Among the great many issues that are “literally horrifying” about the changes to Title IX campus sex tribunal guidance, one of the most unseemly is that the accused may be given the right to cross-examine the accuser. Confrontation. It’s exhausting.

DeVos has said that the former Title IX guidance unfairly denied rights to students who are accused of sexual assault, a claim activists strongly deny. “The Obama-era guidelines reflect bipartisan consensus that campus investigations into sexual assault had to be prompt, equitable, and fair to both sides,” Singh said. “There’s a conservative media narrative that the Obama guidelines required campuses to be procedurally unfair to accused students, but nothing could be further from the truth.” (Emphasis added.)

Nothing? That might be a bit hyperbolic, but if Sejal Singh, a policy coordinator with the advocacy group Know Your IX says so, shouldn’t we just believe? And as Skadden Fellow(?), Alexandra Brodsky, went on a twitter tear over the prospect of “survivors” being forced to subject themselves to “direct cross” by their “assailant.”

That means that a survivor could be directly questioned by her assailant. Not through an intermediary or representative. Directly.

A lot of critics don’t get this. I talked to a prof who wrote letter calling for cross. He hadn’t realized not all students have lawyers.

There are many ways to promote truth-seeking and provide opportunities for parties to push back on others’ narratives without direct cross.

Talk about a hostile environment.

I still can’t stand to be in the same room as assailant. To be directly questioned by him? That was all I wanted to escape.

I should add: that kind of direct cross almost never allowed in criminal trials, where accused rightly have far greater due process rights

Brodsky happens to be co-founder of Know Your IX. Aside from the final twit quoted above, which is completely false, she has a point. Assuming the accuser was, in fact, raped, it would certainly be traumatic to be confronted by her rapist.

There are no shortage of quotes extolling the virtues of cross-examination as a means of testing the truth of allegations, but that doesn’t alter the unseemliness of the situation or negate the trauma endured by the victim. Of course, not every accuser is a victim, and not every alleged rape is a rape. But that similarly doesn’t mean no accuser is a victim and no accusation of rape isn’t really a rape either.

Brodsky raises the Harvard method, where the accused can submit to the tribunal questions to be posed to the accuser, who would do the asking to the extent the tribunal decided the questions were worthy. This is a failed method for two reasons: first, because it only permits questions to the extent the tribunal allows them, and second, because it negates the effectiveness of cross by denying the accuser the opportunity to pose follow-up questions based upon the witness’ answers. No trial lawyer who has ever crossed a witness would think this a viable substitute.

Then again, no trial lawyer would think that a pro se defendant, or in this case, an accused student, would have the skills necessary to conduct a meaningful cross-examination. Cross is a skill that takes years of experience to hone. Without experience, it’s no better than giving a kid a hammer and telling him to build the Taj Mahal. The right to cross, without the skills to do so effectively, is empty. Maybe better than nothing, but not much.

There is, of course, a fairly obvious answer that addresses both the legitimate concerns raised by Brodsky as well as the concerns about the ineffectiveness of confrontation in the hands of the inept. And to add one additional piece to the puzzle, there is no shortage of funds dedicated to the machinery of Title IX adjudication. Did you think Harvard’s 55 Title IX coordinators worked for free?

The solution to both sides of the equation is to allow counsel for the accused to conduct the hearing on behalf of her client, such that a lawyer, rather than the accused rapist, will conduct the cross-examination of the accuser. And for those accuseds who can’t afford counsel, provide a lawyer to them. No student accused of such a heinous offense, whose life stands to be ruined upon an adverse determination, should be left to his own devices to defend himself. He’s not equipped to do so. This little detail should not be ignored or forgotten.

And one would think Brodsky would be completely on board with this idea, as it would save the victim from suffering the trauma of being confronted directly by her assailant. It would still be possible that a student would elect to defend himself pro se, just as the occasional defendant in court decides to be the fool, but that is a gap that can’t be avoided. It remains far more likely, just as it does in real court, that the accused will accept the provision of counsel for his defense if he can’t afford one on his own.

Will the advocates for “survivors” join arms for the sake of protecting their accusers from the unseemliness of being questioned by the guy they’re accusing of terrible things? Do they care enough about the trauma of their “survivors” to do what it takes to eliminate this nightmare scenario? Or will they be so conflicted by the possibility that a competent defense will show that the allegations aren’t as they claim to be that they would rather subject their “survivors” to cross by their “assailants” than allow an accused to have a fair opportunity to defend himself?