism to get around the confidentiality problem: Have counselors voluntarily report aggregate numbers of alleged crimes to a third party, who then would transmit them to the people who do the statistical crime compilations required by the Clery Act. That would separate the counseling function from the data-gathering function altogether, he maintains. “You don't have to have your counselors make the statistical report.”

The key point of the Clery Act's counselor confidentiality privilege is that it's not mandatory, Kassa says. “This is the beauty of the Clery Act — it gives [colleges] all the discretion in the world.”

Georgetown's Cantalupo says she has no problem with reporting aggregate data on reported sexual assaults. She acknowledges that some counselors fear that women would refrain from speaking of their experiences if they thought that what they said would automatically be disclosed to campus authorities. But, she says, that reaction could be dissipated if counselors made clear that they would report nothing but numbers.

A problem could arise if college administrators treated a statistical disclosure as an overall waiver of the counselor exemption, Cantalupo says. But “any institution that is really interested in solving this problem will not do something like that,” she says, “because they would realize that their victim-advocate office is their best possibility for fixing the problem” of sexual violence on campus.

Sokolow, the campus-safety consultant, argues that changing the Clery Act to require statistical disclosure from counseling centers would be a bad idea. But he says institutions should urge counseling centers to report numbers of alleged assaults voluntarily. “Schools ought to be saying, ‘Share your statistics,’” he says.

The Issues

* Has the Clery Act increased campus safety?
* Should campus women's centers be required to report statistics on sexual violence?
* Are laws and lawsuits forcing schools to become more protective of students?

For more information on the CQ Researcher report on "Crime on Campus" [subscription required] or purchase the PDF.



[17] Heather M. Karjane, et al., “Campus Sexual Assault: How America's Institutions of Higher Education Respond,” Education Development Center, 2002, p. vii, www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf.

[18] “Code of Federal Regulations, Title 34 — Education, Part 668, Subpart D, Sec. 668.46,” www.securityoncampus.org/pages/34cfr668.46.html.

[19] Quoted in Christina DeNardo, “Law closes loopholes in campus crime reporting,” Daily Orange (Syracuse University), April 30, 1999.

[20] “Final Program Review Determination Letter,” U.S. Education Department, March 31, 2003, pp. 10–12, http://federalstudentaid.ed.gov/datacenter/cleryact/ucla/UCLAFPRDL0332003.pdf; Rebecca Trounson, “Study Faults Crime Reports at UC,” Los Angeles Times, April 9, 2003, p. B7.

[21] Fisher, et al., op cit.

[22] Ibid., p. 11.